2016 UT App 140

THE UTAH COURT OF APPEALS

JENCO LC, DEAN GARDNER INVESTMENT LC, AND F.M. SNOW 

PROPERTIES LLC,

Appellees,

v.

PERKINS COIE LLP,

Appellant.

Opinion

No. 20140996-CA

Filed July 8, 2016

Fifth District Court, St. George Department

The Honorable Jeffrey C. Wilcox

No. 120500458

James L. Ahlstrom and Barry Stratford, Attorneys 

for Appellant

Bryan J. Pattison, Attorney for Appellees

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

STEPHEN L. ROTH and KATE A. TOOMEY concurred.

ORME, Judge:

¶1 Appellees JENCO LC, Dean Gardner Investment LC, and 

F.M. Snow Properties LLC (collectively JENCO) entered into an 

agreement with Ledges Partners LLC (Ledges) in which Ledges

agreed to purchase certain real property from JENCO. After 

Ledges defaulted on this agreement, JENCO sought judicial 

foreclosure of its trust deed given as security for Ledges’ 

performance of its obligations. Ledges, which is not a party to 

this appeal, did not contest the foreclosure proceeding, and a 

default judgment was entered against it. Appellant Perkins Coie 

LLP (Perkins)—a law firm that had done work for Ledges and 

that held a junior lien on the same property—was named a 

defendant and answered JENCO’s foreclosure complaint. After 
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both JENCO and Perkins moved for summary judgment, the 

district court ruled against Perkins and granted summary 

judgment to JENCO. Perkins appeals from this adverse decision.

We affirm.

BACKGROUND

¶2 In March 2004, JENCO and Ledges entered into an 

agreement (the Option Agreement) that reserved to Ledges an 

option to purchase certain real property that it intended to 

resell.1 The Option Agreement included a formula by which 

Ledges agreed to pay JENCO ‚for the Purchased Property.‛ 

Importantly, the Option Agreement defined the capitalized term 

‚Minimum Payment‛ as ‚*t+he amount calculated by 

multiplying the number of acres (or partial acres) in the 

Purchased Property by Forty Thousand Dollars.‛ The Option 

Agreement also required Ledges to ‚execute and deliver *to 

JENCO] . . . [a] Note and [a] Trust Deed encumbering the 

Purchased Property.‛ 

¶3 In October 2005, Ledges exercised its option to begin 

purchasing property from JENCO. In accordance with the 

Option Agreement, Ledges executed a promissory note (the 

JENCO Note), which provided that upon default ‚the entire 

unpaid principal balance of [this] Note, [shall] . . . become due 

and payable.‛ The JENCO Note further provided that, in the 

event of default, all acquired but as-yet undeveloped and unsold 

property—property that the Option Agreement defined as ‚Bulk 

Property‛—was to be appraised for fair market value and 

deemed sold at that price, with the balance due on the JENCO 

Note to be adjusted accordingly. The trust deed required Ledges 

 

1. Ledges’ plan was to develop the property and sell lots, but it 

also contemplated reselling undeveloped property. This appeal 

deals only with undeveloped property, referred to by the parties 

as ‚Bulk Property.‛
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‚*t+o pay . . . all taxes and assessments affecting‛ the acquired 

property.

¶4 Nearly five years later, in July 2010, the parties signed 

both an amendment to the Option Agreement (First 

Amendment) and a Settlement Agreement,2the latter being 

intended to settle, as explained by JENCO in its brief, ‚the 

various defaults that Ledges . . . had accumulated over the 

preceding five years.‛ The First Amendment modified the 

payment provision of the Option Agreement.3 Specifically, 

section 4 of the First Amendment provided—and the 

underlining is in the document—that Ledges’

sole obligation to make payments to [JENCO] with 

respect to [acquired] Property shall be limited to: 

(i) the specific Percentage Payments stipulated in 

. . . Section 4, which amounts are payable upon the 

sale of the property; [and] (ii) such payment 

obligations as shall arise as a result of *JENCO’s+ 

exercise of its enforcement rights under the Trust 

Deeds . . . .

Section 4 obligated Ledges, for each resale of Bulk Property, to 

make a ‚Percentage Payment,‛ defined as ‚the Minimum 

Payment allocable to any Bulk Property, plus 25% of the excess 

 

2. Both Perkins’s and JENCO’s briefs on appeal state that the 

First Amendment and the Settlement Agreement were both 

signed on July 15, 2010. 

3. We refer to the Option Agreement, as amended by the First 

Amendment, as the ‚Amended Option Agreement.‛
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Selling Price above an amount equal to the Minimum Payment 

attributable to such sale.‛4

¶5 The Settlement Agreement also addressed the payment 

scheme, outlined in the Amended Option Agreement. Section 

3(d) of the Settlement Agreement provided that ‚Ledges has 

paid all minimum payments due to [JENCO] under the 

Amended Option Agreement, and no additional minimum 

payments will be required thereunder.‛ Section 3(e) of the 

Settlement Agreement further clarified that ‚*t+he only amounts 

that will be payable to [JENCO] with respect to properties 

previously acquired from [JENCO] under the Amended Option 

Agreement are the amounts specifically stipulated in the First 

Amendment, including the cost of collection thereof*.+‛ 

¶6 As Ledges struggled to pay JENCO, it also fell behind on

its payments due Perkins. As a result, Ledges granted Perkins a 

promissory note (the Perkins Note) secured by a Deed of Trust. 

Both the Perkins Note and the Deed of Trust were executed on 

July 15, 2010—the same day that the First Amendment and 

Settlement Agreement were signed. See supra note 2. Once the 

Deed of Trust in favor of Perkins was recorded, Perkins held a 

lien on the Purchased Property junior to JENCO’s trust deed. 

¶7 Apparently unbeknownst to JENCO and not mentioned 

in the Settlement Agreement, between 2007 and 2011 Ledges had 

failed to pay any of the property taxes assessed against the 

Purchased Property. As a result, in April 2012 JENCO was 

 

4. The Settlement Agreement confirms that these capitalized 

terms were used as defined in the Option Agreement. Thus, as 

explained above, a Minimum Payment equals $40,000 per acre. 

See supra ¶ 2. The ‚Selling Price‛ is defined as ‚*t+he gross 

purchase price which a buyer pays in an arms-length 

transaction, before deducting any real estate commissions or 

closing costs.‛ 
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forced to pay the delinquent property taxes, penalties, and 

interest owed on the property to avoid a tax sale. Given Ledges’ 

default on its obligation to pay the taxes, JENCO elected to 

accelerate all amounts due under the JENCO Note and exercised 

its right to foreclose on the property. 

¶8 Just over six months later, in November 2012, the 

manager of Ledges contacted JENCO and disclosed that Ledges 

was in negotiations with a proposed buyer. Perkins concedes 

that in the course of this discussion, JENCO informed Ledges 

that ‚to get a payoff amount for the *JENCO+ Note, *JENCO+ 

would need specific acreage on what portions of the . . . Property 

Ledges was planning to sell, and [JENCO] also gave a rough 

estimate of $832,000 as a Minimum Payment.‛5JENCO informed 

Ledges that other sums would need to be added to this amount, 

namely $197,000 as the 25% payment called for in the First 

Amendment, the now-paid property taxes, default interest, and 

attorney fees. Ledges did not challenge the payoff amount or any 

of its components but asked only for a waiver of the default 

interest. After the proposed sale fell through, JENCO continued 

the foreclosure action. Perkins, as a junior lienholder on the 

Purchased Property, was the only party to respond to JENCO’s 

complaint, and a default judgment was entered against Ledges 

in February 2013. 

¶9 Approximately a year and a half later, and two years after 

discovery opened, Perkins moved for summary judgment on the 

ground that through the Settlement Agreement, JENCO 

affirmatively waived its right to receive the contractual 

‚Minimum Payment.‛ JENCO disputed Perkins’s interpretation 

 

5. The $832,000 estimate was apparently calculated using the 

Minimum Payment formula found in the Option Agreement and 

the acreage JENCO estimated was included in the proposed sale. 

See supra ¶ 2.
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and filed a cross-motion for summary judgment, which the 

district court ultimately granted. This appeal followed. 

ANALYSIS

¶10 When reviewing a grant of summary judgment, ‚*a+n 

appellate court reviews a trial court’s legal conclusions and 

ultimate grant or denial of summary judgment for correctness, 

and views the facts and all reasonable inferences drawn 

therefrom in the light most favorable to the nonmoving party.‛ 

Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and 

internal quotation marks omitted). See also Utah R. Civ. P. 56(c) 

(explaining that summary judgment is appropriate if ‚there is no 

genuine issue as to any material fact and . . . the moving party is 

entitled to a judgment as a matter of law‛).6 Such review 

considers, ‚in addition to whether there is any genuine issue as 

to any material fact, whether the movant is entitled to judgment 

as a matter of law.‛ Stevensen v. Goodson, 924 P.2d 339, 350 (Utah 

1996). In the course of our review, ‚we grant no deference to the 

district court’s legal conclusions.‛ Anderson Dev. Co. v. Tobias, 

2005 UT 36, ¶ 19, 116 P.3d 323 (citation and internal quotation 

marks omitted).

I. The Plain Language of the First Amendment, in Conjunction 

with the Settlement Agreement, Unambiguously Supports 

JENCO’s Interpretation and Precludes Perkins’s Interpretation.

¶11 ‚The underlying purpose in construing or interpreting a 

contract is to ascertain the intentions of the parties to the 

contract.‛ WebBank v. American Gen. Annuity Serv. Corp., 2002 UT 

88, ¶ 17, 54 P.3d 1139. Furthermore, ‚we consider each contract 

provision . . . in relation to all of the others, with a view toward 

 

6. Rule 56 was reorganized effective May 1, 2016. The former 

rule 56(c) is now rule 56(a). We refer in this opinion to the rule as 

written at the time the district court granted JENCO's motion.
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giving effect to all and ignoring none.‛ Id. ¶ 18 (omission in 

original) (citation and internal quotation marks omitted). 

Although extrinsic evidence may be considered in some

circumstances, ordinarily ‚*i+f the language within the four 

corners of the contract is unambiguous, the parties’ intentions 

are determined from the plain meaning of the contractual 

language, and the contract may be interpreted as a matter of 

law.‛ Id. ¶ 19 (citation and internal quotation marks omitted). 

‚An ambiguity exists where the *contractual+ language is 

reasonably capable of being understood in more than one 

sense.‛ Central Florida Invs., Inc. v. Parkwest Assocs., 2002 UT 3, 

¶ 12, 40 P.3d 599 (citation and internal quotation marks omitted).

¶12 Taken alone, section 3(d) of the Settlement Agreement 

might seem to waive JENCO’s right to an additional ‚Minimum 

Payment.‛ After all, the Settlement Agreement states that 

‚Ledges has paid all minimum payments due to [JENCO] under 

the Amended Option Agreement, and no additional minimum 

payments will be required thereunder.‛7 Thus, if the Settlement 

Agreement ended here, we would likely agree that JENCO 

waived its right to receive a portion of the Percentage Payment 

defined in the First Amendment—that is, the portion derived 

from the calculation of the Minimum Payment. Section 3(e) of 

the Settlement Agreement states, however, with our emphasis, 

that ‚*t+he only amounts that will be payable to *JENCO+ with 

 

7. Although the Settlement Agreement is not a model of clarity 

with respect to the intended meaning of the term ‚minimum 

payments,‛ writing this term in lower case in the Settlement 

Agreement at least suggests that it has a different meaning than 

the capitalized term as used in the Option Agreement and the 

First Amendment, especially because the Settlement Agreement 

provides that ‚*c+apitalized term*s+ . . . have the meanings given 

them in the Amended Option Agreement.‛ In any event, given 

the clarity of section 3(e), it is unnecessary to determine the 

interpretation and operation of section 3(d) read in isolation.
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respect to properties previously acquired from [JENCO] under 

the Amended Option Agreement are the amounts specifically 

stipulated in the First Amendment.‛ Thus, Perkins’s attempt to 

read out the Minimum Payment provision—itself a part of the 

‚amounts specifically stipulated in the First Amendment‛—is 

unavailing. 

¶13 There are several additional points worth noting. First, it 

is instructive that both the First Amendment and the Settlement 

Agreement were signed on the same day. See supra note 2. It is 

unlikely that JENCO, having negotiated a favorable term, would 

agree to have that term rescinded a few minutes later. Second, 

Ledges, the actual obligor, has never disputed JENCO’s 

calculation of the amount due and owing to JENCO. Third, 

Perkins’s reading of section 3(d) would render section 3(e)—not 

to mention the payment provisions of the First Amendment—

entirely superfluous.8 We read the contract to say exactly what it 

unambiguously, if somewhat cumbersomely, expresses: the only 

 

8. As the district court correctly observed, ‚*i+f Ledges . . . and 

[JENCO] had understood the amount of the Minimum Payment 

portion to be zero, as Perkins . . . claims, then it makes no sense 

that they would have included the term ‘plus’ on top of zero to 

determine the amount due and payable.‛ Whatever the truth of 

the stereotype that legal professionals are bad at math, see Arden 

Rowell & Jessica Bragant, Numeracy and Legal Decision Making, 

46 Ariz. St. L.J. 191, 193 (2014), we assume that all parties to the 

suit knew that the sum of zero plus any number is equal to that 

number, see Properties of Zero, Basic-Mathematics.com, 

http://www.basic-mathematics.com/properties-of-zero.html (last 

visited July 5, 2016) [https://perma.cc/J2TS-AWYK] (noting that 

‚a number does not change when adding or subtracting zero 

from that number‛). Thus, we agree with the district court that 

the terms of the Settlement Agreement ‚make*+ no sense‛ if 

Perkins’s interpretation of those terms is adopted. 
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payments Ledges owes to JENCO are the ‚amounts specifically 

stipulated in the First Amendment,‛ i.e., the ‚Minimum 

Payment, . . . plus 25% of the excess Selling Price.‛9 Because the 

contract is unambiguous, ‚the language within the four corners 

of the contract‛ makes Perkins’s alternative interpretation 

untenable. See WebBank, 2002 UT 88, ¶ 19 (citation and internal 

quotation marks omitted). Therefore, the district court did not 

err in interpreting the contract as it did, ‚as a matter of law.‛ Id.

(citation and internal quotation marks omitted).

II. The District Court Properly Considered the Admissible 

Evidence That Was Presented to It and Did Not Improperly 

Weigh the Evidence.

¶14 Perkins’s main argument, treated above, is that while the 

key agreements are clear and unambiguous, they should have 

been interpreted, in Perkins’s favor, as a matter of law. Its 

fallback position is that if the agreements are not interpreted in 

 

9. As we read the Settlement Agreement, sections 3(b)–(d) refer 

primarily to Ledges’ settlement of its outstanding dispute with 

JENCO over certain funds that were placed in escrow to be 

delivered to JENCO after the sale of several residential lots but 

that were returned to Ledges instead (the Missed Payment 

Amount). It would appear, then, that while section 3(d) refers to 

‚all minimum payments due,‛ it is not referring to the term 

‚Minimum Payment‛ as defined in the First Amendment.

Instead, it simply means that when the Settlement Agreement 

was signed, Ledges owed JENCO no payments aside from the 

Missed Payment Amount. Our reading is bolstered by Ledges’ 

further acknowledgment in section 3(e) that, as future lots were 

(or were not) sold, it would incur additional liability ‚with 

respect to properties previously acquired from *JENCO+.‛ Such 

liability was to be determined according to the terms of the First 

Amendment.
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20140996-CA 10 2016 UT App 140

the manner Perkins urges, then they were at least ambiguous 

enough to render summary judgment in JENCO’s favor 

improper.10 There is nothing illogical with this two-pronged 

approach. As we previously explained,

Cross-motions for summary judgment do not ipso 

facto dissipate factual issues, even though both 

parties contend . . . that they are entitled to prevail 

because there are no material issues of fact. Rather, 

cross-motions may be viewed as involving a 

contention by each movant that no genuine issue of 

fact exists under the theory it advances, but not as 

 

10. While Perkins is not responsible for the drafting of the 

Option Agreement or the JENCO Note and trust deed, Perkins 

acknowledges that the interpretation of ‚its own work‛ is at the 

heart of this appeal. Thus, although we decide this issue on other 

grounds, given that Perkins drafted the First Amendment and 

Settlement Agreement—for its then-client, Ledges— it is peculiar 

that Perkins now suggests that its own drafting is ambiguous. For 

one thing, clients do not engage lawyers to draft ambiguous 

contracts, and Perkins should not benefit from ambiguity in its 

own drafting. Moreover, an ambiguous contract is interpreted 

against the drafter. See, e.g., Sears v. Riemersma, 655 P.2d 1105, 

1107 (Utah 1982) (‚*A+ny uncertainty with respect to 

construction of a contract should be resolved against the party 

who *drafted+ the agreement.‛); Parks Enters., Inc. v. New Century 

Realty, Inc., 652 P.2d 918, 920 (Utah 1982) (‚It is also settled law 

that a contract will be construed against its drafter.‛). As the 

doctrine is regularly applied to a party to a contract, even 

though it is often that party’s counsel who is responsible for 

drafting the contract, see Sears, 655 P.2d at 1107 (applying the 

doctrine against the party whose counsel had drafted the 

contract), it is even more appropriate to apply it directly against 

that counsel on the rare occasion when the opportunity presents 

itself.
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20140996-CA 11 2016 UT App 140

a concession that no dispute remains under the 

theory advanced by its adversary. In effect, each 

cross-movant implicitly contends that it is entitled 

to judgment as a matter of law, but that if the court 

determines otherwise, factual disputes exist which 

preclude judgment as a matter of law in favor of 

the other side.

Wycalis v. Guardian Title, 780 P.2d 821, 824–25 (Utah Ct. App. 

1989) (omission in original) (citations and internal quotation 

marks omitted). But the alternative argument is unavailing in 

this case.

¶15 On summary judgment, the district court may neither 

weigh credibility nor assign weight ‚to conflicting evidence.‛ 

Martin v. Lauder, 2010 UT App 216, ¶ 14, 239 P.3d 519. Thus, to 

qualify for summary judgment, a party must demonstrate that 

no dispute exists concerning material facts. Id. ¶¶ 14–15. And 

while an appellant who is challenging a summary judgment 

entered against it ‚is ‘entitled to all favorable inferences, *it+ is 

not entitled to build a case on the gossamer threads of whimsy, 

speculation and conjecture.’‛ Ladd v. Bowers Trucking, Inc., 2011 

UT App 355, ¶ 7, 264 P.3d 752 (quoting Manganaro v. Delaval 

Separator Co., 309 F.2d 389, 393 (1st Cir. 1962)). In essence, ‚the 

parties must submit admissible evidence‛ ‚*t+o present an issue 

of material fact,‛ Ladd, 2011 UT App 355, ¶ 7, and 

‚unsubstantiated conclusions and opinions are inadmissible,‛ 

Martin, 2010 UT App 216, ¶ 6 n.4 (citation and internal quotation 

marks omitted).

¶16 As the district court noted, ‚*t+he facts as set forth *by 

JENCO were+ . . . undisputed.‛ This was true even after two 

years of discovery, during which Perkins apparently did not 

turn up any evidence contradicting JENCO’s evidence or

JENCO’s interpretation of the legal effect of that evidence. 

Indeed, Perkins chose not to depose any of Ledges’ executives or 

employees. In JENCO’s words, Perkins ‚instead stood on its 
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20140996-CA 12 2016 UT App 140

summary judgment papers without a single sworn statement 

contradicting or explaining any of Ledges’ actions and conduct.‛ 

And Perkins’s contention that Ledges’ former executives 

‚might‛ dispute JENCO’s interpretation of the agreements was 

simply supposition that Perkins could not rely upon to avoid 

summary judgment in favor of JENCO. See Ladd, 2011 UT App 

355, ¶ 7; Martin, 2010 UT App 216, ¶ 6 n.4. Accordingly, there 

was no evidence before the district court from which it could 

have inferred that a dispute of material fact existed that bore on 

the interpretation of key terms in the agreement between the 

parties to the agreement, and therefore, it properly granted 

summary judgment to JENCO. See Evans v. Huber, 2016 UT App 

17, ¶¶ 13–16, 366 P.3d 862 (noting that where a party’s 

‚opposition to summary judgment merely rested on allegations 

in *its+ complaint,‛ ‚failed to refute the facts *as+ set forth in *the 

opposing party’s+ motion[,] and did not provide or cite any 

evidentiary support‛ for its position, the district court was right 

to conclude that there was no ‚genuine issue of material fact‛ 

and to grant summary judgment to the opposing party).

¶17 Furthermore, as noted, ‚*t+he underlying purpose in 

construing or interpreting a contract is to ascertain the intentions 

of the parties to the contract.‛ WebBank v. American Gen. Annuity 

Serv. Corp., 2002 UT 88, ¶ 17, 54 P.3d 1139 (emphasis added). 

Perkins is not now, and never has been, a party to the 

agreements between JENCO and Ledges. Thus, Perkins’s 

‚intentions‛ with respect to those agreements are irrelevant. See 

id.

III. JENCO Is Entitled to Augment Its Judgment with the 

Amount of Attorney Fees Reasonably Incurred on Appeal.

¶18 Although no agreement addressing attorney fees exists 

between JENCO and Perkins, the JENCO Note and trust deed 

both authorized JENCO to collect attorney fees, among other 

costs, from Ledges in the event that an enforcement action 
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proved necessary. The JENCO Note provides, with our 

emphasis, that Ledges 

shall pay all costs and expenses incurred by 

[JENCO] in connection with the collection and 

enforcement of this Note (regardless of the 

particular nature of such costs and expenses and 

whether incurred before or after the initiation of 

suit or before or after judgment), including, without 

limitation, court costs and . . . attorneys’ fees and 

costs. 

JENCO thus contends that fees it incurred in connection with the 

instant appeal are recoverable as against Ledges, and it seeks to 

have its judgment augmented accordingly. Perkins does not 

oppose the request in its reply brief, and the request appears to 

be in order. Accordingly, we remand the case to the district court 

for the calculation of JENCO’s attorney fees reasonably incurred 

on appeal and augmentation of its judgment as appropriate. See 

Department of Soc. Servs. v. Adams, 806 P.2d 1193, 1197–98 (Utah 

Ct. App. 1991).

CONCLUSION

¶19 The district court properly granted summary judgment to 

JENCO. The plain language of the agreements is unambiguous 

and forecloses Perkins’s alternative interpretation. Perkins 

presented no admissible evidence to the district court disputing 

the factual context against which the court interpreted the 

agreement. The court properly accepted the facts JENCO 

presented as undisputed because Perkins did not dispute them. 

Accordingly, we affirm the district court’s judgment in all 

respects, remanding to the district court only for the calculation 

of JENCO’s fees reasonably incurred on appeal and for 

augmentation of its judgment as appropriate.