This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 68

IN THE

SUPREME COURT OF THE STATE OF UTAH

MAA PROSPECTOR MOTOR LODGE, LLC,

Appellee,

v.

RAY W. PALMER, et al.,

Appellants.

No. 20151010

Filed September 28, 2017

On Direct Appeal

Seventh District, San Juan

The Honorable Lyle R. Anderson

No. 140700016

Attorneys:

Ronald G. Russell, Royce B. Covington, Jeffery A. Balls, Salt Lake City, 

for appellee

Craig C. Halls, Blanding, for appellant

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and 

JUDGE HOLMBERG joined.

Having recused herself, JUSTICE DURHAM does not participate herein; 

DISTRICT COURT JUDGE KENT R. HOLMBERG sat.
MAA PROSPECTOR MOTOR LODGE v. PALMER

Opinion of the Court

2

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶ 1 This case involves the same unstayed court order at issue in 

2DP Blanding, LLC v. Palmer, 2017 UT 62, __ P.3d __. The order 

authorized a foreclosure sale of real property. The sale was executed 

while the litigation was on appeal. In this case, MAA Prospector 

purchased property (Parcel 1) at the foreclosure sale. Unlike 2DP 

Blanding, MAA Prospector had actual notice of Palmer’s appeal of the

foreclosure order when it purchased the property. We are asked 

whether such notice means that MAA Prospector took the property 

subject to the outcome of the appeal. We answer this question in the 

negative. We reaffirm our statement in 2DP Blanding that “an appellant 

who takes no action to preserve his interests in property at issue on 

appeal has no recourse against a lawful third-party purchaser.” 2DP 

Blanding, 2017 UT 62, ¶ 1. And we accordingly affirm the district court’s 

award of summary judgment to MAA Prospector.

¶ 2 We also affirm the award of attorney fees to MAA Prospector. 

Palmer raises credible statutory arguments for reversal but ignores

adverse controlling authority. And we decline to overrule our 

precedent where Palmer has failed to contend that it was wrongly 

decided or subject to being overruled.

I

¶ 3 This case is an offshoot of a lien dispute between Ray Palmer 

and First National Bank. In July 2003, Palmer agreed to sell two parcels 

of commercial real estate to JDJ Holdings, Inc. JDJ obtained two loans to 

finance the purchase—one from First National and one from Palmer. 

Both loans were secured by trust deeds. First National recorded its 

deed on December 5, 2013 and had first position. Palmer recorded his 

deed on December 12, 2013 and had second position.

¶ 4 Due to a flaw in the initial loan approval, First National was 

required to record a new deed after Palmer recorded his deed. Before 

recording the new deed, First National got an erroneous title report that 

failed to show the Palmer deed. And despite having knowledge of 

Palmer’s loan at its inception, First National relied on the erroneous 

title report and simply revoked its original deed and recorded the new 

deed on March 8, 2004. The bank did not obtain a subordination

agreement from Palmer. The new deed accordingly appeared to elevate 

Palmer’s deed to first position. But no one discovered this repositioning 

at the time.
Cite as: 2017 UT 68

Opinion of the Court

3

¶ 5 Five years later, JDJ defaulted on both loans. Palmer and First 

National both claimed that their deed was entitled to senior position. 

The deed holders initiated legal proceedings to settle the dispute, and 

the district court granted summary judgment to First National. The 

court held that the bank was entitled to equitable reinstatement of its 

original deed. It also authorized First National to “exercise all rights 

and remedies provided by its Trust Deed with respect to the Property,” 

including proceeding with a foreclosure sale.

¶ 6 Palmer appealed the court’s decision on April 8, 2011. He 

challenged the lien priority established by the district court’s order. But 

he did not formally seek or obtain a stay of the order. And he did not 

file a lis pendens on the property at any point during the litigation. On 

June 29, 2011, First National issued a Notice of Trustee’s Sale under its 

reinstated trust deed, and a trustee’s sale was held on August 8, 2011.

¶ 7 To this extent this case is procedurally identical to the 2DP 

Blanding case. See 2DP Blanding, LLC v. Palmer, 2017 UT 62, ¶¶ 2–6, __

P.3d __. Yet there are two elements of this case that set it apart from 

2DP Blanding. First, the trust deed between Palmer and the original 

purchaser of Parcel 1, JDJ, authorized Palmer to seek attorney fees from 

JDJ if it defaulted on the loan and foreclosure proceedings were 

necessary.

1 Second, MAA Prospector purchased Parcel 1 directly at the 

foreclosure sale held on August 8, 2011. And it did so with actual

knowledge of Palmer’s appeal of the order approving that sale.

¶ 8 In February 2013, the court of appeals reversed the judgment 

under which the foreclosure sale was conducted. It remanded the case 

to the district court for further proceedings. Then, in July 2014, after 

unsuccessfully litigating a claim to obtain the proceeds of the 

foreclosure sale, Palmer recorded a notice of default and election to sell 

under his original trust deed. MAA Prospector responded by initiating

this suit against Palmer, seeking an order enjoining Palmer from 

foreclosing on the property and quieting its title to Parcel 1. 

¶ 9 The district court heard cross-motions for summary judgment. 

It ruled that the foreclosure sale extinguished any interest Palmer had 

 

1 2DP Blanding was premised on the same trust deed, but the 

plaintiff in that case withdrew its motion for attorney fees. Accordingly, 

this provision was not at issue in that case.
MAA PROSPECTOR MOTOR LODGE v. PALMER

Opinion of the Court

4

in the property. And it granted MAA Prospector’s motion to enjoin the 

foreclosure sale and quiet title to Parcel 1. 

¶ 10 In its ruling on summary judgment, the district court 

recognized that the issue of attorney fees remained. MAA Prospector 

filed a motion for fees after the summary judgment ruling but before 

the entry of final judgment. After further briefing and oral argument,

the district court granted the motion for fees. 

¶ 11 Palmer filed a timely appeal from both the adverse summary 

judgment ruling and the attorney fees award. On appeal we review the 

district court’s grant of summary judgment and its interpretation of the 

attorney fee statute for correctness. See Heslop v. Bear River Mut. Ins. Co., 

2017 UT 5, ¶ 15, 390 P.3d 314; Insight Assets, Inc. v. Farias, 2013 UT 47, 

¶ 8, 321 P.3d 1021.

II

¶ 12 Palmer asserts that this case is distinguishable from 2DP 

Blanding because MAA Prospector had actual notice of the pending 

appeal and therefore took subject to the outcome of that litigation. We 

disagree.

¶ 13 “[W]hen an appellant neither obtains a stay of execution nor 

timely records a lis pendens, he has no recourse against third parties 

who lawfully acquire the property.” 2DP Blanding, 2017 UT 62, ¶ 27.

Actual notice does not change this rule. See id. ¶ 28. To hold otherwise 

would trivialize the importance of obtaining a stay or timely filing a lis 

pendens at the outset of litigation. We decline to do so. And we reject 

Palmer’s other arguments for reversal on the same grounds as 

articulated in 2DP Blanding. Id. ¶¶ 29–36. We thus affirm the grant of 

summary judgment to MAA Prospector.

¶ 14 On the issue of attorney fees, Palmer challenges the district 

court’s interpretation of the reciprocal attorney fee statute. The statute 

provides that “[a] court may award costs and attorney fees to either 

party that prevails in a civil action based upon any . . . written contract 

. . . when the . . . written contract . . . allow[s] at least one party to 

recover attorney fees.” UTAH CODE § 78B-5-826. In this case, the contract 

at issue is the original loan agreement between Palmer and JDJ. The 

loan agreement authorizes Palmer to collect reasonable attorney fees 

associated with the costs of foreclosing the loan in the event JDJ

defaults. Palmer asserts that he has not sought attorney fees from MAA 

Prospector. He likewise argues that under no theory would he be 

entitled to fees against MAA Prospector. And Palmer emphasizes that 
Cite as: 2017 UT 68

Opinion of the Court

5

his contract was with JDJ, not MAA Prospector. So, he claims, there is 

no requisite privity to enforce the fees provision against MAA 

Prospector.

¶ 15 Palmer further asserts that his reading of the statute is 

consistent with our decision in Hooban v. Unicity International, Inc., 2012 

UT 40, 285 P.3d 766. He argues that Hooban stands for the proposition 

that only parties to the contract—or third parties who would have been 

deemed parties to the contract had they prevailed in the litigation—are 

entitled to an award of fees arising from the contract. See id. ¶¶ 25–29. 

¶ 16 This argument seems credible on its face, both as a matter of 

statutory interpretation and under Hooban. But we nonetheless reject 

the argument on the grounds that Palmer has failed to address

contradictory precedent that is indistinguishable from this case. See

Insight Assets, Inc. v. Farias, 2013 UT 47, 321 P.3d 1021. 

¶ 17 The question presented in Insight Assets is identical to that at

issue here. The property purchaser in that case, as here, obtained both a 

bank loan and seller financing to finance the property. Id. ¶ 3. The

purchaser subsequently defaulted on both loans. Id. ¶ 4. And again as 

in the present case, the bank foreclosed and the property was sold to a 

third party purchaser at a foreclosure sale. Id. The attorney fees issue

thus arose when the assignee of the original seller attempted to 

foreclose on the seller’s trust deed. Id. ¶ 5. The attorney fees provision 

in the seller’s trust deed, moreover, was nearly identical to the 

provision in the Palmer-JDJ trust deed. Under that provision, we held 

that “the statutory trigger for fee shifting [was] met: the contract 

allow[ed] at least one party, Insight Assets, to recover attorney fees, and 

consequently the court may award attorney fees to the party that 

prevails in the action.” Id. ¶ 25.

¶ 18 MAA Prospector raised and litigated Insight Assets before the 

district court. And the court’s analysis of the attorney fee issue parallels 

the analysis in Insight Assets. Yet Palmer failed to cite Insight Assets in 

his opening brief; so of course he also failed to attempt to distinguish it

or to ask us to overrule it. When MAA Prospector raised the case in its 

brief, moreover, Palmer again failed to address it on reply. 

¶ 19 We therefore decline to revisit our holding in Insight Assets.

We find that case controlling. And we conclude that MAA Prospector is 

entitled to fees under the analysis of that opinion.
MAA PROSPECTOR MOTOR LODGE v. PALMER

Opinion of the Court

6

¶ 20 Palmer urges reversal of the attorney fee award on one other 

ground. He claims that MAA Prospector’s motion for fees was 

untimely filed under our rule in Meadowbrook, LLC v. Flower, 959 P.2d 

115 (Utah 1998). In Palmer’s view, Meadowbrook requires that a motion 

for attorney fees be filed before summary judgment is granted on the 

relevant issues. And Palmer further asserts that attorney fees may not 

be orally reserved. We disagree. 

¶ 21 The standard in Meadowbrook requires only that a motion for 

attorney fees be filed before the entry of final judgment, unless the 

district court orders otherwise. Id. at 119–20. Here, the district court 

expressly identified the attorney fees issue as outstanding in its order 

granting summary judgment. And MAA Prospector filed its motion 

before the entry of final judgment. 

¶ 22 We therefore conclude that the motion was timely filed and 

properly decided in light of our precedent. And we affirm the district 

court’s award of attorney fees.

III

¶ 23 We affirm the district court’s grant of summary judgment and 

its award of attorney fees to MAA Prospector.