Simmons Media Group v. Waykar

2014 UT App 145
_________________________________________________________
THE U TAH COURT OF A PPEALS
SIMMONS MEDIA G ROUP , LLC,
Plaintiff and Appellee,
v.
W AYKAR , LLC; KAREN P. MCBRIDE ; AND J AMIE EVANS ,
Defendants and Appellants.
Opinion
No. 20120335‐CA
Filed June 26, 2014
Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 050401616
Steve K. Gordon and Jarom B. Bangerter, Attorneys
for Appellants
Troy L. Booher, Erin B. Hull, Noella A. Sudbury,
Michael L. Molen, Wade R. Budge, and Beth E.
Kennedy, Attorneys for Appellee
J UDGE J. FREDERIC VOROS J R . authored this Opinion, in which
J UDGES J AMES Z. D AVIS and J OHN A. P EARCE concurred.
VOROS, Judge:
¶1 	Along the Wasatch Front, Interstate 15 is festooned with
billboards. This case concerns one of them. Simmons Media Group,
LLC leased the billboard site from Waykar, LLC. Simmons later
sued Waykar and the other defendants (collectively, Waykar) for
breach of a right of first refusal. The district court granted partial
summary judgment in favor of Simmons and, after an evidentiary
hearing, resolved all remaining issues in favor of Simmons. We
affirm the judgment of the district court in all respects. We also
award reasonable attorney fees on appeal to Simmons.

Simmons Media Group v. Waykar
BACKGROUND
¶2 	In 1980, Karen P. McBride acquired property (the Property)
on the west side of I‐15 in Utah County. When Karen1 acquired the
Property, it already hosted a billboard on the “far northern corner
of the Property” under a lease with an advertising company.
¶3 	In 1991, Wayne McBride, Karen’s then‐husband, renewed
the original lease with the Underland Group, who managed the
billboard at the time. The renewed lease describes the location of
the leased property as “500 West 2000 South.” This imprecise
description reflects the shorthand Wayne had used “for years to
describe the Property.” Lavorn Spark, the Underland Group’s
representative, and Wayne signed the renewed lease. Both Wayne
and Spark intended the renewed lease to govern the Property. The
renewed lease contains a right of first refusal. The right is triggered
when the lessor “decide[s] . . . to sell the premises” and receives an
offer from a third party:
In the event lessor shall decide during the term of
this lease to sell the premises described herein, lessor
shall give written notice to Underland Group of the
terms and price offered by a third party. Underland
Group shall be entitled for thirty (30) days to acquire
the premises on the terms and conditions in said
notice. If Underland Group does not exercise said
right 	of 	purchase, 	the 	lessor 	shall 	not 	sell 	the
premises 	on 	other 	terms 	for 	six 	(6) 	months.
Thereafter, Underland Group shall have the same
right as to any subsequent offer to purchase.
¶4 	In 1996, Wayne, Karen, and Karen’s father formed a
company and gave it the portmanteau name Waykar, LLC. Wayne
1. We refer to Karen and Wayne McBride by their first names for
purposes of clarity.
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Simmons Media Group v. Waykar
served 	as 	Waykar’s 	president 	and 	registered 	agent. 	Karen
transferred the Property to Waykar. However, in 1997 the two
divorced and Wayne relinquished his interest in Waykar.
¶5 	The following year the Underland Group assigned its lease
rights to Simmons. Simmons maintained the billboard, rented it
out, and sent Waykar annual rent payments per the terms of the
renewed lease. Karen endorsed many of Simmons’s checks on
Waykar’s behalf.
¶6 	In 2002 Karen entered into a “Lease with Option to
Purchase” agreement (the Lease/Option) with Jamie and Terry
Evans. The Lease/Option granted the Evanses the exclusive right
to purchase the Property. It also provided that any rent payments
would be “credited toward the Purchase Price.” Waykar did not
offer Simmons an opportunity to exercise its right of first refusal or
even notify Simmons of the Lease/Option. But Simmons later
learned that Terry Evans had in a public meeting claimed to own
the Property. Simmons sued, alleging that Waykar had breached
the right of first refusal provision. Shortly thereafter Karen and her
father 	sold 	Waykar 	with 	all 	of 	its 	assets—including 	the
Property—to Hopper Holdings, an entity owned by Jamie and
Terry Evans. Again, Waykar did not offer Simmons an opportunity
to exercise its right of first refusal or even notify Simmons of the
sale.
¶7 	After the close of discovery, Simmons moved for summary
judgment. The district court granted partial summary judgment in
favor of Simmons, ruling as a matter of law that the renewed lease
was valid, that it governed the Property, and that Waykar had
breached the right of first refusal. The district court then held an
evidentiary hearing to determine the appropriate remedy. The
court ruled that, had Waykar honored the right of first refusal,
Simmons could have purchased the Property in 2002 for $224,480.
Considering the time value of money and Simmons’s lost profits,
the district court determined that Simmons was entitled to
purchase the property for $150,914.93. This appeal followed.
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Simmons Media Group v. Waykar
ISSUES AND STANDARDS OF REVIEW
¶8 	First, Waykar contends that the district court erred in
denying its motion to dismiss. “A ruling on a motion to dismiss
presents a legal question that we review for correctness, affording
no deference to the district court’s decision.” Turner v. Staker &
Parson Cos., 2012 UT 30, ¶ 7, 284 P.3d 600.
¶9 	Second, Waykar contends that the district court erred in
granting Simmons’s motion for rule 56(f) relief and staying
Waykar’s motion for summary judgment. “We review the grant or
denial of a rule 56(f) motion using an abuse of discretion standard.”
Brown v. Glover, 2000 UT 89, ¶ 29, 16 P.3d 540. The district court
“should liberally consider rule 56(f) motions unless they are
dilatory or lacking merit.” Id. (citation and internal quotation marks
omitted).
¶10 	Third, Waykar contends that the district court erred in
granting Simmons partial summary judgment because (1) Waykar
did not ratify the renewed lease, (2) the renewed lease and the right
of first refusal did not apply to the Property, and (3) Waykar did
not breach the right of first refusal. We review a district court’s
“legal conclusions and ultimate grant or denial of summary
judgment for correctness, and view[] the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600
(citation and internal quotation marks omitted).
¶11 	Fourth, Waykar contends that the district court erred in
entering its order of partial summary judgment prematurely under
rule 7(f) of the Utah Rules of Civil Procedure. We review an order
granting summary judgment for correctness. Id. Nevertheless, a
party suffers no prejudice when a district court corrects its alleged
procedural error. Crossland Sav. v. Hatch, 877 P.2d 1241, 1243 n.5
(Utah 1994).
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Simmons Media Group v. Waykar
¶12 	Fifth, Waykar contends that the district court erred in
(1) granting specific performance, (2) determining the purchase
price, and (3) allowing Simmons to offset its lost profits against the
purchase price. “Specific performance as a remedy will stand and
will not be upset on appeal in the absence of an abuse of
discretion.” Covey v. Covey, 2003 UT App 380, ¶ 18, 80 P.3d 533
(citation and internal quotation marks omitted).
¶13 	Finally, Simmons seeks attorney fees on appeal on the
ground that Waykar’s briefing violates rule 24(k) of the Utah Rules
of Appellate Procedure. Because this claim does not require review
of any district court ruling, no standard of review applies.
ANALYSIS
I. The District Court Properly Denied Waykar’s Motion to
Dismiss.
¶14 	Waykar contends that the district court erred in denying its
motion to dismiss. Waykar sought dismissal on the ground that
“Simmons’s complaint failed to state a valid claim against Waykar
for breach of the [right of first refusal].” Waykar argues that
because the address on the renewed lease differs from the
Property’s actual location, the renewed lease does not as a matter
of law govern the Property. Simmons responds that the district
court properly denied Waykar’s motion to dismiss because the
complaint stated “a colorable claim that the renewed lease applies
to the [Property] and that Waykar is equitably estopped from
asserting otherwise.”
¶15 	A district court “may dismiss an action if the complaint
‘fail[s] to state a claim upon which relief can be granted.’”
Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT 29, ¶ 20, 232 P.3d
999 (alteration in original) (quoting Utah R. Civ. P. 12(b)(6)). A
complaint states a claim upon which relief can be granted if it
“alleges the facts and sets forth the legal basis for an available legal
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Simmons Media Group v. Waykar
remedy.” Mack v. Utah State Depʹt of Commerce, Div. of Sec., 2009 UT
47, ¶ 17, 221 P.3d 194. “A motion to dismiss should be granted only
if, assuming the truth of the allegations in the complaint and
drawing all reasonable inferences therefrom in the light most
favorable to the plaintiff, it is clear that the plaintiff is not entitled
to relief.” Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275
(citation and internal quotation marks omitted). And “documents
attached to a complaint are incorporated into the pleadings . . . and
are fair game for this court to consider in addition to the
complaint’s averments.” Oakwood Vill. LLC v. Albertsons, Inc., 2004
UT 101, ¶ 10, 104 P.3d 1226.
¶16 	In the breach‐of‐contract context, a complaint states a claim
upon which relief can be granted when it alleges “(1) a contract,
(2) performance by the party seeking recovery, (3) breach of the
contract by the other party, and (4) damages.” Bair v. Axiom Design,
LLC, 2001 UT 20, ¶ 14, 20 P.3d 388.
¶17 	Here, Simmons’s amended complaint alleges that the parties
entered into the renewed lease, that Simmons paid rent to Waykar
under the renewed lease, that the renewed lease pertains to the
Property, that the “[renewed lease] contains a right of first refusal,”
and that “Evans and Waykar . . . conspired to transfer the Property
to Evans without giving Simmons the opportunity to purchase the
Property on the same terms offered to Waykar by Evans.”
Simmons 	also 	attached 	the 	renewed 	lease 	to 	the 	amended
complaint. Simmons’s complaint therefore alleged the elements of
breach of contract. Waykar, of course, contested the truth of these
allegations. But “assuming the truth of the allegations” and
“drawing all reasonable inferences therefrom in a light most
favorable to [Simmons],” Waykar cannot show “that [Simmons]
was not entitled to relief.” Hudgens, 2010 UT 68, ¶ 14 (citation and
internal quotation marks omitted). Accordingly, we discern no
error in the district court’s denial of Waykar’s motion to dismiss.
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Simmons Media Group v. Waykar
II. The District Court Properly Granted Simmons Relief Under
Rule 56(f).
¶18 	Waykar contends that the district court erred in “denying
Waykar’s 	motion 	for 	summary 	judgment 	and 	entering 	the
February 1, 2006 Order.” Simmons responds that the February 1,
2006 order did not deny Waykar’s motion for summary judgment,
but instead properly granted Simmons rule 56(f) relief.
¶19 	The contested order did not deny Waykar’s motion for
summary judgment. As Simmons asserts, the order merely granted
Simmons rule 56(f) relief. Rule 56(f) of the Utah Rules of Civil
Procedure allows a district court to grant a party additional time
for discovery before ruling on a motion for summary judgment:
Should it appear from the affidavits of a party
opposing the motion [for summary judgment] that
the party cannot . . . present . . . facts essential to
justify the party’s opposition, the court may refuse
the 	application 	for 	judgment 	or 	may 	order 	a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may
make such other order as is just.
Utah R. Civ. P. 56(f).
¶20 	Here, the district court did not deny Waykar’s motion for
summary judgment but stayed it and allowed Simmons to conduct
additional discovery. Accordingly, Waykar’s claim that the district
court 	improperly 	granted 	summary 	judgment 	rests 	on 	a
mischaracterization of the court’s ruling. Waykar does not argue
that 56(f) relief was unwarranted. Consequently, Waykar fails to
show that the district court abused its discretion by granting
Simmons rule 56(f) relief. See Brown v. Glover, 2000 UT 89, ¶ 29, 16
P.3d 540.
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Simmons Media Group v. Waykar
III. The District Court Did Not Err in Granting Partial Summary
Judgment.
¶21 	Waykar contends that the district court erred in granting
partial summary judgment to Simmons. “An appellate court
reviews a [district] court’s legal conclusions and ultimate grant or
denial of summary judgment for correctness, and views the facts
and all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6,
177 P.3d 600 (citation and internal quotation marks omitted).
A. 	The Renewed Lease Is Valid.
¶22 	First, Waykar argues that the district court erred because “an
issue of fact existed regarding the validity of the [renewed lease].”
According to Waykar, the renewed lease was invalid because
Wayne did not own the Property and thus was not authorized to
sign the renewed lease. Waykar alleges that “[n]o authorized
representative of [Waykar] was aware that Wayne had signed the
[renewed lease] until August or September of 2006.”
¶23 	Simmons responds that Wayne was authorized to sign the
renewed lease but argues that even if he was not, Waykar ratified
the renewed lease by cashing checks while Wayne acted as
Waykar’s president, one of 	its 	managing members, and its
registered agent.
¶24 	“It is well‐established under Utah law that [s]ubsequent
affirmance by a principal of a contract made on his behalf by one
who had at the time neither actual nor apparent authority
constitutes a ratification, which in general is as effectual as an
original authorization.” Bullock v. Utah Depʹt of Transp., 966 P.2d
1215, 1218 (Utah Ct. App. 1998) (alteration in original) (citation and
internal 	quotation 	marks 	omitted). 	Moreover, 	“[r]atification
. . . need not be express. Any conduct which indicates assent by the
purported principal to become a party to the transaction or which
is justifiable only if there is ratification is sufficient. Even silence
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Simmons Media Group v. Waykar
with full knowledge of the facts may . . . operate as a ratification.”
Bradshaw v. McBride, 649 P.2d 74, 78 (Utah 1982) (citation and
internal quotation marks omitted). “Once ratified, the voidable
contract or deed is deemed valid.” Ockey v. Lehmer, 2008 UT 37,
¶ 18, 189 P.3d 51. However, “a ratification requires the principal to
have knowledge of all material facts and an intent to ratify.”
Bradshaw, 649 P.2d at 78. In general, a “principal is chargeable with,
and bound by, the knowledge of . . . his agent.” Jensen v. IHC
Hosps., Inc., 2003 UT 51, ¶ 63, 82 P.3d 1076 (citation and internal
quotation marks omitted) (omission in original).
¶25 	Here, Waykar engaged in conduct that was “justifiable only
if there [was] ratification.” Bradshaw, 649 P.2d at 78. Specifically,
Waykar, and even Karen personally, cashed checks from Simmons
under the renewed lease. This conduct “indicates assent by
[Waykar] to become a party to the transaction.” Id.
¶26 	Waykar responds that those payments are equally consistent
with a belief that the lease was a month‐to‐month arrangement. On
the contrary, Waykar was aware of the renewed lease. Wayne
knew all the material facts of the renewed lease—indeed he
negotiated and signed it. And Wayne became Waykar’s president
and registered agent when it was formed in 1996. Waykar is thus
“chargeable with, and bound by” Wayne’s knowledge of the
renewed lease. Jensen, 2003 UT 51, ¶ 63 (citation and internal
quotation marks omitted). Thus, Waykar’s assertion that “no
authorized representative [of Waykar] was aware that Wayne had
signed the [renewed lease] until August or September of 2006” is
untrue: Wayne became Waykar’s first president and registered
agent in 1996, and he had signed the renewed lease in 1991.2
2. “It is well established that, where the agent has interests in the
transaction adverse to the principal’s, or where the agent colludes
with third parties whose interests are adverse to the principal’s
interests, knowledge of the facts at issue will not be imputed to the
(continued...)
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Simmons Media Group v. Waykar
¶27 	Therefore, even if Karen did not originally authorize Wayne
to enter into the renewed lease, undisputed facts establish that
Waykar later ratified his action. Thus, Waykar fails to show that the
district court erred in ruling that the renewed lease was valid.
B. 	The Renewed Lease Applies to the Property.
¶28 	Next, Waykar contends that the district court erred in
granting partial summary judgment to Simmons because the
renewed lease, “by its own express terms, does not apply to the
[Property].” Waykar argues that the address used to identify the
Property on the renewed lease misstates an essential term,
rendering the lease invalid. Simmons responds that the renewed
lease describes the Property adequately because it uses Wayne’s
shorthand version of the Property’s description—the street address
of the access road to the Property.
¶29 	A valid lease must contain “(1) the identity of the property,
(2) the agreed term, i.e., time period, and (3) the rental amount
(rate) and time and manner of payment.” Brown’s Shoe Fit Co. v.
Olch, 955 P.2d 357, 363 (Utah Ct. App. 1998) (citation and internal
quotation 	marks 	omitted). 	“However, 	the 	term 	essential 	to
enforceability is not the legal description of the property, but ‘the
identity of the property.’” GeoNan Props., LLC v. Park‐Ro‐She, Inc.,
2011 UT App 309, ¶ 11, 263 P.3d 1169 (citing Brown’s Shoe, 955 P.2d
at 364). So long as the lease clearly identifies the property, “the
manner in which it is identified is irrelevant to enforceability.” Id.
Furthermore, 	“[w]hether 	a 	contractual 	term 	or 	provision 	is
ambiguous on its face is a question of law.” Flores v. Earnshaw, 2009
UT App 90, ¶ 7, 209 P.3d 428 (citing Daines v. Vincent, 2008 UT 51,
¶ 25, 190 P.3d 1269). “When determining whether a contract is
2. (...continued)
principal.” Jensen v. IHC Hosps., Inc., 944 P.2d 327, 333 n.1 (Utah
1997). Waykar does not allege that Wayne was conflicted in 1996.
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Simmons Media Group v. Waykar
ambiguous, any relevant evidence must be considered.” Ward v.
Intermountain Farmers Assʹn, 907 P.2d 264, 268 (Utah 1995).
¶30 	Here, the renewed lease describes the Property as located at
500 West 2000 South. Waykar correctly observes that this address
does not correspond to the physical location of the Property.
Nevertheless, we agree with the district court that this description
unambiguously identifies the property. Wayne testified that this
address was one he “used for years to describe the [P]roperty.”
Both signers of the renewed lease—Wayne and Spark—stated in
their affidavits that they understood that the renewed lease applied
to the Property. Wayne and Spark did not believe they were
entering into a lease for property situated at 500 West and 2000
South. They intended to renew a lease for property on which the
Underland 	Group 	had 	previously 	managed 	the 	billboard.
Accordingly, the district court did not err in concluding that the
renewed lease adequately describes the Property. 3
C. 	Waykar Breached the Right of First Refusal.
¶31 	Finally, Waykar contends that the district court erred in
granting partial summary judgment for Simmons because “[e]ven
if Simmons had established through undisputed evidence that the
[renewed lease] was enforceable against Waykar, and even if
Simmons had submitted undisputed evidence that the [renewed
lease] applies to the [Property], its claim that Waykar breached the
[right of first refusal] still failed as a matter of law.” Waykar
reasons that the 2005 sale did not trigger the right of first refusal
because Karen did not sell the Property but the legal entity owning
the Property. Simmons responds that the 2005 sale is “not the
only—or dispositive—breach that the [district] court relied upon.”
3. Waykar also argued that the Property consisted of two tax
parcels and the renewed lease governed only one. But Waykar did
not submit this argument, or even mention a tax parcel, until after
summary judgment was granted. We therefore do not consider it.
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Simmons Media Group v. Waykar
Simmons argues that the district court independently ruled that
Waykar breached the right of first refusal when it entered into the
Lease/Option with the Evanses.
¶32 	“This court will not reverse a ruling of the [district] court
that rests on independent alternative grounds where the appellant
challenges only one of those grounds.” Salt Lake County v. Butler,
Crockett & Walsh Dev. Corp., 2013 UT App 30, ¶ 28, 297 P.3d 38; see
also Republic Outdoor Adver., LC v. Utah Depʹt of Transp., 2011 UT
App 198, ¶ 32, 258 P.3d 619 (declining to consider a challenge to an
alternative basis for the court’s grant of summary judgment where
appellant failed to adequately challenge an independent basis for
the court’s ruling).
¶33 	Here, Waykar challenges only one of the district court’s
alternative grounds for its ruling. The district court ruled that the
right of first refusal was breached in 2005 when Karen sold
Waykar, LLC to Hopper Holdings. But the district court also ruled
that Waykar breached the right of first refusal in 2002 when “Jamie
Evans and Karen McBride entered into a ‘Lease with Option to
Purchase’ agreement for the sale of the property for which
Simmons held the right of first refusal.”
¶34 	While Waykar challenges the district court’s ruling with
respect to the 2005 sale of the company, Waykar does not
address—or 	even 	mention—the 	2002 	Lease/Option. 	Because
Waykar has challenged only one of the “independent alternate
grounds” for the district court’s ruling, it has not demonstrated that
the ruling lacks record support. See Butler, 2013 UT App 30, ¶ 28.
¶35 	Because Waykar has failed to show that the district court
erred in ruling (1) that the renewed lease was valid, (2) that the
renewed lease and its right of first refusal governed the Property,
and (3) that the right of first refusal was triggered and violated, we
affirm the district court’s grant of partial summary judgment.
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Simmons Media Group v. Waykar
IV. Waykar Has Not Shown That the District Court Granted
Summary Judgment Prematurely.
¶36 	Waykar contends that the district court erred in entering
partial summary judgment for Simmons before Waykar’s deadline
to file objections had passed. Waykar also contends that the district
court erred in vacating and reentering the order a few months later.
Simmons responds that we should “refuse to address [these]
arguments as inadequately briefed under rule 24(k) of the Utah
Rules of Appellate Procedure.”
¶37 	An adequately briefed argument “contain[s] the contentions
and reasons of the appellant with respect to the issues presented
. . . with citations to the authorities, statutes, and parts of the record
relied on.” Utah R. App. P. 24(a)(9). “‘Implicitly, rule 24(a)(9)
requires not just bald citation to authority but development of that
authority and reasoned analysis based on that authority.’” State v.
Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (quoting State v. Thomas, 961
P.2d 299, 305 (Utah 1998)). An inadequately briefed claim is by
definition insufficient to discharge an appellant’s burden to
demonstrate trial court error. See Salt Lake County v. Butler, 2013 UT
App 30, ¶ 37 n.5, 297 P.3d 38.
¶38 	Here, in seven pages of argument on this issue, Waykar’s
brief identifies no rule of law that the district court allegedly
violated. Instead, Waykar refers only to facts, most of which were
submitted only after the court had already ruled on summary
judgment. By failing to cite any authority, Waykar’s brief fails to
“discharge [Waykar’s] burden to demonstrate trial error.” Id.
¶39 	Waykar also fails to mention that even if the district court
did err, it cured the error when it vacated its order, heard Waykar’s
objections, considered Waykar’s objections, and reentered the
order. When a district court corrects its alleged procedural error, a
party cannot claim prejudice. Crossland Sav. v. Hatch, 877 P.2d 1241,
1243 n.5 (Utah 1994).
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Simmons Media Group v. Waykar
¶40 	In light of the foregoing, we conclude that Waykar has failed
to carry its burden of persuasion on appeal. See Butler, 2013 UT
App 30, ¶ 37 n.5.
V. The District Court Did Not Err in Ordering Specific
Performance, Awarding Lost Profits, and Determining the
Purchase Price.
¶41 	Finally, Waykar challenges the district court’s order of
specific performance. Waykar argues that the district court erred
in ordering specific performance, in determining the purchase
price, and in allowing Simmons to offset its lost profits against the
purchase price. Simmons responds that Waykar did not marshal
the evidence to support its argument as required by our rules. We
agree with Simmons.
¶42 	Rule 24(a)(9) of the Utah Rules of Appellate Procedure
states, “A party challenging a fact finding must first marshal all
record evidence that supports the challenged finding.” Utah R.
App. P. 24(a)(9). The duty to marshal serves as a “natural extension
of an appellant’s burden of persuasion.” State v. Nielsen, 2014 UT
10, ¶ 41. “‘An appellant cannot demonstrate that the evidence
supporting a factual finding falls short without giving a candid
account of that evidence.’” Dillon v. Southern Mgmt. Corp. Ret. Trust,
2014 UT 14, ¶ 59 (quoting State v. Mitchell, 2013 UT App 289, ¶ 31,
318 P.3d 238). “Formal briefing requirements aside, an argument
that does not fully acknowledge the evidence supporting a finding
of fact has little chance, as a matter of logic, of demonstrating that
the finding lacked adequate factual support.” Id. (citation and
internal quotation marks omitted); accord Nielsen, 2014 UT 10, ¶ 41.
¶43 	Here, Waykar omits several uncomfortable but crucial facts.
For example, it argues that the district court erred in granting
specific performance because Simmons did not diligently assert its
claim. But Waykar fails to disclose that the district court found that
Waykar’s own actions throughout the litigation created “a major
source of delay in this case.” Waykar also fails to disclose that
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Simmons Media Group v. Waykar
Simmons complied with scheduling orders entered in this case, but
that Waykar itself violated at least one scheduling order.
¶44 	Additionally, in arguing that the district court “erroneously
determined the [purchase] price,” Waykar claims that the district
court incorrectly used $488,000 as the amount of the option to
purchase “even though according to the plain terms of the
[Lease/Option], the correct figure was $498,000.” However, Waykar
does not acknowledge that Karen herself testified that the purchase
price was $488,000 or that Terry Evans described the purchase price
as $488,000 in a letter to Karen. For an appellant to challenge a
factual 	finding 	as 	unsupported 	by 	the 	evidence 	without
acknowledging 	that 	her 	own 	testimony 	supports 	the 	finding
constitutes a flagrant failure to marshal.
¶45 	Finally, in arguing that the district court “erroneously
awarded Simmons offsets against the [purchase] price,” Waykar
claims that the district court “awarded lost gross profits” and not
lost net profits. This assertion misstates the district court’s findings:
in determining the purchase price, the district court found that
“Simmons would have earned net profits for the signs totaling at
least $207,480.00.” Moreover, although Waykar claims that the
district court failed to take into consideration the costs that
Simmons would incur in managing the billboard, Waykar fails to
identify any such costs.
¶46 	In sum, Waykar’s attempt to show that the district court’s
findings lack support in the record fails at the outset because
Waykar 	does 	not 	“identify 	and 	deal 	with 	[the] 	supportive
evidence.” Dillon, 2014 UT 12, ¶ 40. Accordingly, we affirm the
district court’s grant of specific performance, determination of the
purchase price, and offset of lost profits.
VI. Simmons Is Entitled to Attorney Fees on Appeal.
¶47 	Simmons seeks attorney fees on appeal. Simmons argues
that the inadequacies of 	Waykar’s brief 	“have shifted onto
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Simmons Media Group v. Waykar
Simmons the burden of argument, research and record review.”
Simmons 	asserts 	that 	this 	process 	“was 	painstaking, 	time‐
consuming, and costly.” Simmons also reasons that we should
award it attorney fees because, it asserts, Waykar has delayed the
appeal process so it can continue making profits from the Property
during the pendency of this appeal. Simmons notes that “while it
has the right to specific performance at a price that reflects
Simmons’s lost profits through the time of final judgment, it will
not be compensated for lost profits during the appeal period.”
Waykar responds that Simmons’s request for attorney fees is
“baseless and entirely without merit.”
¶48 	Rule 24(k) of the Utah Rules of Appellate Procedure requires
a brief to be “concise, presented with accuracy, logically arranged
with proper headings and free from burdensome, irrelevant,
immaterial or scandalous matters.” Utah R. App. P. 24(k). If the
brief does not meet these requirements, rule 24(k) states that “the
court may assess attorney fees against the offending lawyer.” Id.
This court has previously awarded attorney fees where the failure
to file an opening brief that complied with rule 24(k) “placed a
tremendous burden of factual and legal research on [opposing
counsel].” In re Estate of Pahl, 2007 UT App 389, ¶ 17, 174 P.3d 642
(internal quotation marks omitted).
¶49 	Here, several aspects of Waykar’s brief fail to meet rule 24’s
requirement that briefs be “presented with accuracy” and “free
from burdensome . . . matters.” Utah R. App. P. 24(k). For example,
• 	Waykar purports to appeal from a February 1, 2006
order denying its motion for summary judgment.
However, as explained above, this order does not
deny Waykar’s motion for summary judgment but
instead 	grants 	Simmons 	56(f) 	relief 	and 	stays
Waykar’s motion for summary judgment.
• 	Throughout the brief, Waykar raises arguments
concerning the tax parcels without mentioning that
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Simmons Media Group v. Waykar
the district court refused to hear those arguments
because Waykar first raised them after the entry of
summary judgment.
• 	Waykar cites no legal authority in support of three
issues in its opening brief.
• 	Waykar fails to mention that the renewed lease is a
renewal 	of 	a 	previous 	lease 	for 	the 	same
billboard—an undisputed fact that illuminates the
nature of the renewed lease and the property that the
renewed lease governs.
• 	In arguing that the right of first refusal was never
triggered, Waykar addresses only the 2005 transfer of
ownership and fails to mention that the district court
ruled that the 2002 Lease/Option also triggered the
right of first refusal.
• 	Waykar fails to marshal evidence in support of the
district court’s determination of remedies: Karen
challenges the purchase price determination without
disclosing that her own testimony supports that
determination.
• 	Waykar claims that no authorized representative of
Waykar had knowledge of the renewed lease but
fails 	to 	mention 	that 	Wayne—who 	signed 	the
renewed 	lease—later 	became 	Waykar’s 	first
president and registered agent.
Considering these points, we agree that Waykar’s violations of rule
24(k) “placed a tremendous burden of factual and legal research”
on Simmons. See In re Estate of Pahl, 2007 UT App 389, ¶ 17 (internal
quotation marks omitted). Consequently, we hold that the brief
violates rule 24(k) of the Utah Rules of Appellate Procedure and
accordingly award reasonable attorney fees.
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Simmons Media Group v. Waykar
¶50 	Appellee also seeks attorney fees under rule 33 of the Utah
Rules of Appellate Procedure. Simmons argues that Waykar
brought this appeal for the purpose of delaying Simmons’s
acquisition of the Property and thus unfairly maximizing its own
profits. In support, Simmons asks us to consider findings of the
district court to the effect that Waykar raised immaterial and
unreasonable objections, advanced disingenuous and baseless
arguments, attempted to conceal the nature of the transaction, and
delayed the litigation in an effort to receive the benefit of rising real
estate prices. However, because we have already awarded attorney
fees under rule 24(k), we need not address whether they should be
awarded under rule 33 also.
CONCLUSION
¶51 	We affirm the judgment of the district court in all respects.
In addition, we award Simmons reasonable attorney fees incurred
on appeal. Finally, we remand for the district court to determine
the amount of that award.
20120335‐CA 	2014 UT App 145	18