Full Opinion (html_with_citations)
2022 UT 42


                               IN THE

      SUPREME COURT OF THE STATE OF UTAH

                      RICHARD E. GARDINER,
                           Appellant,
                                 v.
                         NELS ANDERSON,
                            Appellee.

                           No. 20220146
                     Filed December 15, 2022

                         On Direct Appeal

                     Fourth District, Millard
                 The Honorable Anthony Howell
                         No. 160700010

                             Attorneys:
              Todd F. Anderson, Delta, for appellant
      Marlin J. Grant, Michael D. Zilles, Logan, for appellee

  JUSTICE PETERSEN authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE,
           JUSTICE POHLMAN, and JUDGE TENNEY joined.
   Having recused herself, JUSTICE HAGEN does not participate
     herein; COURT OF APPEALS JUDGE RYAN D. TENNEY sat.

   JUSTICE PETERSEN, opinion of the Court:
                        INTRODUCTION
   ¶1 We retained this appeal to address only one issue: the
reasonableness of the district court’s attorney fee award to the
appellee. However, the appellant has not addressed this issue.
Instead, he has attempted to reargue a contention that the court of
appeals rejected in a prior appeal—that the appellee is not entitled
to an attorney fee award. The court of appeals decided that
question in the appellee’s favor, and we denied the appellant’s
petition for certiorari. It is therefore the law of the case that the
appellee is entitled to his attorney fees. The only question
                     GARDINER v. ANDERSON
                      Opinion of the Court

properly before us in this subsequent appeal is whether the
amount of the attorney fees awarded to the appellee is reasonable.
   ¶2 By declining to address that issue, the appellant has
waived it. Accordingly, we do not disturb the district court’s
award of attorney fees. We further conclude that the appellee is
entitled to recover the reasonable attorney fees he has incurred
defending against this appeal. And we remand to the district
court for the sole purpose of calculating those fees.
                        BACKGROUND
  ¶3 In 2013, Nels Anderson leased a warehouse from Richard
Gardiner. The lease prohibited Anderson from subletting the
warehouse without Gardiner’s prior written consent. But
Anderson did just that and made a healthy profit.
   ¶4 Two years later, Gardiner discovered Anderson’s
arrangement. He sent Anderson written notice of his breach,
giving him ten days to cure it. Anderson chose not to cure and
vacated the warehouse. So Gardiner terminated the lease.
   ¶5 Gardiner then sued for unlawful detainer, breach of lease,
and unjust enrichment. He sought damages in the amount of the
profits that Anderson had earned from subletting the warehouse.
    ¶6 Anderson moved for summary judgment, arguing that
Gardiner’s claim for damages was ―nonexistent.‖ The district
court agreed and granted Anderson’s motion, finding no ―support
for these damages in the unlawful detainer statute or the lease
agreement.‖ Anderson then moved to recoup his attorney fees,
arguing that he was the ―prevailing party‖ because he had
successfully defended against Gardiner’s claims. He asserted that
the language of the lease agreement was sufficiently broad to
warrant an award of fees to the prevailing party when read in
conjunction with Utah’s reciprocal attorney fee statute. The
district court ultimately disagreed and denied Anderson’s request
for attorney fees.
                     First Appeal - Gardiner I
   ¶7 Both parties appealed the district court’s decision—with
Gardiner arguing that the court erred in granting summary
judgment to Anderson, and Anderson arguing that the court
should have granted his request for attorney fees. And in August
2018, the court of appeals issued its first decision in this case
(Gardiner I). The court of appeals affirmed the district court’s
summary judgment ruling, but it reversed the court’s ruling on

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attorney fees. Gardiner v. Anderson,
2018 UT App 167, ¶ 1
,
436 P.3d 237
. The court of appeals held that the lease triggered
Utah’s reciprocal attorney fee statute, id. ¶ 27, which permits a
district court to award costs and attorney fees to the prevailing
party in a civil action based upon a written contract that ―allow[s]
at least one party to recover attorney fees,‖ id. ¶ 24 (alteration in
original) (quoting UTAH CODE § 78B-5-826). And it determined
that Anderson ―was the prevailing party in enforcing the Lease
and defending against [Gardiner’s] claims.‖ Id. ¶ 27. The court of
appeals then remanded for the district court ―to determine
whether [Anderson] should be awarded attorney fees for
successfully defending against [Gardiner’s] complaint.‖ Id.; see
also id. ¶ 29. Additionally, it held that Anderson was ―entitled to
attorney fees incurred on appeal for substantially prevailing on
appeal.‖ Id. ¶ 28.
    ¶8 Gardiner petitioned for certiorari, but we denied his
petition. On remand, the district court awarded Anderson
attorney fees and costs against Gardiner totaling $26,412.58—
including $7,143.75 for time spent on the initial case and summary
judgment and $18,855 for time spent on appeal, among other
costs.
                     Second Appeal - Gardiner II
    ¶9 Gardiner appealed the district court’s attorney fee order.
But instead of attacking the order itself, he largely repeated the
arguments he made in Gardiner I as to why Anderson was not
entitled to attorney fees under the lease agreement. As the court of
appeals had already rejected this argument in Gardiner I, it issued
an order of affirmance (Gardiner II), concluding that ―the district
court correctly followed [its] guidance on remand and there [was]
no basis for disturbing [its] prior holding that [Anderson] was
eligible for an award of attorney fees.‖
    ¶10 The court of appeals also concluded that Gardiner’s
continued arguments against Gardiner I were barred by the law of
the case doctrine. More specifically, the court explained that the
mandate rule ―dictates that pronouncements of an appellate court
on legal issues in a case become the law of the case and must be
followed in subsequent proceedings of that case.‖ (Quoting
Thurston v. Box Elder Cnty.,
892 P.2d 1034, 1037
 (Utah 1995).) And
it concluded that ―[a]pplication of the mandate rule effectively
disposes of [Gardiner’s] claims.‖
  ¶11 Following the court of appeals’ decision in Gardiner II,
Gardiner once again petitioned for certiorari. We denied the
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                       Opinion of the Court

petition. In doing so, we granted Anderson’s request for attorney
fees incurred in responding to the petition. And we remanded to
the district court ―for the limited purpose of ascertaining the
amount of those fees.‖
    ¶12 On remand, Anderson sought attorney fees for 33.75
hours spent preparing the opposition brief filed in the court of
appeals and 6.25 hours spent responding to Gardiner’s petition
for certiorari. Gardiner did not oppose the fees associated with the
petition at that time, but he did oppose the 33.75 hours of work
associated with the proceeding in the court of appeals. He argued
that since the court of appeals’ order of affirmance did not
explicitly award Anderson any attorney fees, the district court
could not award any fees for time spent on that appeal. Gardiner
also argued that ―[t]he hours purportedly incurred in preparing
the opposition brief filed in the Court of Appeals‖ were ―grossly
exaggerated and unreasonable.‖
   ¶13 The district court rejected Gardiner’s arguments. And on
January 13, 2022, it awarded Anderson $9,000 in attorney fees and
$162 in costs.
                            Third Appeal
    ¶14 This brings us to the present appeal, which is Gardiner’s
third in this case. Gardiner appealed the district court’s January
2022 order awarding attorney fees. He then requested that we
retain the case and overturn the court of appeals’ decision in
Gardiner I because, according to Gardiner, ―the Court of Appeals
got the law wrong.‖ We retained Gardiner’s appeal, but we made
it clear in a scheduling order that the only issue properly before us
was the amount of fees the district court calculated on remand.
                    STANDARD OF REVIEW
   ¶15 ―Calculation of reasonable attorney fees is in the sound
discretion of the trial court . . . .‖ Dixie State Bank v. Bracken,
764 P.2d 985, 988
 (Utah 1988) (citation omitted). We will not
disturb the trial court’s fee calculation absent a showing that the
court abused its discretion.
Id.
 (citation omitted).
                            ANALYSIS
    ¶16 The only issue before us in this appeal is the
reasonableness of the district court’s January 2022 award of
attorney fees. We begin by discussing Gardiner’s failure to
address this issue, and we conclude that this results in Gardiner
waiving any challenge to the amount of the district court’s fee

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award. We then address Anderson’s request for attorney fees
incurred on this appeal, and we conclude that such an award is
appropriate.
                            I. WAIVER
    ¶17 In this case, we issued a narrow scheduling order, which
instructed the parties that the ―sole issue that will be considered
on appeal is whether the district court erred in setting the amount
of the fees specified in its January 13, 2022 order.‖ Gardiner has
interpreted this scheduling order to allow him to relitigate his
arguments about why Anderson is not entitled to fees under the
lease agreement. His interpretation of our order is incorrect. As
the court of appeals made clear in Gardiner II, its decision in
Gardiner I—that Anderson is eligible for attorney fees under the
reciprocal fee statute—is the law of the case. That means the issue
is not up for reconsideration or relitigation. So our review is
confined to the reasonableness of the district court’s $9,162
attorney fee award in January 2022.
    ¶18 However, Gardiner fails to address the amount of the
district court’s fee award. At the district court level, Gardiner did
make several arguments against the $9,162 figure. See supra ¶ 12.
Yet on appeal, Gardiner abandons these arguments. Instead, he
attempts to persuade us to overturn Gardiner I.
    ¶19 By failing to address the fees calculated in the January 13,
2022 order, Gardiner has waived his right to challenge their
reasonableness. State v. Johnson,
2017 UT 76, ¶ 16
,
416 P.3d 443
(―When a party fails to raise and argue an issue on appeal . . . that
issue is waived and will typically not be addressed by the
appellate court.‖ (citing Allen v. Friel,
2008 UT 56
, ¶¶ 7–8,
194 P.3d 903
)). Accordingly, we will not disturb the district court’s
award of attorney fees.
                       II. ATTORNEY FEES
    ¶20 Anderson argues that he should be granted the attorney
fees that he has incurred on this appeal. Where a ―party entitled to
attorney fees below prevails on appeal, [an] award of attorney
fees on appeal is proper.‖ Meadowbrook, LLC v. Flower,
959 P.2d 115, 120
 (Utah 1998) (citing R & R Energies v. Mother Earth
Indus.,
936 P.2d 1068, 1081
 (Utah 1997)). As discussed, the law of
the case establishes that Anderson was properly awarded his
attorney fees in the district court. And Anderson has now
prevailed in the instant appeal. Accordingly, we grant Anderson’s


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request for the reasonable attorney fees that he has incurred in
defending against this appeal.
                        CONCLUSION
    ¶21 After Gardiner I, Gardiner owed Anderson $26,412.58 in
attorney fees and costs. On remand after Gardiner II, the district
court awarded Anderson an additional $9,000 in attorney fees and
$162 in costs. This is the award before us here, and we affirm the
district court’s order.
   ¶22 We now grant Anderson’s request for attorney fees
incurred on this appeal. And we remand to the district court for
the limited purpose of ascertaining the amount of those fees.




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