2022 UT App 17

THE UTAH COURT OF APPEALS

HANSEN & MECHAM INVESTMENTS LLC, MA SQUARED LLC, AND 

PATRICK HENRY & ASSOCIATES LLC,

Appellees,

v.

BRIAN HANSEN,

Appellant.

Opinion

No. 20191059-CA

Filed February 3, 2022

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 100906073

Gregory N. Skabelund, Attorney for Appellant

Joseph Pia, Attorney for Appellees

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN

concurred.

TENNEY, Judge:

¶1 This case began with several hundred thousand dollars in 

allegedly unpaid loans, and it has since spawned over a decade 

of litigation. As this litigation has proceeded, the district court 

has issued several rulings granting partial summary judgment to 

the plaintiffs regarding various portions of the case.

¶2 In this appeal, defendant Brian Hansen challenges the 

most recent summary judgment ruling. There, the court first 

granted the plaintiffs’ request for summary judgment on a cause 

of action for breach of a guaranty. But in his opposition to that 

motion, Hansen had filed a sworn Declaration that created a 

genuine dispute of fact as to whether the plaintiffs were entitled 
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to relief on this cause of action. We accordingly reverse the 

district court’s decision to grant summary judgment on it. In that 

same ruling, the district court also granted summary judgment 

in the plaintiffs’ favor on several other causes of action. But this

ruling was also improper—this time because the plaintiffs had 

not actually requested summary judgment on those causes of 

action in their motion.

¶3 For the reasons set forth below, we reverse the district 

court’s decisions.

BACKGROUND1

The Loans

¶4 In 2009, Brian Hansen joined with James and Dwayne 

Horsley (the Horsleys) to finance a loan to Teresa Collo. To assist 

with their own financing efforts, the Horsleys engaged three 

investment groups: Hansen & Mecham Investments LLC; MA 

Squared LLC; and Patrick Henry & Associates LLC (collectively, 

the Investors). The Horsleys received $300,000 from the Investors 

in exchange for three promissory notes, one for each Investor 

(the Investor Notes). Each Investor Note promised repayment of 

Investor funds by October 20, 2009, and each also contained an 

assignment clause in which the Horsleys “agree[d] to assign all 

Rights pertaining to [the Investors’] portion of said monies, as 

per agreements with Brian Hansen and Teresa [Collo]” to the 

Investors. The Horsleys then used the Investors’ money and 

$100,000 of their own money to loan $400,000 to Collo.

 

1. Because this comes to us on appeal from a decision granting 

summary judgment, we recite the facts “in the light most 

favorable to the nonmoving party,” which in this case is Hansen. 

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

simplified). 
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20191059-CA 3 2022 UT App 17

¶5 Hansen was not a party to the loan agreement between 

the Horsleys and Collo, but he did provide the Horsleys with a 

conditional guaranty agreement (the Conditional Guaranty). 

Under the Conditional Guaranty, Hansen promised that if Collo 

did “not repay the principal amount of $400,000 to the 

Horsleys on or before October 12, 2009,” Hansen would “pay 

said amount to the Horsleys in full.” The Conditional Guaranty, 

however, contained a clause—commonly referred to in the 

litigation below and here as “the Condition Precedent”—under 

which the Conditional Guaranty would only take effect if 

Hansen “close[d] his pending financing transaction with 

i-Finance (or similar financial institution) for approximately $100 

million.”

¶6 The repayment deadlines came and went, and the 

Horsleys were never paid by either Collo or Hansen. As a result, 

neither were the Investors.

The Complaint

¶7 Relying on the assignment clauses in the Investor Notes, 

the Investors filed suit in 2010 against the Horsleys, Collo, and 

Hansen. Their complaint pleaded seven causes of action, and it

specified which cause of action was being pleaded against which 

defendant or group of defendants.

¶8 The first cause of action was for breach of contract. It only 

named the Horsleys as defendants.

¶9 As for Hansen, the Investors asserted in their “General 

Allegations” section that Hansen “failed to pay the Horsley 

Defendants the $400,000 under the Collo/Horsley Note 

pursuant to [Hansen’s] Guaranty.” But the Investors only named 

Hansen as a defendant in the fourth, fifth, and seventh causes of 

action, which were for fraudulent and negligent 

misrepresentation, promissory estoppel and detrimental 

reliance, and breach of the covenant of good faith and fair 

dealing, respectively.
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¶10 In his answer, Hansen denied that he had “any obligation 

to repay any amount to” the Investors or that they were entitled 

to any benefits from his Conditional Guaranty with the Horsleys.

Hansen also defended himself against the three causes of action 

that had been pleaded against him. 

¶11 Several years of litigation ensued, during which the 

Investors filed several motions for summary judgment against 

the Horsleys, Collo, and Hansen. Four of these motions are 

relevant to this appeal, and we discuss each in turn below.

The 2010 Motion

¶12 In August 2010, the Investors filed a motion for summary 

judgment against the Horsleys. This motion alleged that the 

Horsleys had “defaulted on several promissory notes/loans with 

the [Investors],” that “[t]he remaining principal amount ow[ed]

under these notes [was] $300,000,” and that “the notes allow[ed]

recovery of additional costs and fees.”

¶13 The Horsleys did not respond, and the court later granted 

summary judgment in the Investors’ favor. In its decision, the 

district court awarded the Investors “$300,000 . . . together with 

any interest, costs, and attorneys’ fees.”

The 2011 Motion

¶14 In January 2011, the Investors filed a motion for summary 

judgment against both Collo and Hansen.

¶15 With respect to Hansen, this motion did not ask for 

summary judgment on any of the three causes of action that the 

Investors had pleaded against him in their complaint. Instead, 

the 2011 Motion asked the court to grant “partial summary 

judgment against” Hansen “for the following additional claim[]

asserted in their Complaint: . . . breach of guaranty against 

Defendant Brian Hansen.” The Investors argued that Hansen 

“personally guaranteed” payment on the “Collo/Horsley Note”
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20191059-CA 5 2022 UT App 17

through the Conditional Guaranty and that he had breached that 

obligation by “fail[ing] to pay the Horsleys.”

¶16 In a written decision issued in May 2011, the district court 

noted that the 2011 Motion was requesting judgment against 

Hansen for “breach of guaranty,” and it specifically “denied”

that motion “[a]gainst Brian Hansen.”

The 2019 Motion

¶17 In 2011, the Investors entered into a stipulated agreement 

with the Horsleys that settled the Investors’ claims against them

for almost $350,000. Collecting on this judgment proved difficult, 

however, and after years of additional litigation that ultimately 

included bankruptcy proceedings, the Investors were still left 

unpaid.

¶18 In 2018, the Investors turned their focus back to Hansen, 

attempting to collect on the judgment against the Horsleys from 

Hansen through the Conditional Guaranty.

¶19 As the Investors pursued Hansen in court for this debt, 

Hansen failed to timely respond to almost every filing the 

Investors made with the district court. Hansen also impeded 

their efforts to schedule his deposition—so much so that the 

district court eventually authorized $7,500 in sanctions against 

him. Hansen’s deposition was finally held in February 2019.

¶20 In March 2019, the Investors filed a motion for summary 

judgment against Hansen. There, the Investors asked for 

summary judgment on the three causes of action that they had 

pleaded against him—which, again, were for fraudulent and 

negligent misrepresentation, promissory estoppel and 

detrimental reliance, and breach of the covenant of good faith 

and fair dealing. The Investors supported this motion, in part, 

with eight pages of Hansen’s deposition that they attached as an 

exhibit. These are the only pages of Hansen’s deposition that are 

currently in the record.
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¶21 After briefing and arguments, the court denied this 

motion.

The Resubmitted 2011 Motion

¶22 At the hearing on the 2019 Motion, the court asked

Investors’ counsel “why it’s taken . . . nine years to try to seek 

judgment against [Hansen].” During the ensuing discussion, the 

Investors’ counsel mentioned the 2011 Motion and told the court 

that it “actually ha[d] not been ruled on” and was “still 

pending.”

¶23 This assertion was incorrect. As noted, the court in 2011 

had specifically “denied” that motion, ruling that the Investors 

were not entitled to summary judgment on a “breach of 

guaranty” claim “[a]gainst Brian Hansen.” But when counsel 

made this assertion during the 2019 hearing, neither the parties 

nor the court seemed aware of the earlier ruling. Indeed, when 

the court searched its database and found no indication that the 

2011 Motion was pending, it assumed that this was a “question 

on [the court’s] side of the equation.” The court “apologize[d]” 

and suggested that the motion must have “slipped through the 

cracks and didn’t get dealt with.”2

¶24 The court accordingly instructed the Investors to resubmit 

the 2011 Motion. It also informed the parties that they could then 

file supplemental memoranda.

¶25 The Investors later resubmitted the 2011 Motion (the 

Resubmitted 2011 Motion). As noted, the original motion had 

sought summary judgment on a cause of action for “breach of 

 

2. The judge who presided over the case in 2011 was not the 

same judge who was presiding over the case in 2019. We also 

note that when the earlier judge denied the 2011 Motion, that

ruling was docketed as a minute entry, rather than as a 

judgment or memorandum decision. 
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20191059-CA 7 2022 UT App 17

guaranty against Defendant Brian Hansen.” In their

supplemental memorandum in support of the Resubmitted 2011

Motion, the Investors alleged a series of facts relating to the 

Conditional Guaranty. “Based on these additional facts and the 

facts and argument presented in Plaintiffs’ 2011 Motion,” the 

Investors “request[ed] that the Court grant their 2011 Motion 

and enter judgment” against Hansen.

¶26 Hansen later filed an opposition memorandum, 

accompanied by a sworn Declaration. In his Declaration, Hansen 

averred that “[t]he i-Finance loan was never approved.” In his 

memorandum, Hansen thus argued that he had no obligation to 

assume the Horsleys’ debt because the Conditional Guaranty 

had never been “activated.”3

¶27 Hansen’s opposition memorandum and accompanying 

Declaration were late, and the Investors moved to strike it as a 

result. But the court denied that motion and instead accepted

both Hansen’s opposition and Declaration as filed.

¶28 The district court later issued a written decision granting

the Investors’ Resubmitted 2011 Motion. Relying on Webster v. 

Sill, 675 P.2d 1170, 1172–73 (Utah 1983), the court generally 

concluded that Hansen’s Declaration was at odds with his 

 

3. Hansen made similar representations and arguments in his 

answer to the Investors’ initial complaint, a memorandum he 

filed in 2019, and two other declarations that he filed during the 

course of the proceedings. In those filings, Hansen likewise 

“denie[d] that he ha[d] any obligation to repay any amount to 

the [Investors] or that they [were] entitled to any benefi[ts] of his 

Conditional Guarant[y] Agreement . . . with the Horsleys,” 

because his “obligation . . . was triggered by [his] closing on a 

$100 million dollar loan from i-Finance,” and yet, according to 

Hansen, “i-Finance never closed on [the] loan application.” We 

further note that neither party has alleged that Hansen ever 

closed a deal with a different “similar financial institution.” 
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20191059-CA 8 2022 UT App 17

deposition and therefore did not create a genuine dispute of 

material fact. The court did not, however, identify which passage 

from Hansen’s deposition was actually at odds with which 

passage from the Declaration.

¶29 The court thus granted the Investors’ request for 

summary judgment. And in doing so, it stated that the Investors’ 

motion “for Partial Summary Judgment on Causes of Action IV, 

V, and VII” was “well taken.”

¶30 Hansen now appeals this decision. 

STANDARD OF REVIEW

¶31 “Summary judgment should be granted 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 and that the moving party is entitled 

to judgment as a matter of law.” Smith v. Kirkland, 2017 UT App 

16, ¶ 16, 392 P.3d 847 (quotation simplified). On appeal, we 

review the district court’s decision to grant the Investors’ 

summary judgment motion for correctness. See Bahr v. Imus, 2011 

UT 19, ¶ 15, 250 P.3d 56.

ANALYSIS

¶32 The Investors’ Resubmitted 2011 Motion requested 

summary judgment on a cause of action for “breach of 

guaranty,” and the district court granted that request. In its 

ruling, the court also granted summary judgment in the 

Investors’ favor on causes of action for fraudulent and negligent 

misrepresentation, promissory estoppel and detrimental 

reliance, and breach of the covenant of good faith and fair 

dealing.

¶33 The district court erred on both fronts. First, the court 

erred when it granted summary judgment on a cause of action 
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20191059-CA 9 2022 UT App 17

for “breach of guaranty,” because a genuine dispute of fact exists

about whether the Conditional Guaranty was ever legally 

activated. And second, the court also erred when it granted

summary judgment on the remaining causes of action, because 

the Investors had not asked for summary judgment on them in 

the Resubmitted 2011 Motion. 

I. Breach of Guaranty

¶34 Hansen argues that the court should not have granted the 

Investors’ request for summary judgment on a breach of 

guaranty cause of action. In Hansen’s view, his Declaration 

created a genuine dispute of material fact about whether the 

Condition Precedent was met and, therefore, whether the 

Conditional Guaranty was legally activated. We agree.

¶35 As discussed, the Conditional Guaranty contained a 

clause—the Condition Precedent—under which Hansen was 

only obligated to repay the debt in question if he “clos[ed] his 

pending financing transaction with i-Finance (or similar financial 

institution) for approximately $100 million.” In his sworn 

Declaration, however, Hansen specifically averred that the 

“i-Finance loan was never approved.” Hansen made a similar 

assertion in two other declarations that he filed in the case, and 

this was also the basis for his initial answer to the complaint 

itself.

¶36 The Investors are therefore incorrect when they assert that 

“[i]t is undisputed that the Condition Precedent to the Guaranty 

[was] satisfied.” This is very much disputed, because Hansen’s

sworn Declaration specifically says that the Condition Precedent 

was not satisfied. 

¶37 Unless there is some basis for disregarding Hansen’s 

Declaration, this should end the matter as far as summary 

judgment is concerned. After all, “summary judgment is 

improper when the facts are controverted.” Schaer v. State ex rel. 

Utah Dep’t of Transp., 657 P.2d 1337, 1341 (Utah 1983); see Utah R. 
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20191059-CA 10 2022 UT App 17

Civ. P. 56(a). And when reviewing a grant of summary 

judgment, it is axiomatic that courts must view the facts and 

reasonable inferences “in the light most favorable to the 

nonmoving party”—which in this case is Hansen. See Drew v. 

Pacific Life Ins. Co., 2021 UT 55, ¶ 35, 496 P.3d 201. 

¶38 The Investors nevertheless claim that Hansen’s 

Declaration “directly contradicts his deposition testimony.” Like 

the district court, the Investors rely on Webster v. Sill, 675 P.2d 

1170, 1172–73 (Utah 1983), wherein our supreme court held that 

“when a party takes a clear position in a deposition[] that is not 

modified on cross-examination,” the party “may not thereafter 

raise an issue of fact by his own affidavit which contradicts his 

deposition, unless he can provide an explanation of the 

discrepancy.” From this, the Investors ask us to hold that the 

Declaration could not defeat their request for summary 

judgment.

¶39 But by its own terms, Webster requires a demonstration

that (i) the deponent took a “clear position” in his deposition and 

(ii) did indeed “contradict[]” that position in a subsequent 

affidavit. Id. And the Investors have not given us any basis for 

concluding that this happened here. As noted, the only portion 

of Hansen’s deposition that was submitted to the district court 

below was an eight-page excerpt that the Investors attached to 

their 2019 Motion. The district court decided summary judgment 

“on the basis of a cold paper record,” Bahr v. Imus, 2011 UT 19, 

¶ 15, 250 P.3d 56, so we’re limited to those eight pages too.

¶40 We have reviewed those eight pages, and there’s no place 

in them in which Hansen ever says that the i-Finance deal ever 

closed. In fact, the i-Finance transaction is never discussed in 

those pages at all. Thus, on the record before us, there is no basis 

for applying Webster or for disregarding Hansen’s sworn 

Declaration.

¶41 Undeterred, the Investors seek to avoid this outcome on 

three additional fronts. But none are availing.
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20191059-CA 11 2022 UT App 17

¶42 First, the Investors attempt to cure the record deficiency 

by including Hansen’s full deposition as an addendum to their 

brief. But Hansen objected to the inclusion of that addendum, 

and we sustained that objection. For good reason—namely, it is 

settled that an appellate court “will not consider evidence which 

is not part of the record.” State v. Pliego, 1999 UT 8, ¶ 7, 974 P.2d 

279. We must therefore disregard this “extraneous evidence” 

that the Investors have included for the first time in their 

appellate addendum. Id.; cf. Robinson v. Tripco Inv., Inc., 2000 UT 

App 200, ¶ 2 n.1, 21 P.3d 219 (granting a motion to strike 

portions of a brief that “referred to deposition testimony not 

made part of the record on appeal”); Territorial Sav. & Loan Ass’n 

v. Baird, 781 P.2d 452, 455–56 (Utah Ct. App. 1989) (denying a 

motion to supplement the record with a deposition because 

“[t]he trial court did not have [the] deposition before it when it 

granted . . . summary judgment” and “[e]vidence not available 

to the trial judge cannot be added to the record on appeal”).4

¶43 Second, the Investors invoke a related rule under which a 

“person cannot avoid being deposed and avoid answering 

questions by claiming no knowledge, only to subsequently file a 

self-serving affidavit in order to avoid summary judgment.” 

Anderton v. Boren, 2017 UT App 232, ¶ 20, 414 P.3d 508 

(quotation simplified). The Investors claim that Hansen was 

generally unprepared for his deposition and that he “avoided 

answering questions regarding the i-Finance transaction.” From 

this, they argue that his Declaration cannot defeat their request 

for summary judgment. 

¶44 But again, we only have eight pages of Hansen’s 

deposition to work with, and there’s no mention of the i-Finance 

transaction anywhere within them. So while those pages do 

 

4. In any event, although the Investors have (improperly) 

provided us with the full deposition, they still point to no place 

in that full deposition in which Hansen ever said that he ever 

closed on the i-Finance transaction.
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20191059-CA 12 2022 UT App 17

illustrate Hansen’s lack of preparation and enthusiasm for the 

deposition, we see nothing in those pages in which Hansen 

claimed that he had “no knowledge” of whether he had closed 

on the i-Finance transaction. See id. And again, in other filings in 

the case, Hansen repeatedly and affirmatively maintained that 

he never closed on that transaction. 

¶45 Finally, in the portion of their brief discussing the alleged 

contradictions, the Investors include a citation to a 384-page

passage from the record—a passage that spans multiple 

documents and filings. If, by this citation, the Investors mean to 

argue that Hansen contradicted himself on this point somewhere 

within those pages, their presentation of this argument to us is 

insufficient. An “appellate court is not a depository in which a 

party may dump the burden of argument and research.” Allen v. 

Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (quotation simplified). We

decline the Investors’ apparent invitation to comb through those 

384 pages ourselves to determine whether Hansen said anything 

in any of those documents that contradicted his Declaration

about whether he closed on the i-Finance transaction.

¶46 In short, the breach of guaranty cause of action against 

Hansen turns on the Conditional Guaranty being activated, and 

the Conditional Guaranty is activated only if the Condition 

Precedent is satisfied. But the Condition Precedent required 

proof that Hansen closed on a financing transaction with 

i-Finance or a “similar financial institution” for “approximately 

$100 million,” and we don’t have any such proof.

¶47 Instead, what we have is this: Hansen swore in his 

Declaration that he did not close on such a deal, and the 

Investors have pointed to no place in the existing record where 

Hansen ever contradicted himself on that key point. Because that 

Declaration was accepted as filed by the district court, there is a 

genuine dispute of material fact about whether the Conditional 

Guaranty was ever legally activated and, hence, whether 

Hansen’s contractual obligation to repay the Investors was ever 

activated too. The district court therefore erred when it granted
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20191059-CA 13 2022 UT App 17

summary judgment on the breach of guaranty claim against 

Hansen. We reverse that decision.5

II. Remaining Claims

¶48 The district court also determined that the Investors’ 

“[Resubmitted 2011 Motion] for Partial Summary Judgment on 

Causes of Action IV, V, and VII” was “well taken.” Those causes 

of action, again, were for fraudulent and negligent 

 

5. Hansen also argues that the Investors have never properly 

pleaded a breach of guaranty cause of action against him. 

Having reviewed the record, we note that there is indeed a 

substantial question about this. There was no “breach of 

guaranty” cause of action pleaded against Hansen in the 

complaint, and the “breach of contract” cause of action that was 

pleaded specifically identified the Horsleys—and only the 

Horsleys—as the defendants on that cause of action. Moreover, 

the Investors never moved to amend the complaint to add a 

breach of guaranty (or breach of contract) cause of action against 

Hansen. 

The Investors nevertheless respond that Hansen was put 

on notice that such a cause of action was pending against him 

through the general assertions in the complaint regarding the 

Conditional Guaranty. But the Investors’ counsel informed the 

district court during the hearing on the Investors’ Resubmitted 

2011 Motion that those assertions related to the three causes of 

action that were pleaded against Hansen, rather than a cause of 

action for breach of contract.

Hansen did not oppose the Resubmitted 2011 Motion on 

this basis, however, and the sole basis for the district court’s 

ruling on it was its conclusion that Hansen’s Declaration did not 

create a genuine dispute of material fact. Because we reverse the 

court’s ruling on its own terms, we need not also determine 

whether Hansen is correct when he now argues that the 

Investors have not properly pleaded a breach of guaranty claim 

against him.
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misrepresentation, promissory estoppel and detrimental 

reliance, and breach of the covenant of good faith and fair 

dealing.

¶49 But the Investors had already sought summary judgment 

on those causes of action in the 2019 Motion. And when they 

did, the district court denied that motion. The Investors never 

challenged that denial in any motion for reconsideration or 

interlocutory appeal, nor did they ask the court to reconsider 

those causes of action in the Resubmitted 2011 Motion. 

¶50 Instead, the only cause of action at issue in the 

Resubmitted 2011 Motion was a “breach of guaranty” cause of 

action. Thus, in the ruling at issue, it appears that the district 

court sua sponte granted summary judgment on causes of action 

that were not before it. 

¶51 This was improper. When a party moves for summary 

judgment, it must “identif[y] each claim or defense—or the part 

of each claim or defense—on which summary judgment is 

sought.” Utah R. Civ. P. 56(a). Because the Investors only 

requested summary judgment on a breach of guaranty cause of 

action, the court had no basis for granting summary judgment 

on any other causes of action. We accordingly reverse the court’s 

decision to grant summary judgment on “Causes of Action IV, 

V, and VII.”

CONCLUSION

¶52 The district court erred by granting summary judgment 

on a breach of guaranty cause of action because a genuine 

dispute of material fact exists regarding Hansen’s obligations 

under the Conditional Guaranty. The court also erred by 

granting summary judgment on other causes of action that were 

not before it under the summary judgment motion at issue. We 

therefore reverse both decisions.