Wittingham v. TNE Limited Partnership ( 2024 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 23IN THE
SUPREME COURT OF THE STATE OF UTAH
WITTINGHAM, LLC, THE MUIR SECOND FAMILY LIMITED
PARTNERSHIP, and DOROTHY JEANNE MUIR,
Appellees and Cross-appellants,
v.
TNE LIMITED PARTNERSHIP, BRUCE J. MALCOLM, and
MAUREEN H. MALCOLM,
Appellants and Cross-appellees.
No. 20210677
Heard January 11, 2023
Filed July 18, 2024
On Direct Appeal
Second District, Davis County
The Honorable Michael D. DiReda
The Honorable Robert J. Dale
No. 090700547
Attorneys:
James K. Tracy, Joshua L. Lee, Salt Lake City, for appellees and
cross-appellants
Trevor J. Lee, Park City, for appellants and cross-appellees
JUSTICE POHLMAN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE,
JUSTICE PETERSEN, and JUSTICE HAGEN joined.
JUSTICE POHLMAN, opinion of the Court:
INTRODUCTION
¶1 This is the fourth appeal in a case that has endured fifteen
years of litigation. At its core, the case is about a 2009 loan
transaction between TNE Limited Partnership (TNE) and the Muir
WITTINGHAM, LLC v. TNE LIMITED PARTNERSHIP
Opinion of the Court
Second Family Limited Partnership (the Muir Partnership or the
Partnership) at a time when the Partnership was dissolved. The
Partnership, along with Dorothy Jeanne Muir and Wittingham,
LLC (collectively, plaintiffs), sued TNE and related parties to void
the transaction. 1 After a seven-day bench trial, the district court
granted plaintiffs’ requested relief. As the prevailing parties,
plaintiffs requested attorney fees under the reciprocal fees statute,
but the court denied the request.
¶2 Both sides appealed. Among other things, TNE contended
that the transaction was voidable, not void, and plaintiffs asserted
that the district court erred in denying their fees request. After two
appeals that failed on jurisdictional defects, we reached the merits
of several issues in Wittingham, LLC v. TNE Ltd. Partnership
(Wittingham III), where we agreed with TNE that the transaction
was merely voidable. 2020 UT 49, ¶¶ 80–82, 469 P.3d 1035. We
reversed the district court’s determination that the transaction was
void and remanded the case for further proceedings on whether the
transaction bound the dissolved Muir Partnership and whether
TNE was entitled to legal or equitable remedies. Id. ¶¶ 40–41. We
further instructed the district court to reconsider the attorney fees
issue if plaintiffs renewed it on remand. Id. ¶ 82.
¶3 Back in the district court, both parties contended that they
were entitled to judgment on the trial record. TNE argued theories
of why the transaction must be enforced, which plaintiffs
challenged, and plaintiffs renewed their attorney fees request. The
court ultimately concluded that plaintiffs could void the
transaction, but it again denied their fees request. Before the court’s
ruling was final, TNE asked the court to reevaluate its decision in
light of new authority, but the court concluded that its decision was
correct and entered judgment against TNE.
¶4 Both sides again appeal. TNE primarily challenges the
district court’s rejection of its claim that the Muir Partnership is
bound by the transaction under a theory of apparent authority.
TNE also identifies several reasons why it claims the Partnership
should not be allowed to void the transaction. We reject TNE’s
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1 In their complaint, plaintiffs named many defendants related
to the TNE transaction, but only three—TNE, Bruce Malcolm, and
Maureen Malcolm—are parties to this appeal. As the parties have
done in their briefing, we refer to these appellants and cross-
appellees collectively as TNE.
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claims either because TNE has not shown reversible error or
because the issues are unpreserved. We also reject plaintiffs’
renewed challenge to the district court’s denial of their claim for
attorney fees because the plain language of the trust deed on which
plaintiffs’ claim depends does not allow fees in this case.
BACKGROUND 2
¶5 The Muir Partnership was a Utah limited partnership
registered in January 1994 and administratively dissolved in May
2007. William Nicholas Muir (Nick) was the general partner, and
his sister, Dorothy Jeanne Muir (Jeanne), and other family members
were limited partners. 3 The Partnership owned two apartment
buildings in Bountiful, Utah (the apartments).
¶6 In 2009, Nick secured a $450,000 loan to renovate the
apartments into rentable condition, pledging the apartments as
collateral. Within only a few weeks, Nick sought to refinance the
loan and to again pledge the apartments as collateral. TNE learned
of the lending opportunity and expressed interest. TNE soon
became aware that there was “a partnership involved,” that Nick
was the general partner, and that Nick’s sister, Jeanne, held an
interest. And TNE learned from the apartment manager that Nick
had fallen from the roof of the apartments a few years back, had
suffered a head injury, and had been in a coma for four months.
The manager expressed his view that Nick was “incompetent,” and
TNE questioned Nick’s “authority to transact business” for the
Partnership.
¶7 Around this same time, Nick discovered that the
Partnership was administratively dissolved because its renewal
paperwork had not been submitted. Nick was told that he “would
have to re-file the company” under a “new name.” He then
registered a new entity, “Muir Second Family Limited
Partnership,” differing in name by omitting the word “The.”
¶8 Several title insurance companies considered insuring the
transaction for TNE, but some expressed concern about the status
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2 “On appeal from a bench trial, we view and recite the evidence
in the light most favorable to the trial court’s findings.” Utah State
Tax Comm’n v. See’s Candies, Inc., 2018 UT 57, ¶ 5 n.2, 435 P.3d 147(cleaned up).
3 Because Jeanne and Nick share the same last name, we follow
the parties’ lead and refer to them by their first names.
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WITTINGHAM, LLC v. TNE LIMITED PARTNERSHIP
Opinion of the Court
of the Partnership and Nick’s authority to close the transaction.
Eventually, TNE secured insurance and closed the deal. In
connection with the closing, the parties signed a trust deed and
promissory note (together, the TNE transaction), in which Nick
pledged the apartments as collateral for a $435,000 loan. Nick
signed the TNE trust deed and promissory note on behalf of the
Partnership.
The Litigation
¶9 Jeanne first learned about the TNE transaction after it was
complete. When she discovered the TNE trust deed, she filed suit,
both individually and on behalf of the Muir Partnership. Shortly
thereafter, Nick transferred his interest in the Partnership to Jeanne,
and, through a series of transactions, title to the apartments was
eventually transferred to Wittingham, LLC, a company Jeanne
managed. Wittingham then joined Jeanne and the Muir Partnership
as a plaintiff in the litigation.
¶10 In the complaint, the Muir Partnership and Wittingham
sought a judicial declaration that all actions taken by the
Partnership after its administrative dissolution, including the TNE
transaction, “were not for the purpose(s) of winding up the
Partnership” and were “void ab initio.” Alternatively, they sought a
declaration that the TNE transaction “is voidable and should be set
aside” because Nick lacked the mental capacity to transact with
TNE. Jeanne asserted claims of her own and claims with the
Partnership, but she was not a party to these declaratory judgment
claims.
¶11 TNE counterclaimed, seeking a declaration that the TNE
trust deed “is valid and enforceable.” Later, in its trial briefing, TNE
asserted in the alternative that the TNE trust deed was merely
voidable, not void. TNE also responded to plaintiffs’ argument
regarding Nick’s competency, contending that Nick was competent
when he executed the TNE transaction. But TNE argued that if the
court disagreed about Nick’s competency, it should conclude either
that (1) the Muir Partnership must still pay restitution for the
benefit it received, or (2) the Partnership ratified the TNE
transaction by retaining the benefit.
¶12 After a seven-day bench trial, the district court rejected
plaintiffs’ argument that Nick was incompetent but concluded that
the TNE transaction was an unenforceable transaction that could
not bind the Muir Partnership. Specifically, the court determined
that the Partnership had been dissolved before the transaction
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occurred and that the transaction was not a “winding up” activity
under the General and Limited Liability Partnerships Act (the
Partnerships Act), Utah Code sections 48-1-.5 to -48 (2009). 4 See
UTAH CODE § 48-1-32(1)(a) (2009) (providing that, with certain
exceptions, “a partner can bind the partnership” after dissolution
“[b]y any act appropriate for winding up partnership affairs”). And
although there is a presumption under the law that the defective
transaction was voidable (rather than void), see Wittingham III, 2020
UT 49, ¶ 25, 469 P.3d 1035, the district court concluded that the
presumption had been rebutted and that the TNE transaction was
“void . . . and not merely voidable.”
¶13 Although plaintiffs prevailed at trial, the district court
denied their request for attorney fees based on paragraph 4 of the
trust deed. Paragraph 4 provides that, to protect the security of the
trust deed, the Muir Partnership agrees
[t]o appear in and defend any action or proceeding
purporting to affect the [apartments], the title to said
[apartments], or the rights or powers of [TNE 5]; and
should [TNE] elect to also appear in or defend any
such action or proceeding, to pay all costs and
expenses, including . . . attorney’s fees in a reasonable
sum incurred by [TNE].
¶14 Invoking Utah’s reciprocal fees statute, see UTAH CODE
§ 78B-5-826, plaintiffs argued that because TNE would have been
able to recover fees under paragraph 4 had it prevailed in the
litigation, plaintiffs (as the prevailing parties) were entitled to
recover their fees from TNE. The district court disagreed. It
concluded that, based on the plain language, paragraph 4 “[did]
not apply to plaintiffs’ declaratory judgment action to invalidate
the trust deed.”
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4 “Although the [Partnerships] Act has since been repealed and
replaced, the 2009 version of the Act was in effect at all relevant
times during this case. We therefore consider the language of the
2009 version of the Act.” Wittingham III, 2020 UT 49, ¶ 27 n.33, 469
P.3d 1035.
5 Paragraph 4 refers to the title company along with TNE, but
because the title company’s interests under this provision are not
at issue in this appeal, we refer only to TNE.
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WITTINGHAM, LLC v. TNE LIMITED PARTNERSHIP
Opinion of the Court
The Appeal (Wittingham III)
¶15 On appeal, TNE asked us to review “whether a contract
entered into by a dissolved partnership is void or merely voidable.”
Wittingham III, 2020 UT 49, ¶ 1. We agreed with TNE that the TNE
transaction was voidable, not void, and that the district court erred
in ruling otherwise. Id. ¶ 22.
¶16 First, we noted the “rebuttable presumption that defective
contracts are voidable rather than void,” id. ¶ 25 (citing Ockey v.
Lehmer, 2008 UT 37, 189 P.3d 51), and that this presumption can be
rebutted “only where a party has made ‘a showing free from doubt
that the contract is against public policy,’” id. ¶ 23 (quoting Ockey,
2008 UT 37, ¶ 21). Then, we applied Ockey to assess whether the
TNE transaction violated public policy. Id. ¶¶ 26–37. We concluded
the Muir Partnership failed to rebut the presumption of voidability,
id. ¶ 37, and held the TNE transaction voidable, not void, id.
¶17 After making that determination, we observed that TNE
might have legal remedies available under the Partnerships Act
that, if applicable, would require additional factual findings by the
district court. Id. ¶ 38. Among other things, we reasoned that the
Act “mandates that the district court apply common-law agency
principles such as apparent authority or partner-by-estoppel, both
of which would allow the court to enforce the TNE trust deed . . .
even if [Nick] did not enter into the transaction for the purpose of
winding up Muir Partnership affairs.” Id. ¶ 40. We further
instructed the district court to consider, on remand, “TNE’s claims
for equitable relief,” but only if it first determined that TNE did not
have an available legal remedy. Id. ¶ 41.
¶18 Finally, we vacated the district court’s decision denying
attorney fees to plaintiffs and remanded for a new determination,
if plaintiffs renewed the fees request on remand. Id. ¶ 79. Although
plaintiffs challenged the district court’s attorney fees decision on
appeal, id. ¶ 4, we “decline[d] to address” the issue out of concern
that our other rulings “may have upended” the basis for the court’s
decision, id. ¶ 79 (cleaned up).
The Proceedings on Remand
¶19 On remand, TNE moved for a ruling on its claim regarding
the enforceability of the TNE trust deed, arguing that the facts
already found by the district court entitled it to judgment on the
issue of Nick’s apparent authority to enter the TNE transaction.
Citing section 48-1-11 of the Partnerships Act, TNE asserted that
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Nick had apparent authority to enter the TNE transaction based
“entirely on [his] representations.”
¶20 In addition to its apparent authority argument, TNE
reasserted a theory made at trial that the Muir Partnership could
not void the TNE trust deed because it was the “offending party”
rather than an “injured party.” TNE reframed this theory as a
“standing” problem, asserting that “the only ‘injured party’ to the
TNE Trust Deed that has standing to accept or deny the TNE Trust
Deed is TNE.” TNE also asserted that the Partnership should be
equitably “estopped from attacking the validity of the TNE Trust
Deed.”
¶21 In response, plaintiffs first argued that TNE could not
establish apparent authority because TNE relied exclusively on
Nick’s statements and conduct to prove the Partnership’s consent.
Plaintiffs explained that without “manifestations traceable to the
principal,” TNE could not prevail on its claim. (Quoting Burdick v.
Horner Townsend & Kent, Inc., 2015 UT 8, ¶ 22, 345 P.3d 531.) Next,
regarding the question of whether the Partnership could seek to
void the TNE transaction, plaintiffs argued that because the
Partnership was injured by the transaction, it had the right to reject
it. Finally, plaintiffs argued that TNE could not assert equitable
claims or defenses because it had available legal remedies against
Nick. Plaintiffs sought the entry of additional factual findings and
conclusions of law consistent with its arguments.
¶22 On the issue of Nick’s authority to bind the Muir
Partnership to the TNE transaction, the district court determined
that Nick had neither actual nor apparent authority. As to apparent
authority specifically, the court rejected TNE’s assertion that Nick
“could act so as to give apparent authority to himself.” (Citing
Burdick, 2015 UT 8, ¶ 22.)
¶23 The court also determined that because “[p]laintiffs have
been severely injured,” they could reject the TNE transaction.
Specifically, the court concluded that plaintiffs did “not benefit[]
from the TNE Transaction in any way” and that the transaction had
“encumbered the Apartments and Jeanne Muir’s interest therein
without providing a benefit.”
¶24 After the court entered its ruling on remand awarding
judgment to plaintiffs, plaintiffs renewed their request for attorney
fees. The district court again denied the request, concluding that
paragraph 4 of the TNE trust deed “is akin to an indemnity
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WITTINGHAM, LLC v. TNE LIMITED PARTNERSHIP
Opinion of the Court
provision” and does not apply to plaintiffs’ action to invalidate the
TNE transaction.
TNE’s Rule 60(b) Motion
¶25 Before the district court’s decision was final and after a
new judge had been assigned to the case, 6 new counsel appeared
for TNE and filed a rule 60(b) motion asking the court to revisit its
ruling on apparent authority. See UTAH R. CIV. P. 60(b)(6) (“On
motion and upon just terms, the court may relieve a party . . . from
a judgment, order, or proceeding for . . . any other reason that
justifies relief.”). As TNE saw it, an intervening decision from this
court—Drew v. Pacific Life Insurance Co., 2021 UT 55, 496 P.3d 201—
represented a departure from our apparent authority caselaw such
that the district court was wrong to conclude Nick lacked apparent
authority to enter the TNE transaction. And, abandoning its
previous theory that the relevant manifestations came exclusively
from Nick, TNE narrowed in on a new theory: that “the relevant
manifestations by [the Muir Partnership] came in the form of the
Partnership Agreement.”
¶26 The district court denied TNE’s motion. First, the court
disagreed with TNE that Drew changed controlling law. Even still,
the court found TNE’s argument unpersuasive because the court
had not, as TNE claimed, concluded that “direct contact with the
limited partners was the only way to establish apparent authority.”
Rather, the court had concluded that TNE failed to show any
manifestation by the Muir Partnership, “either direct or indirect.”
The court also rejected TNE’s new argument that the partnership
agreement itself manifested Nick’s apparent authority. The court
observed that the agreement, which expressly limited Nick’s
authority post-dissolution, did not manifest that Nick had
authority to enter the TNE transaction, but it “was evidence that
the opposite was true.”
¶27 TNE appeals, challenging the district court’s decision
invalidating the TNE transaction. And on cross-appeal, plaintiffs
challenge the district court’s denial of attorney fees.
ISSUES AND STANDARDS OF REVIEW
¶28 TNE challenges the district court’s determination that
Nick lacked apparent authority to enter the TNE transaction,
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6 A different judge was assigned to the case after the judge who
had presided over the matter for more than eleven years retired.
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describing the issue as a purely legal question about the district
court’s interpretation of our precedent. We review this issue for
correctness. See Keystone Ins. Agency v. Inside Ins., 2019 UT 20, ¶ 12,
445 P.3d 434.
¶29 Next, TNE contends that the district court erred in
allowing the Muir Partnership to void the TNE transaction. This
contention consists of five challenges.
¶30 TNE first contends that the court erred in determining that
the Partnership was an injured party. TNE’s contention appears to
be a legal challenge, and so we review the court’s legal conclusions
for correctness. See Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT
94, ¶¶ 10–11, 54 P.3d 1177.
¶31 TNE alternatively contends that any injury to the
Partnership was caused by Nick, not TNE; that the Partnership is
not entitled to equitable relief because it has an adequate legal
remedy and failed to plead otherwise; that the Partnership cannot
void the TNE trust deed because it ratified the transaction by
accepting and spending the loan proceeds; and that, before the
Partnership could void the trust deed, it would need to “return the
principal” from the loan to TNE. We do not review the merits of
these issues, because they are unpreserved. See infra ¶¶ 56–65.
¶32 On cross-appeal, plaintiffs contend that the district court
erred in determining that they are not entitled to attorney fees
under the TNE trust deed. “Whether a contract provides for
attorney fees is a question of law that we review for correctness.”
Wittingham III, 2020 UT 49, ¶ 16, 469 P.3d 1035.
ANALYSIS
I. NICK’S APPARENT AUTHORITY
¶33 As this court observed in Wittingham III, under the
Partnerships Act “there are multiple factual scenarios in which a
partnership could be bound by a general partner’s post-dissolution
actions.” 2020 UT 49, ¶ 40, 469 P.3d 1035. One of those scenarios
occurs when an agent of the partnership has apparent authority to
engage in certain transactions post-dissolution. See id. ¶ 33; see also
UTAH CODE § 48-1-11(1) (2009) (“The partnership is bound to make
good the loss . . . [w]here one partner acting within the scope of his
apparent authority receives money or property of a third person
and misapplies it . . . .”).
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Opinion of the Court
¶34 Apparent authority is a common law agency principle
with equitable roots. See Wittingham III, 2020 UT 49, ¶ 33; Drew v.
Pac. Life Ins. Co., 2021 UT 55, ¶ 89, 496 P.3d 201 (explaining that
apparent authority “is founded on the idea that where one of two
persons must suffer from the wrong of a third, the loss should fall
on that one whose conduct created the circumstances which made
the loss possible” (cleaned up)). It “can be created by a vast array
and mix of facts,” Glew v. Ohio Sav. Bank, 2007 UT 56, ¶ 19, 181 P.3d
791, but there are three elements that must be satisfied to prove its
existence:
(1) that the principal has manifested his or her
consent to the exercise of such authority or has
knowingly permitted the agent to assume the
exercise of such authority; (2) that the third person
knew of the facts and, acting in good faith, had reason
to believe, and did actually believe, that the agent
possessed such authority; and (3) that the third
person, relying on such appearance of authority, has
changed his or her position and will be injured or
suffer loss if the act done or transaction executed by
the agent does not bind the principal.
Drew, 2021 UT 55, ¶ 83 (cleaned up).
¶35 In this case, the district court determined that TNE failed
to satisfy the first element of this test. Following remand, TNE
argued that Nick had apparent authority to execute the TNE
transaction based “entirely on [Nick’s] representations.” Under this
theory, Nick acted as both principal and agent for the Muir
Partnership; so the first prong of the apparent authority test was
met because Nick (as the principal) manifested consent to have
himself (as the agent) execute the TNE transaction on the
Partnership’s behalf. But the court rejected that theory, concluding
that TNE’s belief in Nick’s authority could not derive solely from
Nick’s own statements or conduct. Citing our precedent, the court
explained that without “any manifestations traceable to the
principal,” TNE cannot establish apparent authority. (Quoting
Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8, ¶ 22, 345 P.3d
531.) Thus, the court concluded that “[s]omeone other than [Nick]
had to manifest consent to him entering into the TNE transaction
on behalf of the Partnership,” but “no one did.”
¶36 Several months after the district court’s ruling, this court
issued its opinion in Drew v. Pacific Life Insurance Co., 2021 UT 55.
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There, in considering whether, as a matter of law, employees of an
insurance producer 7 lacked apparent authority to make promises
to the Drews regarding Pacific Life insurance policies, we affirmed
our three-part apparent authority test. Id. ¶¶ 83–84. But we
rebuffed any implication that the only way for a principal to
manifest an agent’s authority (for purposes of apparent authority)
is through direct communication with the third party. Id. ¶ 87. We
explained that apparent authority “must still be based on
manifestations by the principal as to the agent’s authority, and not
solely the representations of the agent.” Id. ¶ 92. But we
emphasized that “those manifestations need not be made in a direct
interaction between the principal and plaintiff.” Id. We also
clarified that, when we previously said in this context that “one
who deals exclusively with an agent has the responsibility to
ascertain that agent’s authority,” id. ¶ 88 (cleaned up), we did not
mean “that the person dealing with the agent must directly contact
the principal to verify the agent’s authority,” id. ¶ 92. Rather, we
meant that a “plaintiff’s belief in the agent’s authority must be not
only a subjective, actual belief, but must also be objectively
reasonable.” Id.
¶37 Applying these principles, we concluded that policy
forms, which Pacific Life gave to the insurance producer’s
employees, “could constitute a manifestation of consent” by the
principal to the employees’ authority to solicit applications for
Pacific Life policies. Id. ¶ 98; see also id. ¶ 99 (concluding that the
policy forms “may constitute a manifestation of consent to [the
employees’] authority to procure or solicit applications for Pacific’s
policies”). And we concluded that the district court erred in
granting summary judgment on the ground that the forms could
not, as a matter of law, manifest consent to the employees’
authority. Id. ¶ 100.
¶38 Encouraged by Drew’s application of the apparent
authority doctrine, TNE filed a rule 60(b) motion with the district
court. In it, TNE argued that Drew represented a departure from
this court’s apparent authority precedent and proved that the
district court was wrong to “hinge[] its judgment on its conclusion
that TNE needed to directly contact the limited partners (i.e. the
principal) to verify [Nick’s] (i.e. the agent’s) authority to enter in
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7 An insurance producer solicits and procures applications for
an insurance company’s products and services. Drew, 2021 UT 55,
¶ 5.
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Opinion of the Court
this specific transaction.” TNE argued that “the relevant
manifestations by the principal came in the form of the Partnership
Agreement,” and that the agreement “manifest[ed] the limited
partners’ consent to [Nick] entering into the TNE Transaction.” 8
¶39 The district court addressed TNE’s post-judgment
arguments but rejected the view that Drew changed controlling
law. The court first rejected TNE’s characterization of its previous
ruling. It had not, as TNE claimed, concluded that “direct contact
with the limited partners was the only way to establish apparent
authority.” Instead, it had concluded that TNE’s argument failed
because TNE had not identified any manifestation by the Muir
Partnership. Further, the court addressed TNE’s new argument
that the partnership agreement manifested Nick’s authority to
enter the TNE transaction. The court said the agreement was not a
manifestation of authority for Nick to enter the TNE transaction
post-dissolution because the agreement expressly limited his post-
dissolution authority.
¶40 On appeal, TNE seeks reversal of the district court’s
determination that the TNE transaction is unenforceable against
the Muir Partnership due to Nick’s lack of apparent authority. TNE
argues that the court reached its determination “based solely on its
misunderstanding of this Court’s caselaw—that is, its view that
Nick had no apparent authority because TNE never in fact
contacted . . . the . . . limited partners” “to get their consent to the
TNE Transaction.” TNE further argues that the Partnership
manifested its consent to Nick entering into transactions post-
dissolution through the partnership agreement, but TNE insists
that the court “largely ignored” the document “because of its
understanding that there could be no apparent authority without
actively contacting the limited partners.” TNE’s argument fails
because its premises are misguided.
¶41 First, the district court did not conclude that Nick lacked
apparent authority to enter the TNE transaction on the ground that
TNE did not contact the limited partners to secure their consent. See
supra ¶¶ 22, 26. Rather, the court initially rejected TNE’s apparent
authority argument on remand because TNE had failed to show any
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8 In its initial post-remand briefing, TNE referred generally to
its receipt of the partnership agreement, but it was not until filing
the rule 60(b) motion that TNE identified the agreement as the
principal’s manifestation of authority on which it had relied.
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manifestation of the Muir Partnership’s consent to Nick’s authority,
“either direct or indirect.” When the court reached that conclusion,
it did not reject TNE’s claim that the partnership agreement
manifested the Partnership’s consent to Nick’s actions. After all,
TNE had yet to make that claim. See supra ¶ 38 n.8. Instead, the
court rejected TNE’s reliance on Nick’s representations alone to
establish apparent authority. And based on this court’s precedent,
the district court correctly rejected TNE’s argument, concluding
that TNE’s belief in Nick’s authority could not derive solely from
Nick’s own statements or conduct. The court’s conclusion is
consistent both with our earlier precedent and with Drew. See
Burdick, 2015 UT 8, ¶ 22 (“A belief that results solely from the
statements or other conduct of the agent, unsupported by any
manifestations traceable to the principal, does not create apparent
authority . . . .” (cleaned up)); Drew, 2021 UT 55, ¶ 92 (noting that,
for apparent authority to exist, there must be “manifestations by the
principal as to the agent’s authority,” not just representations by the
agent (emphasis added)).
¶42 Next, TNE’s argument that the district court “largely
ignored” the partnership agreement as the source of the Muir
Partnership’s manifestation of consent is likewise misguided. TNE
claims the court ignored the document because the court required
TNE to “actively contact[] the limited partners” to ascertain the
extent of Nick’s authority. But in denying TNE’s rule 60(b) motion,
the court expressly rejected that claim. The court emphasized that
in rejecting TNE’s apparent authority theory, it did not conclude
that there must have been a direct interaction between TNE and the
limited partners. The court explained that, instead, it rejected
TNE’s theory because TNE had identified “no manifestations by the
principal, either direct or indirect.” TNE has not shown error in the
court’s assertion based on the arguments TNE made to the court on
remand.
¶43 Finally, to the extent TNE ultimately relied—in its rule
60(b) motion—on the partnership agreement as the source of the
Muir Partnership’s manifestation of consent, it has not shown that
the court erred in rejecting the agreement as the source of Nick’s
apparently authority. The court did not, as TNE claims, ignore the
agreement; the court reviewed the agreement and determined that,
under the agreement’s terms, Nick’s authority upon dissolution of
the Partnership was expressly limited.
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Opinion of the Court
¶44 On appeal, TNE does not acknowledge, much less address,
the court’s rationale. Instead, in an attempt to persuade us that the
district court erred, TNE points only to the court’s rulings that
predated TNE’s rule 60(b) motion where TNE first posited its
theory that the partnership agreement was a manifestation of
consent. This is problematic. It is TNE’s burden to demonstrate that
the district court committed a reversible error in resolving the
question presented to it for its determination. TNE cannot meet that
burden without addressing the court’s decision on its own terms. 9
See, e.g., Living Rivers v. Exec. Dir. of the Utah Dep’t of Env’t Quality,
2017 UT 64, ¶¶ 41–43, 50–51, 417 P.3d 57 (explaining that an
appellant’s burden requires a timely explanation of why the lower
tribunal was wrong); Bad Ass Coffee Co. of Haw. v. Royal Aloha Int’l
LLC, 2020 UT App 122, ¶ 48, 473 P.3d 624 (stating that an appellant
“cannot persuade us that reversal is appropriate without
acknowledging the district court’s decision and dealing with its
reasoning”). 10
II. THE MUIR PARTNERSHIP’S ABILITY TO VOID THE
TNE TRANSACTION
¶45 Raising five separate issues, TNE contends that the district
court erred in allowing the Muir Partnership to void the TNE
transaction. The Partnership responds that TNE has failed to
preserve these issues and that they fail on their merits. Because the
district court addressed the first of these issues, we address that
issue on its merits. But because TNE has not shown that the
__________________________________________________________
9 It is also not enough that TNE tried to address this issue in its
reply brief, after plaintiffs noted that TNE failed to challenge the
district court’s determination on this point. A reply brief “is not a
license to gap-fill missing arguments. . . . The timely presentation
of arguments is essential to providing an opposing party with a fair
opportunity to respond.” Monticello Wind Farm, LLC v. Pub. Serv.
Comm’n of Utah, 2019 UT 43, ¶ 80, 449 P.3d 128.
10 TNE also challenges the district court’s denial of its
partnership by estoppel theory. But TNE concedes the district
court’s “estoppel conclusion should be reversed for the same
reasons as its apparent authority conclusion,” and TNE admitted at
oral argument that its apparent authority argument and its
partnership by estoppel argument rise and fall together.
Accordingly, we reject TNE’s partnership by estoppel challenge for
the same reasons we reject its apparent authority challenge.
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remaining issues are preserved, we largely reject them on that
basis.
A. The Muir Partnership Is an Injured Party
¶46 In its post-remand briefing, TNE sought judgment in its
favor, asserting that it was “the only party that has the option of
enforcing the TNE Trust Deed.” Citing our decision in Ockey v.
Lehmer, TNE argued that it was the “only ‘injured party’” to the
TNE transaction and thus the only one with “standing to accept or
deny it.” See 2008 UT 37, ¶ 18, 189 P.3d 51 (“[A] contract or deed
that is voidable may be ratified at the election of the injured
party.”); see also id. (stating that “only the injured party” can ask the
court to set aside a voidable deed). Addressing TNE’s assertion, the
district court found that “Plaintiffs” were “injured by the TNE
transaction” because the TNE trust deed “encumbered the
Apartments and Jeanne Muir’s interest therein without providing
a benefit.” Thus, the court concluded that, as injured parties under
Ockey, plaintiffs could seek to invalidate the TNE transaction.
¶47 TNE contends that the district court was wrong to declare
the transaction unenforceable at the Muir Partnership’s request,
again claiming that it is the only party with the ability to avoid or
enforce the transaction. TNE’s contention on appeal is broken
down into two related but separate issues. First, TNE insists that
the court “improperly relied on injury” to limited partner Jeanne in
finding that the Partnership was an injured party under Ockey.
Second, TNE contends that the Partnership could not invalidate the
TNE transaction because Nick, not the transaction, caused the
Partnership’s injury.
¶48 As to TNE’s first point—that the district court was wrong
to rely on Jeanne’s injury—TNE preserved the issue by arguing that
it alone could avoid or enforce the TNE transaction. But TNE has
not shown that the court committed reversible error in concluding
that Jeanne, along with the Muir Partnership, was also an injured
party who could challenge the TNE transaction. That is, even
assuming it was wrong for the court to consider injury to Jeanne,
TNE has not shown it is reasonably likely that the court would have
declared the TNE transaction enforceable had Jeanne’s injury not
been considered. See Child v. Gonda, 972 P.2d 425, 431 (Utah 1998)
(“[W]e will not reverse a judgment merely because there may have
been error; reversal occurs only if the error is such that there is a
reasonable likelihood that, in its absence, there would have been a
result more favorable to the complaining party.”).
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WITTINGHAM, LLC v. TNE LIMITED PARTNERSHIP
Opinion of the Court
¶49 The district court did not rely exclusively on Jeanne’s
injury to invalidate the TNE transaction. Instead, the court
concluded that “Plaintiffs”—including the Muir Partnership—
were injured by the TNE transaction, which “further encumbered
the Apartments . . . without providing a benefit.” And TNE
concedes that “[t]he Partnership . . . was a party to the Transaction,
and could therefore void the Transaction were it injured by it.”
Further, despite the court’s observation about Jeanne’s injury, the
court ultimately declared the transaction unenforceable against the
Muir Partnership and granted the Partnership (not Jeanne’s) request
to invalidate the transaction. See supra ¶¶ 10, 12. Thus, even if the
court was wrong to observe that Jeanne was also an “injured
party,” that observation was ultimately irrelevant to the relief the
court granted to the Muir Partnership and is not a basis for reversal.
See Child, 972 P.2d at 431.
¶50 On TNE’s second point—that Nick caused the Muir
Partnership’s injury—we agree with plaintiffs that the issue is
unpreserved. In general, we will review an issue on appeal only if
the appellant preserves it in the district court. See Ahhmigo, LLC v.
Synergy Co. of Utah, 2022 UT 4, ¶ 16, 506 P.3d 536. “An issue is
preserved for appeal when it has been presented to the district
court in such a way that the court has an opportunity to rule on it.”
Id. (cleaned up). To preserve an issue, “(1) the issue must be raised
in a timely fashion, (2) the issue must be specifically raised, and
(3) the challenging party must introduce supporting evidence or
relevant legal authority.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶ 51, 99 P.3d 801 (cleaned up).
¶51 Here, TNE does not contend that, post-remand, it raised
the issue of whether Nick, as opposed to the TNE transaction,
caused the Muir Partnership’s injury. Instead, TNE argues that it
raised the issue in its trial brief from 2013, where it stated that our
caselaw “does not allow the Partnership to benefit from its
misrepresentation by avoiding the TNE Transaction but retaining
the benefit conferred by TNE.” Even assuming a mention in the
pre-Wittingham III trial brief could preserve an issue for this appeal,
see infra ¶ 59, we fail to see how this assertion preserves the
nuanced causation issue TNE now raises. TNE argues on this
appeal that the Muir Partnership received everything it bargained
for in the TNE transaction and that it was Nick’s misuse of the
$435,000 loan funds, as opposed to the transaction itself, that
caused the Partnership’s injury. But TNE did not raise this
distinction below and, as a result, did not identify the applicable
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causation standard or the basis for its assertion that the Muir
Partnership received the loan funds when Nick, acting without
actual or apparent authority, exercised control over them. Without
more, the district court was not given the opportunity to rule on the
issue TNE now raises, and thus that issue is unpreserved. See 438
Main St., 2004 UT 72, ¶ 51.
¶52 TNE attempts to overcome this deficiency by arguing that
we should either (1) construe this issue as an argument preserved
under the issue of “whether the Partnership is a party with
standing to void the Trust Deed,” or (2) exercise our discretion to
address an issue raised for the first time on appeal. We decline both
invitations.
¶53 First, TNE’s “effort to . . . broadly defin[e] the issue it
raised in the district court is unavailing.” See Ahhmigo, 2022 UT 4,
¶ 18 (cleaned up). TNE is correct that we have, at times,
differentiated between new issues on the one hand and new
arguments in support of preserved issues on the other. See, e.g.,
Hand v. State, 2020 UT 8, ¶ 6, 459 P.3d 1014 (differentiating between
“new ‘issues’ (like distinct claims or legal theories) and new
‘arguments’ in support of preserved issues (such as the citation of
new legal authority)”); State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416
P.3d 443 (stating that this court has “rejected the distinction
between ‘issues’ and ‘arguments’ when determining whether
. . . new arguments are actually entirely new issues” (cleaned up)).
But TNE fails to recognize that “we view issues narrowly” when
assessing preservation. Johnson, 2017 UT 76, ¶ 14 n.2; see also
Ahhmigo, 2022 UT 4, ¶ 18. And although we will regularly consider
“new authority or cases supporting an issue that was properly
preserved,” Johnson, 2017 UT 76, ¶ 14 n.2, we will reject as
unpreserved “a legal theory entirely distinct from the legal theory
the appellant raised to the district court,” Ahhmigo, 2022 UT 4, ¶ 18
(cleaned up); see also Hand, 2020 UT 8, ¶ 6 (equating new issues with
distinct legal theories).
¶54 TNE’s assertion—that the TNE transaction did not cause
the Muir Partnership’s injury—involves more than a citation to
new legal authority supporting its generalized assertion that the
Partnership lacks standing to invalidate the TNE transaction.
Instead, the assertion presents a distinct legal theory requiring its
own legal authority and factual analysis, neither of which was
presented to the district court. Thus, the issue is not reviewable
under the umbrella of a preserved issue.
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WITTINGHAM, LLC v. TNE LIMITED PARTNERSHIP
Opinion of the Court
¶55 Second, TNE correctly observes that “[o]ur preservation
requirement is . . . one of prudence rather than jurisdiction” and
that we retain some discretion to decide “whether to entertain or
reject matters that are first raised on appeal.” Patterson v. Patterson,
2011 UT 68, ¶ 13, 266 P.3d 828. But “[i]n an effort to serve the policy
considerations of judicial economy and fairness to the parties, to
preserve the adversarial model, and to provide clear guidelines to
litigants, we have limited our discretion by creating exceptions to
the general preservation rule.” Johnson, 2017 UT 76, ¶ 13. These
exceptions are plain error, ineffective assistance of counsel, and
exceptional circumstances. Ahhmigo, 2022 UT 4, ¶ 16 n.4. “When an
issue is not preserved in the trial court, but a party seeks to raise it
on appeal, the party must establish the applicability of one of these
exceptions to persuade an appellate court to reach that issue.”
Johnson, 2017 UT 76, ¶ 19. TNE has not sought review of this or any
issue under a preservation exception.
B. TNE Did Not Preserve the Ratification Issue It Presents on Appeal
¶56 TNE contends that the Muir Partnership is barred from
voiding the TNE transaction because the Partnership ratified it by
accepting and spending loan proceeds. Plaintiffs assert that this
issue is unpreserved and that, in any event, it fails on its merits.
TNE disagrees, arguing that the question of ratification is not a
separate issue but is merely an “‘argument’ that need not be
preserved in support of the issue of [the Muir Partnership’s]
standing.” Alternatively, TNE argues that its ratification defense
“has been repeatedly preserved,” pointing to a reference to
ratification in its trial brief and another in its closing argument. We
are unpersuaded by either point.
¶57 We reject TNE’s first assertion because TNE again
construes issues too broadly for the purpose of preservation. See
supra ¶¶ 53–54. TNE’s assertion that the Muir Partnership lacked
standing to void the TNE transaction did not preserve its equitable
argument—that the Partnership ratified the TNE transaction and is
therefore barred from disavowing it. TNE’s standing challenge was
based on its claim that the Partnership was not an injured party. In
contrast, for the doctrine of ratification to apply in this context, TNE
would have had to prove its claim that the Partnership “took and
spent the proceeds” from the TNE loan and that the Partnership
had “knowledge of all material facts and an intent to ratify” the
TNE transaction. See Zions First Nat’l Bank v. Clark Clinic Corp., 762
P.2d 1090, 1098 (Utah 1988) (cleaned up). Although both of TNE’s
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contentions share the same goal—to bar the Partnership from
voiding the TNE transaction—they are grounded in different legal
theories that require the application of particular facts to unique
elements. Thus, they present different issues, and the preservation
of one does not preserve the other.
¶58 We likewise reject TNE’s second assertion because TNE’s
references to ratification during the 2013 trial did not preserve the
ratification issue it argues on appeal. As part of the trial, TNE
invoked the concept of ratification in two specific ways. First, in its
trial brief, it argued that if the court found Nick to be incompetent
in his dealings with TNE, then the court should find that the Muir
Partnership ratified the TNE transaction by retaining a benefit from
it. But the district court had no occasion to reach that issue because
it rejected the claim of incompetency. Having tied the argument to
that specific context, TNE cannot now argue that it preserved the
issue generally. Second, during closing argument, while arguing
for an award of restitution, TNE suggested that the Partnership’s
pursuit of a judgment against a co-defendant was “a ratification of
[the TNE] transaction.” But TNE did not contend, as it does now,
that the Partnership was barred from voiding the TNE trust deed
on the basis that it ratified the TNE transaction. Rather, counsel
referenced ratification in passing as an assertion supporting TNE’s
failed unjust enrichment claim—not as a doctrine that barred the
Partnership’s request for relief.
¶59 Further, even if TNE’s references to ratification in 2013
presented the same issue TNE now articulates on appeal, those
references would not have satisfied our preservation requirements
under the circumstances of this case. Our preservation rule requires
that the appellant “timely” present an issue to the district court “in
such a way that the . . . court has an opportunity to rule on it.” See
Park City Mun. Corp. v. Woodham, 2024 UT 3, ¶ 20, 545 P.3d 221(cleaned up). On remand from the appeal in Wittingham III, the
parties framed the issues they wanted addressed. Both sides filed
motions seeking judgment in their favor, and both sides filed
memoranda opposing the relief the other sought. If TNE believed
the Muir Partnership was barred from voiding the TNE transaction
due to ratification, TNE could have identified the issue in its post-
remand memoranda. It was not the district court’s obligation to sift
through near-decade-old trial briefs and transcripts to address each
issue that, in its view, could be ripe for consideration. See Hill v.
Superior Prop. Mgmt. Servs., Inc., 2013 UT 60, ¶ 47, 321 P.3d 1054(“[A] district court is not a depository in which a party may dump
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WITTINGHAM, LLC v. TNE LIMITED PARTNERSHIP
Opinion of the Court
the burden of argument and research.” (cleaned up)); see also
Stichting Mayflower Mountain Fonds v. United Park City Mines Co.,
2017 UT 42, ¶ 43 n.12, 424 P.3d 72 (“Judges are not like pigs,
hunting for truffles buried in briefs.” (quoting United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam))).
C. TNE Did Not Preserve the Issue of Adequate Legal Remedies
¶60 TNE next contends that voiding the TNE transaction
constitutes an equitable remedy and that the Muir Partnership
cannot void the transaction because, according to TNE, the
Partnership has an adequate remedy at law. In response to
plaintiffs’ argument that TNE did not preserve this issue in the
district court, TNE concedes that it did not present “this specific
argument . . . in this same form.” Still, it insists that the challenge is
preserved because it qualifies as an “argument” in support of its
generalized assertion that the Partnership “lacks standing” to void
the TNE transaction. Alternatively, it argues that because the
challenge presents a “pure legal issue,” we should relax our
preservation requirements. We disagree.
¶61 This question presents a unique and independent issue
regarding the availability of a particular remedy. It does not fall
under the general umbrella of standing, nor does it fall within
TNE’s assertion that the Muir Partnership was not an “injured
party” that could invalidate the TNE transaction. Further, TNE has
again failed to argue an exception to preservation. See supra ¶ 55.
D. TNE Did Not Preserve Its Claim for Restoration of Loan Funds
¶62 TNE last asserts that, even if the Muir Partnership could
void the TNE transaction, it would first need to return TNE to the
status quo ante, that is, the position it was in before the TNE
transaction. Plaintiffs again argue that TNE failed to preserve this
issue. For many of the same reasons noted above, we agree with
plaintiffs.
¶63 As it has done before, TNE argues that this issue falls
under “the umbrella of the preserved issue of the Partnership’s
inability to void the [TNE] Trust Deed.” But a comparison of the
two issues demonstrates that they are not alike. The preserved issue
challenges the district court’s determination that the Muir
Partnership was an “injured party” that could seek to invalidate the
TNE transaction. See supra ¶¶ 46, 48. In contrast, TNE—in this final
issue—seeks an order of relief “requiring the Partnership to . . .
restore the funds TNE provided” as part of the TNE transaction.
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These are unique issues, and thus TNE cannot introduce one into
the appeal through the other.
¶64 TNE also argues, in the alternative, that this issue was
“independently preserved” through a reference to restitution in a
pre-trial brief and during closing argument. In both instances,
much like its ratification argument, see supra ¶ 58, TNE’s argument
depended on the district court first finding that Nick was
incompetent. Thus, having rejected the Muir Partnership’s
incompetency claim, the court had no occasion to consider the issue
as it was framed. 11
¶65 Finally, even if the district court should have
spontaneously considered the issue more generally, it was not
timely raised. TNE raised the issue at trial but did not renew it
when the case returned to the district court after remand, more than
eight years later. If TNE had wanted the issue addressed post-
remand, it needed to bring it to the court’s attention. See supra ¶ 59.
This case has been pending for nearly fifteen years. It serves no
one’s interest to frame issues for resolution for the first time on
appeal.
III. PLAINTIFFS’ ATTORNEY FEES CLAIM
¶66 Plaintiffs cross-appeal, contending that, as the prevailing
party in the case, they are entitled to attorney fees under Utah’s
reciprocal attorney fees statute. See UTAH CODE § 78B-5-826.
¶67 “In Utah, attorney fees are awardable only if authorized by
statute or by contract.” Dixie State Bank v. Bracken, 764 P.2d 985, 988
(Utah 1988). Utah’s reciprocal fees statute “permits a court to award
attorney fees to the prevailing party in civil litigation based upon a
__________________________________________________________
11 In its reply brief on appeal, TNE provides an additional
record citation in support of its claim that this issue is preserved.
That citation is to the introduction of TNE’s trial brief, in which it
argued that if the Muir Partnership succeeds on either of its two
main legal theories—that the TNE transaction was not a proper
wind-up event or that Nick was incompetent—the Partnership
must make restitution. The primary problem with the citation is
that in the body of the brief, TNE again limits its discussion of
restitution to the incompetency issue only. This stray reference in
the introduction was insufficient to alert the district court that TNE
intended to argue the issue more broadly.
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WITTINGHAM, LLC v. TNE LIMITED PARTNERSHIP
Opinion of the Court
contract when the contract provides attorney fees to at least one
party.” Federated Cap. Corp. v. Libby, 2016 UT 41, ¶ 28, 384 P.3d 221(citing UTAH CODE § 78B-5-826). But “the award of attorney fees is
allowed only in accordance with the terms of the contract,” R.T.
Nielson Co. v. Cook, 2002 UT 11, ¶ 17, 40 P.3d 1119, and the contract
provision must be “broad enough in scope to cover fees incurred in
this . . . action,” see Loosle v. First Fed. Sav. & Loan Ass’n of Logan, 858
P.2d 999, 1003 (Utah 1993) (emphasis added).
¶68 Plaintiffs assert here, as they did below, that paragraph 4
of the TNE trust deed allows for an attorney fees award to the
prevailing party. That paragraph provides that, to protect the
security of the TNE trust deed, the Muir Partnership agrees
[t]o appear in and defend any action or proceeding
purporting to affect the [apartments], the title to said
[apartments], or the rights or powers of [TNE]; and
should [TNE] elect to also appear in or defend any
such action or proceeding, to pay all costs and
expenses, including . . . attorney’s fees in a reasonable
sum incurred by [TNE].
¶69 The district court rejected plaintiffs’ argument that
paragraph 4 would have provided a basis for an attorney fees
award to TNE had it prevailed in this case. The court observed that
paragraph 4 “cannot and does not apply to plaintiffs’ declaratory
judgment action to invalidate the trust deed” because the
paragraph “does not contemplate a suit such as the one plaintiffs
brought.” The court explained: “This is not a case brought by
someone else in which plaintiffs could have appeared and defended
the trust deed.” (Emphasis added.) Instead, it was plaintiffs who
sued to invalidate the TNE transaction, and they could not
“simultaneously assert” invalidity of the TNE trust deed “while
also seeking to uphold the trust deed as a lien on [the apartments].”
The court reasoned that, properly understood, paragraph 4 is “akin
to an indemnity provision” that would apply where TNE incurred
fees “to appear and defend against claims brought by a third party
purporting to affect the trust deed as security against the
[apartments].”
¶70 Plaintiffs contend that if paragraph 4 “ended” with the
first clause, “the district court’s conclusion would be correct.” They
agree that the first clause requires the Muir Partnership “to appear
and defend in any action purporting to affect the TNE Trust Deed.”
But they see the second clause as “distinct” from the first and allege
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that this clause provides “an award of fees,” the “only condition”
of which “is that TNE appear and defend ‘any action or proceeding
purporting to affect the TNE Trust Deed.’”
¶71 But to arrive at their proffered interpretation, plaintiffs
read language out of the second clause. The second clause provides
that the Muir Partnership agrees to pay TNE’s attorney fees
“should [TNE] elect to also appear in or defend any such action or
proceeding.” (Emphasis added.) By including the word “such,” the
second clause plainly refers back to the first. And reading both
clauses together, the TNE trust deed contemplates recovery of
TNE’s attorney fees where both TNE and the Muir Partnership
“appear in and defend any action or proceeding purporting to
affect the [Apartments], the title to [the Apartments], or the rights
or powers of [TNE],” in order to “protect the security of the TNE
Trust Deed.”
¶72 This action was not one where the Muir Partnership and
TNE both “appear[ed] in and defend[ed]” the security of the TNE
trust deed. Indeed, we agree with the district court that the
Partnership could not appear in and defend against its own lawsuit
seeking to declare the trust deed invalid. Because “any such action”
is not “broad enough in scope to cover fees incurred in this . . .
action,” see Loosle, 858 P.2d at 1003, paragraph 4 is not a legal hook
for a fees award under the reciprocal fees statute. Thus, the district
court did not err in denying plaintiffs’ request for an attorney fees
award.
CONCLUSION
¶73 TNE has not shown that the district court erred in rejecting
its apparent authority argument. The court correctly rejected TNE’s
initial argument that the Muir Partnership manifested its consent
to the exercise of Nick’s authority through Nick’s representations
alone. And while in its rule 60(b) motion, TNE proposed that the
partnership agreement was the source of the Partnership’s
manifestation of consent, TNE has not shown that the court erred
in rejecting the agreement as the source of Nick’s apparent
authority.
¶74 TNE also fails to establish that the district court erred in
allowing the Muir Partnership to void the TNE transaction. TNE’s
argument that the court improperly accounted for injury to Jeanne
fails because TNE has not shown it is reasonably likely that the
court would have declared the transaction enforceable had it not
considered Jeanne’s injury. And we do not reach the remainder of
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WITTINGHAM, LLC v. TNE LIMITED PARTNERSHIP
Opinion of the Court
TNE’s theories as to why the court erred in allowing the
Partnership to void the TNE transaction, because they are
unpreserved.
¶75 Finally, we affirm the district court’s denial of an attorney
fees award to plaintiffs because they have not established that the
plain language of the TNE trust deed allows for recovery of
attorney fees in this action.
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