Checkerprop Utah v. Butcher

2024 UT App 124

THE UTAH COURT OF APPEALS

CHECKERPROP UTAH 199 EAST, LLC,
Appellee,
v.
KRISTIN BUTCHER AND HEATHER GIBSON,
Appellants.

Opinion
No. 20221118-CA
Filed September 6, 2024

Second District Court, Farmington Department
The Honorable Rita Cornish
No. 220700034

Steven H. Bergman, Attorney for Appellants
Matthew L. Anderson, Jeffrey C. Bramble, and
Anna P. Christiansen, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
concurred.

MORTENSEN, Judge:

¶1 Kristin Butcher and Heather Gibson (collectively,
Appellants) leased commercial space to open a private fitness
facility from Checkerprop Utah 199 East, LLC (Checkerprop).
Plans went awry, the project never got off the ground, and the
lease payments were not made. Checkerprop sued for breach of
the lease. Default judgment was entered against Appellants, who
subsequently argued in a motion that the default judgment
should be set aside on the basis of excusable neglect. This appeal
follows the denial of that motion. We affirm.
Checkerprop Utah v. Butcher

BACKGROUND

¶2 Checkerprop is the owner and landlord of a piece of
commercial real property in Layton, Utah. Checkerprop entered
into a lease with Butcher for the property in May 2021 for a term
of sixty-two months. Appellants signed as guarantors on the
lease. At some point, they allegedly fell behind on their payments
under the lease, a circumstance that prompted Checkerprop,
beginning in October 2021, to attempt to reach a resolution with
Appellants regarding the past due rent.

¶3 On November 24, 2021, Checkerprop’s counsel emailed
Butcher to communicate Checkerprop’s “proposal to terminate
the lease and reach a compromise.” Checkerprop offered to
release Appellants from all obligations under the lease for a lump
sum of about $30,000, but conditioned the offer on acceptance by
December 1. Butcher responded that expecting her to come up
with the amount so quickly was “extremely unreal” and that she
would be retaining an attorney, who would be in contact with
Checkerprop’s counsel.

¶4 On December 1, Checkerprop emailed Butcher regarding a
resolution of the matter. Butcher informed Checkerprop that
giving her a week to come up with $30,000 was “more than
unreasonable” and that she had told Checkerprop’s counsel that
she would provide her counsel’s contact information once she had
retained counsel. She also told Checkerprop that her soon-to-be-
retained counsel would reach out to Checkerprop.

¶5 On December 27, Checkerprop emailed Butcher an
updated outstanding balance and requested she have her attorney
“reach out to resolve this issue.” The same email indicated that
Checkerprop’s counsel would “move forward with the next legal
steps to collect” if Butcher did not respond by December 30.

¶6 On January 7, 2022, Checkerprop initiated the instant
action against Appellants, asserting various claims for relief based

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on the alleged breach of the lease. On January 13, Butcher and
Gibson were both personally served with a complaint and a
summons. Butcher was served at an address in Huntsville, Utah.
Gibson was served at an address in Marriott-Slaterville, Utah. The
service addresses were not the same as the address included on
the summons, which was also the address listed on the lease
document.

¶7 On February 1, Appellants responded by sending the
following handwritten note to Checkerprop’s counsel:

Two weeks after moving into the property we were
contacted by the city stating we were in violation of
land easement guidelines, and that we had to vacate
the property. The city stated the property owner
should have known our type of business was not
permitted and should not have let us move forward
with signing said contract.

We are working with our attorney to work out the
fine details.

Both Appellants signed the note. No answer to the complaint,
however, was forthcoming.

¶8 More than three months after service, on April 21,
Checkerprop filed a motion for entry of default judgment, see
Utah R. Civ. P. 55, which was served by mail on both Appellants
at the same addresses where they were personally served the
complaint and the summons. Notably, the motion for entry of
default judgment included bilingual cautionary language stating
that Appellants had only fourteen days to respond to the motion.
The default certificate, which was served by mail on both
Appellants at those same addresses also on April 21, was entered
on April 25. Upon Checkerprop’s request to submit, the district
court entered default judgment against Appellants on May 17.

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¶9 On June 14, Appellants filed a motion to vacate the default
judgment and to set aside the default certificate. They argued that
the default judgment should be set aside “for good cause based
on excusable neglect” pursuant to rule 60(b)(1) of the Utah Rules
of Civil Procedure.

¶10 Appellants argued that the following circumstances
justified setting aside the judgment. First, Appellants asserted that
their handwritten note to Checkerprop’s counsel demonstrated
they did not intentionally ignore the complaint and took steps to
resolve the matter prior to the entry of default judgment. Second,
they maintained that Checkerprop’s counsel never responded to
the handwritten note or provided information about the court
proceeding, thereby making Appellants unaware that
Checkerprop “was seeking a default judgment.” More
specifically, they asserted that they “never received notice” of the
motion for entry of default judgment. Third, they contended that
the complaint lacked this cautionary language required by rule
8(a) of the Utah Rules of Civil Procedure:

A pleading requesting relief must include the
following caution language at the top right of the
first page, in bold print: If you do not respond to
this document within applicable time limits,
judgment could be entered against you as
requested. Failure to include the caution language
may provide the responding party with a basis
under Rule 60(b) for excusable neglect to set aside
any resulting judgment or order.

Id. R. 8(a). 1 Fourth, after discovering that default judgment had
been entered against them, Appellants immediately contacted an

1. Rule 8(a) was amended to include this cautionary language,
effective May 1, 2021. Compare Utah R. Civ. P. 8(a) (2020), with id.
(2021).

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attorney to represent them and timely filed a motion to set aside
the judgment. Finally, Appellants asserted that they had
meritorious defenses that would preclude recovery on the claims
brought by Checkerprop. The motion to vacate was accompanied
by declarations from both Appellants asserting, among other
things, that they had never received Checkerprop’s motion for
entry of default judgment.

¶11 The district court denied the motion. First, based on the
evidence and documents presented, the court concluded that
Appellants’ failure to respond to the complaint for lack of the
cautionary language could not be attributed to excusable neglect:

This is not a case where [Appellants] may have been
caught unaware [by the lack of the cautionary
language] that a motion or other filing was seeking
relief or that a response was required. Here, the
Summonses included almost precisely the
cautionary language that [Appellants] claim would
have prompted them to timely respond, e.g., the
Summons states that if [Appellants] failed to timely
respond to the Complaint[,] judgment by default
would be taken against them for the relief sought in
the Complaint.

¶12 Second, the court rejected Appellants’ assertion that
Checkerprop’s counsel’s failure to respond to their handwritten
letter led them into a false sense of security that no further action
would be taken in the lawsuit, noting that nothing in the letter
requested a response from Checkerprop’s counsel, asked for more
information, or sought an extension.

¶13 Third, the court concluded that Appellants did not act with
the diligence one would expect of a reasonably prudent person in
their circumstances: “A reasonably prudent person in
[Appellants’] position does not assume that a lawsuit is not
moving forward because they sent a letter to the opposing party’s

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counsel saying that they had an excuse for not performing their
contractual obligations and that they were working on the details
with counsel.”

¶14 Lastly, the court rejected Appellants’ claim that
Checkerprop failed to notify them it was seeking default. It noted
that Checkerprop had attempted to serve Appellants with the
motion for entry of default judgment and the default certificate at
the same addresses where they were personally served the
complaint and the summons, concluding, “The likelihood that
delivery of those documents failed to both [Butcher and Gibson]
is very small. If one or both [Appellants] moved after the date they
were served they were the only ones that would have known that
[Checkerprop’s] counsel and the Court did not have their current
mailing addresses.”

¶15 Having concluded that Appellants’ failure to respond to
the complaint was not the result of excusable neglect, the district
court did not address the arguments related to the merits of
Appellants’ defenses. See Asset Acceptance LLC v. Stocks, 2016 UT
App 84, ¶ 13, 376 P.3d 322 (“It is unnecessary, and moreover
inappropriate, to even consider the issue of a meritorious defense
[under a rule 60(b) motion] unless the court is satisfied that a
sufficient excuse has been shown.” (cleaned up)). This appeal
follows.

ISSUE AND STANDARD OF REVIEW

¶16 Appellants assert the district court abused its discretion by
denying their rule 60(b) motion. Appellants argue that their
motion should have been granted for three reasons: (1) because
the complaint omitted the cautionary language mandated by rule
8(a) of the Utah Rules of Civil Procedure; (2) because they
demonstrated excusable neglect, alleged meritorious defenses to
Checkerprop’s claims, and timely made their rule 60(b) motion;
and (3) because they allegedly did not receive notice of the motion

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Checkerprop Utah v. Butcher

for entry of default judgment and the default certificate prior to
the district court’s ruling and order.

¶17 “Appellate courts review a district court’s denial of a 60(b)
motion under an abuse of discretion standard of review.” Cohen
Braffits Estates Dev., LLC v. Shae Fin. Group, LLC, 2024 UT App 12,
¶ 36, 543 P.3d 1277 (cleaned up), cert. denied, 550 P.3d 994 (Utah
2024). “But we review the legal conclusions embedded in the
district court’s denial of a rule 60(b) motion for correctness.” State
v. Ogden, 2023 UT 23, ¶ 17, 538 P.3d 595 (cleaned up).

ANALYSIS

¶18 “In general, a movant is entitled to have a default judgment
set aside under 60(b) if (1) the motion is timely; (2) there is a basis
for granting relief under one of the subsections of 60(b); and (3)
the movant has alleged a meritorious defense.” Menzies v. Galetka,
2006 UT 81, ¶ 64, 150 P.3d 480. “These considerations should be
addressed in a serial manner, and thus there is no need to consider
whether there is a basis for setting aside a default judgment if the
motion was not made in a timely manner, and no need to consider
whether there is a meritorious defense if there are not grounds for
relief.” Rojas v. Montoya, 2020 UT App 153, ¶ 13, 477 P.3d 38
(cleaned up). Here, there is no dispute that Appellants’ rule 60(b)
motion was timely. Accordingly, we focus our analysis on
whether there was a basis for granting relief.

I. Cautionary Language

¶19 Appellants first argue that the district court abused its
discretion in not vacating the default judgment based on
Checkerprop’s failure to include the cautionary language
required by rule 8(a) of the Utah Rules of Civil Procedure in the
complaint. We note that no Utah appellate court has construed
this relatively new language in rule 8(a).

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¶20 As a threshold concern, there is no question that the
complaint did not include the cautionary language mandated by
rule 8(a). With its explicit instructions regarding the placement
and font characteristics of the language, the provision is not hard
to follow, and Checkerprop’s counsel should have been more
attentive in drafting the complaint. See Amar v. LSREF 2 APEX 2,
LLC, No. 12-CV-969, 2012 WL 5465808, at *5 (D. Nev. Nov. 8, 2012)
(“Procedural rules are meant to be followed and are not
discretionary guidelines to be followed at a party’s whim.”).

¶21 But the failure to include the cautionary language does not
result in an automatic invalidation of a complaint or prove fatal
to any attempt to serve it on a party. Indeed, rule 8(a) makes this
clear by its use of discretionary language: “Failure to include the
caution language may provide the responding party with a basis
under Rule 60(b) for excusable neglect to set aside any resulting
judgment or order.” Utah R. Civ. P. 8(a) (emphasis added). In
response, Appellants argue that the use of “may” in the rule is to
“preclude represented parties from taking advantage of an error
while still protecting unrepresented parties,” such as Appellants,
by allowing them to assert excusable neglect when the cautionary
language is missing.

¶22 Rule 8(a), even with the addition of the cautionary
language, in no way purports to alter the established standard of
review for rule 60(b) motions, and Appellants have not argued
otherwise. Thus, while the cautionary language is mandatory
under rule 8(a), it still remains within the district court’s
discretion to grant or deny a rule 60(b) motion based on the
totality of the circumstances. In other words, the failure to include
rule 8(a)’s cautionary language does not create a standalone, per
se path to assert excusable neglect, but provides a basis for a
motion to set aside under rule 60(b)—a motion for which a district
court enjoys “broad discretion” to grant or deny. See Menzies v.
Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480. Having said this, we
acknowledge that the cautionary language required by rule 8(a)

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likely will lead to a case where the circumstances will justify a
court setting aside a default on the sole basis that this language
was not included. This is not that case.

¶23 As an initial matter, Appellants stated in their handwritten
letter that they were “working with [their] attorney to work out
the fine details” in reaching a resolution to the dispute. So, within
about two weeks of receiving the complaint, Appellants had
responded in writing to Checkerprop’s counsel that they were, in
fact, represented. And in the several months before the complaint
was even filed, Butcher had made clear to both Checkerprop and
Checkerprop’s counsel that she was in the process of retaining
counsel. See supra ¶¶ 3–4. Contrary to what Appellants now
assert, the record suggests that Checkerprop and its counsel had
every reason to believe that Appellants were represented. While
this perception does not excuse Checkerprop’s failure to include
the cautionary language, neither is this case typical of those
involving unrepresented parties where the pro se status is clear.
Here, after being served the complaint, Appellants indicated that
they were represented and working with an attorney, only now
to claim that was never the case.

¶24 Moreover, the status of represented versus unrepresented
is not determinative, as Appellants suggest, in the context of a
motion to set aside for want of the cautionary language. “When
interpreting a rule of civil procedure, we look to the express
language of that procedural rule and to the cases interpreting it.”
Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 16, 238
P.3d 1035 (cleaned up). Significantly, the plain language of rule
8(a) makes no reference to parties being unrepresented or
represented as a factor. While there was clearly some discussion
about the benefit cautionary language might provide
unrepresented parties by committee members revising the rule,
there is no suggestion in the rule itself or in the published
advisory committee’s notes that a party’s pro se status necessarily
establishes a basis for excusable neglect in the absence of the

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cautionary language. 2 Again, the opposite is indicated by our
supreme court employing the well-used and unambiguous term
“may” in the rule.

¶25 Owing to the recent amendment of rule 8(a), there is no
caselaw of which we are aware that specifically addresses the
cautionary language (or its omission) in a complaint. But as a
general matter, our caselaw does not give unrepresented parties a
pass when it comes to establishing excusable neglect under rule
60(b). “Rule 60(b)’s use of ‘excusable’ as a modifier of ‘neglect’
makes clear that mere neglect alone is an insufficient justification for
relief.” Asset Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 16, 376
P.3d 322 (cleaned up). Even for a pro se party, it’s not enough to
claim “neglect” arising from some deficiency in the complaint;
that neglect must also be “excusable.” And one way neglect
becomes excusable is by showing that a party acted with the
diligence of a reasonable person under the circumstances. Indeed,
“diligence on the part of the party”—including a pro se party—
“claiming excusable neglect is an essential element of the inquiry,
and relief may not be granted based on other equitable

2. See Utah Supreme Court Advisory Committee on Rules of Civil
Procedure, Summary Minutes 3 (Dec. 2, 2020), https://legacy.
utcourts.gov/utc/civproc/wp-content/uploads/sites/10/2020/11/
December-2020-URCP-Minutes.pdf [https://perma.cc/DK4K-SNAL]
(“[A committee member] introduced comments regarding the
proposed notice requirements in Rules 4, 7, 8, 36, and 101,
including comments expressing concern that the requirements to
provide notices regarding consequences and resources would be
overly burdensome, and that the requirements should apply only
in cases where there is an unrepresented party. After considering
the comments, the committee determined that requiring more
notice would be a better policy because it is not always clear when
a party is represented, noting that in some cases a limited scope
attorney or licensed paralegal practitioner may be involved for
only a part of the case.”).

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considerations where a party has exercised no diligence at all.” Id.
¶ 19 (cleaned up); accord Weber v. Mikarose, LLC, 2015 UT App 130,
¶ 14, 351 P.3d 121. So, even though a complaint might lack certain
mandatory language, our caselaw does not support the
proposition that pro se litigants should be entitled to special
consideration in asserting excusable neglect as a basis to set aside
judgment merely by virtue of being pro se litigants. They must
also show that they acted with the diligence of a reasonable
person, even in light of the opposing party’s failure to comply
with the cautionary language requirement of rule 8(a). See Asset
Acceptance, 2016 UT App 84, ¶ 19 (“While we acknowledge that a
[pro se] party need not be perfectly diligent in order to obtain
relief under rule 60(b), some diligence is necessary.” (cleaned
up)).

¶26 Rather than viewing the lack of cautionary language as
establishing an automatic finding of excusable neglect for pro se
litigants, a better approach is precisely that taken by the district
court. Instead of looking at Appellants as merely represented or
unrepresented, the district court exercised its discretion by
considering the totality of the circumstances to determine if there
was a basis for excusable neglect. And with regard to the
cautionary language, the district court noted that the summons
contained equivalent cautionary language as to what should have
been included in the complaint. The summons warned, “You are
. . . required to file an answer in writing to the Complaint . . .
within twenty-one (21) days of service . . . . If you fail so to do,
judgment by default will be taken against you for the relief
demanded in the Complaint . . . .” 3 Given this language, we agree

3. Appellants also claim that the summons lacked the bilingual
notice required by rule 4(c)(1)(G) of the Utah Rules of Civil of
Procedure. It appears they are correct that Checkerprop’s counsel
also failed to follow this procedural rule. However, Appellants
make no assertion that either of them would have benefited from
(continued…)

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with the district court that this is not a case where Appellants were
caught unaware that a timely response was required.

¶27 The court also considered the relatively long and involved
communications that had gone on between the parties. For
months, both before and after service of the complaint,
Checkerprop had sought a resolution of the past due rent and had
indicated its intent to seek redress through the courts. As stated,
we review the decision of the district court for abuse of discretion,
which means that in order to reverse, we would need to conclude
that “no reasonable person would take the view adopted by the
[district] court.” T-Mobile USA, Inc. v. Utah State Tax Comm’n, 2011
UT 28, ¶ 41, 254 P.3d 752 (cleaned up). Here, we cannot conclude
the district court abused its discretion in deciding that
Checkerprop’s failure to incorporate the cautionary language did
not establish Appellants’ excusable neglect.

II. Other Bases for Excusable Neglect

¶28 Appellants also assert that the district court abused its
discretion when it determined that there were no additional bases
for relief from default under rule 60(b).

the inclusion of the bilingual notice. And they concede that the
lack of the bilingual notice is not the grounds on which they are
asserting their appeal. Rather, on appeal they make the point that
since the district court relied on the summons to establish the
presence of the cautionary language, Checkerprop should have
complied with all the provisions of rule 4(c)(1). As we have
expressed, see supra ¶ 20, we agree that Checkerprop’s counsel
was less than careful in failing to fully comply with the Utah Rules
of Civil Procedure in this respect. But because Appellants
explicitly state that the lack of the bilingual notice is not a grounds
on which they are asserting their appeal, we decline to address
this issue further.

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¶29 Appellants argue that the district court erred in
determining that it was not reasonable for Appellants “to expect
Checkerprop’s counsel to contact them about the lawsuit after
serving them.” But the record supports the decision of the district
court. After being served with the complaint, Appellants sent a
handwritten letter to Checkerprop’s counsel. As represented in
the record, the letter did not contain contact information. Rather,
it merely stated that Appellants were working with their attorney
to resolve the matter. The letter did not request that
Checkerprop’s counsel reach out to them in any way. Certainly,
nothing evidences any invitation, request, or expectation of
further communication; rather, it appears to just be a notice that
they were working with “[their] attorney” to resolve the “fine
details.” Any reasonable attorney would view this as notice that
Appellants’ yet-unidentified attorney would shortly be in contact.
Given all this, we fail to see how the court abused its discretion in
concluding that Appellants did not act reasonably in this respect,
thus preventing them from claiming excusable neglect.

¶30 Appellants also argue that the district court abused its
discretion in rejecting their “statements under oath that they
never received” the motion for entry of default judgment. 4 They

4. Appellants also claim that the district court concluded they
“were not diligent because they did not apprise the Court or
Checkerprop’s counsel of their addresses.” In fact, the district
court did not so conclude. Rather, it stated, “If one or both
[Appellants] moved after the date they were served they were the
only ones that would have known that [Checkerprop’s] counsel
and the Court did not have their current mailing addresses.
[Appellants’] failure to update their contact information with the
Court, which may have led [Checkerprop’s] counsel into the
mistake of serving motion papers to incorrect addresses, cannot
support a claim for mistake under” rule 60(b)(1). (Emphasis
added.) Thus, the conclusion identified by Appellants was made
(continued…)

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argue that instead of relying on the statements of Appellants that
they never received the notices, the district court relied on
certificates of service that had been mailed to the same addresses
where they were served the complaint and the summons.
Appellants argue that the motion for entry of default judgment
should have been served at the address listed on the lease or sent
via email.

¶31 But it is important to note that the district court relied on
the information provided by Appellants in determining that
Checkerprop properly served the motion for entry of default
judgment. When the district court concluded that the likelihood
Appellants did not receive notice of the motion for default
judgment and the default certificate was “very small,” the court
was presented with information that the notices were mailed to
the same addresses where Appellants were personally served the
summons and the complaint. There was no indication that the
addresses used for the personal service were in any way
incorrect. 5 Given the information Appellants provided to the

not in the context of Appellants’ lack of diligence but was
referring to a situation contingent on their having moved after
initial service.

5. On appeal, Appellants assert that the address at which Gibson
was served (both personally and for the mailed notices) belonged
to a restaurant, and they invite us to consult Google to verify this
claim. The assertion that the place of service was a restaurant does
not appear in the record. Nor is there any indication that this
concern was expressed to the district court. And it’s not our job to
do original Google research of facts on appeal. Indeed, it is a
maxim of appellate review that we “will not consider evidence
which is not part of the record.” Hansen & Mecham Invs. LLC v.
Hansen, 2022 UT App 17, ¶ 42, 505 P.3d 1152 (cleaned up).
Accordingly, we disregard this statement as not supported by the
record.

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district court, we are hard-pressed to see how the district court
abused its discretion in denying the motion to set aside. 6

III. Attorney Fees on Appeal

¶32 Lastly, Checkerprop seeks attorney fees for the work
performed on appeal. Appellants urge us to deny this request
because Checkerprop never received fees for the work performed
below. In the default judgment, the district court ordered in
Checkerprop’s favor an “award for all costs and reasonably
incurred attorney fees, until this judgment is fully satisfied, as
may later be established by declaration, affidavit, or hearing.” But
there is no indication in the record that Checkerprop ever reduced
the fees it was awarded below to judgment in a timely manner by
establishing an actual amount by declaration or affidavit pursuant

6. Appellants also assert that Checkerprop failed to serve a notice
of the final default judgment. See Utah R. Civ. P. 58A(g) (“The
party preparing the judgment shall promptly serve a copy of the
signed judgment on the other parties in the manner provided in
Rule 5 and promptly file proof of service with the court.”).
Appellants insist that they raised this issue generally below when
they claimed that they never received notice of the motion for
entry of default judgment and the default certificate. We are not
persuaded. These are distinct categories. By failing to even bring
up the matter of Checkerprop’s alleged failure to serve a copy of
the judgment in the rule 60(b) motion proceedings, Appellants
failed to raise the issue below, thus depriving the district court of
the opportunity to address it. Nor do they argue that any
exceptions to the preservation rule apply. In any case, they
concede that they “do not raise this as a separate ground for
reversal” but point to it as an “indication of Checkerprop’s failure
to comply with the Rules of Civil Procedure” and to demonstrate
the “inconsistent treatment” they received at the hands of the
district court. We decline to further consider this aspect of
Appellants’ argument on appeal.

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to the Utah Rules of Civil Procedure. See Utah R. Civ. P. 73(a)–(c)
(stating that attorney fees “must be claimed by filing a motion for
attorney fees no later than 14 days after the judgment is entered”
and by, along with other requirements, supporting that motion
with an affidavit to establish the reasonableness of the fees).
Indeed, in its briefing, Checkerprop does not assert it actually
received the fees it was awarded below. Thus, Appellants argue
that Checkerprop is not entitled to fees now because “to recover
fees on appeal, a prevailing party must have ‘received attorney
fees below.’” (Quoting Valcarce v. Fitzgerald, 961 P.2d 305, 319
(Utah 1998).)

¶33 Appellants push Valcarce too far. First, the fees in Valcarce
were awarded pursuant to statute, see id. at 311, while here, the
entitlement arises from contract. Second, the language in Valcarce
is nowhere near as mandatory as Appellants’ use of “must”
suggests. Instead, Valcarce’s language is much more nuanced:
“When a party who received attorney fees below prevails on
appeal, the party is also entitled to fees reasonably incurred on
appeal.” Id. at 319 (cleaned up). So, rather than saying receiving
fees below is a prerequisite to receiving them on appeal, as
Appellants claim, Valcarce says receiving fees below entitles a
party to receive them on appeal. Nowhere does Valcarce hold that
the non-receipt of fees below precludes an award of fees on
appeal. 7

7. In at least one decision, this court determined that a party not
awarded fees below pursuant to a contract provision was entitled
to fees when it prevailed on appeal. See Robertson’s Marine, Inc. v.
I4 Sols., Inc., 2010 UT App 9, ¶ 18, 223 P.3d 1141. In that case,
neither party was awarded fees below, but this court concluded
that one party would have been awarded fees below if it had not
brought its own unsuccessful breach of contract claim. Id. ¶¶ 18–
20. Under these “somewhat unique circumstances,” id. ¶ 18, the
(continued…)

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¶34 Thus, the fact that Checkerprop did not act to collect fees
below by following the procedure set down in rule 73 does not
change the fact that it was awarded and entitled to those fees. Nor
does Checkerprop’s failure to timely establish and collect those
fees below preclude its entitlement to fees on appeal pursuant to
the terms of the lease, which is a matter of contract. Indeed,
according to the terms of the lease, the prevailing party is entitled
to an award of all costs and attorney fees on appeal: “In the event
suit or action is filed by either Party against the other to . . . enforce
this Lease, the unsuccessful Party to such litigation agrees to pay
to the prevailing Party all costs and expenses, including attorneys’
fees incurred therein, including the same with respect to an appeal.”
(Emphasis added.) It is well established that “a party entitled by
contract . . . to attorney fees below and that prevails on appeal is
entitled to fees reasonably incurred on appeal.” Federated Cap.
Corp. v. Haner, 2015 UT App 132, ¶ 19, 351 P.3d 816 (cleaned up);
accord UDAK Props. LLC v. Spanish Fork, UT Realty LLC, 2020 UT
App 164, ¶ 14, 480 P.3d 1052; KB Squared LLC v. Memorial Bldg.
LLC, 2019 UT App 61, ¶ 37, 442 P.3d 1168; Cougar Canyon Loan,
LLC v. Cypress Fund, LLC, 2019 UT App 47, ¶ 19, 440 P.3d 884.
Because the district court determined that Checkerprop was
entitled to an award of attorney fees below under the terms of the
lease, Checkerprop is also entitled to fees as the prevailing party

court concluded that the party satisfied the requirement of having
been awarded fees below, id. ¶ 20. Here, we are dealing with a
different situation because Checkerprop actually was awarded
fees below—albeit fees that were never collected. Nevertheless,
the conclusion in Robertson’s Marine remains consistent with the
principle applied in other jurisdictions. See 20 C.J.S. Award of
attorney’s fees as costs on appeal § 201 (2024) (“Successful or
prevailing parties may be entitled to an award of attorney’s fees
on appeal, regardless of a lack of an award below, where adequate
grounds for the award exist.” (cleaned up)).

20221118-CA 17 2024 UT App 124
Checkerprop Utah v. Butcher

on appeal. We remand the case for a determination of those fees
and costs.

CONCLUSION

¶35 The district court acted within its discretion in denying
Appellants’ requests to set aside the default judgment against
them. We remand this matter for the sole purpose of determining
the amount of Checkerprop’s award of costs and attorney fees on
appeal. The decision of the district court is affirmed.

20221118-CA 18 2024 UT App 124