2017 UT App 191

THE UTAH COURT OF APPEALS

GOLDENWEST FEDERAL CREDIT UNION,

Appellant,

v.

KATHLEEN F. KENWORTHY,

Appellee.

Opinion1

No. 20150397-CA

Filed October 13, 2017

Third District Court, Salt Lake Department

The Honorable Elizabeth A. Hruby-Mills

No. 149905786

Dana T. Farmer, Attorney for Appellant

Peter A. Klc, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES

STEPHEN L. ROTH and JILL M. POHLMAN concurred.

2

 

1. Our original memorandum decision in this matter was issued 

on January 12, 2017. See Goldenwest Federal Credit Union v. 

Kenworthy, 2017 UT App 9, 391 P.3d 388. We thereafter granted 

Kenworthy’s petition for rehearing. While much of the 

substantive analysis of our original decision remains, other

analysis is altered, and the result is changed from a reversal to 

an affirmance.

2. Senior Judge Stephen L. Roth began his work on this case as a 

member of the Utah Court of Appeals. He retired from the court, 

but thereafter became a Senior Judge. He completed his work on 

this case sitting by special assignment as authorized by law. See 

generally Utah R. Jud. Admin. 11-201(6).
Goldenwest Federal Credit Union v. Kenworthy

20150397-CA 2 2017 UT App 191

ORME, Judge:

¶1 Goldenwest Federal Credit Union appeals the district 

court’s entry of summary judgment in favor of Kathleen F. 

Kenworthy. We affirm.

¶2 “In reviewing a district court’s grant of summary 

judgment, we view the facts and all reasonable inferences drawn 

therefrom in the light most favorable to the nonmoving party 

and recite the facts accordingly.” Ockey v. Club Jam, 2014 UT App 

126, ¶ 2 n.2, 328 P.3d 880 (citation and internal quotation marks 

omitted). “A summary judgment movant must show both that 

there is no material issue of fact and that the movant is entitled 

to judgment as a matter of law.” Orvis v. Johnson, 2008 UT 2, 

¶ 10, 177 P.3d 600 (emphasis in original).

¶3 On April 24, 2006, Kenworthy entered into a loan 

agreement with Goldenwest to fund the purchase of a vehicle. 

The loan’s maturity date was April 15, 2012. Kenworthy initially 

agreed to repay the loan in monthly installments of $487.21. In

May 2008, after missing the payment due in February and all 

payments due thereafter, Kenworthy called Goldenwest, 

discussed her financial difficulties, and indicated that she would 

not be able to make the scheduled payments. On May 9, 2008, 

Goldenwest agreed to reduce Kenworthy’s monthly payments to 

$200 per month. No other terms of the loan agreement were 

modified. Kenworthy made one $200 payment but made no 

payments thereafter.

¶4 Almost six years later, on February 5, 2014, Goldenwest 

sued Kenworthy for the remaining balance due on the loan.3

Kenworthy moved for summary judgment, claiming that 

 

3. Goldenwest sued Kenworthy in 2011, but the district court 

dismissed that case, without prejudice, for lack of prosecution. 

The complaint initiating that action was timely under any 

scenario.
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20150397-CA 3 2017 UT App 191

Goldenwest’s claims were “barred by the statute of limitations.” 

The district court granted Kenworthy’s motion, concluding that 

“[t]he applicable statute of limitations had run prior to 

[Goldenwest] initiating the present action.” It then granted 

Kenworthy’s request for attorney fees, to which Goldenwest had 

failed to respond. Goldenwest appeals.

¶5 Goldenwest argues that the district court erred in 

granting Kenworthy’s summary judgment motion because “[t]he 

statute of limitations did not run before this action was 

commenced.” “An appellate court reviews a trial court’s legal 

conclusions and ultimate grant or denial of summary judgment

for correctness[.]” Orvis, 2008 UT 2, ¶ 6 (citation and internal 

quotation marks omitted).

¶6 According to Goldenwest, its action was timely because it 

was brought within six years of when the oral agreement to 

reduce the monthly payment to $200 was reached. “Subject to 

one exception inapplicable here,” a six-year statute of limitations 

“applies to ‘any contract, obligation, or liability founded upon an 

instrument in writing.’” Griffin v. Cutler, 2014 UT App 251, ¶ 18, 

339 P.3d 100 (emphasis added) (quoting Utah Code Ann. § 78B2-309(2) (LexisNexis 2012)). But an action on an oral agreement is 

subject to a four-year statute of limitations. See Utah Code Ann.

§ 78B-2-307(1)(a) (LexisNexis 2012); Griffin, 2014 UT App 251, 

¶ 15. And “where a specific material term of [a] contract in 

writing is subsequently changed orally, the statute of limitations 

applicable to oral contracts applies.” Strand v. Union Pac. R.R., 

312 P.2d 561, 563 (Utah 1957) (emphasis added).

¶7 The case comes to us in this posture. If the six-year statute 

applicable to written contracts applies, Goldenwest’s complaint 

was timely.4 If Goldenwest’s oral agreement to reduce 

 

4. The district court entered summary judgment against 

Goldenwest because it determined that the complaint was 

untimely under either the four-year or the six-year statute of 

(continued...)
Goldenwest Federal Credit Union v. Kenworthy

20150397-CA 4 2017 UT App 191

Kenworthy’s monthly payments to $200 changed a material term 

of the written contract, then, under Strand, the four-year statute 

applicable to oral contracts applies, and the complaint was not 

timely.

 

(...continued)

limitations. Its decision was the product of two key errors. First, 

it assumed that, in order to comply with either statute, 

Goldenwest was required to serve its complaint before the 

relevant statutory period had run. This is not the case. Rather, 

“[o]nce a statute has begun to run, a plaintiff must file his or her 

claim before the limitations period expires[.]” Russell Packard 

Dev., Inc. v. Carson, 2005 UT 14, ¶ 20, 108 P.3d 741 (emphasis 

added). To be sure, Goldenwest served its complaint on 

Kenworthy on May 13, 2014, which is six years and four days 

after May 9, 2008, the date from which the court believed the 

statutes of limitations began to run. But Goldenwest filed its 

complaint on February 5, 2014, which means that its action 

would have been timely under the six-year statute.

In addition, the district court erred by applying the 

statutes of limitations from the date the loan modification was 

made. The proper date from which to commence the running of 

the applicable statute was when the contract was breached—that 

is, the date of the first missed payment, see Upland Indus. Corp. v. 

Pacific Gamble Robinson Co., 684 P.2d 638, 643 (Utah 1984) 

(emphasis in original) (“[A] cause of action on a contract accrues, 

thus causing the statute of limitations to commence, only upon 

breach of the contract.”), or upon the maturity date of the loan, if 

no action has been taken to accelerate payment prior to that date, 

see Goldenwest Federal Credit Union v. Kenworthy, 2017 UT App 9, 

¶ 9, 391 P.3d 388. Because Goldenwest filed its complaint on 

February 5, 2014, its action would have been timely under the 

six-year statute whether it ran from the date of the first missed 

payment (February 15, 2008) or the maturity date (April 15, 

2012).
Goldenwest Federal Credit Union v. Kenworthy

20150397-CA 5 2017 UT App 191

¶8 But on appeal, Goldenwest does not contend that the oral 

modification of the amount of the monthly payment was 

immaterial. Rather, Goldenwest argues that Strand is 

“inapplicable” because the terms of the agreement between 

Goldenwest and Kenworthy “can be proven without resort to 

parol evidence” and because the agreement and subsequent oral 

modification “are within the statute of frauds.” With respect to 

the parol evidence argument, Goldenwest does not explain what 

evidence in Strand consisted of parol evidence, nor does it 

explain how consideration of parol evidence would render 

Strand “inapplicable” to the current case.

¶9 With respect to the statute of frauds argument, 

Goldenwest seemingly treats its argument as self-evident. We 

assume that Goldenwest believes the agreement is governed by 

the statute of frauds because the agreement between Goldenwest 

and Kenworthy is one that cannot be performed within one year. 

See Pasquin v. Pasquin, 1999 UT App 245, ¶ 18, 988 P.2d 1. If

Goldenwest is claiming that oral modifications to written 

agreements governed by the statute of frauds cannot fall within 

the four-year statute of limitations, it has not cited authority to 

that effect. Goldenwest instead cites the venerable case of Texas 

Western Railway Co. v. Gentry, 8 S.W. 98, 101 (Tex. 1888), but the 

court in Gentry concluded that a written resolution was governed 

by the same statute of limitations applicable to written contracts. 

Id. Because the agreement between Goldenwest and Kenworthy 

involved an oral modification to a written contract, Gentry has 

little relevance.5

 

5. Goldenwest also suggests that “any modification” to the 

agreement was required to “meet the requirements of the statute 

of frauds.” See Holt v. Katsanevas, 854 P.2d 575, 579 (Utah Ct. 

App. 1993) (stating that “if an original agreement was required 

to comply with the statute of frauds, any material modification 

of that agreement must also conform to the statute of frauds”). 

We note, however, that this contention would preclude the oral 

(continued...)
Goldenwest Federal Credit Union v. Kenworthy

20150397-CA 6 2017 UT App 191

¶10 Ultimately, Goldenwest does not adequately develop its 

arguments that Strand is inapplicable. See State v. Thomas, 961 

P.2d 299, 305 (Utah 1998) (stating that an adequately briefed 

argument requires not only “bald citation to authority but 

development of that authority and reasoned analysis based on 

that authority”). Given the complex nature of these doctrines, 

Goldenwest cannot merely mention parol evidence and the 

statute of frauds and assume that this court will ascertain the 

arguments it is trying to make. Therefore, as a result of its 

cursory briefing on the matter, Goldenwest has not persuaded us

that Strand—and the four-year statute of limitations it 

implicates—is “inapplicable.”

¶11 Nevertheless, in our previous decision, we expressed 

doubts regarding the applicability of Strand. See Goldenwest

Federal Credit Union v. Kenworthy, 2017 UT App 9, ¶ 7, 391 P.3d 

388. Specifically, we were unsure whether the parties’ oral

modification constituted a “material change.” Id. Goldenwest 

and Kenworthy orally agreed to change a single term of the

written loan agreement, namely the amount of the monthly 

installment payments. The total amount due, the rate of interest, 

the maturity date, and the collateral for the loan all remained the 

same. Although we might have been receptive to the argument

that a mere reduction in the monthly payment as an 

accommodation to its borrower was not a material change that

would deprive Goldenwest of the benefit of the longer statute of 

limitations, we need not resolve this question because 

Goldenwest has not raised it.

¶12 We also pointed out in our prior decision that when an 

“‘installment contract calls for the entire balance to become due 

on some specific future date, and the obligee has done nothing to 

 

(...continued)

modification that Goldenwest readily acknowledges it made 

with Kenworthy.
Goldenwest Federal Credit Union v. Kenworthy

20150397-CA 7 2017 UT App 191

legally accelerate the future payments, the statute of limitations 

begins to run only after the obligor defaults on the final due 

date.’”6 Id. ¶ 8 (quoting Anderson v. Davis, 2008 UT App 86U, 

para. 2). We premised our initial decision on the fact that 

Kenworthy did not demonstrate that Goldenwest accelerated 

Kenworthy’s repayment obligation. If Goldenwest did not

accelerate, then the statute of limitations began to run on April 

15, 2012, the maturity date of the loan. See id. ¶ 9. Because 

Kenworthy did not establish that Goldenwest accelerated the 

debt, we determined that the unpaid balance became due at 

maturity. See id. Under this analysis, we could not conclude as a 

matter of law that Goldenwest’s suit was time-barred given that 

it filed its complaint within four years of the loan’s maturity 

date. On that basis, we held that the district court erred in 

granting summary judgment to Kenworthy regardless of

whether the six- or four-year statute applied. See id.

¶13 After we issued our decision, Kenworthy filed a petition 

for rehearing, contending that we had based our decision on an 

argument that was not preserved below and that was not raised 

by Goldenwest on appeal, namely the argument that Anderson

provided the proper date from which to commence the statute of 

limitations. Concerned that there might have been error in our 

decision, we asked for a response from Goldenwest, wherein it

conceded that it had not raised this sound argument below or on 

 

6. Kenworthy asserts on appeal that Goldenwest “exercised its 

option to accelerate the alleged installments” when it collected 

insurance proceeds on the vehicle after she crashed it. But 

Kenworthy did not advance this argument when she moved for 

summary judgment, nor did she provide a supporting affidavit 

or otherwise establish this contention. Based on the record before 

us and the authorities presented, we are not persuaded that

separately insuring a loan agreement and collecting proceeds 

thereunder automatically triggers acceleration, which is a matter 

expressly governed by the loan agreement.
Goldenwest Federal Credit Union v. Kenworthy

20150397-CA 8 2017 UT App 191

appeal. Nonetheless, Goldenwest argued that this court could 

base its decision on any applicable legal theory apparent from 

the record.

¶14 While we are quite familiar with the principle on which 

Goldenwest attempts to rely, this court and the Utah Supreme 

Court have employed it only to affirm decisions, not to reverse

them. See, e.g., State v. Griffin, 2016 UT 33, ¶ 34, 384 P.3d 186; 

Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 7, 321 P.3d 1021; Bailey 

v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158; Dipoma v. McPhie, 2001

UT 61, ¶ 18, 29 P.3d 1225; Friedman v. Salt Lake County, 2013 UT 

App 137, ¶ 5 n.3, 305 P.3d 162. But see, e.g., Acton v. Deliran, 737 

P.2d 996, 998–99 (Utah 1987) (recognizing a narrow exception in 

which Utah appellate courts will set aside judgments and 

remand for the entry of adequate findings of fact, even absent 

pertinent argument from either side, when a trial court failed to 

enter adequate findings, precluding meaningful review on 

appeal). Aside from cases that involve insufficient findings of 

fact or provide a basis for affirmance, we have stated that we 

will not consider arguments that were not preserved for appeal. 

See, e.g., State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346; State v. 

Mills, 2012 UT App 367, ¶ 11, 293 P.3d 1129; State v. Noor, 2012 

UT App 187, ¶ 5, 283 P.3d 543. Because Goldenwest did not 

preserve, brief, or otherwise argue that the statute of limitations 

begins to run at the maturity date of the loan, we erred in 

reversing the grant of summary judgment on that basis. See State 

v. Robison, 2006 UT 65, ¶ 41, 147 P.3d 448.

¶15 Consequently, we are in the admittedly awkward position 

of affirming a grant of summary judgment to Kenworthy, 

despite the fact that she was not, in absolute terms, entitled to 

judgment as a matter of law. The case before us illustrates the 

infrequent—but nonetheless observable—tension between our 

responsibilities with respect to summary judgment and the 

preservation rule, which is one of the mainstays of appellate 

review. On the one hand, we will affirm a grant of summary 

judgment only if a party is entitled to judgment as a matter of 
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20150397-CA 9 2017 UT App 191

law. See supra ¶ 2. On the other hand, we require parties to 

preserve their arguments below and adequately brief them on 

appeal, and we typically refuse to consider them unless both 

requirements have been met. See, e.g., Holgate, 2000 UT 74, ¶ 11; 

State v. Thomas, 961 P.2d 299, 304–05 (Utah 1998).

¶16 When these principles come into conflict, preservation

and adequate briefing must prevail over legal correctness. We 

impose certain burdens on appellants, including, inter alia, 

preserving their issues for appeal, adequately briefing their 

arguments on appeal, and demonstrating prejudice as a 

prerequisite to obtaining relief on appeal. And while these 

impositions aid in the establishment of a functional appellate 

system, they also reflect a strong institutional preference for 

affirmance and a strong institutional disinclination toward 

reversal. We simply cannot, based on the arguments advanced 

by Goldenwest, reverse the district court’s grant of summary 

judgment in favor of Kenworthy. Although the district court

erroneously applied the statute of limitations, Goldenwest did 

not raise any argument that demonstrated error on the district 

court’s part. Goldenwest instead relied on arguments that do not

establish any error whatsoever, and our institutional constraints 

prevent us from reversing on the basis of a winning argument 

that Goldenwest did not make.

¶17 Because we now affirm the district court’s grant of

summary judgment, we affirm its award of attorney fees and 

costs to Kenworthy as the prevailing party. We also award 

Kenworthy her attorney fees and costs incurred on appeal, see

Management Servs. Corp. v. Development Assocs., 617 P.2d 406, 409 

(Utah 1980), and remand for the limited purpose of 

supplementing her attorney fee award with her fees reasonably 

incurred on appeal.

¶18 Affirmed.