Brady v. Park

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 16
IN THE
SUPREME COURT OF THE STATE OF UTAH
DON BRADY, SINNIKKA BRADY, DON BRADY INTERIOR DESIGN,
and FINNISH TOUCH DAY SPA,
Appellees and Cross-Appellants,
v.
KANG S. PARK, KANG SIK PARK,
and BANK OF UTAH,
Appellants and Cross-Appellees.
No. 20160425
Filed May 8, 2019
On Direct Appeal
Third District, Salt Lake
The Honorable Robert P. Faust
No. 060917206
Attorneys:
J. Michael Gottfredson, Mark F. James, Mitchell A. Stephens,
Salt Lake City, for appellees and cross-appellants
Troy L. Booher, Clemens A. Landau, Salt Lake City, for appellants
and cross-appellees
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUSTICE PEARCE and JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE and JUDGE CONNORS joined in the
majority as to Sections II, III, IV, V, VI, and VII.
ASSOCIATE CHIEF JUSTICE LEE authored a dissenting opinion as to
Section I.B.
JUDGE CONNORS authored a dissenting opinion as to Section I.
Having Recused Himself, JUSTICE HIMONAS does not participant
herein. DISTRICT COURT JUDGE DAVID CONNORS sat.
BRADY v. PARK
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 This is the latest chapter in a contract dispute that began
nearly twenty years ago. The parties’ dispute stems from a
seller-financed real estate transaction in 1996. On one side are Kang
S. Park (the seller-financer), his trust (represented by Mr. Park as
trustee), and the Bank of Utah (the custodian of Mr. Park’s IRA
account) (collectively, Park Defendants). On the other side are the
Bradys (the buyers). The Bradys purchased the real estate in question
with two promissory notes. One of the notes required the Bradys to
make an installment payment each month, in the amount of
$5,923.61, from January 1, 1997 to October 1, 2006; and a final balloon
payment, consisting of the remaining unpaid principal and accrued
interest, on October 31, 2006. The note applied a 10 percent base
interest rate on the unpaid principal. And it established two
consequences in the event the Bradys missed an installment
payment: (1) a late fee (equal to 10 percent of the missed installment
payment), and (2) a bump up in the base interest rate (10 percent) to
a default interest rate (20 percent) until the note was “brought
current.”
¶2 Although the Bradys made monthly installment payments
throughout the life of the note, when the time came to pay the final
balloon payment, the parties disagreed over the amount owing. The
Bradys filed suit for declaratory relief in 2006 and have been locked
in litigation ever since.
¶3 Most of the disagreements between the parties relate to the
manner in which the amount owed is calculated. Although many
disputed issues have been resolved through two rounds of litigation
in the district court and one round in the court of appeals, the parties
now ask us to resolve seven final issues.
¶4 The first and most important issue is what the note’s
20 percent default interest provision requires in order to be “brought
current,” thereby returning the note’s interest rate back to a base
10 percent rate after a missed installment payment had bumped up
the interest rate to the 20 percent default rate. Because the currency
of the note determines when, and for how long, 20 percent default
interest accrued throughout the ten year life of the note, our
resolution of this issue will significantly affect the amounts owed
under the note.
¶5 The Bradys argue that the note’s currency is exclusively tied
to the monthly installment payments. In other words, they argue
2
Cite as: 2019 UT 16
Opinion of the Court
that the 20 percent default interest begins accruing when an
installment payment becomes late, and it stops once the late
installment payment is paid. During a previous appeal, the Park
Defendants argued that, in addition to late installment payments, the
note also required the Bradys to pay any of the additional, accrued
default interest to bring it current. This issue was resolved by the
court of appeals in a decision upon which we denied certiorari
review.1 On remand, the Park Defendants argued that the note is not
current if there is any unpaid 10 percent penalty fee amount. But the
district court rejected this argument.
¶6 The Park Defendants now argue that the mandate rule
precluded the district court from reaching this question. We hold
that the district court was not so precluded. The Park Defendants
also argue that the district court erred in determining that the
10 percent late fee need not be paid to bring the note current. We
hold that the district court erred in deciding this issue by construing
an ambiguity in the note against the Park Defendants, as drafters,
without first considering extrinsic evidence. Accordingly, we
remand this question to the district court for a new determination
after considering relevant extrinsic evidence.
¶7 The second issue before us is whether the note’s 10 percent
late fee provision applies to the final balloon payment. The district
court, after considering extrinsic evidence, held that it did not and
that it would be unconscionable if it did. The Park Defendants
challenge both determinations. We affirm the court’s interpretation
of the note on this point because it was not clearly erroneous.
Because our resolution of this issue renders a consideration of the
unconscionability issue unnecessary, we decline to address it.
¶8 The third issue before us is whether the district court
violated the mandate rule when it applied installment payment
dates differing from the court’s previously accepted payment dates.
We hold that it did. Accordingly, we reverse the district court’s
payment date determination and remand for a new accounting in
accordance with the pre-appeal payment dates.
_____________________________________________________________
1 The court of appeals held that the note did not require the
Bradys to pay off any of the additional, 20 percent default interest
that accrued after a missed installment payment to bring the note
current. Brady v. Park, 2013 UT App 97, ¶ 36, 302 P.3d 1220.
3
BRADY v. PARK
Opinion of the Court
¶9 The fourth issue before us is whether the district court erred
when it awarded pre- and postjudgment interest to the Bradys at a
rate of 10 percent. The Park Defendants argue that this was not
authorized under the plain language of Utah Code sections 15-1-1
and 15-1-4. We agree. Accordingly, we reverse and remand to the
district court for an entry of default interest at an appropriate rate.
¶10 The fifth issue is whether the district court erred in denying
the Park Defendants’ rule 60(b) motion. The Park Defendants argue
that the district court erred by failing to remove the “joint and
several” designation from the final judgment because two of the
Park Defendants—Paul M. Halliday, as trustee of two trust deeds,2
and the Bank of Utah, as custodian of Mr. Park’s IRA account—were
in the litigation only as part of a claim for injunctive relief. We hold
that the district court’s ruling on the rule 60(b) motion was not
clearly erroneous, so we affirm.
¶11 The sixth issue on appeal is raised by both parties. After the
latest round of litigation, the district court concluded that neither
party had prevailed and, therefore, neither party was entitled to
attorney fees. Because our rulings on the other issues in this case
may have upended the basis for the court’s attorney fees decision,
we remand for a new attorney fees determination.
¶12 The seventh and final issue is raised by the Bradys. They
assert that we do not have jurisdiction over Mr. Park’s IRA, because
the Bank of Utah, as custodian of Mr. Park’s IRA, failed to file a
timely notice of appeal. We hold that even though we do not have
jurisdiction over the Bank of Utah, our jurisdiction over the IRA’s
owner and beneficiary necessarily includes jurisdiction over the IRA.
Background
¶13 Don and Sinnika Brady purchased commercial property
from Kang S. Park3 in 1996 for $755,625. The Bradys paid Mr. Park in
the form of two promissory notes. The smaller note was for $80,625
_____________________________________________________________
2 Although Mr. Halliday was included as one of the Park
Defendants below, he has disclaimed his interest in these
proceedings and does not participate in this appeal.
3 Mr. Park later assigned his interest in the transaction to the
Kang Sik Park MD PC Profit Sharing Plan, which later assigned it to
the Kang Sik Park Rollover IRA. Defendant Bank of Utah is the
custodian of the IRA.
4
Cite as: 2019 UT 16
Opinion of the Court
and the larger was for $675,000. Each note was secured by two trust
deeds: one on the commercial property and one on a Summit County
investment property owned by the Bradys. Only the larger note
(Note) is at issue here. The Note bore interest at a rate of 10 percent
per year on the unpaid principal. Under the terms of the Note, the
Bradys were required to make monthly payments of $5,923.61
starting on January 1, 1997, and a final balloon payment on
October 31, 2006 consisting of “the entire principal balance together
with interest thereon.” Importantly, the Note specified two
consequences for a late payment—a 10 percent late fee and a bump
up to a 20 percent default interest rate:
If payment is not made within five (5) days of due date,
a late fee of 10 percent will be due. If payment is not
made within 5 days of due date the entire balance shall
bear interest at the rate of 20% until note is brought
current.
The Note was prepared by a title company, but the 20 percent
default interest provision was included at Mr. Park’s request.
¶14 The Bradys made the first three payments on time, but made
the April 1, 1997 payment late. On May 2, 1997, they made a double
payment comprising the April and May payments plus a 10 percent
late fee (10 percent of the late installment payment) for the April
payment. But they did not pay off any of the default interest that had
accrued from the date the payment was due until the date the late
installment payment was paid. The Bradys made other payments
late, but ultimately made every monthly installment payment.
Seeking to refinance the Note, and believing their payments had
kept the Note current, the Bradys approached Mr. Park through a
bank loan officer in 2000 to obtain a payoff amount.
¶15 According to the Bradys, Mr. Park did not respond to their
payoff request until 2002, when he provided a payoff amount
between $1.4 million and $1.5 million. That is when the Bradys first
learned that Mr. Park believed the Note had not been current, and
had been accruing interest at a 20 percent rate, since March 1997. The
Bradys disputed Mr. Park’s calculation and over the next four years
asked Mr. Park for a corrected payoff amount. They claim Mr. Park
did not respond until October 18, 2006—thirteen days before the
balloon payment was due—when he notified the Bradys that the
payoff amount was $2,585,398. Mr. Park calculated these amounts
based on his assumption that the Note had not been current since the
March 1997 payment, so it had been accruing interest at a 20 percent
rate.
5
BRADY v. PARK
Opinion of the Court
¶16 After receiving the October 2006 payoff calculation, the
Bradys sued Mr. Park to receive a judicial determination of the
amounts owed on the Note. The Bradys also alleged a number of
other claims, including a request for injunctive relief4 against the
Bank of Utah, as custodian of Mr. Park’s IRA, and Paul M. Halliday,
as trustee of two trust deeds securing the Note. They also sought
damages for Mr. Park’s alleged refusal to accept their tenders of
payment. The Park Defendants counter-sued with a number of
contract-related claims, including breach of contract.
¶17 After a bench trial, the district court ruled, among other
things, that the Note required the Bradys, in order to bring the Note
current, to pay off any default interest that accrued after late
payments. As a result, the court concluded that the 20 percent
default interest had been accruing since March 1997. The district
court also ruled that the Note called for the interest to be
compounded annually during the delinquent period, and that the
10 percent late fee for a late installment payment constituted an
unconscionable penalty.
¶18 The district court then instructed the parties to find a
third-party expert accountant to calculate the remaining amount
owed on the Note in accordance with the court’s legal conclusions. It
explained that the designated accountant should consider the
installment payment date to be the date that Mr. Park actually
received the checks. The court noted, however, that the delivery
dates for some of the checks were unclear because Mr. Park had
allowed those checks to accumulate before depositing them as a
group. So for the accumulated checks, the court instructed the
designated accountant to consider the payment date to be the date
the checks were sent.
¶19 The parties selected Rick Hoffman to perform the Note
calculations. As part of his calculations, Mr. Hoffman determined the
date of each installment payment and applied interest at a 20 percent
rate, compounding annually, from March 1997 to June 30, 2010. He
did not include any amounts for late fees.
¶20 The district court incorporated Mr. Hoffman’s findings into
its February 2, 2011 findings of fact and conclusions of law by
_____________________________________________________________
4 The Bradys requested that the court prohibit the Park
Defendants “from foreclosing on the subject properties until such
time as the correct amount due under the notes is determined.”
6
Cite as: 2019 UT 16
Opinion of the Court
awarding judgment in the amount Mr. Hoffman had calculated and
stating that the “amount was determined in accordance with the
Court’s direction and the Parties’ stipulation in selecting Mr. Rick
Hoffman to perform this calculation.” The final judgment amount
was $2,440,845.
¶21 The parties appealed the district court’s determination. The
Bradys challenged the court’s conclusions that the Note called for
compound interest, that the accrued 20 percent default interest had
to be paid to stop further accrual of default interest, and that the
20 percent default interest provision was conscionable. The Park
Defendants, on the other hand, challenged the court’s rulings that
the 10 percent late fee provision was unconscionable and that the
interest compounded annually rather than monthly. Importantly,
neither party challenged the court’s legal determinations or
Mr. Hoffman’s factual findings related to the payment dates.
¶22 The court of appeals subsequently issued an opinion
deciding these issues.5 It reversed the district court’s decision on two
points. It concluded, first, that the Note called for simple rather than
compound interest6 and, second, that the Note did not require the
Bradys to pay the accrued 20 percent default interest to stop the
accrual of additional default interest.7 The court also concluded that
the district court erred when it ruled that the 10 percent late fee
provision was unconscionable because it had failed to evaluate the
provision using the standard we set out in Commercial Real Estate
Investment, L.C. v. Comcast of Utah II, Inc.8 As a result, it remanded the
case back to the district court to resolve four issues:
(1) whether the challenged provision is unconscionable
under Commercial Real Estate as applied to installment
payments, (2) if not, which installment payments
generated a late fee, (3) whether the late fee provision
applies to the [Note’s final] balloon payment, and (4) if
so, whether that application of the late fee is
unconscionable.9
_____________________________________________________________
5 Brady v. Park, 2013 UT App 97, 302 P.3d 1220.
6 Id. ¶ 21.
7 Id. ¶ 36.
8 2012 UT 49, 285 P.3d 1193.
9 Brady, 2013 UT App 97, ¶ 27.
7
BRADY v. PARK
Opinion of the Court
¶23 On remand, the district court applied the Commercial Real
Estate test and concluded that the 10 percent late fee provision was
conscionable, that the 10 percent late fee provision did not apply to
the Note’s balloon payment, and that, even if it did, its application to
the final balloon payment would be unconscionable. It also
concluded that the district court’s pre-appeal instructions regarding
the payment dates had not been appealed and would “remain the
law applicable in this case.” Finally, it requested the parties to
submit accountings consistent with its order.
¶24 Both parties submitted proposed accountings, but their
calculations differed drastically from each other. Under the Park
Defendants’ accounting, the Bradys still owed $785,977.01, and
under the Bradys’ accounting, the Bradys’ had overpaid Mr. Park by
$256,255.00—a discrepancy of $1,042,232.01.
¶25 The wide gap between each party’s calculation was due, in
part, to a disagreement regarding whether the 10 percent late fee had
to be paid with each late installment payment or at the end with the
final balloon payment. Mr. Park argued that it became due upon
each default, so it had to be paid with the late installment payment
to bring the Note current, thereby stopping the accrual of 20 percent
default interest. The Bradys, in contrast, argued that late fees were
not due until the final balloon payment. After considering these
arguments, the district court agreed with the Bradys and held that
only the late installment payment needed to be paid to bring the
Note current.
¶26 The parties also disagreed over the dates of the installment
payments. The Park Defendants’ accountant incorporated
Mr. Hoffman’s original payment dates into his calculation, but the
Bradys’ accountant made his calculation using different dates.10 The
Park Defendants urged the district court to adopt their proposed
accounting because it was “consistent with the previous undisturbed
findings in this case,” whereas the accounting submitted by the
Bradys’ accountant contained “a number of errors inconsistent with
the record.” Although the district court considered the Park
Defendants’ arguments, it ultimately accepted the Bradys’ proposed
accounting and issued final judgment to the Bradys in the amount of
_____________________________________________________________
10 It appears that the Bradys’ accountant simply used the dates on
the face of the checks as the payment date for all of the checks—a
method the district court’s pre-appeal decision prohibited.
8
Cite as: 2019 UT 16
Opinion of the Court
$256,255.00. Additionally, the court declined to award attorney fees
to either party, but awarded pre- and postjudgment interest at the
rate of 10 percent per annum pursuant to Utah Code sections 15-1-1
and 15-1-4.
¶27 The court awarded the judgment amount joint and severally
against the Park Defendants. The Park Defendants filed a motion
pursuant to rule 60(b) of the Utah Rules of Civil Procedure to
remove the joint and several designation from the Bank of Utah and
Paul M. Halliday. The motion was brought on the ground that the
Bank of Utah—as custodian of Mr. Park’s IRA—and Mr. Halliday—
as trustee of two trust deeds securing the Note—had been joined in
the case only as defendants to the Bradys’ claim for injunctive relief.
According to the Park Defendants, the court could not now award
monetary damages against the Bank of Utah and Mr. Halliday
because the Bradys’ never alleged any monetary damages against
them in their complaint. The Bradys argued, however, that the joint
and several designation was appropriate because the Note was held
in Mr. Park’s IRA account—of which the Bank of Utah is the
custodian. They also argued that it was appropriate because the
Bank of Utah, acting on behalf of the IRA, had used the pre-appeal
judgment11 to foreclose on the Bradys’ real property. The district
court issued a two-sentence order denying the rule 60(b) motion.
¶28 The Park Defendants appeal the judgment and the district
court’s denial of the rule 60 motion. We have jurisdiction pursuant to
Utah Code section 78A-3-102(3)(j).
Standards of Review
¶29 The first and second issues require us to consider the district
court’s interpretation of a contract. We review a district court’s
interpretation of a contract for correctness.12 But if a contract term is
ambiguous, district courts should consider extrinsic evidence to
resolve the ambiguity.13 If a district court makes a determination of
_____________________________________________________________
11 This judgment was overturned by the court of appeals decision
in this case.
12 See Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT
6, ¶ 15, 367 P.3d 994.
13See Plateau Mining Co. v. Utah Div. of State Lands & Forestry, 802
P.2d 720, 725 (Utah 1990) (“When ambiguity does exist, the intent of
the parties is a question of fact to be determined by the [fact-finder].
(Continued)
9
BRADY v. PARK
Opinion of the Court
the parties’ intent after considering extrinsic evidence, this is a
factual determination to which we grant deference.14 So if the court’s
decision hinges upon extrinsic evidence, it should be overturned
only if clearly erroneous.15
¶30 Third, we consider whether the district court violated the
mandate rule. We review a district court’s holdings regarding the
mandate rule for correctness.16
¶31 Fourth, we consider the district court’s decision to award
pre- and postjudgment interest. We review a district court’s decision
in this regard for correctness.17
¶32 Fifth, we consider the district court’s decision to award no
attorney fees. We review a district court’s determination of which
party is the prevailing party under an abuse of discretion standard. 18
But legal questions that pertain to the attorney fees issue, such as the
proper interpretation of the Note at issue here, are reviewed for
correctness.19
¶33 Sixth, we consider the district court’s rule 60(b)
determination. We conduct this review under an abuse of discretion
standard.20
¶34 Finally, we consider our jurisdiction over the Bank of Utah,
as custodian of Mr. Park’s IRA. The question of whether we have
jurisdiction over an appeal is a question of law.21
Failure to resolve an ambiguity by determining the parties’ intent
from parol evidence is error.”(citation omitted)).
14 Watkins v. Ford, 2013 UT 31, ¶ 19, 304 P.3d 841.
15 In re Adoption of Baby B., 2012 UT 35, ¶ 40, 308 P.3d 382.
16 Utah Dep’t of Transp. v. Ivers, 2009 UT 56, ¶ 8, 218 P.3d 583.
17 Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7, ¶ 11,
210 P.3d 263 (stating the standard of review for decisions to award
prejudgment interest); Bailey-Allen Co. v. Kurzet, 876 P.2d 421, 427
(Utah Ct. App. 1994) (“We review the award of postjudgment
interest, a question of law, under the correction of error standard.”).
18 R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119.
19 Robertson v. Gem Ins. Co., 828 P.2d 496, 499 (Utah Ct. App. 1992).
20Metro. Water Dist. of Salt Lake & Sandy v. Sorf, 2013 UT 27, ¶ 12,
304 P.3d 824.
10
Cite as: 2019 UT 16
Opinion of the Court
Analysis
¶35 The parties raise seven issues on appeal. First, the Park
Defendants argue that the district court erred in interpreting the
Note as providing that the 10 percent late fee amounts need not be
paid to bring the Note current. They argue that the court erred in
making this interpretation because it violated the mandate rule. We
disagree. They also argue that, even if it did not violate the mandate
rule, the court’s interpretation of the Note was incorrect. Although
we agree with the district court that the Note is ambiguous on this
point, we hold that the court erred in deciding this issue because it
construed the ambiguity against the Park Defendants, as drafters,
without first considering extrinsic evidence. Accordingly, we reverse
the district court’s decision on this point and remand for a new
determination after the court considers relevant extrinsic evidence.
¶36 The Park Defendants also challenge the district court’s
interpretation of the Note’s 10 percent late fee provision as it relates
to the final balloon payment. We affirm the court’s finding, because
it was not clearly erroneous, that extrinsic evidence showed that the
parties did not intend the 10 percent late fee provision to apply to
the final balloon payment.
¶37 Next, the Park Defendants argue that the district court
violated the mandate rule by accepting payment dates that differed
from payment dates accepted by the pre-appeal district court. We
agree. Accordingly, we reverse the court’s payment date
determination and remand for an accounting consistent with the
pre-appeal payment dates.
¶38 Furthermore, the Park Defendants challenge the district
court’s determination regarding pre- and postjudgment interest and
its rule 60(b) ruling. We affirm the court’s rule 60(b) ruling, but
reverse its pre- and postjudgment interest determination and
remand for an award of interest at a more appropriate interest rate.
¶39 Additionally, both parties challenge the district court’s
attorney fees determination. Because our holdings regarding the
other issues in this case may have upended the basis for the court’s
attorney fees decision, we remand for a new attorney fees
determination.
¶40 Finally, the Bradys claim that we do not have jurisdiction
over Mr. Park’s IRA, because the Bank of Utah, as custodian for
21 In re Adoption of A.B., 2010 UT 55, ¶ 21, 245 P.3d 711.
11
BRADY v. PARK
Opinion of the Court
Mr. Park’s IRA, failed to file a timely notice of appeal. We hold that
we have jurisdiction over the IRA through its owner, even though
we do not have jurisdiction over the Bank of Utah.
¶41 We discuss the merits of each issue in turn.
I. The District Court Did Not Violate the Mandate Rule by
Determining that the Note Did Not Require the 10 Percent Late
Fees to be Paid to Bring the Note Current, But Erred in Making
This Determination By Construing an Ambiguity in the
Note Against the Park Defendants Without First
Considering Relevant Extrinsic Evidence
¶42 The district court determined that the Note did not require
the Bradys to pay unpaid 10 percent late fee amounts to bring the
Note current. The Park Defendants argue that the court erred in
making this determination for two reasons. First, they assert that it
violated the mandate rule—a subcategory of the law of the case
doctrine. Second, they argue that the court’s interpretation of the
Note was incorrect. Although we hold that the district court was not
precluded by the mandate rule from deciding this issue, we hold
that the court erred in deciding this issue by construing the
ambiguity in the Note against the Park Defendants, as drafters,
without first considering relevant extrinsic evidence.
A. The district court did not violate the mandate rule when
it determined that the 10 percent late fees were not
required to be paid to bring the Note current
¶43 First, the Park Defendants argue that the district court
violated the mandate rule when it determined that the Note did not
require the 10 percent late fees to be paid to bring the Note current,
thereby stopping the accrual of the 20 percent default interest.
Because neither the pre-appeal district court nor the court of appeals
had previously decided this issue, we hold that it never became the
law of the case under the mandate rule, and so the district court on
remand was free to decide the issue.
¶44 The “[l]aw of the case terminology has been applied to a
number of distinct sets of problems, each with a separate analysis.”22
For example, “[i]n the initial stages of litigation . . . this rule has
_____________________________________________________________
22 Thurston v. Box Elder Cty., 892 P.2d 1034, 1037 (Utah 1995).
12
Cite as: 2019 UT 16
Opinion of the Court
reference only to the parties to the case.”23 So “[w]hile a case remains
pending before the district court prior to any appeal, the parties are
bound by the court’s prior decision, but the court remains free to
reconsider that decision.”24
¶45 But after a “case has been appealed and remanded,” the law
of the case becomes binding upon the district court under what is
commonly referred to as the mandate rule.25 The mandate rule
“dictates that pronouncements of an appellate court on legal
issues”26 and “prior decision[s] of a district court become[]
mandatory after an appeal and remand.”27 This branch of the law of
the case doctrine “serves the dual purpose of protecting against the
reargument of settled issues and of assuring adherence of lower
courts to the decisions of higher courts.”28
¶46 The mandate rule is especially important in a case, such as
this, that involves parties locked in seemingly endless cycles of
litigation.29 For this reason, we will enforce the mandate rule if the
district court disturbed any of its pre-appeal factual findings or legal
conclusions, or a legal determination of the court of appeals. But
because neither the pre-appeal district court, nor the court of
_____________________________________________________________
23Mid-America Pipeline Co. v. Four-Four, Inc., 2009 UT 43, ¶ 12, 216
P.3d 352.
24 Id. (emphasis added) (citation omitted); see also UTAH R. CIV. P.
54(b) (“[A]ny order or other decision, however designated, that
adjudicates fewer than all the claims . . . may be changed at any time
before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.”).
25 Mid-America Pipeline, 2009 UT 43, ¶ 13.
26 Thurston, 892 P.2d at 1037.
27IHC Health Servs., Inc. v. D&K Mgmt., Inc., 2008 UT 73, ¶ 28, 196
P.3d 588.
28 Thurston, 892 P.2d at 1038.
29 See Gildea v. Guardian Title Co. of Utah, 2001 UT 75, ¶ 9, 31 P.3d
543 (“The doctrine was developed to promote the obedience of
inferior courts as well as ‘to avoid the delays and difficulties
involved in repetitious contentions and reconsideration of rulings on
matters previously decided in the same case.’” (citation omitted)).
13
BRADY v. PARK
Opinion of the Court
appeals, had previously determined this issue, the district court on
remand was free to reach it.
¶47 Before the first appeal, the district court never reached the
question of whether the 10 percent late fee must be paid to bring the
Note current, because it ruled that the late fee was unconscionable
and thus unenforceable. The court of appeals considered the district
court’s unconscionability determination, but because the court of
appeals held that the district court had applied the wrong legal test,
it remanded the case to the district court so that it could make a new
unconscionability determination using the test we established in
Commercial Real Estate Investment, L.C. v. Comcast of Utah II, Inc.30
Consequently, the court of appeals never discussed the effect the
payment of the 10 percent late fee would have on the accrual of
default interest.
¶48 The Park Defendants maintain, however, that at one point in
the opinion the court of appeals ruled that the payment of the
10 percent late fee would be paid “together” with late installment
payments. But when this comment is viewed in context of the
opinion as a whole, it is clear that the court was not attempting to
make a legal determination regarding the due date of the late fees or
their effect on the accrual of default interest.
¶49 The court of appeals made the comment in considering the
separate issue of whether the Note required the Bradys to pay off
any of the already accrued default interest in order to bring the Note
current, thereby stopping the accrual of additional default interest.
During this discussion, the court stated that “payment of the accrued
default interest was not required to bring the Note current,” and so
“the 20% default interest rate runs from the expiration of the
five-day grace period until the payment was made, together with the
10% late fee (if the trial court determines on remand that the 10% late
fee is enforceable).”31
¶50 The Park Defendants argue that the “together with the 10%
late fee” language constituted a determination that the 10 percent
late fee had to be paid to bring the Note current. But we disagree. It
is unlikely that by making this comment the court of appeals
_____________________________________________________________
30 2012 UT 49, 285 P.3d 1193.
Brady v. Park, 2013 UT App 97, ¶ 36, 302 P.3d 1220 (emphasis
31
added).
14
Cite as: 2019 UT 16
Opinion of the Court
intended to rule on this issue because the issue had not been
presented and briefed by the parties.32
¶51 Because the district court ruled that the 10 percent late fee
provision was unconscionable before the first appeal, it did not
decide whether a late fee incurred under that provision had to be
paid to bring the Note current. Consequently, there was no order for
the parties to challenge and, as a result, the parties did not brief this
issue for appeal. For this reason, it is unlikely that the court of
appeals intended its passing statement—that any late fees would be
paid “together” with a late installment payment—to be a binding
legal determination that any incurred 10 percent late fees must be
paid to bring the Note current.33 This inference is strengthened by
the fact that the court of appeals did not include this phrase when
summarizing the court’s legal determinations in the opinion’s
conclusion section.34 Accordingly, we hold that the court of appeals
did not make a legal determination regarding whether the 10 percent
late fee must be paid to bring the Note current, so the district court
did not violate the mandate rule when it decided this issue.
_____________________________________________________________
32See Madsen v. Wash. Mut. Bank FSB, 2008 UT 69, ¶ 26, 199 P.3d
898 (“[W]e frequently decline to rule on an issue when it has not
been fully briefed by the parties because full briefing allows this
court to carefully consider fully developed and supported
arguments.”); cf. Utah Dep’t of Transp. v. Ivers, 2009 UT 56, ¶ 19, 218
P.3d 583 (explaining that the court “would have refused to review
such an unripe or moot issue because [the] decision would have
amounted to nothing more than an advisory opinion”); State v. Ortiz,
1999 UT 84, ¶ 3, 987 P.2d 39 (“This court will not issue advisory
opinions or examine a controversy that has not yet ‘sharpened into
an actual or imminent clash of legal rights and obligations between
the parties thereto.’” (citation omitted)).
33 Judge Connors disagrees with this assertion. In his dissenting
opinion, he states that the court of appeals made a clear legal
determination regarding the due date of the late fee provision. Infra
¶ 174 (Connors, J., dissenting in part). But he also concedes that it
may not have been appropriate for the court of appeals to have done
so. Id. For the reasons already stated in this section, we disagree with
Judge Connors’ conclusion.
34 Brady, 2013 UT App 97, ¶ 58.
15
BRADY v. PARK
Opinion of the Court
B. The district court correctly concluded that the Note is
ambiguous regarding what is required to bring the note
current under the 20 percent default interest provision, but
it erred by failing to consider extrinsic evidence before
construing the ambiguity against the Park Defendants
¶52 The Park Defendants also argue that even if the district
court did not violate the mandate rule by determining this issue, it
nevertheless erred by interpreting the Note incorrectly. The court
determined that the Note was ambiguous regarding what was
required to bring the Note current. Rather than attempting to resolve
this ambiguity by considering extrinsic evidence, it decided the issue
by construing the ambiguity against the Park Defendants as the
drafters of the provision. As a result, it concluded that the Note did
not require the 10 percent late fee to be paid to stop the accrual of
interest at the 20 percent default rate. We agree that the Note is
ambiguous, but we reverse the district court’s decision and remand
for further factual findings because the district court failed to
adequately consider extrinsic evidence before construing the Note
against the Park Defendants.
¶53 When we interpret a contract “we first look at the plain
language [of the contract] to determine the parties’ meaning and
intent.”35 “If the language within the four corners of the contract is
unambiguous, the parties’ intentions are determined from the plain
meaning of the contractual language, and the contract may be
interpreted as a matter of law.”36 But where a contractual term or
provision is ambiguous as to what the parties intended, the question
becomes a question of fact to be determined by the fact-finder.37 So
_____________________________________________________________
35 Meadow Valley Contractors, Inc. v. State Dep’t of Transp., 2011 UT
35, ¶ 64, 266 P.3d 671, abrogated on other grounds by Mounteer Enters.,
Inc. v. Homeowners Ass’n for the Colony at White Pine Canyon, 2018 UT
23, 422 P.3d 809.
36 Cent. Fla. Invs., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 12, 40 P.3d
599.
37 Plateau Mining Co. v. Utah Div. of State Lands & Forestry, 802
P.2d 720, 725 (Utah 1990) (“When ambiguity does exist, the intent of
the parties is a question of fact to be determined by the jury. Failure
to resolve an ambiguity by determining the parties’ intent from parol
evidence is error.” (citation omitted)); Faulkner v. Farnsworth, 665
P.2d 1292, 1293 (Utah 1983) (“Of course, a motion for summary
(Continued)
16
Cite as: 2019 UT 16
Opinion of the Court
where parties to a contract dispute propose competing
interpretations of a contractual term or provision, we must
determine whether the contract as a whole unambiguously supports
one interpretation over the other. If “uncertain meanings of terms,
missing terms, or other facial deficiencies” prevent the court from
determining which of the “proffered alternative interpretations” the
parties intended when they entered into the contract, then the court
deems the contractual provision at issue ambiguous, and the
ambiguity must be resolved by considering extrinsic evidence of the
parties’ intent.38
¶54 In his dissent, Justice Lee argues that we have never clearly
explained when a contractual term is sufficiently ambiguous to open
the door to extrinsic evidence. But this argument brushes aside sixty
years of our caselaw in which we have repeatedly set forth the
following standard: where there are two reasonable 39 interpretations
of a contractual provision, we look to extrinsic evidence. 40 So a
judgment may not be granted if a legal conclusion is reached that an
ambiguity exists in the contract and there is a factual issue as to what
the parties intended.”).
38 See Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT
6, ¶ 24, 367 P.3d 994 (citation omitted) (internal quotation marks
omitted).
39 Judge Connors points out that some of our previous cases have
used the term “plausible” rather than “reasonable.” Infra ¶ 178 n.121
(Connors, J., dissenting in part). In Judge Connor’s view, we should
disavow any use of the word “plausible” from our caselaw because
it suggests a lower standard than the word “reasonable.” Infra ¶ 178
n.122 (defining plausible as “superficially fair, reasonable” or
“seeming reasonable or probable (though speculative)”). But a
disavowal of the cases Judge Connors cites is unnecessary because
even where we have used the term “plausible” in the past, we have
treated it as if it had roughly the same meaning as the term
“reasonable.” See Mind & Motion, 2016 UT 6, ¶ 24 (“[T]he proffered
alternative interpretations ‘must be plausible and reasonable in light
of the language used.’” (citation omitted)); Saleh v. Farmers Ins. Exch.,
2006 UT 20, ¶ 17, 133 P.3d 428 (same); First Am. Title Ins. Co. v. J.B.
Ranch, Inc., 966 P.2d 834, 837 (Utah 1998) (same).
40 See Ephraim Theatre Co. v. Hawk, 321 P.2d 221, 223 (Utah 1958)
(explaining that a court may look to “extraneous sources” only
where the contract “is susceptible of more than one meaning”);
(Continued)
17
BRADY v. PARK
Opinion of the Court
contractual term or provision is ambiguous if “it is capable of more
than one reasonable interpretation because of uncertain meanings of
terms, missing terms, or other facial deficiencies.”41
¶55 Justice Lee argues, however, that we have never explained
“what it means for competing parties both to offer a ‘reasonable’
interpretation of the contract provision in question.”42 Although it is
Winegar v. Froerer Corp., 813 P.2d 104, 108 (Utah 1991) (“A contract
provision is ambiguous if it is capable of more than one reasonable
interpretation because of ‘uncertain meanings of terms, missing
terms, or other facial deficiencies.’” (citation omitted)).
41 Meadow Valley Contractors, 2011 UT 35, ¶ 64 (emphasis added)
(citation omitted) (internal quotation marks omitted); see also Cent.
Fla. Invs., 2002 UT 3, ¶ 12 (“In evaluating whether the plain language
is ambiguous, we attempt to harmonize all of the contract’s
provisions and all of its terms. An ambiguity exists where the
language is reasonably capable of being understood in more than
one sense.” (citations omitted) (internal quotation marks omitted));
Plateau Mining Co., 802 P.2d at 725 (“To demonstrate ambiguity, the
contrary positions of the parties must each be tenable.”). Justice Lee
makes no effort to square his proposed approach with this caselaw.
In fact, under his approach any consideration of whether both
interpretations are “reasonable” is altogether excluded from the
court’s analysis. Instead, the court would decide which
interpretation it believes is the most “plausible.” Infra ¶ 136 (Lee,
A.C.J., dissenting in part).
42 Infra ¶ 127 (Lee, A.C.J., dissenting in part). Justice Lee argues
that we have never before defined the term “reasonable” in the
context of a contract interpretation. It is on this basis that he purports
to “clarify” “what it means for competing parties to offer a
‘reasonable’ interpretation of the contract provision in question.” But
at no point in his dissent does he clarify what a reasonable
interpretation would be. Instead, he suggests that even where a court
is presented with two reasonable interpretations, neither of which
can be ruled out by examining the interpretations in context of the
contract as a whole, the court may take it upon itself to decide which
interpretation is the better one. Justice Lee does not attempt to justify
this significant departure from our longstanding approach to
contract interpretation by pointing to precedent. He does not,
because he cannot. Although we have frequently explained what it
means for a contract interpretation to be reasonable, see, e.g., Mind &
(Continued)
18
Cite as: 2019 UT 16
Opinion of the Court
true that we have used the term “reasonable” repeatedly for decades
without defining the term further—presumably under the
assumption that it is a bedrock term whose meaning was obvious—
we have provided a consistent explanation for what constitutes a
reasonable interpretation sufficient to create an ambiguity. Under
our caselaw a reasonable interpretation is an interpretation that
cannot be ruled out, after considering the natural meaning of the
words in the contract provision in context of the contract as a whole,
as one the parties could have reasonably intended.43 In other words,
if the court determines that either of the competing interpretations
could reasonably have been what the parties intended when they
entered into the contract, then the contract is ambiguous.44 Where we
Motion, 2016 UT 6, ¶ 24 (explaining that a contract is ambiguous
where there are two “plausible and reasonable” interpretations, the
existence of which prevent the court from determining “the parties’
intentions”(citation omitted) (internal quotation marks omitted));
Saleh, 2006 UT 20, ¶ 17 (explaining that a contract is ambiguous
where there are at least two interpretations that rise to “more than a
conjecture”); Cent. Fla. Invs., 2002 UT 3, ¶ 12 (“An ambiguity exists
where the language is reasonably capable of being understood in
more than one sense.” (citations omitted) (internal quotation marks
omitted)), we have never applied the standard Justice Lee proposes
in his dissent.
43 See Cent. Fla. Invs., 2002 UT 3, ¶ 12 (“An ambiguity exists where
the language is reasonably capable of being understood in more than
one sense.” (citations omitted) (internal quotation marks omitted));
Utah Valley Bank v. Tanner, 636 P.2d 1060, 1061–62 (Utah 1981)
(explaining that a contractual provision is ambiguous only where
“an ambiguity . . . cannot be reconciled by an objective and
reasonable interpretation of the contract as a whole” after the court
has examined “[e]ach contract provision . . . in relation to all of the
others”); see also Lockheed Martin Corp. v. Retail Holdings, N.V., 639
F.3d 63, 69 (2d Cir. 2011) (“When determining whether a contract is
ambiguous, it is important for the court to read the integrated
agreement ‘as a whole.’ If the document as a whole ‘makes clear the
parties’ over-all intention, courts examining isolated provisions
should then choose that construction which will carry out the plain
purpose and object of the [agreement].’” (alteration in original)
(citations omitted)).
44We have repeatedly stressed that a contractual provision is not
rendered ambiguous “just because one party gives that provision a
(Continued)
19
BRADY v. PARK
Opinion of the Court
conclude that either of the contract interpretations could reasonably
have been what the parties intended, we will not substitute our
judgment for that of the parties by choosing what we believe to be
the better of the two interpretations.45
different meaning than another party does.” See, e.g., R&R Energies v.
Mother Earth Indus., Inc., 936 P.2d 1068, 1074 (Utah 1997) (citation
omitted) (internal quotation marks omitted). Instead, we will
conclude that the parties could reasonably have intended both of the
competing interpretations only if each interpretation is “based upon
the usual and natural meaning of the language used and [is not] the
result of a forced or strained construction” when considered in
context of the contract as a whole. Saleh, 2006 UT 20, ¶ 17 (citation
omitted) (internal quotation marks omitted).
45 See Plateau Mining Co., 802 P.2d at 725 (“Failure to resolve an
ambiguity by determining the parties’ intent from parol evidence is
error.”); id. (explaining that our approach to contract interpretation
“preserves the intent of the parties and protects the contract against
judicial revision”). By stating that a contract is ambiguous only
where two interpretations “are of equal (or at least roughly equal)
plausibility,” Justice Lee proposes an approach whereby, for the first
time ever, a Utah court could disregard one reasonable
interpretation of a contract because the court believes a competing
interpretation is preferable (or more plausible). Infra ¶ 136 (Lee,
A.C.J., dissenting in part). In other words, his approach would
expand the contract interpretation analysis by adding an additional
step—the weighing of two reasonable interpretations after the court
determines that both are objectively reasonable on their own. This is
an approach we have criticized in the past. See Meadow Valley
Contractors, 2011 UT 35, ¶ 69. In Meadow Valley Contractors, the
district court failed to consider relevant extrinsic evidence after it
“cursorily concluded” that one of the interpretations “was ‘the more
reasonable interpretation’” of the contract. Id. Although we criticized
the district court for having failed to consider extrinsic evidence
where there potentially were two reasonable interpretations of the
contract provision at issue, under Justice Lee’s proposed approach,
the district court’s acceptance of “the more reasonable
interpretation” would have been proper. Thus his approach departs
dramatically from our longstanding approach.
Additionally, Justice Lee’s approach suffers from the same
deficiency that he claims justifies his “clarification” of our
(Continued)
20
Cite as: 2019 UT 16
Opinion of the Court
longstanding approach to contract interpretation. He defines a
reasonable interpretation as the more “plausible” of two competing
interpretations. But he fails to define the term “plausible.” Instead,
he treats it as a bedrock term needing no further definition. Under
his approach, if one interpretation is more “plausible” than the other,
it is deemed a reasonable interpretation and the other interpretation
is deemed unreasonable. So “more plausible” now means
“reasonable” and “less plausible” now means “unreasonable,” even
though the less plausible interpretation may be reasonable under
any ordinary definition of the word. This approach strains the
ordinary meaning of “reasonable” beyond recognition. It is an
altogether new invention. Moreover, because he does not define the
term “plausible,” it is left to the district court’s judgment, based on
the commonly-accepted meaning of the term, to decide whether one
interpretation is more plausible than the other. So Justice Lee’s
approach does not provide district courts a more clear or transparent
standard than what is provided by our longstanding approach. The
only difference, therefore, between the two approaches is that under
Justice Lee’s approach, district courts would have new discretion to
disregard one reasonable interpretation if they believe it is less
reasonable or plausible than another. This is a dramatic departure
from the way in which we have long addressed ambiguities in
contracts. While this approach may or may not be a good idea, this is
not the case to make so monumental a change—the parties have not
asked that we revise our standard for interpreting ambiguous
contractual provisions, nor have they provided briefing on the issue.
In support of this change, Justice Lee argues that parties generally
prefer quick and inexpensive resolutions of their disputes. Infra
¶ 131 (Lee, A.C.J., dissenting in part). In support of his assertion, he
relies upon a Yale Law Review article that is addressed specifically
to contract disputes between sophisticated business entities who
tend to be frequent participants in litigation. Alan Schwartz & Robert
E. Scott, Contract Interpretation Redux, 119 YALE L.J. 926, 935 (2010)
(explaining that the “interpretive rules” they propose are reflective
of “the preferences of business firms that contract with each other”).
The idea of the article seems to be that for these sophisticated
frequent fliers, it will all wash out in the end—they are likely to win
as many as they lose under a standard that more narrowly
circumscribes extrinsic evidence. Id. at 931 (explaining that “a risk
neutral firm is indifferent to the magnitude of the variance around
the mean” so it is “unwilling to incur additional costs in order to
(Continued)
21
BRADY v. PARK
Opinion of the Court
¶56 So where a contractual term is genuinely ambiguous, “we
seek to resolve the ambiguity by looking to extrinsic evidence of the
parties’ intent.”46 A determination of the parties’ intent based on
extrinsic evidence is a factual determination that should be made by
the fact-finder.47 In the rare case where the extrinsic evidence “does
not reveal the intent of the parties,”48 a district court should then,
and only then, “resolve the ambiguity against the drafter.”49
¶57 The first step of this analysis—deciding whether the
contractual term is ambiguous—is a legal determination that we
review for correctness, but the district court’s findings regarding the
extrinsic evidence are factual determinations that deserve
further increase the accuracy of any particular finding”). So,
according to the authors of the article, efficiency and cost are more
important considerations for sophisticated business parties than an
accurate resolution of the dispute. Id. at 934 (“We argue that the
contract law that regulates transactions between firms should seek
only to maximize efficiency.”). While it is certainly true that parties
prefer quick and inexpensive resolutions of their disputes, it is not
necessarily true in every case that parties would prefer a quick and
inexpensive resolution over an accurate result—especially in cases
involving parties who do not litigate frequently. This suggests that
Justice Lee’s proposed approach may not be appropriate in every
case. Regardless, as noted, even were Justice Lee’s proposed change
to our caselaw a wise tack to take, this hardly seems the case for it
given the absence of any request to change our standard and the
absence of any adversarial briefing on the question.
46 Meadow Valley Contractors, 2011 UT 35, ¶ 64; see also Faulkner,
665 P.2d at 1293 (“[A] motion for summary judgment may not be
granted if a legal conclusion is reached that an ambiguity exists in
the contract and there is a factual issue as to what the parties
intended.”); Evans v. Famous Music Corp., 807 N.E.2d 869, 873 (N.Y.
2004) (“Faced with this ambiguity, we turn to extrinsic evidence for
guidance as to which interpretation should prevail.”).
47 See Plateau Mining Co., 802 P.2d at 725 (“When ambiguity does
exist, the intent of the parties is a question of fact to be determined
by the jury. Failure to resolve an ambiguity by determining the
parties’ intent from parol evidence is error.” (citation omitted)).
48 Meadow Valley Contractors, 2011 UT 35, ¶ 69.
49 Id. ¶ 64.
22
Cite as: 2019 UT 16
Opinion of the Court
deference.50 Accordingly, if the district court’s decision hinges upon
extrinsic evidence, it should be overturned only if it was clearly
erroneous.51
¶58 Although the district court in this case was correct in
holding that the Note is ambiguous regarding what must be paid to
bring the Note current, we hold that the court erred by deciding the
issue by construing the ambiguity against the Park Defendants
without first considering relevant extrinsic evidence.
1. The note’s plain language
¶59 First, we address the district court’s determination that the
Note is ambiguous regarding what is required to bring the Note
current under the 20 percent default interest provision. The Park
Defendants argue that any potential ambiguity in the 20 percent
default interest provision should be resolved in their favor when
considered together with their proposed interpretation of a phrase
within the Note’s 10 percent late fee provision. We hold that the
language of the 20 percent default interest provision is ambiguous
even if we interpret the 10 percent late fee provision as the Park
Defendants suggest.52
_____________________________________________________________
50 See In re Adoption of Baby B., 2012 UT 35, ¶ 40, 308 P.3d 382.
51 See id.
52 The Park Defendants argue that a 10 percent late fee, which is
imposed by the Note’s 10 percent late fee provision, must be paid
before the Note “is brought current.” The 10 percent late fee
provision states that “[i]f a payment is not made within five (5) days
of due date, a late fee of 10 per cent will be due.” They argue that
based on the plain meaning of the term “will be due,” the 10 percent
late fee becomes due immediately when it is incurred, so the Note
cannot be “brought current” until the 10 percent late fee is paid.
They further support this argument with language from two trust
deeds incorporated into the Note—which refer to the 10 percent late
fee as a fee “to cover the extra expense involved in handling
delinquent payments.” So they assert that the 10 percent late fee
must be paid with the late payment because it served “as a proxy for
the expenses incurred by Park in handling late payments.”
The Bradys, on the other hand, interpret the term “will be due” to
mean that it will be due sometime in the future. They argue that if
the parties had intended the late fees to be due immediately, they
(Continued)
23
BRADY v. PARK
Opinion of the Court
¶60 The 20 percent default interest provision states: “If payment
is not made within 5 days of due date the entire balance shall bear
interest at a rate of 20 percent until note is brought current.” So
under this provision interest accrues on “the entire balance” at
20 percent until the Note “is brought current.” Although the Park
Defendants assume that any and all outstanding debts owed under
the Note must be paid to bring the Note current, this assumption is
not expressly supported by anything in the Note. The phrase
“brought current” is not defined elsewhere in the Note and is not
used in connection with a payment type other than the monthly
installment payment. So even though it is reasonable to interpret the
phrase—as the Park Defendants suggest—to require that the Bradys
pay all late installment payments and late fees in order to bring the
Note current, we find that it is also reasonable to read the Note to
allow the Bradys to bring it current by paying only late, or missing,
installment payments.
would have stated that the fee “is due” rather than “will be due.”
They suggest that this interpretation is required when the phrase is
considered in the context of the Note as a whole because another
provision in the Note—which allows the Park Defendants to
accelerate the Note in the event of a default—refers to amounts
immediately due as “due and payable.” See Due and Payable, BLACK’S
LAW DICTIONARY (10th ed. 2014) (“(Of a debt) owed and subject to
immediate collection because a specified date has arrived or time has
elapsed, or some other condition for collectibility has been met.”).
They also support this interpretation by pointing to language in the
incorporated trust deeds. Because certain provisions in the trust
deeds indicate that obligations shall be paid “immediately,” but the
10 percent late fee provision does not, they claim that additional
language would have been added to the 10 percent late fee provision
if the parties had intended the late fees to be due immediately.
Because neither “due and payable” nor “immediately” were used in
the 10 percent late fee provision, they argue that the Note did not
require the 10 percent late fee to be paid immediately.
Although these dueling interpretations of the 10 percent late fee
provision suggest that the phrase “will be due” may be ambiguous,
we do not decide this issue on this basis because we conclude that
the language of the 20 percent default interest rate provision is
ambiguous in its own right.
24
Cite as: 2019 UT 16
Opinion of the Court
¶61 The latter interpretation is suggested by the structure of the
Note. The structure contemplates three categories of payments:
(1) monthly installment payments, (2) a final balloon payment, and
(3) a 10 percent late fee for every late installment payment. Under the
terms of the Note, a monthly installment payment of $5,923.61 is due
“on the [first] day of each and every month” for ten years. The
“entire principal balance together with interest thereon” (final
balloon payment) is due on October 31, 2006. And the 10 percent late
fees are potentially due either immediately when incurred or
together with the final balloon payment.
¶62 Importantly, of these three types of payments, it is only the
monthly installment payment that is specifically tied to the
20 percent default interest provision. The Note specifies that the
20 percent default interest will begin accruing on “the entire
balance”53 if the “[installment] payment is not made within 5 days of
due date.”54 So it is only the failure to timely pay installment
payments—and not a failure to pay the other two types of payments
contemplated in the Note—that triggers the 20 percent default
interest. In this way, the Note specifically ties the installment
payments to the 20 percent default interest provision, something it
does not do for the other types of payments. Because the monthly
installment payment is the only type of payment contemplated in the
default interest provision, it is reasonable to conclude that the phrase
“brought current” within the provision refers only to the payment of
late installment payments.
_____________________________________________________________
53 In Brady, the court of appeals held that the phrase “the entire
balance” in the 20 percent default interest provision refers only to the
“entire principal balance.” 2013 UT App 97, ¶ 20 (internal quotation
marks omitted). In other words, the failure to timely pay an
installment payment triggers the accrual of interest at a 20 percent
rate on unpaid principal amounts, but not on other amounts owed
under other provisions in the Note, including unpaid accrued
interest or unpaid 10 percent late fees.
54 Although the term “payment” could be viewed in isolation as
including both the installment payment and the final balloon
payment, when the term is considered in context of the Note as a
whole, it is clearly referring only to monthly installment payments.
See infra section II of this opinion regarding our discussion of the
10 percent late fee as applied to the final balloon payment.
25
BRADY v. PARK
Opinion of the Court
¶63 In sum, the phrase “brought current” has two reasonable
interpretations. The Note could, as the Park Defendants argue,
require the payment of the missed installment payments as well as a
payment of any 10 percent late fees that are currently due to bring
the Note current. But it could just as reasonably require only the
payment of the missed installment payments. Because the phrase
“brought current” is not defined in the Note—and this omission
leads to two contradictory but reasonable interpretations—we
conclude that the Note is ambiguous.55
2. Extrinsic evidence
¶64 Because the 20 percent default interest provision is
ambiguous, our well-established pattern of contract interpretation
would ordinarily require us to consider the district court’s factual
findings regarding relevant extrinsic evidence.56 But that is not
possible in this case because the district court failed to make the
necessary factual findings. Rather than looking to the extrinsic
evidence to resolve the ambiguity, the court instead skipped to
construing the provision against the Park Defendants as the drafters.
This was error.
¶65 By failing to consider extrinsic evidence before construing
the ambiguous provision against the Park Defendants, the district
court did what we expressly refused to do in Meadow Valley
_____________________________________________________________
55 Under the standard Justice Lee sets forth in his dissent, we
would be forced to choose between these two reasonable
interpretations. In Justice Lee’s view, the Park Defendants present
the “better interpretation,” so he would rule in their favor on this
issue. But we are not convinced. Even were we to adopt Justice Lee’s
proposed approach in this case, we might very well rule in the
Bradys’ favor. This disagreement further strengthens our conclusion
that the contractual provision at issue is ambiguous.
Judge Connors, in contrast, proposes a third approach. In his
dissent, he declines to endorse Justice Lee’s change to our
contract-interpretation standard, but he argues that under our
current approach, the contract is unambiguous because the Bradys’
interpretation is not reasonable. Because we conclude that the
Bradys’ interpretation is reasonable when considered in context of
the Note as a whole, we disagree.
56 Meadow Valley Contractors, 2011 UT 35, ¶ 64.
26
Cite as: 2019 UT 16
Opinion of the Court
Contractors.57 In that case the appellant asked us to resolve an
ambiguity in a construction contract against the appellee who
drafted the contract. We noted that by suggesting this, the appellant
was ignoring “a critical analytical step.”58 We then explained the
proper methodology a court should follow after concluding that the
text of a contract is ambiguous: “when a trial court concludes that
contractual language is ambiguous, the court will invite extrinsic
evidence bearing on the intentions of the parties to the contract
concerning the ambiguity. The court would then assess the merits of
the extrinsic evidence and reach a conclusion about the intentions of
the parties.”59 We finished by stating that “[o]nly if the court
concludes that the extrinsic evidence does not reveal the intent of the
parties and uncertainty remains will the court construe the
ambiguity against the drafter.”60 In this case, the district court failed
to assess the merits of the extrinsic evidence before construing the
ambiguity in the default interest provision against the Park
Defendants as the drafters. For this reason, we reverse the district
court’s decision and remand for a determination that considers the
relevant extrinsic evidence.
II. We Affirm the District Court’s Determination Regarding
the 10 Percent Late Fee’s Application to the Balloon Payment
¶66 Next, we consider the Park Defendants’ challenge of the
district court’s interpretation of the Note’s 10 percent late fee
provision as it relates to the final balloon payment. The district court
concluded that, under the plain language of the Note, the 10 percent
late fees did not apply to the final balloon payment. Additionally,
the court held that extrinsic evidence, in the form of a memorandum
of understanding drafted by the parties, supported this
interpretation. And, alternatively, the court held that even if the
10 percent late fee provision did apply to the final balloon payment,
it would be unconscionable and thus unenforceable. The Park
Defendants challenge each of these determinations. We hold that the
district court’s interpretation of the language of the 10 percent late
fee provision is reasonable. Therefore a determination that the Park
_____________________________________________________________
57 Id. ¶ 69.
58 Id.
59 Id. (footnote omitted).
60 Id.
27
BRADY v. PARK
Opinion of the Court
Defendants’ alternative interpretation is also reasonable would
merely render the Note ambiguous. And because we find that the
district court’s determination regarding extrinsic evidence was not
clearly erroneous, we affirm its determination on this basis.61 This
holding moots the Park Defendants’ unconscionability challenge, so
we decline to address it. As we did with the district court’s
interpretation of the 20 percent default interest provision, we first
examine the contract’s plain language. And because the Park
Defendants’ alternative interpretation could render the contract
ambiguous, we also consider the district court’s findings regarding
the extrinsic evidence.62
A. Plain meaning of the Note
¶67 We begin by interpreting the text of the 10 percent late fee
provision. The district court concluded that the provision
unambiguously did not apply the 10 percent late fee to the final
payment. The court considered the Note’s relevant text, which states
that Dr. Park would be paid $675,000:
[T]ogether with interest from date at the rate of 10 per
cent per annum on the unpaid principal, said principal
and interest payable as follows:
$5,923.61 due in [sic] the 1st day of January 1997,
and $5,923.61 on the 1st day of each and every
_____________________________________________________________
61 We note that to have prevailed on this issue, the Park
Defendants would have had to show (1) that their interpretation of
the Note was reasonable, and the district court’s interpretation was
unreasonable, see Plateau Mining Co. v. Utah Div. of State Lands &
Forestry, 802 P.2d 720, 725 (Utah 1990) (“To demonstrate ambiguity,
the contrary positions of the parties must each be tenable.”), or
(2) that their interpretation was reasonable, and the district court’s
factual findings regarding extrinsic evidence were clearly erroneous.
See R & R Energies v. Mother Earth Indus., Inc., 936 P.2d 1068, 1074
(Utah 1997) (“This court will not disturb the trial court’s factual
finding . . . unless it is clearly erroneous.”). Because the Park
Defendants fail to show that the district court’s interpretation was
unreasonable or that its factual findings were clearly erroneous, we
must affirm the district court’s determination.
62 See supra ¶¶ 53–55 (explaining our approach to contract
interpretation).
28
Cite as: 2019 UT 16
Opinion of the Court
month thereafter until October 31, 2006, at
which time the entire principal balance together
with interest thereon is paid in full.
Interest shall accrue from December 1, 1996.
The payment is based on a 30 year amortization.
Each payment shall be applied first to accrued interest
and the balance to the reduction of principal. If a
payment is not made within five (5) days of due date, a
late fee of 10 per cent will be due. If payment is not
made within 5 days of due date the entire balance shall
bear interest at the rate of 20% until note is brought
current.
The district court noted that this provision differentiates between the
$5,923.61 installment payments made “every month” from the
“entire principal balance” balloon payoff, which is due on
October 31, 2006. The court also noted that this distinction carries
through to the 10 percent late fee provision. For example, the
10 percent late fee provision applies only if “payment” is not made
within the five-day grace period and nothing in the provision
suggests that the 10 percent late fee also applies if the “entire
principal balance” payoff is not timely made. Thus, according to the
district court, the Note clearly contemplates two types of
payments—the installment payments and the balloon payment—and
the 10 percent late fee provision applies only to the installment
payments.63 This interpretation is reasonable, especially when the
entire Note is viewed in context.
¶68 That “payment” refers only to the Note’s monthly
installment payments is suggested by language in the Note’s
amortization provision. After specifying that an installment payment
in the amount of $5,923.61 is due each month, the Note states that the
“payment is based on a 30 year amortization.” Amortization is
defined as “[t]he act or result of gradually extinguishing a debt . . .
by contributing payments of principal each time a periodic interest
payment is due.”64 So when the Note states that the “payment is
_____________________________________________________________
63As we discussed above, the Note also contemplates a third type
of payment: the 10 percent late fee payment. See supra ¶¶ 61–63.
64Amortization, BLACK’S LAW DICTIONARY (10th ed. 2014); see also
amortize, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 39 (10th ed.
(Continued)
29
BRADY v. PARK
Opinion of the Court
based on a 30 year amortization,” it means that the $5,923.61
monthly installment payment amount was determined by
calculating how much the Bradys would need to pay each month for
a period of thirty years in order to pay off the Note’s $675,000
principal while incurring interest at a 10 percent rate. Because no
other type of payment contemplated in the Note could be “based on
a 30 year amortization,” it is reasonable to conclude that the term
“payment” in the amortization provision refers to the monthly
installment payment.
¶69 The meaning of the term “payment” in the amortization
provision is consistent with its meaning throughout the rest of the
Note. For example, the first sentence of the Note’s next paragraph
states that “[e]ach payment shall be applied first to accrued interest
and the balance to the reduction of principal.” Once again, the term
“payment”—as it is used here—could only reasonably refer to the
monthly installment payment, and not the other two types of
payments contemplated by the Note. It couldn’t reasonably refer to
the 10 percent late fee payment, because that payment would
necessarily be applied to amounts owed for late fees. And it couldn’t
reasonably refer to the final balloon payment, because the final
balloon payment, by its very nature, must be in the amount of the
total remaining balance (principal plus interest), so it would not
matter in which order it is applied. So once again the only payment
type the term “payment” could reasonably refer to in this provision
is the monthly installment payment.
¶70 Because it is reasonable to conclude that “payment,” as it is
used throughout the Note, refers only to the monthly installment
payment, it arguably maintains this meaning when it is used in the
10 percent late fee provision.65 It is reasonable, therefore, to conclude
that the 10 percent late fee provision applies only to the monthly
installment payments—and not to the final balloon payment.
1998) (“[T]o provide for the gradual extinguishment of [a debt] usu.
by contribution to a sinking fund at the time of each periodic interest
payment.”).
65See Irving Place Assocs. v. 628 Park Ave., LLC, 2015 UT 91, ¶¶ 20–
21, 362 P.3d 1241 (employing the canon of consistent meaning to
determine the meaning of a term); see also Meeker v. Mahon, 143 A.3d
1193, 1198–99 (Conn. App. Ct. 2016) (“We read similar or identical
terms and words throughout a contract to have a consistent
meaning.”).
30
Cite as: 2019 UT 16
Opinion of the Court
¶71 The Park Defendants interpret the 10 percent late fee
provision, however, as applying to the final balloon payment. They
state that the term “payment,” as it is used throughout the Note,
plainly refers to all payments due under the Note, including the final
payment on October 31, 2006. So according to them, the use of the
term “payment” in the late fee provision should be read to include
the balloon payment. But we need not address the merits of the Park
Defendants’ alternative interpretation, because even if we found it to
be reasonable, it would merely render the 10 percent late fee
provision ambiguous, thereby requiring us to consider the district
court’s factual determination regarding extrinsic evidence. And
because we conclude that the court did not clearly err when it
determined that the extrinsic evidence shows that the parties did not
intend the 10 percent late fee to apply to the final balloon payment,
we must affirm the district court’s decision even if the Park
Defendants’ alternative interpretation is reasonable.
B. Extrinsic evidence
¶72 The district court’s factual determination regarding the
10 percent late fee provision’s application to the final payment was
not clearly erroneous. When reviewing a factual determination
under a clearly erroneous standard, an “appellate court . . . does not
consider and weigh the evidence de novo.”66 Accordingly, “[t]he
mere fact that on the same evidence the appellate court might have
reached a different result does not justify it in setting the findings
aside.”67 Instead, “[i]t may regard a finding as clearly erroneous only
if the finding is without adequate evidentiary support or induced by
an erroneous view of the law.”68 In this case, the district court
considered the parties’ handwritten memorandum of understanding
before finding that the parties intended the 10 percent late fee
provision to apply only to the monthly installment payments. This
determination is adequately supported by relevant extrinsic
evidence.
_____________________________________________________________
66 State v. Walker, 743 P.2d 191, 193 (Utah 1987) (alteration in
original) (quoting CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 2585 (1971)).
67 Id. (citation omitted) (internal quotation marks omitted).
68 Id. (citation omitted) (internal quotation marks omitted).
31
BRADY v. PARK
Opinion of the Court
¶73 In the memorandum of understanding, the parties wrote
that “the payment will be made via monthly installments due on
[the] First of each month with 10% late fee after five days.” The
district court concluded that “nothing in that provision addressed
the balloon payment.” Rather, “the parties defined ‘payment’ as
‘monthly installments’ made ‘each month’ and further provided that
the 10% late fee applied only if those ‘monthly installments’ were
more than five days late.” Under this definition, the 10 percent late
fee would apply to every installment payment from January 1, 1997
to October 1, 2006, but not to the final balloon payment due on
October 31, 2006. We cannot say the district court clearly erred in
making this determination.
¶74 The Park Defendants argue, however, that the
memorandum of understanding shows that the 10 percent late fee
should apply to the final balloon payment, as well as the monthly
installment payments, because it treats all payments the same. In
support, they assert that the memorandum of understanding “does
not contain any separate definition of the final ‘balloon payment,’
nor does it set forth a different due date for that payment.” But this
argument fails because, as the district court pointed out, the Note
treats the monthly installment and the final balloon payment
differently, and it discusses the 10 percent late fee only in connection
with the monthly installment payment.
¶75 Most noticeably, the Note treats the payments differently by
establishing a different due date for the two payment types: each
monthly installment is due on the first day of each month, but the
due date for the final balloon payment is specifically set for October
31, 2006.
¶76 And as we have already noted, the memorandum of
understanding treats the final balloon payment differently from the
monthly installment payment by specifically establishing the
10 percent late fee for “monthly installment[]” payments without
any reference to the final balloon payment. The Park Defendants
argue that the term “monthly installments” includes the final balloon
payment. But even if we agree that the term could be interpreted in
this way, their argument would still fail because they have not
shown that the district court’s conclusions are unsupported by the
language of the memorandum of understanding.69 Accordingly, the
_____________________________________________________________
69 See supra ¶¶ 72–73.
32
Cite as: 2019 UT 16
Opinion of the Court
Park Defendants have failed to show that the extrinsic evidence does
not adequately support the district court’s factual determination, so
we cannot say the court’s determination was clearly erroneous.
¶77 For this reason, we affirm the district court’s determination
that the 10 percent late fee provision does not apply to the final
balloon payment. Because this determination renders a review of the
district court’s unconscionability determination unnecessary, we
decline to address it.
III. The District Court Violated the Mandate Rule by
Recalculating the Dates of the Bradys’ Installment Payments
¶78 The Park Defendants argue that the district court violated
the mandate rule when it accepted an accounting determination that
used payment dates that differed from the payment dates
established pre-appeal. As we stated earlier,70 under the mandate
rule when a “case has been appealed and remanded,”71
“pronouncements of an appellate court on legal issues”72 and “prior
decision[s] of a district court [that were not disturbed on appeal]
become[] mandatory” upon the district court on remand.73 So in this
case, the district court’s recalculation of the payment dates would
violate the mandate rule only if the payment dates had been decided
by the pre-appeal district court and survived appellate review. We
hold that they did.
¶79 The district court made two pre-appeal determinations
related to the payment dates: a legal determination interpreting the
meaning of the term “payment date” and a factual determination
accepting the actual payment dates established by a neutral,
third-party accountant.
¶80 The district court first made its legal determination in its
September 3, 2009 decision following the bench trial. The court
explained that “a payment should be credited on the date plaintiffs’
check was actually received by Mr. Park.” But the court also noted
_____________________________________________________________
70 See supra ¶¶ 44–46.
71Mid-America Pipeline Co. v. Four-Four, Inc., 2009 UT 43, ¶ 13, 216
P.3d 352.
72 Thurston v. Box Elder Cty., 892 P.2d 1034, 1037 (Utah 1995).
73IHC Health Servs., Inc. v. D&K Mgmt., Inc., 2008 UT 73, ¶ 28, 196
P.3d 588.
33
BRADY v. PARK
Opinion of the Court
that a smaller collection of checks had been accumulated and
deposited in the bank as a group. For these accumulated checks, the
court explained that “there is no persuasive evidence of a tardy
payment, unless the date on the face of the check is beyond the
agreed due date.”
¶81 At the court’s direction, the parties stipulated to the
appointment of Rick Hoffman to serve as a neutral, third-party
accountant who would calculate the amount owing on the Note.
Mr. Hoffman determined the date of each payment and applied the
applicable interest rates to arrive at a final payment amount. He then
submitted his expert damage calculation on August 5, 2010.
¶82 On February 2, 2011, the district court issued its findings of
fact and conclusions of law, in which it reiterated its prior legal
determination interpreting the meaning of the term “payment date.”
At paragraph eighteen, the court discussed the payments as a whole:
“Payments made by Plaintiffs under the Notes occurred on the date
Park actually received the payment, and not on the date Plaintiffs
mailed the payment or wrote a check for the payment.” And at
paragraph twenty-one, the district court discussed the smaller group
of accumulated checks: “Park accumulated a series of Plaintiffs’
payment checks and subsequently presented the series as a group for
payment at the bank. Under these circumstances, these payments are
considered received by Park when they were sent by Plaintiffs.” So
the district court reaffirmed its previous legal determination of the
meaning of the term “payment date.”
¶83 In the same February 2, 2011 decision, the district court also
made a factual determination regarding the actual dates of payment
by accepting Mr. Hoffman’s accounting: “[The sum due and owing
under the Note] was determined in accordance with the Court’s
direction and the Parties’ stipulation in selecting Mr. Rick Hoffman
to perform this calculation.”74 By expressly recognizing that
Mr. Hoffman performed his calculation “in accordance with the
[district] [c]ourt’s direction,” the district court made a factual
_____________________________________________________________
74 See In re Adoption of Baby B., 2012 UT 35, ¶ 40, 308 P.3d 382
(explaining that factual findings “entail[] the empirical, such as
things, events, actions, or conditions happening, existing, or taking
place, as well as the subjective, such as state of mind” (alteration in
original) (citation omitted) (internal quotation marks omitted)).
34
Cite as: 2019 UT 16
Opinion of the Court
determination that Mr. Hoffman’s factual findings—including the
payment dates—were correct.
¶84 Because the district court incorporated its legal and factual
determinations regarding the payment dates into its final, pre-appeal
order, those determinations became binding on the district court
upon remand as long as the court of appeals did not overturn them.
It did not.
¶85 The court of appeals did not have an opportunity to address
the legal or factual determinations regarding the payment dates,
because neither party appealed them. Although the Bradys now
argue they did challenge the district court’s “original accounting”
during the first appeal, the record clearly shows that the only parts
of the accounting they challenged were the district court’s legal
conclusions that the Note called for compound interest, that the
accrued 20 percent default interest had to be paid to bring the Note
current, and that the 20 percent default interest provision was
conscionable.75 Thus the district court’s legal and factual payment
date determinations proceeded unchallenged to the court of appeals.
¶86 Yet the Bradys argue that the court of appeals overturned
the district court’s pre-appeal payment date determinations.76 They
_____________________________________________________________
75 Although the Bradys do point out in a footnote of their brief in
the first appeal that the district court’s findings of fact and
conclusions of law “do not address how many of the monthly
payments were past due,” they did not challenge Mr. Hoffman’s
payment dates or the district court’s legal interpretation of the term
“payment date.” These payment dates were relevant to
Mr. Hoffman’s calculations—despite the fact that the district court
had ruled that the 10 percent late payment fee provision was
unconscionable—because the payment dates affected the amount of
interest that was continually accruing. For this reason, the Bradys
should have brought any challenge of the payment dates on the first
appeal if they believed the dates were clearly erroneous.
76 The Bradys also argue that the Park Defendants failed to
preserve this issue and invited the district court’s error because the
Park Defendants resubmitted evidence of the correct payment dates
and requested that the district court “look at the evidence in the
record and make specific findings as to which payments are
untimely.” But this argument fails because the Park Defendants
urged the district court to accept their proposed accounting—which
(Continued)
35
BRADY v. PARK
Opinion of the Court
base this argument on language in the court of appeals’ opinion in
which it instructs the district court to determine “which installment
payments generated a late fee.” But this comment cannot be
interpreted as the Bradys suggest, because the court of appeals is
unlikely to have ruled on issues that were not raised and briefed,77
and the court failed to conduct the necessary “clearly erroneous”
review of the pre-appeal district court’s factual payment date
determinations.78 Rather than reading the court of appeals’
instruction to determine “which installment payments generated a
late fee” as an implicit rejection of the pre-appeal district court’s
legal and factual payment date determinations, we read it as merely
an instruction to determine which of the already established
payment dates fell beyond the due date. Accordingly, we find that
the pre-appeal district court’s legal and factual findings regarding
the payment dates were not disturbed by the court of appeals.
¶87 Consequently, the district court on remand was bound by
the pre-appeal payment dates. In fact, the court even acknowledged
this in its May 7, 2015 Memorandum Decision, when it stated that
“[t]his [payment date] ruling was not challenged on appeal and thus
this issue has been decided and will remain the law applicable in this
used the same payment dates as were used in Mr. Hoffman’s
accounting—because it was “consistent with the previous
undisturbed findings in this case,” whereas the accounting
submitted by the Bradys’ accountant contained “a number of errors
inconsistent with the record.” Because the Park Defendants argued
this and the district court ruled to disregard the Park Defendants’
proposed accounting, the Bradys’ preservation and invited error
arguments fail.
77 See Madsen v. Wash. Mut. Bank FSB, 2008 UT 69, ¶ 26, 199 P.3d
898 (“[W]e frequently decline to rule on an issue when it has not
been fully briefed by the parties because full briefing allows this
court to carefully consider fully developed and supported
arguments.”); Helper State Bank v. Crus, 81 P.2d 359, 362 (Utah 1938)
(“On appeal, all questions to be determined must be raised by
assignments of error, and in the appellate court only questions so
raised can be presented and determined.” (citation omitted) (internal
quotation marks omitted)).
78 An appellate court may overturn a district court’s factual
determination only if it decides that the factual determination was
“clearly erroneous.” See In re Adoption of Baby B., 2012 UT 35, ¶ 40.
36
Cite as: 2019 UT 16
Opinion of the Court
case.” But the court later contradicted this statement when it
misinterpreted its pre-appeal legal determination and completely
disregarded its factual one.79
¶88 In both its May 7, 2015 and October 29, 2015 memoranda
decisions, the district court quoted language from its pre-appeal,
September 3, 2009 decision, in which it stated that “there [was] no
persuasive evidence of a tardy payment, unless the date on the face
of the check is beyond the agreed due date.” But the court
apparently failed to realize that it had made this statement while
referring to the payment dates for a smaller group of accumulated
checks that had been deposited as a group, and not to the payment
dates as a whole. This was error. The language in the pre-appeal,
February 2, 2011 findings of fact and conclusions of law makes it
clear that the majority of payments “occurred on the date Park
actually received the payment, and not on the date Plaintiffs mailed
the payment or wrote a check for the payment.” By overlooking the
context in which it stated that “the date on the face of the check”
constitutes the payment date, the court incorrectly concluded that
the accounting submitted by the Bradys best conformed to its
pre-appeal ruling.80
¶89 The court also overlooked its pre-appeal factual
determination regarding the payment dates. Despite the fact that it
had recognized that Mr. Hoffman’s accounting—including the
payment dates—conformed to its directions before the appeal, on
remand the court accepted an accounting that utilized different
dates.81 This too was error.
_____________________________________________________________
79 We note that during the first round of litigation at the district
court this case was presided over by the Honorable Joseph C. Fratto,
but on remand it was presided over by the Honorable Robert
P. Faust. Accordingly, on remand Judge Faust was interpreting the
previous memoranda decisions issued by Judge Fratto.
80It appears that the Bradys’ accountant simply used the dates on
the face of the checks as the payment date for all installment
payments—a method the district court’s pre-appeal decision
prohibited.
81 In contrast to the accounting submitted by the Bradys’
accountant, the accounting submitted by the Park Defendants’
accountant used the same dates as Mr. Hoffman.
37
BRADY v. PARK
Opinion of the Court
¶90 Because the district court’s pre-appeal legal and factual
determinations regarding the payment dates became the law of the
case, the court on remand was bound by them. For this reason, the
court’s decision to accept different payment dates violated the
mandate rule.
IV. The District Court Erred When it Awarded Pre- and
Postjudgment Interest to the Bradys at a 10 Percent Rate
¶91 The Park Defendants next argue that the district court erred
when it awarded 10 percent pre- and postjudgment interest to the
Bradys. We agree.
A. The district court erred when it awarded prejudgment
interest at a 10 percent rate under Utah Code section 15-1-1
¶92 As part of its October 29, 2015 memorandum decision, the
district court awarded prejudgment interest to the Bradys at a rate of
10 percent pursuant to Utah Code section 15-1-1. The Park
Defendants challenged this in their motion to alter or amend the
final judgment,82 but the district court denied the motion because it
held that section 15-1-1 applies to any “chose in action”83 and the
Bradys’ claim was indisputably a chose in action. The Park
Defendants now challenge this legal conclusion.
¶93 The Park Defendants cite our decision in USA Power, LLC v.
PacifiCorp,84 to argue that section 15-1-1 is limited to “only those
contracts . . . for the ‘loan . . . of any money [or] goods’ or for the
‘forbearance of any . . . chose in action.’”
¶94 The Bradys argue, however, that the district court’s
prejudgment interest award was correct because the Note
_____________________________________________________________
82 The motion was made pursuant to rule 59 of the Utah Rules of
Civil Procedure.
83 Chose in action, BLACK’S LAW DICTIONARY (10th ed. 2014) (“1. A
proprietary right in personam, such as a debt owed by another
person, a share in a joint-stock company, or a claim for damages in
tort. 2. The right to bring an action to recover a debt, money, or
thing. 3. Personal property that one person owns but another person
possesses, the owner being able to regain possession through a
lawsuit.”).
84 2016 UT 20, ¶ 108, 372 P.3d 629 (second, third, and fourth
alterations in the original) (quoting UTAH CODE § 15-1-1).
38
Cite as: 2019 UT 16
Opinion of the Court
constituted a contract for a loan and, under USA Power, section 15-1-
1 still applies to any “lawful contract” for a loan. But this argument
fails because the judgment awarded to the Bradys was not for money
owed under a loan contract—it was for money owed due to an
overpayment of money owed under a loan contract. This distinction
is significant, and consequently we hold that the district court erred
by concluding that section 15-1-1 applied to the Bradys’ judgment.
¶95 Before our decision in USA Power, we had suggested—in
dicta or without analyzing “the potentially limiting ‘loan or
forbearance’ language in the statute”—that section 15-1-1 applies “to
all cases involving a contract.”85 Consequently, before our decision
in USA Power, many courts interpreted section 15-1-1 as setting “a
default interest rate” for most contracts.86 And, more importantly for
our present discussion, courts also routinely applied the default
10 percent interest rate to overpayments made in connection with
contracts.87 Although USA Power clarified that section 15-1-1 applied
_____________________________________________________________
85 Id. ¶ 107 (discussing previous cases where we suggested that
section 15-1-1 applied to any contract).
86 Consolidation Coal Co. v. Utah Div. of State Lands & Forestry, 886
P.2d 514, 524 n.13 (Utah 1994), abrogated on other grounds by State ex
rel. Sch. & Institutional Tr. Land Admin. v. Mathis, 2009 UT 85, 223 P.3d
1119; see also, e.g., Highlands at Jordanelle, LLC v. Wasatch Cty., 2015 UT
App 173, ¶ 30, 355 P.3d 1047; Whitney v. Faulkner, 2004 UT 52, ¶ 17,
95 P.3d 270 (limiting section 15-1-1 to the contract setting—not only
to contracts for loans or forbearance), abrogated by USA Power, LLC v.
PacifiCorp, 2016 UT 20, 372 P.3d 629; Francis v. Nat’l DME, 2015 UT
App 119, ¶ 44, 350 P.3d 615 (concluding that section 15-1-1 applies to
all contracts).
87 See, e.g., Highlands at Jordanelle, 2015 UT App 173, ¶¶ 30–32
(applying section 15-1-1 to a judgment issued for an overpayment of
service fees); Dale K. Barker Co. v. Sumrall, No. 2:03-cv-00903 CW,
2012 WL 2176235, at *4 (D. Utah June 13, 2012) (applying section
15-1-1 to a contract and noting that if the party had overpaid, the
interest would have applied to the overpayment); see also
Consolidation Coal, 886 P.2d at 529 n.1) (Bench, J., concurring and
dissenting) (“Prejudgment interest is designed to compensate the
nonbreaching party that finds itself, by virtue of the breach, in the
position of loaning money or forbearing what is owed by the
breaching party. Therefore, because of the underpayment of royalties
(Continued)
39
BRADY v. PARK
Opinion of the Court
only to loan contracts, we did not expressly address its application to
overpayments made in connection with loan contracts. Today we
further clarify that section 15-1-1 does not apply to overpayments
when the overpayments were not contemplated in the underlying
contract, even when the overpayments were made in connection
with a contract for a loan or forbearance.
¶96 This interpretation is required under the plain language of
section 15-1-1. Although section 15-1-1 contains two subsections that
establish prejudgment interest rates for certain types of contracts,
neither subsection applies to the judgment awarded in this case.
¶97 Subsection (1) states that “[t]he parties to a lawful contract
may agree upon any rate of interest for the loan or forbearance of
any money, goods, or chose in action that is the subject of their
contract.”88 In other words, section 15-1-1(1) allows courts to award
prejudgment interest at a rate chosen by the parties if the parties had
previously agreed that the interest rate would be applied to the
amounts for which judgment is awarded.
¶98 The proper application of section 15-1-1(1) may be
demonstrated through a hypothetical. Imagine a typical loan
contract, in which a lender agrees to lend a specified amount of
money to a borrower, and the borrower agrees to pay the money
back with interest at a specified rate. If the borrower fails to repay
the loan and the lender prevails in an action to collect on amounts
owed under the loan contract, section 15-1-1(1) authorizes the court
to award prejudgment interest at the rate specified in the contract
because the parties had agreed to apply it to the amounts the
borrower owed the lender. But if the situation is reversed, and a
borrower prevails in an action to recover amounts it inadvertently
overpaid to the lender, it cannot be said that the lender agreed to pay
interest on that amount—unless the contract specifies that the
interest rate would apply in the event of an overpayment. So if the
parties did not previously agree that the interest rate would apply to
amounts owed due to overpayments, the contract does not contain
an “agreed upon” interest rate under section 15-1-1(1). Such is the
case here.
by Consol, the State found itself in the position of loaning or
forbearing money it was owed.” (citations omitted)).
88 UTAH CODE § 15-1-1(1).
40
Cite as: 2019 UT 16
Opinion of the Court
¶99 The Bradys’ judgment was not awarded for amounts owed
under an express provision of the Note. The purpose of the
judgment was to compensate the Bradys for loan overpayments.
And although the Note specifies that the amounts Mr. Park lent to
the Bradys would accrue interest at a 10 percent interest rate, the
Note does not contemplate the possibility of overpayments, much
less specify an interest rate for amounts owed to the Bradys in the
event of an overpayment. For this reason, we conclude that the
Bradys’ overpayments were not amounts owed under the terms of a
contract for a loan or forbearance, and so we hold that
section 15-1-1(1) did not authorize the district court to award
prejudgment interest at a rate of 10 percent.
¶100 The plain language of section 15-1-1(2) compels the same
result. Section 15-1-1(2) provides that “[u]nless parties to a lawful
contract specify a different rate of interest, the legal rate of interest
for the loan or forbearance of any money, goods, or chose in action
shall be 10% per anum.” Thus section 15-1-1(2) allows courts to
award prejudgment interest at a rate of 10 percent if the parties to a
contract for a loan or forbearance did not previously agree upon
another interest rate. Because the only difference between the two
subsections is that section 15-1-1(1) allows parties to establish any
interest rate, whereas section 15-1-1(2) establishes a standard interest
rate of 10 percent in the event the parties did not establish a specific
interest rate, we conclude that, like section 15-1-1(1), section 15-1-1(2)
applies only to amounts owed under the express terms of a contract
for a loan or forbearance.
¶101 Because the Bradys’ overpayments were not amounts
owed under the express terms of a contract for a loan or forbearance,
neither of section 15-1-1’s subsections authorized the district court to
award prejudgment interest at a 10 percent rate. Accordingly, we
reverse the court’s prejudgment interest award and remand for an
award of prejudgment interest that is consistent with this opinion.89
_____________________________________________________________
89 We note that our determination of other issues in this case will
likely affect the total damage award. In the event the district court
awards damages to the Bradys on remand, it should apply a correct
prejudgment interest rate. Unlike Utah’s postjudgment interest
statute, Utah Code section 15-1-1 does not establish a default
prejudgment interest rate. So on remand the district court will have
to determine which prejudgment interest rate is appropriate in this
case. Although we do not decide which rate that would be here, we
(Continued)
41
BRADY v. PARK
Opinion of the Court
B. The district court erred when it awarded postjudgment
interest at a 10 percent rate under Utah Code section 15-1-4
¶102 We likewise reverse the district court’s decision to award
postjudgment interest at a rate of 10 percent. The district court made
its postjudgment interest ruling pursuant to Utah Code section
15-1-4(2)(a). Section 15-1-4(2)(a) provides that “a judgment rendered
on a lawful contract shall conform to the contract and shall bear the
interest agreed upon by the parties.” The district court cited this
language and concluded that it applied to this case because “the
statute asks whether there was an interest rate ‘agreed upon by the
parties,’ not whether the terms of the contract contemplate the
specific claim presented to the Court.” We disagree with the court’s
interpretation.
¶103 A correct interpretation of section 15-1-4(2)(a) hinges on
the meaning of the phrase “interest agreed upon by the parties.”
While the district court’s interpretation focused on the words
“agreed upon” before correctly noting that the parties had agreed
upon an interest rate in the Note, its statutory analysis ended
prematurely because it failed to consider the underlying debt
obligation to which the parties agreed the interest rate would attach.
¶104 An interest rate—by its very nature—is derivative of some
other agreed upon contractual obligation.90 In other words, before
parties can agree upon an interest rate—which will be calculated as a
percentage of the amount of an underlying debt or other
obligation—the parties must reach an agreement regarding the
underlying debt or obligation. With this in mind, it is clear that
section 15-1-4(2)(a) only authorizes the court to apply an interest rate
do note that the rate described in Utah Code section 15-1-4(3)(a), for
postjudgment interest, may be an appropriate rate for a prejudgment
interest award in this case. See generally Wilcox v. Anchor Wate Co.,
2007 UT 39, ¶ 46, 164 P.3d 353 (holding that the rate in section 15-1-1
did not apply because the case did not deal with a contract for a loan
or forbearance, and instead applying a rate used in federal
bankruptcy law because it was a “more appropriate prejudgment
interest rate” for the case).
90 This is so because an interest rate is calculated as a percentage
of a principal amount. See, e.g., interest rate, BLACK’S LAW DICTIONARY
(10th ed. 2014) (“The percentage that a borrower of money must pay
to the lender in return for the use of the money, usu. expressed as a
percentage of the principal payable for a one-year period.”).
42
Cite as: 2019 UT 16
Opinion of the Court
chosen by the parties if the parties agreed that the interest rate
would apply to the contractual obligation that forms the basis for the
judgment award. In other words, section 15-1-4(2)(a) does not
authorize courts to rewrite a contract by taking an interest rate
contractually linked to one obligation and applying it to amounts
owed under a different, unrelated obligation. This is especially true
when the unrelated obligation had not been contemplated by the
parties at the time the contract was formed.
¶105 In this case, the parties agreed that the Bradys would be
obligated to repay a loan in the amount of $675,000 to Mr. Park. They
then agreed upon an interest rate—10 percent—that would attach to
that obligation. Importantly, the parties did not contemplate the
possibility of loan overpayments, and they did not agree upon an
interest rate that would attach to amounts owed to the Bradys due to
loan overpayments. The district court erred, therefore, when it
changed the terms of the parties’ agreement by applying a 10 percent
interest rate to a judicially created obligation to refund the Bradys’
overpayments. For this reason, we reverse the district court’s
postjudgment interest determination and remand for an entry of
postjudgment interest at the federal postjudgment interest rate, plus
2 percent, pursuant to Utah Code section 15-1-4(3)(a).91
V. The District Court Did Not Abuse its Discretion When
it Denied the Park Defendants’ Rule 60(b) Motion
¶106 We now consider the Park Defendants’ claim that the
district court abused its discretion when it denied their rule 60(b)
motion. Rule 60(b) of the Utah Rules of Civil Procedure authorizes a
court to “relieve a party or its legal representative from a judgment”
for a number of reasons listed in the rule.92 When considering
challenges to a court’s ruling on a rule 60(b) motion, we “grant broad
discretion” where the motions “are equitable in nature, saturated
with facts, and call upon judges to apply fundamental principles of
_____________________________________________________________
91 UTAH CODE § 15-1-4(3)(a) (“Except as otherwise provided by
law . . . all other final civil and criminal judgments of the district
court and justice court shall bear interest at the federal postjudgment
interest rate as of January 1 of each year, plus 2%.”).
92 UTAH R. CIV. P. 60(b).
43
BRADY v. PARK
Opinion of the Court
fairness that do not easily lend themselves to appellate review.”93 In
this case we decline to disturb the district court’s rule 60(b) ruling.
¶107 In their rule 60(b) motion, the Park Defendants asked the
district court to amend its judgment so that the judgment’s “joint
and several” designation no longer applied to Bank of Utah, as
custodian of the IRA, and Paul M. Halliday, as trustee.94 They
argued that the joint and several designation was a mistake under
rule 60(b)(1); that it was not equitable to give the judgment
prospective effect under rule 60(b)(5); and, alternatively, that their
requested relief was justified under rule 60(b)(6). The Park
Defendants have made the same arguments on appeal. We affirm the
district court on all counts.
¶108 Rule 60(b)(1) authorizes a court to relieve a party from a
judgment if the judgment was the product of a “mistake,
inadvertence, surprise, or excusable neglect.” The Park Defendants
argue that the joint and several designation was a mistake under
rule 60(b)(1) because the Bradys never sought monetary damages
against the Bank of Utah or Mr. Halliday in their complaint. While
the Park Defendants are correct on this point, they do not consider
the grounds on which the district court awarded judgment. The
judgment in this case was awarded based upon the Bradys’
overpayment of amounts owed under the Note. And these
overpayments were made pursuant to the district court’s pre-appeal
judgment for breach of contract, for which all of the Park Defendants
were named plaintiffs and which resulted in a judgment in the
amount of $2 million to all of the Park Defendants. Using this
judgment, the Bank of Utah, acting on behalf of the IRA, foreclosed
on some of the Bradys’ real property. With these facts in view, we
hold that the inclusion of the Bank of Utah and Mr. Halliday in an
award for reimbursement was not an abuse of the district court’s
discretion.
_____________________________________________________________
93 Fisher v. Bybee, 2004 UT 92, ¶ 7, 104 P.3d 1198.
94 The judgment was entered against the Bank of Utah in its
capacity as a custodian of the IRA and against Mr. Halliday in his
capacity as trustee to two trust deeds securing the Note.
Consequently, the judgment did not allow the Bradys to collect from
the general assets of the Bank nor from the personal assets of
Mr. Halliday.
44
Cite as: 2019 UT 16
Opinion of the Court
¶109 Similarly, the district court did not abuse its discretion by
rejecting the Park Defendants’ rule 60(b)(5) and (b)(6) arguments.
Rule 60(b)(5) authorizes a court to relieve a party from a judgment if
“it is no longer equitable that the judgment should have prospective
application.” The Park Defendants argue that relief should have
been granted under rule 60(b)(5) because “no allegations or evidence
were ever presented to support” an award of prospective relief. But
this argument is merely a rewording of their argument under rule
60(b)(1), and it fails for the same reason—the Bradys made
overpayments to all of the Park Defendants together, so an award for
reimbursement against all of the Park Defendants was within the
court’s discretion.
¶110 Finally, rule 60(b)(6) authorizes a court to relieve a party
from a judgment for “any other reason that justifies relief.” The Park
Defendants argue that rule 60(b)(6) should apply in the event its
other arguments do not succeed. Because the Park Defendants do
not express any additional reasons in support of this last argument,
it fails for the same reasons as the Park Defendants’ rule 60(b)(1) and
(b)(5) arguments.
¶111 In sum, because the Park Defendants together were
awarded a judgment against the Bradys in the district court’s first
judgment, the court did not abuse its discretion by granting a
reimbursement award against all of the Park Defendants in its
second judgment. Accordingly, we affirm the district court’s
rule 60(b) ruling.
VI. We Vacate the District Court’s Decision to Award
No Attorney Fees and Remand for a New
Attorney Fees Award Determination
¶112 Next, we consider the district court’s attorney fees
determination. Both the Bradys and the Park Defendants argue that
the district court erred when it declined to award attorney fees in
their favor. Because our rulings on the other issues in this case may
have upended the basis for the court’s attorney fees decision, we
decline to address the parties’ arguments. Instead, we vacate the
district court’s previous decision and remand for a new attorney fees
determination.
VII. We Have Jurisdiction to Consider All of the Claims
Brought by the Park Defendants
¶113 Finally, the Bradys argue that we do not have jurisdiction
over Mr. Park’s IRA on appeal because the Bank of Utah, as
custodian for the IRA, failed to file a timely notice of appeal
45
BRADY v. PARK
Opinion of the Court
pursuant to rules 3(d) and 4(a) of the Utah Rules of Appellate
Procedure. Although we agree with the Bradys that the deficiencies
in the notice of appeal deprive us of jurisdiction over the Bank of
Utah, we find that our jurisdiction over the remaining Park
Defendants necessarily includes jurisdiction over all of the Park
Defendants’ property, which in this case includes the IRA.
¶114 The omission of an IRA custodian95 does not deprive us of
jurisdiction over a self-directed IRA when we already have
jurisdiction over the IRA’s owner or beneficiary. Unlike a trust or a
business entity, a self-directed IRA is not a legal entity that is distinct
from its owner.96 Rather, it is more akin to property such as a bank
account.97 When a court has jurisdiction over the parties to a case,
the court has jurisdiction to adjudicate the parties’ interests in their
property.98 Because assets held in a self-directed IRA are property of
the IRA’s owner, jurisdiction over the owner necessarily confers
jurisdiction over the IRA and all of the assets held in the IRA. So
_____________________________________________________________
95At the outset, we must highlight the fact that the Bank of Utah
was joined to this case only in its role as custodian of the IRA.
96 See Regions Bank v. Kaplan, No. 8:16-cv-2867-T-23AAS, 2017 WL
2868413, at *1 (M.D. Fla. Apr. 10, 2017) (“The predominant weight of
authority holds that a plaintiff can sue the beneficiary of a
self-directed IRA for the IRA’s alleged wrongdoing because the
self-directed IRA ‘is not a separate legal entity from its owner.’”
(citation omitted)); United States v. Bailey, No. 1:11cr10, 2012 WL
569744, at *5, n.5 (W.D.N.C. Feb. 22, 2012) (noting that “[b]ecause an
IRA is not a separate legal entity from its owner,” the owner of the
IRA is the true beneficial owner of the property deposited therein);
Myers v. Walker, 61 S.W.3d 722, 726 n.1 (Tex. Ct. App. 2001)
(suggesting that the owner of an IRA is not distinct from the IRA).
97 See, e.g., In re Vaughan Co., Realtors, No. 10-10759, 2014 WL
271632, at *3 (Bankr. D.N.M. Jan. 23, 2014) (“A self-directed IRA, like
a savings account, is not a separate legal entity from its owner.”).
98 See, e.g., Aequitas Enters., LLC v. Interstate Inv. Grp., LLC, 2011
UT 82, ¶ 10, 267 P.3d 923 (“[W]hen a court has personal jurisdiction
over the parties to a case, the court has jurisdiction to adjudicate the
parties’ interests in real property, even if the property is not located
in that state. Here, the court unquestionably has personal jurisdiction
and therefore has the ability to order the parties to act on their
property.” (citations omitted)).
46
Cite as: 2019 UT 16
Opinion of the Court
Mr. Park and the Park Trust’s notice of appeal was sufficient to grant
us jurisdiction over them and all of their assets, including the IRA.99
¶115 Additionally, we note that a corollary of this rule is that
when we have jurisdiction over an owner of an IRA—including his
or her interest in the IRA—the owner necessarily has standing to
bring or defend claims directly implicating his or her interest in the
IRA. Accordingly, we have frequently adjudicated interests in an
IRA where the owner of the IRA, but not the IRA or the IRA’s
custodian, was joined as a party.100
¶116 This approach is followed in other jurisdictions. For
example, in FBO David Sweet IRA v. Taylor,101 a federal district court
in Alabama ruled that the owner of a self-directed IRA was a proper
party-plaintiff in a case involving assets deposited in an IRA because
“it is the owner of the Self–Directed IRA who manages, directs, and
controls the investments.”102 So the court concluded that “the owner
_____________________________________________________________
99In so holding we note that the Bank of Utah, as custodian of the
IRA, was only joined to this case as part of the Bradys’ claim for
injunctive relief, and its presence was never necessary for the other
Park Defendants to defend their interests in the IRA.
100 See Dahl v. Dahl, 2015 UT 79, ¶¶ 142–45, ---P.3d--- (adjudicating
the parties’ interest in an IRA even though the IRA and its custodian
were not included as parties); Mellor v. Wasatch Crest Mut. Ins. Co.,
2009 UT 5, ¶ 8, 201 P.3d 1004 (noting that under a federal retirement
benefit statute an IRA plan “participant or beneficiary” may bring a
civil action “to recover benefits due to him under the terms of his
plan, to enforce his rights to future benefits under the terms of the
plan, or to clarify his rights under the terms of the plan” (citation
omitted) (internal quotation marks omitted)); In re Kunz, 2004 UT 71,
¶¶ 2, 13, 99 P.3d 793 (adjudicating interests in several IRAs, even
though the IRAs and their custodians were not included as parties);
Estate of Anello v. McQueen, 953 P.2d 1143, 1145–47 (Utah 1998)
(adjudicating the parties’ interests in two IRAs, even though the
IRAs and their custodians were not listed as parties); In re Matter of
Estate of Hunt, 842 P.2d 872, 873 (Utah 1992) (noting that a
beneficiary of an estate had standing to pursue an appeal despite the
fact that the beneficiary had resigned as personal representative of
the estate after filing his notice of appeal).
101 4 F. Supp. 3d 1282 (M.D. Ala. 2014).
102 Id. at 1285.
47
BRADY v. PARK
Opinion of the Court
or beneficiary of the IRA acts as a trustee for all intent and purposes”
whereas the bank custodian “served as merely a holding company”
of the owner’s property.103
¶117 Similarly, in Deem v. Baron104 the federal district court of
Utah held that an IRA’s custodian bank was not the proper party to
litigate issues related to IRA contracts. After acknowledging the logic
of the FBO David Sweet IRA opinion, the court explained that because
the custodian bank “ha[d] not been involved in the decision-making
process, it lack[ed] the knowledge of the facts which would allow it
to bring th[e] action [in the case].”105 In contrast, the court held that
the owners of the IRA were the “true parties in interest” in the
litigation because “they are the ones most knowledgeable of all of
the facts and circumstances surrounding those contracts” and “they
are also the ones for whose benefit all of the transactions were
performed.”106 Accordingly, the court concluded that the owners of
the IRA had standing to prosecute the case. So both FBO David Sweet
IRA and Deem illustrate that our treatment of the IRA in this case is
consistent with the treatment given to IRAs in other jurisdictions.
¶118 In sum, jurisdiction over a party also confers jurisdiction
over the party’s property. This is true even when the property in
question is an IRA. And if we have jurisdiction to adjudicate a
party’s interest in his or her IRA, that party necessarily has standing
to bring or defend claims implicating his or her interest in the IRA.
In this case, the Bradys do not challenge our jurisdiction over
Mr. Park individually or as trustee of the Park Trust. Because the
Park Trust owns the IRA, we also have jurisdiction over the IRA, and
Mr. Park—as trustee of the Park Trust—has standing to defend the
Trust’s interest in the IRA on appeal. Accordingly, we hold that
although we do not have jurisdiction over the Bank of Utah, as
_____________________________________________________________
103 Id.; see also Vannest v. Sage, Rutty & Co., 960 F. Supp. 651, 658
(W.D.N.Y. 1997) (“Because Vannest controlled the investment
decisions, he certainly was a purchaser/seller for all practical
purposes. Investors in self-directed IRAs have standing as
‘purchasers/sellers’ to assert claims under the securities laws.”).
104 No. 2:15-cv-00755-DS, 2016 WL 8230425 (D. Utah Apr. 14,
2016).
105 Id. at *2.
106 Id.
48
Cite as: 2019 UT 16
Opinion of the Court
custodian of the IRA, we nevertheless have jurisdiction over the IRA
and the Park Trust’s interest in it.
Conclusion
¶119 Although the district court was not precluded by the
mandate rule from determining that the Note does not require the
Bradys to pay any incurred 10 percent late fee amounts to bring the
Note current, we hold that the court erred in making this
determination because it did so by construing an ambiguity in the
Note against the Park Defendants, as drafters, without first
considering extrinsic evidence. Accordingly, we remand for a new
determination after the court considers relevant extrinsic evidence.
¶120 Additionally, we affirm the district court’s determination,
because it was not clearly erroneous, that extrinsic evidence showed
that the parties did not intend the Note’s 10 percent late fee to apply
to the final payment.
¶121 Further, we reverse the district court’s acceptance of
payment dates that differed from the payment dates it accepted
before the first appeal because this determination violated the
mandate rule.
¶122 We also reverse the district court’s award of pre- and
postjudgment interest at a 10 percent rate to the Bradys because Utah
Code sections 15-1-1 and 15-1-4 do not authorize an award of interest
at that rate. Accordingly, upon remand if the court awards a
judgment to the Bradys, it should apply the correct pre- and
postjudgment interest rates.
¶123 Additionally, we affirm the district court’s ruling on the
rule 60(b) motion because it was not clearly erroneous. But we
reverse the district court’s attorney fees determination and remand
for a new attorney fees determination.
¶124 Finally, we conclude that we have jurisdiction over the
IRA, through the IRA’s owner, even though we do not have
jurisdiction over Bank of Utah, as the IRA’s custodian. We
accordingly remand to the district court for proceedings consistent
with this opinion.
49
BRADY v. PARK
A.C.J. Lee, concurring in part and dissenting in part
ASSOCIATE CHIEF JUSTICE LEE, concurring in part and dissenting in
part:
¶125 I agree with and concur in much of the majority opinion in
this complex case. But I respectfully disagree with the court’s
decision to reverse and remand to allow the parties to present
extrinsic evidence on the question of “what is required to bring the
Note current under the 20 percent default interest provision.”
Supra ¶ 59. Unlike the majority, I find no “ambiguity” in this
provision sufficient to open the door to extrinsic evidence. Instead I
would conclude that the default interest provision applies to any and
all outstanding debts under the Note and that these debts must be
paid in order for the Note to be “brought current.”
¶126 This strikes me as the better interpretation of the terms of
the parties’ agreement. And because this question can be adequately
resolved on the basis of the written agreement I would hold that
there is no basis for a remand.
¶127 My disagreement with the majority highlights an
important ambiguity lurking in the background of our analysis in a
case like this one. The ambiguity concerns the very notion of contract
ambiguity—or in other words ambiguity about what it means for
competing parties both to offer a “reasonable” interpretation of the
contract provision in question. Our cases have never been very clear
about the nature of ambiguity sufficient to open the door to extrinsic
evidence. Put differently, we have never said what it means for both
sides to have a “reasonable” interpretation. I would clarify this
important point of contract law doctrine here. I would do so by
holding that a contract is “ambiguous” enough to allow a court to
consider extrinsic evidence if and only if the parties’ competing
interpretations of a contract are equally (or at least roughly equally)
plausible. And I would conclude that the Note in this case is not
ambiguous in this sense, but is better interpreted as requiring a
default interest payment on any and all outstanding debts payable
under the Note (and thus necessary for it to be “brought current”).
¶128 In the paragraphs below I first set forth the need and basis
for the clarification in our law that I propose. Then I respond to the
majority’s criticisms of my approach, including its puzzling assertion
that the doctrine of stare decisis somehow bars my bid to clarify an
element of our law that has never been defined but leaves the
majority free to make the clarification that it prefers. See supra ¶ 54
n.39. And I conclude by explaining why I think the terms of the Note
at issue here are not sufficiently ambiguous to warrant a decision to
open the door to the presentation of extrinsic evidence.
50
Cite as: 2019 UT 16
A.C.J. Lee, concurring in part and dissenting in part
I
¶129 We have long said that a provision of a contract is
ambiguous if “it is capable of more than one reasonable interpretation
because of uncertain meanings of terms, missing terms, or other
facial deficiencies.” Meadow Valley Contractors, Inc. v. State Dep’t of
Transp., 2011 UT 35, ¶ 64, 266 P.3d 671 (emphasis added) (quoting
Glenn v. Reese, 2009 UT 80, ¶ 10, 225 P.3d 185), abrogated on other
grounds by Mounteer Enters., Inc. v. Homeowners Ass’n for the Colony of
White Pine Canyon, 2018 UT 23, 422 P.3d 809. Yet we have never been
very clear about what this means.
¶130 We have emphasized that it is not enough that two parties
offer competing interpretations of a contract provision. R&R Energies
v. Mother Earth Indus., Inc., 936 P.2d 1068, 1074 (Utah 1997). Thus, we
have stated that each competing interpretation must be
“reasonable”—or “tenable.” See Plateau Mining Co. v. Utah Div. of
State Lands & Forestry, 802 P.2d 720, 725 (Utah 1990) (“To
demonstrate ambiguity, the contrary positions of the parties must
each be tenable.”). And we have underscored the need to consider
the “contract as a whole” in assessing this question—“[e]ach contract
provision . . . in relation to all of the others.” Utah Valley Bank v.
Tanner, 636 P.2d 1060, 1061–62 (Utah 1981). Yet we have never been
very clear about what it means for two competing interpretations to
be “reasonable” or “tenable.”
¶131 This is a significant ambiguity. A judicial determination of
ambiguity opens the door to extrinsic evidence of the intent of the
parties to a contract—and, eventually, to the possible application of a
canon of construction (like the canon of construing ambiguities
against the drafter). See supra ¶ 56 (quoting Meadow Valley
Contractors, 2011 UT 35, ¶ 64). Such a determination is likely to be a
matter of great consequence to the parties. When a court opens the
door to extrinsic evidence it substantially increases the cost of
resolving a dispute over the meaning of a contract provision. See
Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts Via
Surveys and Experiments, 92 N.Y.U. L. REV. 1753, 1762–63, 1757–58
(2017); Alan Schwartz & Robert E. Scott, Contract Interpretation Redux,
119 YALE L.J. 926, 953, 963 (2010). And, all else being equal, we can
assume that parties to a contract will prefer quick, inexpensive
means of resolving contract disputes. Schwartz & Scott, supra at 944–
47.
¶132 All else may not be equal. The decision to open the door to
extrinsic evidence may produce not just costs but also benefits—by
enhancing the accuracy of a judicial decision (in accurately assessing
51
BRADY v. PARK
A.C.J. Lee, concurring in part and dissenting in part
the contracting parties’ intent). Id. at 930 (explaining that courts can
often “minimize interpretive error by hearing all relevant and
material evidence”). And it could make good sense to open the door
to extrinsic evidence in contract cases if and when this benefit
outweighs the cost of more drawn-out litigation. See id. at 946.
¶133 This is an important policy question that drives some
points of conflict in the law of contract interpretation. When courts
embrace a hard “parol evidence rule” or “plain meaning” canon of
contract interpretation they are implicitly concluding that the
adjudication costs of opening the door to extrinsic evidence
outweigh any benefits in the form of improving accuracy of judicial
decision-making. See Ben-Shahar & Strahilevitz, supra at 1762. This is
the so-called “New York” rule of contract interpretation.107 The
contrary approach is sometimes referred to as the “California
rule.”108 It seems premised, at least in part, on a contrary
determination—that the benefits of more accurately assessing the
parties’ intent are sufficient to justify the increase in costs associated
with opening the door to extrinsic evidence.
¶134 Our Utah cases have embraced the New York approach—
at least in part. See Tangren Family Tr. v. Tangren, 2008 UT 20, ¶ 11,
182 P.3d 326 (“[I]f a contract is integrated, parol evidence is
admissible only to clarify ambiguous terms; it is ‘not admissible to
vary or contradict the clear and unambiguous terms of the
contract.’” (quoting Hall v. Process Instruments & Control, Inc., 890
P.2d 1024, 1026–27 (Utah 1995)); Daines v. Vincent, 2008 UT 51, ¶ 25,
190 P.3d 1269 (“[B]efore permitting recourse to parol evidence, a
court must make a determination of facial ambiguity.”); Peterson v.
_____________________________________________________________
107See Schwartz & Scott, supra at 959–60; see, e.g., In re Primex Int’l
Corp. v. Wal-Mart Stores, Inc., 679 N.E.2d 624, 627 (N.Y. 1997) (giving
conclusive effect to a merger clause); Intershoe, Inc. v. Bankers Tr. Co.,
571 N.E.2d 641, 644 (N.Y. 1991) (enforcing a default rule excluding
extrinsic evidence when a writing appears to embody a final
agreement).
108 See Schwartz & Scott, supra at 960–61; see, e.g., Garcia v. Truck
Ins. Exch., 682 P.2d 1100, 1104 (Cal. 1984) (en banc) (explaining that
the parol evidence rule does not exclude “evidence of the
circumstances under which the agreement was made or to which it
relates . . . or to explain an extrinsic ambiguity or otherwise interpret
the terms of the agreement” (alteration in original) (citation
omitted)).
52
Cite as: 2019 UT 16
A.C.J. Lee, concurring in part and dissenting in part
Sunrider Corp., 2002 UT 43, ¶ 18, 48 P.3d 918 (“If the language of the
contract is unambiguous, the intention of the parties may be
determined as a matter of law based on the language of the
agreement.”).
¶135 Notwithstanding these important holdings, we have not
yet resolved a related question that is lurking beneath the surface in
a case like this one—what do we mean by “ambiguity” or competing
“reasonable” or “tenable” interpretations?109 Our cases have used a
range of different terms in describing the operative standard. See
supra ¶ 55 n.42. Without some clarification of the nature of this
standard, we perpetuate a risk of arbitrary applications of an
important threshold standard in contract interpretation.
¶136 We can, and should, eliminate this ambiguity about
“ambiguity” in contract interpretation. I would do so by stating that
we find ambiguity sufficient to open the door to extrinsic evidence
only where the parties’ competing interpretations are of equal (or at
least roughly equal) plausibility. Put differently, I would say that we
look to extrinsic evidence only as a sort of “tie-breaker”—to resolve
very close calls on the best interpretation of the four corners of a
written contract.110
_____________________________________________________________
109 In fairness, we are not alone. I have found no court in any
other jurisdiction that has answered the important question that is
implicated here. Most all courts, it would seem, are content to reside
in a world of ambiguity about ambiguity. Stephen C. Mouritsen,
Contract Interpretation with Corpus Linguistics 5 (Aug. 30, 2018)
(unpublished manuscript) (available on SSRN) (“In spite of its
conceptual importance in the interpretation of contracts, courts lack
a coherent, shared, well-defined, objective definition of what
ambiguity actually means.”). But that is no reason to remain in this
uncertain place. Our courts generally have suffered from a startling
lack of familiarity with principles and practices of linguistics.
Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning,
127 YALE L.J. 788, 794–95 (2018). It is time we begin to remedy that
problem.
110 The majority highlights a related point of ambiguity in our
case law. It notes that we have said that we resolve ambiguities
against the drafter only where “extrinsic evidence ‘does not reveal
the intent of the parties.’” Supra ¶ 56 (quoting Meadow Valley
Contractors, 2011 UT 35, ¶ 69). But that formulation begs a parallel
(Continued)
53
BRADY v. PARK
A.C.J. Lee, concurring in part and dissenting in part
¶137 This approach would minimize the risk of arbitrary
application of the law. It would also streamline the process of
contract dispute resolution in a manner that is likely reflective of the
preferences of contracting parties. See Schwartz & Scott, supra at 944–
47.
¶138 A party who enters into a written contract will not likely
be in a position to predict whether the eventual use of extrinsic
evidence will help or hurt its cause in an anticipated dispute about
contract meaning. Contracting parties thus are likely to prefer
streamlined rules of interpretation that tend to limit review to the
four corners of the contract. This is more than a theoretical
proposition. It seems amply borne out by empirical evidence—in the
fact that parties overwhelmingly go out of their way to direct courts
to ignore extrinsic evidence and to consider only the terms of their
written agreement, and (relatedly) opt for New York law over
California law in forum-selection clauses.111
question of what degree of ambiguity warrants resort to this kind of
canon of construction. This is another important question that merits
our attention in an appropriate case. Perhaps some of the analysis I
have presented here may be of use to our clarification of this
important point in our law. I do not propose to resolve this question
here, however, as it is not necessary to the resolution of this case.
111 See Lisa Bernstein, Merchant Law in a Merchant Court:
Rethinking the Code’s Search for Immanent Business Norms, 144 U. PA. L.
REV. 1765, 1769–70, 1771–77, 1816–20 (1996) (revealing that a more
formalistic, textualist approach is favored among merchants);
Theodore Eisenberg & Geoffrey P. Miller, The Flight to New York: An
Empirical Study of Choice of Law and Choice of Forum Clauses in
Publicly-Held Companies’ Contracts, 30 CARDOZO L. REV. 1475 (2009)
(showing that parties prefer New York law to other law by
empirically reviewing choice of law and forum-selection clauses in
contracts).
The majority correctly notes that these empirical studies
examined contract disputes between sophisticated business entities.
But I see no reason why unsophisticated parties would prefer a
different approach. They are in no better position to know ex ante
whether the use of extrinsic evidence will help or hurt their cause.
And the majority has not proffered a standard that accounts for its
policy concern. See infra ¶¶ 155–59. It has opted not to provide a
standard.
54
Cite as: 2019 UT 16
A.C.J. Lee, concurring in part and dissenting in part
¶139 Our contract law should reflect our best assessment of the
contracting parties’ likely preferences on the governing rules of
contract interpretation. This is an important function of gap-filler
rules in contract law. See Schwartz & Scott, supra at 941, 957. If we
think it likely that contracting parties will prefer streamlined rules of
interpretation (as I do), our law should reflect this background rule.
The parties to a contract may then draft around the rule if they prefer
a different approach. Id. at 944; Ian Ayres & Robert Gertner, Filling
Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99
YALE L.J. 87, 87 (1989) (“Default rules fill the gaps in incomplete
contracts; they govern unless the parties contract around them.”).
And our law can then defer to their contrary view.
¶140 I would embrace such an approach here. And I would
accordingly adopt a clarifying—and limiting—notion of the kind of
“ambiguity” sufficient to open the door to extrinsic evidence in Utah.
II
¶141 The majority criticizes my proposed clarification of our
law on three principal grounds. First, it claims that the doctrine of
stare decisis somehow bars us from clarifying an ambiguous tenet of
our case law. Second, it asserts that my proposed standard is no
clearer than the majority’s. And third, it contends that the policy
grounds for my approach will not always hold. I find none of these
critiques persuasive.
A
¶142 The majority places great weight on the doctrine of stare
decisis. It accuses me of “brush[ing] aside sixty years of our caselaw”
and of urging a “significant departure from our longstanding
approach to contract interpretation.” Supra ¶¶ 54 & 55 n.42. But this
critique is puzzling on several counts.
¶143 First, our precedent is either silent or inconsistent on the
question that I am proposing to clarify. And nothing in the law of
stare decisis forecloses a clarification of an unclear body of case law.
¶144 The majority concedes the lack of clarity in our case law.
At one point it admits that “we have used the term ‘reasonable’
repeatedly for decades without defining the term further.” Supra
¶ 55. And elsewhere it acknowledges that we have also used an
alternative term—“plausible”—in identifying the threshold for
ambiguity in this field. Supra ¶ 54 n.39. That term has also remained
undefined in our case law.
55
BRADY v. PARK
A.C.J. Lee, concurring in part and dissenting in part
¶145 Our cases are at best silent on what it means for two
competing interpretations of a contract to be “reasonable” or
“plausible.” That alone should be enough to defeat the applicability
of the doctrine of stare decisis. If we have failed to define an operative
term for decades we can hardly be foreclosed from doing so as a
matter of stare decisis. That notion of stare decisis would make no
sense. It would say that our past failure to elucidate the meaning of
an undefined term in our precedent precludes us from ever doing so
going forward. That cannot be right. See In re Adoption of Baby B.,
2012 UT 35, ¶ 60 n.23, 308 P.3d 382 (explaining that a key policy
undergirding the principle of stare decisis is “reinforced by a decision
that clarifies ambiguities in past opinions”).
¶146 But silence is the lesser of the two evils present in our case
law. Our precedents are also inconsistent. As Judge Connors notes, a
standard of plausibility seems quite a bit lower than a standard of
reasonableness. Compare infra ¶ 178 n.122 (Connors, J., concurring in
part and dissenting in part) (providing definitions of the word
“plausible”), with WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
1892 (2002) (defining “reasonable” as “being in agreement with right
thinking or right judgment; not conflicting with reason; not
absurd”). The “more than conjecture” standard used in our caselaw
seems even further removed. Infra ¶ 148 n.113; see WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 479 (2002) (defining “conjecture”
as “an inference or conclusion drawn or deduced by surmise or
guesswork”). If it is enough for both of two interpretations of a
contract to be “more than conjecture,” the door will be open wide to
the admissibility of extrinsic evidence.
¶147 Our law as it currently stands is a grab bag. A judge who
prefers to enforce a careful limit on the admissibility of extrinsic
evidence can do so under the notion of “reasonableness” that I have
proposed. But no judge is bound by that standard. If the judge
prefers to open a wider door to extrinsic evidence she can cite the
“more than conjecture” standard. These two notions of
reasonableness cannot peacefully coexist. And the doctrine of stare
decisis surely does not foreclose us from resolving the tension in our
case law.112
_____________________________________________________________
112See Washington Cty. Sch. Dist. v. Labor Comm’n, 2015 UT 78,
¶¶ 24–37, 358 P.3d 1091 (noting the use of different standards in our
cases and taking the opportunity to clarify the appropriate
(Continued)
56
Cite as: 2019 UT 16
A.C.J. Lee, concurring in part and dissenting in part
¶148 The majority seeks to avoid this problem by equating the
terms “plausible” and “reasonable” going forward. Citing some
language in some of our opinions, the court insists that “we have
treated” the term “plausible” as if it “had roughly the same meaning
as the term ‘reasonable.’” Supra ¶ 54 n.39. To support this assertion,
the majority notes that the terms are often used near each other in
our opinions. That’s true. But it does not follow that the two terms
are synonymous. There is good reason to believe that a plausibility
standard is lower than a reasonableness standard. Again I think that
follows from the text of our opinions and from the ordinary meaning
of “plausible.”113 See supra ¶¶ 144, 146.
¶149 The majority’s response to this problem, moreover, just
underscores the need for clarification in this area. Ultimately all the
majority is really saying is that it believes a clarification is necessary.
And the clarification it selectively chooses is that “plausible”
essentially means “reasonable.”
¶150 This leads to the second problem with the majority’s stare
decisis analysis. The court itself is proposing to clarify our law in this
field—by saying that when we use the term “plausible” we really
standard); In re Adoption of Baby B., 2012 UT 35, ¶ 60 n.23, 308 P.3d
382 (clarifying a “latent ambiguity[y]” in our precedent and
explaining that “[s]uch a decision is entirely consistent with the
principle of stare decisis”).
113 The body of Utah case law is difficult to square with the
majority’s conclusion. To date this body of law has not been viewed
as equating plausibility and reasonableness. Instead our cases have
been understood to allow for an independent showing of plausibility
as a means of proving ambiguity. See, e.g., Saleh v. Farmers Ins. Exch.,
2006 UT 20, ¶¶ 15–17, 133 P.3d 428 (discussing at length the term
“plausible” and how it is used as a standard in contract
interpretation); Bennett v. Huish, 2007 UT App 19, ¶ 21, 155 P.3d 917
(relying on a plausibility standard); Prop. Assistance Corp. v. Roberts,
768 P.2d 976, 977 (Utah Ct. App. 1989) (same). Further, this is hardly
the only point of inconsistency in our case law in this field. We have
also suggested that a contract is ambiguous where there are at least
two interpretations that rise to “more than a conjecture.” See Saleh,
2006 UT 20, ¶ 17. Elsewhere we have said that “[t]o demonstrate
ambiguity, the contrary positions of the parties must each be
tenable.” Plateau Mining Co. v. Utah Div. of State Lands & Forestry, 802
P.2d 720, 725 (Utah 1990).
57
BRADY v. PARK
A.C.J. Lee, concurring in part and dissenting in part
mean “reasonable” (while still stopping short of defining the latter
term). Having done so, however, the majority is in no position to
criticize me for proposing further clarification. I don’t think the law
of stare decisis forecloses the need to clarify an unclear or unworkable
legal standard. See Carter v. Lehi City, 2012 UT 2, ¶ 6, 269 P.3d 141
(explaining that “[a] decision to clarify unworkable precedent does
not undermine but advances” a key goal of stare decisis). But surely
no version of that doctrine allows the majority to advance whatever
points of clarification it favors while dismissing my further
clarification as an unceremonious “brush[ing] aside” of “sixty years
of our case law.”114
_____________________________________________________________
114 For these and other reasons I am puzzled by the majority’s
reminder that “the parties have not asked” us to revisit the standard
set forth in our cases. Supra ¶ 55 n.45. I do not see that as a barrier to
my bid for transparency. The parties have asked us to apply the
standard set forth in our cases—to decide whether the parties’
competing interpretations are both reasonable. And we can’t apply
that standard without explaining what it means. See GeoMetWatch
Corp. v. Utah State Univ. Research Found., 2018 UT 50, ¶ 31, 428 P.3d
1064 (reaffirming that courts, and not the parties, declare the
meaning of the law); First of Denver Mortg. Inv’rs v. C.N. Zundel &
Assocs., 600 P.2d 521, 527 (Utah 1979) (explaining that courts are not
bound by the parties’ stipulations “when points of law requiring
judicial determination are involved”).
The point of our writing opinions is to pull back the curtain on
the basis for our decision. My proposed approach is just a bid for
further transparency. See Winward v. State, 2012 UT 85, ¶ 44, 293 P.3d
259 (Lee, J., concurring in the judgment) (making a similar point in
the context of a concern about a lack of clarity as to the basis for or
content of a statutory standard in the Post-Conviction Remedies Act;
asserting that it is not an act of “judicial restraint” to decline to
define a standard that the court is applying, but instead “is an
effective assumption of power—an assumption in a black box
without any indication of its basis in law”). I see no basis for
foreclosing that move.
It is worth noting, moreover, that the majority sees the lack of
briefing from the parties only as a barrier to the clarification that I
seek—not the one that it favors. Further briefing could certainly be
useful. I would be open to supplemental briefing from the parties on
the proper meaning of “reasonableness” in our case law. But I am
(Continued)
58
Cite as: 2019 UT 16
A.C.J. Lee, concurring in part and dissenting in part
B
¶151 The majority also expresses confusion or frustration with
the standard that I propose. It says that I either fail to “clarify what a
reasonable interpretation would be,” supra ¶ 55 n.42, or that I
“exclude[]” “any consideration of whether” two competing
interpretations are “reasonable,” supra ¶ 54 n.41. But neither point
correctly characterizes my approach. And the majority’s critiques
reveal the circularity of its own standard.
¶152 I propose to speak directly to what I see as missing from
the standard set forth in our cases—to what it means for there to be
two “reasonable” interpretations of a contract provision. I suggest
that the clearest—and best—way to speak to that question is to say
that two interpretations of a contract are both “reasonable” when
they are of at least roughly equal plausibility. See supra ¶ 136. I
suppose it’s true that we have “never applied” this standard in our
past cases. Supra ¶ 55 n.42. But it misses my whole point to highlight
this as a bug in my theory. This is my theory’s central feature. And it
is built on the idea that we have never spoken specifically to what it
means for two interpretations to be “reasonable”—and need to do so
here.
¶153 The point is not that our courts should refuse to decide
whether two competing interpretations are “reasonable,” supra ¶ 54
n.41—much less that we should “disregard one reasonable
interpretation of a contract” in favor of an alternative interpretation
that the court deems “preferable,” supra ¶ 55 n.45. These
formulations beg the central question—of what it means for an
interpretation to be “reasonable.” And I’m saying that our courts
should define “reasonableness” in terms of roughly equal
plausibility.
¶154 Under my proposed standard, a court would determine
whether two interpretations are “reasonable” by deciding whether
both are roughly equally plausible interpretations of a contract. A
court could reject one interpretation not by deciding that the other is
“preferable” in some vague, abstract sense but by concluding that it
is much less plausible than the alternative.115 My approach thus does
not impressed by the criticism that I am doing something untoward
when it is leveled by a majority that is engaging in a similar exercise.
115The majority says that this approach is called into question by
our case law. Supra ¶ 55 n.45 (citing Meadow Valley Contractors, Inc. v.
State Dep’t of Transp., 2011 UT 35, ¶ 69, 266 P.3d 671). But Meadow
(Continued)
59
BRADY v. PARK
A.C.J. Lee, concurring in part and dissenting in part
not “expand . . . contract interpretation . . . by adding an additional
step” of analysis. Supra ¶ 55 n.45. It simply represents an effort to
clarify the first step in interpreting a contract—what constitutes a
“reasonable” interpretation.
¶155 My proposal is a move in the direction of increased
transparency. The majority, by contrast, shrouds the standard of
“reasonableness” in a question-begging formulation that perpetuates
the risk of arbitrariness and inconsistency.
¶156 The majority insists that “we have provided a consistent
explanation for what constitutes a reasonable interpretation.” Supra
¶ 55. It says that “a reasonable interpretation is an interpretation that
cannot be ruled out . . . as one the parties could have reasonably
intended.” Supra ¶ 55 (emphasis added). Yet this formulation is
circular. It defines reasonableness in terms of what is reasonable.
That leaves the matter undefined. It does not tell us how reasonable a
competing interpretation must be, or what it means to be reasonable.
¶157 Perhaps that question can never be answered with
mathematical certainty. But we can try to give it some discernible
content. That is my proposal. And a responsive critique that says
Valley does not speak to the question that I’m addressing—to the
standard of contract ambiguity, or to what it means for two
interpretations to be sufficiently “reasonable” to open the door to
extrinsic evidence. It addresses a subsequent question that goes to
the standard for choosing between two competing interpretations
after that door has been opened. Meadow Valley Contractors, 2011 UT
35, ¶ 64 (stating that after a contract is found to be ambiguous, courts
should “resolve the ambiguity by looking to extrinsic evidence of the
parties’ intent”). Certainly it’s true that at that stage we have said
that it is error to “cursorily conclude[]” that one of two
interpretations is better without considering extrinsic evidence. Id.
¶ 69. But that just means that we have been clear about the approach
courts should take once the door is opened to extrinsic evidence. The
question I’m highlighting—for many reasons a very significant
one—is at an earlier stage. And the majority has no support for its
suggestion that I’m somehow overriding existing case law on the
standard of reasonableness at this threshold stage. We have never said
what that means. We should do so here.
60
Cite as: 2019 UT 16
A.C.J. Lee, concurring in part and dissenting in part
reasonable means reasonable is no answer; it is a guarantee of
arbitrariness.116
¶158 As judges we are responsible to make our decisions in
accordance with the rule of law. We fail to do so when we take an “I
know it when I see it” way out. See Jacobellis v. Ohio, 378 U.S. 184, 197
(1964) (Stewart, J., concurring). Such is not law. It is an assertion of a
judicial prerogative to do what’s right on a case-by-case basis. And
when we do that we open up the possibility—or more accurately the
guarantee—that our law will mean something different in different
courts in our system.
¶159 Where possible, we should identify the legal rule that
governs our decisions. When we decline to do so we open the door
to decision-making on the basis of personal predilections or
prejudices of our judges. We can and should do better.
_____________________________________________________________
116 The majority claims that my approach “suffers from the same
deficiency” that plagues the imprecise standard now set forth in our
cases. Supra ¶ 55 n.45. In making this claim the majority highlights
the imprecision in the term “plausible,” and insists that my approach
puts all the weight on that term. But that critique misstates the
clarification I propose. I am not proposing to substitute the word
“plausible” for “reasonable.” I am proposing a precise statement of
the governing legal standard, whichever adjective we use—that “we
find ambiguity sufficient to open the door to extrinsic evidence only
where the parties’ competing interpretations are of equal (or at least
roughly equal) plausibility.” Supra ¶ 136. I am suggesting, in other
words, that we turn to extrinsic evidence only to resolve very close
calls between competing interpretations of a contract—as a sort of
tiebreaker.
Under my approach the courts would still retain some discretion
to decide whether the parties’ proffered interpretations are of equal
(or near equal) plausibility. But my approach would narrow that
range of discretion and thus limit the amount of arbitrariness and
inconsistency. Thus, I am not proposing to give district courts new
discretion to “disregard one reasonable interpretation” if they
believe it is less reasonable or plausible than another. Supra ¶ 55
n.45. I am simply suggesting that district courts and litigants should
know what constitutes a “reasonable” interpretation.
61
BRADY v. PARK
A.C.J. Lee, concurring in part and dissenting in part
C
¶160 The majority’s final critique is a response to a policy
argument for the tie-breaker notion of “reasonableness” that I have
identified—the logical and empirical support for the idea that
contracting parties prefer streamlined rules of interpretation that
tend to limit review to the four corners of the contract. See supra
¶¶ 137–38. While acknowledging this point, the majority insists that
“it is not necessarily true in every case that parties would prefer a
quick and inexpensive resolution over an accurate result—especially
in cases involving parties who do not litigate frequently.” Supra ¶ 55
n.45.
¶161 I take that point. That is why I propose a rule that would
function as a default. If contracting parties prefer accuracy above all
else (or at least above litigation costs), they can make that clear by
drafting into the contract a rule that opens a wider door to the
consideration of extrinsic evidence.
¶162 The majority’s point, at most, is that some parties may
prefer this wider door. Yet I have cited empirical support for the
likely preference of a majority of contracting parties, see supra ¶ 138
n.111, and the majority has presented no basis for its contrary view.
¶163 The majority, in all events, has not articulated a standard
that is sensitive to the nuance that it introduces. It has not said that
we should decide on the required level of reasonableness of competing
contract interpretations based on an indication of the parties’
appetite for expensive litigation. Indeed it has not articulated any
standard at all. That seems to me the worst of all of the options
before us. If the majority prefers a wider door for extrinsic
evidence—if it wishes to open the door whenever the parties present
plausible but not equally reasonable interpretations—then it should
say so. And it should offer a reason for that standard. But unless and
until it does so I do not see how the majority is in a position to
criticize my proposed move in the direction of greater transparency.
III
¶164 Applying the standard set forth above, I would hold that
there is no “ambiguity” in the terms of the default interest provision
of the Note at issue here. The operative text of the Note states that
“[i]f payment is not made within 5 days of due date the entire
balance shall bear interest at a rate of 20 percent until note is brought
current.” The question presented is what is meant by “brought
current.” In the Park Defendants’ view the Note may be brought
current only if all payments due under the Note (all installment
62
Cite as: 2019 UT 16
A.C.J. Lee, concurring in part and dissenting in part
payments and all late fees) are made. The Bradys view this provision
differently. Because the default interest provision is triggered only
by a late installment payment, the Bradys insist that they can bring the
Note current by making up only the late installment payments.
¶165 The majority deems both interpretations “reasonable.” I
disagree.
¶166 The Bradys’ interpretation could be deemed “reasonable”
if any degree of plausibility were sufficient to open the door to extrinsic
evidence. But that is not how I would view the notion of
“reasonableness” (or of “ambiguity”). For reasons highlighted above,
I would find ambiguity only in the face of two interpretations of at
least roughly equal plausibility. And here I do not find that kind of
ambiguity.
¶167 It is true, as the majority notes, that “[t]he phrase ‘brought
current’ is not defined . . . in the Note.” Supra ¶ 60. But that doesn’t
render the contract ambiguous. The default interest provision is
ambiguous only if we are unable to discern the better interpretation
of the terms of the contract. And I see a clear path to resolving the
parties’ dispute on the four corners of the Note.
¶168 “[B]rought current” is not ambiguous. In this linguistic
context, “current” means “belong[ing] to” the applicable “period of
time,” or in other words up to date.117 And an account like the one at
issue here can be brought up to date only if all amounts owing are
paid in full. No one would say that a debtor’s account is “brought
current” by a mere partial payment of amounts owing to a creditor.
¶169 Here there is no question that the Bradys owed more than
just late installment payments to the Parks; they also owed unpaid
late fees. The Bradys’ interpretation should be rejected on that basis.
They do not present a reasonable construction because they fail to
credit the plain language of the Note.
_____________________________________________________________
117Current, OED ONLINE (July 2018), http://www.oed.com.erl.lib.
byu.edu/view/Entry/46097?rskey=FpbUxN&result=2&isAdvanced
=false#eid; see also AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE 446 (5th ed. 2011) (defining “current” as “[b]elonging to
the present time”); WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 557 (2002) (same).
63
BRADY v. PARK
J. CONNORS, concurring in part and dissenting in part
¶170 It is true, as the majority notes, that “it is only the failure to
timely pay installment payments—and not a failure to pay the other
two types of payments contemplated in the Note—that triggers the
20 percent default interest.” Supra ¶ 62. But that does not sustain the
conclusion that “the phrase ‘brought current’ within the provision
refers only to the payment of late installment payments.” Supra ¶ 62.
It indicates only that the obligation to bring the account “current” is
triggered by a late installment payment.
¶171 I would resolve this issue on the basis of the language of
the Note. I would hold that the Bradys were required to pay any and
all unpaid amounts under the Note in order to bring it “current”
under the default interest provision. And I would not remand for the
presentation of extrinsic evidence on this issue.118
JUDGE CONNORS, concurring in part and dissenting in part:
¶172 I concur in large part with the majority opinion.
Specifically, I concur with Parts II through VII of that opinion.
_____________________________________________________________
118In Section II of the majority opinion, the majority affirms the
district court’s interpretation of the Note’s 10 percent late fee
provision. Supra ¶¶ 66–77. It does so because even if the Parks’
alternative interpretation was reasonable, “[t]he district court’s
factual determination regarding the 10 percent late fee provision’s
application to the final [balloon] payment was not clearly
erroneous.” Supra ¶ 72. I agree with this conclusion. I would,
however, apply my standard for assessing contract ambiguity to
resolve this issue. Supra ¶ 127 (Lee, A.C.J., dissenting in part) (“[A]
contract is ‘ambiguous’ enough to allow extrinsic evidence if and
only if the parties’ competing interpretations of a contract are
equally (or at least roughly equally) plausible.”). Doing so, I would
conclude that the provision at issue is ambiguous because both
interpretations are equally (or at least roughly equally) plausible for
reasons highlighted by the majority. See supra ¶¶ 67–71. Because the
provision is ambiguous, I would ask whether the district court’s
factual determination—which was based on a review of extrinsic
evidence—is clearly erroneous. I do not believe it is for reasons
stated by the majority. Supra ¶¶ 72–76. I thus agree with the
majority’s decision to affirm the district court’s holding that the 10
percent late fee provision does not apply to the final balloon
payment.
64
Cite as: 2019 UT 16
J. CONNORS, concurring in part and dissenting in part
However, as to Part I of the majority opinion, I join Associate Chief
Justice Lee’s dissent in its conclusion that the district court erred
when it did not find as a matter of law that the Note required the late
fee to be paid to bring the Note “current.” Supra ¶ 125. And yet,
while I support much of the analysis in his dissenting opinion, I am
not convinced that the court needs to define ambiguity as a situation
where competing interpretations of a contract are roughly equal.
Supra ¶ 127.
¶173 Regarding Part I of the majority opinion, as a threshold
matter, I disagree with the conclusion announced in Part I.A and
with the analysis set forth in paragraphs 47–51. I believe the
language in paragraph 36 of the court of appeals’ decision was
clear—it did make a legal determination that the 10 percent late fee
had to be paid to bring the Note current.119 Whether the court should
have made that legal determination is a different question, and one
the Bradys perhaps would have asked us to reconsider had this court
granted review. But it did not. Brady v. Park, 2013 UT App 97, 302
P.3d 1220, cert. denied 308 P.3d 536. Therefore, I would find that the
clear language in paragraph 36 of the court of appeals’ decision
controls and that the district court violated the mandate rule by
reaching a different conclusion.
¶174 But because the majority opinion concludes that the
mandate rule was not violated, we must determine what level of
ambiguity is sufficient to require a court to consider extrinsic
evidence to determine the intent of the parties. On this point, I agree
with Associate Chief Justice Lee that there is not sufficient ambiguity
in the Note at issue in this case to require consideration of extrinsic
evidence to interpret the contractual language on the issue of
whether the Note requires payment of the 10 percent late fee to bring
the Note current. Accordingly, I do not join Part I.B of the majority
opinion.
_____________________________________________________________
119 In the court of appeals’ decision, the court declared that “the
20% default interest rate runs from the expiration of the five-day
grace period until the payment was made, together with the 10% late
fee (if the trial court determines on remand that the 10% late fee is
enforceable).” Brady v. Park, 2013 UT App 97, ¶ 36, 302 P.3d 1220. On
remand, the district court found that the 10 percent late fee is
enforceable, a determination that has not been challenged in this
appeal.
65
BRADY v. PARK
J. CONNORS, concurring in part and dissenting in part
¶175 However, I would not go so far as to require that the
competing interpretations be roughly equal before opening the door
to consideration of extrinsic evidence. To me this is not necessary to
resolve the case at hand. Therefore, I do not join that aspect of
Associate Chief Justice Lee’s opinion.
¶176 Rather, I would conclude that only one interpretation of
the contract at issue in this case is objectively reasonable. And it is
the same reading the court of appeals endorsed in paragraph 36 of
its decision. The competing interpretation—that the Note does not
require the 10 percent late fee to be paid to bring the Note current—
is simply not objectively reasonable in my view.120 Therefore, rather
than remand the case to the district court to consider extrinsic
evidence on this issue, I would reverse with instructions to follow
the only reasonable interpretation, which is that the Note requires
the 10 percent late fee to be paid to bring the Note current.
¶177 Finally, I would also expressly disavow language found in
earlier cases121 that could be read to suggest that a proffered
_____________________________________________________________
120 I find paragraphs 164–71 of Associate Chief Justice Lee’s
opinion particularly persuasive on this point. There is no need to
repeat those arguments here.
121 Some examples include: Mind & Motion Utah Invs., LLC v.
Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994 (“Rather, the
proffered alternative interpretations [of a contract] must be plausible
and reasonable in light of the language used.” (emphasis added)
(internal quotation marks and citation omitted)); Saleh v. Farmers Ins.
Exch., 2006 UT 20, ¶¶ 15–18, 133 P.3d 428 (reciting a plausibility
standard but then expressing some concern over the etymology of
the word “plausible”); First Am. Title Ins. Co. v. J.B. Ranch, Inc., 966
P.2d 834, 837 (Utah 1998) (“A contract may be ambiguous because it
is unclear or omits terms or . . . ‘if the terms used to express the
intention of the parties may be understood to have two or more
plausible meanings.’” (alteration in original) (quoting Alf v. State
Farm Fire & Cas. Co., 850 P.2d 1272, 1274 (Utah 1993))).
Even the court of appeals in its opinion in this case refers to a
plausibility standard in its analysis of a different provision in this
contract (a provision that is not at issue in the current appeal). Brady,
2013 UT App 97, ¶ 35 (“While we do not regard Park’s interpretation
and the Bradys’ interpretation as equally plausible, we nevertheless
(Continued)
66
Cite as: 2019 UT 16
J. CONNORS, concurring in part and dissenting in part
competing interpretation need only be “plausible” 122 to support a
finding of ambiguity. I would emphasize that the competing
interpretations must both be objectively reasonable before an
ambiguity is found.123
agree with the Bradys that the text of the Note forecloses neither.”
(emphasis added)).
122 Merriam-Webster’s defines “plausible” as “superficially fair,
reasonable, or valuable but often specious.” Plausible, MERRIAM-
WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003). And the Oxford
English Dictionary defines “plausible” as “seeming reasonable or
probable (though speculative); apparently acceptable or trustworthy
(sometimes with the implication of mere appearance); specious.”
Plausible, SHORTER OXFORD ENGLISH DICTIONARY (6th ed. 2007). In my
view, “plausibility” is too low a standard to support a conclusion of
ambiguity when reviewing a contractual provision.
123 Frankly, I believe this is the standard the court has already
endorsed in its more recent pronouncements on the issue, including
in the majority opinion in this case. See supra ¶ 54; see also, e.g., Utah
State Tax Comm’n v. See’s Candies, Inc., 2018 UT 57, ¶ 18, 435 P.3d 147
(explaining that in the process of statutory interpretation, statutory
language is “ambiguous” only when “its terms remain susceptible to
two or more reasonable interpretations after we have conducted a
plain language analysis” (emphasis added)). However, I believe the
court should specifically disavow any prior language supporting a
plausibility standard in order to give contracting parties, the
practicing bar, and the lower courts a clearer understanding of the
standard.
In the case at hand, I disagree with the majority’s application of
its own standard. As indicated above, I conclude that only one of the
competing interpretations is objectively reasonable. Supra ¶ 177.
Therefore I find no ambiguity.
67