Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 2003 Thrifty Payless dba Rite Aid v. Hillside Plaza, LTD dba Hillside Plaza Properties : Brief of Appellee Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca2 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Bruce Wycoff; Billie Siddoway; Jones, Waldo, Holbrook & McDonough; Cynthia K.C. Meyer; Attorneys for Plaintiff/ Appellee. Scott .O Mercer; Ryan B. Hancey; Kesler & Rust; Attorneys for Defendant/ Appellant. Recommended Citation Brief of Appellee, Thrifty Payless dba Rite Aid v. Hillside Plaza, LTD dba Hillside Plaza Properties, No. 20030129 (Utah Court of Appeals, 2003). https://digitalcommons.law.byu.edu/byu_ca2/4205 This Brief of Appellee is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. IN THE UTAH COURT OF APPEALS THRIFTY PAYLESS, INC., d/b/a RITE AID Plaintiff/ Appellee v. HILLSIDE PLAZA, LTD., d/b/a HILLSIDE PLAZA PROPERTIES Defendant / Appellant BRIEF OF APPELLEE RITE AID HILLSIDE PLAZA, LTD., d/b/a HILLSIDE PLAZA PROPERTIES, No. 20030129-CA Plaintiff/Appellant, v. THRIFTY PAYLESS, INC. and AMERICAN DRUG STORES, INC. Defendants/Appellees. Appeal from the Third Judicial District Court of Salt Lake County, State of Utah The Honorable Timothy R. Hanson Bruce Wycoff (#4448) BiliieSiddoway(#9710) JONES, WALDO, HOLBROOK & MCDONOUGHPC 170 South Main #1500 Lake City, Utah 84101 Telephone: (801)521-3200 Attorneys for Plaintiff/Appellee Scott O. Mercer Ryan B. Hancey KESLER & RUST 36 South State Street, Suite 2000 Salt Lake City, Utah 84111 Attorneys for Defendant / Appellant JUL 1 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Paulette Stagg Machine-generated OCR, may contain errors. Clerk of the Court IN THE UTAH COURT OF APPEALS THRIFTY PAYLESS, INC., d/b/a RITE AID Plaintiff/ Appellee v. HILLSIDE PLAZA, LTD., d/b/a HILLSIDE PLAZA PROPERTIES Defendant / Appellant BRIEF OF APPELLEE RITE AID HILLSIDE PLAZA, LTD., d/b/a HILLSIDE PLAZA PROPERTIES, No. 20030129-CA Plaintiff/Appellant, v. THRIFTY PAYLESS, INC. and AMERICAN DRUG STORES, INC., Defendants/Appellees. Appeal from the Third Judicial District Court of Salt Lake County, State of Utah The Honorable Timothy R. Hanson Bruce Wycoff (#4448) BillieSiddoway(#9710) JONES, WALDO, HOLBROOK & MCDONOUGH PC 170 South Main #1500 Lake City, Utah 84101 , Telephone: (801)521-3200 Attorneys for Plaintiff/Appellee Scott O. Mercer Ryan B. Hancey KESLER&RUST 36 South State Street, Suite 2000 Salt Lake City, Utah 84111 Attorneys for Defendant / Appellant Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. TABLE OF CONTENTS Table of Authorities iii Statement of Jurisdiction 1 Statement Regarding the Issues 1 Determinative Constitutional Provisions, Statutes, Ordinances and Rules 3 Statement of the Case 4 I. Nature of the Case 4 II. Course of the Proceedings 4 III. Statement Regarding the Trial Court's Findings of Relevant Facts 4 Summary of Argument 8 Argument 10 I. Hillside Was Not, and Is Not, Entitled to Summary Judgment 10 A. Hillside Never Raised the Rule 4-501 Issue before the Trial Court 11 B. This Court Should View the Facts in a Light Most Likely to Create Factual Questions 12 C. A Party Seeking Summary Judgment Has the Burden of Establishing All "Facts" By Competent Evidence; Until the Movant Does So, the Non-Moving Party Has No Duty to Respond 12 D. Hillside Did Not Prove the Absence of Factual Issues Regarding the January 21, 1997 Letter on Which It So Heavily Relies 13 1. Hillside Did Not "Properly Support" Its Naked Assertion That It "Sent" the Annette Johnson Letter to Rite Aid 14 2. Rite Aid "Specifically Controverted" Hillside's Claim That It Sent the Annette Johnson Letter 16 II. Rite Aid Properly Interpreted Hillside's September 2, 1996 Letter (Exhibit 3) as Changing the Address Only for Rent and Rent-Related Correspondence; Rite Aid Timely Sent Its Renewal Notice to the Correct Address 17 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. I A. The Trial Court Found Exhibit 3 to Be Unambiguous 17 1. Exhibit 2 Sets the Stage for Exhibit 3 by Providing a Change of Address for All Mail 18 2. Hillside Management Sends Exhibit 3, Providing a Change of Address for Rent Payments Only 19 3. The Dispute before this Court Is Whether Rite Aid Sent Its Notice of Renewal to the Correct Address 19 B. Analysis of the Evidence 21 1. The Trial Court Properly Admitted Baker's Testimony to Address Factual Questions regarding Common Practices in the Commercial Leasing Industry 24 2. Hillside's Alleged Impeachment of Baker's Testimony Does Not Alter the Court's Findings of Fact or Have Any Impact on the Outcome of the Case 25 3. Hillside's Correspondence with Reth Did Not Effectively Change the Address to which Rite Aid Should Send Legal Notices 28 4. Nothing in Exhibit 55 Effectively Changed Hillside's Address for Legal Notices 31 III. Even if Rite Aid Were Mistaken In Its Reading of Exhibit 3, the Trial Court Correctly Found that Mistake to be Equitably Excused 322 IV. The Trial Court's Attorney Fee Award to Rite Aid Was Justified and Proper 388 A. The Lease Provides that Hillside, As the Breaching Party, Is Liable to Rite Aid for Attorneys Fees 388 B. The Trial Court Did Not Abuse Its Discretion in Awarding Attorney Fees in a Reasonable Amount 40 Conclusion 43 ADDENDA A. Findings of Fact & Conclusions of Law & Order (R. 975-988) B. March 19, 1992 Letter from CPMC (Exhibit 2) C. September 2, 1996 Letter from Annette Johnson (Exhibit 3) D. Lease (Exhibit 51) Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. TABLE OF AUTHORITIES Page CASES Badger v. Brooklyn Canal Co., 966 P.2d 844 (Utah 1998) 11 Bank of Salt Lake v. The Corp. ofPres. of the Church of Jesus Christ ofLatter- Day Saints, 534 P.2d 887 (Utah 1975) 30 Craig Food Industrial v. Weihing, 746 P.2d 279 (Utah 1987) 24 DeBry v. Cascade Enterprises, 935 P.2d 499 (Utah 1984) 1 Dixie State Bank v. Bracken, 764 P.2d 985 (Utah 1988) 38, 40, 43 Eggett v. Wasatch Energy Corp., 2001 UT App 226, f 42, 29 P.3d 668, 676 23 Estate Landscaping & Snow Removal v. Mountain States Telegraph & Telegraph Co., 844 P.2d 322 (Utah 1992) 1,12 Faulkner v. Farnsworth, 665 P.2d 1292 (Utah 1983) 17 Geisdorfv. Doughty, 972 P.2d 67 (Utah 1998) 2, 34, 35 Grobergv. Housing Opportunities, Inc., 2003 UT App 67, 68 P.3d 1015 11 Hardy v. Prudential Insurance Co. of Am., 763 P.2d 761 (Utah 1988) 30 Harris v. IESAssocs. Inc., 2003 UT App. 112, 69 P.3d 297 2, 8, 23 Katz v. Pierce, 732 P.2d 92 (Utah 1986) 11 Kuhre v. Goodfellow, 2003 UT App 85,17, 69 P.3d 286 12 Lefavi v. Bertoch, 2000 UT App 5, 994 P.2d 817 7 Litster v. Utah Valley Community College, 881 P.2d 933 (Utah Ct. App. 1994) 14 Martindale v. Adams, 111 P.2d 514 (Utah Ct. App. 1989) 43 Petersen v. Board of Education Of Davis County School Dist., 855 P.2d 241 (Utah 1993) 12 Provo River Water Users Associate v. Morgan, 857 P.2d 927 (Utah 1993) 2, 17, 23 R&R Energies v. Mother Earth Indus., Inc., 936 P.2d 1068 (Utah 1997) 17 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR,iii may contain errors. Richard Barton Enterprises v. Tsern, 928 P.2d 368 (Utah 1996) 3, 40, 43 Saunders v. Sharp, 806P.2d 198 (Utah 1991) 34 Smith v. Four Corners Mental Health Center, Inc., 2003 UT 23, 70 P.3d 904 12, 13 Sprouse v. Jager, 806 P.2d 219 (Utah Ct. App. 1991) 17, 22, 24 State v. Ashe, 745 P.2d 1255 (Utah 1987) 25 Thrifty Payless v. Hillside Plaza Ltd., 2001 UT App 296 (Utah Ct. App. 2001) 38 Trolley Square Associates v. Nielson, 886 P.2d 61 (Utah Ct. App. 1994) 3, 34 U.S. Realty 86 Assocs. v. Security Inv., Ltd., 2002 UT 14,40 P.3d 586 2, 3, 34, 37 Utah Coal & Lumber Restaurant, Inc. v. Outdoors Adventures Unlimited, 2001 UT 100,40 P.3d 581 2, 34-37 Zions First National Bank, N.A. v. National America Title Ins. Co., 749 P.2d 651 (Utah 1988) 3,38 Zions First National Bank v. Clark Clinic Corp., 762 P.2d 1090 (Utah 1988) 29 STATE STATUTES Utah Rule of Appellate Procedure 24(a)(5)(A) 1 Utah Rule of Judicial Administration 4-501 8, 11, 13 OTHER AUTHORITIES None Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. TABLE OF AUTHORITIES CASES Badger v. Brooklyn Canal Co., 966 P.2d 844 (Utah 1998) Bank of Salt Lake v. The Corp. of Pres. of the Church of Jesus Christ of Latter-Day Saints, 534 P.2d 887 (Utah 1975) Craig Food Indus, v.