2021 UT 34

IN THE

SUPREME COURT OF THE STATE OF UTAH

KEN M. FITZGERALD and FIVE C.J. PROPERTIES, LLC,

Appellants,

v.

SPEARHEAD INVESTMENTS, LLC and ALPINE EAST INVESTORS, LLC,

Appellees.

1

No. 20190644

Heard February 10, 2021

Filed July 22, 2021

On Interlocutory Appeal

Fourth District, Utah County

The Honorable Thomas Low

No. 170401272

Attorneys:

Bryan H. Booth, Salt Lake City, for appellants

Thomas W. Seiler, Jared L. Anderson, Provo, for appellee

JUSTICE HIMONAS authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE 

PEARCE, and JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶1 The Dutch have a saying that ―promises make debt, and 

debt makes promises.‖ Today, we expand on this commercial

proverb to address what the law requires when a promise to pay

is not kept and the limitations period has run. Specifically, we 

consider whether the equitable estoppel doctrine offers a discrete 

basis for tolling a statute of limitations in Utah. We hold that it 

does.

1 Only Alpine East Investors, LLC is before us as an appellee.
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2

¶2 This case comes to us as an interlocutory appeal from the 

denial of Ken Fitzgerald and Five C.J. Properties, LLC‘s

(collectively, Owners) motion for summary judgment on their 

claim for declaratory judgment/quiet title with respect to the

subject property (the Property). Here are the essential facts: 

Owners executed a trust deed note with Alpine East Investors, 

LLC for the Property, promising to pay the note in full within two 

years. They didn‘t. After the foreclosure limitations period had 

expired, and despite numerous promises made—and 

subsequently broken—to pay the debt owed, Owners sought two 

results from the district court: (1) to enjoin Alpine East from 

foreclosing its trust deed on the Property, and (2) a determination 

that Alpine East had no valid interest in the Property. Alpine East

responded by invoking the doctrine of equitable estoppel, which 

would toll the limitations period and estop Owners from using 

the statute of limitations to quiet title. Owners, however, argued 

before the district court, and now on appeal to us, that equitable 

estoppel is not a stand-alone basis for defeating a statute of 

limitations defense because this court has incorporated it into the 

equitable discovery doctrine. If Owners are right, then Alpine East 

is unable to toll the foreclosure limitations period because it

cannot satisfy the elements of equitable discovery.

¶3 Our response to Owners‘ view of equitable estoppel is a 

hard no. To reach our conclusion, we juxtapose equitable estoppel 

with equitable discovery and find that, though similar in name 

and function, they‘re separate equitable doctrines that are invoked 

in distinct circumstances. As such, we hold that equitable estoppel 

may be invoked as a stand-alone basis for tolling a statute of 

limitations. But we clarify that a mere promise to make good on a 

debt, without more, is insufficient to toll a limitations period

under the equitable estoppel doctrine, even if a party has relied 

upon that promise. Still, we do not address equitable estoppel‘s 

specific application to this case—we leave that to the district court

as it is better situated to make the determination in the first 

instance. Accordingly, we vacate the district court‘s interlocutory 

order denying summary judgment and remand for further 

proceedings consistent with this opinion.

BACKGROUND

¶4 In 2008, Owners executed and made payable to Alpine 

East a trust deed note for the Property. The parties also executed 

and recorded a trust deed to secure the note against the Property. 
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Opinion for of the Court

3

The note was due two years later. When the due date had passed, 

Owners had yet to make a payment toward the note.

2

¶5 Pursuant to Utah Code section 70A-3-118(1), Alpine East 

had a limitations period of six years to file an action to foreclose 

the trust deed or record a notice of default on the property. Seven 

days before that limitations period expired, Brian Hansen, the 

manager of Alpine East, spoke by telephone with Fitzgerald 

regarding payment of the note. During the nearly hour-long

conversation, Hansen specifically mentioned to Fitzgerald the 

possibility of foreclosing on the Property. Fitzgerald did not 

dispute the amount or validity of the debt, pleaded with Hansen 

not to foreclose, and gave assurances of forthcoming payment or, 

alternatively, conversion of the note into equity in the company 

that would develop the Property. Fitzgerald pitched that Alpine 

East could earn more under this alternative proposal than what it 

was owed under the note. None of Fitzgerald‘s assurances were 

committed to writing. Hansen now alleges that he did not initiate 

a foreclosure of the Property before the limitations period had run 

because of these assurances.

¶6 Eight days after the presumed statute of limitations had 

expired, Hansen again spoke over the phone with Fitzgerald for 

nearly an hour. During this call, Fitzgerald recommitted to either 

make payment under the note or convert the debt into equity in 

one of his development companies. Fitzgerald also agreed to 

―work something out‖ to extend the note. When Hansen asked 

Fitzgerald to send an email confirming their plan to extend the 

note, Fitzgerald indicated that he would not sign anything until 

the State of Utah finished its then-current criminal investigation of 

his father and family.

¶7 Over a year later and well after the presumed limitations

period had expired, Owners sought a court determination that the 

note and trust deed were unenforceable and that Alpine East had 

no interest in the property. Shortly thereafter, Owners filed a 

motion for summary judgment against Alpine East, arguing that 

the statute of limitations had expired and that Alpine East was

therefore barred from foreclosing the trust deed. The district court 

2 As this matter is before us on an appeal from a motion for 

summary judgment, we recite the facts and indulge reasonable 

inferences in the light most favorable to Alpine East, the 

nonmoving party. Herland v. Izatt, 2015 UT 30, ¶ 9, 345 P.3d 661.
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granted the motion, declaring that the limitations period for 

enforcing the trust deed had expired before Alpine East recorded 

a notice of default or filed an action to foreclose. The district court 

also entered a judgment against Alpine East, enjoining them from 

foreclosing on the trust deed or otherwise enforcing the note. 

With both orders, the court concluded that Alpine East had no 

right, title, or interest in the Property.

¶8 Months later, however, in a separate case with related 

facts and parties, the Utah Court of Appeals held that dilatory 

tactics to stave off foreclosure until a limitations period had 

expired could toll the limitations period under the doctrine of

equitable estoppel. Jeppesen v. Bank of Utah, 2018 UT App 234, ¶ 33,

438 P.3d 81. In so holding, the court of appeals delineated 

between equitable estoppel and equitable discovery. Id. ¶¶ 30, 32.

Equitable estoppel, the court explained, tolls a limitations period 

when the plaintiff had knowledge of the cause of action but was 

induced by the other party to delay the action until after the 

period had run; equitable discovery tolls a statute of limitations 

when a plaintiff does not discover the cause of action because of 

the defendant‘s concealment. Id.

¶9 Based upon the holding in Jeppesen and following the 

district court‘s subsequent amended judgment granting attorney‘s 

fees to appellants, Alpine East filed a Rule 59 motion to revise the 

district court‘s prior ruling. Alpine East argued Owners had made 

promises that raised issues of material fact that precluded 

summary judgment under the doctrine of equitable estoppel. 

Relying on Jeppesen, the court granted the motion because it found

a question of fact as to ―whether Fitzgerald made promises to pay 

or to convert the debt which induced Alpine East not to foreclose 

within the statute of limitations.‖

¶10 Owners petitioned for permission to take an interlocutory 

appeal of the district court‘s ruling. We granted the appeal to 

consider whether the doctrine of equitable estoppel has been 

incorporated into the equitable discovery doctrine. We have 

jurisdiction under Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶11 On interlocutory appeal, we review grants and denials of 

summary judgment for correctness. Anderson Dev. Co. v. Tobias, 

2005 UT 36, ¶ 19, 116 P.3d 323. ―Summary judgment is only 

appropriate if there are no genuine issues of material fact and the 

moving party is entitled to judgment as a matter of law.‖ Herland 
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v. Izatt, 2015 UT 30, ¶ 9, 345 P.3d 661 (citing UTAH R. CIV. P. 56(c)). 

We view the facts and indulge reasonable inferences in the light 

most favorable to Alpine East, the nonmoving party. Id.

ANALYSIS

¶12 Our analysis clarifies the difference between equitable 

estoppel and equitable discovery. Although similar in name and 

function, these equitable doctrines each apply in distinct 

circumstances.

¶13 Owners argue that Jeppesen v. Bank of Utah, 2018 UT App 

234, 438 P.3d 81, which the district court relied on in granting 

Alpine East‘s Rule 59 Motion, is bad law because the doctrine of 

equitable estoppel, as applied to statutes of limitations, has been 

incorporated into the concealment prong of the equitable 

discovery doctrine. For authority, Owners point to this court‘s 

statement in Russell Packard Development, Inc. v. Carson that 

equitable discovery has its ―genesis in estoppel‖ and is 

―essentially a claim of equitable estoppel.‖ 2005 UT 14, ¶ 26, 108 

P.3d 741 (citation omitted). Thus, they assert, Alpine East must

make the initial showing required under equitable discovery: that

it did not know nor reasonably should it have known of its cause 

of action in time to comply with the limitations period because of 

the defendant‘s concealment. So, as Owners understand it, a party 

that knew the facts supporting its claim at the time the statute of 

limitations began to run—like Alpine East with its foreclosure 

claim—would never have the limitations period tolled.

¶14 Alpine East, on the other hand, argues that Jeppesen was

correct to hold that equitable estoppel is an independent basis for 

tolling a statute of limitations. Thus, a party need not make an 

initial showing that it did not know the facts underlying the cause 

of action. Accordingly, Alpine East asserts, a party who had

knowledge of the cause of action but was reasonably induced by 

the debtor to delay the action until after the limitations period 

may use the doctrine of equitable estoppel to toll the period.

¶15 We agree with Alpine East and the Jeppeson holding. In 

explaining our conclusion, we first address the difference between 

the two doctrines. We then use this occasion to clarify that a mere 

promise to pay, without more, even though relied upon by a 

party, is insufficient to toll a statute of limitations under the 

doctrine of equitable estoppel. Ultimately, we vacate the district

court‘s interlocutory order granting Alpine East‘s Rule 59 Motion, 
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and remand for further proceedings not inconsistent with this 

opinion.

I.

A. Equitable Estoppel vs. Equitable Tolling

¶16 Though equitable estoppel and equitable discovery both 

operate to toll statutes of limitations, they are distinct doctrines 

with distinct applications. We clarify that equitable estoppel is 

―invoked in cases where the plaintiff knew of the existence of his 

cause of action but the defendant‘s conduct caused him to delay in 

bringing [suit],‖ and equitable discovery is ―invoked in cases 

where the plaintiff is ignorant of his cause of action because of the 

defendant‘s fraudulent concealment.‖

3 Ellul v. Congregation of 

Christian Bros., 774 F.3d 791, 802 (2d Cir. 2014) (citation omitted).

4

3 The equitable discovery doctrine may be invoked in two 

situations: (1) where the plaintiff was unaware of the cause of 

action due to the defendant‘s fraudulent concealment (the 

―concealment prong‖), and (2) when exceptional circumstances so 

require, regardless of any wrongdoing by the defendant. See 

Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 25, 108 P.3d 741. 

This case does not address the exceptional circumstances prong. 

As such, and for the ease of the reader, all references to ―equitable 

discovery‖ in this opinion refer to the concealment prong.

4 For our purposes, Ellul uses the term ―equitable tolling‖ 

synonymously with ―equitable discovery.‖ 

We note that while some jurisdictions, such as the Second 

Circuit, have used equitable discovery and equitable tolling 

interchangeably, other jurisdictions consider equitable tolling a 

narrow but independent doctrine. See, e.g., Sebelius v. Auburn Reg’l 

Med. Ctr., 568 U.S. 145, 164 (2013) (Sotomayor, J., concurring) 

(stating that equitable tolling applies when a party is unaware of a 

cause of action due to ―circumstances outside both parties‘

control‖). Utah courts have split the difference and viewed 

equitable tolling as only part of the standard equitable discovery 

analysis. See Grynberg v. Questar Pipeline Co., 2003 UT 8, ¶ 65, 70 

P.3d 41 (―To the extent that Utah subscribes to the principle of 

equitable tolling, it has been developed almost exclusively 

through application of the discovery rule to claims that were not 

or could not have been discovered prior to the running of the 

statute of limitations.‖). 
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Yet we also note that both doctrines require an ―evaluation of the 

reasonableness of a plaintiff‘s conduct in light of the defendant‘s 

fraudulent or misleading conduct.‖ See Russell Packard Dev., Inc. v. 

Carson, 2005 UT 14, ¶ 26, 108 P.3d 741.

¶17 The equitable estoppel doctrine comes from the ―maxim 

that no man may take advantage of his own wrong.‖ Glus v. 

Brooklyn E. Dist. Terminal, 359 U.S. 231, 232 (1959). This maxim is 

deeply rooted in American jurisprudence, id. at 232, and guides 

our statute of limitations tolling jurisprudence in Utah. See, e.g.,

Rice v. Granite Sch. Dist., 456 P.2d 159, 163 (Utah 1969). We apply 

the equitable doctrines when we recognize that a defendant has 

unjustly ―lull[ed] an adversary into a false sense of security 

thereby subjecting his claim to the bar of limitations‖ and is then 

 

In Russell Packard, this court limited the application of 

equitable discovery to two circumstances. See supra ¶ 16 n.3. We 

have seemed to acknowledge that the second circumstance—the 

―unusual circumstances‖ prong—serves the purpose of equitable 

tolling. See Beaver Cnty. v. Prop. Tax Div., 2006 UT 6, ¶¶ 25–26, 128 

P.3d 1187. The inclusion of exceptional circumstances in the 

equitable discovery analysis may have made a separate equitable 

tolling analysis unnecessary. Estes v. Tibbs, 1999 UT 52, ¶ 7, 979 

P.2d 823 (―Every case in which we have addressed a  ̳special 

circumstances exception‘ has dealt with tolling a statute of 

limitations through application of the discovery rule.‖). 

Although there is no nationwide consensus, Utah precedent is 

closer to the Eighth Circuit than it is to the Second Circuit (which 

includes concealment as part of equitable tolling). This view of 

tolling as a sub-category of the discovery rule is consistent with 

the Eighth Circuit‘s description of equitable tolling in Bell v. Fowler

because equitable discovery in Utah applies to one circumstance 

where defendant misconduct is required (concealment), and one 

where it is not required (exceptional circumstance). See 99 F.3d 

262, 266 n.2 (8th Cir. 1996).

Notwithstanding the distinction among ―equitable tolling‖ 

and ―equitable discovery‖ in Utah, we cite to jurisdictions in 

which the terms are used interchangeably in this opinion and 

make note accordingly. Further, this opinion merely clarifies that 

equitable discovery is distinct from equitable estoppel. This 

opinion changes nothing regarding the doctrine of equitable 

discovery. See generally, e.g., Russell Packard, 2005 UT 14; Berneau v. 

Martino, 2009 UT 87, 223 P.3d 1128.
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―heard to plead that very delay as a defense to the action when 

brought.‖ Id. And we see no reason to stray from this guiding 

principle today even though Alpine East was aware of the facts 

underlying its cause of action before the limitations period had 

run.

5 We further acknowledge that concealment is not the only 

way a defendant may induce an adversary to postpone legal 

action, and so to forsake this doctrine, even absent concealment,

would be to allow parties to take advantage of their own wrong. 

Obviously, we will not go there.

¶18 We begin with equitable estoppel. The doctrine operates

to toll a statute of limitations if a plaintiff can establish three 

elements:

(1) a statement, admission, act, or failure to act by 

one party inconsistent with a claim later asserted; 

(2) reasonable action or inaction by the other party 

taken on the basis of the first party‘s statement, 

admission, act, or failure to act; and (3) injury to the 

second party that would result from allowing the 

first party to contradict or repudiate such statement, 

admission, act, or failure to act.

Jeppesen v. Bank of Utah, 2018 UT App 234, ¶ 33, 438 P.3d 81

(quoting Travelers Ins. Co. v. Kearl, 896 P.2d 644, 647 (Utah Ct. App. 

1995)).

¶19 The most important inference we draw from these 

elements for our purposes today is that equitable estoppel may be 

invoked even when the plaintiff is aware of the facts giving rise to 

a cause of action. This principle stands in stark contrast to the 

equitable discovery doctrine, in which the plaintiff must show he 

was not aware of the facts giving rise to a cause of action. Ellul, 

774 F.3d at 802. Indeed, in Rice, this court made no requirement 

that the plaintiff make an initial showing that she did not know 

nor reasonably should she have known the facts underlying her 

cause of action in order to equitably estop the defendant from 

invoking a statute of limitations defense. Compare Rice, 456 P.2d at 

5 We do not, however, intend to undermine the important 

purposes served by statutes of limitations, which include 

―preventing unfair litigation such as  ̳surprise or ambush claims, 

fictitious and fraudulent claims, and stale claims.‘‖ Davis v. Provo 

City Corp., 2008 UT 59, ¶ 27, 193 P.3d 86 (quoting Vigos v. 

Mountainland Builders, Inc., 2000 UT 2, ¶ 22, 993 P.2d 207).
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163, with Berneau v. Martino, 2009 UT 87, ¶ 23, 223 P.3d 1128

(stating that ―the plaintiff must make an initial showing that he 

did not know nor should have reasonably known the facts 

underlying the cause of action in time to reasonably comply with 

the limitations period‖ in order to invoke the equitable discovery

rule). This is because equitable estoppel merely requires that a 

―party has been induced to refrain from using such means or 

taking such action as lay in his power, by which he might have 

retrieved his position and saved himself from loss.‖ Rice, 456 P.2d 

at 162 (quoting Benner v. Indus. Accident Comm’n, 159 P.2d 24, 26

(Cal. 1945)). Thus, equitable estoppel is ―[u]nlike equitable tolling, 

which is invoked in cases where the plaintiff is ignorant of his 

cause of action because of the defendant‘s fraudulent 

concealment.‖ Ellul, 774 F.3d at 802 (citation omitted).

¶20 We are not alone in recognizing equitable estoppel as a 

discrete doctrine in the statute-of-limitations milieu. At least six 

United States Circuit Courts of Appeals have recognized that

equitable estoppel is distinct from equitable discovery and doesn‘t

require a plaintiff to be unaware of the facts underlying his cause 

of action. See Ellul, 774 F.3d at 802; Ramirez-Carlo v. United States, 

496 F.3d 41, 48 (1st Cir. 2007) (―Equitable tolling applies when the 

plaintiff is unaware of the facts underlying his cause of action, 

while equitable estoppel applies when a plaintiff who knows of 

his cause of action reasonably relies on the defendant‘s conduct or 

statements in failing to bring suit.‖ (citations omitted));6 Bell v. 

Fowler, 99 F.3d 262, 266 n.2 (8th Cir. 1996) (―[E]quitable tolling is 

appropriate when the plaintiff, despite all due diligence, is unable 

to obtain vital information bearing on the existence of his 

claim. . . . Equitable estoppel presupposes that the plaintiff knows 

of the facts underlying the cause of action but delayed filing suit 

because of the defendant‘s conduct.‖ (citation omitted) (internal 

6 The First Circuit appears to use the term ―equitable tolling‖ 

in a similar manner to our use of ―equitable discovery‖—both 

require that the plaintiff be unaware of their cause of action while 

―equitable estoppel‖ requires no such lack of knowledge. See 

Ramirez-Carlo, 496 F.3d at 48 n.3 (―The doctrine of equitable tolling 

suspends the running of the statute of limitations if a plaintiff, in 

the exercise of reasonable diligence, could not have discovered 

information essential to the suit.‖ (quoting González v. United 

States, 284 F.3d 281, 291 (1st Cir. 2002))).
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quotation marks omitted));7 Stitt v. Williams, 919 F.2d 516, 522 (9th 

Cir. 1990) (―[T]he better reasoning states that equitable tolling 

applies when the plaintiff is unaware of his cause of action, while 

equitable estoppel applies when a plaintiff who knows of his 

cause of action reasonably relies on the defendant‘s statements or 

conduct in failing to bring suit.‖);8 Cook v. Deltona Corp., 753 F.2d 

1552, 1563 (11th Cir. 1985) (― ̳Equitable estoppel arises where the 

parties recognize the basis for suit, but the wrongdoer prevails 

upon the other to forego enforcing his right until the statutory 

time has lapsed. The doctrine of equitable tolling, on the other 

hand, is grounded in the fraudulent concealment of harm which 

gives rise to the right to sue.‘‖ (quoting Aldrich v. McCulloch 

Props., Inc., 627 F.2d 1036, 1043 n.7 (10th Cir. 1980));9 Aldrich, 627 

F.2d at 1043 (same). 

¶21 These crucial differences notwithstanding, equitable 

estoppel and equitable discovery both share the need to 

―evaluat[e] . . . the reasonableness of a plaintiff‘s conduct in light 

of the defendant‘s fraudulent or misleading conduct.‖ Russell 

Packard, 2005 UT 14, ¶ 26. For example, equitable estoppel

requires ―reasonable action or inaction by the other party taken on 

the basis of the first party‘s statement, admission, act, or failure to 

act,‖ Jeppesen, 2018 UT App 234, ¶ 33 (emphasis added) (citation 

omitted), and equitable discovery requires that ―the plaintiff 

neither knew nor reasonably should have known of the facts 

underlying his or her cause of action‖ or that ―a reasonably diligent 

7 The Eighth Circuit does differentiate between equitable 

tolling and equitable discovery. See supra ¶ 19 n.5. Nevertheless, 

like the First Circuit, the Eighth Circuit applies equitable tolling to 

plaintiffs who were unaware of their cause of action while 

―[e]quitable estoppel presupposes that the plaintiff knows of the 

facts underlying the cause of action.‖ Bell, 99 F.3d at 266 n.2.

8 The Ninth Circuit also applies equitable tolling ―when the 

plaintiff is unaware of his cause of action, while equitable 

estoppel applies when a plaintiff . . . knows of his cause of action.‖ 

Stitt, 919 F.2d at 522.

9 The Eleventh Circuit appears to use equitable tolling 

synonymously with our equitable discovery concealment prong. 

As with the cases above, equitable tolling in the Eleventh Circuit 

requires the plaintiff to be unaware of the cause of action. See 

Cook, 753 F.2d at 1563.
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plaintiff may have delayed in filing his or her complaint.‖ Russell 

Packard, 2005 UT 14, ¶ 44 (emphases added).

¶22 It was in the context of the two doctrines‘ commonality in

evaluating the reasonableness of a plaintiff‘s conduct that the

Russell Packard court noted that equitable discovery has its 

―genesis in estoppel‖ and is ―essentially a claim of equitable 

estoppel.‖ Id. ¶ 26. Owners claim these statements in Russell 

Packard effectively merged equitable estoppel into the 

concealment prong of equitable discovery. Not so. We never said 

or meant that equitable discovery subsumes equitable estoppel. 

Rather, we were merely highlighting a similarity between the 

doctrines, not conflating them. Indeed, we mentioned equitable 

estoppel as a general principle to illustrate that our law seeks to 

prevent defendants from unjustly relying on a statute of 

limitations; we did not go into further detail as to equitable 

estoppel‘s own prima facie elements. And, ultimately and 

regardless, these two sentences of dicta are insufficient to defeat 

established case law.

¶23 Simply put, the doctrines are distinct. Equitable discovery 

may be invoked in response to a statute of limitations defense

when the plaintiff was unaware of the facts underlying a cause of 

action because of the defendant‘s fraudulent concealment (absent 

exceptional circumstances, see supra ¶ 16 n.3). Equitable estoppel, 

however, doesn‘t require the plaintiff to be unaware of the facts 

underlying a cause of action. If we were to require this, then 

defendants could use dilatory tactics to stave off an action until 

after a limitations period expired and then turn around and use 

the statute of limitations as a defense. We will not allow a party to 

take advantage of their own wrong.
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B. A Mere Promise to Pay is Insufficient to Invoke the Doctrine of 

Equitable Estoppel

¶24 Having clarified the distinction between equitable 

estoppel and equitable discovery, we now shift our focus. Though 

we‘ve established that equitable estoppel may be invoked even 

when the plaintiff is aware of a cause of action, the doctrine has its 

own limitations. Today we take the opportunity to clarify one of 

those limitations—specifically, what it means for a ―statement, 

admission, act, or failure to act‖ to be ―inconsistent with a claim 

later asserted.‖ Jeppesen, 2018 UT App 234, ¶ 33 (citation omitted).

We clarify that a mere promise to pay, without more, is 

categorically insufficient to be considered ―inconsistent with a 

claim later asserted‖ and, thus, insufficient to invoke equitable 

estoppel to toll a limitations period.

¶25 The ―inconsistent with a claim later asserted‖ language, 

as articulated in Jeppesen, requires clarification. While we do not 

provide a definitive list of ―statement[s], admission[s], act[s], or 

failure[s] to act‖ that are categorically ―inconsistent with a claim 

later asserted‖—future cases will afford us the opportunity to do 

so—we identify that mere promises to pay, without more, are 

excluded from that list. See id. (citation omitted). We borrow this 

language from an American Law Report, see Allan E. Korpela, 

Promises to Settle or Perform as Estopping Reliance on Statute of 

Limitations, 44 A.L.R.3d 482, 488 (1972) (stating that ―a mere 

promise by a defendant to pay, without more, even though relied 

upon by the plaintiffs, does not justify invoking the doctrine of 

equitable estoppel‖), and are supported in our determination by

the reasonableness element of the equitable estoppel test and by

persuasive holdings in sister jurisdictions.
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¶26 We do not pretend to possess the foresight or imagination 

to list every ―statement, admission, act, or failure to act‖ that is 

―inconsistent with a claim later asserted,‖ but we are comfortable 

drawing a line here. In a debtor-creditor relationship, the debtor 

has made an initial promise to pay before the statute of limitations 

runs. This initial promise to pay alone is insufficient to estop the 

defendant from asserting a statute of limitations defense—if it 

were sufficient, the equitable estoppel exception would swallow 

the statute of limitations defense. Put another way, if the initial 

promise by a debtor to pay was sufficient to invoke the equitable 

estoppel doctrine, all creditors would be eligible to estop a statute 

of limitations defense upon the establishment of the debtorcreditor relationship, thus rendering the defense (and its 

exceptions) useless in this context. And given the important goals 

served by statutes of limitations, such as preventing surprise, 

fictitious, or fraudulent claims and stale claims that are difficult to

prosecute because of lost evidence, memories, or witnesses, Davis 

v. Provo City Corp., 2008 UT 59, ¶ 27, 193 P.3d 86, we are not 

willing to render either the defense or its exception meaningless. 

In other words, we do not find that a debtor‘s initial promise to 

pay is a ―statement, admission, act, or failure to act‖ that is 

―inconsistent with a claim later asserted.‖

¶27 The equitable estoppel exception to the statute of 

limitations defense concerns ―statement[s], admission[s], act[s], or 

failure[s] to act‖ that are made subsequent to the initial promise to 

pay. And we find that a mere promise to pay, without more, is 

merely a restatement of a debtor‘s initial promise to pay and does 

not indicate changed circumstances following the initial promise.

A mere reiteration of a preexisting promise, much like the initial 

promise, cannot be sufficient to toll a limitations period because it 

would obviate the purpose of the statute of limitations defense 

and its equitable estoppel exception. As such, a mere promise to 

pay, without more, even though relied upon by the plaintiff, is not 

―inconsistent with a claim later asserted.‖
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¶28 And while our focus is primarily on the first prong of the 

equitable estoppel test, the second prong provides additional 

support to our conclusion. This prong requires ―reasonable action 

or inaction by the other party taken on the basis of the first party‘s 

statement, admission, act, or failure to act‖—that is, a plaintiff 

must show not only that she was induced into ―action or inaction‖ 

by the defendant‘s ―statement, admission, act, or failure to act,‖ 

but also that that her action or inaction was ―reasonable.‖ Jeppesen, 

2018 UT App 234, ¶ 33 (citation omitted). If we are to accept the 

truism that ―promises are made to be broken,‖ we can‘t imagine 

that any reasonable party would accept a mere promise to pay at 

face value. Thus, even if a mere promise to pay were ―inconsistent 

with a claim later asserted‖ (and it is not), the reasonableness 

element of the equitable estoppel test indicates that such reliance 

would be insufficient.

¶29 We are not the only court to draw this line. The principle 

that a mere promise to pay, without more, is insufficient to invoke 

equitable estoppel has been expressed by courts in other

jurisdictions. Georgia identified this principle as early as 1939 in 

Bank of Jonesboro v. Carnes, where creditors were precluded from 

using equitable estoppel to toll a statute of limitations because the 

debtor merely ―sat among his associates on the board of directors 

and at times discussed [his debts] and stated he would pay them.‖

2 S.E.2d 495, 499 (Ga. 1939). In fact, the debtor never ―sought an 

extension, or withdrawal of any suit, [nor was a] suit . . . ever 

actually proposed or threatened. There was no agreement on his 

part not to plead the statute, and no express request for 

indulgence.‖ Id. Similarly, in Grass v. Eiker, creditors were 

precluded from using equitable estoppel to toll a statute of 

limitations because, when the creditors repeatedly demanded 

payment, the debtor had merely replied that ―he had other uses 

for the money and he just couldn‘t pay.‖ 135 A.2d 153, 154 (D.C. 

Mun. Ct. 1957). The court rejected these statements as grounds for 

estoppel, stating, 

[a]t most it represents a bare verbal promise to pay 

the debt at a vague future time with an implied 

request for forbearance on the part of [the creditor]

until [the debtor] could secure more funds. [The 

debtor] never agreed to waive the statute nor did he 

ask [the creditor] to refrain from bringing suit.

Id.
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15

¶30 And courts have continued to abide by similar limitations 

more recently. A New York appellate court found that ―[m]ere 

promises to pay in the future . . . are insufficient to support a 

theory of equitable estoppel‖ without evidence showing that the 

debtor ―intended to lull‖ the creditors into inaction. In re Estate of 

Thomas, 124 A.D.3d 1235, 1241 (N.Y. App. Div. 2015) (quoting 

Erlichman v. Ventura, 271 A.D.2d 481, 481 (N.Y. App. Div. 2000)). 

Connecticut courts similarly have required evidence that the 

debtor ―intended or calculated‖ inducement of inaction but 

emphasized that the misrepresentation ―must relate to some 

present or past fact or state of things, as distinguished from mere 

promises or statements as to the future. The misrepresentation 

must be one of fact and not of intention to support equitable 

estoppel.‖ Wells Fargo Bank, N.A. v. Riverview E. Windsor, LLC, 

2010 WL 5610864, at *3 (Conn. Super. Ct. 2010) (citation omitted)).

And on the other side of the country, California courts have 

required that the promise ―be reasonably relied upon,‖ and will 

consider, among other showings, ―that a promise to pay has been 

related to the happening of a specific event,‖ such as upon getting 

―a good start in [the debtor‘s] business‖ or ―termination of suit 

against person secondarily liable.‖ CPI Advanced, Inc. v. Kong 

Byung Woo Comm. Ind. Co., Ltd., 2003 WL 25783119, at *6 (C.D. Cal. 

2003) (citations omitted), rev'd on other grounds and remanded, 135 

F. App‘x 81 (9th Cir. 2005). Though based on different grounds, 

we find the conclusions drawn by our sister courts persuasive in 

clarifying the limitations of the equitable estoppel doctrine. Our 

clarification today is an objective determination based on 

preserving the utility of the equitable estoppel exception to the 

statute of limitations defense, see supra ¶ 17, and does not require 

Utah courts to consider the intent of the defendant (as in New 

York and Connecticut), nor does it rely solely on the 

reasonableness requirement (as in California).

¶31 By way of example, this court did find more than a mere 

promise to pay in Rice v. Granite School District, 456 P.2d 159 (Utah 

1969). In Rice, an insurance adjuster made several promises to the 

injured plaintiff over the course of a year, including advising her

that ―she would be compensated,‖ ―she would be indemnified for 

her medical expenses,‖ ―the insurance company would accept 

responsibility and that she was not to worry,‖ and ―everything 

was in proper order.‖ Id. at 161. Rice delayed commencing action 

because she was told by the insurance adjuster that her claim 

couldn‘t be processed until the adjuster had ascertained the costs 
FITZGERALD V. SPEARHEAD INVESTMENTS, LLC

Opinion of the Court

16

of her damages. Id. Then, abruptly after Rice‘s limitations period 

to bring a suit had expired, she was told that her claim was

denied. Id. After hearing this, Rice instigated a suit to recover for 

her injuries, but the insurance company filed a motion to dismiss 

on the ground that her claim was barred by the one-year 

limitations period. Id. at 160. Such actions by the insurer were 

enough for a reasonable trier of fact to conclude that the insurance 

carrier made more than a mere promise to pay. See id. at 163. 

Indeed, beyond representing to Rice that it was waiting for key 

information before it could file the claim, the insurance carrier 

admitted liability and promised compensation upon several 

occasions. Unlike the debtor in Grass, who merely said he ―had 

other uses for the money and he just couldn‘t pay,‖ the insurer 

―lull[ed] [Rice] into a false sense of security,‖ by accepting

responsibility, promising payment, and telling Rice not to worry

and that everything was in order. Further, even the defendant in 

Rice recognized that the facts involved more than a mere promise 

to pay; rather, the question was ―whether negotiations for the 

compromise of a claim or debt will give rise to an estoppel‖ 

defense. Id. at 163. These statements by the insurer went beyond 

those of the debtor in Bank of Jonesboro, who merely stated he 

would pay a debt he was already bound to pay.

¶32 In sum, a mere promise to pay—such as a bare verbal 

promise to pay a debt at a vague future time with an implied 

request for forbearance, or merely restating that a debt will be 

paid—without more is not sufficient to invoke the doctrine of 

equitable estoppel. That being said, we do not claim that this is a 

complete explanation of the equitable estoppel doctrine as a 

whole, particularly regarding what sufficiently constitutes a 

―statement, admission, act, or failure to act . . . inconsistent with a 

claim later asserted.‖ Future cases will present opportunities to 

more fully define the contours of the equitable estoppel test. 

II. 

¶33 Now that we have clarified that equitable estoppel is a 

discrete basis for tolling a limitations period and that a mere 

promise to pay, without more, is insufficient to successfully 

invoke the equitable estoppel doctrine, we turn to the case before 

us. In reviewing Alpine East‘s Rule 59 Motion, the district court 

relied on the court of appeals‘ ruling in Jeppesen v. Bank of Utah, 

2018 UT App 234, 438 P.3d 81, to determine that a material issue 

of fact exists as to whether Owners‘ promises reasonably induced 

Alpine East to inaction under an equitable estoppel framework.
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Opinion for of the Court

17

¶34 We‘re taking a step back from the district court‘s position. 

We agree with the court that equitable estoppel is a discrete basis 

for tolling a statute of limitations. But, given our primary role 

today in clarifying the law, we choose to vacate its determination 

and remand for further proceedings consistent with our 

clarification. On remand, the district court will be in the best 

position to determine in the first instance if a material issue of fact 

exists as to whether Fitzgerald‘s promises constituted more than a 

mere promise to pay.

CONCLUSION

¶35 Equitable estoppel protects a creditor when she has 

reasonably relied on a statement or act, made by the debtor, 

inconsistent with the debtor‘s later assertion of a statute of 

limitations defense. We find the doctrine is a stand-alone basis, 

distinct from equitable discovery, for defeating a statute of 

limitations defense. However, given the nature of debt, the 

doctrine‘s reasonableness requirement, and similar conclusions in 

our sister jurisdictions, we also find that a mere promise to pay, 

without more, even though relied upon by a party, is insufficient 

to invoke equitable estoppel. As such, we vacate the district

court‘s denial of summary judgment and remand for further 

proceedings in accordance with this opinion.