2017 UT App 213

THE UTAH COURT OF APPEALS

FAR WEST BANK,

Appellee,

v.

MIKE L. ROBERTSON,

Appellant.

Opinion

No. 20150513-CA

Filed November 16, 2017

Fourth District Court, Provo Department

The Honorable David N. Mortensen

No. 110402516

Mike L. Robertson, Appellant Pro Se

Steven W. Call and Jonathan A. Dibble, Attorneys

for Appellee

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

J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

1

ORME, Judge:

¶1 Following a trustee’s sale, Appellee Far West Bank2

initiated this action to obtain a deficiency judgment against pro 

se Appellant Mike L. Robertson, the sole debtor under a note

 

1. Judge J. Frederic Voros Jr. participated in this case as a 

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

before this decision issued.

2. While this appeal was pending, Far West’s parent company, 

AmericanWest Bank, merged with Banner Bank, at which time 

Far West ceased doing business in Utah. Nevertheless, for the 

sake of convenience we refer to Appellee as “Far West.”
Far West Bank v. Robertson

20150513-CA 2 2017 UT App 213

that was foreclosed nonjudicially. Robertson asserted several

counterclaims, and the parties filed cross-motions for summary 

judgment. Ruling in favor of Far West, the district court 

dismissed Robertson’s counterclaims and found him liable for a

deficiency, leaving the issue of the trust property’s fair market 

value to be resolved at trial. Ultimately, the court found that Far 

West’s credit bid at the trustee’s sale exceeded the fair market 

value of the trust property, thus entitling Far West to a 

deficiency judgment for the difference between the amount bid 

and the amount owed. Robertson now appeals, challenging the 

district court’s decision on summary judgment and arguing that 

it abused its discretion by excluding the testimony of his 

appraiser. We affirm and remand for the limited purpose of 

calculating Far West’s attorney fees reasonably incurred on 

appeal.

3

BACKGROUND4

¶2 On August 21, 2006, Robertson signed a promissory note

(the First Note) in favor of Far West for a $230,000 revolving line 

of credit, which Robertson used to fund a business venture.

While there is some dispute as to precisely which financial 

services were offered and when, the relevant details are clear

enough. On that same day in August 2006, Robertson, as general 

partner of Round Peak Natural Seed Farms, Ltd., executed a 

deed of trust with a power of sale provision (the First Trust 

 

3. Since we affirm the district court’s judgment in Far West’s 

favor, Far West’s motion to strike portions of Robertson’s reply 

brief is moot.

4. “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).
Far West Bank v. Robertson

20150513-CA 3 2017 UT App 213

Deed) in favor of Far West as security for the First Note. A few 

months later, the parties agreed to modify the note by raising the 

credit line from $230,000 to $500,000.

¶3 Robertson signed a second promissory note (the Second 

Note) in favor of Far West on September 12, 2007, this time for a 

revolving credit line capped at $250,000. As security for the

Second Note, Robertson, once again acting as general partner of 

Round Peak, provided Far West with a second deed of trust (the 

Second Trust Deed), which also contained a power of sale 

provision. The First and Second Trust Deeds (together, the Trust 

Deeds) each encumbered the same real property (the Property).

¶4 On February 19, 2009, Far West mailed Robertson a letter 

informing him that both notes were in default. Hoping to 

restructure the debt, Robertson initiated a series of negotiations 

with Far West that continued through May 1, 2009, on which 

date the parties finally signed an agreement. Under that 

agreement, Robertson would consolidate his debt under the First 

and Second Notes by signing a third note (the Consolidated 

Note) in the principal amount of $669,726.32 and an attendant 

loan agreement (the Consolidated Loan Agreement). The parties 

further agreed that the Consolidated Note would be secured by 

the Trust Deeds. Finally, the Consolidated Note and the 

Consolidated Loan Agreement each contained a clause stating 

that the instrument itself, together with the “loan documents” 

and the “related loan documents,” were to be the final 

expression of the parties’ agreement.

¶5 Less than two years later, Robertson again began missing 

payments. On January 13, 2011, the successor trustee (the 

Trustee)5 recorded notices of default under both Trust Deeds.

When more than three months passed without any sign from 

 

5. Far West appointed Steven W. Call as successor trustee under 

the Second Trust Deed on January 7, 2011. It appointed Call as 

successor trustee under the First Trust Deed a few days later.
Far West Bank v. Robertson

20150513-CA 4 2017 UT App 213

Robertson of an intent to cure, the Trustee proceeded with the 

nonjudicial foreclosure process by recording a notice of trustee’s 

sale for each of the Trust Deeds. The two notices of sale 

(together, the Notices of Sale) contained identical property 

descriptions, both of which were identical to the property 

descriptions contained in the notices of default. Robertson was 

timely served with each notice of default and notice of sale.

¶6 On June 1, 2011, Far West purchased the Property at the 

Trustee’s sale for a total of $403,000, having credit-bid $268,000 

on the First Trust Deed and $135,000 on the Second Trust Deed.

Far West then commenced this action against Robertson for a 

deficiency judgment, alleging that its combined credit bids 

amounted to a sum greater than the fair market value of the 

Property but less than the amount owed.

¶7 Although Robertson had not sought any kind of relief in 

the district court prior to the Trustee’s sale, his answer to Far 

West’s complaint included a host of counterclaims, including 

claims for breaches of contract and the implied covenant of good 

faith and fair dealing.

6

In support of his counterclaims, 

Robertson alleged not only that the Trustee’s sale had been

conducted in an unlawful manner, but also that the foreclosure 

process had been unlawful at its inception, as any default on his 

part was directly attributable to Far West’s intentional, 

substantial breach of what he referred to as the parties’ “ACH 

Agreement.”

¶8 Elaborating on the latter claim, Robertson alleged that in 

the course of the parties’ negotiations in connection with the 

First Note, Far West had granted him permission to initiate 

electronic credit and debit entries to Far West accounts for the 

purpose of facilitating electronic payments in connection with 

his business. While the loan documents relating to the First Note

 

6. Robertson abandoned his remaining counterclaims on appeal. 

Accordingly, we do not address them.
Far West Bank v. Robertson

20150513-CA 5 2017 UT App 213

make no mention of this Automated Clearinghouse Agreement 

(the ACH Agreement),

7 Robertson maintained that both parties 

had always understood the service to be integral to the operation 

of his business and to their contractual relationship. In response,

Far West admitted that indeed it did sign an “ACH Origination 

Agreement” (the Origination Agreement), but not until much

later, on October 14, 2008, as a separate agreement unrelated to 

the First and Second Notes. The Origination Agreement, which 

Robertson admits to signing in 2008, does not reference any

business loan or trust deed; it does, however, provide that either 

party may terminate the agreement on ten days’ notice. In any 

event, according to Robertson, the Origination Agreement had 

little practical effect other than to reaffirm the terms of what he 

insists was the parties’ existing ACH Agreement.

¶9 Having argued that the ACH Agreement lay at the center 

of the parties’ contractual relations from the beginning, 

Robertson alleged that Far West unilaterally terminated the

ACH service on September 22, 2010, and, by doing so, breached 

the Consolidated Loan Agreement and intentionally rendered 

his continued performance under the Consolidated Note 

“impossible.”

8 Refining this argument on summary judgment, 

 

7. “The automated clearinghouse (ACH) system is a nationwide 

network through which depository institutions send each other 

batches of electronic credit and debit transfers. The direct 

deposit of payroll, social security benefits, and tax refunds are 

typical examples of ACH credit transfers.” Automated 

Clearinghouse Services, Board of Governors of the Federal 

Reserve System (May 16, 2016), http://www.federalreserve.gov/

paymentsystems/fedach_about.htm [https://perma.cc/8TH3-

WRHW].

8. For purposes of its motion for partial summary judgment, Far 

West stipulated that Robertson did not begin missing payments 

on the Consolidated Note until after Far West had terminated 

the Origination Agreement.
Far West Bank v. Robertson

20150513-CA 6 2017 UT App 213

Robertson produced evidence that Far West had already

terminated its ACH services once before, following his default

on the First Note and the Second Note, but had agreed to resume 

the services on the condition that Robertson sign the 

Consolidated Note. Accordingly, Robertson argued that, while 

neither the Consolidated Note nor the attendant Consolidated 

Loan Agreement made any mention of ACH services, there 

remained a genuine issue of fact as to whether the parties 

intended to include those services as a term of their final 

agreement in 2009. He maintained that if the services were 

included, then Far West’s act of termination in September 2010

amounted to substantial breach, excusing his continued

performance under the Consolidated Note. The evidentiary

lynchpin in Robertson’s argument is an email from his loan 

officer, dated April 30, 2009, which reads, “Mike, [u]pon 

completion of the new loan documentation, we will reinstate 

your ACH line.”

¶10 Upon consideration of the summary judgment motions 

filed by both parties, the district court ruled in favor of Far West, 

granting partial summary judgment on its deficiency claim and 

dismissing each of Robertson’s counterclaims with prejudice.

With respect to the former, the court concluded that Far West 

was entitled to any deficiency that might remain owing on the 

Consolidated Note because “[t]he foreclosures of the Trust 

Deeds were lawfully conducted in compliance with . . . Utah 

law.” With respect to Robertson’s contract counterclaims, the 

court concluded that it could resolve the relevant issues without 

deciding whether the Consolidated Note and the Consolidated

Loan Agreement comprised a complete integration, meaning the 

alleged ACH provision was of no effect.

9

Instead, it reasoned 

 

9. As discussed below, our Supreme Court has defined an 

“integration” as “‘a writing or writings constituting a final 

expression of one or more terms of an agreement.’” Tangren 

Family Trust v. Tangren, 2008 UT 20, ¶ 12, 182 P.3d 326 (quoting 

Hall v. Process Instruments & Control, Inc., 890 P.2d 1024, 1027 

(continued...)
Far West Bank v. Robertson

20150513-CA 7 2017 UT App 213

that even if Far West was obligated to provide ACH services in 

connection with the loan, Robertson had produced no evidence 

that the loan officer intended to “reinstate” any agreement other 

than the Origination Agreement, and it stated that

[t]he [Origination Agreement] unequivocally 

provided that either party could cancel the 

agreement with[] ten . . . days’ notice. The facts are 

undisputed that Far West gave more than twenty 

. . . days’ notice of cancellation of the [Origination 

Agreement] to . . . Robertson and therefore Far 

West fully complied with [its] terms . . . .

[10]

 

(...continued)

(Utah 1995)). Further, the Court has explained that once a 

writing evidencing a contract is deemed integrated, parol 

evidence—that is, “‘evidence of contemporaneous conversations, 

representations, or statements offered for the purpose of varying

or adding to the terms of an integrated contract’”—is 

inadmissible. Id. ¶ 11 (emphasis in original) (quoting Hall, 890 

P.2d at 1026).

10. To the extent Robertson claims the district court improperly 

“weighed the evidence and made a finding of fact” that the 

parties intended the Consolidated Note and the Consolidated

Loan Agreement to be an integration, he misstates the record.

While the court may have offhandedly referred to the 

Origination Agreement as “parol evidence” during the summary 

judgment hearing, it adopted no such language in its final order. 

Rather, the court’s conclusion that Robertson’s contract 

counterclaims should be dismissed was predicated solely on the 

basis of the court’s determinations that Far West had lawfully 

foreclosed the Trust Deeds and that it had “complied with the 

termination terms of the [Origination Agreement]” when 

terminating its ACH services. But in any event, as we discuss 

below, the district court would have been justified in concluding 

(continued...)
Far West Bank v. Robertson

20150513-CA 8 2017 UT App 213

¶11 Having resolved all issues of liability on summary 

judgment, the court scheduled a trial for July 2, 2013, to address

the narrow questions of “the balance owing under the 

[Consolidated Note]” and “the fair market value of the 

[Property]” as of the date of the Trustee’s Sale.11 At trial, Far 

West called Robertson’s loan officer and an appraiser to testify as 

to each issue, respectively. For his part, Robertson testified on his 

own behalf, claiming that Far West had credit-bid a sum 

substantially lower than the Property’s value. He also sought to 

introduce the testimony of his own appraiser. The court 

excluded that testimony, however, as Robertson had failed to 

identify the witness prior to trial.

¶12 Following trial, the district court found that the balance 

owed under the Consolidated Note was $693,513.97, the sale 

price was $403,000, and the fair market value of the Property 

was $340,000. Accordingly, because “the fair market value of the 

[P]roperty . . . at the time of the foreclosure sales was less than 

the $403,000 amount [that Far West] credit bid,” the court fixed 

the deficiency judgment in the amount of the difference between 

what was owed and what was bid.

¶13 Robertson moved for a new trial under rule 59 of the Utah 

Rules of Civil Procedure. His motion was denied, and he now 

appeals.

 

(...continued)

that the Consolidated Note and the Consolidated Loan 

Agreement were an integration as a matter of law.

11. Section 57-1-32 of the Utah Code provides that a “court may 

not render judgment for more than the amount by which the 

amount of the indebtedness with interest, costs, and expenses of 

sale, . . . exceeds the fair market value of the property as of the 

date of the sale.” Utah Code Ann. § 57-1-32 (LexisNexis 2010).
Far West Bank v. Robertson

20150513-CA 9 2017 UT App 213

ISSUES AND STANDARDS OF REVIEW

¶14 Although in his brief Robertson articulates six separate 

issues for our consideration on appeal, he essentially argues that 

the district court committed three errors. First, Robertson

contends that the district court erred by dismissing his

counterclaims for breaches of contract and the implied covenant 

of good faith and fair dealing. Second, he maintains that the 

court erred by granting partial summary judgment on Far West’s 

claim for a deficiency. Finally, Robertson argues that the court

erred at the trial stage by excluding the testimony of his 

appraiser.

¶15 We review the district court’s “ultimate grant or denial of 

summary judgment for correctness.” Jones & Trevor Mktg., Inc. v. 

Lowry, 2012 UT 39, ¶ 9, 284 P.3d 630 (citations and internal 

quotation marks omitted). “We give no deference to the district 

court’s legal conclusions and consider whether the court 

correctly decided that no genuine issue of material fact existed.” 

Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 15, 390 P.3d 314

(citation and internal quotation marks omitted).

¶16 Our review of the district court’s decision on summary 

judgment requires us to review the court’s interpretation of the 

parties’ written agreements. “The interpretation of a contract is a 

question of law, which we review for correctness, giving no 

deference to the ruling of the [trial] court.” McNeil Engineering

& Land Surveying, LLC v. Bennett, 2011 UT App 423, ¶ 7, 268 P.3d 

854 (alteration in original) (citation and internal quotation marks 

omitted).

¶17 We review the district court’s decision to exclude the 

testimony of Robertson’s appraiser under a “bifurcated 

standard.” See Glacier Land Co. v. Claudia Klawe & Assocs., LLC, 

2006 UT App 516, ¶ 13, 154 P.3d 852. “[T]o the extent the issue 

on appeal required the trial court to interpret rules of civil 

procedure, it presents a question of law which we review for 

correctness.” Id. (citation and internal quotation marks omitted).
Far West Bank v. Robertson

20150513-CA 10 2017 UT App 213

However, the court’s decision to impose sanctions, such as the 

exclusion of evidence under rule 37 of the Utah Rules of Civil 

Procedure, is reviewed for abuse of discretion. Id.

ANALYSIS

¶18 We begin by reviewing the district court’s order denying 

Robertson’s motion for summary judgment and granting Far 

West’s cross-motion for summary judgment on each of 

Robertson’s counterclaims. We then review the court’s decision 

granting partial summary judgment on Far West’s claim for a 

deficiency judgment. We conclude by considering Robertson’s 

challenge to the court’s decision excluding the trial testimony of 

his appraiser.

I. Robertson’s Counterclaims

¶19 Robertson contends that the district court erred when it 

dismissed his counterclaims for breaches of contract and the 

implied covenant of good faith and fair dealing. We hold that the 

district court properly dismissed the counterclaims.

A. Robertson’s Counterclaim for Breaches of Contract

¶20 Quoting our Supreme Court’s decision in Bullfrog Marina, 

Inc. v. Lentz, 501 P.2d 266 (Utah 1972), Robertson maintains that 

his counterclaim should have survived summary judgment 

under the rule that

where two or more instruments are executed by the 

same parties contemporaneously, or at different 

times in the course of the same transaction, and 

concern the same subject matter, they will be read 

and construed together so far as determining the 

respective rights and interests of the parties, 

although they do not in terms refer to each other.
Far West Bank v. Robertson

20150513-CA 11 2017 UT App 213

Id. at 271 (emphasis added). Robertson contends that, given the 

alleged centrality of Far West’s ACH services to the parties’ 

contractual relationship, under the rule in Bullfrog Marina there 

remains a genuine issue of fact as to whether the Consolidated 

Note and the Consolidated Loan Agreement should be “read 

and construed together” with his loan officer’s emailed promise

to “reinstate [the] ACH line.” The issue is material, he argues,

because if the loan officer’s promise to provide ACH services 

was an essential term of the parties’ final agreement, then not 

only might Far West’s termination of the service have excused 

him from making further payments under the Consolidated 

Note, but Far West could well be liable to him for any resulting

damages. See Jackson v. Rich, 499 P.2d 279, 280–81 (Utah 1972) 

(“‘As a rule, a party first guilty of substantial or material breach 

of contract cannot complain if the other party thereafter refuses 

to perform. . . . It has also been said that where a contract is not 

performed, the party who is guilty of the first breach is generally 

the one upon whom rests all the liability for the 

nonperformance.’”) (quoting what is now 17 Am. Jur. 2d 

Contracts § 589 (2016)). Accordingly, Robertson maintains that 

the district court’s dismissal of his counterclaim was premature.

¶21 We agree that, as a general proposition, the question of

whether the parties to a contract intended that a particular 

document or set of documents should be deemed to contain the 

final and complete expression of their agreement is a question of 

fact and, thus, often cannot be resolved on summary judgment.

See City of Grantsville v. Redevelopment Agency, 2010 UT 38, ¶¶ 24,

29, 233 P.3d 461. Nevertheless, we take issue in two respects with

Robertson’s line of reasoning. First, unlike the commercial lease 

and employment contract at issue in Bullfrog Marina, it is

unlikely that the email Robertson received from his loan officer

rose to the level of formality characteristic of an “instrument”—

the operative term used in Bullfrog Marina. See Instrument, 

Black’s Law Dictionary (9th ed. 2009) (“A written legal 

document that defines rights, duties, entitlements, or liabilities, 

such as a contract[.]”). Second, and more importantly, 
Far West Bank v. Robertson

20150513-CA 12 2017 UT App 213

Robertson’s reliance on Bullfrog Marina is at odds with the Utah 

Supreme Court’s more recent jurisprudence on the doctrine of 

integration.

¶22 An “integration,” our Supreme Court has explained, is “‘a 

writing or writings constituting a final expression of one or more 

terms of an agreement.’” Tangren Family Trust v. Tangren, 2008 

UT 20, ¶ 12, 182 P.3d 326 (quoting Hall v. Process Instruments 

& Control, Inc., 890 P.2d 1024, 1027 (Utah 1995)). The effect is that

once a document or set of documents is deemed an integration, 

under the parol evidence rule “‘evidence of contemporaneous 

conversations, representations, or statements offered for the 

purpose of varying or adding to the terms of [the] integrated

contract’” is inadmissible. Id. (emphasis omitted) (quoting Hall, 

890 P.2d at 1026). Prior to the Court’s decision in Tangren, trial 

courts were essentially required to determine “as a question of 

fact” whether the parties adopted a writing or writings as an 

integration “[w]henever a litigant . . . ask[ed for] the application 

of the parol evidence rule.” Bullfrog Marina, 501 P.2d at 266.

¶23 In Tangren, however, the Court expressly disapproved of 

its previous decision in Bullfrog Marina because that decision

permitted the admission of “any relevant evidence” to prove

that a document was not intended to be an integration. Tangren, 

2008 UT 20, ¶ 16 & n.20. The Court held in Tangren that, contrary

to the rule it articulated in Bullfrog Marina, trial courts “will not 

allow extrinsic evidence of a separate agreement to be 

considered on the question of integration in the face of a clear 

integration clause.” Id. ¶ 16.

¶24 We conclude that Robertson’s counterclaim for breach of 

contract was properly dismissed on summary judgment under 

the Tangren rule. Because the Consolidated Note and the 

Consolidated Loan Agreement each contained an integration 

clause, Robertson was precluded from introducing evidence that 

the documents referred to in those clauses did not fully and 

finally express the parties’ agreement. Thus, the email from 

Robertson’s loan officer was incapable of raising a genuine issue 
Far West Bank v. Robertson

20150513-CA 13 2017 UT App 213

of fact as to the question of integration as a matter of law, and

Far West was entitled to the benefit of the parol evidence rule on 

summary judgment.

¶25 We do observe that under the facts in the instant case, the 

rule in Tangren does not lend itself to an altogether 

straightforward application. Specifically, we acknowledge that 

the instruments’ integration clauses state that the parties’ final 

expression of their agreement was not restricted to the four 

corners of the instruments themselves, but also included certain 

additional, unspecified “loan documents” and “related loan 

documents.” Therefore, as a factual matter, it is not 

inconceivable that the Origination Agreement—which, after all, 

Far West does admit to signing—could be one of the loan 

documents referred to.

12 But as the district court recognized, this 

factual issue, while material to the question of integration, is 

nevertheless immaterial to the ultimate question of Far West’s 

alleged breach. Even if Far West was bound by the terms of the 

Origination Agreement, it is undisputed that it complied with 

those terms when it terminated its ACH services in September 

2010. Thus, even if we assume that the Origination Agreement 

was incorporated into the parties’ final agreement given the 

phraseology of the integration clause, the dismissal of 

 

12. Neither the Consolidated Note nor the Consolidated Loan 

Agreement defines the terms “loan documents” or “related loan 

documents,” but the Consolidated Loan Agreement defines 

“Loan,” with our emphasis, as “any and all loans and financial 

accommodations from Lender to Borrower whether now or hereafter 

existing, and however evidenced.” It further defines “Related 

Documents”—again with our emphasis—as “all promissory 

notes, credit agreements, loan agreements, . . . and all other 

instruments, agreements and documents, whether now or hereafter 

existing, executed in connection with the Loan.”
Far West Bank v. Robertson

20150513-CA 14 2017 UT App 213

Robertson’s counterclaim would still be appropriate on 

summary judgment.

13

 

13. Robertson also argues, in the alternative, that if the 

Origination Agreement was integrated into the terms of the 

Consolidated Note and the Consolidated Loan Agreement, then 

we should hold that the parties’ entire agreement was void ab 

initio for want of consideration. Quoting our Supreme Court’s 

decision in Resource Management Co. v. Weston Ranch & Livestock 

Co., 706 P.2d 1028 (Utah 1985), Robertson contends that 

including a provision for termination on ten days’ notice is 

tantamount to reserving an “arbitrary right to terminate the 

contract.” Id. at 1037. But the Court in Resource Management did 

not comment on the enforceability of a notice-termination 

provision, see id., and Robertson does not adequately explain 

why the principle articulated in that case should have any 

application to the facts of this case. In actuality, it does not. As 

neither Robertson nor Far West was permitted to terminate the 

Origination Agreement except upon ten days’ notice, the terms 

of the Origination Agreement were at all times binding upon 

both parties for a period of at least ten days. Furthermore, the 

Origination Agreement expressly provided that Far West must 

fully process any ACH transaction that Robertson might initiate

prior to either party’s giving notice of its intent to terminate. 

Finally, courts in other states have uniformly held that the right 

to terminate a contract on a specified notice period does not 

render a contract void for lack of consideration. See, e.g., Goff v. 

Massachusetts Protective Ass’n, 176 N.W.2d 576, 579 (Wis. 1970) 

(“[The fact that] both parties had a right on 30-days’ notice to 

terminate the agreements does not render the contracts lacking 

in mutuality . . . of consideration[.]”). See also, e.g., Strobe v. 

Netherland Co., 283 N.Y.S. 246, 253 (App. Div. 1935) (explaining 

that, where an employer reserves the right to terminate the 

employment contract upon thirty days’ notice, the contract is 

“binding for thirty days at least” and is thus not void for lack of 

consideration).
Far West Bank v. Robertson

20150513-CA 15 2017 UT App 213

¶26 On the other hand, what clearly does not fall within the 

ambit of “loan documents” or “related loan documents,” as 

those terms appear in the instruments’ integration clauses, is the 

email Robertson received from his loan officer the day before the 

Consolidated Note and Consolidated Loan Agreement were 

signed. Apparently hoping to smuggle an additional ACH term 

into the parties’ deal apart from the arrangement provided in the 

Origination Agreement, Robertson argues that the loan officer’s 

email, which promised to “reinstate [the] ACH line” once the 

instruments had been signed, was included among the “loan 

documents” referred to in the integration clauses and 

“constituted everything the parties had bargained for[.]” We 

hold that, on the contrary, the parol evidence rule bars 

Robertson from using the email to graft an ACH term, separate 

from the arrangement in the Origination Agreement, into the 

parties’ bargain.

14 See Tangren, 2008 UT 20, ¶ 11 (quoting Hall, 

 

14. Likewise, we reject the argument that the loan officer’s email 

had the effect of modifying the Origination Agreement. 

Robertson contends that, even if we conclude the Origination 

Agreement was the sole source of any obligation Far West had to 

provide ACH services under the parties’ arrangement, 

nevertheless a triable factual issue remains as to whether the 

loan officer’s email effectively modified the Origination 

Agreement by excising its permissive termination term. It is 

unclear how the loan officer’s bare promise to “reinstate [the] 

ACH line” could have accomplished this feat. And Robertson’s 

scant reasoning does little to illuminate matters. In any event, 

Robertson’s argument fails because it relies on parol evidence to 

add to the terms of the Consolidated Note and the Consolidated 

Loan Agreement. Even assuming that the Origination 

Agreement was incorporated into the Consolidated Note and the

Consolidated Loan Agreement by means of those instruments’ 

integration clauses, the loan officer’s email remains inadmissible 

to vary the terms contained in any document so incorporated, 

including the Origination Agreement. Thus, because Robertson 

has produced no competent evidence raising a genuine issue of 

(continued...)
Far West Bank v. Robertson

20150513-CA 16 2017 UT App 213

890 P.2d at 1026) (explaining that “parol evidence” is “‘evidence 

of contemporaneous conversations, representations, or 

statements offered for the purpose of varying or adding to the 

terms of [the] contract’”). If, when drafting the Consolidated 

Note and the Consolidated Loan Agreement, the parties had 

indeed intended that the emails they exchanged in the days 

leading up to the date those instruments were signed should be

included within the sweep of the instruments’ integration 

clauses along with “loan documents” and “related loan 

documents,” undoubtedly they would have made this explicit.

15

 

(...continued)

fact as to whether the Origination Agreement was modified, his 

contention was properly rejected on Far West’s motion for 

partial summary judgment. See Waddoups v. Amalgamated Sugar 

Co., 2002 UT 69, ¶ 31, 54 P.3d 1054 (“[O]nce the moving party 

[who does not bear the burden of proof on the challenged claim 

at trial] challenges an element of the nonmoving party’s case on 

the basis that no genuine issue of material fact exists, the burden 

then shifts to the nonmoving party to present evidence that is 

sufficient to establish a genuine issue of material fact.”).

15. Robertson raises yet another argument aimed at 

circumventing the Origination Agreement’s termination 

provision by characterizing the loan officer’s email as a new 

“offer” to provide ACH services apart from the Origination 

Agreement, which Robertson then “accepted” the next day by 

signing the Consolidated Note and the Consolidated Loan 

Agreement. But Robertson’s characterizations do not withstand

even superficial scrutiny. “An acceptance is a manifestation of 

assent to an offer, such that an objective, reasonable person is 

justified in understanding that a fully enforceable contract has 

been made.” Cal Wadsworth Constr. v. City of St. George, 898 P.2d 

1372, 1376 (Utah 1995). Robertson maintains that a triable issue 

exists as to whether an objective, reasonable person, upon 

finding that Robertson had signed the Consolidated Note and 

(continued...)
Far West Bank v. Robertson

20150513-CA 17 2017 UT App 213

¶27 Accordingly, we hold that since the Consolidated Note 

and the Consolidated Loan Agreement each contained an 

integration clause, and since the statements contained in the loan 

officer’s email did not fall within the scope of those clauses, the 

parol evidence rule precluded Robertson from producing 

evidence of any ACH term outside the Origination Agreement. 

We therefore hold that the district court correctly dismissed 

Robertson’s counterclaim for breach of contract on summary 

judgment.

B. Robertson’s Counterclaim for Breach of the Implied 

Covenant of Good Faith and Fair Dealing

¶28 Robertson also contends that the district court erred in 

dismissing his claim for breach of the implied covenant of good 

faith and fair dealing. We conclude that it did not.

¶29 Inherent in every contract is “[a]n implied covenant of 

good faith and fair dealing.” Eggett v. Wasatch Energy Corp., 2004 

UT 28, ¶ 14, 94 P.3d 193. Under the covenant, “both parties to a 

contract impliedly promise not to intentionally do anything to 

injure the other party’s right to receive the benefits of the 

contract.” Id. “However, we will not interpret the implied 

 

(...continued)

the Consolidated Loan Agreement, would be justified in 

understanding that Robertson had manifested assent to an offer 

from his loan officer on behalf of Far West to provide ACH 

services independent of the Origination Agreement. The 

problem, however, is that the Consolidated Note and the 

Consolidated Loan Agreement make no mention whatsoever of

ACH services. We hold, without hesitation, that no reasonable 

person could conclude that an enforceable contract to provide 

ACH services was created on the basis of a document that on its 

face has nothing at all to do with ACH services. Accordingly, 

Robertson has failed to raise a triable issue of fact capable of 

surviving summary judgment.
Far West Bank v. Robertson

20150513-CA 18 2017 UT App 213

covenant of good faith and fair dealing to make a better contract 

for the parties than they made for themselves.” Brown v. Moore, 

973 P.2d 950, 954 (Utah 1998).

¶30 The covenant of good faith and fair dealing is subject to 

several well-established limiting principles. One is that the 

covenant “cannot be read to establish new, independent rights or 

duties to which the parties did not agree ex ante.” Oakwood 

Village LLC v. Albertsons, Inc., 2004 UT 101, ¶ 45, 104 P.3d 1226. 

See Brehany v. Nordstrom, Inc., 812 P.2d 49, 55 (Utah 1991). 

Another is that the covenant “cannot create rights and duties 

inconsistent with express contractual terms.” Oakwood Village, 

2004 UT 101, ¶ 45. See Rio Algom Corp. v. Jimco Ltd., 618 P.2d 497, 

505 (Utah 1980). A third is that courts “will not use [the] 

covenant to achieve an outcome in harmony with the court’s 

sense of justice but inconsistent with the express terms of the 

applicable contract.” Oakwood Village, 2004 UT 101, ¶ 45. See 

Dalton v. Jerico Constr. Co., 642 P.2d 748, 750 (Utah 1982).

¶31 With these limiting principles in mind, we can dispose of 

Robertson’s claim of error in short order. Robertson complains in 

his brief that his “whole purpose” for seeking a loan from Far 

West in the first instance “was to obtain ACH services for his 

business” and that he “relied upon the funds generated from the 

ACH Agreement” to make his payments. Whether or not these 

assertions are true, they are insufficient to state a claim. Even if 

we assume that Far West was obligated to provide ACH services 

in connection with the Consolidated Note, we have already 

determined that the obligation derived from no source other 

than the Origination Agreement. Thus, because Robertson does 

not dispute that Far West complied with the Origination 

Agreement’s terms when it terminated its ACH services, his 

claim fails because the covenant he invokes “cannot be read to 

establish new, independent rights or duties to which the parties 

did not agree ex ante.” Oakwood Village, 2004 UT 101, ¶ 45.

Accordingly, we hold that the district court properly dismissed 

Robertson’s good-faith-and-fair-dealing counterclaim on 

summary judgment.
Far West Bank v. Robertson

20150513-CA 19 2017 UT App 213

II. Far West’s Deficiency Claim—The Validity of the 

Trustee’s Sale

¶32 Robertson next contends that, regardless of whether his 

counterclaims were properly dismissed, the district court’s 

decision granting partial summary judgment on Far West’s 

deficiency claim should be reversed because the Trustee’s sale 

was conducted in an unlawful manner. Robertson advances two 

grounds for this contention. First, he argues that the district 

court wrongly concluded that the Trustee’s Notices of Sale 

complied with section 57-1-25(1) of the Utah Code. See generally

Utah Code Ann. § 57-1-25(1) (LexisNexis 2010). Second, he 

argues that the district court erred when it did not find that a 

genuine issue of fact existed as to whether the Trustee timely 

received Robertson’s request for a payoff statement. See id. § 57-

1-31.5(2). We address each of these arguments in turn.

A. Validity of the Trustee’s Sale

¶33 Robertson argues, first, that the Trustee’s Notices of Sale 

were deficient under section 57-1-25(1) because they failed to 

“particularly describ[e] the property to be sold.” See id. § 57-1-

25(1). In so arguing, he does not dispute that the Notices of Sale

included an accurate metes-and-bounds description of the 

Property. In fact, he appears to concede that if the Trustee had 

stopped there, the property description would have been 

entirely sound. The problem, Robertson maintains, is that the 

Trustee went one step further to include, in addition to the metes 

and bounds of the Property, a single tax identification number 

(TIN). While a TIN is usually a matter of interest only to the 

taxpayer and the tax collector, Robertson argues that the 

Trustee’s decision to include only one of those TINs “cause[d] 

great confusion, which resulted in a [chilling] of the bidding 

process” because the Property was comprised of four individual 

parcels of land, each of which has a unique TIN.

¶34 Robertson’s point is not wholly without merit. Citing 

evidence from the record, he observes that the TIN that made its 
Far West Bank v. Robertson

20150513-CA 20 2017 UT App 213

way into the Notices of Sale belongs to what was very likely the 

least valuable of the four parcels. Robertson illustrates the issue 

by posing the following hypothetical: Suppose that the Trustee 

were instead trying to sell four houses on contiguous parcels 

that together comprised a single neighborhood block. Under 

such circumstances, even if the Trustee were to provide potential 

buyers with the metes and bounds of the block, it would be 

odd—and perhaps suspicious—if he were to include in his 

notice of sale the address of only the least valuable of the four 

individual houses.16

¶35 Nevertheless, while we agree that the Trustee’s action 

likely did not comport with best practices, it is unnecessary to 

reach the question of whether the Notices of Sale were sufficient 

under the legal standard of section 57-1-25(1). We hold that Far 

West was entitled to judgment as a matter of law regardless of 

the Notices’ legal sufficiency because, once the sale had been 

completed, Robertson was required to adduce evidence of both 

defect and prejudice to assert a successful defense.17

 

16. Of course, the analogy is far from perfect. The street address 

of a residential property is a much more meaningful identifier of 

real property for prospective buyers than a TIN. The one is 

readily discernible from the street; the other is little more than an 

invitation to review records at the county offices. The property 

description of importance is the legal description—in this case, 

the metes-and-bounds description set out in the Notices of Sale. 

Among serious potential buyers of property, the legal 

description is the one that matters, even though a sophisticated 

buyer will no doubt make inquiry if the legal description 

appears to cover more ground than a street address or TIN also 

included in a notice of sale.

17. When reviewing a summary judgment decision, we are free 

to affirm on legal ground other than those adopted by the 

(continued...)
Far West Bank v. Robertson

20150513-CA 21 2017 UT App 213

¶36 “Unless there is evidence of fraud or other unfair 

dealing,” a trustee’s sale once accomplished will not be set aside 

unless the trustor can “show he suffered prejudice from some 

defect in the sale.” Bank of America v. Adamson, 2017 UT 2, ¶ 23, 

391 P.3d 196. This is because “‘the need for finality is at its apex’” 

when “‘title to real property is at issue,’” id. ¶ 17 (quoting 

American Estate Mgmt. Corp. v. International Inv. & Dev. Corp., 

1999 UT App 232, ¶ 10, 986 P.2d 765), and thus, in most cases the 

proper time for a trustor to assert his rights is before the trustee’s 

sale has taken place, id. ¶ 16. Furthermore, a trustor “seek[ing] to 

have a trustee sale set aside for irregularity, want of notice, or 

fraud has the burden of proving his contention” because, absent 

“evidence to the contrary,” courts will “presume[] . . . that the 

sale was regular.” Concepts, Inc. v. First Sec. Realty Services, Inc., 

743 P.2d 1158, 1159 (Utah 1987).

¶37 In view of these principles, any notice-of-sale 

irregularities a trustor may allege in opposition to a trustee’s 

summary judgment motion in a post-sale deficiency action are 

immaterial if the trustor “does not demonstrate that . . . [there 

was] a resulting ‘effect of chilling the bidding and causing an 

inadequacy of price.’” Timm v. Dewsnup, 2003 UT 47, ¶ 37, 86 P.3d 

699 (emphasis added) (quoting Concepts, 743 P.2d at 1159). See 

Gilroy v. Ryberg, 667 N.W.2d 544, 558 (Neb. 2003) (“If the defect 

did not result in a reduced sales price, courts have refused to set 

aside the sale.”). See also Adamson, 2017 UT 2, ¶ 24 (citing Gilroy

with approval). Cf. Jones v. Johnson, 761 P.2d 37, 41 n.2 (Utah Ct. 

App. 1988) (“In both [judicial and nonjudicial] foreclosures[,] 

‘substantial inadequacy of price, coupled with fraud, mistake, or 

other unfair dealing’ can be the basis for setting aside a 

foreclosure sale.”) (emphasis added) (quoting First Nat’l Bank v. 

Haymond, 57 P.2d 1401, 1405 (Utah 1936)).

 

(...continued)

district court. See RJW Media, Inc. v. CIT Group/Consumer Finance, 

Inc., 2008 UT App 476, ¶ 36, 202 P.3d 291.
Far West Bank v. Robertson

20150513-CA 22 2017 UT App 213

¶38 It is undisputed that Robertson did not raise his 

dissatisfaction with the Trustee’s description of the Property 

until after the Trustee’s sale had been completed. Therefore, to 

defeat Far West’s motion for partial summary judgment by 

challenging the sufficiency of the Notices of Sale, it was 

incumbent upon him to offer up more than mere speculative, 

unsubstantiated allegations that the bidding process was chilled. 

Rather, Robertson was required to demonstrate that there 

existed a triable issue of fact as to whether he was prejudiced by 

an inadequate sale price—a formidable burden where, as here,

the sale price exceeded the fair market value of the Property. See 

Timm, 2003 UT 47, ¶ 37. But in any event, Robertson failed to 

allege any facts that would support a finding of prejudice.

18

¶39 Because Robertson has not demonstrated that the claimed 

flaw in the Notices of Sale resulted in the Trustee receiving a 

price for the Property that was lower than what would have 

been received without the flaw, it makes no difference whether 

the property description in the Notices satisfied the legal 

standard of section 57-1-25(1). There being no genuine issue of 

material fact as to whether Robertson was prejudiced by the 

Trustee’s sale, the district court did not err by granting partial 

summary judgment in favor of Far West.

B. Payoff Statement Request

¶40 Robertson next contends that partial summary judgment 

in Far West’s favor was inappropriate because a genuine issue of 

fact exists as to whether the Trustee failed to respond to his

timely request for a payoff statement. Section 57-1-31.5(2) of the 

Utah Code provides that “[a]n interested party may submit a 

written request to a trustee for a statement of the amount 

 

18. Of course, if Robertson had raised his objections to the 

Notices of Sale with the district court before the Trustee’s sale, 

and had the district court required that corrected Notices of Sale 

be recorded, this problem would have been entirely avoided.
Far West Bank v. Robertson

20150513-CA 23 2017 UT App 213

required . . . to pay off a loan secured by a trust deed.” Utah 

Code Ann. § 57-1-31.5(2)(a)(i) (LexisNexis 2010). It further 

provides that “[a] request for a payoff statement is not timely

unless the trustee receives the request at least 10 business days 

before the trustee’s sale,” id. § 57-1-31.5(2)(a)(ii)(B), and that “[i]f, 

after scheduling a trustee’s sale, the trustee fails to provide a 

requested payoff statement[,] the trustee shall . . . cancel the 

trustee’s sale . . . or . . . postpone the trustee’s sale,” id. § 57-1-

31.5(2)(c)(ii). Robertson contends that he raised a triable issue of 

fact regarding whether the Trustee received a payoff request at 

least ten days prior to the Trustee’s Sale, that is, by May 18, 2011.

¶41 As an initial matter, we take note of what Robertson has 

not alleged, namely, that he had access to funds sufficient to cure 

the default or that he made any offer to cure the default. 

“Generally, ‘[a]n unconditional tender of performance in full by 

[the trustor,] even if rejected by the [trustee], . . . if kept good has 

the effect of performance’” and will justify setting aside a 

trustee’s sale. Capri Sunshine, LLC v. E & C Fox Invs., LLC, 2015 

UT App 231, ¶ 15, 366 P.3d 1214 (first alteration in original)

(quoting Restatement (Third) of Property: Mortgages § 6.4(g) 

(Am. Law Inst. 1997)). But “simply indicating a willingness to 

pay without tendering payment is insufficient for performance,”

id., and we have upheld the dismissal of a complaint seeking to 

set aside a trustee’s sale for inadequate compliance with section 

57-1-31.5 where the trustor did not “actually offer[] or tender[] 

payment to cure the default.” Id. We also observed in Capri 

Sunshine that, like here, the trustor “failed to demonstrate . . .

that a violation of [section 57-1-31.5] would support setting . . . [a 

completed] trustee’s sale aside.” Id. ¶ 26.

¶42 Notwithstanding these considerations, we conclude that

Robertson’s section 57-1-31.5 defense was properly rejected by 

the district court on summary judgment because Robertson 

failed to produce evidence sufficient to raise a genuine issue of 

material fact. At the relevant time, “Utah Rule of Civil Procedure 

56(c) specifically list[ed] the materials that [could] be placed 

before the court in a summary judgment action.” White Pine 
Far West Bank v. Robertson

20150513-CA 24 2017 UT App 213

Ranches v. Osguthorpe, 731 P.2d 1076, 1077 (Utah 1986).19 The rule 

provided that the “judgment sought shall be rendered if the 

pleadings, depositions, answers to interrogatories, and admissions on 

file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact.” Utah R. Civ. P. 56(c) (2014) 

(emphasis added). It further provided that “[s]upporting and 

opposing affidavits . . . shall set forth such facts as would be 

admissible in evidence.” Id. R. 56(e) (emphasis added). Our 

Supreme Court has elaborated upon this latter requirement by 

stating that “[s]ummary judgment may . . . not be denied based 

solely on inadmissible hearsay” from the non-moving party. 

Wayment v. Clear Channel Broadcasting, Inc., 2005 UT 25, ¶ 41, 116 

P.3d 271.

¶43 Section 57-1-31.5 provides specific rules for determining 

when a trustee will be deemed to have received a request for a 

payoff statement. The statute explains that “[a] trustee is 

considered to have received [a payoff statement request] . . . if 

. . . the interested party submitted the request through an 

approved delivery method . . . and . . . documentation provided 

under [that method] indicates that . . . the request was delivered 

to the trustee[.]” Utah Code Ann. § 57-1-31.5(2)(a)(iv) (emphasis 

added). Further, it states that an “‘[a]pproved delivery method’ 

means delivery by . . . certified or registered United States mail 

with return receipt requested; or . . . a nationally recognized letter 

or package delivery or courier service . . . that provides a service 

for . . . tracking the delivery of an item; or . . . documenting . . . that 

the item was received by the intended recipient[.]” Id. § 57-1-31.5(1)(a) 

(emphasis added).

 

19. Rule 56 of the Utah Rules of Civil Procedure was amended in 

2015 to adopt the language of the corresponding Federal Rule of 

Civil Procedure. See Porter v. EB Golf LLC, 2016 UT App 82, ¶ 7 

n.3, 372 P.3d 709. We quote the previous version, as it was the 

version in effect at the time the motion was argued and decided.
Far West Bank v. Robertson

20150513-CA 25 2017 UT App 213

¶44 In support of its motion for partial summary judgment, 

Far West included an affidavit from the Trustee averring that he 

never received any payoff statement request from Robertson and 

that he was never presented with a return receipt requesting his 

signature in connection with any such request. Thus, to raise a 

genuine issue of fact capable of precluding summary judgment, 

it was incumbent upon Robertson to controvert the Trustee’s 

affidavit by pointing to evidence from the pleadings, 

depositions, answers to interrogatories, admissions, or affidavits 

in the record. See Utah R. Civ. P. 56(c). Furthermore, if Robertson 

elected to oppose Far West’s motion with an affidavit of his own, 

he was limited to “such facts as would be admissible in 

evidence.” Id. R. 56(e).

¶45 Robertson failed to produce any evidence of the sort 

required to demonstrate that he complied with section 57-1-31.5 

by sending his request through an “approved delivery method.” 

To support his contention that the Trustee received his request, 

Robertson relies on the statements of his own trial counsel at the 

summary judgment hearing and a photocopy of a transaction 

receipt—not a return receipt—from the United States Postal 

Service, showing that he mailed something on May 16, 2011. 

Neither is sufficient to controvert the Trustee’s affidavit under 

rule 56.

¶46 To begin with, the statements of Robertson’s trial counsel 

are not part of the pleadings, depositions, answers to 

interrogatories, admissions, or affidavits in the record. Thus, 

Robertson cannot rely on them to oppose Far West’s summary 

judgment motion. Likewise, the transaction receipt, although 

attached to Robertson’s affidavit, failed to raise a triable factual 

issue. The affidavit itself asserts only that the request was mailed, 

not that it was actually received by the Trustee. Similarly, the 

transaction receipt is, at best, only evidence that the request was 

mailed and is legally incapable of establishing the Trustee’s 

receipt of the request. As stated above, under section 57-1-31.5 

Robertson was required to request a return receipt when mailing 

his request or else to use a courier “that provides a service for . . . 
Far West Bank v. Robertson

20150513-CA 26 2017 UT App 213

documenting . . . that the item was received by the intended 

recipient.” Utah Code Ann. § 57-1-31.5(1)(a) (LexisNexis 2010). 

Moreover, a trustee is considered to have received a request only 

if the documentation provided by the chosen courier “indicate[s] 

that . . . the request was delivered to the trustee[] or . . . delivery 

of the request was refused.” Id. § 57-1-31.5(2)(a)(iv). Robertson’s 

receipt does not satisfy these requirements for two reasons. First, 

the transaction receipt is not a return receipt. And second, the 

transaction receipt is devoid of any indication that the mail 

service Robertson utilized would “document[] . . . that the item 

was received by the intended recipient.” Id. § 57-1-31.5(1)(a).

¶47 On the latter point, two observations are in order. First, 

while nearly all the transaction receipt’s contents were obviously 

printed by mechanical means, two brief notes appear to have 

been scribbled by hand into the receipt’s lower left-hand margin. 

The first reads, “Notice in box: 5-17-2011,” and the second reads, 

“Signed: 5-18-2011.” It is impossible to tell who wrote the notes, 

or when they were written, as they are accompanied by neither a 

name nor a dated signature. Nor does the form of the receipt 

provide any clues as to the notes’ origin. The notes are not 

written above any preprinted lines or inside any preprinted 

boxes. Finally, Robertson, for his part, offers no explanations; he 

simply points to the May 18 date and asks us to conclude that 

“[s]omeone with access to the Trustee’s certified P.O. Box did in 

fact receive [his request] and sign[] for it.”

¶48 Second, the transaction receipt also contains what 

purports to be a “Signature Confirmation Number.” However, 

the Trustee’s signature is nowhere to be found on the document, 

and we have been shown no evidence that a separate document 

with the signature was ever submitted. What the document does 

contain is a disclaimer, which includes, with our emphasis, the 

statement that “[a] copy of the recipient’s signature will be faxed 

or mailed upon request.” Because there is no signature verifying 

that the Trustee received Robertson’s request included anywhere 

in the record, we must assume no such signature exists. 

Otherwise, of course, it would have been requested by 
Far West Bank v. Robertson

20150513-CA 27 2017 UT App 213

Robertson, faxed or mailed to him, and appended to his 

affidavit.

¶49 Accordingly, Robertson has failed to point to any 

competent evidence that might raise a genuine issue of fact as to 

whether, under section 57-1-31.5, the Trustee received his 

request for a payoff statement. We therefore reject his contention 

that the district court erred when it concluded that there was no 

dispute of material fact necessitating a trial on this issue.

III. The Excluded Testimony

¶50 Robertson contends that the district court erred by 

excluding the testimony of his appraiser at trial. Again, we

disagree.

¶51 Robertson concedes that he did not disclose the identity of 

the appraiser, whom he attempted to call as a witness, until the 

morning of trial. Nevertheless, citing rule 26(a)(4)(A) of the Utah 

Rules of Civil Procedure, he maintains that prior disclosure was 

not required because he intended to use the witness’s testimony

“solely for impeachment.”20 See Utah R. Civ. P. 26(a)(4)(A) (2010) 

(stating that prior to trial, “[a] party shall provide to other 

parties” the contact information “of each witness” unless the 

witness’s testimony will be used “solely for impeachment”) 

(emphasis added). But the rule Robertson cites is inapposite.

 

20. On November 1, 2011, after Far West had filed this action 

against Robertson but before the case went to trial, the Utah 

Supreme Court amended rules 26 and 37 of the Utah Rules of 

Civil Procedure. The advisory committee notes explain that “the 

Supreme Court order adopting the 2011 amendments makes 

them effective only as to cases filed on or after the [November 1] 

effective date.” Utah R. Civ. P. 1 advisory committee notes. Thus, 

while the rule had been amended by the time of trial, the parties 

remained bound by the unamended rules, and it is the 

unamended rules that we apply here.
Far West Bank v. Robertson

20150513-CA 28 2017 UT App 213

¶52 At trial, the court invited Robertson to explain on the 

record “why [he] couldn’t have disclosed this witness” prior to 

trial. Robertson responded that he had “only hired [the witness] 

to refute the exhibit that [he] received 30 days ago on the . . . 

appraisal” that Far West’s expert had provided. Continuing, he 

explained,

I hired her at that time . . . to look [at the] subject 

propert[y], to find properties that had sold in that 

time frame [when the subject property was sold] 

and to rebut [Far West’s] . . . claims on . . . the 

appraisal that I felt . . . under-valued [the property] 

and . . . did not produce adequate properties as 

comparables . . . and failed to take into 

consideration properties that were available on . . .

the Wasatch Front or close . . . properties that had 

sold in a relativel[y contemporaneous] period of 

time.

In short, Robertson informed the court that his witness is in the 

business of appraising property and that she would offer 

opinions on the value of the Property to rebut the contrary 

opinions of Far West’s expert.

¶53 Given Robertson’s representations to the district court, we 

conclude that the rule governing whether Robertson was 

required to disclose his witness prior to trial was not rule 

26(a)(4)(A), as he maintains, but rule 26(a)(3). The latter rule 

provided that “[a] party shall disclose to other parties the 

identity of any person who may be used at trial to present 

evidence under Rules 702, 703, or 705 of the Utah Rules of 

Evidence.” Utah R. Civ. P. 26(a)(3)(A) (2010). Specifically, rule 

702 governed the admissibility of testimony from a witness 

“qualified as an expert” whose “scientific, technical, or other 

specialized knowledge will help the trier of fact to understand 

the evidence or to determine a fact in issue.” Utah R. Evid. 

702(a). Under then rule 26(a)(3), such evidence must be disclosed 
Far West Bank v. Robertson

20150513-CA 29 2017 UT App 213

prior to trial even “if the evidence is intended solely to contradict 

or rebut evidence on the same subject matter identified by 

another” party’s expert report. Utah R. Civ. P. 26(a)(3) (2010).

¶54 Accordingly, since Robertson informed the district court 

that he intended to rebut the testimony of Far West’s expert with 

testimony from a witness with “scientific, technical, or other 

specialized knowledge,” his witness should properly have been 

disclosed prior to trial. See id. R. 37(f) (“If a party fails to disclose 

a witness . . . as required by Rule 26(a) . . . , that party shall not 

be permitted to use the witness[.]”). We therefore conclude that 

the court did not err in excluding the testimony of Robertson’s 

appraiser.

IV. Attorney Fees on Appeal

¶55 Finally, pursuant to rule 24(a)(9) of the Utah Rules of 

Appellate Procedure, Far West requests an award of the 

reasonable attorney fees it incurred on appeal. “[A] provision for 

payment of attorney’s fees in a contract includes attorney’s fees 

incurred by the prevailing party on appeal as well as at trial, if 

the action is brought to enforce the contract[.]” Management 

Services Corp. v. Development Assocs., 617 P.2d 406, 409 (Utah 

1980). Moreover, the Consolidated Loan Agreement expressly 

provides that appellate attorney fees are recoverable in addition 

to those incurred at the trial level. Attorney fees were awarded 

to Far West at the trial level, and Far West has prevailed on 

appeal. It follows that Far West is entitled to an award of its 

attorney fees reasonably incurred on appeal. See id.

CONCLUSION

¶56 Having concluded that the district court did not err in

dismissing Robertson’s counterclaims on summary judgment, in 

granting partial summary judgment in Far West’s favor, or in 

excluding the testimony of Robertson’s appraiser at trial, we 

conclude that the court’s judgment should be affirmed. Further, 
Far West Bank v. Robertson

20150513-CA 30 2017 UT App 213

we grant Far West’s request for an award of reasonable attorney 

fees incurred on appeal and remand for the limited purpose of 

calculating that award.