2021 UT 15 

IN THE

SUPREME COURT OF THE STATE OF UTAH

1600 BARBERRY LANE 8 LLC, 1600 BARBERRY LANE 9 LLC, 

Appellants, 

v. 

COTTONWOOD RESIDENTIAL O.P. LP, COTTONWOOD CAPITAL 

PROPERTY MANAGEMENT II, LLC, COTTONWOOD CAPITAL 

MANAGEMENT, INC., DANIEL SHAEFFER, 

Appellees.

No. 20181020 

Heard September 16, 2020 

Filed May 27, 2021 

On Direct Appeal 

Third District, Salt Lake 

The Honorable Robert P. Faust 

No. 170904221 

Attorneys: 

Andrew G. Deiss, Salt Lake City, Kenneth J. Catanzarite, Eric V. 

Anderton, Anaheim, CA, for appellants 

Matthew L. Lalli, Dillon P. Olson, Salt Lake City, Henry H. Oh, 

Los Angeles, CA, for appellees 

JUSTICE PETERSEN authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE HIMONAS, and JUSTICE PEARCE joined. 

JUSTICE PETERSEN, opinion of the Court: 

INTRODUCTION 

¶1 Appellants sued under a contract with a choice of law 

provision, which required contractual disputes to be governed by 

Georgia law. Appellees prevailed on a motion to dismiss in the 

district court, and the court awarded them attorney fees under a 

provision of the contract. Appellants now seek reversal of that 

award. The question before us is whether Georgia or Utah law 
1600 BARBERRY LANE 8 LLC V. COTTONWOOD RESIDENTIAL O.P. LP 

Opinion of the Court 

2 

determines the award of contractual attorney fees in this case. 

This requires us to address as a threshold question whether a 

claim for contractual attorney fees is a substantive matter 

governed by the law of the contractually chosen jurisdiction, or a 

procedural matter governed by the law of the forum. 

¶2 We conclude that a claim for contractual attorney fees is 

substantive in nature, governed in this case by Georgia law. 

Because Appellants have not shown an error in the district court’s 

award of attorney fees under Georgia law, we affirm. 

BACKGROUND1

¶3 Appellants 1600 Barberry Lane 8, LLC and 1600 Barberry 

Lane 9, LLC (collectively, Barberry) each own a fractional interest 

in an apartment complex in Georgia as tenants in common. 

Barberry entered into a Property Management Agreement (PMA) 

with a company called Daymark Residential and Asset 

Management and its “control person, principal, director and 

officer,” Todd Mikles (collectively, Daymark). In the PMA, 

Barberry agreed to pay Daymark for asset and property 

management services. The PMA contains a choice of law 

provision, which provides that the agreement “is governed by 

and construed in accordance with the internal laws of the State 

where the Property is located.” In this case, that state is Georgia. 

¶4 A few years after Barberry obtained its interest in the 

property, Mikles and his affiliates purchased Daymark. They 

recommended to Barberry that it should allow another 

company—Appellees (collectively, Cottonwood)2—to take over 

asset and property management for the apartment complex. 

Barberry agreed. 

__________________________________________________________ 

1 Because the underlying action was decided on a motion to 

dismiss, “we accept the factual allegations in the complaint as true 

and interpret those facts, and all reasonable inferences drawn 

therefrom, in a light most favorable to the plaintiff as the 

nonmoving party” and “recite the facts accordingly.” Olguin v. 

Anderton, 2019 UT 73, ¶ 4 n.3, 456 P.3d 760 (citation omitted). 

2 Appellees include several related entities, which are the 

subject of various, specific allegations in the complaint. However, 

because those specifics are not relevant to the issue before us, we 

refer to Appellees collectively as Cottonwood. 
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Opinion of the Court 

3 

¶5 After several years of this arrangement, Barberry became 

dissatisfied with the fees it had been paying and filed suit in 

California. But the suit was dismissed for lack of personal 

jurisdiction. 

¶6 Barberry then sued Cottonwood in Utah. The thrust of its 

complaint was that unbeknownst to Barberry, Daymark secretly 

sold the PMA to Cottonwood for $8 million and, as the assignee of 

the PMA, Cottonwood became the property manager under the 

agreement. Barberry alleged that Daymark and then Cottonwood 

had collected above-market fees and commissions for their 

services. And Barberry claimed that in so doing, Cottonwood had 

breached the PMA or, in the alternative, interfered with the PMA. 

And it asserted Cottonwood had breached a fiduciary duty to 

Barberry arising from its role as property manager or, in the 

alternative, aided and abetted Daymark’s breach of fiduciary 

duty. 

¶7 Cottonwood moved to dismiss. It argued, in part, that it 

was not liable for breach of contract because it was not a party to 

any agreement with Barberry. It asserted that it had not 

purchased the PMA and become the property manager, as alleged 

by Barberry. Rather, it had entered into a sub-property 

management agreement with Daymark, in which Daymark 

engaged Cottonwood as a subcontractor to “sub-manage” the 

property. And it asserted Barberry was not a party to this subagreement. Accordingly, Cottonwood argued it could not be liable 

to Barberry for breach of contract because it had not entered into 

any contracts with Barberry. Cottonwood attached a copy of the 

sub-property management agreement as an exhibit to its motion. 

¶8 The district court granted the motion to dismiss on 

multiple alternative grounds. The court agreed with 

Cottonwood’s breach of contract argument, concluding that 

Cottonwood had entered into the sub-property management 

agreement with Daymark and was a “subcontractor” that “submanage[d]” the property. Additionally, the court concluded that 

even if Cottonwood was the property manager under the PMA, 

Barberry’s allegations did not amount to a violation of the PMA. 

With regard to the claims sounding in breach of fiduciary duty, 

the court concluded that the PMA did not give rise to any 

fiduciary relationship between the parties under Georgia law. 

¶9 After prevailing on the motion to dismiss, Cottonwood 

filed a motion seeking recovery of its attorney fees. Barberry 
1600 BARBERRY LANE 8 LLC V. COTTONWOOD RESIDENTIAL O.P. LP 

Opinion of the Court 

4 

objected to the request for fees and contested the amount 

Cottonwood sought. The court held a hearing on the matter. 

¶10 Cottonwood argued that it was entitled to fees under the 

attorney fee provision of the PMA, which provides: 

In any action or proceeding between Property 

Manager and the Tenants in Common arising from 

or relating to this Agreement or the enforcement or 

interpretation hereof, the party prevailing in such 

action or proceeding shall be entitled to recover 

from the other party all of its reasonable attorneys’ 

fees and other costs and expenses of the action or 

proceeding. 

¶11 Barberry opposed the motion, primarily arguing that 

Cottonwood was not entitled to fees under the terms of this 

provision. First, Barberry argued that Georgia law should govern 

the attorney fee provision just as it did the rest of the PMA. And 

Barberry asserted that under Georgia law, an attorney fee 

provision is interpreted like any other contractual provision—by 

reading the language of the agreement. Looking to the terms of 

the attorney fee provision, Barberry argued that it applied only in 

an “action or proceeding between the Property Manager and the

Tenants in Common.” And it reasoned that because the district 

court had concluded Cottonwood was a sub-contractor rather 

than the property manager, Cottonwood could not collect its fees 

under this provision. 

¶12 Cottonwood responded that Utah law should apply to 

the provision because a claim for attorney fees presents a 

procedural issue and matters of procedure are governed by the 

law of the forum state. Under Utah law, Cottonwood argued that 

even though it was not the property manager under the PMA, it 

was entitled to its attorney fees pursuant to Utah’s Reciprocal Fee 

Statute, which permits a prevailing party to recover its fees if the 

underlying litigation is brought pursuant to a contract that 

permits recovery of attorney fees by at least one of the parties to 

the litigation. See UTAH CODE § 78B-5-826; see also Hooban v. Unicity 

Int’l, Inc., 2012 UT 40, ¶¶ 28–29, 285 P.3d 766.3

__________________________________________________________ 

3 Barberry argued that, even if Utah law applied, Cottonwood 

would not be entitled to attorney fees because Utah’s Reciprocal 

Fee Statute was inapplicable. 
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Opinion of the Court 

5 

¶13 Alternatively, Cottonwood argued that even if Georgia 

law applied, it should still prevail because Barberry could not take 

a position contrary to the allegations in its complaint.4

Cottonwood asserted that since Barberry’s complaint alleged that 

Cottonwood had purchased the PMA and, as assignee, become 

the property manager under the agreement, Georgia’s judicial 

admissions doctrine prevented Barberry from disclaiming that 

position.5

¶14 The district court ruled in favor of Cottonwood and 

awarded it attorney fees. The court recognized that Utah law is 

unsettled as to whether an award of contractual attorney fees is 

considered substantive or procedural for purposes of determining 

choice of law. But it avoided ruling on the issue because it 

determined Cottonwood was entitled to attorney fees under the 

law of either jurisdiction. The court concluded that if Utah law 

applied, Cottonwood was entitled to its fees under the Reciprocal 

Fee Statute. And it determined that if Georgia law applied, 

Georgia’s judicial admissions doctrine would prohibit Barberry 

from taking a position contrary to the allegation in its complaint 

that Cottonwood was the property manager under the PMA. 

¶15 Barberry separately appealed both the district court’s 

order to dismiss and its order awarding attorney fees. Both cases 

were transferred to the court of appeals. But we recalled the 

instant appeal involving the attorney fee order. 

¶16 In its appeal of the dismissal order in the court of appeals, 

Barberry argued that the district court should not have considered 

the sub-property management agreement that Cottonwood 

attached to its motion to dismiss because the sub-agreement was 

not attached to or referenced in the complaint. 1600 Barberry Lane 

8 LLC v. Cottonwood Residential OP LP, 2019 UT App 146, ¶ 8 n.5, 

449 P.3d 949, cert. denied, 456 P.3d 388 (Utah 2019). The subagreement was the basis of the district court’s finding that 

Cottonwood had not been assigned the PMA but was merely 

__________________________________________________________ 

4 Cottonwood also argued it was entitled to attorney fees as a 

third-party beneficiary to the PMA. The district court rejected this 

argument, and it is not at issue on appeal. 

5 Georgia’s judicial admissions doctrine allows “either party 

[to] avail himself or herself of allegations or admissions made in 

the pleadings of the other.” GA. CODE ANN. § 24-8-821. 
1600 BARBERRY LANE 8 LLC V. COTTONWOOD RESIDENTIAL O.P. LP 

Opinion of the Court 

6 

engaged as a subcontractor to Daymark. And Barberry argued 

that before considering the sub-agreement, the district court 

should have converted the motion to a motion for summary 

judgment and proceeded under Utah Rule of Civil Procedure 56. 

Id.

¶17 But the court of appeals affirmed the order of dismissal 

without addressing whether the district court’s consideration of 

the sub-agreement was improper. Id. It concluded that the district 

court’s alternative ground for dismissal—that Barberry’s 

allegations did not make out a violation of the PMA, interference 

with the PMA, or a breach of fiduciary duty even if they were 

true—was a sufficient basis to dismiss the complaint. Id. ¶ 27. 

Barberry then petitioned this court for certiorari, which we 

denied. 1600 Barberry Lane 8 L [sic] v. Cottonwood Residential, 456 

P.3d 388 (Utah 2019). 

¶18 Barberry’s appeal regarding the district court’s attorney 

fee award is before us. Here, Barberry argues that Cottonwood is 

not entitled to attorney fees under the PMA because the 

applicable provision in the agreement provides for fees only “[i]n 

any action or proceeding between the Property Manager and the 

Tenants in Common.” Barberry asserts that because the district 

court determined on the merits that Cottonwood was not the 

property manager under the PMA, Cottonwood is not entitled to 

fees under the clear terms of the PMA. 

¶19 Barberry contests the district court’s ruling that, despite 

the language of the PMA, Cottonwood is entitled to recover its 

fees under both Utah and Georgia law. As an initial matter, 

Barberry asserts that Georgia law should apply because a claim 

for attorney fees is substantive in nature, and thus should be 

governed by the law of the parties’ contractually chosen 

jurisdiction. It argues that Utah’s Reciprocal Fee Statute therefore 

does not apply to equalize each party’s right to recover fees, and 

Georgia has no corollary. Barberry argues in the alternative that if 

we decide Utah law does govern the attorney fee question, the 

Reciprocal Fee Statute should not apply under the circumstances 

here. 

¶20 Finally, Barberry argues that even if the district court did 

not err in its award of attorney fees, the amount of the award was 

unreasonable. 

¶21 We exercise jurisdiction under Utah Code section 78A-3-

102(3)(j). 
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7 

STANDARDS OF REVIEW 

¶22 We must determine which state’s law governs a claim for 

contractual attorney fees and whether Cottonwood is entitled to 

recover its attorney fees here. These are both questions of law, 

which we review for correctness.6 Davis County v. Purdue Pharma, 

L.P., 2020 UT 17, ¶ 7, 463 P.3d 619 (stating that “questions of law 

are reviewed for correctness”); Valcarce v. Fitzgerald, 961 P.2d 305, 

315 (Utah 1998) (noting that whether attorney fees are recoverable 

is a question of law reviewed for correctness). We review the 

reasonableness of an attorney fee award for abuse of discretion. 

Valcarce, 961 P.2d at 316. 

ANALYSIS 

I. CHOICE OF LAW 

¶23 To assess whether the district court was correct in 

awarding attorney fees to Cottonwood, we must first determine 

which state’s law governs this issue. This requires us to analyze 

whether a claim for contractual attorney fees is substantive or 

procedural in nature because, in an action based on a contract 

with a choice of law provision, substantive matters are governed 

by the law of the chosen jurisdiction but matters of procedure are 

governed by the law of the forum. Federated Cap. Corp. v. Libby, 

2016 UT 41, ¶ 13, 384 P.3d 221; Morris v. Sykes, 624 P.2d 681, 684 

n.3 (Utah 1981). So here, Utah law governs matters of procedure 

and we apply Georgia law to substantive matters. 

¶24 “Substantive law is defined as the positive law which 

creates, defines and regulates the rights and duties of the parties 

and which may give rise to a cause for action.” Petty v. Clark, 192 

P.2d 589, 593 (Utah 1948). Conversely, “procedural law merely 

‘pertains to and prescribes the practice and procedure or the legal 

machinery by which the substantive law is determined or made 

effective.’” Brown & Root Indus. Serv. v. Indus. Comm’n of Utah, 947 

P.2d 671, 675 (Utah 1997) (citation omitted). 

¶25 To determine whether contractual attorney fees are 

substantive or procedural matters, we apply Utah’s choice of law 

__________________________________________________________ 

6 Because standards of review are “matter[s] of procedural, 

rather than substantive, law,” Utah law controls the standard of 

review of the issues on appeal. Waddoups v. Amalgamated Sugar 

Co., 2002 UT 69, ¶ 20, 54 P.3d 1054. 
1600 BARBERRY LANE 8 LLC V. COTTONWOOD RESIDENTIAL O.P. LP 

Opinion of the Court 

8 

rules. See Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 14, 54 

P.3d 1054 (“Since Utah is the forum state, Utah’s choice of law 

rules determine the outcome of the conflict.” (citation omitted)); 

see also Restatement (Second) of Conflict of Laws § 122 (1971) 

(noting that the forum state applies its own rules to determine 

“how litigation shall be conducted”). 

¶26 This is an issue of first impression in Utah, and we find it 

helpful to survey the reasoning employed in other jurisdictions. 

See, e.g., Davencourt at Pilgrims Landing Homeowners Ass’n v. 

Davencourt at Pilgrims Landing, LC, 2009 UT 65, ¶¶ 49, 52–56, 221 

P.3d 234 (surveying other jurisdictions’ treatment of a cause of 

action previously unrecognized in Utah). A review of other 

jurisdictions reveals that this is not a settled issue. See Boswell v. 

RFD-TV the Theater, LLC, 498 S.W.3d 550, 557–59 (Tenn. Ct. App. 

2016) (collecting cases that demonstrate the various ways other 

jurisdictions have resolved this issue). 

¶27 A few jurisdictions have found an award of contractual 

attorney fees to be procedural and thus governed by the law of 

the forum state. For example, the Nebraska Supreme Court held 

that, because an award of contractual attorney fees is a remedy, it 

must be considered procedural. Neb. Nutrients, Inc. v. Shepherd, 626 

N.W.2d 472, 518 (Neb. 2001), abrogated in part on other grounds by 

Sutton v. Killham, 825 N.W.2d 188 (Neb. 2013). Likewise, the New 

Jersey Supreme Court, relying on prior case law that found the 

issue of attorney fees “a matter of practice and procedure,” 

determined that even where the parties contracted for attorney 

fees, “the award . . . is a procedural rather than a substantive law 

issue.” N. Bergen Rex Transp., Inc. v. Trailer Leasing Co. Div. of Keller 

Sys, Inc., 730 A.2d 843, 848 (N.J. 1999). 

¶28 Other courts have found the issue of contractual attorney 

fees to be substantive in nature because an attorney fee award is a 

“substantive right[] created by the contract.” PVI, Inc. v. 

Ratiopharm GmbH, 253 F.3d 320, 329 (8th Cir. 2001) (applying 

Missouri law). In Oregon, because a claim for attorney fees “must 

be pled and proved” and because the fees “are not merely costs 

incidental to judicial administration,” an award of contractual 

attorney fees is considered a substantive matter. Seattle-First Nat’l 

Bank v. Schriber, 625 P.2d 1370, 1373 (Or. Ct. App. 1981) (citing 

Gorman v. Boyer, 547 P.2d 123 (Or. 1976)). Likewise, the Texas 

Court of Appeals noted that a “claim for attorneys’ fees for breach 

of contract is not an independent cause of action,” but is instead 

“part of [a] substantive claim for breach of contract.” Midwest 
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9 

Med. Supply Co., LLC v. Wingert, 317 S.W.3d 530, 537 (Tex. App. 

2010). In so concluding, the court reasoned, “Because the ‘award 

of attorney’s fees is inextricably intertwined with the substantive 

issue of contractual liability—an issue that is [i]ndisputably 

governed by the choice-of-law provision,’ . . . the award of 

attorneys’ fees [i]s a substantive contractual issue governed by the 

laws chosen by the parties.” Id. (citation omitted); see also Man 

Indus. (India), Ltd. v. Midcontinent Express Pipeline, LLC, 407 S.W.3d 

342, 353–54 (Tex. App. 2013) (recognizing that attorney fees for 

breach of contract are substantive but determining a discretionary 

attorney fee award under a statute to be procedural). 

¶29 We find persuasive the reasoning of courts holding that 

an award of contractual attorney fees is substantive in nature. In 

Boswell, the Tennessee Court of Appeals held that contractual 

attorney fees presented a substantive issue for choice of law 

purposes. 498 S.W.3d at 560. After surveying the state of the law 

in other jurisdictions, the court reasoned that “[c]ontracts 

providing for attorney’s fees impose a contractual liability that 

one enforces as a matter of substantive right. Rules regarding the 

recovery of contractual attorney’s fees define the parties’ rights 

and obligations.” Id. So the court concluded that “a state’s rules 

regarding the recovery of contractual attorney’s fees are 

substantive rules governing the substantive rights of the parties.” 

Id.

¶30 We take a similar view. As previously discussed, 

substantive law is “the positive law which creates, defines and 

regulates the rights and duties of the parties and which may give 

rise to a cause for action.” Petty, 192 P.2d at 593. An attorney fee 

provision in a contract creates the right to seek attorney fees and 

defines who may seek attorney fees under the contract. And a 

state’s rules about the recovery of contractual attorney fees 

regulates the substantive rights of the parties. Accordingly, we 

hold that a claim for contractual attorney fees presents a 

substantive issue for purposes of determining choice of law.7

__________________________________________________________ 

7 We note that the parties framed this as a categorical 

question—in other words, whether the award of attorney fees in 

general is a procedural or substantive matter. And we 

acknowledge that some courts have addressed the issue in this 

way. See, e.g., Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 738 

F.3d 960, 974 (9th Cir. 2013) (forecasting that the Alaska Supreme 

(continued . . .) 
1600 BARBERRY LANE 8 LLC V. COTTONWOOD RESIDENTIAL O.P. LP 

Opinion of the Court 

10 

¶31 Here, the attorney fee provision in the PMA was “part 

and parcel” of Barberry’s original claim for breach of contract, so 

it “should be governed by the choice-of-law provision in that 

same [c]ontract.” See Boswell, 498 S.W.3d at 560. Thus, because the 

parties contracted to have Georgia law govern the PMA, we must 

apply Georgia law to determine whether the district court erred in 

awarding Cottonwood attorney fees. 

II. THE DISTRICT COURT’S ATTORNEY FEE ORDER 

¶32 The district court concluded that Cottonwood was 

entitled to attorney fees under either Georgia or Utah law. As we 

have determined that this is a substantive issue, we apply only 

Georgia law to determine whether the district court’s ruling was 

correct. See Federated Cap. Corp. v. Libby, 2016 UT 41, ¶ 13, 384 P.3d 

221. 

¶33 In Georgia, “in the absence of a controlling statute, a 

party’s entitlement to attorney fees under a contractual provision 

is determined by the usual rules of contract interpretation.” 

Benchmark Builders, Inc. v. Schultz, 711 S.E.2d 639, 640 (Ga. 2011) 

(citation omitted). And “[w]here the terms of a written contract 

are clear and unambiguous, the court will look to the contract 

 

Court would hold that, in a choice of law action, attorney fees 

would be considered procedural in Alaska); Sentinel Indus. 

Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So. 2d 954, 960 

(Miss. 1999) (“In Mississippi, the law of the forum applies to all 

procedural and remedial issues. That includes attorneys’ fees 

. . . .” (citations omitted)); Smithco Eng’g, Inc. v. Int’l Fabricators, 

Inc., 775 P.2d 1011, 1018 (Wyo. 1989) (noting that, in a choice of 

law action, because Oklahoma’s attorney fee statute is located in 

Oklahoma’s Civil Procedure Code, an award of attorney fees is 

procedural). But we decline to paint with such a broad brush. An 

award of attorney fees may be procedural in some contexts, see, 

e.g., UTAH R. CIV. P. 11(c) (providing for an award of attorney fees 

alongside rule 11 sanctions in certain circumstances), and 

substantive in others, see, e.g., Boswell v. RFD-TV The Theater, 498 

S.W.3d 550, 559 (Tenn. Ct. App. 2016) (“It is not necessary for 

purposes of this appeal to broadly classify all types of claims for 

attorney’s fees, and we do not purport to do so.”). Recognizing 

this, we clarify that our analysis here is confined to contractual

attorney fees. 
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alone to . . . find the intention of the parties.” Health Serv. Ctrs., Inc. 

v. Boddy, 359 S.E.2d 659, 661 (Ga. 1987). 

¶34 Accordingly, we interpret the attorney fee provision as 

we would any other contractual provision, by looking to the 

language of the contract. Here, the PMA specifies that: 

In any action or proceeding between Property Manager 

and the Tenants in Common arising from or relating to 

this Agreement or the enforcement or interpretation 

hereof, the party prevailing in such action or 

proceeding shall be entitled to recover from the 

other party all of its reasonable attorneys’ fees and 

other costs and expenses of the action or proceeding. 

(Emphasis added.) 

¶35 No one has argued that these terms are unclear or 

ambiguous. As the district court noted in its order awarding 

attorney fees, “The above-fee provisions . . . do not permit 

attorneys’ fees for all disputes related to the agreement[], rather 

such fees are limited to disputes between the tenants in common 

and the Property Manager . . . .” It is undisputed that Barberry is 

included in the “Tenants in Common” referenced in the PMA. 

And in its order awarding attorney fees, the district court ruled 

that Cottonwood could enforce the attorney fee provision as the 

property manager because Barberry had alleged in its complaint 

that Cottonwood was the property manager under the PMA “and 

sued for breach thereof,” and Georgia’s judicial admissions rule 

prohibited Barberry from taking a contrary position.8 

¶36 We agree that Georgia’s judicial admissions rule is 

determinative. It provides that, “[w]ithout offering the same in 

evidence, either party may avail himself or herself of allegations 

or admissions made in the pleadings of the other.” GA. CODE ANN.

§ 24-8-821. In other words, a party’s allegations or admissions in 

__________________________________________________________ 

8 We note that the judicial admissions rule is presumably one 

of procedure. So Utah law should apply on this point. See

Federated Cap. Corp. v. Libby, 2016 UT 41, ¶ 13, 384 P.3d 221. But 

because both parties briefed and argued this under Georgia law, 

we will apply Georgia law in order to address their arguments. 

This does not mean they were correct in resorting to Georgia law 

with regard to this matter. 
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12 

its pleadings are considered “conclusive of the facts contained 

therein” if they are not withdrawn. Georgia-Pac., LLC v. Fields, 748 

S.E.2d 407, 410 (Ga. 2013). Only factual allegations, not opinions 

or legal conclusions, may be deemed judicial admissions. See id.

¶37 And while Georgia’s Civil Practice Act permits pleadings 

in the alternative, that “does not change the rule of evidence that a 

party is bound by its judicial admissions.” Loney v. Primerica Life 

Ins. Co., 499 S.E.2d 385, 387 (Ga. Ct. App. 1998) (citation omitted). 

So, “a party should beware of the evidentiary effect of alternative 

pleadings,” Ditch v. Royal Indem. Co., 422 S.E.2d 868, 869 (Ga. Ct. 

App. 1992), because “[w]here the pleading is inconsistent, the 

admission, not the denial, prevails.” Johnson v. Daniel, 219 S.E.2d 

579, 581 (Ga. Ct. App. 1975). 

¶38 Thus, under Georgia’s judicial admissions rule, Barberry 

is bound by the factual allegations made in its complaint—

specifically, that Daymark secretly sold the PMA to Cottonwood 

and, as assignee of the PMA, Cottonwood took over Daymark’s 

role as property manager under the agreement. It does not matter 

that Barberry alleged in the alternative that Cottonwood may 

have merely interfered with the PMA or aided and abetted 

Daymark’s breach of fiduciary duty. Simply put, although 

Barberry pleaded various claims in the alternative, this does not 

change the fact that Barberry is bound by its unwithdrawn factual 

allegations that Cottonwood was the property manager under the 

PMA. And Barberry has made no argument that it did withdraw 

these allegations. Accordingly, they are binding judicial 

admissions under Georgia law and the district court was entitled 

to hold Barberry to them for purposes of ruling upon 

Cottonwood’s motion for attorney fees. 

Barberry attacks this conclusion for two reasons.9 ¶39 First, it 

argues that “the same rule precludes Cottonwood from 

__________________________________________________________ 

9 Barberry also claims that under Dillard-Winecoff, LLC v. IBF 

Participating Income Fund, 552 S.E.2d 523, 525 (Ga. Ct. App. 2001), 

Cottonwood is judicially estopped from claiming to be the 

property manager under the PMA. But this appears to 

misunderstand the judicial estoppel rule as interpreted by 

Georgia courts. “Judicial estoppel is a federal doctrine that 

precludes a party from asserting a position in a judicial 

proceeding which is inconsistent with a position previously 

successfully asserted by it in a prior proceeding.” Id. (citations 

(continued . . .) 
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13 

contradicting their own pleading that they were not the Property 

Manager.” But that is incorrect. Georgia’s judicial admissions rule 

applies only to “allegations or admissions made in pleadings.” GA.

CODE ANN. § 24-8-821 (emphasis added). Cottonwood’s motion to 

dismiss, in which it argued it was not the property manager under 

the PMA, is not a pleading under Georgia law. “[A] motion is not 

a pleading; pleadings are defined as seven specific filings, 

including a ‘complaint’ and an ‘answer.’” Chandler v. Opensided 

MRI of Atlanta, LLC, 682 S.E.2d 165, 170 n.5 (Ga. Ct. App. 2009) 

(citation omitted). Accordingly, although Cottonwood can rely on 

factual allegations Barberry made in its complaint, Barberry 

cannot rely upon arguments Cottonwood made in its motion to 

dismiss. 

¶40 Second, Barberry contends that the judicial admissions 

rule does not control here because the district court decided this 

factual issue on the merits. Barberry is correct that in Georgia, if a 

judicial admission is considered and determined on the merits, 

the judicial admissions rule is no longer determinative. See

Stephens v. Tate, 249 S.E.2d 92, 94 (Ga. Ct. App. 1978) (“The order 

granting summary judgment shows that the issue was considered 

and determined on its merits by the trial court. ‘Therefore, we do 

not consider the (answer) to be an admission in judicio that barred 

the applicant from showing to the contrary.’” (quoting Summerlot 

v. Crain-Daly Volkswagen, Inc., 233 S.E.2d 749, 750 (Ga. 1977))). As 

we have explained, Georgia courts generally will not allow parties 

to disprove judicial admissions made in their pleadings unless the 

admissions are withdrawn. See also Walker v. Jack Eckerd Corp., 434 

S.E.2d 63, 66 (Ga. Ct. App. 1993), superseded on other grounds by 

statute as stated in Allen v. Kroger Co., 2018 WL 6729646, at *3 (M.D. 

Ga. 2018). However, “if the trial court admits . . . conflicting 

evidence, and either the court (e.g. when ruling on a motion for 

summary judgment) or the jury (when reaching its verdict) 

considers the conflicting evidence on the merits, the pleadings at 

that point become amended to conform to such evidence” because 

 

omitted) (internal quotation marks omitted). There are two 

prerequisites to this doctrine: “(1) prior assertion of an 

inconsistent position in another judicial proceeding; and (2) 

successful assertion of the previous inconsistent position.” Id.

These prerequisites are not met, as Barberry has identified no 

prior judicial proceeding in which Cottonwood successfully 

asserted that it was not the property manager under the PMA. 
1600 BARBERRY LANE 8 LLC V. COTTONWOOD RESIDENTIAL O.P. LP 

Opinion of the Court 

14 

the court is considered to have “tacitly permitted” the party to 

withdraw its admission. Id. “Basically, the rule vests the trial court 

with discretion to determine whether an admission of fact made 

in pleadings should be withdrawn, thereby allowing the 

pleadings to be amended by conflicting evidence admitted and 

considered on the merits.” Id.

¶41 Barberry asserts that the district court found on the merits 

that Cottonwood was not the property manager under the PMA 

but instead was engaged as a subcontractor to sub-manage the 

property. And it contends that it is therefore not bound by its 

contrary allegations. We disagree. 

¶42 For Barberry to prevail on this argument, it must 

persuade us that the district court considered this factual dispute 

on the merits, thereby tacitly allowing Barberry to withdraw the 

relevant allegations and amending the complaint accordingly. 

While the record is not entirely clear, we conclude the district 

court did not do this. 

¶43 We make an initial observation that it is unusual for this 

question to arise at all in this procedural posture. The motion 

before the district court was a motion to dismiss under civil rule 

12(b)(6). It is foundational that when ruling on such a motion, a 

district court must take the factual allegations in the complaint as 

true. See UTAH R. CIV. P. 12(b)(6);10 Hudgens v. Prosper, Inc., 2010 

UT 68, ¶ 14, 243 P.3d 1275 (“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.’” (citation omitted)). The district court is not 

permitted to consider dueling evidence or make findings on 

disputed facts. See Oakwood Village LLC v. Albertsons, Inc., 2004 UT 

101, ¶ 12, 104 P.3d 1226 (“If a court does not exclude material 

outside the pleadings and fails to convert a rule 12(b)(6) motion to 

one for summary judgment, it is reversible error . . . .”); Alvarez v. 

Galetka, 933 P.2d 987, 989 (Utah 1997) (“Rule 12(b)(6) concerns the 

sufficiency of the pleadings, not the underlying merits of a 

particular case.”). So normally, a question as to whether a court 

__________________________________________________________ 

10 We apply Utah law to our 12(b)(6) analysis because it is a 

rule of procedure. The district court and the court of appeals also 

(correctly) analyzed the application of 12(b)(6) under Utah law. 
CITE AS: 2021 UT 15 

Opinion of the Court 

15 

considered disputed facts on the merits when ruling upon a 

12(b)(6) motion should be easily answered in the negative, unless 

the court erred. 

¶44 But here, Barberry has identified a few statements in the 

order of dismissal that suggest the court may not have taken the 

facts in the complaint as true. So we analyze Barberry’s argument 

that the district court considered the relevant factual dispute on 

the merits in contravention of rule 12(b)(6). 

¶45 A review of the order of dismissal reveals that the court 

did not so much intend to resolve factual disputes on the merits 

but to construe the two contracts before it—the PMA and the subproperty management agreement. We acknowledge that this was 

problematic because the sub-property management agreement 

was attached only to Cottonwood’s motion, not Barberry’s 

complaint. However, Barberry was heard on this issue in the court 

of appeals. 1600 Barberry Lane 8 LLC v. Cottonwood Residential OP 

LP, 2019 UT App 146, ¶ 8 n.5, 449 P.3d 949.11 And the question 

__________________________________________________________ 

11 In the court of appeals, Barberry argued that in viewing 

Cottonwood as a subcontractor rather than an assignee of the 

contract, “the district court improperly considered the [subproperty management] contract between Daymark and 

Cottonwood without converting the motion to dismiss to one for 

summary judgment.” 1600 Barberry Lane 8 LLC v. Cottonwood 

Residential OP LP, 2019 UT App 146, ¶ 3 n.4, 456 P.3d 949. The 

court of appeals avoided this issue and affirmed the district court 

on its other basis for dismissal. The court of appeals explained, 

[Barberry] allege[s] that Daymark sold the 

Agreement to Cottonwood and that Cottonwood 

thereby “subsumed from [Daymark] all of their 

obligations in the [Agreement].” In ruling on the 

motion to dismiss, the district court considered the 

contract between Daymark and Cottonwood, which 

[Barberry] did not attach to or expressly reference in 

their pleading, and concluded that Daymark did not 

assign the Agreement to Cottonwood but rather 

engaged Cottonwood as a subcontractor. [Barberry] 

allege[s] that the district court improperly 

considered the contract between Daymark and 

Cottonwood without converting the motion to 

dismiss to one for summary judgment. . . . We need 

(continued . . .) 
1600 BARBERRY LANE 8 LLC V. COTTONWOOD RESIDENTIAL O.P. LP 

Opinion of the Court 

16 

before us is solely whether the court rejected the relevant factual 

allegations on the merits. 

¶46 Barberry relies upon the following passages in the district 

court’s order of dismissal to argue that it did. First, when 

concluding that Barberry had not stated a claim for breach of 

contract, the court stated that 

The Sub-Property Management Agreement shows 

that [Daymark] and [Cottonwood] entered into the 

Sub-Property Management Agreement whereby 

[Daymark] retained [Cottonwood] as a 

subcontractor to sub-manage the Property. Only 

[Cottonwood] and [Daymark] (not Plaintiffs) are 

parties to the Sub-Property Management 

Agreement. 

But the court then provided an additional basis for dismissal that 

accepted the allegations in the complaint and interpreted the 

PMA, stating, “Indeed, even if [Cottonwood] could be deemed a 

party to the PMA, Plaintiffs’ allegation that [Cottonwood] 

purportedly breached the PMA by charging property and asset 

management fees in excess of fair value lacks merit” and “the 

Amended Complaint alleges no facts supporting such a claim, 

and the language of the PMA contradicts Plaintiffs’ allegations.” 

¶47 Further, when determining Barberry had failed to allege 

that there was a fiduciary relationship between the parties, the 

district court said that Cottonwood was “not the Property 

Manager; it is a subcontractor of the Property Manager.” 

However, the court provided additional bases for dismissing the 

fiduciary duty claims that relied on the allegations in the 

complaint and the terms of the PMA: it stated, “[Barberry’s] claim 

that the PMAS were assigned to [Cottonwood] without 

[Barberry’s] consent is meritless because [Barberry] admit[s] that 

[it] consented to the alleged assignment,” and “as a matter of 

 

not decide whether this was error, because we 

affirm the district court without regard to the 

contract between Daymark and Cottonwood. In 

other words, our analysis does not depend on whether 

Cottonwood was an assignee of or a subcontractor under 

the Agreement. 

Id. (third and fourth alterations in original) (emphasis added). 
CITE AS: 2021 UT 15 

Opinion of the Court 

17 

Georgia law, neither party is a fiduciary of the other because the 

parties contractually agreed that their relationship was not 

fiduciary in nature.” 

¶48 Nowhere in the order does the district court purport to 

weigh evidence or resolve factual disputes. Rather, it noted the 

correct legal standard in the beginning of its order.12 And 

throughout, the district court primarily interpreted the PMA and 

applied Georgia law to the facts alleged in the complaint. The 

portions of the order relied upon by Barberry are the result not of 

factfinding but of the court interpreting the sub-property 

management agreement. This was problematic because that 

agreement was not part of the complaint. But while this indicates 

that the court made a mistake (which the court of appeals 

concluded was not determinative due to the district court’s other 

grounds for dismissal, see id. ¶ 3 n.4), it does not mean that the 

district court tacitly permitted Barberry to withdraw its factual 

allegations by resolving disputed facts on the merits. This is 

further supported by the fact that in ruling on Cottonwood’s 

motion for attorney fees, the district court held Barberry to these 

allegations as judicial admissions.13

¶49 Barberry has not provided any other reason that 

Georgia’s judicial admissions rule should not apply here. 

Accordingly, we affirm the district court’s determination that 

Cottonwood is entitled to enforce the PMA’s attorney fee 

provision under Georgia law. 

__________________________________________________________ 

12 The court stated Cottonwood was arguing that “the 

allegations in [Barberry’s] Amended Complaint, taken as true, fail 

to state any claims against [Cottonwood].” 

13 When Barberry tried to argue that the district court had 

determined this factual issue, the court disclaimed any intention 

of doing so. At oral argument during the hearing on attorney fees, 

counsel for Barberry stated, “Your honor decided the case on the 

basis of a subcontract that [Cottonwood] attached to a pleading 

that they said meant they were not the property manager and 

therefore, had no rights pursuant to the property management 

agreement.” The court responded that it “may have made a 

mistake in going that far without seeing the whole picture on this 

attorney’s fees issue.” 
1600 BARBERRY LANE 8 LLC V. COTTONWOOD RESIDENTIAL O.P. LP 

Opinion of the Court 

18 

III. THE REASONABILITY OF THE AWARD AMOUNT 

¶50 Barberry next argues that, even if the district court did 

not err in its award of attorney fees, the fees awarded were 

unreasonable. But Barberry has inadequately briefed this issue. 

¶51 In its original motion for attorney fees, Cottonwood 

claimed it had paid over $300,000 in fees to defend itself in the 

California and Utah courts. Before ruling on the motion, the 

district court informed the parties that it would not consider any 

fees or costs incurred in the California litigation. So Cottonwood 

revised its request, claiming a reduced $94,836.62 in attorney fees 

and costs. After briefing and oral argument on the matter, the 

district court granted Cottonwood’s revised fee request in full. 

¶52 Barberry argues that the amount awarded by the court is 

unreasonable. But its briefing on this issue consists of itemizing 

the billings submitted by Cottonwood and stating in conclusory 

fashion that “it was unreasonable to reward Defendants an 

additional $41,532.39 for unsuccessfully seeking and defending 

the original fee award.” Barberry does not reference any legal 

support for this argument or provide any analysis. And Barberry 

fails to mention the governing abuse-of-discretion standard or 

apply it to the district court’s decision. 

¶53 An appellant carries the burden of persuasion to convince 

the reviewing court that the district court erred in its decision. 

And “an appellant who fails to adequately brief an issue ‘will 

almost certainly fail to carry its burden of persuasion on appeal.’” 

Bank of Am. v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d 196 (citation 

omitted). Although there is no bright-line rule that defines 

adequate briefing, a party must, at minimum, cite to applicable 

law and then apply the law to the facts. See id. ¶ 11; see also UTAH 

R. APP. P. 24(a)(8) (“The argument must explain, with reasoned 

analysis supported by citations to legal authority and the record, 

why the party should prevail on appeal.”). 

¶54 Barberry has failed to do so here. It has made conclusory 

statements that the fees awarded by the district court are 

unreasonable but has provided no argument or analysis as to why 

that is so. And it has failed to even apply the abuse-of-discretion 

standard of review. “While failure to cite to pertinent authority 

may not always render an issue inadequately briefed, it does so 

when the overall analysis of the issue is so lacking as to shift the 

burden of research and argument to the reviewing court.” State v. 

Thomas, 961 P.2d 299, 305 (Utah 1998). We decline to shoulder that 

burden. 
CITE AS: 2021 UT 15 

Opinion of the Court 

19 

¶55 Barberry failed to adequately brief this issue and has not 

met its burden of persuasion. Accordingly, we do not disturb the 

amount of the district court’s fee award. 

CONCLUSION 

¶56 We hold that the matter of contractual attorney fees is 

substantive for choice of law purposes. Applying Georgia law, we 

conclude that Barberry has not shown the district court erred in 

awarding Cottonwood attorney fees. And we do not disturb the 

amount of the award because Barberry failed to adequately brief 

the issue and accordingly did not persuade us that the award was 

unreasonable. Finally, Cottonwood requests an award of costs 

pursuant to rule 34 of the Utah Rules of Appellate Procedure. 

Because Cottonwood is the prevailing party on appeal, we grant 

its request and award costs. See UTAH R. APP. P. 34(a).