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Third District, Murray Department
The Honorable Michael K. Burton

Attorneys:
James T. Dunn, Midvale, for Appellant
Robert G. Gilchrist, Salt Lake City, for Appellee

Before Judges Wilkins, Billings, and Jackson.
JACKSON, Judge:

"[A] trial court's interpretation of the words of an unambiguous, integrated contract is a question of law, which is reviewed on appeal for correctness. Whether ambiguity exists in a contract is itself a question of law." Crowther v. Carter, 767 P.2d 129, 131 (Utah Ct. App. 1989) (citations omitted).

The relevant portions of the Three Fountains Declaration of Covenants, Conditions, and Restrictions are not ambiguous. Article 6 provides that the Management Committee

shall have no authority to acquire and pay for out of the common expense fund capital additions and improvements (other than for purposes of replacing portions of the Common Area, subject to all the provisions of this Declaration) having a cost in excess of Three Thousand Dollars ($3,000.00).

"Capital improvements are 'betterments of a long lasting nature which add to the capital value of the property.'" Bettinger v. Bettinger, 793 P.2d 389, 393 (Utah Ct. App. 1990) (citations omitted). Here, the repairs made to the swimming pool and clubhouse qualify as capital improvements because they replaced deteriorating parts of the structures, with the effect of increasing the worth of the facilities. As they now stand, the facilities are rejuvenated and improved. As capital improvements, the repairs (which exceed the $3,000 threshold by some $292,000) would require approval of a majority of the owners. However, Article 6 provides an exception: Capital improvements over $3,000 do not require owner approval if they are for the purpose of "replacing portions of the Common Area."

In this case, the improvements to the swimming pool and clubhouse replaced deteriorating and unsafe portions of the common areas. No new structures were built or amenities added. Rather, the unusable swimming pool and deteriorating clubhouse were refurbished and parts of them replaced by new structures. Consequently, we conclude that the improvements replaced portions of the common areas, and no owner approval was required for the Board to proceed. Accordingly, we uphold the trial court's ruling on this issue.⁽¹⁾

We reject Leigh's contention that a proffer of attorney fees is insufficient evidence to support the trial court's award of $7,500 in attorney fees to Three Fountains. "[A]ttorney fees are routinely established by proffer or affidavit . . . ." Meadowbrook, LLC v. Flower, 959 P.2d 115, 119 (Utah 1998); see also Walther v. Walther, 709 P.2d 387, 388 (Utah 1985) (rejecting challenge to reasonableness of fees when challenger did not object to proffer or cross-examine opposing counsel). Accordingly, we affirm the trial court's award of attorney fees.

Affirmed.
 
 

______________________________
Norman H. Jackson, Judge

WE CONCUR:
 

______________________________
Michael J. Wilkins,
Associate Presiding Judge
 

______________________________
Judith M. Billings, Judge

1. Based on our disposition of this issue, we do not address the merits of Leigh's argument that Three Fountains improperly "lumped" the special assessments and common area fees.