JDW-CM, LLC v. Clark LHS, LLC|

1. Judge William A. Thorne Jr. participated in and voted on this
case as a member of the Utah Court of Appeals. He retired from the
court before this decision issued.
2014 UT App 70
_________________________________________________________
THE UTAH COURT OF APPEALS
JDW-CM, LLC,
Plaintiff and Appellant,
v.
CLARK LHS, LLC,
Defendant and Appellee.
Opinion
No. 20110708-CA
Filed March 27, 2014
Second District Court, Farmington Department
The Honorable Glen R. Dawson
No. 100700106
Brian W. Steffensen, Attorney for Appellant
George A. Hunt and Mark R. Anderson, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES JAMES Z. DAVIS and WILLIAM A. THORNE JR.
concurred.1
CHRISTIANSEN, Judge:
¶1 JDW-CM, LLC (Plaintiff) appeals from an order granting
summary judgment in favor of Clark LHS, LLC. We affirm.

JDW-CM, LLC v. Clark LHS, LLC
2. “[W]hen reviewing a grant of summary judgment, we recite the
disputed facts in a light most favorable to the nonmoving party.”
Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 5, 178 P.3d 343.
20110708-CA 2 2014 UT App 70
BACKGROUND
¶2 This appeal arises from Plaintiff’s attempts to quiet title to
certain real property in a series of lawsuits. On January 7, 1997,2
John Clark, acting on behalf of Clark Properties, Inc., borrowed
approximately $200,000 from Vance Cook and Mark Merrill
(collectively, Lenders). This loan was evidenced by a promissory
note and secured by Lenders’ trust deed recorded against two
parcels of property. The first of these parcels consisted of lots in the
Deer Run at Maple Hills subdivision (Deer Run) in Bountiful, Utah.
The second parcel was a fourteen-acre piece of property located in
Kaysville, Utah (the Kaysville Parcel). In terms of foreclosure
priority, Lenders’ trust deed was in second position on the
Kaysville Parcel behind a trust deed held by Barnes Bank. Clark
later sold the Kaysville Parcel to Scott Turville.
¶3 Barnes Bank subsequently initiated foreclosure proceedings
against the Kaysville Parcel, and a foreclosure sale was scheduled.
On the morning of the sale, Lenders entered into a handwritten
foreclosure and redemption agreement (the FRA) with Clark.
Under the FRA, Clark was to pay off the Barnes Bank loan to
protect the Kaysville Parcel from foreclosure. As a guarantee of his
performance, Clark agreed to quitclaim another piece of property
(Lot 307) to Lenders, which property Lenders would take title to if
Clark failed to satisfy the Barnes Bank loan and halt the foreclosure
of the Kaysville Parcel. The FRA also entitled Lenders to record a
quitclaim deed to Lot 3 at Deer Run (Lot 3) if Lenders were forced
to bid their trust deed on the Kaysville Parcel at the foreclosure
sale:
As an additional guarantee for the incentive to have
[Lenders] bid their existing note or any part thereof
for any amount at the foreclosure sale, Clark will
provide a quit claim deed to [Lot 3]. In the event

JDW-CM, LLC v. Clark LHS, LLC
20110708-CA 3 2014 UT App 70
[Lenders] need to bid their existing note or any part
thereof to help protect the [Kaysville Parcel], then
[Lenders] can record the quit claim deed on [Lot 3] to
secure the existing note. [Lenders] will receive title to
the [Kaysville Parcel] under foreclosure.
According to Plaintiff, Lenders’ successor in interest, Clark also
allegedly told Lenders that the lots that he agreed to quitclaim to
them—Lot 3 and Lot 307—would act as additional payment or
collateral for their loan (the Oral Agreement). Clark then signed
and delivered to Lenders quitclaim deeds to Lot 3 and Lot 307.
¶4 Prior to the foreclosure sale, Turville paid off the Barnes
Bank loan. Thus, the sale never took place, and Lenders’ trust deed
moved into first priority on the Kaysville Parcel. Clark made no
further payments on Lenders’ promissory note. In September 1999,
Plaintiff entered into an agreement with Lenders to purchase the
promissory note, the trust deed to the Kaysville Parcel, and any
rights under the quitclaim deeds to Lot 3 and Lot 307. Lot 3 and Lot
307 were subsequently transferred to Clark LHS, LLC. Litigation
regarding title to Lot 3 and Lot 307 commenced between Plaintiff
and Clark LHS, LLC in November 2000. In that first case, Plaintiff
sought to quiet title to Lot 3 and Lot 307, alleging fraud, breach of
contract, and civil conspiracy.
¶5 After a bench trial in November 2009, the district court ruled
that Plaintiff was entitled to Lot 307 because Clark did not himself
pay off the Barnes Bank loan as he agreed to do under the FRA.
The court also ruled that because Lenders were not forced to bid
their trust deed or note on the Kaysville Parcel, the conditions
necessary to record the quitclaim deed to Lot 3 were not satisfied.
Accordingly, the court ruled that Plaintiff had no legal right to Lot
3.
¶6 During the trial, Plaintiff attempted to raise a new estoppel
claim through an oral motion to amend its complaint. Plaintiff
asserted that because it had recorded the quitclaim deeds in 2008,
and because Clark never demanded the return or cancellation of
the deeds, Plaintiff was entitled to an order quieting title to Lot 3 in

JDW-CM, LLC v. Clark LHS, LLC
20110708-CA 4 2014 UT App 70
its favor (the Estoppel Claim). In its order denying the motion, the
court determined that the facts of the Estoppel Claim had arisen
after the claims in the first case were filed and were therefore not
part of the first case and would not be tried therein.
¶7 Plaintiff also argued for the first time at trial that pursuant
to the Oral Agreement between Cook and Clark, the quitclaim
deed to Lot 3 acted as substitute collateral or payment for Lenders’
loan (the Oral Agreement Claim). Though briefly touching on the
merits of this issue, the court ultimately declined to determine
whether there was an oral agreement, stating that the facts
surrounding the Oral Agreement Claim had not been properly
presented to the court.
¶8 Having lost its claim to Lot 3, Plaintiff filed a new complaint
in February 2010, in which it formally raised the Estoppel Claim.
Plaintiff then amended its complaint in September 2010 to include
the Oral Agreement Claim. Clark LHS, LLC responded by filing a
motion for summary judgment, which the district court granted.
The court ruled that the Estoppel Claim was barred by claim
preclusion and that the Oral Agreement Claim was barred by both
the statute of frauds and claim preclusion. Plaintiff appeals.
ISSUES AND STANDARDS OF REVIEW
¶9 The central issue presented on appeal is whether the district
court erred in granting summary judgment to Clark LHS, LLC
based on the court’s determination that the Oral Agreement Claim
was barred by the statute of frauds. “[S]ummary judgment is
appropriate only when ‘there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter
of law.’” Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 8, 301
P.3d 984 (omission in original) (quoting Utah R. Civ. P. 56(c)). To
determine whether the district court’s grant of summary judgment
was correct, “we review the trial court’s legal conclusions for
correctness, affording those legal conclusions no deference,” Ault
v. Holden, 2002 UT 33, ¶ 15, 44 P.3d 781, and we view “the facts and
all reasonable inferences . . . in the light most favorable to the

JDW-CM, LLC v. Clark LHS, LLC
3. Because we affirm the district court’s ruling that the Oral
Agreement Claim was barred by the statute of frauds, it is
unnecessary for us to review the court’s determination that claim
preclusion also barred the Oral Agreement Claim.
4. In the “Statement of Issues on Appeal” section of its brief,
Plaintiff presents the following question: “Did the trial court
commit reversible error in finding that the claims brought by
[Plaintiff] were barred because they were not brought and litigated
in a prior lawsuit between these parties?” (Emphasis added.) From
this, it appears that Plaintiff had intended to appeal both claims
dismissed by the district court. However, Plaintiff discusses only
the Oral Agreement Claim in the analysis portion of its opening
brief and has therefore waived any challenge to the Estoppel
Claim.
20110708-CA 5 2014 UT App 70
nonmoving party,” McLaughlin v. Schenk, 2013 UT 20, ¶ 20, 299 P.3d
1139 (citation and internal quotation marks omitted).3
¶10 To the extent that Plaintiff also appeals the district court’s
conclusion that the Estoppel Claim is barred by claim preclusion,
Plaintiff has inadequately briefed this issue and has failed to meet
its burden of demonstrating error. See Utah R. App. P. 24; State v.
Lee, 2006 UT 5, ¶ 22, 128 P.3d 1179 (observing that the appellate
courts “may refuse, sua sponte, to consider inadequately briefed
issues”); Smith v. Smith, 1999 UT App 370, ¶ 8, 995 P.2d 14 (“Briefs
that are not in compliance with Rule 24 may be disregarded . . . by
the court.”).4
ANALYSIS
¶11 Plaintiff argues that the district court erred by determining
that the statute of frauds bars the Oral Agreement Claim. Plaintiff
contends, first, that the statute of frauds is not implicated in this
case and, second, that even if the statute of frauds applies, it is
satisfied. Finally, Plaintiff asserts that the district court erred by
rejecting Plaintiff’s argument that Clark LHS, LLC is estopped from

JDW-CM, LLC v. Clark LHS, LLC
5. Because this provision has remained unchanged since 1898, we
cite the current version of the Utah Code Annotated as a
convenience to the reader.
20110708-CA 6 2014 UT App 70
raising a statute of frauds defense. We address each argument in
turn.
I. The Alleged Oral Agreement Implicates the Statute of Frauds.
¶12 Utah’s statute of frauds provides,
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.
Utah Code Ann. § 25-5-3 (LexisNexis 2013). Plaintiff argues that5
this section of the statute is not implicated because Plaintiff is not
seeking to enforce an unfulfilled oral contract. Plaintiff asserts that
the language of section 25-5-3 applies only to agreements which
“are ‘to be made.’” This provision, argues Plaintiff, “only acts to bar
actions seeking to [en]force an executory, unfulfilled, uncompleted
real estate transfer.” Plaintiff points to the fact that the quitclaim
deed to Lot 3 has “long been in writing, signed, notarized and
delivered—and [is] now recorded.” Accordingly, Plaintiff asserts
that it is seeking to quiet title in Lot 3 based on an already-
performed oral agreement that cannot be “rescinded after the fact.”
¶13 First, we disagree with Plaintiff that the Oral Agreement has
already been performed. The contract at issue here was an oral
agreement allegedly providing for additional grounds upon which
ownership of Lot 3 could be transferred beyond those conditions
expressly identified in the FRA, thus making the Oral Agreement
a separate and distinct agreement from that created by the FRA.
According to the record, the deed to Lot 3—the existence of which

JDW-CM, LLC v. Clark LHS, LLC
6. To the extent that Plaintiff argues for the admission of parol
evidence regarding the Oral Agreement, this issue was not
preserved and we do not address it. See 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801.
20110708-CA 7 2014 UT App 70
Plaintiff relies on as evidence of complete performance of the Oral
Agreement—was conditionally delivered by Clark and was to be
recorded only in connection with the terms of the written FRA. The
FRA explicitly states that Clark was to “provide a quit claim deed
to [Lot 3]” to Lenders and that they could record it only if they had
“to bid their existing note or any part thereof to help protect” the
Kaysville Parcel. The district court ruled that because Lenders were
never forced to bid for the Kaysville Parcel, the conditions
necessary for delivery of the property under the FRA were never
triggered. According to the purported terms of the Oral
Agreement, Clark also delivered the deed to Lot 3 as additional
payment or collateral for Lenders’ loan. However, Plaintiff has not
shown from the record that it placed any admissible evidence
before the district court that Clark performed under the Oral
Agreement. For instance, Plaintiff claims that following the creation
of the FRA, Cook testified that “Clark made the delivery absolute”
by offering the deed as payment for the loan. However, Plaintiff
neither identifies precisely when Cook so testified nor provides a
transcript of that testimony. Neither did Plaintiff support its6
opposition to summary judgment below with affidavit or
deposition testimony from Cook that such performance took place.
Therefore, even viewing the facts in the light most favorable to
Plaintiff, we are unable to conclude that the Oral Agreement was
actually performed or fulfilled.
¶14 Second, the Oral Agreement, by its purported terms, is one
that fits squarely within the statute of frauds. Utah Code section
25-5-3 expressly voids “[e]very contract” made “for the sale, of any
lands, or any interest in lands” “unless the contract, or some note
or memorandum thereof, is in writing subscribed by the party by
whom the . . . sale is to be made.” Thus, any contract conveying an
interest in land in which the agreement has not been reduced to
writing and signed by the person relinquishing the property is

JDW-CM, LLC v. Clark LHS, LLC
20110708-CA 8 2014 UT App 70
unenforceable. Spears v. Warr, 2002 UT 24, ¶ 22, 44 P.3d 742
(“Generally, a conveyance of real property is within the statute of
frauds and unenforceable absent a writing.”); Wilberg v. Hyatt, 2012
UT App 233, ¶ 7, 285 P.3d 1249 (“Typically, the statute of frauds
prohibits the enforcement of oral contracts for the conveyance of
property.” (citing Utah Code Ann. § 25-5-1 (LexisNexis 2007))); cf.
Needham v. Fannie Mae, 854 F. Supp. 2d 1145, 1153 (D. Utah 2012)
(holding that a bank’s alleged oral promise to negotiate a loan
modification was “barred by the statute of frauds which requires
that any contract establishing an interest in real property must be
written to be enforceable” (citing Utah Code Ann. §§ 25-5-1, -3)).
Because the Oral Agreement, by its purported terms, was a contract
involving the transfer of an interest in land, we conclude that it falls
squarely within section 25-5-3’s purview. The statute of frauds is
thus implicated. We now turn our attention to whether it was
satisfied.
II. The Statute of Frauds Was Not Satisfied.
¶15 “To satisfy the statute of frauds, ‘[a]ll that is required is that
the interest be granted or declared by a writing subscribed by the
party to be charged.’” Smith v. Osguthorpe, 2002 UT App 361, ¶ 24,
58 P.3d 854 (alteration in original) (emphasis omitted) (quoting
Guinand v. Walton, 450 P.2d 467, 469 (Utah 1969)). However, the
writing must include “‘all the essential terms and provisions of the
contract.’” Coulter & Smith, Ltd. v. Russell, 1999 UT App 55, ¶ 12,
976 P.2d 1218 (quoting Birdzell v. Utah Oil Ref. Co., 242 P.2d 578, 580
(Utah 1952)).
¶16 Here, Plaintiff maintains that the quitclaim deed to Lot 3,
which Clark delivered to Lenders immediately after entering into
the FRA, satisfies the writing requirement of the statute of frauds.
Plaintiff argues that “[t]here can be no more powerful and clear
written memorandum of an agreement to transfer title to real estate
than a written, signed, notarized and delivered deed.” However,
a copy of the quitclaim deed to Lot 3 is not included in the record.
Without this crucial document, it is impossible for us to determine
whether the deed includes “all the essential terms and provisions”
of the Oral Agreement. See id. (citation and internal quotation

JDW-CM, LLC v. Clark LHS, LLC
20110708-CA 9 2014 UT App 70
marks omitted). “[W]here we are without an adequate record, we
must assume the regularity of the proceedings below.” Gorostieta
v. Parkinson, 2000 UT 99, ¶ 16, 17 P.3d 1110. Therefore, because
Plaintiff has failed to present a sufficient writing evidencing the
Oral Agreement, we must assume that the district court correctly
determined that the statute of frauds was not satisfied on this
ground.
III. Clark LHS, LLC Is Not Estopped from Raising a Statute of
Frauds Defense.
¶17 “[A] party ‘is estopped from asserting the statute of frauds
as a defense only [if it has] expressly and unambiguously waived
the right to do so.’” Golden Meadows Props., LC v. Strand, 2010 UT
App 257, ¶ 23, 241 P.3d 375 (second alteration in original) (quoting
Stangl v. Ernst Home Ctr., Inc., 948 P.2d 356, 361 (Utah Ct. App.
1997)). “‘[T]he acts and conduct of the promissor must so clearly
manifest an intention that he will not assert the statute that to
permit him to do so would be to work a fraud upon the other
party.’” Id. (alteration in original) (emphasis omitted) (quoting
Fericks v. Lucy Ann Soffe Trust, 2004 UT 85, ¶ 14, 100 P.3d 1200).
Plaintiff argues that Clark’s failure “to request or sue for the return
of the quit claim deeds and [Lenders’] cancellation of the trust deed
foreclosure thereafter are all evidence that Clark did not intend to
assert the statute of frauds.” We disagree.
¶18 Litigation concerning title to Lot 3 commenced in 2000.
Plaintiff recorded the deeds in 2008. In 2009, the district court ruled
that because the conditions necessary for delivery of the deed were
never triggered, Plaintiff was never entitled to record it. Thus, it is
apparent from the record that, contrary to Plaintiff’s claim, Clark
and Clark LHS, LLC have been actively involved in litigation over
the delivery of and title to Lot 3 for more than a decade. Also,
Plaintiff fails to explain why Lenders’ cancellation of the trust deed
foreclosure manifests an intention by Clark LHS, LLC to not assert
a statute of frauds defense. Accordingly, we cannot agree with
Plaintiff that Clark LHS, LLC “expressly and unambiguously
waived” its right to assert the statute of frauds. Id. (citation and

JDW-CM, LLC v. Clark LHS, LLC
20110708-CA 10 2014 UT App 70
internal quotation marks omitted). Clark LHS, LLC therefore was
not estopped from raising the statute of frauds
CONCLUSION
¶19 The district court correctly determined that the Oral
Agreement Claim is barred by the statute of frauds. Plaintiff failed
to adequately brief the Estoppel Claim and has therefore failed to
demonstrate error in the district court’s ruling. We affirm the
district court’s grant of summary judgment in favor of Clark LHS,
LLC.