2022 UT App 71

THE UTAH COURT OF APPEALS

BRENT LIVINGSTON AND THE ESTATE OF VERNOLD LIVINGSTON,

Appellants,

v.

FINCO HOLDINGS CORP., CHICO’S AUTO SALES INC., CIELO OSORIO,

BILL KISHTON, MILTON RODRIGUEZ, AND OMAR BOLANOS,

Appellees.

Opinion

No. 20200200-CA

Filed June 9, 2022

Third District Court, Salt Lake Department

The Honorable Richard D. McKelvie

No. 150901881

Ronald Ady, Attorney for Appellants

Joseph A. Skinner and Morgan I. Marcus, Attorneys

for Appellees Finco Holdings Corp., Cielo Osorio, 

and Bill Kishton

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES

GREGORY K. ORME and RYAN M. HARRIS concurred.

POHLMAN, Judge:

¶1 To finance the purchase of a vehicle, Brent and Vernold 

Livingston entered into a consumer loan agreement with Finco 

Holdings Corp. dba The Equitable Finance Company (Lender). As 

part of the transaction, the Livingstons agreed to arbitrate any 

disputes they may have with Lender and related parties. After the 

Livingstons allegedly defaulted on their loan, Lender repossessed 

the vehicle, sold it, and remitted the excess proceeds of the sale to 

the Livingstons.

¶2 Based on their claim that they were current on the loan and 

were wrongfully denied the opportunity to redeem the vehicle, 
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the Livingstons filed suit against, among others, Lender and 

certain of its employees (collectively, Lender Defendants).1 More 

than fifteen months later, Lender Defendants moved to compel 

arbitration pursuant to the parties’ agreement. The district court 

granted the motion, and following arbitration, judgment was 

entered in Lender Defendants’ favor.

¶3 The Livingstons appeal, arguing that the court erred in 

compelling arbitration. First, the Livingstons contend that Lender 

did not manifest its agreement to arbitrate and thus no binding 

agreement was formed. Second, the Livingstons assert that 

Lender Defendants waived their right to arbitrate by substantially 

participating in litigation and that the Livingstons were 

prejudiced as a result. Because we agree with the district court 

that the parties entered into an enforceable arbitration agreement 

and that the Livingstons have not shown that they were 

prejudiced by Lender Defendants’ delay in compelling 

arbitration, we affirm.

BACKGROUND2

¶4 In November 2013, the Livingstons purchased a vehicle 

from a dealership. To facilitate their purchase, the Livingstons 

1. The Livingstons named Lender and its employees Cielo Osorio, 

Bill Kishton, and Brent Robinson as defendants, as well as Chico’s 

Auto Sales Inc. and its employees Milton Rodriguez and Omar 

Bolanos. Brent Robinson passed away while the litigation was 

pending. Defendants Chico’s Auto Sales, Rodriguez, and Bolanos 

have not participated in this appeal.

2. In ruling on Lender Defendants’ motion to compel arbitration, 

the district court made few factual findings, and most of the 

relevant facts are undisputed procedural facts. For the limited 

purpose of providing context for this appeal, we recite some 

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sought financing from Lender. As part of the loan transaction, the 

Livingstons signed several documents, including the consumer 

loan agreement and a separate arbitration rider.

¶5 The arbitration rider, which by its terms “is incorporated 

into and becomes a part of every application, purchase, finance 

and lease document and other contracts,” provides: “If a Dispute 

(defined below) arises between you and us that you and we 

cannot resolve, you or we may elect to arbitrate the Dispute under 

this Binding Arbitration Clause (‘Clause’) rather than litigate the 

Dispute in court.” In the definitional section of the rider, it defines

“Dispute” as “any dispute, claim or controversy between you and 

us that accrues before or after the date of this Clause,” and 

includes “any dispute . . . concerning the validity, enforceability 

and scope of this Clause.” It also defines “we” and “us” as “the 

creditor signing below,” as well as the creditor’s agents and 

related companies, and it defines “you” as “the applicant(s) 

signing below.” However, the arbitration rider does not contain a 

signature block for the creditor. Instead, it contains only a 

signature block for the borrower and states, “I agree to the terms 

of this Clause and acknowledge receipt of a completed copy of 

this Clause.”

¶6 Lender provided the Livingstons with the loan on the 

condition that the loan agreement and the arbitration rider “be 

signed.” Accordingly, the Livingstons signed both documents,3

additional undisputed facts as they are alleged in the Livingstons’ 

complaint or as they are offered in support of or in opposition to 

the motion to compel.

3. Before the district court, the Livingstons disputed that they 

signed the arbitration rider, but after discovery and an 

evidentiary hearing that included expert testimony, the district 

court found otherwise. It found that the Livingstons “signed the 

arbitration rider to the loan agreement at issue . . . ; that the 

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and the loan was financed. Lender, who signed the loan 

agreement, received the executed rider from the Livingstons and 

retained it as part of its records relating to the loan.4

¶7 A few months later, based on its belief that the Livingstons 

had defaulted on the loan, Lender repossessed and sold the 

vehicle. Alleging, among other things, that the repossession was 

unlawful, the Livingstons filed a lawsuit against Lender

Defendants and others. Lender Defendants responded with a 

motion to dismiss, seeking a dismissal of certain of the 

Livingstons’ ten causes of action. Nearly ten months after the case 

was filed, the district court granted the motion to dismiss in part, 

and the Livingstons sought leave to amend their complaint. 

However, before their motion for leave to amend was granted, 

Lender Defendants removed the case to federal court based on the 

Livingstons’ assertion of a federal claim in their draft amended 

complaint. Because the removal was premature, the federal court 

remanded the case to state court and awarded the Livingstons the 

attorney fees they incurred in challenging the removal. A month 

later, the motion for leave to amend was granted (with the federal 

claim removed), and the next day, Lender Defendants moved to 

compel arbitration based on the arbitration rider.

¶8 The Livingstons opposed Lender Defendants’ motion, 

arguing that arbitration could not be compelled because “an 

arbitration contract was never formed.” In the alternative, the 

Livingstons argued that Lender Defendants had waived their

right to arbitrate by substantially participating in litigation to a 

point inconsistent with the right to arbitrate and that the 

signatures contained thereon are genuine and are not forgeries.” 

This finding is not challenged on appeal.

4. Lender eventually signed the rider, but the Livingstons contend 

that it was not signed contemporaneously with the loan 

agreement. They contend that Lender did not sign the rider until 

after the litigation began.
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Livingstons were prejudiced by Lender Defendants’ delay in 

seeking arbitration. The district court disagreed and ordered the 

case to arbitration. It concluded that the arbitration rider was an 

enforceable contract and that Lender Defendants did not waive 

their right to arbitrate. Specifically, the court determined that 

Lender Defendants did not act inconsistently with the right to 

arbitrate and that the Livingstons failed to show that the delay 

prejudiced them. The arbitration proceeding resulted in an award

for Lender Defendants, which the district court confirmed. The 

Livingstons appeal.

ISSUES AND STANDARD OF REVIEW

¶9 The Livingstons contend that the district court erred in 

granting Lender Defendants’ motion to compel arbitration for two 

reasons.

¶10 First, the Livingstons assert that a binding arbitration 

agreement was never formed. “The issue of whether a contract 

exists may present questions of both law and fact. Whether a 

contract has been formed is ultimately a conclusion of law, but 

that ordinarily depends on the resolution of subsidiary issues of 

fact.” Nunley v. Westates Casing Services, Inc., 1999 UT 100, ¶ 17, 

989 P.2d 1077. Here, the relevant facts are not in dispute and both 

parties invite us to review the court’s decision for correctness.

¶11 Second, the Livingstons argue that Lender Defendants

waived their right to arbitrate by substantially participating in 

litigation, which prejudiced the Livingstons. The parties agree 

that the district court’s determination regarding waiver of the 

right to arbitrate presents a mixed question of law and fact. 

Quoting Central Florida Investments, Inc. v. Parkwest Associates, 2002 

UT 3, 40 P.3d 599, the parties argue that “a legal question . . . is 

reviewed for correctness, but the actions or events allegedly 

supporting waiver are factual in nature and should be reviewed 

as factual determinations, to which we give a district court 

deference.” Id. ¶ 20. However, when a district court’s 
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determination to compel or deny arbitration is “based on 

documentary evidence alone, it is a legal conclusion that is 

reviewed for correctness.” ASC Utah, Inc. v. Wolf Mountain Resorts, 

LC, 2010 UT 65, ¶ 11, 245 P.3d 184; see also Turpin v. Valley 

Obstetrics & Gynecology, 2021 UT App 12, ¶¶ 15–17, 482 P.3d 831. 

Here, because the district court’s waiver determination was made 

based on documentary evidence alone, we review its decision for 

correctness. See ASC Utah, 2010 UT 65, ¶ 11.

ANALYSIS

I. Enforceability of the Arbitration Rider

¶12 The Livingstons contend that the district court erred in 

compelling arbitration of their dispute with Lender Defendants 

because, they argue, the parties never entered into a binding 

agreement to arbitrate. In making this argument, the Livingstons 

repeatedly acknowledge that they signed the arbitration rider as 

part of the transaction with Lender to finance the purchase of their 

vehicle. Still, the Livingstons claim that Lender did not timely 

manifest its assent to the arbitration rider—either by signature or 

otherwise—and thus no agreement to arbitrate was reached and 

the rider is unenforceable. We disagree with the Livingstons and 

conclude that the district court correctly determined that the rider 

was enforceable and that, absent a waiver, see infra Part II, 

arbitration was appropriately compelled.

¶13 The arbitration rider states that the Federal Arbitration Act 

(the FAA), “not state arbitration law,” governs the arbitrability of 

the parties’ disputes. By its terms, that includes any dispute 

concerning the enforceability of the arbitration rider. But in 

interpreting the FAA, the United States Supreme Court has held 

that when the enforceability of an arbitration agreement is at 

issue, state-law principles of contract formation generally apply. 

See Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987) (citing 9 U.S.C. § 2); 

see also First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995) 

(“When deciding whether the parties agreed to arbitrate a certain 
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matter . . . , courts generally . . . should apply ordinary state-law 

principles that govern the formation of contracts.”); Ellsworth v. 

American Arb. Ass’n, 2006 UT 77, ¶ 14, 148 P.3d 983 (“Arbitration 

is a matter of contract law, and state-law principles of contract 

formation apply.” (citation omitted)); Cade v. Zions First Nat’l 

Bank, 956 P.2d 1073, 1077 (Utah Ct. App. 1998) (explaining that 

even though enforcement of an agreement was governed by the 

FAA, state contract law applied to the issue of whether and who 

may enforce the agreement). Thus, in considering the Livingstons’ 

challenge to the enforceability of the arbitration rider, we apply

principles of Utah contract law.

¶14 “[I]t is a basic principle of contract law that there can be no 

contract without the mutual assent of the parties.” John Call Eng’g, 

Inc. v. Manti City Corp., 743 P.2d 1205, 1207 (Utah 1987); see also 

Rossi v. University of Utah, 2021 UT 43, ¶ 31, 496 P.3d 105 

(“Generally, a promise is legally enforceable where it is part of a 

bargain in which there is a manifestation of mutual assent to the 

exchange and a consideration.” (cleaned up)). A contract results 

when “there is a manifestation of mutual assent, by words or 

actions or both, which reasonably are interpretable as indicating 

an intention to make a bargain with certain terms or terms which 

reasonably may be made certain.” Rapp v. Salt Lake City, 527 P.2d 

651, 654 (Utah 1974) (cleaned up).

¶15 The Livingstons contend that there is no enforceable 

agreement to arbitrate because Lender did not timely manifest its 

assent to the arbitration rider. Specifically, the Livingstons argue 

that the rider “explicitly requir[ed]” Lender to manifest its assent 

by signing the rider, and that without a timely signature, “there 

was no binding arbitration agreement.”5 Alternatively, the 

5. Although it is undisputed that Lender eventually signed the 

arbitration rider, the Livingstons contend that it was not signed 

until after litigation was commenced. Because we ultimately 

conclude that a signature was not necessary to manifest Lender’s 

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Livingstons contend that even if Lender’s timely signature was 

not required, Lender did not otherwise manifest its assent in a 

timely way. We disagree with the Livingstons on both counts.

¶16 First, the arbitration rider did not require Lender’s 

signature, and thus its absence does not render the rider 

unenforceable. Under standard contract principles, it is 

established that “the purpose of a signature is to demonstrate 

mutuality of assent.” Commercial Union Assocs. v. Clayton, 863 P.2d 

29, 34 (Utah Ct. App. 1993) (cleaned up). But it is equally 

established “that a signature is not always necessary to create a 

binding agreement.” Id. (cleaned up). As our supreme court has 

stated, “it is fundamental contract law that the parties may 

become bound by the terms of a contract even though they did 

not sign the contract, where they have otherwise indicated their 

acceptance of the contract, or led the other party to so believe that 

they have accepted the contract.” Ercanbrack v. Crandall-Walker 

Motor Co., 550 P.2d 723, 725 (Utah 1976) (cleaned up). Further, 

neither the Utah Uniform Arbitration Act nor the FAA requires a 

party’s signature on an arbitration agreement for it to be 

enforceable; instead, they require only that the agreement be in 

writing. See Createrra, Inc. v. Sundial, LC, 2013 UT App 141, ¶¶ 8, 

12, 304 P.3d 104 (recognizing the Utah statutory requirement that 

an arbitration agreement be in writing); Medical Dev. Corp. v. 

Industrial Molding Corp., 479 F.2d 345, 348 (10th Cir. 1973) 

(observing that the FAA does not require that a party sign an 

arbitration agreement; “[a]ll that is required is that the arbitration 

provision be in writing”).

¶17 The Livingstons do not dispute these general principles; 

they instead contend that the arbitration rider, by its own terms, 

requires Lender’s signature as a condition precedent to the 

formation of a valid contract. In support of their contention, the 

Livingstons cite the definitional paragraph of the arbitration rider, 

agreement to arbitrate, we need not address the Livingstons’ 

complaint that the signature was untimely.
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which states: “As used in this Clause, ‘we’ and ‘us’ means the 

creditor signing below, its officers, directors, employees and 

agents, parents, subsidiaries and affiliated companies and 

their assigns and respective successors-in-interest. ‘You’ means 

the applicant(s) signing below.” The Livingstons contend that 

by defining the “we” and “us” as “the creditor signing below,” 

the arbitration rider “requires” Lender’s signature “before a 

binding agreement was formed.” We do not share the 

Livingstons’ view.

¶18 In Utah, “[a] simple statement . . . in a contract is not

necessarily a condition to a party’s duty of performance. The 

intention to create a condition in a contract must appear expressly 

or by clear implication.” Cheever v. Schramm, 577 P.2d 951, 953 

(Utah 1978). And although the language cited by the Livingstons 

suggests that Lender would sign the arbitration rider, the 

language does not expressly state or clearly imply that Lender’s 

signature was a condition precedent to the enforceability of the 

rider or was the only method by which Lender could manifest its 

assent. The purpose of the signature, as expressly set forth in the 

rider, was to identify the creditor by name. The rider does not 

expressly state or clearly imply that the signature was a 

prerequisite to a binding agreement.

¶19 This result is consistent with conclusions reached by 

other courts considering similar arguments applying like 

principles of contract law. For example, the United States Court 

of Appeals for the Fifth Circuit concluded that the absence of a 

signature did not invalidate an arbitration agreement because 

there was no express language in the parties’ agreements stating 

that they would be bound only if the agreements were signed. 

Trujillo v. Volt Mgmt. Co., 846 F. App’x 233, 236 (5th Cir. 2021) (per 

curiam). The court reached its conclusion despite the presence of 

a signature block in the agreement, stating “there is no language 

that the parties needed to sign the agreements to give it effect.” Id.

Similarly, the federal district court in Colorado rejected the 

argument that an arbitration agreement must be signed by the 
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parties to become effective because the agreement did not use 

conditional language that required the signatures of the parties to 

become effective. Hickerson v. Pool Corp., No. 19-cv-02229-CMASTV, 2020 WL 5016938, at *4 (D. Colo. Aug. 25, 2020). The court 

concluded that the reference to signatures in the agreement 

suggested that assent could be manifested by signature, but the 

reference did not require a signature for the agreement to take 

effect. Id.

¶20 Like the contracts in these cases, the arbitration rider here 

did not state that signatures were required for the agreement to 

be enforceable. In fact, the rider did not even contain a signature 

block for Lender. And although the rider suggested that Lender

would be identified by its signature, because the rider did not 

require that it be signed, the absence of Lender’s signature did not 

render the agreement unenforceable.

¶21 Second, we disagree with the Livingstons’ alternative 

argument that even if Lender’s signature was not required, the 

arbitration rider is unenforceable because Lender did not 

otherwise manifest its assent to the rider. Contrary to the 

Livingstons’ claim, Lender manifested its assent in multiple ways. 

As the district court found, Lender presented the arbitration rider 

to the Livingstons and required its execution by the Livingstons 

before the loan would be funded. Further, Lender signed the loan 

agreement on the same date the arbitration rider was presented to 

and signed by the Livingstons. The arbitration rider expressly 

states that it “is incorporated into and becomes part of every 

application, purchase, finance and lease document and other 

contracts . . . entered into between” Lender and the Livingstons, 

and the district court concluded that the two documents should 

be construed as a whole. Thus, Lender’s signature on the loan 

agreement was an additional manifestation of its assent to the 

arbitration rider. And finally, Lender funded the loan that was 

conditioned on the Livingstons agreeing to arbitration, it 

maintained the arbitration rider in its files, and it sought to 

enforce the arbitration rider.
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20200200-CA 11 2022 UT App 71

¶22 Together, these actions manifest Lender’s assent to the 

rider, and the Livingstons presented no evidence beyond the 

absence of a signature to suggest a contrary intent. See Dickson v. 

Gospel for ASIA, Inc., 902 F.3d 831, 835 (8th Cir. 2018) (“We have 

no doubt that GFA assented to the agreements at issue and 

intended them to be enforceable: GFA drafted the agreements and 

affixed its letterhead to them; it maintained the agreements; and 

it seeks to enforce them.”); Hickerson, 2020 WL 5016938, at *6 

(“Pool also manifested its assent in numerous ways; it drafted the 

Agreements, presented them to Plaintiffs for signature . . . , 

included reference to the Agreements in the Employee Handbook, 

had Plaintiffs sign an acknowledgement that they received and 

read the Employee Handbook, and continued to employ Plaintiffs 

after they signed the Agreements.”); Wright v. Hernandez, 469 

S.W.3d 744, 761 (Tex. App. 2015) (concluding that the employer 

manifested its assent to an unsigned arbitration agreement by 

preparing the agreement, presenting the agreement to the 

employee for signature, maintaining the agreement as a business 

record, and seeking to enforce the agreement). Thus, we have no 

trouble concluding, as did the district court, that Lender

manifested to the Livingstons that it agreed to the arbitration rider 

and was therefore bound. And having resolved this issue in favor 

of Lender, we likewise conclude that the district court did not err 

in concluding that a binding arbitration agreement existed 

between the Livingstons and Lender Defendants.

II. Waiver

¶23 The Livingstons next challenge the district court’s 

determination that Lender Defendants did not waive their right 

to arbitrate the Livingstons’ dispute. The Livingstons contend that 

the court committed legal error in applying federal law to the 

waiver inquiry and that the court incorrectly concluded that 

Lender Defendants did not waive their right to arbitrate. We 

begin by addressing the legal standard for waiver of the right to 

arbitrate. We then address whether the district court correctly 

concluded that Lender Defendants did not waive their right to 
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20200200-CA 12 2022 UT App 71

arbitrate because the Livingstons were not prejudiced by Lender

Defendants’ delay.

A. The Legal Standard

¶24 As noted above, the parties’ arbitration rider states that the 

FAA governs the arbitrability of the parties’ disputes, including 

any dispute concerning the rider’s enforceability. See supra ¶ 13. 

Relying on that choice of law provision, Lender Defendants 

invited the district court to apply federal law in assessing the 

Livingstons’ contention that Lender Defendants had waived their

right to arbitrate by participating in litigation for a time before 

seeking to compel arbitration. Accepting Lender Defendants’ 

invitation, the court considered the factors relevant to the 

question of waiver that were summarized by the Tenth Circuit 

Court of Appeals in Peterson v. Shearson/American Express, Inc., 849 

F.2d 464, 467–68 (10th Cir. 1988). Specifically, the court considered 

“whether the litigation machinery ha[d] been substantially 

invoked,” whether Lender Defendants’ “actions [we]re 

inconsistent with the right to arbitrate,” and whether Lender

Defendants had “tak[en] advantage of judicial discovery 

procedures not available in arbitration.” See id. (cleaned up). The 

court also considered whether the delay in demanding arbitration 

“affected, misled, or prejudiced” the Livingstons.6 See id. at 468 

(cleaned up).

¶25 The Livingstons contend that even though the arbitration 

rider is governed by federal law, the question of waiver is 

6. Consistent with Tenth Circuit authority, the district court also 

considered whether “the parties were well into preparation of a 

lawsuit” before Lender Defendants notified the Livingstons of 

their intent to arbitrate, whether Lender Defendants had filed a 

counterclaim, and whether Lender Defendants’ arbitration 

request came “close to the trial date” or was “delayed for a long 

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governed by the two-part waiver test first articulated by the Utah 

Supreme Court in Chandler v. Blue Cross Blue Shield of Utah, 833 

P.2d 356, 360 (Utah 1992). There, the court stated, “[W]aiver of a 

right of arbitration must be based on both a finding of 

participation in litigation to a point inconsistent with the intent to 

arbitrate and a finding of prejudice.”7 Id. The Livingstons contend 

that “the Utah Supreme Court can independently develop its own 

case precedent . . . in construing federal arbitration law” and that 

the Chandler standard “is fully compliant” with United States 

Supreme Court authority. Ultimately, we need not resolve 

whether the district court erred in applying the factors identified 

by the Tenth Circuit in Peterson rather than the waiver test as 

articulated by our supreme court in Chandler. Had the court

applied the Chandler test, the result would have been the same. 

¶26 Under Chandler, “waiver of a right of arbitration must be 

based on both a finding of participation in litigation to a point 

inconsistent with the intent to arbitrate and a finding of 

prejudice.” Id. (emphasis added). Thus, if either prong is unmet, 

there is no waiver. 

¶27 Here, in its application of the Peterson standard, the district 

court considered and ultimately determined that the Livingstons 

period” of time. See Peterson v. Shearson/Am. Express, Inc., 849 F.2d 

464, 467–68 (10th Cir. 1988) (cleaned up).

7. In Mounteer Enterprises, Inc. v. Homeowners Ass’n, 2018 UT 23, 

422 P.3d 809, a non-arbitration case, the Utah Supreme Court 

observed that “[t]he prejudice requirement is a doctrinal misfit in 

the law of waiver,” and it thus “repudiate[d] [its] prior decisions 

that speak of prejudice as an element of waiver.” Id. ¶¶ 33–34. 

Mounteer was decided after the district court entered its decision 

in this case and neither side has argued that prejudice is no longer 

an element of the Chandler waiver test. Accordingly, we assume

for purposes of our review in this case that the prejudice prong 

still applies.
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did not show that Lender Defendants’ delay in seeking arbitration 

prejudiced them. Because that determination of no prejudice 

would have been fatal to the Livingstons’ waiver claim under 

Chandler, the Livingstons would have fared no better had that 

standard been applied. 

B. The Livingstons’ Claim of Prejudice 

¶28 The Livingstons next contend that the district court erred 

in concluding that they had failed to demonstrate that Lender 

Defendants’ delay in seeking arbitration prejudiced them. We are 

not persuaded.

¶29 As the parties opposing arbitration, the Livingstons bore 

the burden of proving prejudice. See Turpin v. Valley Obstetrics 

& Gynecology, 2021 UT App 12, ¶ 28, 482 P.3d 831. To be material, 

“prejudice must result from the delay in the assertion of the right 

to arbitrate, not from factors that are inherent in arbitration itself, 

such as the severance of a claim or limitations on remedies.” 

Chandler v. Blue Cross Blue Shield of Utah, 833 P.2d 356, 359 (Utah 

1992). Further, “prejudice [must] be of such a nature that the party 

opposing arbitration suffers some real harm,” id. at 360, which 

may be shown if that party “has incurred significant expenses in 

the district court litigation that would not have been incurred in 

arbitration, or if it has participated in discovery that would not 

have been available in arbitration,” Turpin, 2021 UT App 12, ¶ 28 

(cleaned up). Additionally, “prejudice can occur if a party gains 

an advantage in arbitration through participation in pretrial 

procedures.” Chandler, 833 P.2d at 359.

¶30 Here, the Livingstons identify three possible sources of 

prejudice, but none of the three satisfy the Chandler standard.

¶31 First, the Livingstons contend that they were prejudiced by 

having to respond to Lender Defendants’ motion to dismiss 

certain claims that were filed early in the litigation. The 

Livingstons claim they suffered prejudice because they incurred 

“substantial litigation expense” and several of their claims were 
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dismissed. This argument is not persuasive. The Livingstons 

conceded in oral argument before this court that they would have 

had to litigate the same issues in arbitration and that Lender 

Defendants could have received the same relief. Relatedly, the 

Livingstons have not identified any expense incurred in the 

litigation that they would not have incurred in defending a 

motion to dismiss filed in arbitration. Thus, the Livingstons have 

not demonstrated actual harm. Because the Livingstons would 

have had to defend against the same motion in arbitration that 

they faced in litigation, they have not shown that they were 

prejudiced by the litigation of the motion in the district court. See 

Turpin, 2021 UT App 12, ¶ 28; see also Pledger v. Gillespie, 1999 UT 

54, ¶ 23, 982 P.2d 572 (considering whether the party opposing 

arbitration incurred significant litigation expenses “that would 

not have been incurred in arbitration”).

¶32 Second, the Livingstons argue that they were “greatly 

prejudiced” by the expenses they incurred in litigating Lender

Defendants’ failed removal of the lawsuit to federal court. Again, 

we do not agree. Not only did the Livingstons neglect to provide 

any evidence to the district court to demonstrate that they 

incurred “significant expenses” defending against the removal 

sufficient to establish prejudice under the Chandler standard, see 

Turpin, 2021 UT App 12, ¶ 28, they conceded in oral argument 

before this court that the federal court awarded them the attorney

fees they incurred when it rejected the removal as improper. Thus, 

the Livingstons cannot show that they were prejudiced by having 

to defend against Lender Defendants’ removal.

¶33 Finally, the Livingstons contend that they were prejudiced 

by Lender Defendants’ forum shopping. They argue that Lender 

Defendants “tested the judicial waters in state court,” and when 

it was not to their “liking,” they “engaged in forum shopping by 

attempting to remove” the Livingstons’ claims to federal court. 

The Livingstons are correct that “prejudice exists when the party 

seeking arbitration is attempting to forum-shop after the judicial 

waters have been tested.” See Chandler, 833 P.2d at 359 (cleaned 
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up). But the Livingstons have not shown prejudice on this record. 

They have not identified an adverse ruling in state court from 

which Lender Defendants appeared to be fleeing. Instead, Lender 

Defendants had success before the state court on their motion to 

dismiss and they understandably sought to remove the case to 

federal court after the Livingstons indicated that they intended to 

assert a federal claim. Without more, there is no suggestion that 

in moving to compel arbitration, Lender Defendants were

“sensing an adverse court decision” and by compelling 

arbitration were trying to gain “a second chance in another 

forum.” See Jones Motor Co. v. Chauffeurs, Teamsters & Helpers Local 

Union No. 633, 671 F.2d 38, 43 (1st Cir. 1982).

¶34 In sum, the district court correctly concluded that the 

Livingstons did not demonstrate that they were prejudiced by 

Lender Defendants’ delay in compelling arbitration. Accordingly, 

the district court did not err in concluding that Lender Defendants 

did not waive their right to arbitrate. 

III. Attorney Fees

¶35 Lender Defendants seek an award of attorney fees incurred 

on appeal pursuant to paragraph 3(d) of the loan agreement, the 

arbitration rider, and rule 33 of the Utah Rules of Appellate 

Procedure. We decline to consider this request because it was 

inadequately briefed. See Anderson v. Taylor, 2006 UT 79, ¶ 25, 149 

P.3d 352 (“Our rules require not just bald citation to authority but 

development of that authority and reasoned analysis based on 

that authority.” (cleaned up)); see also Utah R. App. P. 24(a)(9) (“A 

party seeking attorney fees for work performed on appeal must 

state the request explicitly and set forth the legal basis for an 

award.”). Lender Defendants identify several sources for their

claimed right to attorney fees, but they fail to engage in any 

analysis or provide any explanation for why they are entitled to 

recover the fees they have incurred on appeal. Lender Defendants 

have not claimed that this appeal is “either frivolous or for delay,” 

as required for an award under rule 33. See Utah R. App. P. 33(a) 
Livingston v. Finco Holdings

20200200-CA 17 2022 UT App 71

(“[I]f the court determines that a[n] . . . appeal taken under these 

rules is either frivolous or for delay, it will award just damages, 

which may include . . . reasonable attorney fees, to the prevailing 

party.”). Similarly, Lender Defendants have not identified a 

provision in the arbitration rider that entitles them to a fee award, 

nor have they undertaken any effort to show that their defense of 

this appeal is an enforcement of the loan agreement as required 

by paragraph 3(d) of that agreement. Accordingly, Lender

Defendants’ fee request is denied.

CONCLUSION

¶36 The district court did not err in concluding that a binding 

arbitration agreement existed between Lender and the 

Livingstons. Nor did the court err in determining that Lender 

Defendants did not waive their right to arbitrate. Although the 

Livingstons proffer that Lender Defendants waived their right to 

arbitrate, the Livingstons have not shown that they were 

prejudiced by the delay. Thus, we affirm the district court’s order 

compelling arbitration.