Thrifty Payless v. Hillside

Thrifty Payless v. Hillside

IN THE UTAH COURT OF APPEALS

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Thrifty Payless, Inc., a California corporation dba Rite Aid,

Plaintiff and Appellee,

v.

Hillside Plaza Ltd., a California partnership dba Hillside Plaza Properties; and Collier's Property Management, a Utah general partnership,

Defendants and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030129-CA
 

F I L E D
(March 11, 2004)
 

2004 UT App 55

 

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Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Ryan Hancey and Scott O. Mercer, Salt Lake City, for Appellant

Bruce Wycoff, Billie Siddoway, and Mark J. Williams, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Jackson.

BILLINGS, Presiding Judge:

Hillside Plaza, Ltd. (Hillside) appeals from the trial court's (1) order declaring that Thrifty Payless, Inc. (Thrifty) had renewed its lease with Hillside (Lease) and (2) judgment awarding attorney fees to Thrifty under the terms of the Lease. We affirm.

Hillside argues that the trial court erred by finding that Thrifty had renewed the Lease because the evidence introduced at trial was insufficient to support this conclusion. Specifically, Hillside argues that Thrifty failed to exercise its option to renew because Thrifty mailed its notice of renewal to Hillside's former management company (CPMC) rather than to Hillside itself. Thrifty does not dispute that it mailed its renewal notice to CPMC, but rather contends that this is precisely where it was required to mail the notice of renewal. In support of this contention, Thrifty argues that (1) the Lease required changes to the address for legal notices to be in writing, (2) on March 19, 1992, Hillside had specified in writing that "rental payments and mail" should be sent to CPMC, and (3) while Hillside had specified in a letter dated September 2, 1996, that "future rent payments" were to be sent directly to Hillside instead of CPMC, Hillside had not specified that any other mail, including legal notices, was to be sent directly to Hillside instead of CPMC.

We agree with the trial court's determination that the September 2, 1996 letter is unambiguous and states that only rent payments should be mailed directly to Hillside rather than CPMC. Thus, the September 2, 1996 letter had no legal effect upon where Thrifty was required, under the Lease, to mail its renewal notice.(1)

Because the September 2, 1996 letter is unambiguous, parol evidence cannot expand its limited legal effect. See Glauser Storage, L.L.C. v. Smedley, 2001 UT App 141,¶21, 27 P.3d 565 (noting that extrinsic evidence is not admissible to interpret terms of an unambiguous contract). Thus, to demonstrate that Thrifty was required under the Lease to mail legal notices directly to Hillside rather than CPMC, Hillside was required to introduce evidence that it had provided Thrifty written notice, distinct from the September 2, 1996 letter, to that effect.

The only such evidence that Hillside attempted to introduce was a January 21, 1997 letter (Letter), which stated that all "future correspondence and legal invoices" were to be mailed directly to Hillside. While the trial court agreed that the Letter, "as a matter of law, would have been dispositive of the issues at trial in favor of Hillside[,]" the trial court refused to consider the Letter when interpreting the Lease because Hillside had failed to establish either that Hillside mailed the Letter or that Thrifty received it.

Hillside did not present any direct evidence that it mailed the Letter to Thrifty. Hillside also did not present sufficient evidence to warrant an inference of mailing. "Utah common law provides that in order for an inference of mailing to arise, a party must present evidence of an office mailing custom and 'that the particular mailing in question occurred pursuant to the established custom.'" McCoy v. Blue Cross & Blue Shield of Utah, 1999 UT App 199,¶20, 980 P.2d 694 (quoting Lister v. Utah Valley Cmty. Coll., 881 P.2d 933, 940 (Utah Ct. App. 1994)). Because Hillside offered no evidence that it had an office mailing custom and followed that custom by mailing the Letter, the trial court properly excluded the Letter on the ground that there was no evidence that it was sent to or received by Thrifty.(2)

Because Hillside introduced no evidence at trial that it had notified Thrifty in writing, as required by the Lease, to use Hillside's address for future legal notices, the trial court did not err when it found that Thrifty had renewed the Lease by sending its notice of renewal to CPMC.(3)

Hillside also argues that the trial court erred by awarding attorney fees to Thrifty under the Lease. "Whether attorney fees are recoverable in an action is a question of law, which we review for correctness." Chase v. Scott, 2001 UT App 404,¶8, 38 P.3d 1001 (quotations and citation omitted). In the alternative, Hillside argues that the amount of attorney fees awarded by the trial court was unreasonable. "[W]e review a trial court's calculation of reasonable attorney fees for an abuse of discretion." Bakowski v. Mountain States Steel, Inc., 2002 UT 62,¶33, 52 P.3d 1179.

The Lease provides that the "costs, including reasonable attorneys' fees, of any action brought to enforce any of the terms or provisions of this Lease, shall be borne by the party adjudged by the court to have violated any of the terms or provisions of this Lease." We already have interpreted this language in the Lease to entitle the prevailing party to costs and attorney fees in contract disputes regarding the proper interpretation of the Lease. See Thrifty Payless, Inc. v. Hillside Plaza, Ltd., 2001 UT App 296 (mem.). Thus, the trial court did not err by awarding attorney fees to Thrifty in this case.

In the alternative, Hillside argues that the amount of attorney fees awarded by the trial court was unreasonable because (1) the litigation was not complex, (2) Thrifty's use of two law firms was inefficient, and (3) Hillside's attorney fees were less than Thrifty's. The trial court refused to reduce the attorney fees submitted by Thrifty because Hillside failed to provide "any evidence to support its argument." The trial court stated that Hillside's unsupported assertion that using two law firms was inefficient and the mere fact that Thrifty incurred more attorney fees than Hillside "prove nothing in terms of efficiency or reasonableness." We agree. The trial court did not abuse its discretion by refusing to reduce its award of attorney fees as Hillside had requested.

Accordingly, we affirm.

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Judith M. Billings,

Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

1. Hillside also argues that the language of the Lease specifically required Thrifty to send legal notices to the same address as rent payments. While the address provided in the Lease originally was the same for both legal notices and rent payments, the Lease does not require that only one address be used for both purposes.

2. Hillside also argues that the trial court erred by denying its unopposed motion for summary judgment to which Hillside attached the Letter. Because the trial court later, and correctly, found the Letter to be inadmissible, we presume that it was for this reason that the trial court refused to treat the Letter as dispositive when considering Hillside's summary judgment motion. Thus, we find that the trial court did not err when it denied Hillside's motion for summary judgment.

3. Because we hold that the trial court did not err by declaring that Thrifty renewed the Lease, we need not address Thrifty's alternative argument of equitable excuse.