Zions Bancorporation v. Schwab

2023 UT App 105
THE UTAH COURT OF APPEALS
ZIONS BANCORPORATION, NA,
Appellant,
v.
SARAH N. SCHWAB,
Appellee.
Opinion
No. 20220584-CA
Filed September 21, 2023
Third District Court, Salt Lake Department
The Honorable Kara Pettit
No. 050905946
James K. Tracy, Joshua L. Lee, Taylor C. Jaussi,
KC Hooker, and David M. McGrath,
Attorneys for Appellant
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.
HARRIS, Judge:
¶1 Zions Bancorporation, NA (Zions) obtained a judgment
against Sarah N. Schwab in 2005. Eight years later, in 2013, Zions
utilized the Renewal of Judgment Act (the Act) to renew its
judgment against Schwab. Another eight years after that, in 2021,
Zions sought to renew its judgment a second time. The district
court denied Zions’s motion to renew the judgment, concluding
that the Act does not allow for a second renewal. Zions appeals
that decision, asserting that the court erroneously interpreted the
Act. Schwab did not file an appellate brief, and therefore Zions’s
arguments stand unopposed. After review of those arguments,
we conclude that Zions has made at least “a prima facie showing
of a plausible basis for reversal.” AL-IN Partners, LLC v.
LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation

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20220584-CA 2 2023 UT App 105
simplified). Zions has thus satisfied its burden of persuasion in
this appeal, and we therefore reverse the district court’s
determination and remand for the court to enter an order granting
Zions’s request for a second renewal of judgment. But our
conclusion is a non-merits disposition; we make no precedential
determinations regarding the meaning of the Act’s language.
BACKGROUND
¶2 Schwab opened a new bank account with Zions in 2004.
Upon creation of the account, Schwab and Zions entered into a
“Deposit Agreement” outlining the terms and conditions of their
arrangement. The Deposit Agreement required Schwab to repay
any amount that is overdrawn from the account. It also required
that Schwab pay 18% annual interest on any overdraft amount,
and that Schwab reimburse Zions for reasonable attorney fees and
collection costs if Schwab does not comply with the agreement.
¶3 That same year, Schwab overdrew $4,816.96 from her
account. Zions requested that Schwab repay this amount, but
Schwab was unwilling or unable to do so.
¶4 In 2005, Zions sued Schwab for breach of contract, and
sought to obtain a judgment for the overdraft amount, accrued
interest, attorney fees, and collection costs. A few months later,
the parties entered into a court-approved settlement agreement;
under the terms of that agreement, Schwab acknowledged that
she was indebted to Zions in the amount set forth in the complaint
and that she would pay Zions $100 per month until the debt was
paid in full. In exchange, Zions agreed to dismiss the case after
receiving full payment. The agreement provided that if Schwab
did not make any payment on time, the court was authorized to
enter judgment against Schwab in the amount owed plus accrued
interest, attorney fees, and collection costs.

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20220584-CA 3 2023 UT App 105
¶5 After making only one payment, Schwab defaulted on the
agreement. Zions then asked the court to enter a judgment against
Schwab pursuant to the terms of the agreement. The court granted
Zions’s request, entering judgment (the Original Judgment) in
October 2005 in the total amount of $6,126.95, consisting of “the
principal sum of $4,716.96, plus accrued interest thereon in the
amount of $875.99,” collection costs of $126.50, and attorney fees
of $407.50. The Original Judgment also provided for “accruing
interest on the principal amount at the rate of 18.00% per annum,”
and contained a provision allowing for augmentation “in the
amount of reasonable costs and attorney’s fees expended in
collecting said judgment.”
¶6 Zions claims that, after obtaining the Original Judgment, it
“began efforts to collect” on it but “was unable to collect enough
funds to satisfy the Judgment in full” before the expiration of the
Original Judgment’s eight-year term. During this time, Zions
obtained a writ of garnishment, but it is unclear what other
collection methods, if any, Zions employed.
¶7 In 2013, just prior to the eight-year anniversary of the
Original Judgment’s entry date, Zions filed a motion to renew the
judgment, invoking the Act. The district court granted this motion
and entered a renewed judgment (the Renewed Judgment). In the
Renewed Judgment, the court also updated the amounts Schwab
owed—including interest, attorney fees, and collection costs—so
that the total judgment amount was increased to $12,991.46.
¶8 Over the next eight years, Zions claims that it “continued
its collection efforts but still was unable to collect enough funds
to satisfy” the Renewed Judgment. So in 2021, just prior to the
sixteen-year anniversary of entry of the Original Judgment, Zions
again moved for renewal of judgment. Zions again relied on the
Act, which provides that a “court of record may renew a judgment
issued by a court if,” among other things, “the motion is filed
before the statute of limitations on the original judgment expires.”

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20220584-CA 4 2023 UT App 105
Utah Code § 78B-6-1802(2). Schwab did not register any
opposition to Zions’s motion.
¶9 But this time, the district court refused to sign the new
renewed judgment (the Second Renewed Judgment) that Zions
submitted, explaining in a “[n]ote from the Court” as follows:
“[The] Original [J]udgment issued in 2005 and statute of
limitations has expired. Per [the Act], [a] motion must be filed
before the statute of limitations on the ORIGINAL [J]udgment
expires.” (Emphasis in original.) Zions then filed a motion for
reconsideration, taking issue with the court’s interpretation of the
Act and claiming that, “by operation of the Renew[ed] Judgment,
the expiration date of the Original Judgment was extended to
October 13, 2021. Therefore, the 2021 [m]otion filed by Zions on
October 6, 2021 was filed prior to the expiration of the statute of
limitations on the Original Judgment.” (Emphasis in original.)
Zions also argued that the court’s interpretation of the Act “would
necessarily result in placing an artificial cap of one renewal for
any given judgment,” which “is clearly contrary to the plain
language and intent of [the Act], which imposes no limit on the
number of times a judgment can be renewed.”
¶10 The court disagreed and denied Zions’s motion for
reconsideration, offering its view that the eight-year “statute of
limitations on the [O]riginal [J]udgment expired” in 2013 and that,
therefore, Zions’s 2021 motion for a second renewal had not been
filed before the statute of limitations on the Original Judgment
expired. The court believed that it was “following the holding of”
Gildea v. Wells Fargo Bank, N.A., 2015 UT 11, 347 P.3d 385, in which
our supreme court held that a judgment’s duration period and the
statute of limitations associated with that judgment “are two
different, but concurrent” time frames, see Gildea, 2015 UT 11, ¶ 13.
The district court interpreted Gildea as mandating the conclusion
that “extending the duration of a judgment does not extend the
statute of limitations on the judgment.”

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¶11 Zions timely appealed the court’s denial of its second
motion for renewal of judgment. Schwab did not file an appellate
brief and has not otherwise participated in this appeal.
ISSUE AND STANDARD OF REVIEW
¶12 Zions claims that the district court erred in refusing to
renew its judgment against Schwab for a second time. In
particular, it claims that the court erred “in interpreting [the Act]
to mean that renewal of an original judgment does not renew the
limitations period on that judgment.” “We review questions of
statutory interpretation for correctness, affording no deference to
the district court’s legal conclusions.” Marion Energy, Inc. v. KFJ
Ranch P’ship, 2011 UT 50, ¶ 12, 267 P.3d 863 (quotation simplified).
¶13 But here, Schwab did not submit an appellate brief or
otherwise appear to contest the positions Zions is taking. In
circumstances like these, as discussed more fully below, Zions is
only required to “establish a prima facie showing of a plausible
basis for reversal.” AL-IN Partners, LLC v. LifeVantage Corp., 2021
UT 42, ¶ 19, 496 P.3d 76 (quotation simplified).
ANALYSIS
¶14 In this case, because Schwab did not file an appellate brief,
Zions’s claims on appeal stand uncontested. An appellee’s failure
to file an appellate brief “does not amount to an automatic default
and consequent reversal of the lower court,” Farman-Rava v. Blu
Auto Transport LLC, 2021 UT App 93, ¶ 5 n.2, 498 P.3d 24
(quotation simplified), and it is not “a confession of error on the
part of the appellee,” State v. Sorbonne, 2020 UT App 48, ¶ 16 n.3,
462 P.3d 409, aff’d, 2022 UT 5. In such situations, we still must
“consider whether [the appellant] has carried [its] burden of
persuasion on appeal.” Id.

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20220584-CA 6 2023 UT App 105
¶15 But in cases like this one, an appellant’s burden of
persuasion is significantly lower. To satisfy that burden in a case
in which its arguments stand unopposed, an appellant need only
establish “a prima facie showing of a plausible basis for reversal.”
AL-IN Partners, 2021 UT 42, ¶ 19 (quotation simplified); see also
Mitchell v. Arco Indus. Sales, 2023 UT App 70, ¶ 22, 533 P.3d 394
(“Our supreme court has previously held that it is appropriate to
rule in favor of an appellant if the appellant establishes a prima
facie showing of a plausible basis for reversal and the appellee
fails to brief the argument.” (quotation simplified)). “This is a
lower standard than the typical burden of persuasion on appeal.”
AL-IN Partners, 2021 UT 42, ¶ 19. An appellant who meets this
burden is entitled to reversal of the challenged decision in that
appellant’s individual case. But in such instances, given the lack
of adversarial briefing on the matter at hand, we often indicate
that our reversal “is a non-merits decision that is not intended to
have precedential value.” See, e.g., Mitchell, 2023 UT App 70, ¶ 22
n.2 (quotation simplified).
¶16 Here, Zions has presented arguments that satisfy its
burden to show a plausible basis for reversal of the district court’s
decision not to enter the Second Renewed Judgment. Stated
another way, in our view Zions offers us an interpretation of the
Act that is at least plausible, and has therefore established an
entitlement to reversal of the court’s decision in this case.
¶17 Under the Act, “[a] court of record may renew a judgment
issued by a court if,” among other things, “a motion is filed within
the original action” and “the motion is filed before the statute of
limitations on the original judgment expires.” Utah Code § 78B-6-
1802(1), (2). “Upon granting a motion for the renewal of
judgment, the court shall enter an order which renews the original
judgment from the date of entry of the order or from the
scheduled expiration date of the original order, whichever occurs
first, for the same amount of time as the original judgment.” Id.
§ 78B-6-1804. And in a different section of the Utah Code, our

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legislature has set forth the applicable statute of limitations for
actions “brought . . . upon a judgment or decree of any court.” See
id. § 78B-2-311. In particular, Utah law provides that any such
“action may be brought within eight years.” Id.
¶18 When interpreting a statute, “our primary goal is to evince
the true intent and purpose of the Legislature.” Marion Energy, Inc.
v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (quotation
simplified). “The best evidence of the legislature’s intent is the
plain language of the statute itself.” Id. (quotation simplified). In
reading statutory language, we “interpret its provisions in
harmony with other statutes in the same chapter and related
chapters.” Monarrez v. Utah Dep’t of Transp., 2016 UT 10, ¶ 11, 368
P.3d 846 (quotation simplified). “When statutory language is
ambiguous—in that its terms remain susceptible to two or more
reasonable interpretations after we have conducted a plain
language analysis—we generally resort to other modes of
statutory construction and seek guidance from legislative history
and other accepted sources.” Marion Energy, 2011 UT 50, ¶ 15
(quotation simplified).
¶19 Zions argues that the plain language of the Act “mandates
that upon the grant of a motion to renew, the entirety of the
original judgment is renewed, including its eight-year statute of
limitations.” As Zions sees it, the “plain meaning” of the word
“‘renew’ is ‘to make like new,’ ‘to restore to existence,’ and to
‘begin again,’” and “[b]y using the phrase ‘renews the original
judgment,’ the legislature intended the original judgment to
become ‘like new’ in all respects, both in its duration and in its
limitations period.” (Quoting Renew, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/renew
[https://perma.cc/595S-DRPF].) Zions posits that a judgment
could not be “like new” if only its duration continued but its
statute of limitations did not. And Zions asserts that its
interpretation is consistent with our rules of civil procedure,
which provide that “[t]he statute of limitations on the renewed

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judgment runs from the date the order is signed and entered.”
Utah R. Civ. P. 58C(c).
¶20 In addition, Zions asserts that the term “original
judgment,” as used in the Act, is not meant to be read as a
counterpoint to a “renewed judgment”; instead, Zions posits that
the term “original judgment” is a term meant to provide clarity
when discussing certain types of updated judgments sometimes
referred to in the Utah Code and the Utah Rules of Civil
Procedure, including the following: (1) foreign judgments that are
later domesticated in Utah, as referenced in section 78B-5-301 of
the Utah Code; (2) judgments that have been amended (for
instance, augmented to add attorney fees or costs), as referenced
in rules 52(b) and 54(e) of the Utah Rules of Civil Procedure; and
(3) judgments that are later abstracted in order to be enforceable,
as referenced in section 78B-5-201 of the Utah Code. Zions points
out that it is helpful for the Act to distinguish “the initial entry of
judgment” from these other types of updated judgments, and
argues that this construct makes more sense than attempting to
contrast “original judgment” with a “renewed judgment.”
¶21 Next, Zions points to legislative history that supports its
interpretation. The Act was passed by our legislature in 2011,
and during a hearing regarding the bill that later became the Act,
this particular question—whether the bill would allow a
litigant to renew a judgment more than once—was
specifically raised and discussed. A legislator inquired of the bill’s
sponsor whether a litigant would be able to renew a judgment
“more than once” under the bill, and the sponsor responded
that “conceivably you could,” and another legislator offered
his agreement with that statement. See Hearing on H.B. 10 Before
the H. Judiciary Comm., 59th Leg., Gen. Sess. 7:15-8:30 (Utah
2011) (statements of Rep. Derek Brown and Rep. Gage
Froerer), https://le.utah.gov/av/committeeArchive.jsp?mtgID=8
336 [https://perma.cc/GU2E-K2QB]. In this vein, Zions posits that
if our “legislature wanted to put a one-time cap on the number of

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times a judgment could . . . be renewed, they would have done so
explicitly, not by opaquely hiding the requirement in the phrase
‘statute of limitations on the original judgment.’”
¶22 Finally, Zions asserts—with colorable basis—that our
supreme court’s opinion in Gildea v. Wells Fargo Bank, N.A. does
not necessarily compel the result reached by the district court. See
2015 UT 11, 347 P.3d 385. In that case, an individual (Gildea) filed
an action against Wells Fargo Bank seeking “to foreclose his
judgment lien against property owned by Wells Fargo” just a few
months before the judgment was set to expire. Id. ¶ 1. Gildea did
not, however, seek renewal of the judgment. Id. ¶ 2. While the
foreclosure litigation was pending, the judgment expired, and on
that basis the court dismissed the lawsuit. Id. ¶ 8. Gildea then
appealed, claiming that the filing of his foreclosure action had
tolled the judgment’s expiration. Id. ¶ 10. Among other
arguments, Gildea posited that he could not have renewed his
judgment because, had he done so, he would have lost his lien
given that Wells Fargo—rather than the original judgment
debtor—now owned the property. Id. ¶ 27. But the court
disagreed and held that, under the Act, “a renewed judgment
relates back to and extends the life of the original judgment,” and
therefore “a renewed lien likewise relates back to the original
lien.” Id. ¶ 28. The court stated that, under the Act, “renewing a
judgment gives new life to a party’s original judgment,” and that
Gildea was therefore “incorrect in arguing that renewing the
judgment would have resulted in a new judgment and new liens.”
Id. ¶ 30. Zions points out—with some force—that this part of the
Gildea opinion actually supports its interpretation of the Act.
¶23 Along the way to reaching its ultimate conclusion,
however, the Gildea court made some statements that appear to
cut the other way. The court noted that “[i]n many statute-of-
limitations contexts, the filing of an action within the statutory
period is sufficient to preserve the underlying claim. However,
the Legislature has set a clear expiration period for a judgment,

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20220584-CA 10 2023 UT App 105
which is different from a statute of limitations.” Id. ¶ 2. Looking
at both the Act as well as the statute setting forth the relevant
statute of limitations for actions brought upon a judgment, the
court noted that “the relevant statutory framework provides for
two different, but concurrent, eight-year time frames: (1) an eight-
year duration for a judgment, plus eight additional years if
renewed, and (2) an eight-year statute of limitations for filing an
action upon a judgment.” Id. ¶ 13. These remarks led the district
court, in this case, to conclude that the Act—which requires that a
motion to renew a judgment be filed “before the statute of
limitations on the original judgment expires,” see Utah Code
§ 78B-6-1802(2)—does not allow for multiple renewals; in the
court’s view, the “statute of limitations on the [O]riginal
[J]udgment” had expired in 2013, long before Zions’s 2021 motion
to renew the judgment a second time.
¶24 In our view, the application of Gildea to the facts at hand is
a complicated endeavor. On the one hand, we certainly see the
district court’s point: if a judgment’s eight-year term is different
from the statute of limitations for filing an action based on that
judgment, then renewing the judgment’s term does not
necessarily operate to extend the statute of limitations. And if the
statute of limitations was not extended in connection with the first
renewal of the judgment, then no additional renewals would be
possible under the Act, given the Act’s mandate that any motion
to renew be filed “before the statute of limitations on the original
judgment expires.” See id. § 78B-6-1802(2).
¶25 But on the other hand, we also see Zions’s point that our
supreme court, in Gildea, was not presented with the same
question presented here, namely, whether the Act allows for
multiple renewals. And as Zions points out, in Gildea the court
made sure to clarify that “a renewed judgment relates back to and
extends the life of the original judgment,” and that renewal
includes renewal (or extension) of any liens associated with the
judgment. See Gildea, 2015 UT 11, ¶ 28. The court went so far as to

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20220584-CA 11 2023 UT App 105
state that “renewing a judgment gives new life to a party’s
original judgment,” and rejected Gildea’s assertion that renewal
of a judgment somehow created a “new judgment.” Id. ¶ 30.
¶26 On a question like this, where there appear to be colorable
arguments on both sides of the matter, we hesitate—without
robust adversarial briefing—to render any precedential decision.
See Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17,
¶ 19, 279 P.3d 391 (stating that, “without adequate briefing from
[the landlord] in response to [the tenants’] arguments, we are not
comfortable addressing the merits of the broader questions of
whether exculpatory clauses in residential leases violate public
policy or whether they fall within the public interest exception,”
and concluding that there was “insufficient information to make
a ruling that would affect countless landlords and tenants
throughout Utah”); Mitchell v. Arco Indus. Sales, 2023 UT App 70,
¶ 22 & n.2, 533 P.3d 394 (concluding that the appellant had met
his “appellate burden of making a prima facie showing of a
plausible basis to rule in his favor,” and therefore reversing the
lower court’s ruling in a “non-merits decision” (quotation
simplified)); see also Porenta v. Porenta, 2017 UT 78, ¶ 32, 416 P.3d
487 (“We are rightly hesitant to address an issue of first
impression without the aid of adequate adversarial briefing.”).
Definitive precedential resolution of this question—whether the
Act allows for multiple renewals of judgment—should occur in a
case in which both sides appear and brief the question.1
¶27 In this situation, however, we do not need to render a
precedential on-the-merits decision in order to dispose of this
1. While we must wait for a case with robust adversarial briefing
to decide this issue, our legislature is under no such constraint,
and is of course free to amend the Act as necessary to clarify
whether judgment creditors can obtain multiple renewals of the
same judgment. To the extent our legislature is inclined to do so,
we invite legislative clarification of the question.

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appeal. To prevail here, given the absence of any appellate
opposition, Zions need only make “a prima facie showing of a
plausible basis for reversal.” AL-IN Partners, LLC v. LifeVantage
Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation simplified). In our
view, Zions has borne this burden in advancing the arguments
outlined above. Zions’s arguments certainly have strength, and
offer at least a plausible basis for reversal of the district court’s
ruling. Accordingly, we reverse that ruling, but do so in a “non-
merits decision that is not intended to have precedential value.”
See Mitchell, 2023 UT App 70, ¶ 22 n.2 (quotation simplified).2 We
offer no precedential opinion as to whether the Act allows for
multiple renewals of a judgment; that question remains open, and
ripe for resolution in a future case that comes to us following
adversarial briefing.3
2. We are aware of our supreme court’s statement—made in the
context of addressing whether the court of appeals may issue
memorandum decisions that counsel are discouraged from citing
as precedent—that the court of appeals does not have “authority
. . . to decide which of [its] decisions may be cited as precedent.”
See Grand County v. Rogers, 2002 UT 25, ¶ 16, 44 P.3d 734. Because
this statement was made in a completely different context, we do
not read it as shedding any light on the question of whether, and
when, it is appropriate to render non-precedential decisions in
appeals (whether uncontested or inadequately briefed) lacking
robust adversarial briefing. Moreover, our supreme court’s more
recent guidance suggests that we are in fact empowered to issue
non-merits decisions in such cases. See AL-IN Partners, LLC v.
LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76; Broderick v.
Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶ 19, 279 P.3d 391.
3. Zions also requests an award of attorney fees incurred on
appeal. This request is well-taken. The Deposit Agreement
(continued…)

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CONCLUSION
¶28 We reverse the district court’s denial of Zions’s motion for
renewal of judgment, and we remand the case with instructions
for the court to allow Zions a second renewal of judgment and for
such additional proceedings as may be necessary and consistent
with this opinion.
required Schwab to pay Zions’s reasonable attorney fees, legal
expenses, and collection costs if Schwab does not comply with the
agreement, and on that basis Zions is entitled to the reasonable
attorney fees it incurred in enforcing its judgment through this
appeal. See Utah Dep’t of Social Services v. Adams, 806 P.2d 1193,
1197 (Utah Ct. App. 1991) (“The general rule is that when a party
who received attorney fees below prevails on appeal, the party is
also entitled to fees reasonably incurred on appeal.”); Management
Services Corp. v. Development Assocs., 617 P.2d 406, 409 (Utah 1980)
(“The parties here agreed to pay reasonable attorney’s fees if it
became necessary to enforce the contract. If plaintiff is required to
defend its position on appeal at its own expense plaintiff’s rights
under the contract are thereby diminished. We therefore adopt
the rule of law that a provision for payment of attorney’s fees in a
contract includes attorney’s fees incurred by the prevailing party
on appeal . . . .”). On remand, the district court should quantify
the amount of attorney fees Zions incurred in this appeal and
should augment the judgment to include that amount.