2020 UT App 164

THE UTAH COURT OF APPEALS

UDAK PROPERTIES LLC,

Appellee,

v.

SPANISH FORK, UT REALTY LLC,

Appellant.

Opinion

No. 20190821-CA

Filed December 10, 2020

Fourth District Court, Provo Department

The Honorable Darold J. McDade

No. 160400059

Kenneth A. Okazaki, Bruce Wycoff, and Taryn N. 

Evans, Attorneys for Appellant

Greggory J. Savage, Gregory S. Roberts, and Carol A. 

Funk, Attorneys for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which 

JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

HAGEN, Judge:

¶1 Spanish Fork, UT Realty LLC (SFUR) appeals from the 

district court’s grant of declaratory relief (Original Judgment) to 

UDAK Properties LLC declaring that UDAK is a “Responsible 

Owner” under a restrictive covenant binding the parties. SFUR 

argues that the provision is unambiguous and provides that

UDAK is not a Responsible Owner. Alternatively, SFUR argues 

that even if the provision is ambiguous, we should reverse 

because the district court made two evidentiary errors. SFUR 

also challenges the attorney fees awarded to UDAK (First 

Supplemental Judgment). Finally, SFUR claims that the district 

court incorrectly concluded that its tender of judgment was 

legally insufficient and that UDAK was entitled to an award of
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additional attorney fees (Second Supplemental Judgment).

Because SFUR filed a timely notice of appeal from the Second 

Supplemental Judgment only, we conclude that we lack 

jurisdiction to review the district court’s rulings that became 

final and appealable upon entry of the First Supplemental 

Judgment. We further conclude that SFUR’s tender was invalid 

and that the district court properly awarded attorney fees in the 

Second Supplemental Judgment in connection with the invalid 

tender. Accordingly, we affirm. 

BACKGROUND 

¶2 This appeal stems from a disagreement as to the meaning 

of the term “Responsible Owner” in a restrictive covenant 

(Declaration) that binds the owners of parcels in a shopping 

center in Spanish Fork, Utah. The consent of Responsible 

Owners is required before constructing or modifying buildings 

in the shopping center.

¶3 SFUR is the owner of the shopping center parcel referred 

to as the “Kmart Parcel” in the Declaration. After a dispute arose 

as to whether UDAK was a Responsible Owner, UDAK filed a 

declaratory relief action, naming the other property owners in 

the shopping center as co-defendants. UDAK sought a 

declaration that “it is a Responsible Owner, and that it possesses 

all the rights provided to Responsible Owners in the 

Declaration.”

¶4 SFUR, along with its two co-defendants, counterclaimed, 

seeking a declaration that UDAK was not a Responsible Owner.1

 

1. Canyon Creek Commercial Center LLC filed a separate 

appeal, which we also decide today. See UDAK Properties LLC v. 

Canyon Creek Com. Center LLC, 2020 UT App 163. The other 

defendant/counterclaimant did not appeal.
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The court found that the Responsible Owner provision of the 

Declaration was “facially ambiguous as a matter of law,” and set 

the matter for a bench trial. After conclusion of the trial, the 

court ruled that UDAK was a Responsible Owner and entered 

the Original Judgment, indicating that UDAK was entitled to its 

reasonable attorney fees in an amount to be determined. SFUR 

did not file a notice of appeal after the entry of the Original 

Judgment. On November 1, 2018, the court awarded UDAK 

$251,498.65 in attorney fees in the First Supplemental Judgment.

SFUR did not file a timely notice of appeal. 

¶5 In an apparent effort to satisfy the judgment while still 

preserving its right of appeal, SFUR filed a document titled 

“Tender of Judgment Amount Plus Accrued Interest” to which it 

attached a photocopy of a check made out to UDAK for the total 

judgment. The actual check was never sent to UDAK. Shortly 

thereafter, SFUR filed a document titled “Motion for Order 

Abating Interest and Declaring Money Judgment Satisfied.” The 

court denied the motion, concluding that SFUR had not made a 

valid tender and granting UDAK additional attorney fees. The 

Second Supplemental Judgment, awarding UDAK an additional 

$27,979 in attorney fees, was entered on September 5, 2019.

¶6 On October 2, 2019, less than thirty days after the Second 

Supplemental Judgment, SFUR filed its notice of appeal.

ANALYSIS

¶7 SFUR urges us to reach a number of issues on appeal 

related to the Original Judgment ruling that UDAK is a 

Responsible Owner, the First Supplemental Judgment awarding 

attorney fees, and the Second Supplemental Judgment rejecting 

SFUR’s invalid tender and awarding additional attorney fees. As 

a threshold matter, we first consider UDAK’s argument that,

because SFUR did not file its notice of appeal until October 2, 

2019, this court lacks jurisdiction to hear all but SFUR’s last 
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claim. Specifically, UDAK claims that the First Supplemental 

Judgment, “relating to enforcement of the underlying ruling, 

constituted a ‘separate judgment[] . . . individually subject to the 

rules of appellate procedure concerning appeals.’” (Quoting Ross 

v. Barnett, 2018 UT App 179, ¶ 20 n.6, 436 P.3d 306.)

¶8 “Whether appellate jurisdiction exists is a question of law 

which we decide in the first instance.” State v. Alvarez, 2020 UT 

App 126, ¶ 14, 473 P.3d 655 (cleaned up). “We have jurisdiction 

to review only those rulings from which a timely notice of 

appeal was filed.” Ross, 2018 UT App 179, ¶ 18. Rule 4(a) of the 

Utah Rules of Appellate Procedure directs a party to file an 

appeal “within 30 days after the date of entry of the judgment or 

order appealed from.” Utah R. App. P. 4(a). “It is axiomatic in 

this jurisdiction that failure to timely perfect an appeal is a 

jurisdictional failure requiring dismissal of the appeal.” A.S. v. 

R.S., 2017 UT 77, ¶ 35 n.12, 416 P.3d 465 (cleaned up). 

¶9 Here, the notice of appeal was filed on October 2, 2019. 

Only the Second Supplemental Judgment falls within the 

preceding thirty-day period. In the Second Supplemental 

Judgment, the district court, having concluded that SFUR’s 

tender was invalid, awarded attorney fees to UDAK for work 

done in connection with SFUR’s purported tender and related 

motions. Accordingly, we have jurisdiction over SFUR’s claim 

that the “tender was legally sufficient and provided no basis for 

an attorney-fee award.”

¶10 All the remaining issues on appeal relate to rulings made 

prior to the entry of the First Supplemental Judgment. 

Nevertheless, quoting North Fork Special Service District v. 

Bennion, 2013 UT App 1, 297 P.3d 624, SFUR invokes the merger 

of judgment doctrine and argues that “[e]ach ruling in this case 

before the district court’s [Second Supplemental Judgment] . . . 

was ‘one link in the chain of rulings leading to’ that final 

Amended Judgment.” See id. ¶ 18. SFUR reasons that once the 
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Second Supplemental Judgment was entered, all other orders 

merged into one final, appealable judgment.

¶11 SFUR’s arguments misapply the merger of judgment 

doctrine. The district court resolved all outstanding issues 

between the parties when it awarded attorney fees incurred in 

connection with the declaratory action and entered the First 

Supplemental Judgment. Accordingly, “all preceding 

interlocutory rulings that were steps toward final judgment,” 

including prior evidentiary rulings and the declaration that 

UDAK is a Responsible Owner, “merge[d] into the final 

judgment and [became] appealable at that time.” See Butler v. 

Corporation of the President of the Church of Jesus Christ of Latter-day 

Saints, 2014 UT 41, ¶ 24 n.6, 337 P.3d 280 (cleaned up). Although 

the filing of certain post-judgment motions can extend the time 

for filing a notice of appeal, SFUR’s purported tender, along 

with its “Motion for Order Abating Interest and Declaring 

Money Judgment Satisfied,” does not fit within any of the postjudgment motions listed in rule 4(b) of the Utah Rules of 

Appellate Procedure. Therefore, the time to appeal the district 

court’s ruling that UDAK is a Responsible Owner, any 

subsidiary evidentiary rulings, and the award of attorney fees 

incurred by UDAK in the underlying action began to run when 

the First Supplemental Judgment was entered on November 1, 

2018. Because SFUR’s notice of appeal was not filed within thirty 

days of the First Supplemental Judgment, we lack jurisdiction to 

consider SFUR’s challenges to any of the rulings that merged 

into that final judgment.

¶12 On the other hand, SFUR filed a timely notice of appeal 

from the Second Supplemental Judgment, which was a separate 

and distinct order. “The initial action resulting in a final 

judgment and the subsequent action seeking enforcement of that 

judgment are separate proceedings, each resulting in separate 

judgments that are then individually subject to the rules of 

appellate procedure concerning appeals.” Cheves v. Williams, 
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1999 UT 86, ¶ 52, 993 P.2d 191 (cleaned up). The district court’s 

post-judgment ruling on whether SFUR’s purported tender 

satisfied the judgment was independently appealable so long as 

it was final. See Cahoon v. Cahoon, 641 P.2d 140, 142 (Utah 1982)

(explaining that the “final judgment rule does not preclude 

review of postjudgment orders,” which “are independently 

subject to the test of finality, according to their own substance 

and effect”). Because the Second Supplemental Judgment is 

final—and UDAK does not suggest otherwise—we have 

jurisdiction to consider SFUR’s challenge to that post-judgment 

ruling. 

¶13 We reject SFUR’s challenge to the Second Supplemental 

Judgment on the merits. For the same reasons set forth in our 

opinion resolving the companion appeal by co-defendant 

Canyon Creek Commercial Center LLC, UDAK Properties LLC v. 

Canyon Creek Com. Center LLC, 2020 UT App 163, the district 

court correctly determined that SFUR’s purported tender was 

invalid and properly awarded UDAK the attorney fees it 

incurred as a result of those post-judgment proceedings. See id. 

¶¶ 31–36.

¶14 We further grant UDAK’s request for its reasonable 

attorney fees in connection with this appeal. “A party entitled by 

contract or statute to attorney fees below and that prevails on 

appeal is entitled to fees reasonably incurred on appeal.” 

Federated Cap. Corp. v. Abraham, 2018 UT App 117, ¶ 15, 428 P.3d 

21 (cleaned up). Because the district court awarded UDAK 

attorney fees below pursuant to the Declaration, UDAK is

entitled to fees as the prevailing party on appeal.

CONCLUSION

¶15 We conclude that we lack jurisdiction to hear most of 

SFUR’s claims on appeal. With respect to the one issue over 

which we have jurisdiction, we conclude that the district court 
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correctly determined that the tender was invalid and properly 

awarded attorney fees under the Declaration. We therefore 

affirm and remand to the district court to calculate the amount of 

attorney fees UDAK reasonably incurred on appeal.