The Lodges v. Bear Hollow

2015 UT App 6
_________________________________________________________
THE UTAH COURT OF APPEALS
THE LODGES AT BEAR HOLLOW CONDOMINIUM HOMEOWNERS
ASSOCIATION, INC.,
Plaintiff and Appellant,
v.
BEAR HOLLOW RESTORATION, LLC AND HAMLET HOMES CORPORATION,
Defendants and Appellees.
Opinion
No. 20130559-CA, No. 20130718-CA
Filed January 2, 2015
Third District Court, Silver Summit Department
The Honorable Ryan M. Harris
No. 110500837
A. Richard Vial, Edward W. McBride Jr., Peter H.
Harrison, and Douglas C. Shumway, Attorneys
for Appellant
Russell C. Fericks, Zachary E. Peterson, and Kallie
A. Smith, Attorneys for Appellees
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.
VOROS, Judge:
¶1 The Lodges at Bear Hollow condominium complex sits
just south of Kimball Junction at the foot of the Olympic ski
jump. Citing alleged construction defects, the homeowners
association sued the developer, the general contractor, and
others. After discovery, the district court denied the
homeowners association’s requested equitable relief and granted

The Lodges v. Bear Hollow Restoration
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partial summary judgment in favor of the general contractor. We
affirm both orders.
BACKGROUND
¶2 With three buildings and a total of ninety-seven stacked
condominium units, The Lodges at Bear Hollow (the Lodges)
comprises one phase of Bear Hollow Village. To create this
master-planned community, Bear Hollow Restoration, LLC (Bear
Hollow) was formed with twenty-six members contributing a
total of $1.245 million. Bear Hollow then borrowed more than
$25 million to construct the Lodges. Hamlet Homes Corporation
owned a majority interest in Bear Hollow at all relevant times.
To construct the Lodges, Bear Hollow hired Hamlet Homes to
act as Bear Hollow’s manager and to supervise construction and
sale of the condominium units within the Bear Hollow Village.
¶3 When construction on the Lodges began, Bear Hollow
recorded the ‚Declaration of Condominium for the Lodges at
Bear Hollow‛ (the Declaration). The Declaration created the
Lodges’ homeowners association (the Association). Under the
terms of the Declaration, the Association was ‚responsible to
maintain, repair, and replace all of the common areas and
facilities within or serving the *Lodges+.‛ For about two years,
from when Bear Hollow formed the Association until 75% of the
condominiums were sold, Bear Hollow controlled the
Association pursuant to the Declaration. After condominium-
unit sales reached 75%, Bear Hollow ceded control of the
Association to the individual condominium owners.
¶4 In the spring of 2011, the Association notified Bear
Hollow and Hamlet Homes that it had discovered ‚construction
and design problems‛ in the Lodges’ common areas. Later that
year, the Association sued Bear Hollow, Hamlet Homes
(collectively Defendants), and other parties not relevant to this
appeal. In part, the Association brought contract claims against

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Bear Hollow and—under an alter-ego theory—against Hamlet
Homes. Specifically, the Association claimed that Bear Hollow
and its alter ego, Hamlet Homes, had breached the contractual
duties they owed to the Association.
¶5 After discovery, the Association filed a motion to impose
a constructive trust based on both Bear Hollow’s and Hamlet
Homes’ construction-defect claims against the subcontractors.
However, the district court denied the motion.
¶6 Later, Defendants moved for partial summary judgment.
The district court granted Defendants’ motion in part. The
district court allowed the Association to pursue its contract
claims against Bear Hollow but dismissed the Association’s
contract claims against Hamlet Homes. The court ruled that the
Association enjoys privity of contract with Bear Hollow only and
that the Association had failed to show that Hamlet Homes is an
alter ego of Bear Hollow.
¶7 The district court later certified the denial of the
Association’s motion to establish a constructive trust and the
grant of Defendants’ motion for partial summary judgment as
final and appealable under rule 54(b) of the Utah Rules of Civil
Procedure. These appeals followed.1
1. For purposes of judicial economy and because the appeals
share factual backgrounds, we address both the appeal from the
district court’s denial of the motion to establish a constructive
trust, number 20130718-CA, and the appeal from the district
court’s grant of partial summary judgment, number 20130559-
CA, in this opinion.

The Lodges v. Bear Hollow Restoration
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ISSUES ON APPEAL
¶8 First, the Association contends that the district court erred
in ruling that Hamlet Homes is not Bear Hollow’s alter ego.
¶9 Second, the Association contends that the district court
abused its discretion in denying the Association’s request for a
constructive trust, a writ of replevin, and a writ of attachment.2
ANALYSIS
I. The District Court Properly Ruled That the Association Did
Not Establish Its Alter-Ego Theory.
¶10 The Association first contends that the district court erred
in ruling that it could not pursue its contract claims against
Hamlet Homes. The Association brought these contract claims
against Bear Hollow and Hamlet Homes.3 The claims against
2. Originally, the Association brought a third claim on appeal:
that the trial court erred in granting summary judgment on the
Association’s claims of breach of fiduciary duty against
individuals appointed to the Association’s board of directors
during the time Bear Hollow controlled the Association. This
claim on appeal was not directed against Hamlet Homes. After
oral argument, the parties stipulated to dismissing all claims
against the individual defendants. Accordingly, the Association
has abandoned its breach-of-fiduciary-duty claim on appeal, and
we do not address it.
3. The Association also brought these claims against Michael
Brodsky, but during the pendency of this appeal, the Association
dismissed its claims against all individual defendants. Thus, we
do not address them.

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Bear Hollow are well pleaded and will proceed toward trial.
However, the district court ruled that because the Association
lacks privity of contract with Hamlet Homes and because
Hamlet Homes is not Bear Hollow’s alter ego, the Association
could not pursue its contract claims against Hamlet Homes.
¶11 The Association acknowledges that it lacks privity of
contract with Hamlet Homes. However, the Association
contends that it can pursue its contract claims against Hamlet
Homes as an alter ego of Bear Hollow. The Association argues
that, at the very least, it provided sufficient evidence to create a
genuine issue of material fact as to whether Hamlet Homes and
Bear Hollow are alter egos.
¶12 A district court properly grants summary judgment
where ‚there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter of
law.‛ Utah R. Civ. P. 56(c). ‚To survive a motion for summary
judgment on an alter ego theory, the party alleging alter ego
liability must present evidence creating a genuine issue of
disputed material fact with respect to both elements of the
Norman alter ego test.‛ Jones & Trevor Mktg., Inc. v. Lowry, 2012
UT 39, ¶ 25, 284 P.3d 630.4 We review a district court’s legal
conclusions and ultimate grant or denial of summary judgment
for correctness. Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.
¶13 ‚Ordinarily a corporation is regarded as a legal entity,
separate and apart from its stockholders.‛ Lowry, 2012 UT 39,
¶ 13 (citation and internal quotation marks omitted). ‚The
purpose of such separation is to insulate the stockholders from
the liabilities of the corporation, thus limiting their liability to
4. As discussed below, our supreme court created a two-part
alter-ego test in Norman v. Murray First Thrift & Loan Co., 596
P.2d 1028, 1030 (Utah 1979).

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only the amount that the stockholders voluntarily put at risk.‛
Id. (citation and internal quotation marks omitted). The alter-ego
doctrine is an exception to this general rule: ‚If a party can prove
its alter ego theory, then that party may ‘pierce the corporate
veil’ and obtain a judgment against the individual shareholders
even when the original cause of action arose from a dispute with
the corporate entity.‛ Id. But courts ‚will only reluctantly and
cautiously pierce the corporate veil.‛ Salt Lake City Corp. v. James
Constructors, Inc., 761 P.2d 42, 46 (Utah Ct. App. 1988).
¶14 Utah courts have adopted a two-part test, known as the
Norman test, ‚to determine when a party may pierce the
corporate veil.‛ Lowry, 2012 UT 39, ¶ 14; see also Norman v.
Murray First Thrift & Loan Co., 596 P.2d 1028, 1030 (Utah 1979).
The first part of the test, often called the ‚formalities
requirement,‛ requires the movant to show ‚such unity of
interest and ownership that the separate personalities of the
corporation and the individual no longer exist.‛ Norman, 596
P.2d at 1030; see also Messick v. PHD Trucking Serv., Inc., 678 P.2d
791, 794 (Utah 1984). The second part of the test, often called the
‚fairness requirement,‛ requires the movant to show that
observance of the corporate form would sanction a fraud,
promote injustice, or condone an inequitable result. Norman, 596
P.2d at 1030. Whereas the fairness requirement is ‚addressed to
the conscience of the court,‛ Messick, 678 P.2d at 794, the
formalities requirement is determined by examining seven
factors (the Colman factors):
(1) undercapitalization of a one-[person]
corporation; (2) failure to observe corporate
formalities; (3) nonpayment of dividends; (4)
siphoning of corporate funds by the dominant
stockholder; (5) nonfunctioning of other officers or
directors; (6) absence of corporate records; [and]
(7) the use of the corporation as a facade for
operations of the dominant stockholder or
stockholders . . . .

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Colman v. Colman, 743 P.2d 782, 786 (Utah Ct. App. 1987)
(footnotes omitted). The Utah Supreme Court adopted the
Colman factors ‚as useful considerations to aid courts in
determining whether to pierce the corporate veil,‛ nevertheless
emphasizing that ‚they are merely helpful tools and not
required elements.‛ Lowry, 2012 UT 39, ¶ 18. Indeed, ‚it is
possible that evidence of even one of the Colman factors may be
sufficient to suggest both elements of a party’s alter ego theory
and therefore preclude summary judgment.‛ Id. ¶ 24.
Accordingly, ‚courts should evaluate the entire relationship
between a corporation and its officers in determining whether to
pierce the corporate veil.‛ Id. ¶ 35.5
¶15 Here, the district court properly concluded that the
Association failed to raise a factual issue as to whether Hamlet
Homes and Bear Hollow are alter egos. First, the Association did
not demonstrate a factual issue with respect to the first part of
the Norman test: the Association did not demonstrate ‚such unity
of interest and ownership that the separate personalities of the
[Bear Hollow] and [Hamlet Homes+ no longer exist.‛ See
Norman, 596 P.2d at 1030.
¶16 In support of its claim of such a unity of interest, the
Association asserts that Bear Hollow was undercapitalized.
‚Assessing whether a corporation is adequately capitalized is
delicate business.‛ Laborers’ Pension Fund v. Lay-Com, Inc., 580
F.3d 602, 612 (7th Cir. 2009). ‚It is coming to be recognized as the
policy of the law that shareholders should in good faith put at
the risk of the business unencumbered capital reasonably
5. The parties assume that the alter-ego doctrine applies to
limited liability companies as well as corporations. This appears
to be the law in Utah. See d’Elia v. Rice Dev., Inc., 2006 UT App
416, ¶¶ 30–34, 147 P.3d 515 (affirming the trial court’s refusal to
pierce the ‚corporate‛ veil of an LLC).

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adequate for its prospective liabilities.‛ James Constructors, 761
P.2d at 47 n.10 (citation and internal quotation marks omitted).
‚If the capital is illusory or trifling compared with the business
to be done and the risks of loss, this is a ground for denying the
separate entity privilege.‛ Id. (citation and internal quotation
marks omitted).
¶17 ‚To determine whether a corporation is adequately
capitalized, one must compare the amount of capital to the
amount of business to be conducted and obligations to be
fulfilled. Absent adequate capitalization, a corporation becomes
a mere liability shield, rather than an independent entity capable
of carrying on its own business.‛ Fiumetto v. Garrett Enters., Inc.,
749 N.E.2d 992, 1005 (Ill. App. Ct. 2001). Accordingly, some
courts have taken the view that where the party alleging alter
ego has ‚failed to establish what an adequate level of
capitalization would be,‛ its evidence on undercapitalization is
‚insufficient to create an issue for the jury.‛ Lowell Staats Mining
Co. v. Pioneer Uravan, Inc., 878 F.2d 1259, 1263 (10th Cir. 1989); see
also J-R Grain Co. v. FAC, Inc., 627 F.2d 129, 134–35 (8th Cir. 1980).
Other authorities state that ‚’[a] corporation that was adequately
capitalized when formed, but which subsequently suffers
financial reverses is not undercapitalized.’‛ Community Care
Ctrs., Inc. v. Hamilton, 774 N.E.2d 559, 565 (Ind. Ct. App. 2002)
(quoting 1 William Meade Fletcher, Fletcher Cyclopedia of the Law
of Private Corporations § 41.33 (1999)); see also Trustees of Nat.
Elevator Indus. Pension, Health Benefit & Educ. Funds v. Lutzyk, 332
F.3d 188, 196–97 (3d Cir. 2003).
¶18 Here, the undisputed evidence showed that Bear
Hollow’s twenty-six members contributed $1.245 million in
start-up capital and that the company was able to borrow (with
personal guarantees from at least some of the principals) another
$25 million for this project. The Association has not shown why
this level of capitalization falls so short of adequate
capitalization as to undermine Bear Hollow’s separate identity.

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¶19 The Association argues that Hamlet Homes and the other
investors ‚never provided evidence that the money left in *Bear
Hollow] was sufficient to meet all of its obligations, but rather
only stated that it was sufficient to meet its bank debt
requirements,‛ ‚never showed that they provided any reserves
for likely contingencies,‛ and ‚never provided any evidence that
they purchased insurance in a reasonable amount to cover
foreseeable and common warranty and construction defect
issues.‛
¶20 This argument misperceives the parties’ burdens on
summary judgment. Because the Association bears the burden of
proving its alter-ego theory at trial, it also bears the burden of
demonstrating the requisite unity of interest. See Jones & Trevor
Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 31, 284 P.3d 630. ‚Where, as
here, the nonmoving party will bear the burden of proving the
underlying legal theory at trial, the moving party may satisfy its
initial burden on summary judgment by showing that the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits,‛ show that
‚there is no genuine issue of material fact.‛ Id. ¶ 30 (citation and
internal quotation marks omitted). ‚Upon such a showing,
whether or not supported by additional affirmative factual
evidence, the burden then shifts to the nonmoving party, who
may not rest upon the mere allegations or denials of the
pleadings, but must set forth specific facts showing that there is
a genuine issue for trial.‛ Id. (emphasis, citation, and internal
quotation marks omitted) Where, as here, the moving party has
‚affirmatively provide*d+ factual evidence establishing that there
is no genuine issue of material fact,‛ Orvis v. Johnson, 2008 UT 2,
¶ 16, 177 P.3d 600, the nonmoving party must set forth specific
facts showing a genuine issue for trial, not merely rest on a
catalog of what the moving party has not shown.
¶21 As evidence of undercapitalization, the Association
alleges that, ‚due to its lack of funding, *Bear Hollow+ was
unable to pay for the construction defect warranty obligations on

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the Project and the resultant litigation of this case.‛ However, the
possibility that a plaintiff ‚may have difficulty enforcing a
judgment against [the corporate entity] alone is not the type of
injustice that warrants piercing the corporate veil.‛ Lowell, 878
F.2d at 1265; see also Seater Constr. Co. v. Deka Invs., LLC, 2013 IL
App (2d) 121140-U, ¶ 46 (holding that where the plaintiff
‚offered no testimony at trial regarding what would have been
an adequate level of capitalization,‛ to conclude that the
corporation was undercapitalized ‚would be speculating‛).
¶22 The Association also asserts that Hamlet Homes received
distributions of over $4.5 million that rendered Bear Hollow
insolvent and that Bear Hollow ‚made loans to other
companies‛ that ‚further contributed to *Bear Hollow’s]
insolvency.‛ But the Association points to no evidence of actual
insolvency. While a deponent did testify that the initial investors
did not get their equity back and that Bear Hollow might have
had difficulty repaying the $25 million in loans, the Association
offered no evidence that Bear Hollow ever defaulted on any
obligation. Nor has the Association established that a company’s
difficulty in meeting its financial obligations demonstrates that it
was undercapitalized. A company may have trouble meeting its
financial obligations for reasons other than undercapitalization,
as that term is used in this context.
¶23 In addition, the Association again points to the
undisputed evidence that ‚Hamlet Homes received distributions
of over $4.5 million‛ and alleges that this distribution
demonstrates ‚siphoning of corporate funds by the dominant
stockholder.‛ Colman v. Colman, 743 P.2d 782, 786 (Utah Ct. App.
1987). But the Association provides no evidence that these
distributions were inappropriate under the circumstances at the
time.
¶24 Next, the Association points out that Hamlet Homes’ logo
appeared on many Bear Hollow documents, including the
contracts of sale to the owners, the Homeowners Reference

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Manual, and the Warranty Manual. The Association does not tie
this fact to any Colman factor. Rather, the Association argues that
because Hamlet Homes’ logo appears on Bear Hollow’s
documents, a buyer may ‚believe that Hamlet Homes was the
only other party involved in the transaction.‛ But the
Association also admits that the sales contract between the
purchaser and Bear Hollow clearly identifies Bear Hollow as the
seller. And again, Hamlet Homes served as the general
contractor, principally constructing the homes, which provides a
legitimate reason for Hamlet Homes’ logo appearing on Bear
Hollow’s documents for the homes.
¶25 The Association also points out that Hamlet Homes
owned a majority interest in Bear Hollow and served as its
manager, that the two entities employed some of the same
individuals, that subcontractors were paid from Bear Hollow’s
account by Hamlet Homes’ accounting staff, that Bear Hollow
made loans to ‚other companies,‛ and that Bear Hollow paid
two rather small invoices for Hamlet Homes. But these facts fall
short of showing that the separate personalities of the two
entities ‚no longer exist,‛ Norman v. Murray First Thrift & Loan
Co., 596 P.2d 1028, 1030 (Utah 1979), especially in light of
undisputed evidence that Bear Hollow and Hamlet Homes were
distinct entities with separate organizational documents,
separate ownership, separate bank accounts, separate tax
returns, and separate books and records. On this record, we
agree with the district court that the Association ‚simply has not
demonstrated that there are any genuine issues of material fact
in dispute regarding these formalities.‛
¶26 Finally, the Association has also failed to demonstrate that
the district court erred with respect to the second part of the
Norman test: that observance of the corporate form would
sanction a fraud, promote injustice, or condone an inequitable
result. See id. On appeal, the Association’s argument on this
point appears in a single sentence: ‚Finally, the Association
demonstrated that it would be patently inequitable to allow

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[Bear Hollow] and Hamlet Homes to stand as separate entities,
thus satisfying the second prong of the alter ego test.‛ This
sentence ‚merely restates the *legal+ standard and provides no
analysis regarding why it would be the case.‛ See Menzies v.
State, 2014 UT 40, ¶ 152.
¶27 In the end, the Association has failed to show ‚such unity
of interest and ownership that the separate personalities of the
corporation and the individual no longer exist,‛ and that
‚observance of the corporate form would sanction a fraud,
promote injustice, or an inequitable result would follow.‛
Norman, 596 P.2d at 1030. Consequently, the district court
correctly determined that the Association did not demonstrate a
genuine issue of fact material to its claim that Hamlet Homes
and Bear Hollow are alter egos. Accordingly, the district court
properly dismissed the Association’s contract claims against
Hamlet Homes.
II. The District Court Did Not Abuse Its Discretion in Denying
the Association’s Request for Equitable Relief.
¶28 The Association contends that the district court abused its
discretion in denying its request for equitable relief. First, the
Association argues that the district court abused its discretion by
refusing to impose a constructive trust on Hamlet Homes’ and
Bear Hollow’s claims against subcontractors on the project.
Second, the Association argues that the district court abused its
discretion by denying a writ of replevin, or in the alternative, a
writ of attachment, seizing Hamlet Homes’ and Bear Hollow’s
claims against those subcontractors. ‚[A] trial court is accorded
considerable latitude and discretion in applying and formulating
an equitable remedy, and [it] will not be overturned unless it
*has+ abused its discretion.‛ Ockey v. Lehmer, 2008 UT 37, ¶ 42,
189 P.3d 51 (alterations in original) (citation and internal
quotation marks omitted).

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A. The District Court Did Not Abuse Its Discretion in
Refusing to Impose a Constructive Trust.
¶29 The Association first contends that the district court
‚abused its discretion in denying *the Association’s+ motion to
establish a constructive trust‛ that would ‚allow the Association
to press claims which belong to‛ Defendants against
subcontractors that worked on the Lodges. The Association
reasons that this court ‚should impose a constructive trust‛ over
both Bear Hollow’s and Hamlet Homes’ third-party claims,
because without a constructive trust Bear Hollow and Hamlet
Homes could shield the subcontractors from liability for
substandard work. The Association further argues that because
‚a court may impose a constructive trust where a fiduciary duty
exists,‛ it should do so here.
¶30 Defendants respond that the district court did not abuse
its discretion in denying the Association’s motion to establish a
constructive trust. Defendants argue that the Association’s
policy argument ‚is insufficient to show that the district court
abused its discretion.‛ Defendants further reason that the
Association does not meet the test for a constructive trust.
¶31 A constructive trust ‚arises by operation of law to prevent
unjust enrichment.‛ Ashton v. Ashton, 733 P.2d 147, 150 (Utah
1987). ‚Courts recognize a constructive trust as a matter of
equity‛ where the moving party meets three requirements.
Wilcox v. Anchor Wate Co., 2007 UT 39, ¶ 34, 164 P.3d 353. First,
the moving party must show a wrongful act. Id. To establish a
wrongful act, the moving party must show that ‚an entity must
have obviously received funds by mistake or participated in
active or egregious misconduct.‛ Id. ¶ 35. Second, the moving
party must show ‚unjust enrichment.‛ Id. ¶ 34. Unjust
enrichment occurs when the moving party has an ‚equitable
interest‛ in the property it seeks a constructive trust over. Parks
v. Zions First Nat’l Bank, 673 P.2d 590, 600 (Utah 1983). Third, the
moving party must show that specific property ‚can be traced to

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the wrongful behavior.‛ Wilcox, 2007 UT 39, ¶ 34. Finally,
constructive trusts ‚are usually imposed where injustice would
result if a party were able to keep money or property that
rightfully belonged to another.‛ Id.
¶32 Here, the Association has not demonstrated that the
district court abused its discretion in refusing to impose a
constructive trust. First, the Association has not shown ‚active or
egregious misconduct‛ that would constitute a ‚wrongful act.‛
See id. ¶¶ 34–35. The Association alleges that Bear Hollow
‚underfunded the Association‛ and that Bear Hollow ‚knew of
defects within the project and failed to disclose those defects to
the Association.‛ But the Association has provided no record
support for these allegations. Furthermore, the district court’s
ruling indicates that Bear Hollow and Hamlet Homes complied
with relevant laws. For example, the district court noted that
Bear Hollow and Hamlet Homes ‚both have insurance as
required by Utah law,‛ that Hamlet Homes ‚was licensed as
required by Utah law,‛ and that Bear Hollow ‚turned over
control of the common areas to the Association in accordance
with the Declaration.‛ Accordingly, the district court acted
within its discretion in concluding that the Defendants did not
obviously receive funds by mistake or participate in egregious
misconduct.
¶33 Second, the Association has not shown unjust enrichment.
The Association argues that the Defendants ‚were unjustly
enriched‛ because they retained the ‚benefit of sales proceeds
after they failed to adequately fund the Association‛ and they
‚knew of defects within the Project and failed to disclose those
defects to the Association.‛ But these arguments rest on the
alleged wrongful acts that the Association has failed to support.
Further, the Association has not established an ‚equitable
interest‛ in Bear Hollow’s and Hamlet Homes’ third-party
claims against the subcontractors. See Parks, 673 P.2d at 600. The
district court ruled that the Association, by asserting legal claims
against Bear Hollow, did not gain an equitable interest in Bear

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Hollow’s potential claims against third parties. On appeal, the
Association does not attempt to identify the flaw in the district
court’s rationale or otherwise demonstrate how this ruling
constituted an abuse of discretion. Accordingly, the Association
has not carried its appellate burden of demonstrating error here.
See Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App 145,
¶ 37, 335 P.3d 885.
¶34 The Association further argues that the district court
abused its discretion because ‚justice—and the . . . requirement
that an association have privity of contract with a party against
whom it brings a claim for defective construction—necessitate a
mechanism by which an association can benefit from [a
developer’s] claims against subcontractors in cases where [the
developer] or builder‛ cannot, or will not, sue subcontractors.
Although this argument has some appeal as a matter of policy,
courts will impose a constructive trust for unjust enrichment
only where ‚there has been (1) a wrongful act, (2) unjust
enrichment, and (3) specific property that can be traced to the
wrongful behavior.‛ Wilcox, 2007 UT 39, ¶ 34. And as noted
above, the Association failed to establish these elements.
Consequently, a policy argument, however compelling, falls
short of demonstrating that the district court abused its
discretion.
¶35 Finally, the Association argues that because ‚a court may
impose a constructive trust where a fiduciary duty exists,‛ the
district court should have done so here. This argument fails at
the outset: if a court may impose a constructive trust in a certain
situation, it follows that a court also may not. Arguing that the
district court may have granted a constructive trust here does not
meet the Association’s burden of showing that the district court
abused its discretion in refusing to do so.

The Lodges v. Bear Hollow Restoration
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B. The District Court Did Not Abuse Its Discretion in
Refusing to Grant a Writ of Replevin and a Writ of
Attachment.
¶36 The Association next contends that the district court erred
in denying it a writ of replevin and a writ of attachment.
Defendants respond that the Association ‚fails to provide the
legal support and analysis necessary‛ to sustain these
arguments.
¶37 A writ of replevin and a writ of attachment both qualify
as prejudgment writs. See Utah R. Civ. P. 64A. And in addition
to the requirements necessary for the specific writ, a party
moving for any kind of prejudgment writ must meet the
requirements of rule 64A of the Utah Rules of Civil Procedure.
Id.6 In addition to the requirements under rule 64A, the movant
6. Under rule 64A(c) the movant must show ‚all of the
requirements listed in subsections (c)(1) through (c)(3) and at
least one of the requirements listed in subsections (c)(4) through
(c)(10):
(c)(1) that the property is not earnings and not
exempt from execution; and
(c)(2) that the writ is not sought to hinder, delay or
defraud a creditor of the defendant; and
(c)(3) a substantial likelihood that the plaintiff will
prevail on the merits of the underlying claim; and
(c)(4) that the defendant is avoiding service of
process; or
(c)(5) that the defendant has assigned, disposed of
or concealed, or is about to assign, dispose of or
conceal, the property with intent to defraud
creditors; or
(c)(6) that the defendant has left or is about to leave
the state with intent to defraud creditors; or
(continued...)

The Lodges v. Bear Hollow Restoration
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must meet the requirements for the specific writ requested. For a
writ of replevin, the movant must additionally show ‚that the
plaintiff is entitled to possession‛ and ‚that the defendant
wrongfully detains the property.‛ Id. R. 64B. And for a writ of
attachment, the movant must additionally show ‚that the
defendant is indebted to the plaintiff‛ and either that ‚the action
is upon a contract or is against a defendant who is not a resident
of this state or is against a foreign corporation not qualified to do
business in this state,‛ or that ‚the writ is authorized by statute‛
and ‚that payment of the claim has not been secured by a lien
upon property in this state.‛ Id. R. 64C.
¶38 An adequately briefed argument ‚contain*s+ 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.‛ Utah R. App. P. 24(a)(9).
‚[I]mplicitly, rule 24(a)(9) requires not just bald citation to
authority but development of that authority and reasoned
analysis based on that authority.‛ State v. Green, 2004 UT 76,
¶ 13, 99 P.3d 820 (citation and internal quotation marks omitted).
‚An inadequately briefed claim is by definition insufficient to
discharge an appellant’s burden to demonstrate trial court
error.‛ Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App
145, ¶ 37, 335 P.3d 885.
(c)(7) that the defendant has fraudulently incurred
the obligation that is the subject of the action; or
(c)(8) that the property will materially decline in
value; or
(c)(9) that the plaintiff has an ownership or special
interest in the property; or
(c)(10) probable cause of losing the remedy unless
the court issues the writ.
Utah R. Civ. P. 64A(c).

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20130559-CA, 20130718-CA 18 2015 UT App 6
¶39 Here, the Association fails to show that the district court
abused its discretion in refusing to grant a writ of replevin and a
writ of attachment. First, the district court refused to grant the
Association a writ of replevin because the Association failed to
show that it was ‚entitled to possession‛ of the third-party
claims as required by rule 64B of the Utah Rules of Civil
Procedure. On appeal, the Association argues that Utah law
requiring ‚subcontractor liability insurance, and recent Utah
caselaw requiring owners to sue subcontractors by way of pass-
through claims against the seller, mean that the Association is
entitled to [Defendants’+ claims.‛ For this argument the
Association cites the entire opinion in Davencourt at Pilgrims
Landing Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC,
2009 UT 65, 221 P.3d 234, and a statute requiring contractors to
maintain licenses, Utah Code Ann. § 58-55-301 (LexisNexis 2005).
But the Association does not develop this authority or provide
‚reasoned analysis,‛ Green, 2004 UT 76, ¶ 13, demonstrating why
under these authorities the district court lacked discretion to
deny the writ. Thus, the Association has failed to meet its burden
of persuasion on appeal. See Waykar, 2014 UT App 145, ¶ 37.
¶40 Second, the Association fails to show that the district
court abused its discretion in refusing to grant a writ of
attachment. The district court refused to grant the Association a
writ of attachment principally because the Association did not
demonstrate that Defendants are ‚indebted to‛ the Association.
See Utah R. Civ. P. 64C(b)(1). The district court reasoned that if
‚indebted to‛ in rule 64C means nothing more than the plaintiff
has a claim for relief, it would add nothing to the requirement in
rule 64A(c)(3) that the claimant show ‚a substantial likelihood
that the plaintiff will prevail on the merits of the underlying
claim.‛ See id. R. 64A(c)(3). The court further suggested that the
‚indebted to‛ requirement implied a liquidated amount due.
¶41 On appeal the Association does not challenge this
reasoning. It merely asserts that Defendants ‚are indebted to the
Association for, among other things, property damage and

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breach of fiduciary duties.‛ It refers generally to ‚Utah’s
insurance laws‛ and cites Davencourt. But Davencourt never
mentions a writ of attachment or any other writ. See 2009 UT 65.
So again, we conclude that the Association has not presented the
level of ‚reasoned analysis‛ required to demonstrate that the
district court abused its discretion in denying the writ. See Green,
2004 UT 76, ¶ 13 (citation and internal quotation marks omitted).
CONCLUSION
¶42 For the foregoing reasons, the orders of the district court
are affirmed.