Camco Constr. Inc. v. Utah Baseball Acad. Inc.

2018 UT App 78THE UTAH COURT OF APPEALS
CAMCO CONSTRUCTION INC., KEYBANK NATIONAL ASSOCIATION,
SHARRON TROSZAK, AND DALE CONDER,
Appellees,
v.
UTAH BASEBALL ACADEMY INC., ATHLETIC PERFORMANCE
INSTITUTE LLC, AND ROBERT KEYES,
Appellants.
Opinion
No. 20150932-CA
Filed April 26, 2018
Third District Court, Salt Lake Department
The Honorable Anthony B. Quinn
No. 050918901
Denver C. Snuffer Jr. and Daniel B. Garriott,
Attorneys for Appellants
Joseph E. Minnock, Attorney for Appellee
Camco Construction Inc.
R. Stephen Marshall, Steven J. McCardell, and
Michael S. Malmborg, Attorneys for Appellees
KeyBank National Association, Sharron Troszak,
and Dale Conder
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 When the bank that funded the construction of an athletic
facility balked at advancing more funds for the project, the
owner of the facility cried foul. Several years of litigation
followed, culminating in a bench trial. This appeal presents the
Camco Construction v. Utah Baseball Academy
opportunity for us to review many of the calls made by the trial
court leading up to and following trial. We affirm in all respects.
BACKGROUND
¶2 KeyBank National Association provided Athletic
Performance Institute LLC (API) financing for a twelve-month
construction project to build an indoor athletic facility, which
would then convert to a twenty-year, $1.9 million loan. API
planned to lease the facility to Utah Baseball Academy Inc.
(UBA). Robert Keyes owned both API and UBA. Keyes and UBA
guarantied the loan to API. Appellants hired Camco
Construction Inc. as the general contractor in the construction of
the facility. 1
¶3 While the building was meant to “accommodate multiple
sports,” “a floor elevation problem” resulted in the facility only
being suitable for baseball. This floor elevation issue was one of
many problems that arose with both the funding and
construction of the facility. When API and Camco could not
resolve these disputes, Camco filed a mechanic’s lien and,
eventually, a lawsuit against API. Camco brought KeyBank into
the suit “to assert lien priority.”
¶4 Throughout the construction process, API filed draw
requests with KeyBank, which KeyBank would pay out of the
loan. One particular draw request—Draw Request No. 6—was
not immediately funded because of the mechanic’s lien. This
draw request became a source of conflict between API and
KeyBank, and API ultimately asserted claims for damages
against KeyBank.
1. We refer to API, UBA, and Keyes collectively as Appellants.
20150932-CA 2 2018 UT App 78Camco Construction v. Utah Baseball Academy
¶5 Another source of conflict between API and KeyBank
arose in the context of the payment of accrued interest on the
loan. While the loan documents were silent as to how such
interest was to be handled, KeyBank made interest payments
starting at the beginning of the loan period. At some point,
KeyBank stopped making these payments. This gave rise to
another claim for damages.
¶6 The proceedings in the trial court were long and complex.
API filed a third party complaint against additional entities—
Sporturf and Evergreen—and the trial court eventually
bifurcated the related claims. The bifurcation led the trial court,
in part, to conclude that the jury waiver included in KeyBank
and API’s loan documents should be enforced. Thus, the trial
court heard Appellants’ claims against KeyBank in a bench trial.
¶7 However, not all claims were heard at the bench trial,
since the trial court had disposed of several of the claims on
summary judgment. One claim peripheral to this appeal
centered on a $15,000 payment from Keyes to a KeyBank
employee, Roger Preston. The money came from API’s
construction equity account. This payment was problematic for a
number of reasons, and KeyBank ultimately “refunded the
$15,000, plus interest, and unconditionally tendered additional
interest to API.”
¶8 Appellants now challenge the results of the trial.
ISSUES
¶9 The issues raised on appeal fall into four main categories.
First, Appellants argue that the trial court improperly granted
summary judgment to KeyBank on several of Appellants’ claims.
Second, they argue that the trial court erroneously granted
KeyBank’s motion to strike Appellants’ jury demand. Third, they
argue that several of the court’s trial rulings were unsupported.
20150932-CA 3 2018 UT App 78Camco Construction v. Utah Baseball Academy
Fourth, they argue that the trial court erred in denying their
motion for a mistrial. We address these contentions in turn.
ANALYSIS
I. Summary Judgment
¶10 We review a trial court’s grant of summary judgment for
correctness. Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55,
¶ 12, 192 P.3d 858.
¶11 On summary judgment, the trial court disposed of several
of Appellants’ claims. Those claims were for intentional
infliction of emotional distress (IIED), lost profits, and fraud. We
conclude that the trial court properly granted summary
judgment in all three respects.
A. Intentional Infliction of Emotional Distress
¶12 In Utah, a plaintiff is entitled to damages
where the defendant intentionally engaged in some
conduct toward the plaintiff, (a) with the purpose
of inflicting emotional distress, or, (b) where any
reasonable person would have known that such
would result; and his actions are of such a nature
as to be considered outrageous and intolerable in
that they offend against the generally accepted
standards of decency and morality.
Jackson v. Brown, 904 P.2d 685, 687–88 (Utah 1995) (citation
omitted). The trial court concluded that under relevant
precedent, the IIED claim that Appellants asserted could not
survive as a matter of law, where they “fail[ed] to allege a
distinct and palpable injury that isn’t derivative of the harm to
the companies.” (Citing Stone Flood & Fire Restoration, Inc. v.
20150932-CA 4 2018 UT App 78Camco Construction v. Utah Baseball Academy
Safeco Ins. Co. of Am., 2011 UT 83, ¶ 40, 268 P.3d 170.) The court
further concluded that “as a matter of law there is not an
allegation of sufficiently outrageous conduct to give rise to a
claim for intentional infliction of emotional distress.”
¶13 Appellants brought an IIED claim for alleged behavior
connected to KeyBank’s failure to pay Draw Request No. 6.
Appellants argue that because there were disputed facts
regarding whether KeyBank “fail[ed] to fund Draw 6 in a timely
manner” and “failed to cooperate with API’s replacement
financing,” summary judgment was inappropriate and the IIED
claim should have been decided at trial. But in granting
summary judgment on this issue, the trial court did not find
facts or even conclude that there were no disputed facts. Instead,
its ruling implicitly determined that any disputed facts were
immaterial. In other words, whether or not KeyBank failed to
fund the draw request or cooperate with replacement financing
had no bearing on the outcome of the case; what mattered is that
Appellants asserted the claim on behalf of two corporate entities
and a private individual, revealing that either the claim was
made on behalf of a corporation or the claim was derivative of
injury to a corporation. Both situations required the trial court to
grant summary judgment.
¶14 To begin, Keyes’s claim for IIED could not stand
inasmuch as it rested on conduct directed at either API or UBA.
In Stone Flood, our supreme court addressed an analogous
situation. See id. ¶¶ 32–44. The court considered whether
shareholders could pursue a claim for IIED that stemmed from
an injury to a corporation. See id. ¶ 41. Ultimately, the court
concluded that the shareholders could not “pursue damages for
injuries that are derivative of the corporation’s.” Id.
¶15 Relying on Stone Flood, the trial court determined that “all
of the acts that are alleged . . . should be dismissed under that
decision because they fail to allege a distinct and palpable injury
20150932-CA 5 2018 UT App 78Camco Construction v. Utah Baseball Academy
that isn’t derivative of the harm to the companies.” We agree.
Appellants claim that summary judgment was inappropriate
because “KeyBank failed to submit or lost Draw 6 on multiple
occasions,” “lied to Camco about Mr. Keyes not approving
payment,” “failed to cooperate with API’s replacement
financing,” and “wrongly raised the payoff amount” of the loan.
But all of these alleged facts speak to conduct directed at
corporations. Under Stone Flood, a private individual cannot
succeed on an IIED claim for such behavior. See id.¶16 Likewise, neither API nor UBA could recover for the
alleged conduct. Several jurisdictions have expressly held that
corporations cannot suffer emotional distress. 2 This is a logical
tenet: because “a corporation lacks the cognizant ability to
experience emotions, a corporation cannot suffer emotional
distress. Thus, no claim for intentional infliction of emotional
distress lies.” FDIC v. Hulsey, 22 F.3d 1472, 1489 (10th Cir. 1994).
We are persuaded by this tenet and therefore conclude that,
contrary to Appellants’ assertion, the trial court’s ruling on this
issue did not disregard any material disputes of fact. It is
undisputed that both API and UBA are corporate entities; as
such, they are—as a matter of law—incapable of succeeding on a
claim for IIED. Cf. Bross Enters., Inc. v. Town of Chesterton, No.
2:13 CV 217, 2016 WL 5724358, at *3 (N.D. Ind. Sept. 29, 2016).
(“The parties focus their argument on whether the conduct . . . is
2. See, e.g., FDIC v. Hulsey, 22 F.3d 1472, 1489 (10th Cir. 1994);
Bross Enters., Inc. v. Town of Chesterton, No. 2:13 CV 217, 2016 WL
5724358, at *3 (N.D. Ind. Sept. 29, 2016); F.P.D., Inc. v. Hartford
Cas. Ins. Co., No. CV 15-04419 DMG (E), 2015 WL 12806477, at *3
(C.D. Cal. Oct. 6, 2015); Advanced Sleep Center, Inc. v. Certain
Underwriters at Lloyd’s, London, Civil Action No. 14-592, 2014 WL
2768801, at *2 (E.D. La. June 18, 2014); Interphase Garment Sols.,
LLC v. Fox Television Stations, Inc., 566 F. Supp. 2d 460, 466 (D.
Md. 2008).
20150932-CA 6 2018 UT App 78Camco Construction v. Utah Baseball Academy
outrageous enough to establish the tort. In so doing they miss a
larger problem: the only plaintiff in this action is a corporation,
and a corporation cannot suffer mental anguish and so cannot
recover in tort for intentional infliction of emotional distress.”).
¶17 The parties and the trial court also addressed an issue
personally experienced by Keyes, which both the parties and the
court referred to as stalking. Appellants argue they presented
evidence that KeyBank’s stalking inflicted severe emotional
distress upon Keyes and his family: “his family going into
hiding because they felt threatened, serious stress-related health
issues, financial ruin.” But this recitation of evidence presented
deals only with the result of KeyBank’s behavior; it does not
address the behavior itself. This is problematic, given that the
trial court’s grant of summary judgment rested on its assessment
of Key Bank’s behavior and its conclusion that the behavior was
“not sufficiently outrageous to justify a claim for intentional
infliction of emotional distress.” In forming this conclusion, the
trial court recounted the behavior at issue:
What we’re talking about here is three visits to the
API facility by Mr. Preston, which he may, or may
not, have had business there and may, or may not,
have ever seen Mr. Keyes, and one incident where
he may, or may not, have been parked on the same
street as the Keyes family. There isn’t any spin that
you could put on that that makes that, in and of
itself, rise to the level of outrageous conduct . . . .
Accordingly, the trial court granted KeyBank’s motion for
summary judgment. 3
3. Although the trial court “grant[ed] the motion to dismiss the
second cause of action,” the parties address the IIED disposition
in summary judgment terms. A review of the record also reveals
(continued…)
20150932-CA 7 2018 UT App 78Camco Construction v. Utah Baseball Academy
¶18 Appellants argue that the trial court should have denied
the motion “because of genuine [disputes] . . . of material fact.”
But in so arguing, Appellants do nothing more than set forth the
same facts the trial court relied on in concluding that the conduct
did not rise to the level necessary for intentional infliction of
emotional distress. What one would expect Appellants to focus
on, instead, is how the trial court’s conclusion—that the conduct
was not sufficiently outrageous—was erroneous. But on this
point, Appellants again state only that “there were facts
precluding summary judgment.” Even if this were enough to
satisfy Appellants’ briefing requirements, 4 we would affirm
because the trial court correctly determined that the conduct, as
alleged, was insufficient to rise to an outrageous level.
¶19 In Nguyen v. IHC Health Services, Inc., 2010 UT App 85, 232
P.3d 529, we approved of a district court’s grant of summary
judgment where the movant had argued “that even if all of [the
plaintiff’s] assertions could be proven, the conduct as described
did not establish that Defendants acted outrageously.” Id. ¶¶ 8–9.
(…continued)
that the motion pending at the time of the court’s ruling was
indeed one for summary judgment.
4. “An adequately briefed argument contains the contentions
and reasons of the appellant with respect to the issues presented
with citations to the authorities, statutes, and parts of the record
relied on. Implicitly, rule 24(a)(9) [of the Utah Rules of Appellate
Procedure] requires not just bald citation to authority but
development of that authority and reasoned analysis based on
that authority. A reviewing court is not simply a depository in
which the appealing party may dump the burden of argument
and research. Accordingly, we may refuse, sua sponte, to
consider inadequately briefed issues.” Hampton v. Professional
Title Services, 2010 UT App 294, ¶ 2, 242 P.3d 796 (cleaned up).
20150932-CA 8 2018 UT App 78Camco Construction v. Utah Baseball Academy
That is essentially what we have here. The trial court concluded
that, as a matter of law, the conduct at issue in the present case
was not outrageous. The court was entitled to form such a
conclusion. See Prince v. Bear River Mutual Ins. Co., 2002 UT 68,
¶ 38, 56 P.3d 524 (“If the trial court determines that a defendant’s
conduct was not outrageous as a matter of law, then the
plaintiff’s claim fails, and a court may properly grant the
defendant summary judgment on an intentional infliction of
emotional distress claim. A court is to determine whether a
defendant’s conduct may reasonably be regarded as so extreme
and outrageous as to permit recovery.” (cleaned up)).
¶20 For purposes of IIED, outrageous conduct is
conduct that evokes outrage or revulsion; it must
be more than unreasonable, unkind, or unfair.
Additionally, conduct is not outrageous simply
because it is tortious, injurious, or malicious, or
because it would give rise to punitive damages, or
because it is illegal.
Id. (cleaned up). The conduct at issue in this case—parking near
someone’s house, visiting a facility where that person works
three times, and threatening to sue—simply is not the sort of
behavior for which plaintiffs can recover under a theory of
intentional infliction of emotional distress. It does not evoke
outrage or revulsion. See id. It is no more than unreasonable,
unkind, or unfair. See id. And because reasonable people “could
[not] differ as to whether the conduct . . . was so outrageous and
extreme that it offended the generally accepted standards of
decency and morality,” summary judgment was proper. Gygi v.
Storch, 503 P.2d 449, 401–02 (Utah 1972). 5
5. We note that the trial court’s concerns on the IIED claim based
on the purported stalking behavior extended beyond whether it
(continued…)
20150932-CA 9 2018 UT App 78Camco Construction v. Utah Baseball Academy
B. Lost Profits
¶21 Appellants next challenge the trial court’s grant of
summary judgment in favor of KeyBank on Appellants’ claim
for lost profits. Essentially, Appellants had claimed that
KeyBank’s “failure to timely pay draw requests resulted in a
failure to correct the elevation difference between the baseball
field and the basketball court, which made the facility unusable,
and resulted in a loss of profits for the times when it otherwise
would have been available to be used.” KeyBank moved for
summary judgment on this claim, which the trial court granted
because “the undisputed evidence” showed “that it was not
[Camco]’s responsibility to fix this.” Further, the court concluded
that “there is no admissible evidence in the record that [Camco]
would have been willing to correct the elevation difference had
they been timely paid with respect to draw request number 6, or
the other draw requests.” The court thus granted summary
judgment.
¶22 Now, Appellants contend that in so ruling, the trial court
erroneously “ignored the evidence, interpreted and weighed
evidence, and construed facts in a light most favorable to
KeyBank.” We conclude that even if Appellants are correct on
(…continued)
was sufficiently outrageous. Apparently, the facts surrounding
“the alleged stalking of the Keyes family” were “not alleged in
the second amended counterclaim” and instead were asserted
for the first time “in opposition to KeyBank’s summary
judgment motion.” The trial court nevertheless considered the
merits of this claim, concluding “that, even if you accept it as
true, and even if you would ignore the fact that it is not alleged
in the second amended counterclaim and, arguably, not even
part of the case, it is, taken alone, not sufficiently outrageous to
justify a claim for intentional infliction of emotional distress.”
20150932-CA 10 2018 UT App 78Camco Construction v. Utah Baseball Academy
this point, the issue is now moot. Cf. Hahnel v. Duchesne Land, LC,
2013 UT App 150, ¶ 23, 305 P.3d 208 (“The challenge to the trial
court’s summary judgment limiting Buyers’ damages is moot
because the jury found that Sellers had not breached the
contract.”).
¶23 Following trial, the court entered extensive findings of
fact and conclusions of law. Among them, the trial court
outlined the following: (1) “Perhaps the key issue in the case is
whether any mishandling of Draw Request No. 6 on the part of
KeyBank resulted in any damage to API”; (2) “API seeks
damages for all sums they incurred as a result of any technical
default under the Construction Loan and for all sums incurred in
litigation with Camco”; (3) “API’s claims of causation are . . .
undermined by the fact that, in any event, construction defects
would have prevented further advances on the Loan”; and (4)
“API has proven no damages that resulted from the delay” in
“processing Draw Request No. 6.”
¶24 Appellants had presented their lost profits claim as a form
of damages they sought for the failure of KeyBank to timely pay
Draw Request No. 6. Because the court ultimately found that “no
damages . . . resulted from the delay,” 6 the question of whether
any of the defendants might be legally responsible for
consequential damages is moot because there were no damages
to be recovered. See id.; see also McBride v. Utah State Bar, 2010 UT
60, ¶ 13, 242 P.3d 769 (“An issue is moot when the requested
judicial relief cannot affect the rights of the litigants.” (cleaned
up)). We therefore decline to consider this issue further.
C. Fraud
¶25 The trial court also granted summary judgment on
Appellants’ claim of fraud. Appellants devote just one
6. We expressly affirm this factual finding. See infra ¶¶ 50–51.
20150932-CA 11 2018 UT App 78Camco Construction v. Utah Baseball Academy
paragraph of their brief to arguing that this grant of summary
judgment was in error. 7 This paragraph contains no citations to
the record, no reference to the grounds on which the trial court
granted summary judgment, and no analysis of relevant case
law as it applies to the facts of the case. We decline to perform
Appellants’ job for them and therefore affirm the trial court’s
grant of summary judgment for the fraud claim on the ground of
inadequate briefing. See Hampton v. Professional Title Services,
2010 UT App 294, ¶ 2, 242 P.3d 796.
7. The following is the entire analysis Appellants devoted to this
issue:
For constructive fraud, Utah requires only “two
elements: (i) a confidential relationship between
the parties; and (ii) a failure to disclose material
facts.” Jensen v. IHC Hosps., 944 P.2d 327, 339 (Utah
1997) (emphasis added). There is no requirement to
establish damages. API had a confidential
relationship when KeyBank designated themselves
as the “fiduciary” over API’s funds. API had no
signature authority on the funds. As fiduciary
KeyBank was required to insure funds were used
solely for construction of the baseball facility and
no other purpose. KeyBank breached that duty by
allowing $15,000 to go to a bank Vice-President.
KeyBank failed to disclose and worked to conceal
these facts from API. They say they concealed the
facts because they considered Keyes a “suspect.”
Keyes had no authority to make withdrawals, nor
did he receive the Construction Equity Account
statements. This claim was wrongly dismissed on
summary judgment.
(Emphasis in original.)
20150932-CA 12 2018 UT App 78Camco Construction v. Utah Baseball Academy
II. Grant of Motion to Strike Jury Demand 8
¶26 We review a trial court’s conclusion that a party waived
its right to a jury trial for an abuse of discretion. Aspenwood, LLC
v. C.A.T., LLC, 2003 UT App 28, ¶ 33, 73 P.3d 947.
¶27 KeyBank moved “to strike the jury demand of Robert
Keyes, Utah Baseball Academy, Inc., and Athletic Performance
Institute, L.L.C.” because those parties had “signed multiple jury
waivers in connection with the loan transactions that form the
basis for this lawsuit.” Appellants opposed this motion, arguing:
“[t]he right to trial by jury in civil cases is guaranteed by the
8. Following the trial court’s order granting KeyBank’s motion to
strike, Appellants filed a motion to reinstate their right to a jury.
It is unclear whether they appeal from the grant of KeyBank’s
motion or the denial of their own. In their statement of relevant
facts, Appellants summarize both motions. In the argument
section of Appellants’ brief, they assert the general law
regarding the constitutional right to a jury, then re-argue the
reasons the waiver should not be enforced. Finally, at the end of
their argument, Appellants mention the trial court’s Order
Denying Motion to Reinstate. But they do so only in the context
of the trial court’s separate rulings to dismiss the lost profits
claim—which we have already addressed—and the court’s
decision to bifurcate claims asserted against another defendant,
Sporturf—which has not been challenged on appeal. While one
of Appellants’ subheadings includes the assertion that “[t]he
trial court erred in bifurcating,” this assertion does not appear in
the statement of issues, is accompanied by no statement of
preservation, and is not briefed with citations to the record or
relevant authority. Because the end result is the same, it matters
little which motion we analyze. Thus, as the arguments
regarding the jury right were first and thoroughly developed in
response to KeyBank’s motion to strike, we address that motion.
20150932-CA 13 2018 UT App 78Camco Construction v. Utah Baseball Academy
Seventh Amendment”; the right to a “jury trial may only be
waived if done knowingly and intentionally”; and “[t]he jury
waiver KeyBank inserted in KeyBank’s loan documents is
unconstitutionally overbroad and ambiguous.” The trial court
granted KeyBank’s motion to strike, explaining, “Contracting
parties anticipate that there can be a dispute over breach when
they agree to waive jury trial rights.” But the court allowed that
“if API Parties prevail on dispositive motions by establishing a
breach of contract by KeyBank as a matter of law, the Court is
willing to revisit the issue.”
¶28 Because there is no question that the United States
Constitution affords a right to jury trials in civil cases, see U.S.
Const. amend. VII, we focus on Appellants’ contentions as to
why the jury waiver should not be enforced: the waiver was
supposedly not made knowingly and voluntarily and its
purported overbreadth and ambiguity. 9
A. Knowing and Voluntary
¶29 While Appellants cite no Utah precedent for their
contention that civil jury waivers must be knowing and
voluntary, we recognize that courts in federal jurisdictions have
expressly held this to be the requirement. See, e.g., Whirlpool Fin.
Corp. v. Sevaux, 866 F. Supp. 1102, 1105 (N.D. Ill. 1994)
(explaining that “the right to a jury trial in civil cases . . . is
waivable” but that “such a waiver must be made knowingly and
9. To the trial court, Appellants argued a third reason why
KeyBank’s motion to strike should be denied—“KeyBank ha[d]
waived the right to assert the jury waiver” by “failing to raise the
jury waiver in a timely manner.” But because Appellants do not
re-assert this argument on appeal, we see no need to address it
further.
20150932-CA 14 2018 UT App 78Camco Construction v. Utah Baseball Academy
voluntarily” (citations omitted)). We therefore assume the same
standard applies in Utah for purposes of deciding this case. 10
¶30 Appellants offer two reasons why the jury waiver was not
made knowingly and voluntarily. First, “[i]f the documents
containing the jury waiver were not read, then the clause
relinquishing the right to jury could not have been knowingly
and intentionally waived.” Second, “[w]here a party does not
have any choice but to accept the contract as written if he wants
to obtain the loan, coupled with the gross inequality in
bargaining power, it undermines [whether] the waiver was . . .
knowing [or] intentional.”
¶31 This first argument is unpersuasive because we have
repeatedly and consistently held that a sophisticated party
cannot assert failure to read a contract as a defense to a claim
that they have waived their rights. See Maak v. IHC Health
Services, Inc., 2016 UT App 73, ¶ 38, 372 P.3d 64. The trial court
agreed with Appellants that “it is undisputed Mr. Keyes did not
read the loan documents prior to signing them.” It is critical to
point out that this was not a single document that Keyes chose to
10. Of course, Utah law is well settled that the right to a jury trial
in civil cases can, indeed, be waived. See, e.g., Bradbury v.
Rasmussen, 401 P.2d 710, 712 n.2 (Utah 1965) (enforcing a waiver
of jury trial made at pretrial); Security Title Co. v. Hunt, 337 P.2d
718, 719 (Utah 1959) (explaining that where an attorney “at the
pre-trial withdrew his request for and waived a jury trial,” the
district court “did not abuse its discretion in refusing to grant a
jury trial which appellant later again requested at the time of the
trial”); Pete v. Youngblood, 2006 UT App 303, ¶ 31, 141 P.3d 629(clarifying that “failure to pay the statutory fee or to serve a
timely jury demand constitutes a waiver of trial by jury”); see also
Utah R. Civ. P. 38(d) (addressing waiver of trial by jury).
20150932-CA 15 2018 UT App 78Camco Construction v. Utah Baseball Academy
sign without reading; jury waiver provisions appear in twenty of
the loan documents.
¶32 While Appellants hold up Keyes’s failure to read as a
reason why the jury waiver was not made knowingly, it actually
operates to support the trial court’s decision to grant KeyBank’s
motion to strike. For instance, Appellants point out that the “jury
waiver is contained in fine print at the end of several form
agreements.” Even assuming Appellants’ characterization of the
appearance of the waiver language is accurate, 11 that can hardly
matter in this case, where the signatory admits he did not read
the document—fine print or not.
In any event, the failure to read an agreement
provides [Appellants] no relief from the
application of a jury waiver provision. See ARH
Distribs., Inc. v. ITT Commercial Fin. Corp., No. 87 C
511, 1988 WL 17628, at *2 (N.D. Ill. Feb. 19, 1988)
(enforcing jury waiver provision despite evidence
that party seeking to avoid waiver did not read
contract prior to signing); see also Heller Fin., Inc. v.
Midwhey Powder Co., Inc., 883 F.2d 1286, 1292 (7th
Cir. 1989) (“basic contract law establishes a duty to
read the contract; it is no defense to say, ‘I did not
read what I was signing.’”). Further, having
previously owned and operated several companies
[Appellants] were not inexperienced business
persons and were not prevented from having
counsel review the Guaranty, though they chose
11. KeyBank argues that “the size of the font” of the jury waiver
“was no smaller than the other provisions.” Furthermore,
KeyBank points out that the forms “contained the words ‘JURY
WAIVER’ in all capital letters” and “include[d] the heading
‘Waive Jury.’”
20150932-CA 16 2018 UT App 78Camco Construction v. Utah Baseball Academy
not to exercise this option. See Mellon Bank v.
Miglin, No. 92 C 4059, 1993 WL 281111, at *12 (N.D.
Ill. Apr. 29, 1993) (enforcing waiver provision and
noting that courts should be circumspect in helping
any, but the most unsophisticated parties, where
they have not read their contracts well). Therefore
the language of the [jury waiver] is binding and
this Court will enforce the jury waiver provision.
See Household Commercial Fin. Services Inc. v. Suddarth, No. 01 C
4355, 2002 WL 31017608, at *8 (N.D. Ill. Sept. 9, 2002); see also
Fleet Nat’l Bank v. Fiore Neylan Travel, Inc., No. CV030828385,
2004 WL 1966069, at *4 (Conn. Super. Ct. Aug. 5, 2004) (“Here
again, it must be noted that a contracting party’s failure to read
his contract before signing it cannot excuse his obligations
thereunder in the absence of accident, fraud, mistake or unfair
dealing.” (cleaned up)). We therefore see no abuse of the trial
court’s discretion where it followed the lead of so many other
courts and refused to provide Appellants relief from a contract
Keyes signed without reading.
¶33 The second argument on this point, regarding the parties’
comparative bargaining power, is inadequately briefed.
Appellants assert as a generally accepted proposition of law that
a contractual jury waiver cannot be knowing and voluntary if
there is “gross inequality in bargaining power.” In so asserting,
Appellants rely on National Equipment Rental, Ltd. v. Hendrix, 565
F.2d 255 (2d Cir. 1977). In that case, the Second Circuit
concluded that because “a presumption exists against its
waiver,” and the waiving party “did not have any choice but to
accept the . . . contract as written if he was to get badly needed
funds,” the “gross inequality in bargaining power
suggest[ed] . . . that the asserted waiver was neither knowing
nor intentional.” Id. at 258. But Appellants point to no Utah case
holding the same, and National Equipment is hardly
representative of settled, universal law. See, e.g., IFC Credit Corp.
20150932-CA 17 2018 UT App 78Camco Construction v. Utah Baseball Academy
v. United Bus. & Indus. Fed. Credit Union, 512 F.3d 989, 993–94 (7th
Cir. 2008) (declining to follow National Equipment, holding that
“an agreement to resolve a dispute in a bench trial is no less
valid than the rest of the contract in which the clause appears”).
Because Appellants make no mention of these conflicting legal
standards, what effect federal law should have on this state court
case, or whether and how Utah courts have approached the
issue, we conclude that this issue is inadequately briefed.
Without adequate briefing on the question of whether we should
adopt the rationale of National Equipment Rental or IFC Credit
Corp., we decline to consider this issue further.
B. Overbroad and Ambiguous
¶34 We next consider Appellants’ contention that the jury
waiver in this case is unenforceable because it is overbroad and
ambiguous. In introducing this argument, Appellants rely on a
federal court case explaining that “[c]ourts have considered a
number of factors to determine whether a contractual waiver of
the right to a jury was knowing and voluntary.” (Quoting
Cooperative Fin. Ass’n, Inc. v. Garst, 871 F. Supp. 1168, 1172 (N.D.
Iowa 1995).) But Appellants do not explain how factors
concerning knowledge and voluntariness impact an analysis of
overbreadth and ambiguity. Thus, this issue is also inadequately
briefed.
¶35 The right to a jury is indeed, as Appellants contend, an
important one. But it is also waivable. Where Appellants have
not demonstrated that the jury waiver included in the loan
documents was unknowing, involuntary, overbroad, or
ambiguous, they have not demonstrated that the waiver should
not be enforced. We thus affirm the trial court’s conclusion that
Appellants had, in fact, waived their right to have a jury hear
their claims.
20150932-CA 18 2018 UT App 78Camco Construction v. Utah Baseball Academy
III. Trial Rulings
¶36 Following a bench trial,
we review a trial court’s legal conclusions for
correctness, according the trial court no particular
deference. We review a trial court’s findings of fact
according to the standard set out in Utah Rule of
Civil Procedure 52(a), which provides: Findings of
fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly
erroneous, and due regard shall be given to the
opportunity of the trial court to judge the
credibility of the witnesses. A trial court’s factual
finding is deemed clearly erroneous only if it is
against the clear weight of the evidence.
Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT 94, ¶¶ 11–12, 54
P.3d 1177 (cleaned up).
¶37 The parties tried an eleven-day bench trial on all
remaining claims. The trial court thereafter entered its findings
of fact and conclusions of law on those claims. Appellants
challenge the outcome of the trial in several respects, none of
which we consider persuasive.
A. Obligation to Make Interest Payments
¶38 Appellants’ first argue that the trial court “erred [in]
finding KeyBank was under no obligation to make interest
payments.” 12 But this issue statement is insufficient to convey
how the trial court actually ruled on this point.
12. Curiously, in their reply brief, Appellants take issue with
what they characterize as “KeyBank ignor[ing] that the Trial
Court decided KeyBank was obligated to make the interest
(continued…)
20150932-CA 19 2018 UT App 78Camco Construction v. Utah Baseball Academy
¶39 Appellants had alleged that “KeyBank agreed to set up
and maintain a[n] automatic withdrawal system, whereby
necessary payments were automatically withdrawn from API
Parties’ designated account.” The trial court concluded that
“[n]owhere in the KeyBank files or documents relating to the
Construction Loans is there any” such agreement; “[t]he Loan
documents are silent as to precisely how interest payments on
the Construction Loan would be handled.” However, the trial
court found “that the Construction Loan was large enough to
include amounts to pay ongoing interest during the construction
phase”; “[t]here was confusion at KeyBank with respect to how
interest payments were to be handled”; and “[f]or a period of
time, KeyBank routinely made the monthly interest payments
automatically by advancing sums sufficient to pay the interest
from Construction Loan proceeds.”
¶40 The trial court, in its findings of facts, went on to detail
the sequence of events that led to Appellants’ claim that
KeyBank had acted inappropriately with regard to interest
payments. Specifically, it explained that the standard
process stopped and KeyBank showed the Loan as
delinquent for a few months. When the
delinquency was brought to Mr. Keyes’ attention,
he immediately brought the interest payments
current. . . . As a result of this technical default,
KeyBank accrued late [fees] for the interest
payments that had not been paid on a timely basis.
(…continued)
payments.” Regardless, because we conclude that this issue
turns on the trial court’s finding that Appellants were not
damaged, it makes no difference whether the trial court found
that such an obligation existed.
20150932-CA 20 2018 UT App 78Camco Construction v. Utah Baseball Academy
Those late fees were included as part of the payoff
of the Construction Loan.
¶41 But the trial court ultimately found that “[w]hen KeyBank
understood what had happened, it unconditionally tendered a
refund of the late payments, plus interest at the rate of ten
percent to API.” Thus, the trial court avoided answering the
question of obligation, instead finding that Appellants suffered
no damages by KeyBank’s failure to make the interest payments.
¶42 Whether a party has been damaged is a question for the
trier of fact, whose finding we disturb only if it is clearly
erroneous. See Osguthorpe v. ASC Utah, Inc., 2015 UT 89, ¶¶ 35,
38–39, 365 P.3d 1201. Under this standard, we have no difficulty
affirming the trial court’s finding that Appellants were not
damaged. Not only were late fees refunded to Appellants, but
KeyBank also included interest with the amount refunded.
Appellants offer no counterargument to this conclusion; 13 they
focus instead on whether “KeyBank’s failure to pay interest was
a breach of the loan.”
¶43 Because Appellants do not challenge the trial court’s
factual finding, and because we conclude that the finding was
not clearly erroneous, we affirm on this point.
13. Appellants do assert in their reply brief that the trial court
“improperly found API had failed to prove damages.” But
“issues raised by an appellant in the reply brief that were not
presented in the opening brief are considered waived and will
not be considered by the appellate court.” Brown v. Glover, 2000
UT 89, ¶ 23, 16 P.3d 540.
20150932-CA 21 2018 UT App 78Camco Construction v. Utah Baseball Academy
B. Breach of Fiduciary Duty, Bad Faith, and Breach of Loan
Documents
¶44 Appellants argue that the trial court’s rulings on their
claims of breach of fiduciary duty, bad faith, and breach of the
loan documents were erroneous. These claims arose from
KeyBank’s alleged conduct in failing to fund Draw Request No.
6, failing to cooperate with Appellants’ attempts to refinance,
and demanding a larger payoff amount than what was actually
due. 14 Before addressing these claims as they relate to each of
these specific allegations, we must discuss a discrepancy
between the trial court’s rulings and Appellants’ arguments on
appeal.
¶45 Appellants brought each of their challenges to the trial
court’s summary judgment rulings in the context of claims for
intentional infliction of emotional distress, lost profits, and
fraud. See supra Part I. But the trial court also largely disposed of
Appellants’ breach of fiduciary duty claims on summary
judgment. It concluded that “there is no overarching fiduciary
duty between a borrower and a lender.” It therefore granted
summary judgment on all claims of breach of fiduciary duty
except for those premised on “the $15,000” payment from Keyes
to a KeyBank employee. For trial, any claims resting on “the
breach of fiduciary duty” would be “limited to the $15,000, and
only to the extent that [Appellants] can show that [they were]
entitled to more interest than [they had] been actually paid on
the $15,000.” And in the trial court’s written findings and
conclusions, in a section partially titled “Breach of Fiduciary
Duty,” it explained that “[e]ach of these claims relate to the
14. Although Appellants lump together these three causes of
action, they do not all apply to each of the three categories of
conduct. We do our best to clarify the issues as we address each
one.
20150932-CA 22 2018 UT App 78Camco Construction v. Utah Baseball Academy
$15,000 payment to Mr. Preston.” The court did not address
breach of fiduciary duty in any other context in its trial rulings.
¶46 Nevertheless, Appellants contend that their challenges to
the trial court’s rulings regarding breach of fiduciary duty stem
from the court’s written findings of fact and conclusions of law
entered after trial. This is incongruous, as their specific
challenges have nothing to do with the $15,000 at issue at trial.
And because Appellants fail to even clearly identify which of the
trial court’s rulings they challenge, they have not carried their
burden of persuasion on appeal. This is further demonstrated by
the only argument we are able to make out on the question of
breach of fiduciary duty: Appellants complain, “The Trial Court
limited any damages relating to a breach of fiduciary duty to
only damages from the failure to replace the stolen $15,000!”
From the case law cited following this exclamation, we assume
Appellants implicitly challenge the trial court’s summary
judgment ruling that no fiduciary duty existed.
¶47 Even assuming such an approach was sufficient to be
considered adequate briefing, we would affirm. “Ordinarily, no
fiduciary relationship exists between a bank and its customer.”
State Bank of S. Utah v. Troy Hygro Sys., Inc., 894 P.2d 1270, 1275
(Utah Ct. App. 1995). An exception to this general rule exists in
lender-borrower relationships when one party has “superiority”
over the other; “there must exist a certain inequality,
dependence, weakness of age, of mental strength, business
intelligence, knowledge of the facts involved, or other
conditions, giving to one advantage over the other.” First Sec.
Bank of Utah, NA v. Banberry Dev. Corp., 786 P.2d 1326, 1333 (Utah
1990) (cleaned up). Appellants do not address whether or how
this exception would apply in this case, and we thus consider it
appropriate to apply the general rule. The trial court was
therefore correct in concluding that there was no fiduciary duty
to breach.
20150932-CA 23 2018 UT App 78Camco Construction v. Utah Baseball Academy
¶48 We thus turn our attention to the remaining issues—bad
faith and breach of the loan documents.
1. Failure to Pay Draw Request No. 6
¶49 In failing to timely fund Draw Request No. 6, Appellants
contend, KeyBank engaged in bad faith. On this point, the trial
court agreed. It explained that it “found that the Draw Process
Overview was not intended to create an express contract
requiring any draw requests to be processed within a fixed
period of time” but that “the Draw Process Overview creates
expectations that are protected by the covenant of good faith and
fair dealing.” The trial court went on to find:
Those expectations include that KeyBank will act
on any draw request within a reasonable time. The
time frames set forth in the Draw Process
Overview create a framework against which any
delay in processing can be examined. The facts [of
this case] suggest an unreasonable delay in
processing Draw Request No. 6.
Thus, while the trial court did not use the term “bad faith,” it did
conclude that KeyBank’s behavior was contrary to the covenant
of good faith—a distinction without a difference.
¶50 Critically, however, the trial court concluded,
“Notwithstanding this finding, the claim fails because API has
proven no damages that resulted from the delay.” In other
words, the trial court found there was no causation between the
delay in funding Draw Request No. 6 and any damages
Appellants incurred. “Assessing causation is a question of fact,
and a trial court’s findings of fact will not be set aside unless
clearly erroneous.” Long v. Stutesman, 2011 UT App 438, ¶ 11, 269
P.3d 178 (cleaned up). Appellants suggest that the trial court’s
finding regarding causation is erroneous because it “is
irreconcilable with other findings.”
20150932-CA 24 2018 UT App 78Camco Construction v. Utah Baseball Academy
¶51 The main damages Appellants claim they sustained were
costs associated with mechanic’s liens filed against the property.
They argue that if KeyBank had paid Draw Request No. 6 in a
timely manner, the liens “would never have been filed.”
However, the trial court specifically “found that nonpayment of
the draw request did not cause Camco to file a mechanics lien.”
It also found that API’s failure to certify Draw Request No. 8—
not KeyBank’s delay in funding No. 6—triggered the lawsuit
with Camco, for which Appellants sought damages from
KeyBank. While Appellants call these conclusions speculation,
they do not address myriad factual findings that supported
them.
[B]y neglecting the court’s findings, [Appellants]
necessarily fail to adequately call into question the
factual basis for the district court’s ultimate
[damages] determination. Cf. State v. Nielsen, 2014
UT 10, ¶ 40, 326 P.3d 645 (explaining that, with
regard to the marshaling requirement, “a party
who fails to identify and deal with supportive
evidence will never persuade an appellate court to
reverse under the deferential standard of review
that applies to such issues”); Wayment v. Howard,
2006 UT 56, ¶ 17, 144 P.3d 1147 (presuming that the
evidence presented supported the district court’s
factual findings where the appellant “failed to
marshal any of the supporting evidence”).
See Bresee v. Barton, 2016 UT App 220, ¶ 58, 387 P.3d 536. And the
trial court expressly found that the evidence presented at trial
“undermined” Appellants’ “claims of causation.” Thus, the trial
court’s “detailed factual findings amply support its finding that”
Appellants’ damages were not caused by KeyBank’s delay in
funding Draw Request No. 6. See id.20150932-CA 25 2018 UT App 78Camco Construction v. Utah Baseball Academy
2. Failure to Cooperate with Refinance Process
¶52 The next issue raised stems from Appellants’ contention
that “KeyBank delayed API’s efforts to obtain refinancing.” In so
doing, Appellants argue, KeyBank acted in bad faith.
¶53 The trial court, in its findings of fact, explained:
During late 2006 and early 2007, API attempted to
refinance its Construction Loan into permanent
financing. In connection with the refinance it
requested KeyBank verify certain facts with respect
to the status of the construction and the
Construction Loan. KeyBank declined to provide
the verifications on the basis that the facts were
inconsistent with the required verification.
It also concluded that nothing in the parties’ agreements
“required or obligated KeyBank to execute the Lender’s
Certification or otherwise to ‘provide certifications to the long
term lender regarding the project in question’ as alleged in . . .
the Second Amended Counterclaim.” And “[w]hen API
requested KeyBank’s Certifications in connection with its
proposed refinance, KeyBank could not make those
Certifications because they were inaccurate.” The inaccuracies
referenced by the trial court included that there was no default
on the loan, that construction had been completed according to
final plans and specifications, and that there were no mechanic’s
liens on the property. Accordingly, the trial court concluded that
KeyBank had breached no obligation in its behavior during
API’s attempts to refinance. This conclusion amounts to an
implicit finding that KeyBank did not act in bad faith.
¶54 Appellants do not address these findings or conclusions.
Instead, they focus the relevant section of their brief—a meager
two paragraphs—on reasserting evidence they seem to believe
weighed in favor of finding for Appellants on this issue.
20150932-CA 26 2018 UT App 78Camco Construction v. Utah Baseball Academy
Recasting the evidence that was in front of the trial court is
insufficient to demonstrate that a court’s factual finding was
clearly erroneous. See ProMax Dev. Corp. v. Mattson, 943 P.2d 247,
255 (Utah Ct. App. 1997) (“To succeed in its challenge to findings
of fact, [an appellant] may not simply reargue its position based
on selective excerpts of evidence presented to the trial court.”),
abrogated on other grounds by Eldridge v. Johndrow, 2015 UT 21, 345
P.3d 553. Accordingly, we cannot say the findings of fact are
erroneous.
3. Demanding More than Was Due
¶55 Included in the section of their brief dealing with
supposed bad faith and breaches of loan documents, Appellants
argue that “KeyBank demanded more than was due to payoff
the Construction Loan.” They do not explain whether this
behavior amounted to bad faith or a breach of the parties’
agreements. We thus assume that this issue is meant to challenge
the trial court’s factual findings regarding the payoff amount.
¶56 The trial court found that KeyBank provided proper
payoff amounts, was not required to provide the payoff amount
within a certain period of time, and assessed contractual
amounts in good faith and in accordance with relevant
contractual terms. Based on these findings, the trial court
concluded that
[t]he only amounts that were improperly included
in the payoff were a few late fees based upon
interest payments that were not paid timely during
the Construction Loan phase. Ultimately, KeyBank
returned those late fees, plus interest at the rate of
ten percent. There was no evidence of any ongoing
damage to the relationship between API and its
takeout lender.
20150932-CA 27 2018 UT App 78Camco Construction v. Utah Baseball Academy
¶57 Nowhere in the relevant section of their brief do
Appellants address the trial court’s findings or related
conclusions. Furthermore, they provide no citation to case law or
other legal authority. Instead, they address only the evidence
presented that would have supported a finding that “KeyBank
failed to give” “a good faith and prompt payoff information
when[] requested,” thus breaching “the implied covenant of
good faith and fair dealing.”
¶58 When challenging factual findings on appeal, appellants
are expected to carry a heavy burden. Appellants here “appear[]
to have misapprehended this burden because [they have]
presented no legal arguments as to the sufficiency of the
evidence. Rather, [they have] used the appeal as an opportunity
to re-argue the factual case presented in the trial court.” ASC
Utah, Inc. v. Wolf Mountain Resorts, LC, 2013 UT 24, ¶ 19, 309 P.3d
201 (cleaned up). We accordingly reject their challenge.
IV. Denial of Mistrial Motion
¶59 Finally, Appellants argue that the trial court erred by not
granting them a new trial. Appellants’ position is that the court
should have granted them a new trial because of “[i]rregularity
in the [proceedings] of the court, jury or [opposing] party, or any
order of the court, or abuse of discretion by which [a] party was
prevented from having a fair trial.” (Quoting Utah R. Civ. P.
59(a)(1).)
This rule is only in force subject to the provisions
of Rule 61, which states: “No error in either the
admission or the exclusion of evidence, and no
error or defect in any ruling or order or in anything
done or omitted by the court or by any of the
parties, is ground for granting a new trial or
otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court
inconsistent with substantial justice. The court at
20150932-CA 28 2018 UT App 78Camco Construction v. Utah Baseball Academy
every stage of the proceeding must disregard any
error or defect in the proceeding which does not
affect the substantial rights of the parties.” The
question before us, then, is whether the admitted
evidence affected the substantial rights of the
parties. If so, it was grounds for a new trial. If not,
the trial court did not abuse its discretion in
denying the motion for a new trial.
Barrientos ex rel. Nelson v. Jones, 2012 UT 33, ¶¶ 15–16, 282 P.3d 50(cleaned up).
¶60 The problems with Appellants’ challenge on appeal are
threefold: First, Appellants did not move for a new trial under
rule 59. Second, Appellants do not identify what irregularities
occurred during the trial that would justify a new trial. Third,
Appellants make no mention of how “the substantial rights of
the parties” were affected, thus warranting a new trial.
¶61 Following trial, Appellants filed a Motion for Mistrial.
The motion and its supporting memorandum made no mention
of rules 59 or 61, nor did they use the term new trial. The trial
court ruled that Appellants had “not provided the Court with
any binding or persuasive legal authority which supports the
proposition that a party can move for a mistrial over six months
after the trial ha[d] concluded. Therefore, the Court reject[ed]
[Appellants’] Motion on those grounds alone.” Appellants make
no mention of this rationale for the trial court denying their
motion. “This court will not reverse a ruling of the trial court
that rests on independent alternative grounds where the
appellant challenges only one of those grounds.” Salt Lake
County v. Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30,
¶ 28, 297 P.3d 38. We thus affirm on this point.
¶62 But even assuming that we were inclined to reach the
merits of Appellants’ argument on appeal, we would not be able
to do so. Appellants do not explain how rules 59 and 61 of the
20150932-CA 29 2018 UT App 78Camco Construction v. Utah Baseball Academy
Utah Rules of Civil Procedure should operate to support their
position. Thus, we have no occasion to reverse the trial court on
this basis.
CONCLUSION
¶63 In short, we affirm. Appellants have not carried their
burden of persuasion on appeal. Their arguments suffer from
inadequate briefing or otherwise fail as a matter of law.
20150932-CA 30 2018 UT App 78