2017 UT App 19

THE UTAH COURT OF APPEALS

DAVID K. GILLETT AND MAJESTIC AIRLINES INC.,

Appellants,

v.

BOYD J. BROWN, SENTRY FINANCIAL CORPORATION, AND SFC

AIRCRAFT CORPORATION I,

Appellees.

Opinion

No. 20140682-CA

Filed January 26, 2017

Third District Court, Salt Lake Department

The Honorable L.A. Dever

No. 080921211

Stephen G. Homer, Attorney for Appellants

Christopher M. Ault and Zachary W. Powell, 

Attorneys for Appellees Boyd J. Brown and Sentry 

Financial Corporation

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE J.

FREDERIC VOROS JR. and JUSTICE JOHN A. PEARCE concurred.

1

ROTH, Judge:

¶1 This case involves claims of breach of contract and fraud. 

In March 1995, after David K. Gillett—through his company 

Majestic Airlines Inc. (collectively, Gillett and Majestic)—

defaulted on repayment of a loan to Sentry Financial 

 

1. Justice John A. Pearce began his work on this case as a 

member of the Utah Court of Appeals. He became a member of 

the Utah Supreme Court thereafter and completed his work on 

the case sitting by special assignment as authorized by law. See 

generally Utah R. Jud. Admin. 3-108(3).
Gillett v. Brown

20140682-CA 2 2017 UT App 19

Corporation (Sentry). Sentry received a substantial partial 

payment of the balance due from one of the loan’s personal 

guarantors, Boyd J. Brown. Neither Sentry nor Brown disclosed 

Brown’s guaranty payment to Gillett or Majestic. Sentry later 

commenced an action in the district court against Majestic to 

collect on the past-due loan, and after the court entered default 

judgment in Sentry’s favor, Sentry liquidated Majestic’s assets 

and certain personal property of Gillett’s, all of which had been 

pledged as security for the loan. Sentry thereafter reimbursed 

Brown for the guaranty payment he had made. Brown then 

facilitated the settlement of a dispute over Sentry’s handling of 

the disposition of Gillett’s and Majestic’s property in the 

aftermath of the default judgment, which resulted in a mutual 

release of claims by and among Sentry, Brown, Majestic, and 

Gillett (the Release).

¶2 Gillett discovered Brown’s guaranty payment and 

Sentry’s reimbursement in 2002. Gillett and Majestic thereafter 

brought a claim of breach of contract against Sentry and claims 

of fraud and breach of contract against Brown. On appeal, Gillett 

and Majestic contend that the district court erred in granting 

summary judgment in favor of Brown and Sentry. We affirm the 

district court’s dismissal of Gillett and Majestic’s claims. Sentry 

and Brown request an award of attorney fees and costs incurred 

on appeal. We decline to award Sentry and Brown their attorney 

fees on appeal, but Sentry and Brown are entitled to their costs. 

BACKGROUND

¶3 Majestic was a Utah corporation and Gillett was its 

president and sole owner.2In 1994, Majestic found itself in a 

financial predicament. It owed Textron Financial Corp. (TFC) 

almost half a million dollars on a loan and was in default. In 

 

2. The corporation was dissolved in April 1996.
Gillett v. Brown

20140682-CA 3 2017 UT App 19

April 1994, Sentry entered into an agreement with Majestic (the 

Loan Agreement) to pay off the balance of Majestic’s TFC loan 

and provide a small additional sum to Majestic—a total principal 

amount of $483,102.43. In return, Majestic agreed to make thirtysix equal monthly payments of $15,779.57 beginning on July 1, 

1994, as well as an interim payment on or before that date to 

cover the period between the signing of the Loan Agreement and 

July 1. The loan was secured by interests in four cargo aircraft 

and four fuel trucks, all property of Majestic, as well as by 

Gillett’s pledge of certain personal property of his own. Because 

Majestic had previously defaulted on its loan with TFC, Sentry 

required additional assurances—the personal guaranties of

Gillett himself and Brown, a mutual acquaintance of both Gillett 

and Sentry’s CEO.

¶4 Majestic failed to make the interim payment as well as 

several monthly payments, and by March 1995 Majestic had paid 

only about $57,000 of the amount it then owed Sentry in 

principal, interest, and other fees under the Loan Agreement. 

Following Majestic’s default, Sentry demanded that Brown fulfill 

his obligation as personal guarantor by paying $249,964.88 (the 

guaranty payment) to Sentry. Brown made the guaranty 

payment in March 1995, but neither Sentry nor Brown informed 

Majestic of that fact. A few weeks later, Sentry obtained a default 

judgment against Majestic for the ‚principal sum of $450,119.70,‛ 

plus interest and costs. That principal sum did not reflect 

Brown’s guaranty payment. To recover on the default judgment, 

Sentry arranged for a public auction in October 1995 of the assets 

Majestic and Gillett had pledged as collateral for the Loan 

Agreement. At the auction, Majestic bought back four aircraft, 

and the parties agreed that Majestic’s obligation would be 

reduced by that amount. The proceeds of the auction were 

otherwise remitted to Sentry, which then reimbursed Brown for 

his guaranty payment.
Gillett v. Brown

20140682-CA 4 2017 UT App 19

¶5 After the auction, Gillett became concerned about Sentry’s 

post-sale handling of the proceeds. He sought an accounting 

from Sentry of how the auction’s proceeds had been applied to 

Majestic’s indebtedness, including whether there was any 

surplus due to Majestic above what Sentry was owed. In 

addition, Sentry had held back the bills of sale for the 

repurchased aircraft, apparently because, by its accounting, 

Majestic still owed money on the default judgment. Sentry 

directed Gillett to discuss the outstanding issues with Brown. 

Around the same time, despite the lack of bills of sale, Gillett 

and Majestic began to use the aircraft in various business 

dealings. For example, Majestic disassembled two of the planes 

and shipped sections of the engines out of state. It also 

attempted to negotiate leases for two of the aircraft with an 

aviation company operating out of Kenya.

¶6 By the summer of 1996, Gillett and Majestic still had not

received a post-auction accounting of the proceeds from the 

collateral sale or the bills of sale for the planes, and Gillett 

contacted Brown, as Sentry had suggested. Brown informed 

Gillett that Majestic still owed Sentry $150,000 and that Sentry 

would not permit Majestic to lease the two planes to the Kenyan 

aviation company. According to Gillett, Majestic cancelled those 

leases in reliance on Brown’s assertions.

¶7 A few months later, Sentry presented Gillett with the 

Release in an effort to resolve the outstanding disputes. Gillett 

sought Brown’s advice as to whether to sign the Release. Brown 

informed him that, among other things, Sentry’s general counsel 

wanted to criminally prosecute Gillett personally for 

disassembling one of the aircraft and shipping the ‚hot parts‛ of 

the aircraft out of state, which Majestic had done believing that it 

owned the aircraft after the collateral foreclosure sale. As Gillett 

recounts, Brown advised Gillett to sign the Release and told 

Gillett that he would ‚get things worked out with Sentry.‛ In 

December 1996, Gillett and Sentry signed the Release, which 
Gillett v. Brown

20140682-CA 5 2017 UT App 19

provided that ‚Sentry and Gillett mutually release, forever 

discharge and agree to hold harmless each other, and . . . Boyd 

Brown, an individual, from any and all claims, demands, 

damages, actions, counts, causes of action, or suits at law of 

whatever kind and nature, and from all costs and attorneys’ 

fees.‛

¶8 More than five years later, in March 2002, Gillett 

discovered that Brown had made the guaranty payment to 

Sentry and that Sentry had not reduced Majestic’s loan 

obligation accordingly. In 2007, Gillett and Majestic sued Sentry 

and Brown, alleging three claims for relief: breach of contract 

against Sentry; breach of contract against Brown; and fraud

against Brown. The 2007 suit was dismissed without prejudice 

months later for failure to serve the complaint on the defendants 

within 120 days of filing. See Utah R. Civ. P. 4(b). Gillett and 

Majestic then refiled essentially the same claims against Sentry 

and Brown in September 2008.

¶9 In the 2008 suit, Gillett and Majestic claimed that Sentry 

had breached the Loan Agreement by failing to disclose the 

guaranty payment and commensurately reducing the amount 

Majestic owed on the loan, by failing to provide Gillett and 

Majestic with an accounting of the surplus proceeds from the 

collateral auction, and by colluding with Brown to improperly 

induce Gillett and Majestic to execute the Release. The 2008 

complaint alleged breach of contract against Brown, as well, but 

also added a fraud claim against him. Gillett and Majestic 

alleged that Brown had breached the Loan Agreement by 

‚failing to abide by the terms of the *agreement+‛ and violating 

the implied covenant of good faith and fair dealing. In addition, 

they claimed that Brown had made ‚false and fraudulent 

statements concerning the status of the outstanding 

delinquencies‛ on the loan, which led to the loss of the aircraft 

and the auction proceeds and finally to Gillett and Majestic’s 

execution of the Release. In particular, they alleged that in 
Gillett v. Brown

20140682-CA 6 2017 UT App 19

connection with the negotiation of the Release, Brown had made 

‚intentionally misleading and false statements‛—namely, that 

Gillett and Majestic ‚were still indebted‛ to Sentry at the time, 

that Sentry was threatening to criminally prosecute Gillett, and 

that Gillett and Majestic had no right to lease the two aircraft for 

use in Africa. They asserted that Brown made these statements 

to induce them to, among other things, pay Sentry additional 

money and sign the Release, and that Gillett and Majestic had 

acted and relied upon these statements to their detriment.3

¶10 Gillett and Majestic eventually filed a motion for partial 

summary judgment ‚against Sentry . . . only‛ for ‚breach of 

contract . . . committed in violation of the implied covenant of 

good faith and fair dealing.‛ Sentry opposed the motion, and 

Sentry and Brown filed a joint cross-motion for summary 

judgment against Gillett and Majestic. Sentry and Brown 

asserted that Gillett and Majestic’s claims should be dismissed 

for several reasons, including that Majestic’s claims were not 

within the allowable scope of the ‚winding up‛ of its business 

affairs as a dissolved corporation and that Gillett and Majestic’s 

claims were barred by statutes of limitation as well as by the 

Release.

¶11 In response to the cross-motions for summary judgment, 

the district court ‚dismiss*ed+ with prejudice all claims‛ against 

Sentry and Brown, effectively denying Gillett and Majestic’s 

 

3. In their 2008 complaint, Gillett and Majestic also requested a 

judicial accounting of the auction proceeds and a declaratory 

judgment interpreting certain provisions of the contractual 

documents, including the Release. Because we resolve the case 

by affirming the district court’s statute of limitations 

determinations and Gillett and Majestic do not pursue the 

accounting claims separately on appeal, we do not address them 

further.
Gillett v. Brown

20140682-CA 7 2017 UT App 19

motion and granting Sentry and Brown’s cross-motion. In doing 

so, the court made several determinations. First, it concluded 

that, because Majestic was ‚no longer a viable corporation‛ and 

its ‚winding up period had expired,‛ it lacked standing to 

‚assert any claims.‛ The court determined, however, that Gillett 

had ‚the right to assert Majestic’s claims‛ as its successor in 

interest. The court then determined that all three of the 

complaint’s substantive claims—the breach of contract claim 

against Sentry and the breach of contract and fraud claims 

against Brown—were barred. The court concluded that the 

breach of contract claims were barred on two independent 

grounds. First, the court determined that the applicable statute

of limitations had run on the breach of contract claims. Applying 

what the court referred to as a ‚first breach‛ approach, the court 

concluded that the statute of limitations on the breach of contract 

claims began to run in 1995 when Gillett and Majestic defaulted 

on their obligations to Sentry under the Loan Agreement, a 

default that occurred before any alleged default by Sentry in 

connection with the collateral disposition or the Release. The 

court then determined that the six-year statute of limitations 

applicable to claims based upon written instruments had expired 

in 2001, thus barring the breach of contract claims.

¶12 Second, the court determined that the Release barred the

breach of contract claims. Though Gillett and Majestic claimed 

the Release was invalid, the court decided that the statute of 

limitations on that claim had run its course before the first 

complaint was filed. Specifically, the court found that the 

limitations period for Gillett and Majestic’s fraud claim, the only 

claim challenging the validity of the Release, began to run in 

2002 when Gillett and Majestic first became aware of the factual 

basis for their claim. Applying the three-year fraud statute of 

limitations, the court determined that the fraudulent inducement 

claim expired in 2005—before Gillett and Majestic filed their first 

complaint—and therefore that the passage of time barred any 

challenge to the validity of the Release. As a result, the still-valid 
Gillett v. Brown

20140682-CA 8 2017 UT App 19

Release precluded Gillett and Majestic’s contract claims against 

all the defendants.

¶13 The court accordingly dismissed with prejudice all claims 

in the 2008 complaint. Gillett and Majestic filed a combined rule 

59(b) motion for a new trial and rule 60(b) motion to set aside the 

district court’s judgment (the post-judgment motions). The 

district court denied the motions and affirmed its prior ruling 

granting summary judgment in favor of the defendants, 

concluding that Gillett and Majestic’s ‚‘objections’ *were+ merely 

a veiled attempt to take a second bite at the apple.‛

ISSUES AND STANDARD OF REVIEW

¶14 Gillett and Majestic now appeal the district court’s grant 

of summary judgment in favor of Sentry and Brown. ‚We review 

a district court’s grant of summary judgment for correctness.‛ 

IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 15, 

196 P.3d 588. And because Gillett and Majestic’s post-judgment 

motions essentially sought reconsideration of the district court’s

summary judgment decision, to the extent that they purport to 

separately appeal them, the standard of review is the same. Cf. 

State v. Parker, 872 P.2d 1041, 1044 (Utah 1994) (‚In determining 

the character of a motion, the substance of the motion, not its 

caption, is controlling.‛).

ANALYSIS

¶15 Gillett and Majestic contend that the district court made 

several errors in dismissing their claims: (1) the district court 

incorrectly applied the three-year fraud statute of limitations to 

their breach of contract claims against Sentry and Brown when it 

should have applied the six-year limitations period applicable to 

claims based on a written instrument; (2) the court failed to toll 

the running of the statute of limitations on the claims against 
Gillett v. Brown

20140682-CA 9 2017 UT App 19

Brown while he resided out of the state; (3) the court erred in 

ruling that Majestic’s claims devolved to Gillett after Majestic’s 

dissolution as a corporation and were not valid corporate 

‚winding up‛ activities; (4) the court incorrectly applied the 

‚first breach‛ doctrine to bar Gillett and Majestic’s breach of 

contract claims against Sentry and Brown; and (5) the court 

failed to recognize disputes of material fact that precluded 

summary judgment.

¶16 Gillett and Majestic acknowledge that the ‚winding up‛

and the ‚first breach‛ issues become relevant only if we reverse

the district court’s dismissal of the breach of contract and fraud 

claims as time-barred. Indeed, they characterize the district 

court’s conclusions on these points as ‚peripheral,‛ 

‚unnecessary,‛ and ‚irrelevant‛ ‚*i+f the summary judgment on 

the ‘statute of limitations’ bar is affirmed,‛ noting that they have 

raised these issues on appeal ‚only to avoid future ‘law of the 

case’ problems if the case is remanded for trial.‛ Accordingly, we 

first consider whether the district court correctly applied the 

pertinent statutes of limitation to Gillett and Majestic’s breach of 

contract claims against Sentry and Brown and their fraudulent 

inducement claim against Brown. Because we conclude that the 

district court correctly ruled that the claims against both 

defendants are time-barred and that there are no unresolved 

issues of material fact that preclude summary judgment, we do 

not reach the merits of either the ‚winding up‛ or the ‚first 

breach‛ issue. Lastly, we address Sentry and Brown’s request for 

the attorney fees and costs they have incurred on appeal.

I. Statutes of Limitation

¶17 A district court’s application of a statute of limitations is 

reviewed for correctness. Gillmor v. Summit County, 2010 UT 69, 

¶ 16, 246 P.3d 102. Gillett and Majestic argue that the district 

court erred in applying the pertinent statutes of limitation to 

dismiss their breach of contract claims against Brown and Sentry 

and their fraud claim against Brown. Specifically, they argue that 
Gillett v. Brown

20140682-CA 10 2017 UT App 19

the court correctly tolled the breach of contract claims until the 

2002 discovery of Brown’s guaranty payment, but that the court 

then wrongly applied the three-year fraud statute of limitations 

to those breach of contract claims. They contend that, had the 

court applied the correct six-year statute of limitations for claims 

based upon written instruments, see Utah Code Ann. § 78B-2-

309(2) (LexisNexis 2012), their breach of contract claims would 

have been timely filed because they filed those claims in 2007, 

within six years of their discovery in 2002.

¶18 Gillett and Majestic also argue that their claims against 

Brown—the fraud claim and the breach of contract claim—were 

timely filed, because Brown has continuously resided out of state 

at all times relevant to the litigation. Thus, they assert that under 

Utah Code section 78B-2-104, the section that tolls statutes of 

limitation in circumstances where the defendant is out of state, 

the limitation periods on the claims against Brown should never 

have begun to run.

¶19 We first address the district court’s dismissal of the 

breach of contract claims and then consider whether the district 

court correctly rejected Gillett and Majestic’s argument that the 

claims against Brown ought to have been indefinitely tolled 

because he was residing out of state.

A. Breach of Contract Claims

¶20 Gillett and Majestic argue that the district court 

incorrectly applied the fraud statute of limitations to their breach 

of contract claims.

¶21 Utah Code sections 78B-2-305 and 78B-2-309 set out the 

statutes of limitation applicable to fraud claims and claims based 

upon ‚an instrument in writing,‛ respectively. An action based 

on fraud or mistake ‚may be brought within three years‛ from 

the date of accrual. Utah Code Ann. § 78B-2-305(3) (LexisNexis 

2012). An action based ‚upon any contract, obligation, or liability 
Gillett v. Brown

20140682-CA 11 2017 UT App 19

founded upon an instrument in writing‛ can ‚be brought within 

six years‛ of accrual. Id. § 78B-2-309(2). ‚As a general rule, a 

statute of limitations begins to run ‘upon the happening of the 

last event necessary to complete the cause of action.’‛ Russell 

Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 20, 108 P.3d 741 

(quoting Myers v. McDonald, 635 P.2d 84, 86 (Utah 1981)). ‚Once 

a statute has begun to run, a plaintiff must file his or her claim 

before the limitations period expires or the claim will be barred.‛ 

Id.

¶22 In limited circumstances, however, ‚a statute of 

limitations may be tolled until the discovery of facts forming the 

basis for the cause of action.‛ Id. ¶ 21 (citation and internal 

quotation marks omitted). Some limitation statutes contain their 

own tolling provisions, establishing what our supreme court has 

described as a ‚statutory discovery rule.‛ Id. For example, the 

fraud statute of limitations expressly provides that ‚the cause of 

action does not accrue until the discovery by the aggrieved party 

of the facts constituting the fraud or mistake.‛ Utah Code Ann. 

§ 78B-2-305(3). The supreme court has also recognized an 

‚equitable discovery rule‛ that can apply where there is no 

express statutory tolling provision. See Russell Packard, 2005 UT 

14, ¶ 24. Under the equitable discovery rule, the accrual of a 

claim may be tolled based upon ‚the defendant’s concealment or 

misleading conduct‛ or where there are ‚exceptional 

circumstances‛ making ‚the application of the general [statute of 

limitations] rule . . . irrational or unjust.‛ Id. ¶ 25 (citation and 

internal quotation marks omitted).

¶23 Gillett and Majestic assert that the district court correctly 

tolled their claims against Brown and Sentry until 2002 based on 

Sentry and Brown’s concealment of the guaranty payment but 

then incorrectly applied the three-year statute of limitations for 

fraud claims to their breach of contract claims. They argue that 

the district court somehow conflated the fraudulent nature of the

concealment that tolled their claims with the breach of contract 
Gillett v. Brown

20140682-CA 12 2017 UT App 19

claims themselves and thus applied the wrong limitations

period. We disagree.

¶24 In its summary judgment ruling, the district court 

dismissed all of Gillett and Majestic’s claims with prejudice and 

confirmed that decision in denying the post-judgment motions. 

While the logic of the district court’s summary judgment 

decision is in places difficult to track, the court clarified its 

reasoning in its ruling on Gillett and Majestic’s post-judgment 

motion. Reading both the summary judgment and the postjudgment rulings together, it appears that the court dismissed 

the breach of contract claims against Sentry and Brown on two 

independent grounds: first, that the claims were time-barred 

because the six-year statute of limitations expired in 2001, and 

second, that the Release barred the claims.

¶25 In deciding that the six-year limitations period barred the 

contract claims, the court reasoned that Gillett and Majestic first 

breached the Loan Agreement in 1995 by defaulting on their 

payments to Sentry and that, according to the court’s 

understanding of the ‚first breach‛ doctrine, the statute of 

limitations began to run on the breach of contract claims from 

the date of that default.4In particular, the court stated that 

 

4. Under the ‚first breach‛ doctrine, ‚a party first guilty of a 

substantial or material breach of contract cannot complain if the 

other party thereafter refuses to perform. He can neither insist 

on performance by the other party nor maintain an action 

against the other party for a subsequent failure to perform.‛ 

CCD, LC v. Millsap, 2005 UT 42, ¶ 29, 116 P.3d 366 (citation and 

internal quotation marks omitted). Because we affirm the district 

court’s dismissal of Gillett and Majestic’s claims on other 

grounds, we do not reach the issue of whether the first breach 

doctrine can be applied in a statute-of-limitations context as the 

district court did here.
Gillett v. Brown

20140682-CA 13 2017 UT App 19

‚Plaintiffs were the first party to breach the contract at issue in 

1995 and therefore, the six (6) year statute of limitations expired 

in 2001.‛ (Footnote omitted.) And in response to Gillett and 

Majestic’s post-judgment contention that ‚the Court 

misapprehended (and thus overlooked) the true ‘contractuallybased’ nature of the Plaintiffs’ claim (against *Sentry+) and 

instead improperly converted Plaintiffs’ claims to allege ‘fraud,’ 

for which a shorter statute of limitations would apply,‛ the court 

explained as follows: ‚[T]he contractual claims, i.e., [Gillett and 

Majestic’s+ first and second causes of action, were barred by the 

six (6) year statute of limitations‛ on the basis that ‚*Gillett and 

Majestic] themselves asserted [that] they breached the terms of 

the [Loan Agreement] in mid-1995 but did not file any suit until 

June 2007.‛ Thus, contrary to Gillett and Majestic’s assertion, the 

court did not equitably toll the limitations period for the breach 

of contract claims at all. Rather, it concluded that the statute of 

limitations applicable to claims based upon written instruments, 

see Utah Code Ann. § 78B-2-309(2) (LexisNexis 2012), applied to 

those claims, with the limitations period commencing in 1995 

and expiring six years later in 2001. In so concluding, the court 

noted that Gillett and Majestic alleged ‚they were unaware of 

Sentry’s receipt of Mr. Brown’s $250,000 payment‛ until March 

2002, when they first became aware of the guaranty payment. 

But the court found that ‚the concealment *at issue+ pertains to 

[the] alleged fraud inducing [Gillett and Majestic] to sign the 

release in December 1996, which [Gillett and Majestic] alleged to 

not have discovered until March 2002,‛ and, as a result, it 

applied the discovery rule in the fraud statute of limitations to 

toll only the fraud claim against Brown until March 2002.

¶26 Thus, the court did not even purport to toll the statute of 

limitations on the contract claims, much less apply a fraud 

limitations period to those claims. Rather the district court 

seemed to simply bypass consideration of whether the equitable 

discovery rule ought to toll the breach of contract claims until 

discovery of the guaranty payment because it concluded that 
Gillett v. Brown

20140682-CA 14 2017 UT App 19

Gillett and Majestic had first breached the Loan Agreement 

before the guaranty payment had even been made.

¶27 The second basis for the court’s decision to dismiss the 

breach of contract claims was the operation of the Release. 

Specifically, the district court concluded that even if the statute 

of limitations had not expired, the Release barred both breach of 

contract claims. The court reasoned that Gillett and Majestic’s 

only challenge to the validity of the Release was asserted in their 

fraud claim against Brown, where they alleged that he had 

fraudulently induced them to execute the mutual release of all 

contract claims relating to the Loan Agreement. Having assumed 

for purposes of summary judgment that Gillett and Majestic did 

not discover until the deposition of Sentry’s CEO that Brown 

had misled them by, among other things, failing to disclose the 

guaranty payment, the court tolled the fraudulent inducement 

claim until March 2002. The court then applied the three-year 

statute of limitations applicable to fraud claims from March 2002 

and determined that, even though the fraud claim was tolled, it 

had nonetheless expired in 2005, long before the 2007 case was 

filed.

¶28 Thus, the district court dismissed the breach of contract 

claims on two independent grounds: first, that they were barred 

by the applicable statute of limitations; and second, that they 

were barred by the Release. The court also ruled that the passage 

of the three-year limitations period barred any challenge to the 

Release. 

¶29 We ‚will not reverse a ruling of the *district+ court that 

rests on independent alternative grounds where [an] appellant 

challenges only one of those grounds.‛ Wm. Douglas Horne 

Family Revocable Trust v. Wardley/McLachlan Dev., LLC, 2013 UT 

App 129, ¶ 9, 304 P.3d 99 (citation and internal quotation marks 

omitted). Instead, we ‚may affirm if the [appellant] fail[s] to 

challenge each of the grounds for the district court’s grant of 

summary judgment.‛ Id.
Gillett v. Brown

20140682-CA 15 2017 UT App 19

¶30 On appeal, Gillett and Majestic contend that the district 

court incorrectly dismissed the breach of contract claims against 

Brown and Sentry on statute of limitations grounds. But they do 

not acknowledge that the validity of the Release was an 

independent basis for the court’s decision. Indeed, Gillett and 

Majestic do not even mention the Release in their opening brief, 

much less challenge the district court’s interpretation of its 

applicability and scope. And in their reply brief, while they 

acknowledge that the allegation of fraud in the complaint ‚was 

for the purpose of challenging the validity of the ‘Release’ and its 

use so as to bar *Gillett and Majestic’s+ claims,‛ they simply 

reassert without further analysis that the district court 

‚narrowed its actual ‘summary judgment’ ruling to be on the 

‘statute of limitations’ grounds.‛ Thus, Gillett and Majestic fail to 

challenge the district court’s alternative conclusion that the 

passage of time rendered the validity of the Release unassailable 

and that the Release itself barred their breach of contract claims 

against both Sentry and Brown.

¶31 Accordingly, even if the district court erred in its 

application of the statute of limitations, as Gillett and Majestic 

contend, we nonetheless affirm the court’s dismissal of the 

breach of contract claims on the ‚unchallenged alternative 

ground of [the operation of the Release] without reaching the 

merits of that decision.‛ See id. ¶ 13.

B. Fraud Claim Against Brown

¶32 Gillett and Majestic argued below that former Utah Code 

section 78-12-355 acted to indefinitely toll the statutes of 

 

5. Section 78-12-35 was renumbered to 78B-2-104 in February 

2008 and amended in March 2009 to read:

If a cause of action accrues against a person while 

the person is out of the state and the person is not 

subject to the jurisdiction of the courts of this state 

(continued...)
Gillett v. Brown

20140682-CA 16 2017 UT App 19

limitation on their claims against Brown because, as a resident of 

Wyoming, Brown had been absent from the state of Utah since 

the events that formed the basis of their claim. Section 78-12-35 

provided:

Where a cause of action accrues against a person 

when he is out of the state, the action may be 

commenced within the term as limited by this 

chapter after his return to the state. If after a cause 

of action accrues he departs from the state, the time 

of his absence is not part of the time limited for the 

commencement of the action.

Utah Code Ann. § 78-12-35 (West 2007).

 

(...continued)

in accordance with Section 78B-3-205, the action 

may be commenced within the term as limited by 

this chapter after his return to the state. If after a 

cause of action accrues the person departs from the 

state, the time of his absence is not part of the time 

limited for the commencement of the action unless

Section 78B-3-205 applies.

Utah Code Ann. § 78B-2-104 (LexisNexis Supp. 2009). In other 

words, the references to long-arm jurisdiction under section 78B3-205 were not added until March 2009. Compare id. (LexisNexis 

Supp. 2009), with id. (2008). Gillett and Majestic argued below 

that the current section 78B-2-104 was not applicable because the 

litigation commenced before the amendments. And indeed, in 

their briefing on appeal, although Gillett and Majestic purport to 

quote section 78B-2-104, they omit altogether the added 

language that incorporated long-arm jurisdiction concepts into 

the amended statute. Accordingly, we cite the former version in 

our discussion.
Gillett v. Brown

20140682-CA 17 2017 UT App 19

¶33 As discussed above, Gillett and Majestic asserted two 

claims against Brown—one for breach of contract and one for 

fraud. The district court determined in its summary judgment 

ruling that the Release barred the breach of contract claim, 

unless the claim alleging that the Release was fraudulently 

obtained had been timely filed. It then determined that the fraud 

claim was barred because the applicable statute of limitations 

had expired in 2005, over two years before Gillett and Majestic 

filed their 2007 case. The court accordingly dismissed all the 

claims.

¶34 In their motions following entry of the summary 

judgment order, Gillett and Majestic contended that the district 

court’s summary judgment ruling on the fraud claim ‚fails to 

consider the legal effect of [the out-of-state tolling statute] . . . 

and [Brown’s+ essentially-continuous absence from Utah since 

the mid-1990s.‛ They did not further analyze or explain this 

contention to the court, however, as Gillett and Majestic failed to 

submit a memorandum supporting their motion. Nevertheless, 

in denying the motion, the district court addressed the issue and 

concluded that the out-of-state tolling statute did not apply to 

the circumstances in this case.

¶35 First, the court decided that it had jurisdiction to 

adjudicate the claims against Brown by virtue of the forum 

selection clauses found in the Loan Agreement, which Brown 

signed, and Brown’s personal Guarantee and Waiver. Both 

forum selection clauses stated that the parties agreed to resolve 

all matters in ‚the exclusive jurisdiction of the Third Judicial 

District for Salt Lake County, State of Utah.‛ Relying upon 

Jacobsen Construction Co. v. Teton Builders, 2005 UT 4, 106 P.3d 

719, the court discussed circumstances in which an enforceable 

forum selection clause establishes personal jurisdiction over a 

defendant. In Jacobsen Construction, our supreme court held that 

for a court to have personal jurisdiction over a defendant by way 

of a forum selection clause, there need be only ‚a rational nexus 
Gillett v. Brown

20140682-CA 18 2017 UT App 19

between Utah and the underlying dispute.‛ Id. ¶ 32 (citation and 

internal quotation marks omitted). The district court then 

determined that the forum selection clauses at issue created a 

‚rebuttable presumption‛ that it had personal jurisdiction over 

Brown and that the circumstances in the case established ‚the 

necessary rational nexus‛ between Utah and the matter in 

controversy.6(Citing Jacobsen Constr., 2005 UT 4, ¶ 39.)

¶36 Second, the court determined that the out-of-state tolling 

statute—whether the 2008 or subsequently amended version—

did not apply under the circumstances, and that Gillett and 

Majestic had ‚misconstrued the statutory language and . . . the 

purpose of‛ the statute. Quoting Snyder v. Clune, 390 P.2d 915 

(Utah 1964), a case applying the preamendment statute, the court 

reasoned ‚‘that the objective of [the out-of-state tolling statute] 

was to prevent a defendant from depriving a plaintiff of the 

opportunity of suing him by absenting himself from the state 

during the period of limitation.’‛ (Quoting id. at 916.) The 

district court then observed that the supreme court, in applying 

this principle in Olseth v. Larson, 2007 UT 29, 158 P.3d 532, 

determined that, ‚because defendant was an out-of-state 

defendant whom plaintiff was unable to locate at the time she 

attempted to serve her second amended complaint, which then 

was outside of the applicable statute of limitations, the statute of 

limitations was tolled.‛ (Citing id. ¶¶ 2–7.)

¶37 The district court went on to compare the circumstances 

in Olseth to those in the present case, observing that ‚[u]nlike the 

matter in Olseth, [Gillett and Majestic] knew that [in] the mid1990s Mr. Brown relocated his permanent residence . . . to Teton 

County, Wyoming, where he has continuously maintained his 

 

6. We note that it is not clear whether the court viewed the 

forum selection clauses as providing the court with an alternate, 

independent basis not to invoke the tolling statute. 
Gillett v. Brown

20140682-CA 19 2017 UT App 19

permanent legal residence and domicile.‛ (Third alteration in 

original) (citation and internal quotation marks omitted). The 

district court also noted that Gillett and Majestic had managed to 

serve Brown with their complaint in Wyoming and that they had 

‚never claimed that they were unable to locate Mr. Brown in 

order to appropriately serve him‛ or that Brown’s ‚absence from 

Utah deprived them of their ability to timely commence the 

entitled matter.‛ The court accordingly determined that ‚*t+he 

fact that Mr. Brown was served in Wyoming and the alleged 

inconvenience of [Gillett and Majestic] in attempting to timely 

depose Mr. Brown does not invoke [the out-of-state tolling 

statute+.‛ Based on this analysis, the court concluded that the 

claims against Brown were not tolled due to Brown’s out-of-state 

residence.

¶38 On appeal, Gillett and Majestic do not meaningfully 

engage with the district court’s reasoning that the forum

selection clauses provided a basis for personal jurisdiction over 

Brown and that the out-of-state tolling statute did not apply in 

the circumstances. See Wing v. Still Standing Stable LLC, 2016 UT 

App 229, ¶ 19 (quoting Golden Meadows Props. LC v. Strand, 2010 

UT App 257, ¶ 17, 241 P.3d 375) (explaining that appellate 

review is ‚confined to the trial court’s ruling*s+‛ and rejecting a 

challenge where the appellant’s brief ‚‘fail*ed+ to address the 

basis of the district court’s ruling’‛); State v. Cooper, 2012 UT App 

211, ¶ 10, 283 P.3d 1075 (declining to reach an issue in part 

because the appellant ‚fail*ed+ to address . . . the district court’s 

consideration and rejection of [the issue being appealed] when it 

was raised in a motion for new trial‛); Duchesne Land, LC v. 

Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 

(explaining that the appellants had ‚failed to persuade us that 

the district court’s ruling constituted error‛ where the appellants 

had ‚not addressed the actual basis for the district court’s 

ruling‛).
Gillett v. Brown

20140682-CA 20 2017 UT App 19

¶39 Gillett and Majestic begin their argument on this point by 

discussing the overall applicability of the out-of-state tolling 

statute to this case. Their analysis in this regard consists of 

quoting the statute, reciting the apparently undisputed factual 

support for the proposition that Brown resided in Wyoming 

since the mid-1990s events underlying the suit, and then stating 

that due to Brown’s ‚permanent absence from the state, . . . the 

statute of limitations effectively never commences or runs‛ on 

the breach of contract and fraud claim against Brown. They then 

conclude by stating that ‚the District Court’s dismissal of *their+ 

claims against [Brown+ was in error.‛7

¶40 But the district court explained at some length, based on 

its analysis of certain language in the statute and prior cases 

 

7. Indeed, apart from recounting the factual basis of Brown’s 

absence from the state, Gillett and Majestic’s analysis on this 

point is contained in one paragraph, which reads: 

In this case, Defendant Brown has not 

resided in Utah on a continuous basis since the 

1990s; he (in the mid-1990s or earlier) changed his 

residence and domicile to the State of Wyoming 

(Teton County) and has continuously resided 

there. . . . Thus, due to Brown’s permanent absence 

from the state due to his residence in Wyoming 

(and/or lengthy half-year annual vacations in 

Mexico), the statute of limitation effectively never 

commences or runs. This result—that the statute 

effectively never runs—is applicable to both the 

fraud claim (a three-year statute, tolled until 

discovery) as well as the longer (six year) statute 

for the breach of contract claims. Thus, the District 

Court’s dismissal of the Plaintiffs’ claims against 

Defendant [Brown] was in error.

(Internal quotation marks omitted.)
Gillett v. Brown

20140682-CA 21 2017 UT App 19

interpreting it, why it concluded that the statute did not apply in 

the circumstances of this case. And Gillett and Majestic do not 

describe, engage with, or effectively challenge the basis of the 

court’s decision; they critique neither the court’s interpretation 

of the statutory language nor its reading of prior cases applying 

the statute. Indeed, the entirety of their response to the court’s 

analysis in their opening brief consists of two sentences. After 

simply noting without further description that the court’s 

analysis of the applicability of the statute is found on ‚pages 6 

thru 8‛of its post-judgment motions ruling, they state:

The District Court’s infusion . . . of long arm 

jurisdiction concepts (namely, that the Plaintiffs 

knew where Brown resided out-of-state and could 

have served him, as was ultimately accomplished) 

does not resolve the situation. The statute—78B-2-

[1]04—still tolls the running of the statute, because 

[Brown] is out-of-state, regardless of whether the 

Plaintiff knew where [Brown] was.

¶41 Such a conclusory analysis falls short of demonstrating 

that the district court erred. See State v. Green, 2005 UT 9, ¶¶ 11–

12, 108 P.3d 710 (declining to address appellant’s argument 

where, ‚*t+oo often, his legal analysis is little more than a 

conclusory statement unsupported by analysis or authority‛). 

Although Gillett and Majestic argue that, under the out-of-state 

tolling statute, the claims against Brown should have been 

tolled, they do not attempt to meaningfully address the district 

court’s reasoning or explain why the court’s determination that 

their arguments failed under both the original and the amended 

versions of the out-of-state tolling statute was infirm. See Golden 

Meadows Props., 2010 UT App 257, ¶¶ 17–18 (explaining that an 

appellant cannot demonstrate that a district court erred if he or 

she ‚fails to attack the district court’s reasons‛ for the decision it 

made); see also Utah R. App. P. 24(a)(9). Rather, in order for us to 

determine that the district court erred and reverse its decision, 
Gillett v. Brown

20140682-CA 22 2017 UT App 19

we would have to assume ‚the burden of argument and 

research‛ and, in effect, act as Gillett and Majestic’s advocates. 

See Hi-Country Estates Homeowners Ass’n v. Jesse Rodney Dansie 

Living Trust, 2015 UT App 218, ¶ 5, 359 P.3d 655 (citation and 

internal quotation marks omitted). We decline to do so. By 

failing to address the district court’s reasoning, Gillett and 

Majestic have ‚failed to carry their burden on appeal.‛ See id. 

Accordingly, we affirm the district court’s conclusion that the 

out-of-state tolling statute was inapplicable in the circumstances 

of this case.8

 

8. Gillett and Majestic also contend that all their claims against 

Sentry and Brown were timely filed in a 2003 case, which the 

district court overlooked. The 2003 case, they allege, was 

dismissed in June 2006 and timely refiled under the savings 

statute in June 2007 and again in 2008. Thus, they argue, their 

claims were filed well within the statutes of limitation—whether 

the three-year fraud statute applicable to the Release or the sixyear period applicable to the contract claims—under their theory 

of how the court should have applied that statute. As evidence 

of the alleged filing, Gillett and Majestic attach a docketing 

statement for a 2003 case as an addendum to their opening brief. 

The docketing statement indicates that a civil complaint was 

filed in September 2003, that Brown and Sentry filed answers, 

and that the case was dismissed without prejudice for failure to 

prosecute in June 2006 on the court’s own motion. We will not 

consider this argument. Among other things, as Sentry and 

Brown point out, Gillett and Majestic did not raise the 2003 

complaint in the district court proceedings; rather, they ‚alleged 

to the [district] court that this matter was filed in 2007 . . . , and 

the [district] court confirmed that this matter was first filed in 

2007.‛ ‚*I+n order to preserve an issue for appeal[,] the issue 

must be presented to the [district] court in such a way that the 

[district] court has an opportunity to rule on that issue.‛ 438 

(continued...)
Gillett v. Brown

20140682-CA 23 2017 UT App 19

II. Issues of Fact

¶42 Gillett and Majestic contend that there were disputes of 

material fact that ought to have precluded summary judgment 

as a matter of law. Gillett and Majestic have identified three 

questions of fact that they contend were material and disputed: 

(1) whether Brown continuously resided out of state, (2) whether 

Majestic’s claims against Sentry and Brown fell within the 

‚‘winding up’ of its corporate affairs,‛ and (3) whether 

Majestic’s ‚default in making the monthly repayments . . . 

necessarily constitute*d+ ‘breach’‛ of the Loan Agreement in 

terms of the ‚‘first breach’ doctrine.‛ The last two questions do 

not seem entirely factual and, in any event, implicate issues that 

we have already decided we do not need to reach. And because 

we have resolved the question of Brown’s absence from the state 

on legal grounds that do not implicate questions of fact, we do 

not further address this claim.

III. Attorney Fees

¶43 Sentry and Brown request an award of attorney fees and 

costs incurred to defend this appeal. They contend that Gillett 

and Majestic’s brief is deficient under rule 24(k) of the Utah 

 

(...continued)

Main Street v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (first 

and second alterations in original) (citation and internal 

quotation marks omitted). Gillett and Majestic have provided no 

justification for their failure to bring the 2003 litigation to the 

attention of the district court; indeed, they do not even 

acknowledge the omission. Further, the bare docketing 

statement from the 2003 case, even if we were willing to take 

judicial notice of it, does not establish that the claims filed in 

2007 were originally brought in a 2003 complaint which has 

never been produced.
Gillett v. Brown

20140682-CA 24 2017 UT App 19

Rules of Appellate Procedure,9 and that it is also meritless and 

frivolous under rule 33.10 They also contend that they should be 

awarded costs under rule 34.11

¶44 We decline to award attorney fees. ‚The decision to assess 

attorney fees under rule 24(k) is a matter of discretion‛ for the 

appellate court. Fullmer v. Fullmer, 2015 UT App 60, ¶ 27, 347 

P.3d 14 (citation and internal quotation marks omitted). And 

while we are required to order fees if we determine that an 

appeal is meritless or frivolous under rule 33, we have stated 

that ‚*t+he imposition of rule 33 sanctions is a serious matter and 

only to be used in egregious cases, lest the threat of such 

 

9. Rule 24(k) of the Utah Rules of Appellate Procedure provides:

All briefs under this rule must be concise, 

presented with accuracy, logically arranged with 

proper headings and free from burdensome, 

irrelevant, immaterial or scandalous matters. Briefs 

which are not in compliance may be disregarded or 

stricken, on motion or sua sponte by the court, and 

the court may assess attorney fees against the 

offending lawyer.

10. Rule 33(a) of the Utah Rules of Appellate Procedure provides 

that ‚if the court determines that . . . *an+ appeal taken under 

these rules is either frivolous or for delay, it shall award just 

damages, which may include single or double costs, . . . and/or 

reasonable attorney fees, to the prevailing party.‛ 

11. Rule 34(a) of the Utah Rules of Appellate Procedure provides 

in part, ‚Except as otherwise provided by law, if an appeal is 

dismissed, costs shall be taxed against the appellant unless 

otherwise agreed by the parties or ordered by the court; if a 

judgment or order is affirmed, costs shall be taxed against 

appellant unless otherwise ordered . . . .‛
Gillett v. Brown

20140682-CA 25 2017 UT App 19

sanctions should chill litigants’ rights to appeal lower court 

decisions.‛ Tobler v. Tobler, 2014 UT App 239, ¶ 47, 337 P.3d 296 

(citation and internal quotation marks omitted); Cooke v. Cooke, 

2001 UT App 110, ¶ 14, 22 P.3d 1249 (‚The sanction for filing a 

frivolous appeal applies only in egregious cases with no 

reasonable legal or factual basis.‛ (citation and internal 

quotation marks omitted)).

¶45 While Gillett and Majestic ultimately did not prevail, 

given the complexity of the factual and legal issues present in 

this case, we ‚cannot say that [this] appeal, taken as a whole, 

presents the egregious case that warrants rule 33 sanctions.‛ See 

Tobler, 2014 UT App 239, ¶ 47. Accordingly, we decline to award 

attorney fees under rules 24(k) or 33. However, because we have 

affirmed the district court’s dismissal, Sentry and Brown are 

entitled to their costs under rule 34. 

CONCLUSION

¶46 We conclude that Gillett and Majestic have not 

demonstrated that the district court’s summary judgment ruling 

was in error. Accordingly, we affirm the district court’s dismissal 

of Gillett and Majestic’s claims.