Mitchell v. ReconTrust Company , 811 Utah Adv. Rep. 30 ( 2016 )

2016 UT App 88THE UTAH COURT OF APPEALS
PAULA A. MITCHELL AND WADE MITCHELL,
Appellants,
v.
RECONTRUST COMPANY NA, THE BANK OF NEW YORK MELLON,
ARMAND J. HOWELL, AMERICA’S WHOLESALE LENDER, AND BAC
HOME LOANS SERVICING LP,
Appellees.
Opinion
No. 20140113-CA
Filed April 28, 2016
Third District Court, West Jordan Department
The Honorable Barry G. Lawrence
No. 110400816
Douglas R. Short, Attorney for Appellants
Chandler P. Thompson and Robert H. Scott,
Attorneys for Appellees ReconTrust Company NA,
The Bank of New York Mellon, America’s Wholesale
Lender, and BAC Home Loans Servicing LP
Armand J. Howell, Appellee Pro Se
SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN concurred. 1 JUDGE J. FREDERIC
VOROS JR. concurred, with opinion.
BENCH, Senior Judge:
¶1 Paula A. Mitchell and Wade Mitchell appeal from the
district court’s orders dismissing several of their claims and
granting summary judgment on their remaining claims in favor
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Mitchell v. ReconTrust Company
of ReconTrust Company NA, the Bank of New York Mellon
(BNYM), America’s Wholesale Lender (AWL), BAC Home Loans
Servicing LP (BAC), and Armand J. Howell. We affirm.
BACKGROUND
¶2 Paula Mitchell obtained a $1 million loan from AWL in
2006. To secure this loan, she executed a trust deed in favor of
AWL on real property in Salt Lake County. The trust deed
defined AWL as “Lender” and designated Stewart Matheson as
the trustee. The trust deed provided that Mortgage Electronic
Registration Systems Inc. (MERS) “is acting solely as nominee
for Lender and Lender’s successors and assigns” and “is the
beneficiary under this Security Instrument.” The trust deed also
indicated that Paula Mitchell
agree[d] that MERS holds only legal title to the
interests granted by Borrower in this Security
Instrument, but, if necessary to comply with law or
custom, MERS (as nominee for Lender and
Lender’s successors and assigns) has the right: to
exercise any or all of those interests, including, but
not limited to, the right to foreclose and sell the
Property.
¶3 On August 17, 2010, MERS recorded a document
assigning its beneficial interest under the trust deed to BNYM.
That same day, BNYM recorded a substitution of trustee in
which BNYM, as the current beneficiary, appointed ReconTrust
as successor trustee under the trust deed. Also on that day,
ReconTrust filed a notice of default and intent to sell the
property. According to the notice, Paula Mitchell had defaulted
on her loan obligation by failing to make payments since May
2010.
¶4 Attempting to prevent foreclosure, Paula and Wade
Mitchell filed a complaint in January 2011 against ReconTrust,
20140113-CA 2 2016 UT App 88Mitchell v. ReconTrust Company
BNYM, AWL, and BAC (collectively, Bank Defendants). The
Mitchells also named Howell as a defendant, alleging that he
was an attorney who “traditionally conducts foreclosure sales
for ReconTrust and is expected to conduct the sale [of the
Mitchells’ property] unlawfully.” 2 The Mitchells raised claims
generally based on a theory that MERS, which was referred to as
the nominee of the lender and the beneficiary under the terms of
the trust deed, lacked authority to appoint BNYM as the
successor beneficiary and that BNYM thus lacked authority to
appoint ReconTrust as the successor trustee. The Mitchells also
alleged that ReconTrust was not authorized to serve as a trustee
under Utah’s statutes. Further, they alleged that BAC, which was
servicing the loan and was purportedly acting as an agent of
BNYM, “directed [the Mitchells] to default in order to be able to
seek a modification because that would be the only way to
obtain a loan modification.” Because they purportedly defaulted
at BAC’s suggestion, the Mitchells alleged that the defendants
were estopped from enforcing the trust deed and note.
¶5 In terms of relief, the Mitchells sought declaratory
judgments clarifying the respective rights under the trust deed
and note, invalidating the substitution of trustee and notice of
default, declaring the debt unsecured and that the defendants
may not foreclose the trust deed, and declaring that the debt had
been satisfied via insurance or credit default swaps. The
2. Howell is mentioned only three more times in the complaint.
In the claim for punitive damages, the Mitchells alleged that
“Howell knows of the legal deficiencies in ReconTrust’s efforts
to act as a foreclosing trustee, and that ReconTrust is not
qualified under the statute to serve as a foreclosing trustee, and
yet he turns a blind eye to such defects and knowingly conducts
unlawful sales for them.” They also alleged that Howell and the
other defendants “colluded in their nationwide practices” and
claimed that punitive damages were necessary to “dissuade Mr.
Howell from continuing to conduct unlawful sales for
ReconTrust.”
20140113-CA 3 2016 UT App 88Mitchell v. ReconTrust Company
Mitchells also sought a permanent injunction of any foreclosure
sale conducted by ReconTrust on behalf of BNYM, an order
quieting title to the subject property in their names, an award of
punitive damages, and an award of attorney fees incurred in
defending against an improper foreclosure.
¶6 Bank Defendants moved to dismiss, arguing that the
Mitchells failed to state any claims upon which relief could be
granted. In support of their motion, Bank Defendants indicated
that on October 6, 2011, ReconTrust had recorded a cancellation
of notice of default, thereby mooting the Mitchells’ claims
challenging ReconTrust’s authority to act as a trustee with power
of sale because ReconTrust would not be conducting any further
foreclosure proceedings on the Mitchells’ property.
¶7 The district court granted the motion to dismiss in part
and dismissed nine of the Mitchells’ eleven claims. The court
first determined that under the terms of the trust deed, “MERS
was the statutory beneficiary and, by contract, the agent of the
Lender and the Lender’s successors.” The court explained that
“MERS assigned its interest to BNYM and [BNYM] is now,
under the terms of the [trust deed] and the statute, the
beneficiary.” The court then addressed each cause of action.
Regarding the Mitchells’ first cause of action seeking a
declaration with respect to the true ownership of the debt, “and
by extension the authority of [the] defendants to foreclose,” the
district court concluded that it stated “no genuine claim for
declaratory relief” because “MERS had, and BNYM has,
authority to commence foreclosure under the terms of the [trust
deed] and the Utah statutes.” Because the tenth cause of action
was “a restatement of the [f]irst,” the court dismissed the tenth
cause of action for the same reasons.
¶8 The court proceeded to dismiss the second and seventh
causes of action, which challenged the notice of default and
alleged a breach of duty by the trustee, as moot in light of the
cancellation of the notice of default. As for the fourth cause of
action, based on a theory that the ownership of the debt had
20140113-CA 4 2016 UT App 88Mitchell v. ReconTrust Company
been severed from the trust deed, the court dismissed it because
“[n]o fact is alleged suggesting that the [trust deed] has been
severed from the underlying obligation, nor is there any
allegation how, under Utah law, this might occur.” The court
also dismissed the fifth cause of action, stating that “the claim
fails to allege any basis for concluding that payment by a third
party to the holder of the debt satisfies” the Mitchells’
obligations under the note and trust deed. The court dismissed
the sixth cause of action for quiet title. It reasoned that BNYM
was the beneficiary and that any securitization of the debt “does
not change the [trust deed’s] terms . . . making BNYM now the
agent (nominee) for the current owner or owners of the debt.”
Moreover, the Mitchells did not dispute that their title was
subject to the trust deed. Last, the court dismissed the eighth
cause of action for an injunction and the eleventh cause of action
for punitive damages because both were remedies rather than
stand-alone claims.
¶9 The district court denied Bank Defendants’ motion to
dismiss with respect to two causes of action. Specifically, the
court concluded that the third cause of action, which appeared to
be based on theories of estoppel and breach of the implied
covenant of good faith and fair dealing, possibly stated a claim
because “actions by the Lender or its agents encouraging [the
Mitchells] to default may constitute a modification of the
underlying agreement, a waiver of one or more of its terms, or
act to estop the current lender from asserting certain contractual
terms.” The court also determined that the ninth cause of action
survived the motion to dismiss because it sought attorney fees
related to a breach of contract and therefore “if [the Mitchells’]
estoppel[] theory establishes that the contract was modified by
[BAC’s] conduct, a breach of contract may be proven.”
Accordingly, the district court allowed the Mitchells to proceed
on their third and ninth causes of action.
¶10 Bank Defendants later moved for summary judgment on
the remaining two claims. The court granted this motion. It
reasoned that all possible legal theories for the third cause of
20140113-CA 5 2016 UT App 88Mitchell v. ReconTrust Company
action relied upon “the alleged misrepresentation that occurred
in March 2010 regarding a possible loan modification.” The court
then concluded that the evidence showed, “[at] most,” that the
Mitchells had a “subjective understanding that they had been
assured that a loan modification would occur.” Thus, it was
“undisputed that there was never an agreement to modify
according to any certain terms, and there was certainly nothing
in writing.” Given this undisputed fact, and noting that the third
cause of action was “unclear as to precisely its legal theory or the
relief sought,” the court determined that “there can be no claim
that [BAC] is bound by a modified loan agreement as a matter of
law” and that a waiver claim likewise would fail. Similarly, the
court concluded that a claim for breach of the covenant of good
faith and fair dealing would fail because “there can be no
implied duty arising” under a nonexistent modification and “no
such duty can be implied out of the [Mitchells’] existing loan.”
The court also concluded that any claim grounded in promissory
estoppel failed because, inter alia, the Mitchells could not
reasonably rely on such an indefinite promise and because the
record did not support actual reliance. Consequently, the court
dismissed the third cause of action. Because the ninth cause of
action depended on the success of the third cause of action, the
court dismissed the ninth cause of action as well. Then, upon
Bank Defendants’ motion, the district court determined that the
Mitchells had failed to comply with discovery orders and
dismissed the complaint as a discovery sanction; the sanction
served as a separate and independent basis for dismissing the
Mitchells’ claims.
¶11 After these orders were entered, Howell, who had not
joined Bank Defendants’ motions, moved for summary
judgment. The district court granted Howell’s motion, stating
that “the reasoning of [the rulings with regard to Bank
Defendants] applies with equal force to Howell and compels a
similar result.” The court emphasized that the Mitchells had “not
pointed to an independent cause of action against Howell that
was not addressed in the prior rulings.” The court further
explained that “the Complaint alleges that Howell was merely
20140113-CA 6 2016 UT App 88Mitchell v. ReconTrust Company
acting on behalf of ReconTrust and is devoid of any allegations
that Howell engaged in conduct that would somehow create
liability separate from the other Defendants.” Accordingly, the
court granted summary judgment to Howell and thereby
disposed of all of the Mitchells’ claims. The Mitchells appeal. 3
ISSUES AND STANDARDS OF REVIEW
¶12 The Mitchells contend that the district court erred in
dismissing nine of their claims. “A district court’s ruling on . . . a
motion to dismiss . . . is a legal question which we review for
correctness.” Commonwealth Prop. Advocates, LLC v. Mortgage Elec.
Registration Sys., Inc., 2011 UT App 232, ¶ 6, 263 P.3d 397.
¶13 The Mitchells next challenge a number of the district
court’s rulings relating to evidence presented in connection with
summary judgment. In particular, they contend that the district
court erred in its rulings on motions to strike several affidavits.
They also contend that the district court erred in refusing to take
judicial notice of declarations from witnesses in a separate
action. “We review a district court’s decision on a motion to
strike affidavits submitted in support of or in opposition to a
motion for summary judgment for an abuse of discretion.”
Portfolio Recovery Assocs., LLC v. Migliore, 2013 UT App 255, ¶ 4,
3. The Mitchells moved this court for permission to file over-
length briefs. Although we granted their motion to file an over-
length opening brief, we denied their motion to file an over-
length reply brief. The Mitchells nevertheless included, as they
explain, the “full reply brief they would have filed by attaching
[it] in the addendum” to their reply brief. This attachment
constitutes “a blatant attempt to skirt” this court’s order and the
page limitations stated in rule 24(f) of the Utah Rules of
Appellate Procedure. See Aspenwood, LLC v. C.A.T., LLC, 2003 UT
App 28, ¶ 46, 73 P.3d 947. Consequently, we have not considered
this addendum.
20140113-CA 7 2016 UT App 88Mitchell v. ReconTrust Company
314 P.3d 1069. Likewise, “[w]e review the [district] court’s
judicial notice of prior adjudicated facts under Rule 201 of the
Utah Rules of Evidence for abuse of discretion.” In re J.B., 2002
UT App 267, ¶ 14, 53 P.3d 958.
¶14 The Mitchells contend that the district court erred in
rendering summary judgment against them on their remaining
two claims. We review the district court’s decision for
correctness. 4 Commonwealth Prop. Advocates, 2011 UT App 232,
¶ 6.
¶15 Finally, the Mitchells contend that they are entitled to
attorney fees. “Whether attorney fees are recoverable is a
question of law . . . .” R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 16,
40 P.3d 1119.
ANALYSIS
I. Claims Dismissed Under Rule 12(b)(6)
¶16 On appeal, the Mitchells challenge the dismissal of several
claims. Rule 12(b)(6) of the Utah Rules of Civil Procedure allows
a defendant to move to dismiss an action that the defendant
believes “fail[s] to state a claim upon which relief can be
granted.” Utah R. Civ. P. 12(b)(6). “[A] rule 12(b)(6) motion to
dismiss admits the facts alleged in the [complaint] but challenges
the [plaintiff’s] right to relief based on those facts.” Maese v.
4. The Mitchells also contend that the district court erred in
dismissing their claims as a discovery sanction. After
determining that the Mitchells had failed to comply with
discovery orders, the district court dismissed the complaint as a
discovery sanction but stated that this rationale served as an
alternative ground for dismissing the complaint. Because we
affirm the district court’s dismissal of the Mitchells’ claims on
the merits, see infra ¶¶ 56, 60, we do not reach the alternative
basis for its decision.
20140113-CA 8 2016 UT App 88Mitchell v. ReconTrust Company
Davis County, 2012 UT App 48, ¶ 3, 273 P.3d 949 (citation and
internal quotation marks omitted). Thus, a district court should
grant a motion to dismiss when, “assuming the truth of the
allegations in the complaint and drawing all reasonable
inferences therefrom in the light most favorable to the plaintiff, it
is clear that the plaintiff is not entitled to relief.” Hudgens v.
Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275 (citation and
internal quotation marks omitted). In evaluating a motion to
dismiss, the district court may “consider documents that are
referred to in the complaint and [are] central to the plaintiff’s
claim” and may also “take judicial notice of public records.”
BMBT, LLC v. Miller, 2014 UT App 64, ¶ 6, 322 P.3d 1172(alteration in original) (citations and internal quotation marks
omitted). Our review of the district court’s dismissal orders
requires us to “accept the plaintiff’s description of facts alleged
in the complaint to be true, but we need not accept extrinsic facts
not pleaded[,] nor need we accept legal conclusions in
contradiction of the pleaded facts.” Reynolds v. Woodall, 2012 UT
App 206, ¶ 10, 285 P.3d 7 (citation and internal quotation marks
omitted).
¶17 We will address the Mitchells’ causes of action by
category based upon the district court’s rationale for dismissal.
Thus, we consider the district court’s dismissal orders relying on
its conclusions that Bank Defendants had authority to commence
foreclosure proceedings, that the cancellation of ReconTrust’s
notice of default mooted several claims, that the trust deed had
not been severed from the debt, that the debt had not been
satisfied, that the Mitchells were not entitled to quiet title, and
that punitive damages were not appropriate.
A. The Authority to Appoint a Successor Trustee and the
Authority to Foreclose
¶18 The Mitchells challenge the dismissal of their first and
tenth causes of action. The first cause of action sought
clarification of the “true ownership of the [d]ebt” and “by
extension the authority of [the] defendants to foreclose upon the
20140113-CA 9 2016 UT App 88Mitchell v. ReconTrust Company
Property.” It alleged that because MERS and its assignee BNYM
lacked any beneficial ownership interest in the debt, MERS and
BNYM could not foreclose on the property. The tenth cause of
action similarly sought to block a non-judicial foreclosure on the
ground that MERS did not have “any beneficial interest in the
Property or the Trust Deed that could even possibly be assigned
to BNYM.” The district court deemed the tenth cause of action to
be a “restatement” of the first. Then, after taking judicial notice
of the trust deed and the promissory note, the court ruled that
both causes of action failed because “MERS had, and BNYM has,
authority to commence foreclosure under the terms of the [trust
deed].”
¶19 The Mitchells argue that MERS and its assignee BNYM
lacked the authority to appoint ReconTrust as the successor
trustee for the purpose of foreclosing on the property. In
support, they contend that “[o]nly a statutorily defined
‘Beneficiary’ may initiate the non-judicial foreclosure of the trust
deed.” The Mitchells further contend that MERS did not meet
the statutory definition of a “beneficiary” and that BNYM, as
MERS’s assignee, therefore could not validly appoint ReconTrust
as successor trustee. Bank Defendants counter that MERS and its
assignee had the authority to foreclose and appoint a successor
trustee under the terms of the trust deed itself. We agree with
Bank Defendants.
¶20 Utah Code section 57-1-19(1) defines a “beneficiary”
under a trust deed as “the person named or otherwise
designated in a trust deed as the person for whose benefit a trust
deed is given, or his successor in interest.” Utah Code Ann.
§ 57-1-19(1) (LexisNexis 2010). However, even if the Mitchells
are correct that MERS does not meet this definition, 5 the terms of
5. The district court ruled that MERS was a statutory beneficiary
as defined by section 57-1-19(1). The district court reasoned that
the statute defines “beneficiary” as “‘the person named or
otherwise designated in a trust deed as the person for whose
(continued…)
20140113-CA 10 2016 UT App 88Mitchell v. ReconTrust Company
the trust deed nevertheless gave MERS the authority to appoint
a successor trustee and foreclose on the property.
¶21 Case law from this court and the Tenth Circuit Court of
Appeals indicates that a trust deed’s plain language may give
MERS, as “nominee for Lender and Lender’s successors and
assigns,” the authority to appoint a successor trustee.
Specifically, this court has previously suggested that at least one
of the statutes governing conveyances does not “imply[] . . . or
somehow indicat[e] that the original parties to the Note and
Deed of Trust cannot validly contract at the outset ‘to have
someone other than the beneficial owner of the debt act on
behalf of that owner to enforce rights granted in [the security
instrument].’” Commonwealth Prop. Advocates, LLC v. Mortgage
Elec. Registration Sys., Inc., 2011 UT App 232, ¶ 13, 263 P.3d 397(third alteration in original) (quoting Marty v. Mortgage Elec.
(…continued)
benefit a trust deed is given, or his successor in interest’”; that
MERS was named in the trust deed as the beneficiary; and that
MERS’s status as nominee of the Lender was thus of no
consequence under the statutory definition. (Quoting Utah Code
Ann. § 57-1-19.) The United States Court of Appeals for the
Tenth Circuit reached a different conclusion on a similar
question in Burnett v. Mortgage Electronic Registration Systems,
Inc., 706 F.3d 1231 (10th Cir. 2013). On analogous facts, it
apparently concluded that MERS could not be “the person
named or otherwise designated in a trust deed as the person for
whose benefit a trust deed is given,” because MERS held “no
ownership right in the note.” Id. at 1237. Based on Burnett, Bank
Defendants concede that the district court apparently erred. We
express no opinion on this point. But we agree with the district
court and the Tenth Circuit in Burnett that the statute is not
dispositive where, as here, the trust deed expressly grants MERS
the right to foreclose and sell the property and thus, by
implication, the right to appoint a successor trustee for that
purpose. Id.
20140113-CA 11 2016 UT App 88Mitchell v. ReconTrust Company
Registration Sys., No. 1:10-cv-00033-CW, 2010 WL 4117196, at *5
(D. Utah Oct. 19, 2010)). In other words, “[t]he plain language of
[a conveyancing] statute does nothing to prevent MERS from
acting as nominee for Lender and Lender’s successors and
assigns when permitted by the Deed of Trust.” Id. Similarly, the
Tenth Circuit has noted that even when “MERS is not a
beneficiary as that term is defined in [Utah Code section]
57-1-19(1)[,] . . . MERS nonetheless [may have the] authority to
appoint [a successor trustee] and foreclose on [a] property”
under the plain language of the trust deed. See Burnett v.
Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1237 (10th Cir.
2013).
¶22 Consistent with this case law, we conclude that the terms
of the trust deed in this case explicitly gave MERS the right to
appoint a successor trustee regardless of whether MERS satisfied
the statutory definition of a beneficiary. The trust deed explained
with respect to substituting the trustee that “Lender, at its
option, may from time to time remove Trustee and appoint a
successor trustee to any Trustee appointed hereunder.” But the
trust deed also stated,
Borrower understands and agrees that MERS holds
only legal title to the interests granted by Borrower
in this Security Instrument, but, if necessary to
comply with law or custom, MERS (as nominee for
Lender and Lender’s successors and assigns) has
the right: to exercise any or all of those interests,
including, but not limited to, the right to foreclose
and sell the Property; and to take any action
required of Lender including, but not limited to,
releasing and canceling this Security Instrument.
Because the trust deed granted MERS, as nominee for Lender
and its assigns, the right “to exercise any or all of those interests”
“granted by Borrower in this Security Interest” and the right “to
take any action required of Lender,” the trust deed allowed
MERS to remove the trustee and appoint a successor trustee on
20140113-CA 12 2016 UT App 88Mitchell v. ReconTrust Company
Lender’s behalf. It also gave MERS the “right to foreclose and
sell the Property.” See, e.g., Sincere v. BAC Home Loans Servicing,
LP, No. 3:11-cv-00038, 2011 WL 6888671, at *5 (W.D. Va. Dec. 30,
2011) (construing a similar trust deed and concluding that “the
plain terms of the deed of trust supplied MERS with the
authority to take any action required of the lender, including
foreclosing and selling the property in the event of a default as
well as appointing substitute trustees to do the same,” and
noting that the borrower’s signature on the trust deed “indicates
that he agreed MERS had the authority to take any action
required of the lender”); Ramirez-Alvarez v. Aurora Loan Servs.,
LLC, No. 01:09cv1306, 2010 WL 2934473, at *3 (E.D. Va. July 21,
2010) (interpreting similar language in a trust deed to mean that
the borrower “agreed that MERS, filling the dual roles of
beneficiary and nominee for the lender, had the right to foreclose
on the property and take any action required of the lender, such
as the appointment of substitute trustees”). Thus, we conclude
that the trust deed’s terms, to which Paula Mitchell agreed,
provide MERS and its assignee BNYM the authority to appoint a
successor trustee. Consequently, BNYM could validly appoint
ReconTrust as successor trustee in accordance with the trust
deed’s plain language.
¶23 The Mitchells’ challenge to the dismissal of their first and
tenth causes of action depends upon their assertion that MERS
and its assignee BNYM lacked authority to foreclose. But as we
have concluded, the plain terms of the trust deed authorized
MERS, as Lender’s nominee, “to foreclose and sell the Property.”
Accordingly, the district court did not err in dismissing the
Mitchells’ first and tenth causes of action.
B. The Claims Dismissed as Moot
¶24 The Mitchells argue that the district court erred in
dismissing the second and seventh causes of action as moot,
asserting that “the questions of what duties ReconTrust had, and
still has, to the Mitchells remain unanswered.” The second cause
20140113-CA 13 2016 UT App 88Mitchell v. ReconTrust Company
of action challenged ReconTrust’s qualifications as successor
trustee and its actions, including its notice of default. The
seventh cause of action alleged that ReconTrust breached its
duties as successor trustee by initiating a non-judicial foreclosure
sale without authority to do so. Thus, both causes of action
challenged ReconTrust’s power as successor trustee to carry out
a non-judicial foreclosure sale. The district court determined that
these two claims were moot by virtue of the fact that ReconTrust
withdrew its notice of default and represented to the court that it
would not be conducting any further foreclosure proceedings on
the Mitchells’ property.
¶25 “If the requested judicial relief cannot affect the rights of
the litigants, the case is moot and a court will normally refrain
from adjudicating it on the merits.” Merhish v. H.A. Folsom
& Assocs., 646 P.2d 731, 732 (Utah 1982) (citation and internal
quotation marks omitted). “Once a controversy has become
moot, a trial court should enter an order of dismissal.” Id. at 733.
¶26 The Mitchells acknowledge that ReconTrust withdrew the
notice of default but nevertheless argue that these causes of
action are not moot, because ReconTrust lacks the statutory
authority to conduct a non-judicial foreclosure sale. We first note
that this argument is contrary to their statement before the
district court that they voluntarily agreed to dismiss “their
present request for a declaratory judgment that ReconTrust lacks
the statutory authority to conduct non-judicial foreclosure sales
in Utah.” In any event, the cancellation of the notice of default
and BNYM’s continuing freedom to appoint a qualified trustee,
see supra ¶¶ 22–23, eliminated any dispute regarding whether
ReconTrust was authorized to foreclose on the Mitchells’
property. Further, because ReconTrust retracted its notice of
default and never sold the property, ReconTrust cannot be held
liable for breach of any duty based on an unauthorized
foreclosure. Because the requested relief in relation to the second
and seventh causes of action would not affect the rights of the
20140113-CA 14 2016 UT App 88Mitchell v. ReconTrust Company
parties, the district court properly dismissed these claims as
moot. 6
C. The Claim That Ownership of the Debt Was Severed from
the Trust Deed
¶27 The Mitchells contend that the district court erred in
dismissing the fourth cause of action. This cause of action
alleged that AWL transferred the ownership interest in the debt
to a mortgage-backed security. It further alleged that
“fractionalizing the ownership of the Debt by securitization . . .
effectively destroy[ed] the security for the Debt.” 7 Thus, the
Mitchells sought “a judgment declaring that the Debt has . . .
become unsecured, and the Trust Deed may not be foreclosed.”
On appeal, the Mitchells argue that “the Trust Deed has been
severed from the Debt . . . rendering the Debt unsecured, and
precluding foreclosure.”
¶28 The premise underlying this argument and the Mitchells’
fourth cause of action was rejected by this court in Commonwealth
Property Advocates, LLC v. Mortgage Electronic Registration
System, Inc., 2011 UT App 232, 263 P.3d 397. There, a debtor
argued that the lender and MERS, as the lender’s nominee, “lost
their rights under the Deed of Trust when the Note was
6. Since this appeal was filed, BNYM recorded a substitution of
trustee appointing eTitle Insurance Agency as the successor
trustee. Taking judicial notice of this recorded document, see
Utah R. Evid. 201, we observe that it supports our conclusion
that it is no longer relevant whether ReconTrust was properly
appointed successor trustee in the first place or whether
ReconTrust was qualified under Utah law to act as a trustee.
7. “Securitization” is the “process of pooling loans and selling
them to investors on the open market.” Commonwealth Prop.
Advocates, LLC v. Mortgage Elec. Registration Sys., Inc., 680 F.3d
1194, 1197 n.2 (10th Cir. 2011).
20140113-CA 15 2016 UT App 88Mitchell v. ReconTrust Company
securitized.” Id. ¶ This court disagreed, explaining that “when a
debt is transferred, the underlying security continues to secure
the debt.” Id. ¶ 13 (citing Utah Code Ann. § 57-1-35 (LexisNexis
2010)); accord Burnett v. Mortgage Elec. Registration Sys., Inc., 706
F.3d 1231, 1237–38 (10th Cir. 2013); Commonwealth Prop.
Advocates, LLC v. Mortgage Elec. Registration Sys., Inc., 680 F.3d
1194, 1202–05 (10th Cir. 2011) (determining that MERS retained
its authority to foreclose even after the debt secured by a Utah
trust deed was securitized, and concluding that “[e]ven
assuming Plaintiff is correct that securitization deprives
Defendants of their implicit power to foreclose as holders of the
trust deeds, the trust deeds explicitly granted Defendants the
authority to foreclose”).
¶29 The Mitchells have not persuaded us that their argument
is distinguishable from the one precluded by this court’s
decision in Commonwealth Property Advocates. Any securitization
of the debt secured by the trust deed did not take away MERS’s
power to foreclose under the trust deed’s terms. See
Commonwealth Prop. Advocates, 2011 UT App 232, ¶¶ 11–13. As a
consequence, we affirm the district court’s dismissal of the
Mitchells’ fourth cause of action.
D. Satisfaction of the Debt
¶30 The Mitchells challenge the dismissal of their fifth cause
of action that sought a declaratory judgment regarding the
satisfaction of the debt. The Mitchells assert that the debt “has
been paid in whole, by means of insurance or some similar
instrument [e.g., a credit default swap], such that the true
owners of the Debt are no longer owed anything . . . , which
extinguishes the Debt and the trust deed.”
¶31 The district court dismissed this cause of action on the
ground that “the claim fails to allege any basis for concluding
that payment by a third party to the holder of the debt satisfies
[the Mitchells’] obligations under the Note and [the trust deed].”
Beyond offering a conclusory statement, the Mitchells make no
effort on appeal to demonstrate error in the district court’s
20140113-CA 16 2016 UT App 88Mitchell v. ReconTrust Company
reasoning. See Simmons Media Group, LLC v. Waykar, LLC, 2014
UT App 145, ¶ 37, 335 P.3d 885 (indicating that appellants do not
meet their burden to demonstrate district court error when they
fail to present reasoned analysis based on relevant legal
authority). Accordingly, we affirm the dismissal of this claim.
E. Quiet Title
¶32 The Mitchells contend that the district court prematurely
dismissed their sixth cause of action for quiet title. In so arguing,
they concede that the property was subject to the trust deed but
assert that the district court “never examined, let alone
determined, who, if anybody, actually has any valid, enforceable
claim against the Property based on the trust deed.”
¶33 “A quiet title action ‘is a suit brought to quiet an existing
title against an adverse or hostile claim of another and the effect
of a decree quieting title is not to vest title but rather is to perfect
an existing title as against other claimants.’” Haynes Land
& Livestock Co. v. Jacob Family Chalk Creek, LLC, 2010 UT App 112,
¶ 19, 233 P.3d 529 (quoting Nolan v. Hoopiiaina (In re Malualani B.
Hoopiiaina Trust), 2006 UT 53, ¶ 26, 144 P.3d 1129). “To succeed
in an action to quiet title to real estate, a plaintiff must prevail on
the strength of his own claim to title and not on the weakness of
a defendant’s title or even its total lack of title.” Church v.
Meadow Springs Ranch Corp., 659 P.2d 1045, 1048–49 (Utah 1983).
¶34 We agree with Bank Defendants that, instead of showing
the strength of their own claim to title, the Mitchells “only attack
the alleged interest of [Bank Defendants] in the property.” The
district court concluded that the Mitchells’ theories attacking
Bank Defendants’ rights vis-à-vis the trust deed were legally
incorrect. In light of this conclusion, and because the Mitchells
conceded that their title is subject to the trust deed, the district
court dismissed the Mitchells’ quiet title action. In other words,
the district court did determine that Bank Defendants have a
“valid, enforceable claim against the Property based on the trust
deed.” The Mitchells’ effort on appeal falls short of
demonstrating error in the district court’s analysis. Accordingly,
20140113-CA 17 2016 UT App 88Mitchell v. ReconTrust Company
we affirm the court’s decision that the Mitchells did not state a
claim that would entitle them to quiet title.
F. The Punitive Damages Claim
¶35 The Mitchells also challenge the district court’s dismissal
of their eleventh cause of action seeking punitive damages. 8 On
appeal, the Mitchells attempt to recast this cause of action as one
for civil conspiracy, stating, “Although admittedly mislabeled as
a request for punitive damages, the 11th [cause of action]
actually sets forth its own common law claim of civil
conspiracy . . . .”
¶36 “[T]o preserve an issue for appeal the issue must be
presented to the trial court in such a way that the trial court has
an opportunity to rule on that issue.” Brookside Mobile Home Park,
Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. Issues that are not
raised before the district court “are usually deemed waived.” 438
Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801.
¶37 The Mitchells have not preserved this argument for
appeal. In opposing Bank Defendants’ motion to dismiss, the
Mitchells did not address their eleventh cause of action.
Consequently, they did not present the district court with an
opportunity to rule on the same argument they now raise on
appeal, namely, that they sufficiently alleged a claim for civil
conspiracy. The Mitchells also have not argued that plain error
or exceptional circumstances would justify our review of this
issue. Because the Mitchells did not preserve their argument
challenging the district court’s dismissal of their eleventh cause
of action, we affirm the district court’s decision without reaching
its merits.
¶38 In short, the district court did not err in concluding that
“MERS had, and BNYM has, authority to commence foreclosure
8. The Mitchells do not specifically challenge the dismissal of
their eighth cause of action for an injunction. See supra ¶ 8.
20140113-CA 18 2016 UT App 88Mitchell v. ReconTrust Company
under the terms of the [trust deed].” Moreover, the Mitchells
have not demonstrated that the district court erred in granting
Bank Defendants’ motion to dismiss all but the third and ninth
causes of actions.
II. Challenges to the Evidence on Summary Judgment
¶39 The Mitchells next challenge three of the district court’s
rulings relating to evidence presented in connection with
summary judgment. Specifically, they assert that the district
court erred in denying their motion to strike a bank employee’s
affidavit, in granting Bank Defendants’ motion to strike the
Mitchells’ affidavits, and in refusing to take judicial notice of
declarations made in a separate case. We reject these arguments.
A. The Court’s Refusal to Strike a Bank Employee’s Affidavit
¶40 First, the Mitchells assert that the district court
improperly refused to strike an affidavit from a bank employee.
They argue that the affidavit was inadmissible because it
constituted hearsay and was not based on the employee’s
personal knowledge.
¶41 District courts generally have “broad discretion to decide
motions to strike summary judgment affidavits.” Portfolio
Recovery Assocs., LLC v. Migliore, 2013 UT App 255, ¶ 4, 314 P.3d
1069 (citation and internal quotation marks omitted). To obtain
reversal, appellants must show not only district court error but
also “error that was substantial and prejudicial in the sense that
there is at least a reasonable likelihood that in the absence of the
error the result would have been different.” Ross v. Epic Eng’g,
PC, 2013 UT App 136, ¶ 12, 307 P.3d 576 (citation and internal
quotation marks omitted).
¶42 Here, the district court considered the affidavit at issue as
“relevant to the dispute” and “properly before the Court.”
However, the district court stated that it had “decided the
motion for summary judgment without reference to the [bank
employee’s] Affidavit.” Because the bank employee’s affidavit
20140113-CA 19 2016 UT App 88Mitchell v. ReconTrust Company
played no role in the district court’s decision on summary
judgment, the Mitchells cannot show that they were prejudiced
by the district court’s denial of their motion to strike.
Accordingly, we will not reverse the district court on this basis.
B. The Court’s Striking of the Mitchells’ Affidavits
¶43 Second, the Mitchells assert that the district court erred in
striking their own affidavits. But as with their challenge to the
court’s refusal to strike the bank employee’s affidavit, the
Mitchells cannot show that they were prejudiced by the court’s
decision to exclude their affidavits. See id. The Mitchells have not
been harmed, because the court specifically stated that “even
considering the affidavits, Defendants would still be entitled to
summary judgment.” As a result, this argument also does not
present reason to reverse the district court.
C. The Court’s Refusal to Take Judicial Notice of Certain
Declarations
¶44 Third, the Mitchells argue that the district court erred in
not taking judicial notice of declarations that former employees
of Bank of America made in a separate case. 9 According to the
Mitchells, the declarations contain admissions that Bank of
America “systematically tried to induce homeowners into
‘default’ in order to force them into foreclosure” and would be
offered to “demonstrat[e] that [the Mitchells would] likely be
able to present similar evidence at trial.”
¶45 Rule 201 of the Utah Rules of Evidence governs judicial
notice of adjudicative facts. It provides that “[t]he court may
judicially notice a fact that is not subject to reasonable dispute
because it . . . is generally known . . . or . . . can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.” Utah R. Evid. 201(b). The court “may
9. Bank of America is the successor-by-merger to BAC.
20140113-CA 20 2016 UT App 88Mitchell v. ReconTrust Company
take judicial notice on its own; or . . . must take judicial notice if a
party requests it and the court is supplied with the necessary
information.” Id. R. 201(c).
¶46 The Mitchells have not demonstrated that the district
court erred by refusing to take judicial notice of the former
employees’ declarations. Appellants must support their
arguments on appeal with reasoned analysis based on relevant
legal authority. See Simmons Media Group, LLC v. Waykar, LLC,
2014 UT App 145, ¶ 37, 335 P.3d 885; see also Utah R. App. P.
24(a)(9). The Mitchells’ argument is limited to a conclusory
statement that the district court violated rule 201(d) because the
rule “mandates [that] a court shall take judicial notice of
uncontroverted facts in situations such as this.” However, the
Mitchells do not analyze whether the declarations contain
“adjudicative facts” and, as in the district court, the Mitchells
have not offered any authority that would allow the court to take
judicial notice of declarations filed in another action and then to
consider the substance of those declarations. Accordingly, this
claim of error fails.
III. Claims Dismissed on Summary Judgment
¶47 Next, the Mitchells challenge the district court’s summary
judgment against them on their third cause of action. 10 Summary
judgment is appropriate if, viewing “the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party,” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600(citation and internal quotation marks omitted), “there is no
10. Without additional analysis, the Mitchells state that they
challenge the district court’s order with regard to the ninth cause
of action for “breach of contract.” The district court dismissed
the ninth cause of action because it “depended on the success of
the Third Cause of Action.” Because we affirm the dismissal of
the third cause of action, we do not address the ninth.
20140113-CA 21 2016 UT App 88Mitchell v. ReconTrust Company
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law,” Utah R. Civ. P. 56(a). 11
A. Summary Judgment in Favor of Bank Defendants
¶48 The Mitchells first challenge the merits of the district
court’s summary judgment in favor of Bank Defendants on the
third cause of action. Specifically, the Mitchells contend that the
district court erred in granting summary judgment on their third
cause of action for “estoppel and breach of good faith and fair
dealing,” which was based on their assertion that the defendants
had caused them to stop making their mortgage payments. At
the outset, the district court noted that the third cause of action
was “unclear as to precisely its legal theory or the relief sought”
but concluded that “all possible legal theories rely on the alleged
misrepresentation that occurred in March 2010 regarding a
possible loan modification.” The court later determined that the
third cause of action could not survive summary judgment
under a theory of promissory estoppel or a theory of breach of
the covenant of good faith and fair dealing. The Mitchells raise
arguments on appeal related to both legal theories.
1. Promissory Estoppel
¶49 The Mitchells’ arguments related to the theory of
promissory estoppel appear directed at one element, namely,
that the “plaintiff acted with prudence and in reasonable reliance
on a promise made by the defendant.” Youngblood v. Auto-
Owners Ins. Co., 2007 UT 28, ¶ 16, 158 P.3d 1088 (citation and
internal quotation marks omitted). They then argue that the
court misallocated the burden on summary judgment. The
Mitchells further argue that the district court inappropriately
11. Although rule 56 of the Utah Rules of Civil Procedure has
been amended since the time the district court granted summary
judgment in this case, those changes are not relevant to our
analysis.
20140113-CA 22 2016 UT App 88Mitchell v. ReconTrust Company
weighed the evidence against them in concluding that they
could not show the existence of a definite and certain promise to
support a promissory estoppel claim.
¶50 In particular, the Mitchells contend that the “court never
determined whether defendants met their initial burdens” and
that the Mitchells “therefore were not even under any obligation
to prove any factual dispute.” Relying on Orvis v. Johnson, 2008
UT 2, 177 P.3d 600, they state that a movant must “‘affirmatively
provide factual evidence establishing that there is no genuine
issue of material fact.’” (Quoting id. ¶ 16.) The Mitchells’
argument, however, does not account for the fact that they
would carry the burden of proof at trial on the third cause of
action. The same case cited by the Mitchells clarified that
[a] summary judgment movant, on an issue where
the nonmoving party will bear the burden of proof at
trial, may satisfy its burden on summary judgment
by showing, by reference to “the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if
any,” that there is no genuine issue of material fact.
Orvis, 2008 UT 2, ¶ 18 (emphasis added) (quoting an earlier
version of rule 56 of the Utah Rules of Civil Procedure). “Upon
such a showing, whether or not supported by additional
affirmative factual evidence, the burden then shifts to the
nonmoving party, who ‘may not rest upon the mere allegations
or denial of the pleadings,’ but ‘must set forth specific facts
showing that there is a genuine issue for trial.’” Id. (emphasis
omitted) (quoting an earlier version of rule 56).
¶51 Because the Mitchells as the nonmoving party would
carry the burden of proof at trial, Bank Defendants, as the
moving party, met their burden on summary judgment by
showing, by reference to the evidence, “that there [was] no
genuine issue of material fact.” Id. To successfully defend against
Bank Defendants’ motion, the Mitchells therefore had an
20140113-CA 23 2016 UT App 88Mitchell v. ReconTrust Company
obligation to “‘set forth specific facts showing that there [was] a
genuine issue for trial.’” Id. (quoting an earlier version of rule
56). The Mitchells have not demonstrated that the district court
misallocated the parties’ burdens on summary judgment.
¶52 Likewise, the Mitchells have not demonstrated that the
district court inappropriately weighed the evidence. They assert
that the district court weighed the evidence because it did not
accept their allegation that BAC instructed them to miss
mortgage payments in order to obtain a loan modification. They
also focus on the district court’s statements that the Mitchells’
testimony was “unclear,” “less than certain,” and “imprecise.”
¶53 “Promissory estoppel involves a clear and definite
promise . . . .” Youngblood, 2007 UT 28, ¶ 19 (citation and internal
quotation marks omitted). Thus, a “party claiming estoppel must
present evidence showing that an offer or promise was made on
which the party based his or her reliance.” Nunley v. Westates
Casing Servs., Inc., 1999 UT 100, ¶ 36, 989 P.2d 1077. “Likewise,
the alleged promise must be reasonably certain and definite, and
a claimant’s subjective understanding of the promissor’s
statements cannot, without more, support a promissory estoppel
claim.” Id.
¶54 The district court’s decision rested on its conclusion that
“there is no evidence supporting a clear promise or
representation by [BAC] to unconditionally modify the loan.”
Instead, the evidence, including the Mitchells’ testimony,
indicated that BAC told the Mitchells that “once [they] missed
two payments, [they] could apply for a loan modification.”
Because the evidence showed that the Mitchells, at most, had a
“subjective understanding that they had been assured that a loan
modification would occur,” the district court determined as a
matter of law that the Mitchells “could not reasonably rely on a
promise that is so indefinite that it lacks—literally—any terms.”
¶55 In this regard, the context of the district court’s
statements—that the Mitchells were “unclear,” “less than
certain,” and “imprecise”—matters. The court stated that the
20140113-CA 24 2016 UT App 88Mitchell v. ReconTrust Company
Mitchells’ testimony on the issue of whether BAC promised
them a loan modification was “less than certain,” noting that
“[Wade] Mitchell testified that someone from [BAC] promised
them a loan modification, and so he and his wife ‘expected’ a
loan modification.” And it was “unclear from [the Mitchells’]
own testimony whether [BAC] actually promised them an
unconditional loan modification, or whether it simply agreed to
discuss the matter.” The court also indicated that the Mitchells’
affidavits were “similarly imprecise” because Wade Mitchell
testified that “they were only promised the ability to apply for a
loan modification.” Given this context and the court’s task of
evaluating whether the Mitchells had provided specific facts
showing that BAC made a promise on certain terms, we are not
convinced that the court improperly weighed the evidence.
¶56 The Mitchells do not identify any evidence that the
district court failed to consider or any evidence that
unequivocally indicates that BAC, without condition, promised
to modify the loan on certain terms. The evidence, even
construed in the light most favorable to the Mitchells, does not
show that there was a genuine issue of material fact, because any
instruction given by BAC to the Mitchells does not meet the legal
standard for a definite and certain promise required for a
promissory estoppel claim. See id. As a consequence, the district
court did not err in concluding that no genuine issue of fact
existed and that Bank Defendants were entitled to judgment as a
matter of law on this theory.
2. Breach of the Covenant of Good Faith and Fair Dealing
¶57 The Mitchells also challenge the district court’s summary
judgment decision on the third cause of action on the theory of a
breach of the covenant of good faith and fair dealing. They
contend that the court misapplied the law and should have
concluded that “the allegations show defendants intentionally
rendered it difficult if not impossible for [Paula Mitchell] to
receive the fruits of her Loan by falsely inducing her into
‘defaulting.’” They also make the contrary argument that their
20140113-CA 25 2016 UT App 88Mitchell v. ReconTrust Company
claims “are not based on the existing Loan” but instead are
“based on defendants’ misconduct impairing the Loan by
fraudulently inducing a ‘default’ in order to profit from it.”
¶58 “Under the covenant of good faith and fair dealing, each
party impliedly promises that he will not intentionally or
purposely do anything which will destroy or injure the other
party’s right to receive the fruits of the contract.” Iota, LLC v.
Davco Mgmt. Co., 2012 UT App 218, ¶ 32, 284 P.3d 681 (citation
and internal quotation marks omitted). “[O]ne party may not
render it difficult or impossible for the other to continue
performance and then take advantage of the non-performance he
has caused.” Id. (alteration in original) (citation and internal
quotation marks). Some limitations on the covenant of good faith
and fair dealing exist:
the Covenant cannot be used (1) to create new or
independent rights or obligations to which the
parties have not agreed in the contract; (2) to
establish rights or duties inconsistent with the
express terms of the contract; or (3) to require a
party to exercise an express contractual right in a
manner detrimental to its own interests in order to
benefit the other party to the contract.
Cook Assocs., Inc. v. Utah Sch. & Inst. Trust Lands Admin., 2010 UT
App 284, ¶ 16, 243 P.3d 888 (citing Oakwood Vill. LLC v.
Albertsons, Inc., 2004 UT 101, ¶ 45, 104 P.3d 1226). Consistent
with these limitations, this court has recognized that “[d]eclining
to give up rights granted by a contract does not constitute a
breach of the covenant of good faith and fair dealing.” Iota, 2012
UT App 218, ¶ 33.
¶59 Despite the Mitchells’ statement that their claim is “not
based on the existing Loan,” they do not appear to contend that
the implied duty arises out of any separate agreement to modify
the loan. Although vague, we understand the substance of the
Mitchells’ argument to center on an implied duty arising out of
20140113-CA 26 2016 UT App 88Mitchell v. ReconTrust Company
the original loan agreement. The Mitchells theorize that Bank
Defendants breached the implied duty of good faith and fair
dealing by inducing them to default with the information that
the Mitchells could obtain a loan modification only if they first
defaulted.
¶60 Considering the evidence in the light most favorable to
the Mitchells and thus assuming that Bank Defendants told the
Mitchells that they could not even apply for a loan modification
unless they defaulted, Bank Defendants did not breach the
implied duty of good faith and fair dealing as a matter of law.
The information regarding a possible loan modification did not
render it impossible for the Mitchells to continue making their
mortgage payments. Indeed, according to Wade Mitchell’s
affidavit, the Mitchells’ default was at least in part attributable to
the fact that “cash flow was getting tighter.” Thus, Bank
Defendants’ conduct did not impede the Mitchells from
performing their obligations under the contract or render it
impossible for them to perform. See id. ¶¶ 32–33. Furthermore,
the district court correctly concluded that “no such duty can be
implied out of [the Mitchells’] existing loan as a matter of law,”
because the Mitchells’ position—that Bank Defendants could not
foreclose after their missed payments—would require Bank
Defendants to forgo rights granted by the original loan
agreement. See id. ¶ 33. Accordingly, we affirm the district
court’s dismissal of the Mitchells’ third cause of action based on
the theory of the covenant of good faith and fair dealing. 12
12. The Mitchells also suggest that the district court should have
accepted certain allegations in the complaint as true in its
consideration of the third cause of action. However, because the
Mitchells have not demonstrated that they preserved this
argument, we do not consider it. See Utah R. App. P. 24(a)(5)
(requiring the appellant’s brief to contain “citation to the record
showing that the issue was preserved in the trial court” or a
basis for addressing an unpreserved issue); 438 Main St. v. Easy
(continued…)
20140113-CA 27 2016 UT App 88Mitchell v. ReconTrust Company
B. Summary Judgment in Favor of Howell
¶61 The Mitchells also challenge the district court’s order
granting summary judgment to Howell, the attorney who on
occasion conducted trustee’s sales on behalf of ReconTrust. They
attack the court’s ruling on both procedural and substantive
grounds.
¶62 As for their procedural argument, the Mitchells contend
that Howell waived the defense of failure to state a claim by not
raising it sooner. In support, they rely on rule 12(h) of the Utah
Rules of Civil Procedure, which provides, “A party waives all
defenses and objections not presented either by motion or by
answer or reply . . . .” Utah R. Civ. P. 12(h). “A defense of failure
to state a claim, however, falls under a procedural
exception . . . .” Mack v. Utah State Dep’t of Commerce, 2009 UT 47,
¶ 14, 221 P.3d 194 (citing Utah R. Civ. P. 12(h)). The rule specifies
that “the defense of failure to state a claim upon which relief can
be granted . . . may also be made by a later pleading . . . or by
motion for judgment on the pleadings or at the trial on the
merits.” Utah R. Civ. P. 12(h). Accordingly, a “defense of failure
to state a claim . . . may be raised any time before the court or
jury determines the validity of a party’s claim.” Mack, 2009 UT
47, ¶ 14 (citing Utah R. Civ. P. 12(h)). Because Howell raised the
defense by moving for summary judgment before the court
ruled on the merits of the claims against him, the Mitchells have
not shown that the district court erred in refusing to strike
Howell’s motion on the ground that Howell had waived the
defense of failure to state a claim.
¶63 Regarding the merits, the Mitchells contend that the
district court erred in concluding that “Howell was entitled to
[the] same result as [the] co-defendants.” The Mitchells
(…continued)
Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“Issues that are not
raised at trial are usually deemed waived.”).
20140113-CA 28 2016 UT App 88Mitchell v. ReconTrust Company
acknowledge the court’s determination that they had “not
pointed to an independent cause of action against Howell that
was not addressed in the prior rulings.” Nevertheless, they
contend that the court erred because “each ‘cause of action’ is
still a claim against Howell personally.”
¶64 The Mitchells have failed to demonstrate that the district
court erred in concluding that “the reasoning of [the rulings with
regard to Bank Defendants] applies with equal force to Howell
and compels a similar result.” They also have not addressed the
court’s rationale that “the Complaint alleges that Howell was
merely acting on behalf of ReconTrust and is devoid of any
allegations that Howell engaged in conduct that would
somehow create liability separate from the other Defendants.”
Accordingly, we affirm the district court’s grant of summary
judgment to Howell.
IV. Attorney Fees
¶65 Finally, the Mitchells contend that they are entitled to
attorney fees under a number of legal theories: contract, the
private attorney general doctrine, the common fund doctrine,
and the court’s inherent authority. We conclude that an award of
attorney fees is not warranted here.
¶66 “As a general rule, Utah courts award attorney fees only
to a prevailing party, and only when such an action is permitted
by either statute or contract.” Doctors’ Co. v. Drezga, 2009 UT 60,
¶ 32, 218 P.3d 598. At the appellate level, generally “when a
party who received attorney fees below prevails on appeal, the
party is also entitled to fees reasonably incurred on appeal.”
Robertson’s Marine, Inc. v. I4 Sols., Inc., 2010 UT App 9, ¶ 8, 223
P.3d 1141 (citation and internal quotation marks omitted).
¶67 The district court did not award any attorney fees to the
Mitchells. And on appeal, their request for attorney fees under
all theories is contingent upon their success before this court.
Because the Mitchells did not receive attorney fees below and
20140113-CA 29 2016 UT App 88Mitchell v. ReconTrust Company
have not prevailed on appeal, we decline to award them
attorney fees incurred on appeal. See id.CONCLUSION
¶68 The Mitchells have not demonstrated that the district
court erred in dismissing several of their causes of action upon
Bank Defendants’ motion to dismiss. The Mitchells have also
failed to show that the district court erred in its evidentiary
rulings or in granting summary judgment to the defendants on
their remaining claims. Accordingly, we affirm.
VOROS, Judge (concurring):
¶69 I concur in the majority opinion. Alternatively, I believe
this appeal is inadequately briefed.
¶70 For example, perhaps the Mitchells’ most sympathetic
claim is their claim for equitable estoppel. They assert that Bank
Defendants induced them to miss monthly payments on the note
and consequently should be estopped from foreclosing on the
house based on those missed monthly payments. But the
Mitchells’ brief fails to cite any relevant legal authority, quote
testimony from the record, identify the elements of equitable
estoppel, or explain how a reasonable fact-finder could find each
of those legal elements. They instead rely on statements such as
the following: “It is believed a pattern of deliberate misconduct
will come to light through discovery, which misconduct has
resulted in thousands of similarly situated borrowers being
duped by defendants into ‘defaulting,’ so that they could hijack
their loans for defendants’ own hidden profit scheme,” and “No
one could possibly consider such systematic profiteering from
fraudulent statements fair or equitable.”
20140113-CA 30 2016 UT App 88Mitchell v. ReconTrust Company
¶71 Similarly, the Mitchells describe at some length what they
call their “discovery disputes” in the trial court; the factual
background and procedural history of these issues comprise
seven pages of their brief. But those seven pages contain no
citations to the record on appeal. The briefing of these two points
typifies the Mitchells’ principal brief.
¶72 An appellant’s argument must contain “citations to the
authorities, statutes, and parts of the record relied on.” Utah R.
App. P. 24(a)(9). “An issue is inadequately briefed when the
overall analysis of the issue is so lacking as to shift the burden of
research and argument to the reviewing court.” State v. Davie,
2011 UT App 380, ¶ 16, 264 P.3d 770 (citation and internal
quotation marks omitted). “An inadequately briefed claim is by
definition insufficient to discharge an appellant's burden to
demonstrate trial court error.” Simmons Media Group, LLC v.
Waykar, LLC, 2014 UT App 145, ¶ 37, 335 P.3d 885. So while I
concur in the majority opinion, I would in the alternative reject
all the Mitchells’ claims on appeal as “not adequately briefed,
researched, or presented.” See State v. Lusk, 2001 UT 102, ¶ 34, 37
P.3d 1103.
20140113-CA 31 2016 UT App 88