Mortensen v. Mortensen

2025 UT App 8
THE UTAH C OURT OF APPEALS
M ATTHEW M ORTENSEN AND M AKAY M ORTENSEN ,
Appellees,
v.
M AYNE M ORTENSEN ,
Appellant.
Opinion
No. 20230417-CA
Filed January 24, 2025
Fourth District Court, Nephi Department
The Honorable Anthony L. Howell
No. 190600033
Kathryn J. Steffey, Clayton H. Preece, and Richard S.
Snow, Attorneys for Appellant
Mitchell A. Stephens and Justin L. James,
Attorneys for Appellees
JUDGE R YAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. O RME and A MY J. O LIVER concurred.
TENNEY, Judge:
¶1 	This case involves a lawsuit that two brothers, Matthew
(Matt) and Makay Mortensen, filed against a third brother, Mayne
Mortensen.1 In 	their 	suit, 	Matt 	and 	Makay 	sought 	specific
performance of an oral agreement that they had with Mayne,
wherein Mayne had agreed to split any proceeds he received from
a few parcels of real property that he’d inherited from their father.
Mayne denied that any such agreement existed, and while the suit
was pending, Mayne sold one of the parcels at issue. After a bench
1. Because the parties and many others involved in this case share
the same last name, we’ll refer to them by their first names, and
we mean no disrespect by the informality.

Mortensen v. Mortensen
20230417-CA 	2 	2025 UT App 8
trial, the district court ruled that a “valid and enforceable contract
exist[ed]” and that Mayne had breached that contract by not
giving Matt and Makay a share of the proceeds from the recent
sale. The court accordingly awarded damages to Matt and Makay.
¶2 	Mayne now appeals, arguing that (1) the court erred in
concluding 	that 	any 	oral 	agreement 	that may 	have 	existed
between the brothers was supported by consideration, (2) the
court made inadequate findings to support its conclusion that
there had been a meeting of the minds, and (3) the court erred in
concluding that the sale of one of the properties had triggered
Mayne’s obligations under the oral agreement. For the reasons set
forth below, we reject each argument and affirm.
BACKGROUND2
¶3 	Makay, Matt, and Mayne are brothers (collectively, the
Brothers). Their father, Larry Mortensen, passed away in March
2011. When Larry died, his estate consisted primarily of four
parcels of real property—two of them were in Juab County, one
was in Millard County, and one was in Tooele County.
2. As a general rule, “on appeal from a bench trial, we view the
evidence 	in 	the 	light 	most 	favorable 	to 	the 	district 	court’s
findings.” In re Western Ins. Co., 2022 UT 38, ¶ 7 n.1, 521 P.3d 851
(quotation simplified). As will be discussed below, the district
court in this case issued a ruling after a bench trial that included
a comprehensive set of factual findings, and no party has argued
on appeal that any factual finding was not supported by sufficient
evidence. We’ll accordingly “recite the facts of the case as they are
represented in the district court’s order and trial transcript.” Id.
And we further note that, unless otherwise indicated, direct
quotations in our recitation of the Background are drawn directly
from the court’s unchallenged findings.

Mortensen v. Mortensen
20230417-CA 	3 	2025 UT App 8
¶4 	During Larry’s life, he “represented to the Brothers that his
estate would be split equally among the Brothers.” In addition,
during the course of divorce proceedings in 2006 between Larry
and Melony Mortensen (who is the Brothers’ mother), Larry
represented to Melony “that he would split his estate equally
among 	their 	three 	sons.” 	Based 	on 	Larry’s 	representations,
“Melony made concessions in [their] divorce that she would not
have otherwise made, including allowing Larry to take the
Millard, Juab, and Tooele County properties,” which resulted in
Larry receiving a “grossly disproportionate” split of the marital
property.
¶5 	Unbeknownst to Matt, Makay, or Melony, Larry executed
a will in 2007 (the 2007 Will). Under the terms of the 2007 Will,
Larry left nothing to Matt or Makay, instead leaving the entirety
of his estate to Mayne. Makay was listed, however, as the alternate
beneficiary of the estate if Mayne did not survive Larry.
¶6 	In February 2011, after years of battling Parkinson’s disease
and just one month before his death, Larry executed a new will
and an accompanying trust (collectively, the 2011 Will). The 2011
Will revoked all prior wills (including the 2007 Will), named
Mayne 	as 	Larry’s 	personal 	representative, 	and 	“gave
substantially all of [Larry’s] assets to Mayne,” leaving “very little
to Matt and Makay.”3 At the same time, Larry “executed a power
of attorney, giving Mayne Larry’s power of attorney.” As with the
2007 Will, Matt, Makay, and Melony were unaware that Larry had
effectively disinherited Matt and Makay in the 2011 Will.
¶7 	A month or two after Larry’s death, “Mayne organized a
meeting with Matt, Makay, Melony, and Larry’s estate planning
attorney to have” the terms of the 2011 Will “described to Matt,
Makay, and Melony.” As “the personal representative of Larry’s
3. Under the terms of the 2011 Will, Matt and Makay each received
$5,000 and a few guns.

Mortensen v. Mortensen
20230417-CA 	4 	2025 UT App 8
estate,” Mayne “was very much aware of” the contents of this will
“prior to [its] reading.” Yet “Mayne said nothing to any of his
family and continued to allow them to believe Larry’s estate
would be split equally.”
¶8 	“After Matt and Makay learned about their disinheritance
and Melony learned about Larry’s broken promise to her, the
family 	held 	numerous 	discussions 	in 	order 	to 	resolve 	the
problem.” “Mayne, as both 1) an attempt to assuage the concerns
that Matt, Makay, and Melony had, and 2) to avoid litigation
between Mayne and Matt, Makay, and/or Melony, promised all
three of them that the estate would be split equally between the
Brothers.” 	“Specifically, 	Mayne 	offered 	to 	split 	the 	liquid
proceeds as well as any proceeds derived from the real property
equally among Matt, Makay, and Mayne.” Mayne offered as
much because he “knew his brothers had or believed they had a
potential claim against him and Larry’s estate, both directly and
as third-party beneficiaries of Melony’s agreement with Larry,”
and he also “knew that Melony had or believed she had potential
claims against Larry’s estate for the disinheritance of Matt and
Makay.”
¶9 	“Matt, 	Makay, 	and 	Melony, 	accepted 	the 	offer 	and
performed 	their 	obligations 	by 	forgoing 	their 	challenges 	to
Larry’s bequeathment.” However, “in the years to come, Mayne
decided to disregard the contract.”
¶10 	In 2019, Matt and Makay sued Mayne, asserting causes of
action for declaratory judgment, specific performance, and quiet
title, all of which centered on their assertion that, under their prior
agreement, they were entitled to an equal ownership interest in
the properties. Mayne filed a motion to dismiss, arguing that Matt
and Makay’s claims violated the statute of frauds and relied on an
interest in real property that did not exist. The district court
granted Mayne’s motion to dismiss in part; in particular, it

Mortensen v. Mortensen
20230417-CA 	5 	2025 UT App 8
dismissed the specific performance and declaratory judgment
claims because they were barred by the statute of frauds.
¶11 	Matt 	and 	Makay 	then 	amended 	their 	complaint. 	In
addition to the ownership claims that they’d originally asserted,
they now asserted in the amended complaint that there had been
an oral agreement that “the proceeds of any Estate property
would be split 1/3 each at the time of the transfer of that property
to a third-party,” and they accordingly added a claim for breach
of that contract, alleging that Mayne had “refus[ed] to transfer to
[them] 2/3 of the value of income derived from the Estate.”
¶12 	After Matt and Makay had filed the amended complaint,
and while discovery was ongoing in the case, Mayne “sold the
Tooele County Property for $2 million.” Instead of splitting the
proceeds with Matt and Makay, Mayne used the proceeds in a so-
called 	“1031 	exchange,” 	wherein 	the 	funds 	were 	used 	to
“purchase 	new 	property 	in 	Juab 	County 	as 	well 	as 	a
condominium in Utah County, all separate transactions with
different parties.” At trial, Mayne testified that to facilitate this
transaction, the proceeds from the sale of the Tooele property
were placed into escrow and then used to fund the purchase of
the new properties.4
4. For background, we note that a “1031 exchange” is governed by
section 1031 of the Internal Revenue Code. See generally 26 U.S.C.
§ 1031. This type of “exchange is a real estate transaction in which
a taxpayer sells real estate held for investment or for use in a trade
or business and uses the funds to acquire replacement property.”
Exchanges 	Under 	Code 	Section 	1031, 	Am. 	Bar 	Ass’n,
https://www.americanbar.org/groups/real_property_trust_estate
/resources/real-estate/1031-exchange/ 	[https://perma.cc/W5V8-
XY8D]. The taxpayer “enter[s] into an exchange agreement with
an Accommodator,” who “holds the funds and transfers to the
(continued…)

Mortensen v. Mortensen
20230417-CA 	6 	2025 UT App 8
¶13 	The district court later held a three-day bench trial, during
which Matt, Makay, Mayne, and Melony all testified. The court
later issued its final judgment, which included findings of fact and
conclusions of law.
¶14 	After issuing the findings of fact, which we’ve largely
recited in this Background section, the court issued conclusions of
law. 	As relevant 	to 	the 	issues 	raised 	in 	this appeal, 	those
conclusions included the following:
• 	There was a “valid and enforceable contract” among the
Brothers “for the equal distribution of proceeds upon the
sale of land that passed from Larry’s estate to Mayne.”
• 	The “1031 exchange still resulted in a ‘sale’ of the Tooele
property,” thus making it subject to the Brothers’ contract.
• 	“Mayne breached that contract when he sold the Tooele
property for $2 million and failed to distribute proceeds to
Matt and Makay.”
• 	“Matt and Makay have suffered damages collectively in
the principal amount of $1,333,333.33.”
ISSUES AND STANDARDS OF REVIEW
¶15 	Mayne raises three issues on appeal. First, he claims that
the district court erred in concluding that the Brothers’ oral
agreement was supported by consideration. This issue involves a
mixed standard of review. We give deference to the factual
findings underlying the court’s consideration analysis, Randolph
escrow for purchase of the [r]eplacement [p]roperty.” Id. The
benefit of a 1031 exchange is that it allows the capital gains taxes
to be deferred. See Knowlton v. Knowlton, 2023 UT App 16, ¶ 39 n.7,
525 P.3d 898, cert. denied, 531 P.3d 730 (Utah 2023).

Mortensen v. Mortensen
20230417-CA 	7 	2025 UT App 8
v. State, 2022 UT 34, ¶ 28, 515 P.3d 444, but the court’s conclusion
that “an act or forbearance constitutes consideration for a contract
is a question of law that we review for correctness,” Peirce v. Peirce,
2000 UT 7, ¶ 21, 994 P.2d 193.
¶16 	Second, Mayne claims that the district court’s findings
were inadequate because the court failed to make findings
regarding three “essential” terms of the contract. The question of
whether a court’s findings were “adequate to support the court’s
legal conclusions is reviewed for correctness as a question of law.”
Lundahl Farms LLC v. Nielsen, 2021 UT App 146, ¶ 41, 504 P.3d 735
(quotation simplified). As explained below, however, Mayne did
not preserve this challenge, so there is no ruling from the district
court for us to review.
¶17 	Third, 	Mayne 	claims 	that 	the 	district 	court 	erred 	in
concluding that he breached the oral agreement when he failed to
distribute proceeds from the sale of the Tooele property to Matt
or Makay. This is so, according to Mayne, because a 1031
exchange did not trigger his contractual obligations. This question
ultimately turns on the interpretation of what the term “proceeds”
means within the Brothers’ contract. “The interpretation of a
contract is a question of law, which we review for correctness,
giving no deference to the ruling of the district court.” Richman
& Richman LLC v. Redmond, 2023 UT App 158, ¶ 18, 542 P.3d 130
(quotation simplified).
ANALYSIS
I. Lack of Consideration
¶18 	Mayne first claims the district court erred in concluding
that the Brothers’ oral agreement was supported by consideration.
We begin by noting that, in his brief, Mayne did not argue that the
court’s 	underlying 	factual 	findings 	were 	not 	supported 	by
sufficient evidence, and Mayne confirmed during oral argument

Mortensen v. Mortensen
20230417-CA 	8 	2025 UT App 8
that he was not challenging the findings on that basis. As a result,
we accept those findings as true for purposes of this appeal. And
on the basis of those findings, we reject Mayne’s argument about
the alleged lack of consideration.
¶19 	“Consideration may be found when there is any act or
forbearance bargained for and given in exchange for the promise
of another.” Peirce v. Peirce, 2000 UT 7, ¶ 21, 994 P.2d 193. “Any
detriment” can support a promise, “no matter how economically
inadequate.” DeMentas v. Estate of Tallas, 764 P.2d 628, 632 (Utah
Ct. App. 1988) (quotation simplified); see also Healthcare Services
Group, Inc. v. Department of Health, 2002 UT 5, ¶ 17, 40 P.3d 591
(“There is consideration whenever a promisor receives a benefit
or 	where 	a 	promisee 	suffers 	a 	detriment, 	however 	slight.”
(quotation simplified)). “Ordinarily, courts will not inquire into
the adequacy of consideration unless it is so insufficient or
illusory as to render enforcement of the contract unconscionable.”
Reese v. Reese, 1999 UT 75, ¶ 27, 984 P.2d 987; see also JENCO LC v.
SJI LLC, 2023 UT App 151, ¶ 43, 541 P.3d 321 (noting that even a
“peppercorn” “might constitute legally sufficient consideration
under contract law”).
¶20 	Under the district court’s findings, the thing that Matt and
Makay agreed to give up was a potential lawsuit after they
learned that they had been disinherited in the 2011 Will. Matt and
Makay now argue that, as a matter of law, this act of forbearance
was enough. By contrast, Mayne points to several cases from other
jurisdictions that focused on whether the potential lawsuit had
legal merit. In his view, Matt and Makay had no valid basis for
suing him, so their agreement to forgo the potential suit was not
sufficient consideration. As to the initial question of what can
constitute consideration in such circumstances, we agree with
Matt and Makay.
¶21 	In Golden Key Realty, Inc. v. Mantas, our supreme court held
that if “there is a bona fide dispute as to the amount due” between

Mortensen v. Mortensen
20230417-CA 	9 	2025 UT App 8
two parties and one party agrees to accept a lesser amount, this
agreement constitutes “sufficient consideration.” 699 P.2d 730,
733 (Utah 1985). Of particular significance, the supreme court
further held that the underlying dispute need not “be well-
founded, so long as it is in good faith.” Id. In several similar cases,
our supreme court likewise held that the consideration question
turns on whether there was a “good faith” dispute between the
parties. See, e.g., Estate Landscape & Snow Removal Specialists, Inc. v.
Mountain States Tel. & Tel. Co., 844 P.2d 322, 326 (Utah 1992)
(noting that the “correct standard for determining whether there
is 	a 	bona 	fide 	dispute 	is” 	whether 	there 	is 	“a 	good-faith
disagreement over the amount due under the contract,” and such
“disagreement need not be well-founded, so long as it is in good
faith”); Ashton v. Skeen, 39 P.2d 1073, 1076 (Utah 1935) (“It is not
necessary for the claim to be well founded, but it must be made in
good faith, otherwise there is no consideration for an agreement
to accept a less sum, and the agreement is void.”); Utah Nat’l Bank
of Salt Lake City v. Nelson, 111 P. 907, 916 (Utah 1910) (quoting a
prior treatise for the proposition that “if claims thus compromised
are each genuine and upheld in good faith, the fact that one of
them is invalid does not avoid the compromise, and the validity
or invalidity of the original claim is immaterial” (quotation
simplified)).
¶22 	In pushing for a slightly different standard, Mayne points
out that these cases arose in the context of the accord and
satisfaction doctrine. This is true, but Mayne has not persuaded
us that this makes any meaningful difference as to the legal
question before us. “Generally, formation of a contract requires an
offer, an acceptance, and consideration,” and in “the case of an
accord and satisfaction, the consideration requirement is satisfied
by the settlement of a dispute between the parties.” Wm. Douglas
Horne Family Revocable Trust v. Wardley/McLachlan Dev., LLC, 2013
UT App 129, ¶ 17, 304 P.3d 99 (quotation simplified); see also Estate
Landscape, 844 P.2d at 326 (“[T]he parties’ surrender of their legal

Mortensen v. Mortensen
20230417-CA 	10 	2025 UT App 8
right to dispute the amount at issue supplies the consideration
necessary to support the accord.”).
¶23 	That’s essentially what happened here. In an ordinary
accord and satisfaction case, there is a dispute between the parties
and a party that believes that it is owed something then agrees to
accept some amount in exchange for no longer pressing the claim.
The cases then hold that this agreement satisfies the ordinary
consideration element of a contract. Here, even if it’s true that the
dispute between Matt and Makay on the one hand and Mayne on
the other wasn’t the product of an initial contract, this doesn’t
mean that there was no dispute that could not be satisfied under
similar legal principles. In other words, if it were true that Matt
and Makay thought they had a good faith claim to properties that
Mayne owned, and if Matt and Makay agreed to drop those
claims in exchange for something, then the principles set forth
above would apply, thus satisfying the consideration element.5
5. We regard the past accord and satisfaction cases from the Utah
Supreme Court to be similar enough in spirit that they control our
analysis here. But even so, we note that this approach is consistent
with the approach taken by a Restatement section that addresses
this question more particularly. There, the Restatement provides:
(1) Forbearance to assert or the surrender of a claim
or defense which proves to be invalid is not
consideration unless
(a) the 	claim 	or 	defense 	is 	in 	fact 	doubtful
because of uncertainty as to the facts or the
law, or
(b) the forbearing or surrendering party believes
that 	the 	claim 	or 	defense 	may 	be 	fairly
determined to be valid.
Restatement (Second) of Contracts § 74 (Am. L. Inst. 1981)
(emphasis added). Thus, like the approach we’ve adopted in this
(continued…)

Mortensen v. Mortensen
20230417-CA 	11 	2025 UT App 8
¶24 	So viewed, we turn to the next question: whether there was
indeed a “bona fide dispute” between the parties, meaning that
Matt and Makay had a “good faith” belief that they had some
claim against Mayne. Golden Key Realty, 699 P.2d at 733. Under the
district court’s unchallenged factual findings, they did. Among
the 	findings 	made 	by 	the 	district 	court, 	the 	following 	are
particularly relevant to this question:
• 	During his life, Larry “represented to the Brothers that his
estate would be split equally among the Brothers.”
• 	During the course of divorce proceedings between Larry
and Melony in 2006, Larry represented to Melony “that he
would split his estate equally among their three sons.”
Based 	on 	Larry’s 	representations, 	“Melony 	made
concessions in [their] divorce that she would not have
otherwise made, including allowing Larry to take the
Millard, 	Juab, 	and 	Tooele 	County 	properties,” 	which
resulted in Larry receiving a “grossly disproportionate”
share of the marital property.
• 	“After Matt and Makay learned about their disinheritance
and Melony learned about Larry’s broken promise to her,
the family held numerous discussions in order to resolve
the problem.”
• 	“Mayne knew his brothers had or believed they had a
potential 	claim 	against 	him 	and 	Larry’s 	estate, 	both
directly 	and 	as 	third-party 	beneficiaries 	of 	Melony’s
agreement with Larry.”
• 	“Mayne, as both 1) an attempt to assuage the concerns that
Matt, Makay, and Melony had, and 2) to avoid litigation
opinion, the Restatement likewise concludes, in part, that a
party’s willingness to forgo a potential suit can constitute valid
consideration if the party believes that it has a valid claim.

Mortensen v. Mortensen
20230417-CA 	12 	2025 UT App 8
. . . promised all three of them that the estate would be split
equally between the Brothers. Specifically, Mayne offered
to split the liquid proceeds as well as any proceeds derived
from the real property equally among Matt, Makay, and
Mayne.”
• 	“Matt, 	Makay, 	and 	Melony, 	accepted 	the 	offer 	and
performed their obligations by forgoing their challenges to
Larry’s bequeathments.”
¶25 	Taken together, these findings demonstrate that there was
indeed a “bona fide dispute”—namely, Matt and Makay believed
that they were entitled to an equal share of the estate, whether it
be in reliance on the promises Larry made to them directly or
instead as third-party beneficiaries of the promises he had made
to Melony in the divorce. The findings also demonstrate that
Mayne was aware of this belief, and they further demonstrate that
Mayne 	agreed 	to 	specific 	concessions 	in 	exchange 	for 	an
agreement from Matt and Makay not to press forward with their
claims.
¶26 	Even so, Mayne advances several arguments for why he
believes 	these 	findings 	did 	not 	establish 	that 	there 	was
consideration. We address each argument in turn.
¶27 	First, Mayne points out that the district court did not enter
a specific finding that Matt and Makay had a “good faith” basis
for believing that they had a valid claim against Mayne or Larry’s
estate. But the cases we’ve cited above have not required a district
court to talismanically utter the phrase “good faith” in order to
support 	the 	determination 	that 	valid 	consideration 	was
exchanged. In any event, even if such a finding were required,
“unstated findings can be implied . . . if it is reasonable to assume
that the trial court actually considered the controverted evidence
and necessarily made a finding to resolve the controversy, but
simply failed to record the factual determination it made.” In re
A.S., 2024 UT App 52, ¶ 20 n.6, 548 P.3d 181 (quotation simplified),

Mortensen v. Mortensen
20230417-CA 	13 	2025 UT App 8
cert. denied, 554 P.3d 988 (Utah 2024); see also State v. Stewart, 2019
UT 39, ¶ 27, 449 P.3d 59 (noting that the supreme court has
“occasionally endorsed the propriety of a regime” in which an
appellate court may “assume that the trier of facts found facts in
accord with its decision despite the absence of express findings of
fact” (quotation simplified)); TKS Co-Pack Mfg., LLC v. Wilson,
2024 UT App 87, ¶ 57 n.8, 552 P.3d 258 (concluding that an
unstated finding 	was “implied” 	where it was “implicit” in
findings that the court did make (quotation simplified)).
¶28 	Here, as detailed in our list above, the district court
expressly found that Larry promised Matt and Makay a portion
of the estate (and that he made similar promises to Melony in
divorce negotiations), that in the immediate wake of his death,
Matt and Makay asserted their rights in “numerous discussions”
with Mayne that were intended to “resolve the problem,” that
“Mayne knew his brothers had or believed they had a potential
claim against him and Larry’s estate,” and that Mayne “offered to
split the liquid proceeds as well as any proceeds derived from the
real property equally” in exchange for their agreement to not file
suit. From these findings, we think it’s reasonable to assume that
the district court impliedly found that Matt and Makay had a
good faith basis for believing that they were entitled to a share of
Larry’s estate.
¶29 	Second, Mayne suggests that Matt and Makay could not
have had a good faith basis for filing suit because they had no
valid claim. But again, according to our supreme court, it “is not
necessary for the dispute to be well-founded, so long as it is in
good faith.” Golden Key Realty, 699 P.2d at 733.6
6. Regardless, even were we to conclude that the “good faith”
component requires at least some threshold basis for the potential
suit, Matt and Makay have cleared that hurdle here.
(continued…)

Mortensen v. Mortensen
20230417-CA 	14 	2025 UT App 8
¶30 	Third, Mayne argues that there was no consideration in
this case because Matt and Makay never actually communicated
to Mayne any threat to sue. But this argument runs headlong into
the court’s unchallenged findings. As noted, the court found that
after Matt and Makay learned that they had been disinherited, the
In their brief, Matt and Makay argued that they could have
brought a claim against Mayne for tortious interference with
inheritance. Such claims are cognizable in Utah upon proof that
(1) “the plaintiff had a reasonable expectation of receiving an
inheritance or gift,” (2) “the defendant committed an intentional
and independent legal wrong,” (3) the wrong was committed
with 	the 	“purpose” 	of 	interfering 	“with 	the 	plaintiff’s
expectancy,” (4) the “conduct caused the expectancy to fail,” and
(5) “the plaintiff suffered economic loss as a result.” In re Estate of
Osguthorpe, 2021 UT 23, ¶ 101, 491 P.3d 894 (quotation simplified).
As noted, after the trial in this case, the district court found that
Larry had “represented to the Brothers that his estate would be
split equally,” thus suggesting that Matt and Makay did indeed
have an expectation of receiving a gift, and in their amended
complaint, Matt and Makay asserted that the 2011 Will was
“invalid 	due 	to” 	Mayne’s 	“undue 	influence.” 	Beyond 	this
potential claim, they likewise asserted in their brief (with some
support from the record) that they could have challenged the 2011
Will based on Larry’s lack of testamentary capacity. And they
further asserted that Melony herself might have had claims
against the estate through her divorce (and that she likewise
agreed to forgo those claims in exchange for Mayne’s agreement
with Matt and Makay) or, instead, that they may have been
entitled to rely on Larry’s assertions to Melony as third-party
beneficiaries.
We need not and do not definitively weigh in on whether
any of these claims would or should have succeeded. Again, what
matters here is whether Matt and Makay had a good faith belief
that they had a valid claim to the estate. Based on any of these
potential claims, we think it’s clear enough that they did.

Mortensen v. Mortensen
20230417-CA 	15 	2025 UT App 8
family 	“held 	numerous 	discussions 	in 	order 	to 	resolve 	the
problem.” This, alone, plainly connotes that Matt and Makay
were asserting that they thought they had a claim to the estate—
otherwise, what would the “problem” even be, much less the
point of having “numerous discussions” on how to “resolve” it?
Moreover, in several findings, the district court found that Mayne
then entered an oral agreement with his brothers for the specific
purpose of heading off this potential litigation:
• 	“Mayne, as both 1) an attempt to assuage the concerns that
Matt, Makay, and Melony had, and 2) to avoid litigation . . .
promised all three of them that the estate would be split
equally between the Brothers.” (Emphasis added.)
• 	“Mayne did want to avoid litigation. That is why he made
offers and promises to his family to appease them and
avoid litigation. However, Mayne also wanted to keep the
land for himself. Mayne lied to his family repeatedly,
misrepresented his intentions, and engaged in dilatory
tactics, all in order to deceive his family and string them
along in order to avoid a lawsuit.” (Emphases added.)
Together, these findings establish that Matt and Makay thought
they had a claim to the estate and that Mayne was worried enough
about this that he entered into the oral agreement in order to
forestall that litigation. Regardless of what words Matt and
Makay did or didn’t use, this was enough to satisfy the bona fide
dispute/good faith basis requirement set forth in Utah law.
¶31 	Finally, Mayne argues that Matt and Makay’s agreement to
forgo a potential suit could not constitute valid consideration
because they would not have benefitted from the potential suit.
This is so, according to Mayne, because if Matt and Makay
somehow persuaded a court to invalidate the 2011 Will, the 2007
Will would have then been operative, and the 2007 Will’s terms
were even more favorable to Mayne than those set forth in the
2011 Will. But again, the question is whether there was a bona fide

Mortensen v. Mortensen
20230417-CA 	16 	2025 UT App 8
dispute, meaning that Matt and Makay had a good faith basis for
asserting a claim. And on this front, the district court made an
unchallenged finding that “[n]either Melony, Matt[], or Makay
had any knowledge of Matt[] and Makay’s disinheritance in
Larry’s 2007 or 2011 [W]ill.” Consistent with this finding, Mayne
testified at trial that he “never even told anyone or showed
anyone [the 2007 Will] until this lawsuit was filed.” Thus, given
that Matt and Makay did not know about the 2007 Will, its terms
are immaterial to the question of whether they had a good faith
basis for later agreeing to not sue Mayne in exchange for dropping
any claim against the 2011 Will.
¶32 	In sum, the district court’s unchallenged findings establish
that Matt and Makay agreed to not sue Mayne in exchange for a
share of the proceeds from the sale of any of the properties that
Mayne received from Larry. On these facts, the district court did
not err in ruling that, under Utah law, this forbearance could act
as valid consideration.
II. Adequacy of the Findings
¶33 	Mayne next argues that the district court did not make
adequate findings to support its conclusion that he breached the
contract. This was so, according to Mayne, because the court did
not find that there had been a meeting of the minds on three
contract terms that Mayne now argues were “essential.” We
decline to address this argument on its merits, however, because
it was not preserved.7
¶34 	Under Utah law, there is a distinction between a challenge
to the sufficiency of the evidence, which “asserts that there was
insufficient evidentiary support for a particular factual finding,”
7. Matt and Makay argue that the potential terms in question were
not actually “essential.” But because we conclude that this issue is
unpreserved, we need not detail the nature of the terms or address
their absence further.

Mortensen v. Mortensen
20230417-CA 	17 	2025 UT App 8
and a challenge to the adequacy of the court’s findings, which
“asserts that the court’s findings did not adequately explain the
basis for the court’s rulings.” Cox v. Cox, 2023 UT App 62, ¶ 32 n.5,
532 P.3d 128. This distinction matters, especially for purposes of
preservation. See In re K.F., 2009 UT 4, ¶ 61, 201 P.3d 985. A
challenge to the sufficiency of the evidence need not be preserved
because “[i]t would be superfluous to demand that a party
challenge the evidentiary support for a court’s findings shortly
after the court articulates them.” Id. But a challenge to the
adequacy of the court’s findings “is quite a different matter,” and
it is “wholly necessary for a party to challenge and thus afford the
trial 	court 	an 	opportunity 	to 	correct 	the 	alleged 	error 	of
inadequately detailed findings in order to provide for meaningful
appellate 	review 	of 	the 	court’s 	decision.” 	Id. 	(quotation
simplified). As our supreme court has explained, such differential
treatment is grounded in “[j]udicial economy” concerns. Id. ¶ 63.
It has noted:
Not only is an error in the detail in the findings easy
for a trial judge to correct, but it is an error that is
best corrected when the judge’s findings are fresh in
the judge’s mind. Further, it is a waste of judicial
resources for an appellate court to entertain such a
challenge when the only likely remedy is merely a
remand to the trial court for more detailed findings.
We decline to offer such a remedy unless the
petitioner 	first 	provided 	the 	trial 	court 	the
opportunity to correct the error.
Id.
¶35 	In his opening brief, Mayne characterized this claim as
being a challenge to “[t]he adequacy of the trial court’s factual
findings.” And he further argued that, without such findings, the
contract’s terms would be left so “indefinite[]” that the contract
could not be enforced. But to the extent that Mayne is challenging

Mortensen v. Mortensen
20230417-CA 	18 	2025 UT App 8
the adequacy of the court’s findings, such a claim could and
should have been brought below so that the district court could
correct it in the first instance.
¶36 	Mayne nevertheless asserted in his brief that this claim was
preserved by his counsel’s oral argument to the district court on
his motion for partial summary judgment. After members of this
court raised the preservation issue during oral arguments on
appeal, Mayne filed a supplemental brief in which he alleged that
this claim was also preserved by his counsel’s closing argument
to the district court. But the summary judgment proceedings and
the closing argument at trial all occurred before the district court
issued its final ruling. As a result, these arguments would not
have “afford[ed] the trial court an opportunity to correct the
alleged 	error 	of 	inadequately 	detailed 	findings,” 	id. 	¶ 	61
(quotation simplified), since the alleged error only occurred when
the district court issued the allegedly infirm final judgment.
¶37 	Indeed, in his supplemental brief, Mayne conceded that
“no post-judgment motions were filed regarding the lack of
definite 	terms 	necessary 	to 	create 	a 	valid 	and 	enforceable
contract.” And we note here that Mayne did file both an objection
to the plaintiff’s proposed final judgment, as well as a motion to
alter or amend the judgment, but neither of these filings asked the
district court to make additional findings on any of the terms at
issue in this appellate argument.8
¶38 	In short, because Mayne did not alert the court to the
alleged error, much less ask the court to correct it, he “waived any
8. The objection argued that several specific factual findings in the
final judgment were not consistent with the district court’s oral
ruling. And the motion to alter or amend asserted that “the
Plaintiff’s Proposed Judgment . . . errantly represented to the
Court that the form of [the final judgment] had been agreed to and
stipulated by Defendant’s counsel, when it in fact had not.”

Mortensen v. Mortensen
20230417-CA 	19 	2025 UT App 8
argument regarding whether the district court’s findings of fact
were sufficiently detailed.” 438 Main St. v. Easy Heat, Inc., 2004 UT
72, ¶ 56, 99 P.3d 801. We therefore decline to address the merits of
the argument.
III. 1031 Exchange
¶39 	Finally, Mayne claims that the district court erred in
finding that he breached the oral agreement when he used the
proceeds from the sale of the Tooele property in a 1031 exchange
and failed to distribute any proceeds to Matt or Makay. We
disagree.
¶40 	The district court found that “Mayne offered to split the
liquid proceeds as well as any proceeds derived from the real
property equally among Matt, Makay, and Mayne.” The district
court then concluded that a “valid and enforceable contract exists
between Matt, Makay, and Mayne for the equal distribution of
proceeds upon the sale of land that passed from Larry’s estate to
Mayne.” And the court further concluded that “Mayne breached
that contract when he sold the Tooele property for $2 million and
failed to distribute proceeds to Matt and Makay, or even inform
them of the pending sale or closing.”
¶41 	In Mayne’s view, the transactions in question did not
trigger 	his 	obligations 	under 	this 	agreement 	because 	they
constituted 	an 	exchange 	under 	section 	1031 	of 	the 	Internal
Revenue Code, see generally 26 U.S.C. § 1031. But again, the
agreement entitled Matt and Makay to any “proceeds derived
from the real property.” And there certainly were proceeds from
the sale of the Tooele property—namely, $2 million. Mayne
nevertheless points out that he arranged to have those proceeds
held in escrow by his bank, which, in his view, matters because it
meant that he didn’t personally receive those funds. But nothing
obligated him to do that, and Mayne could have changed his mind
and accessed those funds. And although it’s true that Mayne then
used that money “to purchase new property in Juab County as

Mortensen v. Mortensen
20230417-CA 	20 	2025 UT App 8
well as a condominium in Utah County,” we note that each of
these 	transactions 	involved 	separate 	real 	estate 	purchase
contracts. And more to the point, the fact that Mayne chose to
acquire new properties through a 1031 exchange doesn’t mean
that Matt and Makay were obligated to do the same with their
share of the proceeds from the sale of the Tooele property.
¶42 	Because Matt and Makay were entitled to share in any
proceeds derived from the sale of the Tooele property, the district
court committed no error when it concluded that Mayne breached
the agreement by failing to distribute their shares to them before
using the proceeds in the 1031 exchange.
CONCLUSION
¶43 	Mayne 	has 	not 	persuaded 	us 	that 	the 	district 	court
committed any error. We therefore affirm the district court’s
judgment.