Antion Financial, LC v. Christensen

2013 UT App 60_________________________________________________________
THE UTAH COURT OF APPEALS
ANTION FINANCIAL, LC,
Plaintiff and Appellee,
v.
STEVE CHRISTENSEN,
Defendant and Appellant.
Opinion
No. 20100750‐CA
Filed March 7, 2013
Third District, Salt Lake Department
The Honorable Denise P. Lindberg
No. 090900044
Brennan H. Moss and Kurt O. Hawes,
Attorneys for Appellant
L. Miles LeBaron and Alisa J. Rogers,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion,
in which JUDGES WILLIAM A. THORNE JR.
and J. FREDERIC VOROS JR. concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Steve Christensen appeals the trial court’s ruling,
following a bench trial, in favor of Plaintiff Antion Financial, LC
(Antion) on Antion’s breach of contract action. Our resolution of
the issues on appeal rests on our interpretation of Utah Code
section 57‐1‐27, which governs the public sale of property under a
Antion Financial v. Christensen
trust deed. See Utah Code Ann. § 57‐1‐27(1) (LexisNexis 2010). We
affirm in part, reverse in part, and remand for further proceedings.
BACKGROUND1
¶2 This appeal arises from a foreclosure action. A purchaser
financed the construction of a home through America West Bank.
The loan was evidenced by a promissory note and secured by a
trust deed on the property. After the purchaser defaulted on the
loan, Antion became the Bank’s successor in interest to the
promissory note and the beneficiary under the trust deed. Antion
held a public foreclosure auction to sell the property on June 3,
2008. Antion’s attorney acted as the agent of the trustee. The trustee
prepared a bid information sheet, which instructed bidders that the
auction and sale would be performed pursuant to Utah Code
section 57‐1‐27, namely that the property would be sold to the
highest bidder and that each bid would be considered an irrevoca‐
ble offer to purchase. The other terms of sale provided that the
highest bidder would pay 25% of the bid by close of business on
the day of the auction, which amount would be non‐refundable,
and that the remaining bid balance would be due within seven
days. Prior to the auction, the trustee’s agent read the bid informa‐
tion sheet aloud to the bidders. The trustee’s agent then initialed
the sheet, indicating that he had read it, and each of the bidders
signed and dated the document.
¶3 An individual, acting either acting on his own behalf or on
the purchaser’s behalf, made the highest bid at $1,510,000.
Christensen made the next highest bid at $1,500,002. Antion, the
1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite the
facts consistent with that standard.” Alvey Dev. Corp. v.
Mackelprang, 2002 UT App 220, ¶ 2, 51 P.3d 45 (citation and internal
quotation marks omitted).
20100750‐CA 2 2013 UT App 60Antion Financial v. Christensen
third highest bidder, entered a credit bid of $1,500,001. On the same
day as the auction, but after the sale, the individual who made the
$1,510,000 bid attempted to negotiate more favorable settlement
terms than those provided on the bid information sheet and Antion
attempted to accommodate him, but the two parties were unable
to agree on terms. The individual with the $1,510,000 bid thereafter
failed to make the required initial payment on his bid.
¶4 In a telephone conference on June 5, 2008, between the
trustee and the other bidders, including Christensen, the trustee
restated the original sale terms from the bid information sheet and
informed all of the bidders that $1,510,000 had been the highest bid,
that the required initial payment had not been made, and that
pursuant to section 57‐1‐27 and the sale terms, the trustee had the
option to sell the property to the next highest bidder. The trustee
then asked Christensen whether he still stood by his bid,
Christensen stated that he did and confirmed his offer, and the
trustee reiterated some of the sale terms from the bid information
sheet. However, Christensen failed to comply with the terms of
sale. Because of Christensen’s failure to timely perform, the trustee
announced the end of the public sale, and Antion became the
winning bidder as a result of its credit bid. Christensen attempted
to negotiate with the trustee to purchase the property, but he and
the trustee never reached an agreement. Antion sold the property
for $1,568,206 approximately six months later. After deducting the
expenses of the sale, Antion received $1,413,845 from the sale. The
parties agreed that on the day of the auction, the property
appraised for $1,500,000.
¶5 Antion sued Christensen for breach of contract, breach of
covenant of good faith and fair dealing, and specific performance.2
2. Antion also sued the purchaser and the highest bidder of
$1,510,000. In its findings of fact, conclusions of law, and order, the
trial court noted that it had orally granted Antion’s motion to
(continued...)
20100750‐CA 3 2013 UT App 60Antion Financial v. Christensen
After a bench trial in May 2009, the trial court first concluded that
the bid information sheet prepared for the sale of the property
satisfied the statute of frauds. See Utah Code Ann. § 25‐5‐9
(LexisNexis 2007) (“Every instrument required by the provisions
of this chapter to be subscribed by any party may be subscribed by
the lawful agent of such party.”). Specifically, the trustee prepared
the bid information sheet, and the trustee’s agent, who conducted
the sale, printed his name on and initialed the sheet on June 3, the
day of the sale.
¶6 After the highest bidder’s failure to perform, the trustee
elected to “sell the property to the next highest
bidder”—Christensen—pursuant to section 57‐1‐27(1)(a)(ii). See id.
§ 57‐1‐27(1)(a)(ii) (LexisNexis 2010). The trial court concluded that
Christensen, as the next highest bidder after the $1,510,000 bid,
made an “irrevocable offer” to purchase the property pursuant to
section 57‐1‐27(1)(a) and was therefore bound by his bid. See id.
§ 57‐1‐27(1)(a).
¶7 The trial court next concluded that on June 5, the day that
the trustee informed the other bidders that the highest bidder of
$1,510,000 had failed to perform, Christensen “reaffirmed his offer”
and the trustee accepted the offer by restating the sale terms,
thereby creating an enforceable contract. The court concluded that
the continuing negotiations between the trustee and Christensen
after June 5 concerning Christensen’s purchase of the property took
place with the trustee acting not as trustee, but rather as Antion’s
representative. That negotiation never resolved, and when
2. (...continued)
dismiss these defendants “due to their filing for bankruptcy.”
However, our review of the record reveals that the trial court
entered judgment against the highest bidder on April 28, 2010, in
the amount of $110,000, indicating that he was not dismissed from
the action.
20100750‐CA 4 2013 UT App 60Antion Financial v. Christensen
Christensen refused to pay his bid amount, he breached his
contract with the trustee.
¶8 In calculating Antion’s damages, the trial court interpreted
Utah Code section 57‐1‐27, which states, “[A] bidder refusing to
pay the bid price is liable for any loss occasioned by the refusal,
including interest, costs, and trustee’s and reasonable attorneys’
fees.” Id. § 57‐1‐27(1)(b). The trial court first determined that Antion
was entitled to accrued interest at the statutory interest rate of 10%
per year pursuant to Utah Code section 15‐1‐1 and calculated the
amount of interest from the date Christensen’s payments should
have been made to the date of Antion’s eventual sale of the
property. That totaled $85,668. The court added that $85,668
amount to Christensen’s bid of $1,500,002, for a total of $1,585,670.
From that total, the court then subtracted $1,413,845, the net
amount Antion realized at the eventual sale of the property, to
conclude that Antion was damaged in the amount of $171,825.
Additionally, the court calculated interest for the days between the
date of eventual sale and the date of trial and determined that
Antion’s total damages equaled $196,885. Last, the court awarded
attorney fees in the amount of $14,706 as provided by the statute.
ISSUES AND STANDARD OF REVIEW
¶9 Christensen challenges the trial court’s interpretation of
section 57‐1‐27 and resulting conclusions of law regarding (1) his
liability as the next highest bidder at the public foreclosure auction
after he refused to perform on his bid, (2) calculation of Antion’s
damages, and (3) the award of attorney fees. This court “review[s]
a trial court’s interpretation of statutory and case law for
correctness, affording no deference to the trial court’s ruling.”
Property Located at 2793 S. 3095 W., W. Valley City v. Munford, 2000
UT App 116, ¶ 6, 1 P.3d 1116. This court also reviews “the measure
used to calculate damages” as a question of law. Traco Steel Erectors,
Inc. v. Comtrol, Inc., 2009 UT 81, ¶ 18, 222 P.3d 1164. “Whether
attorney fees are recoverable in an action is a question of law,
20100750‐CA 5 2013 UT App 60Antion Financial v. Christensen
which we review for correctness.” Valcarce v. Fitzgerald, 961 P.2d
305, 315 (Utah 1998). Additionally, “we point out that because the
parties do not challenge the trial court’s lengthy findings of fact, we
accept these findings as true in our analysis on appeal.” dʹElia v.
Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147 P.3d 515.
ANALYSIS
I. Christensen Is Liable Under Utah Code Section 57‐1‐27.
¶10 In this appeal we are asked to interpret Utah Code section
57‐1‐27. We determine that Christensen’s next highest bid in the
foreclosure sale was irrevocable only until the trustee accepted the
highest bid and that, at that point, Christensen was therefore not
liable for refusing to perform on his bid. However, we conclude
that Christensen nonetheless became liable when he resubmitted
his bid. Christensen was therefore responsible to Antion for any
loss occasioned by his refusal to perform.
A. As the Next Highest Bidder, Christensen Is Not Immediately
Liable Under Utah Code Section 57‐1‐27.
¶11 Utah Code section 57‐1‐27(1) provides,
(a) On the date and at the time and place designated
in the notice of sale, the trustee or the attorney for the
trustee shall sell the property at public auction to the
highest bidder. The trustee, or the attorney for the
trustee, may conduct the sale and act as the
auctioneer. The trustor, or the trustor’s successor in
interest, if present at the sale, may direct the order in
which the trust property shall be sold, if the property
consists of several known lots or parcels which can
be sold separately. The trustee or attorney for the
trustee shall follow these directions. Any person,
including the beneficiary or trustee, may bid at the
20100750‐CA 6 2013 UT App 60Antion Financial v. Christensen
sale. The trustee may bid for the beneficiary. Each bid
is considered an irrevocable offer. If the highest bidder
refuses to pay the amount bid by the highest bidder for the
property, the trustee, or the attorney for the trustee,
shall either:
(i) renotice the sale in the same manner as notice of
the original sale is required to be given; or
(ii) sell the property to the next highest bidder.
(b) A bidder refusing to pay the bid price is liable for any
loss occasioned by the refusal, including interest, costs,
and trustee’s and reasonable attorneys’ fees. The
trustee or the attorney for the trustee may thereafter
reject any other bid of that person for the property.
Utah Code Ann. § 57‐1‐27(1) (LexisNexis 2010) (emphases added).
¶12 Christensen argues that the trial court erred in determining
that he was liable under section 57‐1‐27.3 He asserts that only the
highest bidder is subject to liability under section 57‐1‐27(1)(a) and
that, therefore, as the next highest bidder, he was not subject to
liability. Christensen states that even if all bids at a foreclosure sale
are considered “irrevocable bid[s]” under section 57‐1‐27(1)(a), the
trustee rejected Christensen’s bid and all of the other lower bids
when he accepted the winning bid of $1,510,000. Thus, Christensen
3. Christensen did not argue below as ardently he does on appeal
that the trustee’s acceptance of the $1,510,000 bid constituted a
rejection of his own bid. In fact, his argument that his offer was
rejected and that he was therefore no longer liable under the statute
as the next highest bidder was conflated with his next argument on
appeal that he did not later resubmit his bid. As a result, the trial
court’s ruling did not focus on how the acceptance of a higher bid
might affect the lower bids.
20100750‐CA 7 2013 UT App 60Antion Financial v. Christensen
argues, his bid was irrevocable only until the trustee selected the
highest bid; thereafter, his bid became revocable and he was no
longer bound under the contract to purchase the property.
¶13 In support of his position, Christensen argues that this court
should interpret section 57‐1‐27 in harmony with the surrounding
statutory sections and provisions and determine that the legislature
clearly intended “to hold [only] the successful highest bidder in a
public auction liable for failure to pay their bid[s].” He argues that
the provision relating to the bid price in the statute, i.e., “[a] bidder
refusing to pay the bid price is liable for any loss occasioned by the
refusal,” Utah Code Ann. § 57‐1‐27(1)(b) (emphasis added), must
only apply “if the highest bidder refuses to pay the amount bid by the
highest bidder for the property,” id. § 57‐1‐27(1)(a) (emphasis
added). Therefore, he asserts, the language stating that “a bidder
refusing to pay the bid price is liable for any loss occasioned by the
refusal, including interest, costs, and trustee’s and reasonable
attorneys’ fees,” id. § 57‐1‐27(1)(b), applies only to the highest
bidder. He also insists that the legislature clearly intended to bind
only the highest bidder in a trustee’s sale; otherwise it would have
clarified that each bidder could be liable instead of “[a] bidder
refusing to pay.” See id. (emphasis added). According to
Christensen, if the statute meant that each bid made at a
foreclosure sale was to be considered an irrevocable obligation to
purchase the property, as the trial court determined, then such
action would “encourage trustees to select bids that create
situations most favorable to the trustee” and would also “impose[]
potential liability on every bidder at a trustee’s sale simply for
having placed a bid.”
¶14 Below and on appeal, Christensen relies on California’s
equivalent public auction statute. See Cal. Civ. Code § 2924h(a)
(West 2005) (“Each and every bid made by a bidder at a trustee sale
under a power of sale contained in a deed of trust or mortgage
shall be deemed to be an irrevocable offer by that bidder to
purchase the property being sold by the trustee under the power
of sale for the amount of the bid. Any second or subsequent bid by
20100750‐CA 8 2013 UT App 60Antion Financial v. Christensen
the same bidder or any other bidder for a higher amount shall be
a cancellation of the prior bid.”). Although Christensen
acknowledges that Utah Code section 57‐1‐27(1)(a) omits some of
the crucial language of the California statute, he argues that the
California statute is still illustrative for its articulation of basic
contract principles. Christensen argues that under basic contract
principles, when the trustee accepted the highest bid, the
acceptance of that bid was a manifestation of the trustee’s intent to
reject Christensen’s bid and all other lower bids. Christensen
further argues that because the trustee has a choice between
renoticing the sale or selling the property to the next highest
bidder, no mutual obligation exists.
¶15 Antion argues on appeal that section 57‐1‐27 unambiguously
provides that every bid is irrevocable. According to Antion’s
reading of the statute, in the event that the highest bidder refuses
to pay the amount bid, the trustee can elect to sell the property to
the next highest bidder because every bid made at the trustee’s sale
is irrevocable. Were it not so, Antion argues, the statute would
state, “[T]he highest bidder refusing to pay the bid price is liable for
any loss occasioned by the refusal,” rather than, “A bidder refusing
to pay the bid price is liable for any loss occasioned by the refusal,”
Utah Code Ann. § 57‐1‐27(1)(b) (emphasis added). Antion also
argues that, contrary to Christensen’s position, the legislature
indeed intended to impose liability on every bidder at a trustee’s
sale simply for having placed a bid. Further, Antion argues that
under common law contract principles, the statute treats the bids
as irrevocable offers, and as such, those bids are akin to option
contracts, which therefore cannot be withdrawn during a stated
time or for a reasonable length of time if the open period is
unstated. Antion suggests that the two days between the opening
bids on June 3 and the telephone conference on June 5 when the
trustee restated the sale terms was a reasonable length of time.
¶16 “When interpreting a statute, our goal ‘is to give effect to the
legislature’s intent.’” Commonwealth Prop. Advocates, LLC v.
20100750‐CA 9 2013 UT App 60Antion Financial v. Christensen
Mortgage Elec. Registration Sys., Inc., 2011 UT App 232, ¶ 12, 263
P.3d 397 (quoting State v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780).
“To discern legislative intent, we look first to the
statute’s plain language. Also, when interpreting
statutes, [w]e presume that the legislature used each
word advisedly and read each term according to its
ordinary and accepted meaning. Additionally, [w]e
read the plain language of [a] statute as a whole and
interpret its provisions in harmony with other
statutes in the same chapter and related chapters.
Furthermore, if the plain meaning of the statute can
be discerned from its language, no other interpretive
tools are needed.”
Id. (alterations in original) (quoting Harker, 2010 UT 56, ¶ 12).
¶17 According to our reading of the plain language contained in
section 57‐1‐27(1), Christensen’s next highest bid was irrevocable.
See Utah Code Ann. § 57‐1‐27(1)(a) (LexisNexis 2010) (“Each bid is
considered an irrevocable offer.”). The question then becomes for
how long did Christensen’s bid remain irrevocable—until the
trustee selected the highest bid, thereby rejecting the second
highest bid, as Christensen argues, or, because no time period was
specified, for a reasonable length of time after the bids were made,
as Antion argues.
¶18 Utah law instructs us that “[t]he best evidence of the
legislature’s intent is the plain language of the statute itself,”
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d
863 (citation and internal quotation marks omitted), and in this
case, we need not look further than the statute’s plain language.
For guidance, we consider our plain language interpretation of a
previous version of section 57‐1‐27 in Thomas v. Johnson, 801 P.2d
186 (Utah Ct. App. 1990). See generally Utah Code Ann. § 57‐1‐7(1)
(Michie 1990) (“Any person, including the beneficiary or trustee,
may bid at the sale. Each bid is considered an irrevocable offer, and
if the purchaser refuses to pay the amount bid by him for the
20100750‐CA 10 2013 UT App 60Antion Financial v. Christensen
property sold to him at the sale, the trustee, or the attorney for the
trustee, may again sell the property at any time to the highest
bidder. The party refusing to pay the bid price is liable for the loss
occasioned by the refusal, including interest, costs, and trustee’s
and reasonable attorneys’ fees.”).
¶19 In Thomas, this court concluded that the only bid at the
public auction was necessarily the highest bid and that the trustee
was therefore required to accept it. 801 P.2d at 189. We explained,
“[E]ach bid at the trustee’s sale constitutes an irrevocable offer.
Thus, once accepted by the trustee, there is a binding contract of
sale between the parties. The accepted bid is to be paid as directed
by the trustee . . . subject to any restrictions in the trust deed.” Id.
at 188 (footnote omitted). In other words, a binding contract
between the parties at a trustee’s sale was created once the trustee
accepted the highest bid. See id. at 189.
¶20 Our reading of the plain language of the statute, in
conjunction with our analysis of a prior version of the statute, leads
us to conclude that the legislature intended for the trustee’s
acceptance of the highest bid to constitute a rejection of all lower
bids. Thus, each bid is considered an irrevocable offer, but only
until the highest bid has been accepted. At that point, the trustee
rejects all of the lower bids. If the highest bidder fails to perform,
as occurred in this case, the trustee may either renotice the sale or
sell to the next highest bidder who remains willing to purchase at
his or her bid price. The next highest bidder, in other words, the
original, second highest bidder—here, Christensen—may resubmit
his or her offer, which likewise then becomes irrevocable until the
trustee accepts it. If the next highest bidder (the original second
highest bidder) does not resubmit his or her bid, then the trustee
shall sell to the third highest bidder, who would become the next
highest bidder. Or, if the next highest bidder (here, the second
highest bidder) fails to perform, the trustee shall again have a
choice between renoticing the sale or selling to the next highest
bidder (the original third highest bidder).
20100750‐CA 11 2013 UT App 60Antion Financial v. Christensen
¶21 Here, the trustee accepted the $1,510,000 bid. At that
moment of acceptance, the other bids, including Christensen’s,
became revocable and Christensen was no longer required to
participate in the trustee’s sale. However, because Christensen then
resubmitted his bid and the process began anew, he became liable
under section 57‐1‐27 when he failed to perform.
B. Christensen Resubmitted His Bid and Is Thus Liable Under Utah
Code Section 57‐1‐27.
¶22 Although we determine that Christensen’s bid was
revocable after the trustee accepted the highest bid of $1,510,000,
we conclude that Christensen nonetheless became liable when he
resubmitted his bid. The trustee accepted the bid, and Christensen
failed to perform.
¶23 The trial court found that, as the next highest bidder,
Christensen resubmitted his bid on June 5, the day that the trustee
informed the other bidders that the highest bidder of $1,510,000
had failed to perform. In particular, the trial court found that the
trustee accepted Christensen’s offer by restating the sale terms,
thereby creating an enforceable contract between Christensen and
the trustee, which Christensen breached by refusing to timely pay
his bid amount. We agree with the trial court.
¶24 After the highest bidder of $1,510,000 failed to make his
initial payment, the trustee held a telephone conference on June 5,
2008. He informed the remaining bidders that $1,510,000 was the
highest bid but that the initial payment had not been made. The
trustee restated the sale terms from the bid information sheet and
advised the bidders that the trustee could take one of two courses
of action pursuant to section 57‐1‐27—either renotice the sale or sell
the property to the next highest bidder. The trustee chose the latter
route and asked Christensen whether he stood by his next highest
bid. Christensen explicitly stated that he stood by the bid he made
on June 3. The trustee then again reiterated the sale terms.
20100750‐CA 12 2013 UT App 60Antion Financial v. Christensen
¶25 On appeal, Christensen argues that he did not “confirm[]
that the agreement was acceptable under the payment terms” and
thus “never consummated the proposed agreement.” Christensen
maintains that because he thought the highest bid had been
accepted and his bid rejected by the trustee, he negotiated
additional time to confirm with his mortgage company that the
funds would still be immediately available. Christensen testified at
trial that he told the trustee he would get back to him after he
checked with his mortgage company and, thus, “merely agreed to
make an agreement if he could arrange financing.” After that, the
parties continued to negotiate the terms. Christensen also argues
that even if he entered into a contract with the trustee on June 5 by
reaffirming his bid of $1,500,002, that bid was subject to a condition
precedent, namely that he would first have to arrange financing.
Finally, Christensen contends that even if a contract were formed
on June 5, it would not have satisfied the statute of frauds.
¶26 The trial court found that Christensen did not agree to stand
by his bid subject to acceptable financing. Rather, the trial court
found that Christensen stated that he stood by his bid and that the
trustee accepted it according to the sale terms, after which
Christensen added that he would have to confirm his ability to
finance it. Moreover, the trial court found that on June 5,
Christensen had $750,000 on hand and was prepared to make the
initial payment. On appeal, Christensen does not challenge the
court’s factual findings, and based on Christensen’s own
characterization of having stood by his bid, we agree with the trial
court that Christensen confirmed, or in other words reaffirmed or
resubmitted, his offer of $1,500,002 and that the trustee accepted
that bid by reiterating the sale terms. The ongoing negotiations
between Christensen and the trustee could have resulted in new
sale terms, but the negotiations failed; thus, the original sale terms
were never modified.
¶27 Christensen next contends that even if the bid information
sheet satisfied the statute of frauds, it did so only for the initial
highest bid. He asserts that the trustee’s agent’s initials on the
20100750‐CA 13 2013 UT App 60Antion Financial v. Christensen
original bid information sheet did not satisfy the statute of frauds
for the resubmission of his bid on June 5 because there was no new
separate writing memorializing any agreement between him and
the trustee.
¶28 We agree with the trial court that the bid information sheet,
with the trustee’s agent’s name and initials, satisfied the statute of
frauds. See Utah Code Ann. § 25‐5‐3 (LexisNexis 2007) (“Every
contract for the leasing for a longer period than one year, or for the
sale, of any lands, or any interest in lands, shall be void unless the
contract, or some note or memorandum thereof, is in writing
subscribed by the party by whom the lease or sale is to be made, or
by his lawful agent thereunto authorized in writing.”). And
because the terms of sale were the same, we determine that the
original bid information sheet indicating the terms of the sale
satisfied the statute of frauds concerning the formation of an
enforceable contract between the trustee and Christensen. The oral
agreement between the two was based on the exact terms as
memorialized in writing in the original bid information sheet. In
this trustee’s sale context, the purpose of the bid sheet is not the
same as a trust deed or real estate purchase contract evidencing the
sale of property. As we discussed above, section 57‐1‐27 allows for
the trustee to renotice the trustee’s sale for property subject to
foreclosure. See id. § 57‐1‐27(1)(a)(i) (LexisNexis 2010). Or, if the
trustee sells to the next highest bidder, the statute allows for that
bidder to reaffirm his or her bid. See id. § 57‐1‐27(1)(b). In providing
for the next highest bidder to resubmit his or her bid, the statute
creates a scenario where the identical bid information sheet utilized
in the original trustee sale carries over and provides the required
writing to satisfy the statute of frauds. Thus, in a trustee’s sale
context, as long as the terms of sale remain the same, a bidder
information sheet continues to be a written memorialization of the
sale of the foreclosed property.
¶29 We conclude that although Christensen, as the next highest
bidder, was not bound by his bid, he reaffirmed his offer. The
trustee then accepted that offer and Christensen therefore became
20100750‐CA 14 2013 UT App 60Antion Financial v. Christensen
liable when he failed to perform. The only remaining question is,
because Christensen refused to pay the bid price, how much “loss
occasioned by the refusal, including interest, costs, and trustee’s
and reasonable attorneys’ fees” is he liable for? See id. § 57‐1‐
27(1)(b).
II. Antion’s Damages
¶30 The trial court interpreted “any loss occasioned by the
refusal, including interests [and] costs,” see id., to mean the
difference between Christensen’s bid and the net amount Antion
realized from the eventual sale, plus statutory interest. The court
then added to that figure interest for the number of days between
the eventual sale date and the trial date, for total damages of
$196,885.
¶31 At its most basic level, the parties’ dispute over the
calculation of Antion’s damages comes down to whether the trial
court erred by not calculating Antion’s damages as the difference
between Christensen’s bid price and the fair market value of the
property on the date of the credit sale, or if the trial court instead
correctly measured damages in the amount it would take to put
Antion back in the position it would have been in had Christensen
performed. We find Christensen’s argument compelling.
¶32 Christensen argues that Utah Code section 57‐1‐27(1)(b)
should be harmonized with the trust deed deficiency statute. See id.
§ 57‐1‐32 (“[A]n action may be commenced to recover the balance
due upon the obligation for which the trust deed was given as
security . . . . Before rendering judgment, the court shall find the
fair market value of the property at the date of sale. The court may
not render judgment for more than the amount by which the
amount of the indebtedness with interest, costs, and expenses of
sale, including trustee’s and attorney’s fees, exceeds the fair market
value of the property as of the date of the sale.”). Accordingly, the
result here would be the difference between Christensen’s
$1,500,002 bid and the fair market value of the
20100750‐CA 15 2013 UT App 60Antion Financial v. Christensen
property—$1,500,000, which is two dollars. Antion responds that
the court need not look to the deficiency statute but should instead
interpret section 57‐1‐27 according to its plain language.4
¶33 Because section 57‐1‐27 is not more specific concerning the
determination of the amount of “any loss occasioned by the
refusal,” we look to the deficiency statute to discern the
legislature’s intent. See Capital Assets Fin. Servs. v. Jordanelle Dev.,
LLC, 2010 UT App 385, ¶ 5, 247 P.3d 411 (“‘The primary purpose
of interpreting a statute is to give effect to the legislature’s intent.
The best evidence of that intent is found in the plain language of
the statute. To determine the meaning of the plain language, we
examine the statute in harmony with other statutes in the same
chapter and related chapters.’” (quoting Jaques v. Midway Auto
Plaza, Inc., 2010 UT 54, ¶ 14, 240 P.3d 769)).
¶34 In a previous analysis of the deficiency statute, this court has
summarized section 57‐1‐32 as “limit[ing] the deficiency judgment
4. Antion also contends that Christensen did not preserve his
argument on appeal concerning the deficiency statute or his
argument that the trial court incorrectly awarded Antion special
damages. After the close of evidence at the trial, the trial court
invited counsel to submit briefs containing their closing arguments.
In his closing argument brief, Christensen specifically raised the
issue of how the court should interpret “any loss” in section 57‐1‐
27. Though it is true that Christensen did not refer the court
specifically to section 57‐1‐32, we find that his reasoning for the
calculation as described above was “sufficiently . . . raised to a level
of consciousness such that the trial judge . . . consider[ed] it.”
Weiser v. Union Pac. R.R. Co., 2010 UT 4, ¶ 14, 247 P.3d 357 (citation
and internal quotation marks omitted). We note, however, that our
resolution of the amount of damages makes it unnecessary for us
to reach the general‐versus‐special‐damages issue raised by
Christensen on appeal, which we agree, was not preserved before
the trial court.
20100750‐CA 16 2013 UT App 60Antion Financial v. Christensen
obtained after a nonjudicial foreclosure sale to the amount by
which the total secured indebtedness exceeds the fair market value
of the property,” Id. ¶ 6. We explained that the purpose of the
statute “‘is to protect the debtor, who in a non‐judicial foreclosure
has no right of redemption, from a creditor who could purchase the
property at the sale for a low price and then hold the debtor liable
for a large deficiency.’” Id. ¶ 8 (quoting City Consumer Servs., Inc. v.
Peters, 815 P.2d 234, 238 (Utah 1991)).
¶35 The parties agree that the fair market value of the property
is $1,500,000. The measure of Antion’s loss is the difference
between Christensen’s bid of $1,500,002 and the amount for which
the property actually sold, so long as the sale price exceeds the fair
market value. Here, the sale price, represented by Antion’s credit
bid, was $1,500,001, an amount that exceeded the agreed‐upon fair
market value. Accordingly, Antion’s “loss occasioned by the
refusal” of Christensen to honor his bid was one dollar. See Utah
Code Ann. 857‐1‐27(1)(b)(LexisNexis 2010). “A bidder refusing to
pay the bid price is liable for any loss occasioned by the refusal,
including interest, costs, and trustee’s and reasonable attorneys’
fees.” Id. (emphasis added). Thus, “any loss occasioned by
[Christensen’s] refusal” is one dollar, plus any incidental costs that
Antion may have incurred. See id.
¶36 Our conclusion is consistent with Antion’s position that it
should be put back in the same position it was in before
Christensen breached the agreement. See, e.g., TruGreen Cos., LLC
v. Mower Bros., Inc., 2008 UT 81, ¶ 10, 199 P.3d 929 (“The purpose
of these damages is to compensate the nonbreaching party ‘for
actual injury sustained, so that [the nonbreaching party] may be
restored, as nearly as possible, to the position [it] was in prior to the
injury.’” (quoting Mahmood v. Ross, 1999 UT 104, ¶ 19, 990 P.2d 933)
(alterations in original)). Antion bought the property from the
trustee. That sale established Antion’s loss for purposes of section
57‐1‐27(1)(b). The fact that, six months later, Antion sold the
property at a loss is not relevant to the calculation. Nor is
Christensen accountable for Antion’s decision to act as a purchaser
20100750‐CA 17 2013 UT App 60Antion Financial v. Christensen
in addition to its role as a lender. Accordingly, Antion’s “loss
occasioned by the refusal” of Christensen to honor his bid is one
dollar, plus any incidental costs that Antion may have incurred.
III. Attorney Fees
¶37 Christensen argues that the trial court erred when it
awarded Antion attorney fees pursuant to Utah Code section 57‐1‐
27(1)(b). See Utah Code Ann. § 57‐1‐27(1)(b) (“A bidder refusing to
pay the bid price is liable for any loss occasioned by the refusal,
including interest, costs, and trustee’s and reasonable attorneys’
fees.” (emphasis added)). Christensen interprets the statute to
mean that a bidder is only liable for the loss, including costs and
attorney fees, incurred from his refusal to purchase the property
and not for attorney fees incurred in pursuing damages associated
with that loss. We agree that the statute’s plain language leaves no
doubt that the legislature intended to award only those attorney
fees and costs, “occasioned by the refusal” of the winning bidder
to perform. See id. The intent of the statute is not to award attorney
fees incurred in litigating those damages. We determine that
Antion was damaged in the amount of only one dollar by
Christensen’s failure to perform. Accordingly, we reverse the trial
court’s attorney fee award and remand with instructions to
recalculate the award based on this court’s damages calculation of
one dollar.
CONCLUSION
¶38 Christensen’s next highest bid was revocable upon the
trustee’s acceptance of the highest bid. However, after the highest
bidder failed to perform, Christensen reaffirmed his bid, which the
trustee accepted. Christensen thereafter failed to perform and is
liable for any loss associated with his failure to perform. We
ultimately conclude that Antion’s loss occasioned by Christensen’s
subsequent failure to perform was only one dollar, plus any
incidental costs and fees. Thus, while we affirm the trial court’s
20100750‐CA 18 2013 UT App 60Antion Financial v. Christensen
ruling, we reverse its award of damages and remand for the
calculation of “costs, and trustee’s and reasonable attorneys’ fees”
incurred by Antion based on a damages award of one dollar.
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20100750‐CA 19 2013 UT App 60