2016 UT App 89

THE UTAH COURT OF APPEALS

2010-1 RADC/CADC VENTURE, LLC,

Appellee,

v.

DOS LAGOS, LLC; MELLON VALLEY, LLC; ROLAND NEIL FAMILY 

LIMITED PARTNERSHIP; ROLAND N. WALKER; AND SALLY WALKER,

Appellants.

Opinion

No. 20140675-CA

Filed April 28, 2016

Second District Court, Farmington Department

The Honorable John R. Morris

No. 110700200

Clifford V. Dunn, Michael C. Dunn, Evan A. 

Schmutz, and Jordan K. Cameron, Attorneys

for Appellants

Richard C. Terry and Jeremiah R. Taylor, Attorneys

for Appellee

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

MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.

1

ORME, Judge:

¶1 This appeal comes to us from the district court’s grant of 

summary judgment in favor of 2010-1 RADC/CADC Venture, 

 

1. Judge James Z. Davis heard the arguments in this case but did 

not have the opportunity to vote on this Opinion prior to his 

death. See State v. Goins, 2016 UT App 57, n.1. Judge Kate A. 

Toomey substituted for Judge Davis and, having reviewed the 

briefs and listened to the oral arguments, participated fully in 

the court’s resolution of this appeal.
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LLC (RADC). Appellants challenge the summary judgment on a 

number of grounds. We affirm. 

BACKGROUND

¶2 The pertinent facts of this case are undisputed. In 2007, 

Appellants Dos Lagos, LLC, and Mellon Valley, LLC,

(Borrowers) received a $2.5 million loan from America West 

Bank. The loan was personally guaranteed by Appellants Roland 

N. Walker, Sally Walker, and the Roland Neil Family Limited 

Partnership (the Guarantors). Later that year, America West 

entered into a loan participation agreement with Utah First 

Federal Credit Union, whereby Utah First obtained a fifty-two 

percent interest in the loan and America West retained a fortyeight percent interest. 

¶3 One year later, on December 5, 2008, Borrowers executed 

a Change in Terms Agreement, which, among other things, 

extended their promissory note (the Note) with America West. 

The Note was secured by real property owned by Mellon Valley

(the Property).

¶4 The FDIC ultimately closed America West and seized

America West’s interest in the Note, which it thereafter sold to 

RADC at auction. Borrowers defaulted on the Note and received 

multiple letters notifying them of the default and requesting 

payment. In December 2010, RADC purchased the Property—

which was valued at $1,510,000—at a trustee’s sale for 

$1,060,000. At the time of the sale, the total amount owing on the 

Note was $3,426,701.91, leaving a deficiency of $1,916,701.91 

between the amount owed and the value of the Property. Utah 

First, whose interest in the Note had not been affected by 

America West’s demise and the transfer of its interest, filed an 

action seeking a deficiency judgment the next month. 

¶5 In its original Complaint, Utah First was the only named 

plaintiff and it erroneously indicated that the total amount owed 
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on the Note was just $1,819,774.97.2 Dos Lagos filed a motion to 

dismiss, in part because RADC was not included as a party. The 

parties stipulated to allow amendment, and the First Amended 

Complaint added RADC as a plaintiff. It did not, however, 

correct the amount owed. Utah First and RADC sought leave to 

amend again and filed the Second Amended Complaint in 

September 2012, alleging the amount due as the full 

$3,426,701.91. 

¶6 RADC and Utah First filed motions for summary 

judgment, seeking a deficiency of $1,916,701.91. Borrowers

subsequently filed a motion to dismiss and a motion for 

summary judgment. The district court denied Utah First’s 

motion for summary judgment, determining that there were 

issues of fact surrounding the validity of the loan participation 

agreement that had been executed by Utah First and America 

West. But it granted RADC’s motion for summary judgment 

against Borrowers, awarding RADC a deficiency judgment, 

calculated as the difference between the full amount due under

the Note and the value of the property at the time of its sale to 

RADC, see Utah Code Ann. § 57-1-32 (LexisNexis 2010), subject

to any subsequently determined interest of Utah First. The 

district court denied Borrowers’ motion to dismiss and motion 

for summary judgment. 

¶7 Shortly thereafter, RADC moved for summary judgment 

against the Guarantors on the ground that judgment had been 

awarded against Borrowers on the obligation guaranteed by the 

Guarantors. The district court granted the motion, and 

 

2. RADC suggests that this amount represented Utah First’s 

fifty-two percent interest in the total amount owed on the Note. 

But by our math, fifty-two percent of $3,426,701.91 is 

$1,781,884.99.
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Borrowers and the Guarantors (collectively, Appellants) now 

appeal.

3

ISSUES AND STANDARD OF REVIEW

¶8 Appellants first argue that RADC’s claim did not relate 

back to the original Complaint and was therefore barred by the 

statute of limitations. They next contend that the district court 

erred by awarding RADC the full amount due under the Note

rather than just its pro rata share. Finally, Appellants claim that 

it was error for the district court to grant summary judgment 

against the Guarantors. All of the issues raised involve the 

district court’s interpretation and application of the law in 

granting summary judgment. ‚*W]e review the *district+ court’s 

legal conclusions for correctness, affording those legal 

conclusions no deference.‛ Ault v. Holden, 2002 UT 33, ¶ 15, 44 

P.3d 781.

ANALYSIS

I. RADC’s Claim Was Not Time-Barred.

¶9 The resolution of Appellant’s primary argument on 

appeal depends on the operation of the applicable statute of 

limitations. Section 57-1-32 of the Utah Code requires that ‚an 

action . . . to recover the balance due upon [an] obligation for 

which *a+ trust deed was given as security‛ must be commenced 

‚within three months after any sale of property under a trust 

deed.‛ See Utah Code Ann. § 57-1-32 (LexisNexis 2010). 

Appellants argue that because RADC did not commence an 

action against Borrowers within three months of the trustee’s 

 

3. Utah First moved to voluntarily dismiss its claims without 

prejudice, which the district court allowed over Borrowers’ 

objection. Utah First is therefore not a party to this appeal. 
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sale, its claim was barred before it joined the action via the First 

Amended Complaint.4

¶10 There is no dispute that RADC was not identified as a 

plaintiff in any complaint filed against Borrowers within three 

months of the trustee’s sale. There is also no dispute that Utah 

First’s original Complaint was filed within that three-month 

window. What we must determine, then, is whether the original 

Complaint operates to satisfy the three-month requirement for

RADC as well as for Utah First.

¶11 Appellants contend that the First Amended Complaint 

impermissibly added a party to the proceeding in violation of

the applicable statute of limitations. Rule 15(c) of the Utah Rules 

of Civil Procedure allows an amended complaint to ‚relate*+ 

back to the date of the original pleading‛ if ‚the claim 

. . . asserted in the amended pleading arose out of the conduct, 

transaction, or occurrence set forth or attempted to be set forth in 

the original pleading.‛ Utah R. Civ. P. 15(c). Relying on the Utah 

Supreme Court’s opinion in Doxey-Layton Co. v. Clark, 548 P.2d 

902 (Utah 1976), Appellants argue that this rule generally does 

‚not apply to an amendment which substitutes or adds new 

parties . . . whether plaintiff or defendant.‛ See id. at 906.

 

4. Appellants also take issue with the district court’s alternate 

conclusion that ‚even if the claims of RADC do not relate back to 

the original filing of the complaint, because the purposes of Utah 

Code Ann. § 57-1-32 have been satisfied, RADC’s failure to 

comply with the statute did not constitute an absolute bar to the 

suit.‛ Because we conclude that RADC’s claim does relate back to 

the filing of the original Complaint, we need not consider the 

propriety of this alternate ruling. See generally Weber v. Snyderville 

West, 800 P.2d 316, 320 (Utah Ct. App. 1990) (‚We may affirm the 

trial court on any proper ground.‛).
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¶12 Of course, there are exceptions to this general rule. The 

principal exception is articulated in Sulzen v. Williams, 1999 UT 

App 76, 977 P.2d 497, where this court stated:

[W]hile generally Rule 15(c) . . . will not apply to an 

amendment which substitutes or adds new parties 

for those brought before the court by the original 

pleadings, [the Utah Supreme Court has] made an 

exception to the general rule. The exception 

operates where there is a relation back, as to both 

plaintiff and defendant, when new and old parties 

have an identity of interest; so it can be assumed or 

proved the relation back is not prejudicial. 

Id. ¶ 14 (alterations and omission in original) (citation and 

internal quotation marks omitted). ‚The rationale of Rule 15(c) is 

that a party who has been notified of litigation concerning a 

particular occurrence has been given all the notice that statutes 

of limitations were intended to provide.‛ Baldwin County

Welcome Ctr. v. Brown, 466 U.S. 147, 150 n.3 (1984) (considering 

the comparable federal rule). ‚The same general standard of 

notice applies regardless of whether a litigant seeks to add 

defendants, plaintiffs, or claims.‛ McClelland v. Deluxe Fin. Servs., 

Inc., 431 F. App’x 718, 723–24 (10th Cir. 2011) (considering the 

comparable federal rule). Here, the First Amended Complaint 

did nothing more than add RADC, a successor coholder of the 

very note Utah First had sued upon, as a plaintiff. It did not 

assert new claims. It therefore follows that when Utah First filed 

the original Complaint, seeking the deficiency between the 

amount owed on the Note and the value of the Property 

purchased by RADC at the trustee’s sale, Borrowers received 

sufficient notice to satisfy the rationale of rule 15(c).

¶13 The sufficiency of the notice to Borrowers is further 

demonstrated by the identity of interest between Utah First and 

RADC. The cases cited by Appellants in relation to this point are 

unhelpful, as they address a framework that is inapplicable to 
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the facts of this case. For instance, Appellants suggest that 

because ‚RADC and Utah First are two separate and distinct 

entities,‛ there can be no relation back. We acknowledge that it is 

often necessary to look at the connection between the business 

operations of the original and added parties, see Russell v. 

Standard Corp., 898 P.2d 263, 265 (Utah 1995), but that factor 

alone is insufficient to resolve an identity-of-interest question. 

We cannot ignore the fact that although there is no direct 

business or ongoing contractual relationship between Utah First 

and RADC, this case centers around one debt, one promissory 

note, and one trustee’s sale. In very simple terms, there is but one 

‚conduct, transaction, or occurrence‛ on which all claims are 

based. See Utah R. Civ. P. 15(c). There is perhaps no closer 

identity of interest than that shared by two parties who are joint 

holders of the same note. See generally Penrose v. Ross, 2003 UT 

App 157, ¶ 16, 71 P.3d 631 (‚[A]n identity of interest requires 

parties to have the ‘same’ interest.‛).

¶14 We also point out that as a policy matter, cases such as 

this one should be decided in a single action. Cf. Utah Code Ann.

§ 78B-6-901(1) (LexisNexis 2012) (‚There is only one action for 

the recovery of any debt, or the enforcement of any right, 

secured solely by mortgage upon real estate and that action shall 

be in accordance with the provisions of this chapter.‛). So long 

as the rights of the parties are protected and the rules of law are 

followed—which they were here by the notice given to 

Borrowers via the initial Complaint and by the identity of 

interest between RADC and Utah First—our judicial system 

values judicial economy. See Okelberry v. West Daniels Land Ass’n, 

2005 UT App 327, ¶ 11, 120 P.3d 34. By allowing the 

amendments to the original Complaint, the district court 

furthered this objective. 

II. It Was Not Error for the District Court to Award RADC the 

Full Deficiency Amount.

¶15 Appellants next challenge two aspects of the district 

court’s order concerning the amount of the judgment. First, they 
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argue that the district court should not have awarded judgment 

in the amount sought by the Second Amended Complaint—the 

full deficiency amount—but should instead have limited any 

judgment to a sum calculated with reference to the amount 

claimed to be due in the original Complaint. Second, Appellants 

argue that it was error to award the entire deficiency judgment 

amount to RADC, even though the district court expressly made 

that judgment subject to any later-determined interest of Utah 

First. We conclude that the district court did not err in either 

regard. 

A. Plaintiffs Were Entitled to Recover the Full Deficiency 

Amount.

¶16 The original Complaint claimed that the total amount still 

due on the Note was $1,819,774.97. The First Amended 

Complaint, which added RADC as a plaintiff, left that amount 

unchanged. Finally, in the Second Amended Complaint, the 

amount due on the Note was updated to correct the full amount 

actually due on the Note and to state the amount still due 

following the sale of the land securing the Note—$1,916,701.91.

When Plaintiffs moved for summary judgment, they sought a 

deficiency judgment in this amount. 

¶17 Appellants point to the language of section 57-1-32 to 

argue that Plaintiffs were limited to pursuing the amount 

indicated in the original Complaint. Specifically, the statute 

mandates that ‚the complaint shall set forth the entire amount of 

the indebtedness.‛ Utah Code Ann. § 57-1-32 (LexisNexis 2010). 

The question before us, as Appellants state it, is whether, based 

on that language, RADC ‚should have been estopped from 

arguing that the amount owing was more than what was 

originally plead[ed+.‛ 

¶18 A successful claim of estoppel would require, among 

other things, a showing that Appellants took reasonable action—

or reasonably refrained from action—based on the misstatement 

of the amount of indebtedness included in the original 
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Complaint. See Salt Lake City Corp. v. Big Ditch Irrigation Co., 2011 

UT 33, ¶ 41, 258 P.3d 539. According to Appellants, without 

citation to any portion of the record, ‚[Borrowers] did not 

engage in a trial and negotiation strategy that they would or 

could have employed had the total amount due under the note 

been originally asserted as the same amount as ultimately 

claimed.‛ This is not the sort of inaction that is contemplated by 

the doctrine of estoppel. 

¶19 But even if Appellants might have acted differently in the 

months following the filing of the original Complaint had it 

included the amount actually due, the Second Amended 

Complaint was filed in September 2012. The district court did 

not grant RADC’s motion for summary judgment until April 

2013. Thus, even ignoring the fact that Borrowers likely always 

knew—and surely should have known—the full amount owed 

under the Note, they had seven months between the filing of the 

Second Amended Complaint and the district court’s order 

during which they could have ‚engage*d+ in a *different+ trial 

and negotiation strategy‛ when confronted with the increased 

amount, if so inclined. Because they did not do so then, there is 

no reason to assume they would have done so earlier. It was 

therefore not error for the district court to enter judgment based 

on the amount alleged in the Second Amended Complaint once 

that amount was proven. 

B. It Was Not Error for RADC to Receive Judgment Based on 

the Full Amount Due on the Note.

¶20 RADC had only a forty-eight percent interest in the Note, 

but the district court awarded the entire deficiency amount to 

RADC, albeit subject to any subsequently determined interest of 

Utah First. We acknowledge that, at first glance, it might appear 

that Appellants make a compelling argument. After all, it seems 

somewhat intuitive that as a forty-eight percent owner of the 

Note, RADC should have received judgment for only forty-eight 

percent of the amount still owing on the Note.
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¶21 Appellants complain that the district court’s order, 

making the judgment subject to any subsequently determined 

interest of Utah First, ‚cited no law.‛ But after registering this 

complaint, Appellants direct this court to no statute, case, or 

other authority that supports their contention that the district 

court got this wrong. Appellants’ failure to carry their burden of 

persuasion on appeal is a sufficient ground for us to reject this 

argument. See Hi-Country Estates Homeowners Ass’n v. Jesse 

Rodney Dansie Living Trust, 2015 UT App 218, ¶ 8, 359 P.3d 655.

¶22 We do briefly note, however, that it would be unjust to 

allow debtors to avoid responsibility for a substantial portion of 

their obligations simply because one of two creditors on a single 

debt takes the laboring oar in collecting the debt.

5 See, e.g., Irons 

v. American Nat’l Bank, 172 S.E. 629, 641 (Ga. 1933) (‚Any one of 

the holders may foreclose, giving the notice required by law to 

all holders concerned.‛); Zalesk v. Wolanski, 281 Ill. App. 54, 55 

(1935) (determining that ‚the plaintiff, as one of the note holders, 

under the terms of the trust deed, had the right to declare the 

whole amount of the indebtedness due and unpaid‛). The 

district court determined that Borrowers owed $1,916,701.91 

under the Note. How that amount is divided between RADC 

and Utah First is no business of Borrowers, provided that they 

are the only two holders of the Note and the judgment 

represents the total amount properly due under the Note. There 

is no dispute that the amount awarded by summary judgment is 

the total amount owed, and the qualifying language of the 

judgment recognizes the possible interest of Utah First and 

 

5. Of course, the creditor who obtains a judgment would then 

have to account to the other creditor for its interest in the note or 

other instrument. Cf. Joseph Nelson Supply Co. v. Leary, 164 P. 

1047, 1049 (Utah 1917) (‚*A+ person who claims the contract 

price, in whole or in part, which is due to the contractor . . . , 

takes the assignment subject to the claims for labor performed 

and material furnished to the contractor, which was by him used 

in the performance of his contract*.+‛).
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protects Appellants from having to pay the debt twice—once to 

RADC and once to Utah First. 

III. Summary Judgment Against the Guarantors Will Not Be 

Disturbed.

¶23 Finally, Appellants contend that the district court erred by 

granting summary judgment against the Guarantors. 

Appellants’ straightforward argument is that judgment was 

improperly granted against Borrowers on the underlying 

obligation and so the judgment against the Guarantors is 

likewise invalid. Appellants recognize that their arguments on 

behalf of the Guarantors rise or fall with their arguments on 

behalf of Borrowers, arguing that ‚if the judgment that forms the 

basis of the judgment against the guarantors is overturned, then 

the judgment against guarantors must also be overturned.‛ 

Because we have declined to disturb the judgment against 

Borrowers, we have no occasion to disturb the judgment against 

the Guarantors. 

CONCLUSION

¶24 We reject Appellants’ arguments on appeal. RADC was 

properly added as a plaintiff to the case in the First Amended 

Complaint because that amendment relates back to the original 

Complaint. The district court did not err by awarding judgment 

for the entire deficiency amount or by awarding that full amount 

to RADC, subject, of course, to its obligation to account to Utah 

First for its share of any proceeds recovered. Finally, Appellants 

have not demonstrated any reason why the judgment against the 

Guarantors should be disturbed. 

¶25 Affirmed.