Far West Bank v. Robertson , 2017 Utah App. LEXIS 223 ( 2017 )

2017 UT App 213THE UTAH COURT OF APPEALS
FAR WEST BANK,
Appellee,
v.
MIKE L. ROBERTSON,
Appellant.
Opinion
No. 20150513-CA
Filed November 16, 2017
Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 110402516
Mike L. Robertson, Appellant Pro Se
Steven W. Call and Jonathan A. Dibble, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.1
ORME, Judge:
¶1 Following a trustee’s sale, Appellee Far West Bank2
initiated this action to obtain a deficiency judgment against pro
se Appellant Mike L. Robertson, the sole debtor under a note
1. Judge J. Frederic Voros Jr. participated in this case as a
member of the Utah Court of Appeals. He retired from the court
before this decision issued.
2. While this appeal was pending, Far West’s parent company,
AmericanWest Bank, merged with Banner Bank, at which time
Far West ceased doing business in Utah. Nevertheless, for the
sake of convenience we refer to Appellee as “Far West.”
Far West Bank v. Robertson
that was foreclosed nonjudicially. Robertson asserted several
counterclaims, and the parties filed cross-motions for summary
judgment. Ruling in favor of Far West, the district court
dismissed Robertson’s counterclaims and found him liable for a
deficiency, leaving the issue of the trust property’s fair market
value to be resolved at trial. Ultimately, the court found that Far
West’s credit bid at the trustee’s sale exceeded the fair market
value of the trust property, thus entitling Far West to a
deficiency judgment for the difference between the amount bid
and the amount owed. Robertson now appeals, challenging the
district court’s decision on summary judgment and arguing that
it abused its discretion by excluding the testimony of his
appraiser. We affirm and remand for the limited purpose of
calculating Far West’s attorney fees reasonably incurred on
appeal.3
BACKGROUND4
¶2 On August 21, 2006, Robertson signed a promissory note
(the First Note) in favor of Far West for a $230,000 revolving line
of credit, which Robertson used to fund a business venture.
While there is some dispute as to precisely which financial
services were offered and when, the relevant details are clear
enough. On that same day in August 2006, Robertson, as general
partner of Round Peak Natural Seed Farms, Ltd., executed a
deed of trust with a power of sale provision (the First Trust
3. Since we affirm the district court’s judgment in Far West’s
favor, Far West’s motion to strike portions of Robertson’s reply
brief is moot.
4. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (citation and internal quotation marks omitted).
20150513-CA 2 2017 UT App 213Far West Bank v. Robertson
Deed) in favor of Far West as security for the First Note. A few
months later, the parties agreed to modify the note by raising the
credit line from $230,000 to $500,000.
¶3 Robertson signed a second promissory note (the Second
Note) in favor of Far West on September 12, 2007, this time for a
revolving credit line capped at $250,000. As security for the
Second Note, Robertson, once again acting as general partner of
Round Peak, provided Far West with a second deed of trust (the
Second Trust Deed), which also contained a power of sale
provision. The First and Second Trust Deeds (together, the Trust
Deeds) each encumbered the same real property (the Property).
¶4 On February 19, 2009, Far West mailed Robertson a letter
informing him that both notes were in default. Hoping to
restructure the debt, Robertson initiated a series of negotiations
with Far West that continued through May 1, 2009, on which
date the parties finally signed an agreement. Under that
agreement, Robertson would consolidate his debt under the First
and Second Notes by signing a third note (the Consolidated
Note) in the principal amount of $669,726.32 and an attendant
loan agreement (the Consolidated Loan Agreement). The parties
further agreed that the Consolidated Note would be secured by
the Trust Deeds. Finally, the Consolidated Note and the
Consolidated Loan Agreement each contained a clause stating
that the instrument itself, together with the “loan documents”
and the “related loan documents,” were to be the final
expression of the parties’ agreement.
¶5 Less than two years later, Robertson again began missing
payments. On January 13, 2011, the successor trustee (the
Trustee)5 recorded notices of default under both Trust Deeds.
When more than three months passed without any sign from
5. Far West appointed Steven W. Call as successor trustee under
the Second Trust Deed on January 7, 2011. It appointed Call as
successor trustee under the First Trust Deed a few days later.
20150513-CA 3 2017 UT App 213Far West Bank v. Robertson
Robertson of an intent to cure, the Trustee proceeded with the
nonjudicial foreclosure process by recording a notice of trustee’s
sale for each of the Trust Deeds. The two notices of sale
(together, the Notices of Sale) contained identical property
descriptions, both of which were identical to the property
descriptions contained in the notices of default. Robertson was
timely served with each notice of default and notice of sale.
¶6 On June 1, 2011, Far West purchased the Property at the
Trustee’s sale for a total of $403,000, having credit-bid $268,000
on the First Trust Deed and $135,000 on the Second Trust Deed.
Far West then commenced this action against Robertson for a
deficiency judgment, alleging that its combined credit bids
amounted to a sum greater than the fair market value of the
Property but less than the amount owed.
¶7 Although Robertson had not sought any kind of relief in
the district court prior to the Trustee’s sale, his answer to Far
West’s complaint included a host of counterclaims, including
claims for breaches of contract and the implied covenant of good
faith and fair dealing.6 In support of his counterclaims,
Robertson alleged not only that the Trustee’s sale had been
conducted in an unlawful manner, but also that the foreclosure
process had been unlawful at its inception, as any default on his
part was directly attributable to Far West’s intentional,
substantial breach of what he referred to as the parties’ “ACH
Agreement.”
¶8 Elaborating on the latter claim, Robertson alleged that in
the course of the parties’ negotiations in connection with the
First Note, Far West had granted him permission to initiate
electronic credit and debit entries to Far West accounts for the
purpose of facilitating electronic payments in connection with
his business. While the loan documents relating to the First Note
6. Robertson abandoned his remaining counterclaims on appeal.
Accordingly, we do not address them.
20150513-CA 4 2017 UT App 213Far West Bank v. Robertson
make no mention of this Automated Clearinghouse Agreement
(the ACH Agreement),7 Robertson maintained that both parties
had always understood the service to be integral to the operation
of his business and to their contractual relationship. In response,
Far West admitted that indeed it did sign an “ACH Origination
Agreement” (the Origination Agreement), but not until much
later, on October 14, 2008, as a separate agreement unrelated to
the First and Second Notes. The Origination Agreement, which
Robertson admits to signing in 2008, does not reference any
business loan or trust deed; it does, however, provide that either
party may terminate the agreement on ten days’ notice. In any
event, according to Robertson, the Origination Agreement had
little practical effect other than to reaffirm the terms of what he
insists was the parties’ existing ACH Agreement.
¶9 Having argued that the ACH Agreement lay at the center
of the parties’ contractual relations from the beginning,
Robertson alleged that Far West unilaterally terminated the
ACH service on September 22, 2010, and, by doing so, breached
the Consolidated Loan Agreement and intentionally rendered
his continued performance under the Consolidated Note
“impossible.”8 Refining this argument on summary judgment,
7. “The automated clearinghouse (ACH) system is a nationwide
network through which depository institutions send each other
batches of electronic credit and debit transfers. The direct
deposit of payroll, social security benefits, and tax refunds are
typical examples of ACH credit transfers.” Automated
Clearinghouse Services, Board of Governors of the Federal
Reserve System (May 16, 2016), http://www.federalreserve.gov/
paymentsystems/fedach_about.htm [https://perma.cc/8TH3-
WRHW].
8. For purposes of its motion for partial summary judgment, Far
West stipulated that Robertson did not begin missing payments
on the Consolidated Note until after Far West had terminated
the Origination Agreement.
20150513-CA 5 2017 UT App 213Far West Bank v. Robertson
Robertson produced evidence that Far West had already
terminated its ACH services once before, following his default
on the First Note and the Second Note, but had agreed to resume
the services on the condition that Robertson sign the
Consolidated Note. Accordingly, Robertson argued that, while
neither the Consolidated Note nor the attendant Consolidated
Loan Agreement made any mention of ACH services, there
remained a genuine issue of fact as to whether the parties
intended to include those services as a term of their final
agreement in 2009. He maintained that if the services were
included, then Far West’s act of termination in September 2010
amounted to substantial breach, excusing his continued
performance under the Consolidated Note. The evidentiary
lynchpin in Robertson’s argument is an email from his loan
officer, dated April 30, 2009, which reads, “Mike, [u]pon
completion of the new loan documentation, we will reinstate
your ACH line.”
¶10 Upon consideration of the summary judgment motions
filed by both parties, the district court ruled in favor of Far West,
granting partial summary judgment on its deficiency claim and
dismissing each of Robertson’s counterclaims with prejudice.
With respect to the former, the court concluded that Far West
was entitled to any deficiency that might remain owing on the
Consolidated Note because “[t]he foreclosures of the Trust
Deeds were lawfully conducted in compliance with . . . Utah
law.” With respect to Robertson’s contract counterclaims, the
court concluded that it could resolve the relevant issues without
deciding whether the Consolidated Note and the Consolidated
Loan Agreement comprised a complete integration, meaning the
alleged ACH provision was of no effect.9 Instead, it reasoned
9. As discussed below, our Supreme Court has defined an
“integration” as “‘a writing or writings constituting a final
expression of one or more terms of an agreement.’” Tangren
Family Trust v. Tangren, 2008 UT 20, ¶ 12, 182 P.3d 326 (quoting
Hall v. Process Instruments & Control, Inc., 890 P.2d 1024, 1027
(continued…)
20150513-CA 6 2017 UT App 213Far West Bank v. Robertson
that even if Far West was obligated to provide ACH services in
connection with the loan, Robertson had produced no evidence
that the loan officer intended to “reinstate” any agreement other
than the Origination Agreement, and it stated that
[t]he [Origination Agreement] unequivocally
provided that either party could cancel the
agreement with[] ten . . . days’ notice. The facts are
undisputed that Far West gave more than twenty
. . . days’ notice of cancellation of the [Origination
Agreement] to . . . Robertson and therefore Far
West fully complied with [its] terms . . . .[10]
(…continued)
(Utah 1995)). Further, the Court has explained that once a
writing evidencing a contract is deemed integrated, parol
evidence—that is, “‘evidence of contemporaneous conversations,
representations, or statements offered for the purpose of varying
or adding to the terms of an integrated contract’”—is
inadmissible. Id. ¶ 11 (emphasis in original) (quoting Hall, 890
P.2d at 1026).
10. To the extent Robertson claims the district court improperly
“weighed the evidence and made a finding of fact” that the
parties intended the Consolidated Note and the Consolidated
Loan Agreement to be an integration, he misstates the record.
While the court may have offhandedly referred to the
Origination Agreement as “parol evidence” during the summary
judgment hearing, it adopted no such language in its final order.
Rather, the court’s conclusion that Robertson’s contract
counterclaims should be dismissed was predicated solely on the
basis of the court’s determinations that Far West had lawfully
foreclosed the Trust Deeds and that it had “complied with the
termination terms of the [Origination Agreement]” when
terminating its ACH services. But in any event, as we discuss
below, the district court would have been justified in concluding
(continued…)
20150513-CA 7 2017 UT App 213Far West Bank v. Robertson
¶11 Having resolved all issues of liability on summary
judgment, the court scheduled a trial for July 2, 2013, to address
the narrow questions of “the balance owing under the
[Consolidated Note]” and “the fair market value of the
[Property]” as of the date of the Trustee’s Sale.11 At trial, Far
West called Robertson’s loan officer and an appraiser to testify as
to each issue, respectively. For his part, Robertson testified on his
own behalf, claiming that Far West had credit-bid a sum
substantially lower than the Property’s value. He also sought to
introduce the testimony of his own appraiser. The court
excluded that testimony, however, as Robertson had failed to
identify the witness prior to trial.
¶12 Following trial, the district court found that the balance
owed under the Consolidated Note was $693,513.97, the sale
price was $403,000, and the fair market value of the Property
was $340,000. Accordingly, because “the fair market value of the
[P]roperty . . . at the time of the foreclosure sales was less than
the $403,000 amount [that Far West] credit bid,” the court fixed
the deficiency judgment in the amount of the difference between
what was owed and what was bid.
¶13 Robertson moved for a new trial under rule 59 of the Utah
Rules of Civil Procedure. His motion was denied, and he now
appeals.
(…continued)
that the Consolidated Note and the Consolidated Loan
Agreement were an integration as a matter of law.
11. Section 57-1-32 of the Utah Code provides that a “court may
not render judgment for more than the amount by which the
amount of the indebtedness with interest, costs, and expenses of
sale, . . . exceeds the fair market value of the property as of the
date of the sale.” Utah Code Ann. § 57-1-32 (LexisNexis 2010).
20150513-CA 8 2017 UT App 213Far West Bank v. Robertson
ISSUES AND STANDARDS OF REVIEW
¶14 Although in his brief Robertson articulates six separate
issues for our consideration on appeal, he essentially argues that
the district court committed three errors. First, Robertson
contends that the district court erred by dismissing his
counterclaims for breaches of contract and the implied covenant
of good faith and fair dealing. Second, he maintains that the
court erred by granting partial summary judgment on Far West’s
claim for a deficiency. Finally, Robertson argues that the court
erred at the trial stage by excluding the testimony of his
appraiser.
¶15 We review the district court’s “ultimate grant or denial of
summary judgment for correctness.” Jones & Trevor Mktg., Inc. v.
Lowry, 2012 UT 39, ¶ 9, 284 P.3d 630 (citations and internal
quotation marks omitted). “We give no deference to the district
court’s legal conclusions and consider whether the court
correctly decided that no genuine issue of material fact existed.”
Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 15, 390 P.3d 314(citation and internal quotation marks omitted).
¶16 Our review of the district court’s decision on summary
judgment requires us to review the court’s interpretation of the
parties’ written agreements. “The interpretation of a contract is a
question of law, which we review for correctness, giving no
deference to the ruling of the [trial] court.” McNeil Engineering
& Land Surveying, LLC v. Bennett, 2011 UT App 423, ¶ 7, 268 P.3d
854 (alteration in original) (citation and internal quotation marks
omitted).
¶17 We review the district court’s decision to exclude the
testimony of Robertson’s appraiser under a “bifurcated
standard.” See Glacier Land Co. v. Claudia Klawe & Assocs., LLC,
2006 UT App 516, ¶ 13, 154 P.3d 852. “[T]o the extent the issue
on appeal required the trial court to interpret rules of civil
procedure, it presents a question of law which we review for
correctness.” Id. (citation and internal quotation marks omitted).
20150513-CA 9 2017 UT App 213Far West Bank v. Robertson
However, the court’s decision to impose sanctions, such as the
exclusion of evidence under rule 37 of the Utah Rules of Civil
Procedure, is reviewed for abuse of discretion. Id.ANALYSIS
¶18 We begin by reviewing the district court’s order denying
Robertson’s motion for summary judgment and granting Far
West’s cross-motion for summary judgment on each of
Robertson’s counterclaims. We then review the court’s decision
granting partial summary judgment on Far West’s claim for a
deficiency judgment. We conclude by considering Robertson’s
challenge to the court’s decision excluding the trial testimony of
his appraiser.
I. Robertson’s Counterclaims
¶19 Robertson contends that the district court erred when it
dismissed his counterclaims for breaches of contract and the
implied covenant of good faith and fair dealing. We hold that the
district court properly dismissed the counterclaims.
A. Robertson’s Counterclaim for Breaches of Contract
¶20 Quoting our Supreme Court’s decision in Bullfrog Marina,
Inc. v. Lentz, 501 P.2d 266 (Utah 1972), Robertson maintains that
his counterclaim should have survived summary judgment
under the rule that
where two or more instruments are executed by the
same parties contemporaneously, or at different
times in the course of the same transaction, and
concern the same subject matter, they will be read
and construed together so far as determining the
respective rights and interests of the parties,
although they do not in terms refer to each other.
20150513-CA 10 2017 UT App 213Far West Bank v. Robertson
Id. at 271 (emphasis added). Robertson contends that, given the
alleged centrality of Far West’s ACH services to the parties’
contractual relationship, under the rule in Bullfrog Marina there
remains a genuine issue of fact as to whether the Consolidated
Note and the Consolidated Loan Agreement should be “read
and construed together” with his loan officer’s emailed promise
to “reinstate [the] ACH line.” The issue is material, he argues,
because if the loan officer’s promise to provide ACH services
was an essential term of the parties’ final agreement, then not
only might Far West’s termination of the service have excused
him from making further payments under the Consolidated
Note, but Far West could well be liable to him for any resulting
damages. See Jackson v. Rich, 499 P.2d 279, 280–81 (Utah 1972)
(“‘As a rule, a party first guilty of substantial or material breach
of contract cannot complain if the other party thereafter refuses
to perform. . . . It has also been said that where a contract is not
performed, the party who is guilty of the first breach is generally
the one upon whom rests all the liability for the
nonperformance.’”) (quoting what is now 17 Am. Jur. 2d
Contracts § 589 (2016)). Accordingly, Robertson maintains that
the district court’s dismissal of his counterclaim was premature.
¶21 We agree that, as a general proposition, the question of
whether the parties to a contract intended that a particular
document or set of documents should be deemed to contain the
final and complete expression of their agreement is a question of
fact and, thus, often cannot be resolved on summary judgment.
See City of Grantsville v. Redevelopment Agency, 2010 UT 38, ¶¶ 24,
29, 233 P.3d 461. Nevertheless, we take issue in two respects with
Robertson’s line of reasoning. First, unlike the commercial lease
and employment contract at issue in Bullfrog Marina, it is
unlikely that the email Robertson received from his loan officer
rose to the level of formality characteristic of an “instrument”—
the operative term used in Bullfrog Marina. See Instrument,
Black’s Law Dictionary (9th ed. 2009) (“A written legal
document that defines rights, duties, entitlements, or liabilities,
such as a contract[.]”). Second, and more importantly,
20150513-CA 11 2017 UT App 213Far West Bank v. Robertson
Robertson’s reliance on Bullfrog Marina is at odds with the Utah
Supreme Court’s more recent jurisprudence on the doctrine of
integration.
¶22 An “integration,” our Supreme Court has explained, is “‘a
writing or writings constituting a final expression of one or more
terms of an agreement.’” Tangren Family Trust v. Tangren, 2008
UT 20, ¶ 12, 182 P.3d 326 (quoting Hall v. Process Instruments
& Control, Inc., 890 P.2d 1024, 1027 (Utah 1995)). The effect is that
once a document or set of documents is deemed an integration,
under the parol evidence rule “‘evidence of contemporaneous
conversations, representations, or statements offered for the
purpose of varying or adding to the terms of [the] integrated
contract’” is inadmissible. Id. (emphasis omitted) (quoting Hall,
890 P.2d at 1026). Prior to the Court’s decision in Tangren, trial
courts were essentially required to determine “as a question of
fact” whether the parties adopted a writing or writings as an
integration “[w]henever a litigant . . . ask[ed for] the application
of the parol evidence rule.” Bullfrog Marina, 501 P.2d at 266.
¶23 In Tangren, however, the Court expressly disapproved of
its previous decision in Bullfrog Marina because that decision
permitted the admission of “any relevant evidence” to prove
that a document was not intended to be an integration. Tangren,
2008 UT 20, ¶ 16 & n.20. The Court held in Tangren that, contrary
to the rule it articulated in Bullfrog Marina, trial courts “will not
allow extrinsic evidence of a separate agreement to be
considered on the question of integration in the face of a clear
integration clause.” Id. ¶ 16.
¶24 We conclude that Robertson’s counterclaim for breach of
contract was properly dismissed on summary judgment under
the Tangren rule. Because the Consolidated Note and the
Consolidated Loan Agreement each contained an integration
clause, Robertson was precluded from introducing evidence that
the documents referred to in those clauses did not fully and
finally express the parties’ agreement. Thus, the email from
Robertson’s loan officer was incapable of raising a genuine issue
20150513-CA 12 2017 UT App 213Far West Bank v. Robertson
of fact as to the question of integration as a matter of law, and
Far West was entitled to the benefit of the parol evidence rule on
summary judgment.
¶25 We do observe that under the facts in the instant case, the
rule in Tangren does not lend itself to an altogether
straightforward application. Specifically, we acknowledge that
the instruments’ integration clauses state that the parties’ final
expression of their agreement was not restricted to the four
corners of the instruments themselves, but also included certain
additional, unspecified “loan documents” and “related loan
documents.” Therefore, as a factual matter, it is not
inconceivable that the Origination Agreement—which, after all,
Far West does admit to signing—could be one of the loan
documents referred to.12 But as the district court recognized, this
factual issue, while material to the question of integration, is
nevertheless immaterial to the ultimate question of Far West’s
alleged breach. Even if Far West was bound by the terms of the
Origination Agreement, it is undisputed that it complied with
those terms when it terminated its ACH services in September
2010. Thus, even if we assume that the Origination Agreement
was incorporated into the parties’ final agreement given the
phraseology of the integration clause, the dismissal of
12. Neither the Consolidated Note nor the Consolidated Loan
Agreement defines the terms “loan documents” or “related loan
documents,” but the Consolidated Loan Agreement defines
“Loan,” with our emphasis, as “any and all loans and financial
accommodations from Lender to Borrower whether now or hereafter
existing, and however evidenced.” It further defines “Related
Documents”—again with our emphasis—as “all promissory
notes, credit agreements, loan agreements, . . . and all other
instruments, agreements and documents, whether now or hereafter
existing, executed in connection with the Loan.”
20150513-CA 13 2017 UT App 213Far West Bank v. Robertson
Robertson’s counterclaim would still be appropriate on
summary judgment.13
13. Robertson also argues, in the alternative, that if the
Origination Agreement was integrated into the terms of the
Consolidated Note and the Consolidated Loan Agreement, then
we should hold that the parties’ entire agreement was void ab
initio for want of consideration. Quoting our Supreme Court’s
decision in Resource Management Co. v. Weston Ranch & Livestock
Co., 706 P.2d 1028 (Utah 1985), Robertson contends that
including a provision for termination on ten days’ notice is
tantamount to reserving an “arbitrary right to terminate the
contract.” Id. at 1037. But the Court in Resource Management did
not comment on the enforceability of a notice-termination
provision, see id., and Robertson does not adequately explain
why the principle articulated in that case should have any
application to the facts of this case. In actuality, it does not. As
neither Robertson nor Far West was permitted to terminate the
Origination Agreement except upon ten days’ notice, the terms
of the Origination Agreement were at all times binding upon
both parties for a period of at least ten days. Furthermore, the
Origination Agreement expressly provided that Far West must
fully process any ACH transaction that Robertson might initiate
prior to either party’s giving notice of its intent to terminate.
Finally, courts in other states have uniformly held that the right
to terminate a contract on a specified notice period does not
render a contract void for lack of consideration. See, e.g., Goff v.
Massachusetts Protective Ass’n, 176 N.W.2d 576, 579 (Wis. 1970)
(“[The fact that] both parties had a right on 30-days’ notice to
terminate the agreements does not render the contracts lacking
in mutuality . . . of consideration[.]”). See also, e.g., Strobe v.
Netherland Co., 283 N.Y.S. 246, 253 (App. Div. 1935) (explaining
that, where an employer reserves the right to terminate the
employment contract upon thirty days’ notice, the contract is
“binding for thirty days at least” and is thus not void for lack of
consideration).
20150513-CA 14 2017 UT App 213Far West Bank v. Robertson
¶26 On the other hand, what clearly does not fall within the
ambit of “loan documents” or “related loan documents,” as
those terms appear in the instruments’ integration clauses, is the
email Robertson received from his loan officer the day before the
Consolidated Note and Consolidated Loan Agreement were
signed. Apparently hoping to smuggle an additional ACH term
into the parties’ deal apart from the arrangement provided in the
Origination Agreement, Robertson argues that the loan officer’s
email, which promised to “reinstate [the] ACH line” once the
instruments had been signed, was included among the “loan
documents” referred to in the integration clauses and
“constituted everything the parties had bargained for[.]” We
hold that, on the contrary, the parol evidence rule bars
Robertson from using the email to graft an ACH term, separate
from the arrangement in the Origination Agreement, into the
parties’ bargain.14 See Tangren, 2008 UT 20, ¶ 11 (quoting Hall,
14. Likewise, we reject the argument that the loan officer’s email
had the effect of modifying the Origination Agreement.
Robertson contends that, even if we conclude the Origination
Agreement was the sole source of any obligation Far West had to
provide ACH services under the parties’ arrangement,
nevertheless a triable factual issue remains as to whether the
loan officer’s email effectively modified the Origination
Agreement by excising its permissive termination term. It is
unclear how the loan officer’s bare promise to “reinstate [the]
ACH line” could have accomplished this feat. And Robertson’s
scant reasoning does little to illuminate matters. In any event,
Robertson’s argument fails because it relies on parol evidence to
add to the terms of the Consolidated Note and the Consolidated
Loan Agreement. Even assuming that the Origination
Agreement was incorporated into the Consolidated Note and the
Consolidated Loan Agreement by means of those instruments’
integration clauses, the loan officer’s email remains inadmissible
to vary the terms contained in any document so incorporated,
including the Origination Agreement. Thus, because Robertson
has produced no competent evidence raising a genuine issue of
(continued…)
20150513-CA 15 2017 UT App 213Far West Bank v. Robertson
890 P.2d at 1026) (explaining that “parol evidence” is “‘evidence
of contemporaneous conversations, representations, or
statements offered for the purpose of varying or adding to the
terms of [the] contract’”). If, when drafting the Consolidated
Note and the Consolidated Loan Agreement, the parties had
indeed intended that the emails they exchanged in the days
leading up to the date those instruments were signed should be
included within the sweep of the instruments’ integration
clauses along with “loan documents” and “related loan
documents,” undoubtedly they would have made this explicit.15
(…continued)
fact as to whether the Origination Agreement was modified, his
contention was properly rejected on Far West’s motion for
partial summary judgment. See Waddoups v. Amalgamated Sugar
Co., 2002 UT 69, ¶ 31, 54 P.3d 1054 (“[O]nce the moving party
[who does not bear the burden of proof on the challenged claim
at trial] challenges an element of the nonmoving party’s case on
the basis that no genuine issue of material fact exists, the burden
then shifts to the nonmoving party to present evidence that is
sufficient to establish a genuine issue of material fact.”).
15. Robertson raises yet another argument aimed at
circumventing the Origination Agreement’s termination
provision by characterizing the loan officer’s email as a new
“offer” to provide ACH services apart from the Origination
Agreement, which Robertson then “accepted” the next day by
signing the Consolidated Note and the Consolidated Loan
Agreement. But Robertson’s characterizations do not withstand
even superficial scrutiny. “An acceptance is a manifestation of
assent to an offer, such that an objective, reasonable person is
justified in understanding that a fully enforceable contract has
been made.” Cal Wadsworth Constr. v. City of St. George, 898 P.2d
1372, 1376 (Utah 1995). Robertson maintains that a triable issue
exists as to whether an objective, reasonable person, upon
finding that Robertson had signed the Consolidated Note and
(continued…)
20150513-CA 16 2017 UT App 213Far West Bank v. Robertson
¶27 Accordingly, we hold that since the Consolidated Note
and the Consolidated Loan Agreement each contained an
integration clause, and since the statements contained in the loan
officer’s email did not fall within the scope of those clauses, the
parol evidence rule precluded Robertson from producing
evidence of any ACH term outside the Origination Agreement.
We therefore hold that the district court correctly dismissed
Robertson’s counterclaim for breach of contract on summary
judgment.
B. Robertson’s Counterclaim for Breach of the Implied
Covenant of Good Faith and Fair Dealing
¶28 Robertson also contends that the district court erred in
dismissing his claim for breach of the implied covenant of good
faith and fair dealing. We conclude that it did not.
¶29 Inherent in every contract is “[a]n implied covenant of
good faith and fair dealing.” Eggett v. Wasatch Energy Corp., 2004
UT 28, ¶ 14, 94 P.3d 193. Under the covenant, “both parties to a
contract impliedly promise not to intentionally do anything to
injure the other party’s right to receive the benefits of the
contract.” Id. “However, we will not interpret the implied
(…continued)
the Consolidated Loan Agreement, would be justified in
understanding that Robertson had manifested assent to an offer
from his loan officer on behalf of Far West to provide ACH
services independent of the Origination Agreement. The
problem, however, is that the Consolidated Note and the
Consolidated Loan Agreement make no mention whatsoever of
ACH services. We hold, without hesitation, that no reasonable
person could conclude that an enforceable contract to provide
ACH services was created on the basis of a document that on its
face has nothing at all to do with ACH services. Accordingly,
Robertson has failed to raise a triable issue of fact capable of
surviving summary judgment.
20150513-CA 17 2017 UT App 213Far West Bank v. Robertson
covenant of good faith and fair dealing to make a better contract
for the parties than they made for themselves.” Brown v. Moore,
973 P.2d 950, 954 (Utah 1998).
¶30 The covenant of good faith and fair dealing is subject to
several well-established limiting principles. One is that the
covenant “cannot be read to establish new, independent rights or
duties to which the parties did not agree ex ante.” Oakwood
Village LLC v. Albertsons, Inc., 2004 UT 101, ¶ 45, 104 P.3d 1226.
See Brehany v. Nordstrom, Inc., 812 P.2d 49, 55 (Utah 1991).
Another is that the covenant “cannot create rights and duties
inconsistent with express contractual terms.” Oakwood Village,
2004 UT 101, ¶ 45. See Rio Algom Corp. v. Jimco Ltd., 618 P.2d 497,
505 (Utah 1980). A third is that courts “will not use [the]
covenant to achieve an outcome in harmony with the court’s
sense of justice but inconsistent with the express terms of the
applicable contract.” Oakwood Village, 2004 UT 101, ¶ 45. See
Dalton v. Jerico Constr. Co., 642 P.2d 748, 750 (Utah 1982).
¶31 With these limiting principles in mind, we can dispose of
Robertson’s claim of error in short order. Robertson complains in
his brief that his “whole purpose” for seeking a loan from Far
West in the first instance “was to obtain ACH services for his
business” and that he “relied upon the funds generated from the
ACH Agreement” to make his payments. Whether or not these
assertions are true, they are insufficient to state a claim. Even if
we assume that Far West was obligated to provide ACH services
in connection with the Consolidated Note, we have already
determined that the obligation derived from no source other
than the Origination Agreement. Thus, because Robertson does
not dispute that Far West complied with the Origination
Agreement’s terms when it terminated its ACH services, his
claim fails because the covenant he invokes “cannot be read to
establish new, independent rights or duties to which the parties
did not agree ex ante.” Oakwood Village, 2004 UT 101, ¶ 45.
Accordingly, we hold that the district court properly dismissed
Robertson’s good-faith-and-fair-dealing counterclaim on
summary judgment.
20150513-CA 18 2017 UT App 213Far West Bank v. Robertson
II. Far West’s Deficiency Claim—The Validity of the
Trustee’s Sale
¶32 Robertson next contends that, regardless of whether his
counterclaims were properly dismissed, the district court’s
decision granting partial summary judgment on Far West’s
deficiency claim should be reversed because the Trustee’s sale
was conducted in an unlawful manner. Robertson advances two
grounds for this contention. First, he argues that the district
court wrongly concluded that the Trustee’s Notices of Sale
complied with section 57-1-25(1) of the Utah Code. See generally
Utah Code Ann. § 57-1-25(1) (LexisNexis 2010). Second, he
argues that the district court erred when it did not find that a
genuine issue of fact existed as to whether the Trustee timely
received Robertson’s request for a payoff statement. See id. § 57-
1-31.5(2). We address each of these arguments in turn.
A. Validity of the Trustee’s Sale
¶33 Robertson argues, first, that the Trustee’s Notices of Sale
were deficient under section 57-1-25(1) because they failed to
“particularly describ[e] the property to be sold.” See id. § 57-1-
25(1). In so arguing, he does not dispute that the Notices of Sale
included an accurate metes-and-bounds description of the
Property. In fact, he appears to concede that if the Trustee had
stopped there, the property description would have been
entirely sound. The problem, Robertson maintains, is that the
Trustee went one step further to include, in addition to the metes
and bounds of the Property, a single tax identification number
(TIN). While a TIN is usually a matter of interest only to the
taxpayer and the tax collector, Robertson argues that the
Trustee’s decision to include only one of those TINs “cause[d]
great confusion, which resulted in a [chilling] of the bidding
process” because the Property was comprised of four individual
parcels of land, each of which has a unique TIN.
¶34 Robertson’s point is not wholly without merit. Citing
evidence from the record, he observes that the TIN that made its
20150513-CA 19 2017 UT App 213Far West Bank v. Robertson
way into the Notices of Sale belongs to what was very likely the
least valuable of the four parcels. Robertson illustrates the issue
by posing the following hypothetical: Suppose that the Trustee
were instead trying to sell four houses on contiguous parcels
that together comprised a single neighborhood block. Under
such circumstances, even if the Trustee were to provide potential
buyers with the metes and bounds of the block, it would be
odd—and perhaps suspicious—if he were to include in his
notice of sale the address of only the least valuable of the four
individual houses.16
¶35 Nevertheless, while we agree that the Trustee’s action
likely did not comport with best practices, it is unnecessary to
reach the question of whether the Notices of Sale were sufficient
under the legal standard of section 57-1-25(1). We hold that Far
West was entitled to judgment as a matter of law regardless of
the Notices’ legal sufficiency because, once the sale had been
completed, Robertson was required to adduce evidence of both
defect and prejudice to assert a successful defense.17
16. Of course, the analogy is far from perfect. The street address
of a residential property is a much more meaningful identifier of
real property for prospective buyers than a TIN. The one is
readily discernible from the street; the other is little more than an
invitation to review records at the county offices. The property
description of importance is the legal description—in this case,
the metes-and-bounds description set out in the Notices of Sale.
Among serious potential buyers of property, the legal
description is the one that matters, even though a sophisticated
buyer will no doubt make inquiry if the legal description
appears to cover more ground than a street address or TIN also
included in a notice of sale.
17. When reviewing a summary judgment decision, we are free
to affirm on legal ground other than those adopted by the
(continued…)
20150513-CA 20 2017 UT App 213Far West Bank v. Robertson
¶36 “Unless there is evidence of fraud or other unfair
dealing,” a trustee’s sale once accomplished will not be set aside
unless the trustor can “show he suffered prejudice from some
defect in the sale.” Bank of America v. Adamson, 2017 UT 2, ¶ 23,
391 P.3d 196. This is because “‘the need for finality is at its apex’”
when “‘title to real property is at issue,’” id. ¶ 17 (quoting
American Estate Mgmt. Corp. v. International Inv. & Dev. Corp.,
1999 UT App 232, ¶ 10, 986 P.2d 765), and thus, in most cases the
proper time for a trustor to assert his rights is before the trustee’s
sale has taken place, id. ¶ 16. Furthermore, a trustor “seek[ing] to
have a trustee sale set aside for irregularity, want of notice, or
fraud has the burden of proving his contention” because, absent
“evidence to the contrary,” courts will “presume[] . . . that the
sale was regular.” Concepts, Inc. v. First Sec. Realty Services, Inc.,
743 P.2d 1158, 1159 (Utah 1987).
¶37 In view of these principles, any notice-of-sale
irregularities a trustor may allege in opposition to a trustee’s
summary judgment motion in a post-sale deficiency action are
immaterial if the trustor “does not demonstrate that . . . [there
was] a resulting ‘effect of chilling the bidding and causing an
inadequacy of price.’” Timm v. Dewsnup, 2003 UT 47, ¶ 37, 86 P.3d
699 (emphasis added) (quoting Concepts, 743 P.2d at 1159). See
Gilroy v. Ryberg, 667 N.W.2d 544, 558 (Neb. 2003) (“If the defect
did not result in a reduced sales price, courts have refused to set
aside the sale.”). See also Adamson, 2017 UT 2, ¶ 24 (citing Gilroy
with approval). Cf. Jones v. Johnson, 761 P.2d 37, 41 n.2 (Utah Ct.
App. 1988) (“In both [judicial and nonjudicial] foreclosures[,]
‘substantial inadequacy of price, coupled with fraud, mistake, or
other unfair dealing’ can be the basis for setting aside a
foreclosure sale.”) (emphasis added) (quoting First Nat’l Bank v.
Haymond, 57 P.2d 1401, 1405 (Utah 1936)).
(…continued)
district court. See RJW Media, Inc. v. CIT Group/Consumer Finance,
Inc., 2008 UT App 476, ¶ 36, 202 P.3d 291.
20150513-CA 21 2017 UT App 213Far West Bank v. Robertson
¶38 It is undisputed that Robertson did not raise his
dissatisfaction with the Trustee’s description of the Property
until after the Trustee’s sale had been completed. Therefore, to
defeat Far West’s motion for partial summary judgment by
challenging the sufficiency of the Notices of Sale, it was
incumbent upon him to offer up more than mere speculative,
unsubstantiated allegations that the bidding process was chilled.
Rather, Robertson was required to demonstrate that there
existed a triable issue of fact as to whether he was prejudiced by
an inadequate sale price—a formidable burden where, as here,
the sale price exceeded the fair market value of the Property. See
Timm, 2003 UT 47, ¶ 37. But in any event, Robertson failed to
allege any facts that would support a finding of prejudice.18
¶39 Because Robertson has not demonstrated that the claimed
flaw in the Notices of Sale resulted in the Trustee receiving a
price for the Property that was lower than what would have
been received without the flaw, it makes no difference whether
the property description in the Notices satisfied the legal
standard of section 57-1-25(1). There being no genuine issue of
material fact as to whether Robertson was prejudiced by the
Trustee’s sale, the district court did not err by granting partial
summary judgment in favor of Far West.
B. Payoff Statement Request
¶40 Robertson next contends that partial summary judgment
in Far West’s favor was inappropriate because a genuine issue of
fact exists as to whether the Trustee failed to respond to his
timely request for a payoff statement. Section 57-1-31.5(2) of the
Utah Code provides that “[a]n interested party may submit a
written request to a trustee for a statement of the amount
18. Of course, if Robertson had raised his objections to the
Notices of Sale with the district court before the Trustee’s sale,
and had the district court required that corrected Notices of Sale
be recorded, this problem would have been entirely avoided.
20150513-CA 22 2017 UT App 213Far West Bank v. Robertson
required . . . to pay off a loan secured by a trust deed.” Utah
Code Ann. § 57-1-31.5(2)(a)(i) (LexisNexis 2010). It further
provides that “[a] request for a payoff statement is not timely
unless the trustee receives the request at least 10 business days
before the trustee’s sale,” id. § 57-1-31.5(2)(a)(ii)(B), and that “[i]f,
after scheduling a trustee’s sale, the trustee fails to provide a
requested payoff statement[,] the trustee shall . . . cancel the
trustee’s sale . . . or . . . postpone the trustee’s sale,” id. § 57-1-
31.5(2)(c)(ii). Robertson contends that he raised a triable issue of
fact regarding whether the Trustee received a payoff request at
least ten days prior to the Trustee’s Sale, that is, by May 18, 2011.
¶41 As an initial matter, we take note of what Robertson has
not alleged, namely, that he had access to funds sufficient to cure
the default or that he made any offer to cure the default.
“Generally, ‘[a]n unconditional tender of performance in full by
[the trustor,] even if rejected by the [trustee], . . . if kept good has
the effect of performance’” and will justify setting aside a
trustee’s sale. Capri Sunshine, LLC v. E & C Fox Invs., LLC, 2015
UT App 231, ¶ 15, 366 P.3d 1214 (first alteration in original)
(quoting Restatement (Third) of Property: Mortgages § 6.4(g)
(Am. Law Inst. 1997)). But “simply indicating a willingness to
pay without tendering payment is insufficient for performance,”
id., and we have upheld the dismissal of a complaint seeking to
set aside a trustee’s sale for inadequate compliance with section
57-1-31.5 where the trustor did not “actually offer[] or tender[]
payment to cure the default.” Id. We also observed in Capri
Sunshine that, like here, the trustor “failed to demonstrate . . .
that a violation of [section 57-1-31.5] would support setting . . . [a
completed] trustee’s sale aside.” Id. ¶ 26.
¶42 Notwithstanding these considerations, we conclude that
Robertson’s section 57-1-31.5 defense was properly rejected by
the district court on summary judgment because Robertson
failed to produce evidence sufficient to raise a genuine issue of
material fact. At the relevant time, “Utah Rule of Civil Procedure
56(c) specifically list[ed] the materials that [could] be placed
before the court in a summary judgment action.” White Pine
20150513-CA 23 2017 UT App 213Far West Bank v. Robertson
Ranches v. Osguthorpe, 731 P.2d 1076, 1077 (Utah 1986).19 The rule
provided that the “judgment sought shall be rendered if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact.” Utah R. Civ. P. 56(c) (2014)
(emphasis added). It further provided that “[s]upporting and
opposing affidavits . . . shall set forth such facts as would be
admissible in evidence.” Id. R. 56(e) (emphasis added). Our
Supreme Court has elaborated upon this latter requirement by
stating that “[s]ummary judgment may . . . not be denied based
solely on inadmissible hearsay” from the non-moving party.
Wayment v. Clear Channel Broadcasting, Inc., 2005 UT 25, ¶ 41, 116
P.3d 271.
¶43 Section 57-1-31.5 provides specific rules for determining
when a trustee will be deemed to have received a request for a
payoff statement. The statute explains that “[a] trustee is
considered to have received [a payoff statement request] . . . if
. . . the interested party submitted the request through an
approved delivery method . . . and . . . documentation provided
under [that method] indicates that . . . the request was delivered
to the trustee[.]” Utah Code Ann. § 57-1-31.5(2)(a)(iv) (emphasis
added). Further, it states that an “‘[a]pproved delivery method’
means delivery by . . . certified or registered United States mail
with return receipt requested; or . . . a nationally recognized letter
or package delivery or courier service . . . that provides a service
for . . . tracking the delivery of an item; or . . . documenting . . . that
the item was received by the intended recipient[.]” Id. § 57-1-31.5(1)(a)
(emphasis added).
19. Rule 56 of the Utah Rules of Civil Procedure was amended in
2015 to adopt the language of the corresponding Federal Rule of
Civil Procedure. See Porter v. EB Golf LLC, 2016 UT App 82, ¶ 7
n.3, 372 P.3d 709. We quote the previous version, as it was the
version in effect at the time the motion was argued and decided.
20150513-CA 24 2017 UT App 213Far West Bank v. Robertson
¶44 In support of its motion for partial summary judgment,
Far West included an affidavit from the Trustee averring that he
never received any payoff statement request from Robertson and
that he was never presented with a return receipt requesting his
signature in connection with any such request. Thus, to raise a
genuine issue of fact capable of precluding summary judgment,
it was incumbent upon Robertson to controvert the Trustee’s
affidavit by pointing to evidence from the pleadings,
depositions, answers to interrogatories, admissions, or affidavits
in the record. See Utah R. Civ. P. 56(c). Furthermore, if Robertson
elected to oppose Far West’s motion with an affidavit of his own,
he was limited to “such facts as would be admissible in
evidence.” Id. R. 56(e).
¶45 Robertson failed to produce any evidence of the sort
required to demonstrate that he complied with section 57-1-31.5
by sending his request through an “approved delivery method.”
To support his contention that the Trustee received his request,
Robertson relies on the statements of his own trial counsel at the
summary judgment hearing and a photocopy of a transaction
receipt—not a return receipt—from the United States Postal
Service, showing that he mailed something on May 16, 2011.
Neither is sufficient to controvert the Trustee’s affidavit under
rule 56.
¶46 To begin with, the statements of Robertson’s trial counsel
are not part of the pleadings, depositions, answers to
interrogatories, admissions, or affidavits in the record. Thus,
Robertson cannot rely on them to oppose Far West’s summary
judgment motion. Likewise, the transaction receipt, although
attached to Robertson’s affidavit, failed to raise a triable factual
issue. The affidavit itself asserts only that the request was mailed,
not that it was actually received by the Trustee. Similarly, the
transaction receipt is, at best, only evidence that the request was
mailed and is legally incapable of establishing the Trustee’s
receipt of the request. As stated above, under section 57-1-31.5
Robertson was required to request a return receipt when mailing
his request or else to use a courier “that provides a service for . . .
20150513-CA 25 2017 UT App 213Far West Bank v. Robertson
documenting . . . that the item was received by the intended
recipient.” Utah Code Ann. § 57-1-31.5(1)(a) (LexisNexis 2010).
Moreover, a trustee is considered to have received a request only
if the documentation provided by the chosen courier “indicate[s]
that . . . the request was delivered to the trustee[] or . . . delivery
of the request was refused.” Id. § 57-1-31.5(2)(a)(iv). Robertson’s
receipt does not satisfy these requirements for two reasons. First,
the transaction receipt is not a return receipt. And second, the
transaction receipt is devoid of any indication that the mail
service Robertson utilized would “document[] . . . that the item
was received by the intended recipient.” Id. § 57-1-31.5(1)(a).
¶47 On the latter point, two observations are in order. First,
while nearly all the transaction receipt’s contents were obviously
printed by mechanical means, two brief notes appear to have
been scribbled by hand into the receipt’s lower left-hand margin.
The first reads, “Notice in box: 5-17-2011,” and the second reads,
“Signed: 5-18-2011.” It is impossible to tell who wrote the notes,
or when they were written, as they are accompanied by neither a
name nor a dated signature. Nor does the form of the receipt
provide any clues as to the notes’ origin. The notes are not
written above any preprinted lines or inside any preprinted
boxes. Finally, Robertson, for his part, offers no explanations; he
simply points to the May 18 date and asks us to conclude that
“[s]omeone with access to the Trustee’s certified P.O. Box did in
fact receive [his request] and sign[] for it.”
¶48 Second, the transaction receipt also contains what
purports to be a “Signature Confirmation Number.” However,
the Trustee’s signature is nowhere to be found on the document,
and we have been shown no evidence that a separate document
with the signature was ever submitted. What the document does
contain is a disclaimer, which includes, with our emphasis, the
statement that “[a] copy of the recipient’s signature will be faxed
or mailed upon request.” Because there is no signature verifying
that the Trustee received Robertson’s request included anywhere
in the record, we must assume no such signature exists.
Otherwise, of course, it would have been requested by
20150513-CA 26 2017 UT App 213Far West Bank v. Robertson
Robertson, faxed or mailed to him, and appended to his
affidavit.
¶49 Accordingly, Robertson has failed to point to any
competent evidence that might raise a genuine issue of fact as to
whether, under section 57-1-31.5, the Trustee received his
request for a payoff statement. We therefore reject his contention
that the district court erred when it concluded that there was no
dispute of material fact necessitating a trial on this issue.
III. The Excluded Testimony
¶50 Robertson contends that the district court erred by
excluding the testimony of his appraiser at trial. Again, we
disagree.
¶51 Robertson concedes that he did not disclose the identity of
the appraiser, whom he attempted to call as a witness, until the
morning of trial. Nevertheless, citing rule 26(a)(4)(A) of the Utah
Rules of Civil Procedure, he maintains that prior disclosure was
not required because he intended to use the witness’s testimony
“solely for impeachment.”20 See Utah R. Civ. P. 26(a)(4)(A) (2010)
(stating that prior to trial, “[a] party shall provide to other
parties” the contact information “of each witness” unless the
witness’s testimony will be used “solely for impeachment”)
(emphasis added). But the rule Robertson cites is inapposite.
20. On November 1, 2011, after Far West had filed this action
against Robertson but before the case went to trial, the Utah
Supreme Court amended rules 26 and 37 of the Utah Rules of
Civil Procedure. The advisory committee notes explain that “the
Supreme Court order adopting the 2011 amendments makes
them effective only as to cases filed on or after the [November 1]
effective date.” Utah R. Civ. P. 1 advisory committee notes. Thus,
while the rule had been amended by the time of trial, the parties
remained bound by the unamended rules, and it is the
unamended rules that we apply here.
20150513-CA 27 2017 UT App 213Far West Bank v. Robertson
¶52 At trial, the court invited Robertson to explain on the
record “why [he] couldn’t have disclosed this witness” prior to
trial. Robertson responded that he had “only hired [the witness]
to refute the exhibit that [he] received 30 days ago on the . . .
appraisal” that Far West’s expert had provided. Continuing, he
explained,
I hired her at that time . . . to look [at the] subject
propert[y], to find properties that had sold in that
time frame [when the subject property was sold]
and to rebut [Far West’s] . . . claims on . . . the
appraisal that I felt . . . under-valued [the property]
and . . . did not produce adequate properties as
comparables . . . and failed to take into
consideration properties that were available on . . .
the Wasatch Front or close . . . properties that had
sold in a relativel[y contemporaneous] period of
time.
In short, Robertson informed the court that his witness is in the
business of appraising property and that she would offer
opinions on the value of the Property to rebut the contrary
opinions of Far West’s expert.
¶53 Given Robertson’s representations to the district court, we
conclude that the rule governing whether Robertson was
required to disclose his witness prior to trial was not rule
26(a)(4)(A), as he maintains, but rule 26(a)(3). The latter rule
provided that “[a] party shall disclose to other parties the
identity of any person who may be used at trial to present
evidence under Rules 702, 703, or 705 of the Utah Rules of
Evidence.” Utah R. Civ. P. 26(a)(3)(A) (2010). Specifically, rule
702 governed the admissibility of testimony from a witness
“qualified as an expert” whose “scientific, technical, or other
specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue.” Utah R. Evid.
702(a). Under then rule 26(a)(3), such evidence must be disclosed
20150513-CA 28 2017 UT App 213Far West Bank v. Robertson
prior to trial even “if the evidence is intended solely to contradict
or rebut evidence on the same subject matter identified by
another” party’s expert report. Utah R. Civ. P. 26(a)(3) (2010).
¶54 Accordingly, since Robertson informed the district court
that he intended to rebut the testimony of Far West’s expert with
testimony from a witness with “scientific, technical, or other
specialized knowledge,” his witness should properly have been
disclosed prior to trial. See id. R. 37(f) (“If a party fails to disclose
a witness . . . as required by Rule 26(a) . . . , that party shall not
be permitted to use the witness[.]”). We therefore conclude that
the court did not err in excluding the testimony of Robertson’s
appraiser.
IV. Attorney Fees on Appeal
¶55 Finally, pursuant to rule 24(a)(9) of the Utah Rules of
Appellate Procedure, Far West requests an award of the
reasonable attorney fees it incurred on appeal. “[A] provision for
payment of attorney’s fees in a contract includes attorney’s fees
incurred by the prevailing party on appeal as well as at trial, if
the action is brought to enforce the contract[.]” Management
Services Corp. v. Development Assocs., 617 P.2d 406, 409 (Utah
1980). Moreover, the Consolidated Loan Agreement expressly
provides that appellate attorney fees are recoverable in addition
to those incurred at the trial level. Attorney fees were awarded
to Far West at the trial level, and Far West has prevailed on
appeal. It follows that Far West is entitled to an award of its
attorney fees reasonably incurred on appeal. See id.CONCLUSION
¶56 Having concluded that the district court did not err in
dismissing Robertson’s counterclaims on summary judgment, in
granting partial summary judgment in Far West’s favor, or in
excluding the testimony of Robertson’s appraiser at trial, we
conclude that the court’s judgment should be affirmed. Further,
20150513-CA 29 2017 UT App 213Far West Bank v. Robertson
we grant Far West’s request for an award of reasonable attorney
fees incurred on appeal and remand for the limited purpose of
calculating that award.
20150513-CA 30 2017 UT App 213