HARRIS, Judge
Opinion Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 150900747 Gary L. Johnson, Zachary E. Peterson, and Cortney Kochevar, Attorneys for Appellant Gary R. Guelker, Attorney for Appellee JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN concurred. HARRIS, Judge: ¶1 Sara Skolnick, a physician, entered into a written employment agreement (the Employment Agreement) with Exodus Healthcare Network, PLLC (Exodus), a medical services company. Pursuant to that agreement, Skolnick agreed to work in two of Exodus's medical clinics, and Exodus agreed to pay Skolnick for her services. Near the end of Skolnick's first year of employment, Exodus stopped paying Skolnick, and Skolnick sued for breach of contract. The district court entered summary judgment in Skolnick's favor, and also ordered Exodus to pay Skolnick's attorney fees. Exodus now appeals, and we affirm the district court's entry of summary judgment on Skolnick's claim for breach of contract. We also affirm the district court's conclusion that Skolnick is entitled to recover attorney fees. But we reverse the district court's decision to award Skolnick the entire amount of fees she requested, and remand the case for entry of judgment in a lower amount, as well as for quantification of the attorney fees Skolnick incurred on the successful portion of her defense of Exodus's appeal.
BACKGROUND
¶2 Exodus owns and operates health care clinics in Salt Lake County, Utah, and employs physicians to provide a wide array of medical services. In November 2013, Exodus entered into the Employment Agreement with Skolnick, a licensed obstetrician and gynecologist. That agreement called for a three-year initial term of employment, starting on February 1, 2014, with a renewal provision that could potentially extend Skolnick's term of employment beyond three years. Under the agreement, Exodus was to pay Skolnick a "[m]onthly [b]ase [c]ompensation" payable in biweekly installments. ¶3 At about the same time, Skolnick also entered into a separate agreement (the Recruitment Agreement) with Jordan Valley Medical Center (Hospital), a local hospital. The Recruitment Agreement was intended to work in tandem with the Employment Agreement, and each incorporated the other. determining that rule 73 of the Utah Rules of Civil Procedure gave Exodus only seven days—rather than fourteen—to object to Skolnick's fees motion. The court reinstated its February 16 judgment, awarding Skolnick $42,489.50 in attorney fees.
Skolnick, Hospital, and Exodus entered into this tripartite arrangement in an effort to comply with the provisions of the Stark Law, 42 U.S.C. § 1395nn (2012), a federal law which limits the ability of physicians to refer Medicare or Medicaid patients to hospitals with which they have financial relationships, but contains an exception for physician recruitment. See, e.g., United States ex rel. Bartlett v. Ashcroft, 39 F. Supp. 3d 656, 661-62, 669 (W.D. Pa. 2014); see generally 61 Am. Jur. Proof of Facts 3d 245 (2018). In this case, we are not asked to determine whether this arrangement is in fact in compliance with the Stark Law.
The last check Skolnick received from Exodus was dated December 6, 2014, and covered the pay period between November 22 and December 6, 2014, although Exodus stopped payment on this check before Skolnick could access the funds.
Hospital also filed suit against Skolnick and Exodus, alleging breach of the Recruiting Agreement, and that case was consolidated with Skolnick's suit against Exodus. Hospital has since settled its claims against both Skolnick and Exodus, and is not a party to this appeal.
ISSUES AND STANDARDS OF REVIEW
¶11 Exodus now appeals, and asks us to consider two issues. First, Exodus argues that the district court erred by entering summary judgment in Skolnick's favor on her claim for breach of contract. "Questions of contract interpretation not requiring resort to extrinsic evidence are matters of law, which we review for correctness." Fort Pierce Indus. Park Phases II, III & IV Owners Ass'n v. Shakespeare, 2016 UT 28, ¶ 15, 379 P.3d 1218 (quotation simplified). We review a court's grant of summary judgment "for correctness, with the facts and all reasonable inferences drawn therefrom being viewed in the light most favorable to the nonmoving party." Id. ¶ 17 (quotation simplified). ¶12 Second, Exodus asserts that the district court erred by determining that it had only seven—rather than fourteen—days to respond to Skolnick's attorney fees request, and by accordingly refusing to consider its memorandum in opposition and thereafter awarding Skolnick $42,489.50 in attorney fees. "The interpretation of a rule of procedure is a question of law that we review for correctness." Gardiner v. Taufer, 2014 UT 56, ¶ 13, 342 P.3d 269 (quotation simplified).
ANALYSIS
I
¶13 Exodus's first challenge is to the district court's substantive ruling on Skolnick's claim for breach of contract. Exodus maintains that its contractual obligation to pay Skolnick was contingent on a condition precedent, namely, that Hospital would provide the funds from which Skolnick's salary would be ¶23 For all of these reasons, we reject Exodus's argument that its obligation to pay Skolnick for her services was contingent on receiving the guaranteed monthly payment from Hospital. Under the plain language of the Employment Agreement, Exodus made a covenant to pay Skolnick. Its failure to do so constituted a breach of contract. We therefore affirm the district court's grant of summary judgment in Skolnick's favor.
Exodus also argues in its brief that Hospital's "failure to provide [g]uaranteed [m]onthly [a]mount payments frustrated the purpose" of the two agreements and therefore "excused Exodus'[s] performance." Frustration of purpose is one of "[t]hree distinct grounds for discharge of the obligor's duty" under a contract. See Restatement (Second) of Contracts, Chapter 11 Introductory Note (Am. Law Inst. 1981). "Frustration of purpose differs from the defense of impossibility only in that performance of the promise, rather than being impossible or impracticable, is instead pointless." Tech Center 2000, LLC v. Zrii, LLC, 2015 UT App 281, ¶ 32, 363 P.3d 566 (quotation simplified). It was certainly not impracticable for Exodus to pay Skolnick; indeed, Exodus makes no argument that it lacked the ability to pay Skolnick for her services. Likewise, it was certainly not "pointless" for Exodus to pay Skolnick—after all, she continued to work for Exodus and generate accounts receivable on its behalf. Accordingly, Exodus cannot demonstrate the elements of a "frustration of purpose" defense, and therefore we conclude that Exodus was not relieved of its contractual obligations due to frustration of purpose.
II
¶24 Exodus's second challenge is to the district court's interpretation and application of rule 73 of the Utah Rules of Civil Procedure. Exodus argues that the court erred by allowing Exodus only seven days to object after Skolnick filed a motion to recover attorney fees. We find this argument persuasive. ¶25 Rule 73(d) sets forth an expedited procedure for litigation regarding the amount of attorney fees, if "liability for fees" has already been decided. See Utah R. Civ. P. 73(d). Under that procedure, a party seeking fees may opt not to file a motion and, instead, may rely only on the filing of "an affidavit and a separate motion—rather than merely a declaration and a proposed judgment, as the court asked her to do—meant that, pursuant to rule 7(d)(1), Exodus had fourteen days to file any opposition to that motion. Therefore, the opposition memorandum that Exodus filed on February 16 was timely, and the court erred by determining otherwise. ¶31 In the unusual procedural posture of this case, the district court actually considered and ruled upon Exodus's challenge to Skolnick's claimed amount of attorney fees and, in a (subsequently vacated) February 28 ruling, determined that a "reasonable" amount of fees for Skolnick to be awarded under the circumstances was $24,300. Neither party challenges the district court's reasonableness determination on appeal, not even as an alternative argument. Accordingly, we see no need to remand the case for further proceedings regarding the reasonableness of Skolnick's claimed fees; instead, we simply vacate the court's March 27 order, due to the court's erroneous ruling that Exodus's opposition memorandum was untimely, and reinstate the district court's February 28 ruling regarding the reasonableness of Skolnick's attorney fees, and remand for entry of judgment in keeping with that ruling.
In our view, this interpretation is consistent with the intentions of the rule's drafters, as expressed in the language of rule 73, although we acknowledge that the language of the rule could potentially be worded more clearly. If our interpretation is not in harmony with the intent of the rule's drafters, we encourage the supreme court, through its Advisory Committee on the Rules of Civil Procedure, to consider revising the rule. --------
III
¶32 Finally, we must consider whether, and to what extent, Skolnick is entitled to recover the attorney fees she incurred on appeal. "When a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal." Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998) (quotation simplified). ¶33 When attorney fees are awarded under a contractual provision, the award "is allowed only in accordance with the terms of the contract." See R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 17, 40 P.3d 1119. The Employment Agreement states that, "[i]n the event of a dispute between the parties arising under this Agreement, the party prevailing in such dispute shall be entitled to collect such party's costs from the other party, including without limitation court and investigation costs and reasonable attorneys' fees and disbursements." In ordinary situations, "determining the 'prevailing party' for purposes of awarding fees and costs is quite simple. Plaintiff sues defendant for money damages; if plaintiff is awarded a judgment, plaintiff has prevailed." Myrah v. Campbell, 2007 UT App 168, ¶ 32, 163 P.3d 679 (quotation simplified). However, when a party "did not retain all of their trial victory on appeal . . . some adjustment may be necessary so that they do not recover fees attributable to issues on which they did not prevail." Valcarce, 961 P.2d at 319 (quotation simplified); cf. Gilbert Dev. Corp. v. Wardley Corp., 2010 UT App 361, ¶ 52, 246 P.3d 131 (stating that "[i]f attorney fees are recoverable by contract, a party is entitled only to those fees attributable to the successful vindication of contractual rights" (quotation simplified)). ¶34 In this appeal, Skolnick clearly prevailed on the issue we discussed above, in Part I, regarding the meaning of the payment provision in the Employment Agreement. But we cannot plausibly conclude that Skolnick prevailed on the attorney fees and rule interpretation issue discussed in Part II; indeed, on that issue, Exodus substantially prevailed. We therefore grant Skolnick's request for fees on appeal insofar as it pertains to her successful defense of the interpretation of the Employment Agreement, but deny her request for fees on appeal incurred in the defense of her interpretation of rule 73. See generally Dale K. Barker Co., P.C. v. Bushnell, 2010 UT App 189, ¶ 19, 237 P.3d 903 (awarding fees incurred on appeal for the "successful defense of the [district] court's breach of contract determinations" but declining to award fees "associated with [the party's] unsuccessful arguments related to the [district] court's original determination of attorney fees and costs"). Accordingly, we remand this case to the district court for a determination of the amount of attorney fees and costs reasonably incurred and recoverable on appeal.
CONCLUSION
¶35 We conclude that Exodus's obligation to pay Skolnick was not subject to any condition precedent, and therefore affirm the district court's grant of summary judgment in favor of Skolnick on her claim for breach of the Employment Agreement. We also affirm the district court's determination that Skolnick is entitled to recover attorney fees pursuant to the Employment Agreement. The district court erred, however, when it determined that rule 73 provided Exodus only seven days to respond to Skolnick's separately-filed motion for attorney fees, and therefore the district court should have considered Exodus's opposition memorandum. Accordingly, we vacate the district court's March 27 order, and reinstate the district court's February 28 ruling and order, and remand the case for entry of judgment in keeping with that order, and for quantification of Skolnick's attorney fees incurred on the successful portion of her defense of this appeal.