Behar v. Johnson

2024 UT App 129

THE UTAH COURT OF APPEALS

JACQUES BEHAR,
Appellee,
v.
BRAD JOHNSON, SAM CLARK, SARA VIGH, AND GREEN HILL ESTATES
HOMEOWNERS ASSOCIATION,
Appellants.

Opinion
No. 20230455-CA
Filed September 12, 2024

Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 210902938

Zane S. Froerer, Attorney for Appellant
Taylor R. Jones, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 In 2020, Jacques Behar was elected to be one of five
members of the board of trustees (Board) of the Green Hill Estates
Homeowners Association (HOA). But in 2021, his fellow Board
members, without consulting the rank-and-file HOA members,
voted him off the Board. Behar took issue with his removal and
filed this lawsuit, asserting that he had been wrongfully removed
from the Board because, in his view, only HOA members (and not
the Board) have the right to elect or remove Board members. In
addition, Behar claimed that the other Board members had been
improperly elected. As remedies, he sought his own
reinstatement as well as a judicial order limiting the other Board
members to mere day-to-day HOA governance until a new
election could be held. The district court entered a preliminary
Behar v. Johnson

injunction order in which it interpreted the HOA’s governing
documents in Behar’s favor, and in which it reinstated Behar to
the Board and ordered that an election be held for the other
members. Later, the court entered summary judgment on the
merits in favor of Behar, and in addition ordered the Board to pay
some of Behar’s attorney fees.

¶2 The HOA and three affected Board members (collectively,
Appellants) now appeal various aspects of the district court’s
rulings, including the attorney fees award. But subsequent to
those rulings, three developments have taken place that Behar
contends have rendered this appeal moot. First, Behar was voted
off the Board by the HOA members in an election whose validity
is not contested on appeal, and Behar no longer claims any right
to hold a seat on the Board. Second, a new election was held for
the other Board seats, and no party now claims that any of the
current Board members were improperly elected. And third, the
HOA paid in full the attorney fees judgment that had been
entered in favor of Behar.

¶3 We agree with Behar that these new developments have
rendered moot all of Appellants’ complaints about the district
court’s rulings regarding the interpretation of the HOA’s
governing documents and about the makeup of the Board. And
Appellants make no argument for application of any exception to
the mootness doctrine. Thus, because no live controversy remains
to be decided between these parties on these issues, that part of
Appellants’ appeal is moot, and we dismiss it on that basis.

¶4 But we reach a different mootness conclusion with regard
to the attorney fees award: we conclude that Appellants’
challenge to that award has not been rendered moot by the HOA’s
payment of the judgment. After examination of the merits of this
part of Appellants’ appeal, however, we discern no abuse of
discretion in the district court’s attorney fees award, and we
affirm it on that basis.

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Behar v. Johnson

BACKGROUND

¶5 The Green Hill Country Estates is a community of
residential property owners located in Huntsville, Utah. Like
many similar communities, this one is governed by a set of
covenants, conditions, and restrictions (the CC&Rs) and is
managed by a homeowners association. The HOA, in turn, is run
by a five-member board of trustees whose members are supposed
to be elected to staggered three-year terms. Behar was elected to
the Board in 2020; at the time, the other Board members included
appellants Brad Johnson, Sam Clark, and Sara Vigh.

¶6 In 2021, a debate arose among the HOA members, and
among the Board, about whether to turn Green Hill Country
Estates into a “gated community” by installing a gate at the
entrance. Behar was adamantly opposed to installing a gate, but
other Board members were in favor. Over a period of several
weeks, disputes arose between Behar and the other Board
members and, at a Board meeting in May 2021, the Board voted
to remove Behar from the Board, with Johnson, Clark, and Vigh
all voting in favor of Behar’s expulsion.

¶7 The HOA’s governing documents are not entirely clear
about whether the Board—as distinct from the HOA
membership—has the ability to remove a Board member. Its
articles of incorporation—drafted in 1982—provide that “new
Trustee[s]” are to be “elected by a majority of the members” of the
HOA, but also state as follows:

Members of the Board of Trustees may be removed
at any time with or without cause, by a three-fourth
vote at a meeting called with or without cause, by a
vote of a majority of the Board of Trustees.

The HOA’s bylaws—drafted in 1996—state that Board “Trustees
may be removed at any time by a vote of the Members holding
seventy-five (75%) percent of the members entitled to vote.” The

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bylaws also state that “[e]ach Trustee shall hold office until his [or
her] successor shall have been elected and qualified.” Finally, a
Utah statute—first enacted in 2000 and amended several times
since—states that, “[u]nless otherwise provided in the bylaws,” a
director “elected by the voting members” may be removed “only
if a majority of the voting members votes to remove the director.”
Utah Code § 16-6a-808(1)(c).

¶8 Behar’s interpretation of these authorities is that only the
HOA members—and not the Board—have the right to remove a
Board member. Based on this interpretation, Behar filed a
complaint (later amended) against the HOA and against Johnson,
Clark, and Vigh; the complaint included derivative claims
purportedly stated on behalf of the HOA. Behar’s main grievance
was that the Board did not have the authority to remove him;
instead, he asserted that only the HOA members did. Secondarily,
he pointed out that the other Board members had all been elected
more than three years earlier and had not officially been reelected,
and he therefore took the position that their terms had expired.
Based on these complaints, Behar asked the court for three forms
of relief: (1) an order reinstating him to the Board; (2) an order
commanding the HOA to hold a new election for the other Board
seats, and in the meantime to limit the Board to mere “day-to-
day” HOA decisions; and (3) attorney fees.

¶9 Contemporaneously with the filing of his complaint, Behar
asked the district court for a preliminary injunction reinstating
him to the Board and ordering new elections for the other Board
members. After full briefing and argument, the district court
determined that Behar’s interpretation of the HOA’s governing
documents was correct and that the Board did not have “authority
to remove another member of the Board.” The court also
determined that the other members of the Board had “not been
elected to the Board by the members of the [HOA] within the last
three (3) years,” as required by the HOA’s governing documents.
Based on this interpretation of the documents, the court issued a

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preliminary injunction ordering the HOA to reinstate Behar to the
Board and to hold a new election for the other Board members “as
soon as reasonably possible.”

¶10 The HOA complied with the order. It reinstated Behar to
the Board. And in August 2021, about six weeks after the court’s
injunction order, the HOA held a new election at which two items
were on the ballot: (1) whether to elect (or reelect) the other Board
members, including Johnson, Clark, and Vigh, and (2) whether to
remove Behar from the Board. Turnout was high: of the 110
members of the HOA, 96 appeared at the meeting and voted in
the election. Johnson, Clark, and Vigh were overwhelmingly
reelected. And 86 of the 96 votes were cast in favor of removing
Behar from the Board, a figure that is more than 75% of both votes
cast and HOA members. Behar challenged the election results, but
the district court rejected Behar’s challenges.

¶11 Later, Behar filed a motion for summary judgment,
asserting in essence that most of the issues in the lawsuit had
already been taken care of—largely in his favor—in the context of
the court’s injunction ruling and all that remained to be
adjudicated was his request for attorney fees. The HOA opposed
the motion, asserting that the relevant issues had not been
definitively decided in the injunction proceedings and that certain
procedures required in derivative actions had not been followed.
The court again sided with Behar, and reaffirmed its earlier ruling
interpreting the HOA’s governing documents as Behar did,
namely, that the Board members could not vote another Board
member out of office. The court also stated that it was specifically
not entering summary judgment on Behar’s claim regarding the
other Board members’ three-year terms, but it noted that “the
parties ha[d] agreed that this issue [was] moot” given the recent
election that had been held. And at the conclusion of its order, the
court indicated that, in its view, it had resolved all “factual issues
for the [c]ourt to address at trial” and that the only thing

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remaining to be considered in the case was any claim Behar might
make for attorney fees.

¶12 Behar then filed a motion for attorney fees, claiming that
he was entitled to an award of fees pursuant to either (a) a
provision in the CC&Rs or (b) a provision in Utah’s derivative suit
statute allowing fee awards against a nonprofit corporation if “the
proceeding results in a substantial benefit to the nonprofit
corporation,” see Utah Code § 16-6a-612(5)(a). After full briefing
and argument, the district court made an oral ruling that, under
the derivative suit statute, Behar was entitled to recover at least
some of the attorney fees he incurred in litigating the case because
his suit resulted in a substantial benefit to the HOA. In particular,
the court found that Behar’s suit “caused the HOA to start
crossing their T’s and dotting their I’s[, w]hereas before, [the
HOA] was sloppy, to be generous.” The court therefore ordered
the HOA to pay all of Behar’s fees incurred prior to the date of the
oral argument on the motion for preliminary injunction, but it did
not quantify that award at that time.

¶13 After the court’s oral ruling, the parties entered into a
written stipulation. In the recitals of that document, the parties
agreed that, in the wake of the court’s recent rulings, “there
remain[ed] a dispute[] regarding the amount of [the attorney fees]
award” and that they “desire[d] to resolve the dispute regarding
the amount” of fees to be paid to Behar. In the stipulation, the
parties agreed as to the quantification of those fees: they agreed
that the HOA would pay Behar $21,000 “within 45 days of April
20th, 2023.” The document also included a “release of claims”
paragraph wherein Behar agreed to “release [Appellants] of any
claim of attorney’s fees incurred to date,” but by which neither
side agreed to release other claims or waive “any defenses or legal
theories which may be raised on appeal hereafter.”

¶14 Based on this stipulation, the parties submitted an agreed-
upon form of judgment for the court’s signature, and the court

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signed that judgment. A few weeks later, as it had committed to
do, the HOA paid Behar $21,000, and Behar filed a satisfaction of
judgment with the district court.

ISSUES AND STANDARDS OF REVIEW

¶15 Appellants now appeal, and they raise various challenges
to the district court’s orders. Among other things, they assert that
the district court improperly adjudicated Behar’s derivative
claims, that the court issued preliminary injunctive orders that
were overbroad, that it misinterpreted the HOA’s governing
documents, and that the attorney fees award was improper.

¶16 In addition to contesting Appellants’ arguments on their
merits, Behar asserts—as a threshold matter—that all actual
disputes between these parties have been rendered moot by
subsequent events. “We review the issue of mootness de novo.”
State v. Seat, 2022 UT App 143, ¶ 15, 523 P.3d 724 (quotation
simplified). As discussed herein, we conclude that all of
Appellants’ challenges—except the attorney fees issue—have
been rendered moot by subsequent events.

¶17 With regard to the attorney fees award, Appellants raise a
single challenge: they take issue with the district court’s
determination that Behar’s efforts in filing this lawsuit conferred
a “substantial benefit” on the HOA. “The determination of
whether a substantial benefit is conferred in the context of a
derivative action is a mixed question of law and fact,” and to
answer this mixed question a district court is required “to
determine whether a given set of facts comes within the reach of
a given rule of law.” LeVanger v. Highland Estates Props. Owners
Ass’n, 2003 UT App 377, ¶ 9, 80 P.3d 569 (quotation simplified). In
this context, “we review legal questions for correctness” but “still
grant a [district] court discretion in its application of the law to a
given fact situation.” Id. (quotation simplified).

20230455-CA 7 2024 UT App 129
Behar v. Johnson

ANALYSIS

¶18 We begin our analysis with examination of Behar’s
assertion that all of the issues Appellants raise have been rendered
moot by subsequent events. On that point, we agree with Behar
that two of the relevant issues are moot, but we conclude that the
attorney fees issue is not moot. We then proceed to examine the
merits of Appellants’ challenge to the fees order.

I. Mootness

¶19 “An issue on appeal is considered moot when the
requested judicial relief cannot affect the rights of the litigants.”
State v. Sims, 881 P.2d 840, 841 (Utah 1994) (quotation simplified).
For an issue to remain live for adjudication, there needs to be “a
real controversy between adverse parties,” Baird v. State, 574 P.2d
713, 715 (Utah 1978), because “courts are not a forum for hearing
academic contentions or rendering advisory opinions,” Utah
Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75,
¶ 19, 289 P.3d 582 (quotation simplified). And once an issue “is
moot, we lack the power to address the underlying merits or issue
what would amount to an advisory opinion.” Id. ¶ 12; see also State
v. Legg, 2016 UT App 168, ¶ 38, 380 P.3d 360 (stating that “a court
does not have jurisdiction to consider a moot case, unless some
recognized exception” to the mootness doctrine applies), aff’d,
2018 UT 12, 417 P.3d 592.

¶20 In this case, Behar sought three types of relief. On appeal,
Behar argues that all three of his requests—and therefore
Appellants’ challenges regarding them—have been rendered
moot by subsequent events. We agree with Behar as to the first
two requests, but not as to the third.

¶21 The first type of relief Behar sought was reinstatement to
the Board, on the basis that the Board’s May 2021 vote to remove
him was improper because the vote was taken by the Board
members rather than the HOA membership as a whole. But in

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August 2021, more than 75% of the HOA members voted to
remove him from the Board. Behar does not contest the results of
that election here on appeal, and he no longer makes any claim
that he has a right to be on the Board, presumably because he has
now been voted off the Board by both the Board members and the
HOA members. As a result, any controversy between these
parties about whether the HOA’s governing documents allow
Board members to remove another Board member or, instead,
only allow removal to occur after a vote of the HOA membership,
has been rendered entirely academic. Any decision we might
make on that point would not have any effect on present Board
membership. See Utah Transit Auth., 2012 UT 75, ¶¶ 9, 14 (stating
that, “although the parties appear to have had . . . a ripe
controversy when the case was filed in the district court, their
subsequent negotiation and new collective bargaining agreement
rendered the case moot and accordingly non-justiciable,” and
emphasizing that “where the issues that were before the [district]
court no longer exist, the appellate court will not review the case”
and that “an appeal is moot if during the pendency of the appeal
circumstances change so that the controversy is eliminated,
thereby rendering the relief requested impossible or of no legal
effect” (quotation simplified)). Because there is no longer any live
dispute between these parties about Behar’s right to be on the
Board, this issue is moot.

¶22 The second type of relief Behar sought was a new election
for the other Board members. That election has since taken place,
and no party now contests the validity of the current Board
members’ election or contests any current Board member’s right
to be on the Board. Indeed, the district court—during the
summary judgment proceedings—agreed that this issue had been
rendered moot by subsequent events, and it noted the parties’
stipulation on the issue. Even on appeal, Appellants acknowledge
that the issue is “completely moot,” but they complain that it was
the district court’s injunction order that served as the impetus for
rendering the matter moot. But this is only partially accurate: to

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be sure, the court’s order is what gave rise to the new elections,
but it is the result of the elections themselves that have rendered
any controversy about the validity of the Board members’ election
moot. Regardless of how the elections came to be held, the fact is
that they were held, and no party contests them now. Thus, any
controversy about the propriety of the current Board members’
election has been rendered moot.

¶23 Because these two issues have been rendered moot by
subsequent events, we have no judicial power to address the
challenges Appellants raise with regard to these issues, unless
Appellants carry their burden of demonstrating the existence of
an established exception to the mootness doctrine. See Legg, 2016
UT App 168, ¶ 38. But Appellants make no attempt to carry this
burden; indeed, they do not argue for application of any exception
to the mootness doctrine with regard to any of their appellate
issues. At most, Appellants assert, in passing, that we should hear
the appeal because they remain “bound to follow the district
court’s erroneous interpretation of the governing documents or
risk litigation.” This statement, without any additional analysis, is
simply not sufficient to carry Appellants’ burden of
demonstrating the existence of an established exception to the
mootness doctrine. See, e.g., Utah Transit Auth., 2012 UT 75, ¶¶ 28–
31 (stating that there are three elements to the public interest
exception); N.F. v. G.F., 2013 UT App 281, ¶ 12, 316 P.3d 944
(explaining the two elements of the collateral consequences
exception). Thus, because the first two issues Appellants raise are
moot and because Appellants have not shown that an exception
to the mootness doctrine applies, we are obliged to dismiss
Appellants’ appeal as it concerns their first two issues.

¶24 We reach a different conclusion, however, with regard to
the third type of relief Behar sought: an award of attorney fees.
The court awarded Behar some of the attorney fees he had been
seeking, and it entered a judgment to that effect. Since then,
however, the HOA paid that attorney fees award in full and Behar

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filed a satisfaction of judgment. Now, on appeal, Behar asserts
that any controversy related to the propriety of the fees award has
effectively been rendered moot by the HOA’s full payment of that
award. On this record, we are unpersuaded.

¶25 Under Utah law, there is a “general rule” that “if a
judgment is voluntarily paid, which is accepted, and a judgment
satisfied, the controversy has become moot and the right to appeal
is waived.” Jensen v. Eddy, 514 P.2d 1142, 1143 (Utah 1973),
abrogated in part by Utah Res. Int’l, Inc. v. Mark Techs. Corp., 2014 UT
59, 342 P.3d 761. But there is a rather significant exception to this
general rule: “where a judgment debtor’s intention of preserving
his right to appeal is made to appear clearly on the record,” that
debtor “does not waive [its] right to appeal” by paying the
judgment. Utah Res. Int’l, 2014 UT 59, ¶ 33 (quotation simplified). 1
Appellants assert that, in this case, the HOA intended to reserve
its right to appeal the attorney fees award, notwithstanding its full
satisfaction of the judgment.

¶26 The operative question, then, is whether the HOA “clearly”
made a record of its “intention” to “preserv[e]” its right to appeal
the attorney fees award. See id. In support of their assertion that it
did, Appellants rely heavily on the stipulation that the parties

1. In his brief, Behar takes the position that there are no exceptions
to the general rule and that a payment in full of an attorney fees
judgment always operates to moot any appeal from that
judgment. In support of that proposition, Behar relies on two of
our cases, both of which were issued in 2006: Coon v. Fidelity
Transfer Co., 2006 UT App 401U, and Turville v. J & J Properties, LC,
2006 UT App 305, 145 P.3d 1146. Both of these cases predate our
supreme court’s opinion in Utah Resources International, Inc. v.
Mark Technologies Corp., 2014 UT 59, 342 P.3d 761. It should
therefore go without saying that, to the extent that our 2006 cases
conflict with our supreme court’s holding in Utah Resources
International, we are bound to follow our supreme court’s lead.

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entered into following the district court’s ruling that it would
award fees but before the court entered an order quantifying those
fees. But that stipulation was not made a part of the record during
the district court proceedings and is not part of the record
submitted to us on appeal. In recognition of that fact, Appellants
now ask us to allow them to supplement the appellate record with
a copy of that stipulation, given that Behar is now asserting that
the attorney fees issue was completely resolved therein and is
now moot. This request is well-taken, and we grant Appellants’
motion. It is not uncommon for appellate courts to allow the
appellate record to be supplemented with information related to
an argument that events occurring subsequent to the completion
of the district court proceedings have rendered the appeal moot
or otherwise nonjusticiable. See, e.g., In re C.D., 2010 UT 66, ¶¶ 9,
11–12, 245 P.3d 724 (dismissing an appeal as moot because the
children at the center of the appeal had since been “placed with
their respective biological fathers,” even though this occurred
after our supreme court granted certiorari on the relevant issues);
State v. Mathews, 2014 UT App 169, ¶¶ 1–5, 332 P.3d 406 (per
curiam) (dismissing an appeal challenging a jail sentence imposed
for probation revocation because, “[w]hile [the] appeal was
pending,” the defendant completed treatment at the jail and was
granted early release).

¶27 With that motion granted, the stipulation is now part of the
appellate record, and we must examine the terms of that
document to determine whether the HOA preserved its right to
appeal the attorney fees award. In the recitals of that document,
the parties agreed that, in the wake of the court’s recent rulings,
“there remain[ed] a dispute[] regarding the amount of [the
attorney fees] award” and that they “desire[d] to resolve the
dispute regarding the amount” of fees to be paid to Behar. In the
stipulation, the parties reached agreement as to the quantification
of those fees: the HOA would pay Behar $21,000 “within 45 days
of April 20, 2023.” The document also included a “release of
claims” paragraph wherein Behar agreed to “release [Appellants]

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of any claim of attorney’s fees incurred to date,” but by which
neither side agreed to release other claims or waive “any defenses
or legal theories which may be raised on appeal hereafter.”

¶28 While this document could perhaps have been drafted in a
way that even more clearly limited the stipulation to the amount
of attorney fees and more clearly reserved the HOA’s right to
appeal the issue of Behar’s entitlement to fees, in our view the
document is clear enough: our best reading of that document,
especially considering the context in which it was entered (during
that moment in time between the court’s determination that Behar
was entitled to fees and any quantification of those fees), is that it
is limited to agreement as to amount of fees, and that the HOA
reserved its right to raise, on appeal, any other “defenses or legal
theories,” including the argument that Behar wasn’t entitled to
any attorney fees at all.

¶29 This reading is supported by our opinions issued on this
topic since Utah Resources International. In two of those cases, we
deemed it sufficient that the appellant had paid the attorney fees
award “under protest.” See Gardiner v. Anderson, 2018 UT App 167,
¶ 15 n.10, 436 P.3d 237 (“Here, although [the] [t]enant paid the
fees, he did so under protest and is therefore not precluded from
appealing the district court’s order with respect to the propriety
of those fees.”); Checketts v. Providence City, 2018 UT App 48, ¶ 12,
420 P.3d 71 (retaining jurisdiction when the only background fact
was that the party “paid the award ‘under protest’ and now
appeal[s] the district court’s decisions”). While the HOA’s
reservation of rights could perhaps have been more artful, we
read that reservation as, at a minimum, declaring that the HOA
was paying the fees judgment “under protest.”

¶30 Accordingly, while the first two issues have been rendered
moot by subsequent events, Appellants’ challenge to the court’s
attorney fees award was not, in this case, rendered moot by the
HOA’s payment of the fees judgment to Behar.

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II. Attorney Fees

¶31 Because the attorney fees issue is not moot, we must
consider Appellants’ challenge to the fees award on its merits.
That challenge is limited to a single grievance, namely, that the
district court erred when it concluded that Behar’s lawsuit had
conferred a “substantial benefit” on the HOA. After examination,
we discern no reversible error in the manner in which the court
applied the law to this particular fact situation.

¶32 The court awarded fees to Behar pursuant to Utah’s
derivative suit statute, which allows a court to award fees “if it
finds that the proceeding results in a substantial benefit to” the
corporation. See Utah Code § 16-6a-612(5)(a); see also Gold’s Gym
Int’l, Inc. v. Chamberlain, 2020 UT 20, ¶ 31, 471 P.3d 170 (stating
that “the substantial benefit doctrine,” which our legislature “has
incorporated . . . into Utah law,” “generally grants attorney fees
to derivative plaintiffs who succeed in the action and confer a
substantial benefit on the entity on whose behalf they sued”). As
noted, the court determined that Behar’s lawsuit had conferred a
substantial benefit on the HOA because it “caused the HOA to
start crossing their T’s and dotting their I’s” with regard to the
manner in which it followed the mandates of the HOA’s
governing documents, “[w]hereas before, [the HOA] was sloppy,
to be generous.” In particular, the court determined that Behar’s
lawsuit resulted in the HOA no longer allowing the Board (as
opposed to the HOA members) to vote someone off of the Board,
and in the HOA holding more regular formal Board elections.

¶33 The fact pattern of this case is remarkably similar to the fact
pattern in LeVanger v. Highland Estates Properties Owners Ass’n,
2003 UT App 377, 80 P.3d 569. In that case, members of a
homeowners association brought a derivative suit against the
association, complaining that the association had “improperly
amend[ed]” its governing documents, including the covenants,
conditions, and restrictions affecting the homeowners’ properties.

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Id. ¶ 2. It was ultimately determined, after an initial appeal, that
the association had acted improperly in amending the governing
documents, and the plaintiffs then asked for an award of attorney
fees pursuant to the “substantial benefit” statute. Id. ¶¶ 5–6. The
district court determined that the lawsuit had conferred a
substantial benefit upon the association, id. ¶ 7, and we affirmed
that determination, id. ¶ 25. We emphasized that “a non-monetary
benefit, including the promotion and vindication of shareholders’
voting rights, can be a substantial benefit in the context of a
derivative action . . . .” Id. ¶ 24. And we concluded that the benefit
in question in the case—that the association was “required to use
the proper voting procedures to amend its” governing
documents—was substantial, because the suit “conferred a
benefit upon [the association] and its members that is more than
technical in its consequence and that accomplishes a result which
corrects or prevents an abuse which would be prejudicial to the
rights and interests of the corporation or affect the enjoyment or
protection of an essential right to the stockholder’s interest.” Id.
¶ 25 (quotation simplified).

¶34 So too here. Just like in LeVanger, Behar’s suit acted to
preserve the HOA members’ voting rights and required the HOA
to effectuate the provisions of its governing documents in the
manner determined by the district court to be correct. This benefit
is quite similar to the benefit conferred on the association in
LeVanger, and given this similarity, we cannot say that the district
court abused its discretion in determining that the HOA had
realized a substantial benefit as a result of Behar’s suit. We
therefore reject Appellants’ sole challenge to the district court’s
attorney fees award. 2

2. Behar also asks for attorney fees incurred during the appellate
process. “As a general matter, when a party who received
attorney fees below prevails on appeal, the party is also entitled
(continued…)

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CONCLUSION

¶35 Two of the issues Appellants raise on appeal have been
rendered moot by subsequent events. Specifically, we dismiss as
moot Appellants’ challenges to the district court’s rulings
regarding the interpretation of the HOA’s governing documents
and the composition of the HOA’s Board.

¶36 Appellants’ challenge to the court’s attorney fees award is
not moot, but fails on the merits, because the court did not abuse
its discretion in determining that the HOA had realized a
substantial benefit as a result of Behar’s lawsuit. We therefore
affirm the district court’s attorney fees award, and we remand the
case for the limited purpose of quantifying the reasonable
attorney fees and costs Behar incurred on appeal.

to fees reasonably incurred on appeal.” Olé Mexican Foods Inc. v.
J & W Distrib. LLC, 2024 UT App 67, ¶ 57 n.9, 549 P.3d 663
(quotation simplified), petition for cert. filed, June 10, 2024 (No.
20240622). Because we affirm the district court’s fees award, we
grant Behar’s request for fees incurred on appeal, and we remand
this case for the limited purpose of quantifying that award.

20230455-CA 16 2024 UT App 129