2018 UT App 78

THE UTAH COURT OF APPEALS

CAMCO CONSTRUCTION INC., KEYBANK NATIONAL ASSOCIATION,

SHARRON TROSZAK, AND DALE CONDER,

Appellees,

v.

UTAH BASEBALL ACADEMY INC., ATHLETIC PERFORMANCE 

INSTITUTE LLC, AND ROBERT KEYES,

Appellants.

Opinion

No. 20150932-CA

Filed April 26, 2018

Third District Court, Salt Lake Department

The Honorable Anthony B. Quinn

No. 050918901

Denver C. Snuffer Jr. and Daniel B. Garriott, 

Attorneys for Appellants

Joseph E. Minnock, Attorney for Appellee

Camco Construction Inc.

R. Stephen Marshall, Steven J. McCardell, and 

Michael S. Malmborg, Attorneys for Appellees 

KeyBank National Association, Sharron Troszak, 

and Dale Conder

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 When the bank that funded the construction of an athletic 

facility balked at advancing more funds for the project, the 

owner of the facility cried foul. Several years of litigation 

followed, culminating in a bench trial. This appeal presents the 
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opportunity for us to review many of the calls made by the trial 

court leading up to and following trial. We affirm in all respects.

BACKGROUND

¶2 KeyBank National Association provided Athletic 

Performance Institute LLC (API) financing for a twelve-month 

construction project to build an indoor athletic facility, which 

would then convert to a twenty-year, $1.9 million loan. API 

planned to lease the facility to Utah Baseball Academy Inc. 

(UBA). Robert Keyes owned both API and UBA. Keyes and UBA 

guarantied the loan to API. Appellants hired Camco 

Construction Inc. as the general contractor in the construction of 

the facility.1

¶3 While the building was meant to “accommodate multiple 

sports,” “a floor elevation problem” resulted in the facility only 

being suitable for baseball. This floor elevation issue was one of 

many problems that arose with both the funding and 

construction of the facility. When API and Camco could not 

resolve these disputes, Camco filed a mechanic’s lien and, 

eventually, a lawsuit against API. Camco brought KeyBank into 

the suit “to assert lien priority.”

¶4 Throughout the construction process, API filed draw 

requests with KeyBank, which KeyBank would pay out of the 

loan. One particular draw request—Draw Request No. 6—was 

not immediately funded because of the mechanic’s lien. This 

draw request became a source of conflict between API and 

KeyBank, and API ultimately asserted claims for damages 

against KeyBank.

 

1. We refer to API, UBA, and Keyes collectively as Appellants.
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¶5 Another source of conflict between API and KeyBank 

arose in the context of the payment of accrued interest on the 

loan. While the loan documents were silent as to how such 

interest was to be handled, KeyBank made interest payments 

starting at the beginning of the loan period. At some point, 

KeyBank stopped making these payments. This gave rise to 

another claim for damages.

¶6 The proceedings in the trial court were long and complex. 

API filed a third party complaint against additional entities—

Sporturf and Evergreen—and the trial court eventually 

bifurcated the related claims. The bifurcation led the trial court, 

in part, to conclude that the jury waiver included in KeyBank 

and API’s loan documents should be enforced. Thus, the trial 

court heard Appellants’ claims against KeyBank in a bench trial.

¶7 However, not all claims were heard at the bench trial, 

since the trial court had disposed of several of the claims on 

summary judgment. One claim peripheral to this appeal 

centered on a $15,000 payment from Keyes to a KeyBank 

employee, Roger Preston. The money came from API’s 

construction equity account. This payment was problematic for a 

number of reasons, and KeyBank ultimately “refunded the 

$15,000, plus interest, and unconditionally tendered additional 

interest to API.”

¶8 Appellants now challenge the results of the trial.

ISSUES

¶9 The issues raised on appeal fall into four main categories. 

First, Appellants argue that the trial court improperly granted 

summary judgment to KeyBank on several of Appellants’ claims. 

Second, they argue that the trial court erroneously granted 

KeyBank’s motion to strike Appellants’ jury demand. Third, they 

argue that several of the court’s trial rulings were unsupported. 
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Fourth, they argue that the trial court erred in denying their

motion for a mistrial. We address these contentions in turn.

ANALYSIS

I. Summary Judgment

¶10 We review a trial court’s grant of summary judgment for 

correctness. Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, 

¶ 12, 192 P.3d 858.

¶11 On summary judgment, the trial court disposed of several 

of Appellants’ claims. Those claims were for intentional 

infliction of emotional distress (IIED), lost profits, and fraud. We 

conclude that the trial court properly granted summary 

judgment in all three respects.

A. Intentional Infliction of Emotional Distress

¶12 In Utah, a plaintiff is entitled to damages

where the defendant intentionally engaged in some 

conduct toward the plaintiff, (a) with the purpose 

of inflicting emotional distress, or, (b) where any 

reasonable person would have known that such 

would result; and his actions are of such a nature 

as to be considered outrageous and intolerable in 

that they offend against the generally accepted 

standards of decency and morality.

Jackson v. Brown, 904 P.2d 685, 687–88 (Utah 1995) (citation 

omitted). The trial court concluded that under relevant 

precedent, the IIED claim that Appellants asserted could not 

survive as a matter of law, where they “fail[ed] to allege a 

distinct and palpable injury that isn’t derivative of the harm to 

the companies.” (Citing Stone Flood & Fire Restoration, Inc. v. 
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Safeco Ins. Co. of Am., 2011 UT 83, ¶ 40, 268 P.3d 170.) The court 

further concluded that “as a matter of law there is not an 

allegation of sufficiently outrageous conduct to give rise to a 

claim for intentional infliction of emotional distress.”

¶13 Appellants brought an IIED claim for alleged behavior 

connected to KeyBank’s failure to pay Draw Request No. 6. 

Appellants argue that because there were disputed facts 

regarding whether KeyBank “fail[ed] to fund Draw 6 in a timely 

manner” and “failed to cooperate with API’s replacement 

financing,” summary judgment was inappropriate and the IIED 

claim should have been decided at trial. But in granting 

summary judgment on this issue, the trial court did not find 

facts or even conclude that there were no disputed facts. Instead, 

its ruling implicitly determined that any disputed facts were 

immaterial. In other words, whether or not KeyBank failed to 

fund the draw request or cooperate with replacement financing

had no bearing on the outcome of the case; what mattered is that 

Appellants asserted the claim on behalf of two corporate entities 

and a private individual, revealing that either the claim was 

made on behalf of a corporation or the claim was derivative of 

injury to a corporation. Both situations required the trial court to 

grant summary judgment.

¶14 To begin, Keyes’s claim for IIED could not stand 

inasmuch as it rested on conduct directed at either API or UBA. 

In Stone Flood, our supreme court addressed an analogous 

situation. See id. ¶¶ 32–44. The court considered whether 

shareholders could pursue a claim for IIED that stemmed from 

an injury to a corporation. See id. ¶ 41. Ultimately, the court 

concluded that the shareholders could not “pursue damages for 

injuries that are derivative of the corporation’s.” Id.

¶15 Relying on Stone Flood, the trial court determined that “all 

of the acts that are alleged . . . should be dismissed under that 

decision because they fail to allege a distinct and palpable injury 
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that isn’t derivative of the harm to the companies.” We agree. 

Appellants claim that summary judgment was inappropriate 

because “KeyBank failed to submit or lost Draw 6 on multiple 

occasions,” “lied to Camco about Mr. Keyes not approving 

payment,” “failed to cooperate with API’s replacement 

financing,” and “wrongly raised the payoff amount” of the loan. 

But all of these alleged facts speak to conduct directed at 

corporations. Under Stone Flood, a private individual cannot 

succeed on an IIED claim for such behavior. See id.

¶16 Likewise, neither API nor UBA could recover for the 

alleged conduct. Several jurisdictions have expressly held that 

corporations cannot suffer emotional distress.2 This is a logical 

tenet: because “a corporation lacks the cognizant ability to 

experience emotions, a corporation cannot suffer emotional 

distress. Thus, no claim for intentional infliction of emotional 

distress lies.” FDIC v. Hulsey, 22 F.3d 1472, 1489 (10th Cir. 1994). 

We are persuaded by this tenet and therefore conclude that, 

contrary to Appellants’ assertion, the trial court’s ruling on this 

issue did not disregard any material disputes of fact. It is 

undisputed that both API and UBA are corporate entities; as 

such, they are—as a matter of law—incapable of succeeding on a 

claim for IIED. Cf. Bross Enters., Inc. v. Town of Chesterton, No. 

2:13 CV 217, 2016 WL 5724358, at *3 (N.D. Ind. Sept. 29, 2016). 

(“The parties focus their argument on whether the conduct . . . is 

 

2. See, e.g., FDIC v. Hulsey, 22 F.3d 1472, 1489 (10th Cir. 1994); 

Bross Enters., Inc. v. Town of Chesterton, No. 2:13 CV 217, 2016 WL 

5724358, at *3 (N.D. Ind. Sept. 29, 2016); F.P.D., Inc. v. Hartford 

Cas. Ins. Co., No. CV 15-04419 DMG (E), 2015 WL 12806477, at *3 

(C.D. Cal. Oct. 6, 2015); Advanced Sleep Center, Inc. v. Certain 

Underwriters at Lloyd’s, London, Civil Action No. 14-592, 2014 WL 

2768801, at *2 (E.D. La. June 18, 2014); Interphase Garment Sols., 

LLC v. Fox Television Stations, Inc., 566 F. Supp. 2d 460, 466 (D. 

Md. 2008).
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outrageous enough to establish the tort. In so doing they miss a 

larger problem: the only plaintiff in this action is a corporation, 

and a corporation cannot suffer mental anguish and so cannot 

recover in tort for intentional infliction of emotional distress.”).

¶17 The parties and the trial court also addressed an issue 

personally experienced by Keyes, which both the parties and the 

court referred to as stalking. Appellants argue they presented 

evidence that KeyBank’s stalking inflicted severe emotional 

distress upon Keyes and his family: “his family going into 

hiding because they felt threatened, serious stress-related health 

issues, financial ruin.” But this recitation of evidence presented 

deals only with the result of KeyBank’s behavior; it does not 

address the behavior itself. This is problematic, given that the 

trial court’s grant of summary judgment rested on its assessment 

of Key Bank’s behavior and its conclusion that the behavior was 

“not sufficiently outrageous to justify a claim for intentional 

infliction of emotional distress.” In forming this conclusion, the 

trial court recounted the behavior at issue:

What we’re talking about here is three visits to the 

API facility by Mr. Preston, which he may, or may 

not, have had business there and may, or may not, 

have ever seen Mr. Keyes, and one incident where 

he may, or may not, have been parked on the same 

street as the Keyes family. There isn’t any spin that 

you could put on that that makes that, in and of 

itself, rise to the level of outrageous conduct . . . .

Accordingly, the trial court granted KeyBank’s motion for 

summary judgment.3

 

3. Although the trial court “grant[ed] the motion to dismiss the 

second cause of action,” the parties address the IIED disposition 

in summary judgment terms. A review of the record also reveals 

(continued...)
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¶18 Appellants argue that the trial court should have denied 

the motion “because of genuine [disputes] . . . of material fact.” 

But in so arguing, Appellants do nothing more than set forth the 

same facts the trial court relied on in concluding that the conduct 

did not rise to the level necessary for intentional infliction of 

emotional distress. What one would expect Appellants to focus 

on, instead, is how the trial court’s conclusion—that the conduct 

was not sufficiently outrageous—was erroneous. But on this 

point, Appellants again state only that “there were facts 

precluding summary judgment.” Even if this were enough to 

satisfy Appellants’ briefing requirements,4 we would affirm 

because the trial court correctly determined that the conduct, as 

alleged, was insufficient to rise to an outrageous level.

¶19 In Nguyen v. IHC Health Services, Inc., 2010 UT App 85, 232 

P.3d 529, we approved of a district court’s grant of summary 

judgment where the movant had argued “that even if all of [the 

plaintiff’s] assertions could be proven, the conduct as described 

did not establish that Defendants acted outrageously.” Id. ¶¶ 8–9.

 

(...continued)

that the motion pending at the time of the court’s ruling was 

indeed one for summary judgment.

4. “An adequately briefed argument contains the contentions 

and reasons of the appellant with respect to the issues presented 

with citations to the authorities, statutes, and parts of the record 

relied on. Implicitly, rule 24(a)(9) [of the Utah Rules of Appellate 

Procedure] requires not just bald citation to authority but 

development of that authority and reasoned analysis based on 

that authority. A reviewing court is not simply a depository in 

which the appealing party may dump the burden of argument 

and research. Accordingly, we may refuse, sua sponte, to 

consider inadequately briefed issues.” Hampton v. Professional 

Title Services, 2010 UT App 294, ¶ 2, 242 P.3d 796 (cleaned up).
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That is essentially what we have here. The trial court concluded 

that, as a matter of law, the conduct at issue in the present case 

was not outrageous. The court was entitled to form such a 

conclusion. See Prince v. Bear River Mutual Ins. Co., 2002 UT 68, 

¶ 38, 56 P.3d 524 (“If the trial court determines that a defendant’s 

conduct was not outrageous as a matter of law, then the 

plaintiff’s claim fails, and a court may properly grant the 

defendant summary judgment on an intentional infliction of 

emotional distress claim. A court is to determine whether a 

defendant’s conduct may reasonably be regarded as so extreme 

and outrageous as to permit recovery.” (cleaned up)).

¶20 For purposes of IIED, outrageous conduct is 

conduct that evokes outrage or revulsion; it must 

be more than unreasonable, unkind, or unfair. 

Additionally, conduct is not outrageous simply 

because it is tortious, injurious, or malicious, or 

because it would give rise to punitive damages, or 

because it is illegal.

Id. (cleaned up). The conduct at issue in this case—parking near 

someone’s house, visiting a facility where that person works

three times, and threatening to sue—simply is not the sort of 

behavior for which plaintiffs can recover under a theory of 

intentional infliction of emotional distress. It does not evoke 

outrage or revulsion. See id. It is no more than unreasonable, 

unkind, or unfair. See id. And because reasonable people “could 

[not] differ as to whether the conduct . . . was so outrageous and

extreme that it offended the generally accepted standards of 

decency and morality,” summary judgment was proper. Gygi v. 

Storch, 503 P.2d 449, 401–02 (Utah 1972).5

 

5. We note that the trial court’s concerns on the IIED claim based 

on the purported stalking behavior extended beyond whether it 

(continued...)
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B. Lost Profits

¶21 Appellants next challenge the trial court’s grant of 

summary judgment in favor of KeyBank on Appellants’ claim 

for lost profits. Essentially, Appellants had claimed that 

KeyBank’s “failure to timely pay draw requests resulted in a 

failure to correct the elevation difference between the baseball 

field and the basketball court, which made the facility unusable, 

and resulted in a loss of profits for the times when it otherwise 

would have been available to be used.” KeyBank moved for 

summary judgment on this claim, which the trial court granted 

because “the undisputed evidence” showed “that it was not 

[Camco]’s responsibility to fix this.” Further, the court concluded 

that “there is no admissible evidence in the record that [Camco] 

would have been willing to correct the elevation difference had 

they been timely paid with respect to draw request number 6, or 

the other draw requests.” The court thus granted summary 

judgment.

¶22 Now, Appellants contend that in so ruling, the trial court 

erroneously “ignored the evidence, interpreted and weighed 

evidence, and construed facts in a light most favorable to 

KeyBank.” We conclude that even if Appellants are correct on 

 

(...continued)

was sufficiently outrageous. Apparently, the facts surrounding 

“the alleged stalking of the Keyes family” were “not alleged in 

the second amended counterclaim” and instead were asserted 

for the first time “in opposition to KeyBank’s summary 

judgment motion.” The trial court nevertheless considered the 

merits of this claim, concluding “that, even if you accept it as 

true, and even if you would ignore the fact that it is not alleged 

in the second amended counterclaim and, arguably, not even 

part of the case, it is, taken alone, not sufficiently outrageous to 

justify a claim for intentional infliction of emotional distress.”
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this point, the issue is now moot. Cf. Hahnel v. Duchesne Land, LC, 

2013 UT App 150, ¶ 23, 305 P.3d 208 (“The challenge to the trial 

court’s summary judgment limiting Buyers’ damages is moot 

because the jury found that Sellers had not breached the 

contract.”).

¶23 Following trial, the court entered extensive findings of 

fact and conclusions of law. Among them, the trial court 

outlined the following: (1) “Perhaps the key issue in the case is 

whether any mishandling of Draw Request No. 6 on the part of 

KeyBank resulted in any damage to API”; (2) “API seeks 

damages for all sums they incurred as a result of any technical 

default under the Construction Loan and for all sums incurred in 

litigation with Camco”; (3) “API’s claims of causation are . . . 

undermined by the fact that, in any event, construction defects 

would have prevented further advances on the Loan”; and (4) 

“API has proven no damages that resulted from the delay” in 

“processing Draw Request No. 6.”

¶24 Appellants had presented their lost profits claim as a form 

of damages they sought for the failure of KeyBank to timely pay 

Draw Request No. 6. Because the court ultimately found that “no 

damages . . . resulted from the delay,”6 the question of whether 

any of the defendants might be legally responsible for 

consequential damages is moot because there were no damages 

to be recovered. See id.; see also McBride v. Utah State Bar, 2010 UT 

60, ¶ 13, 242 P.3d 769 (“An issue is moot when the requested 

judicial relief cannot affect the rights of the litigants.” (cleaned 

up)). We therefore decline to consider this issue further.

C. Fraud

¶25 The trial court also granted summary judgment on 

Appellants’ claim of fraud. Appellants devote just one 

 

6. We expressly affirm this factual finding. See infra ¶¶ 50–51.
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paragraph of their brief to arguing that this grant of summary 

judgment was in error.7 This paragraph contains no citations to 

the record, no reference to the grounds on which the trial court 

granted summary judgment, and no analysis of relevant case 

law as it applies to the facts of the case. We decline to perform 

Appellants’ job for them and therefore affirm the trial court’s 

grant of summary judgment for the fraud claim on the ground of 

inadequate briefing. See Hampton v. Professional Title Services, 

2010 UT App 294, ¶ 2, 242 P.3d 796.

 

7. The following is the entire analysis Appellants devoted to this 

issue:

For constructive fraud, Utah requires only “two 

elements: (i) a confidential relationship between 

the parties; and (ii) a failure to disclose material 

facts.” Jensen v. IHC Hosps., 944 P.2d 327, 339 (Utah 

1997) (emphasis added). There is no requirement to 

establish damages. API had a confidential 

relationship when KeyBank designated themselves 

as the “fiduciary” over API’s funds. API had no 

signature authority on the funds. As fiduciary 

KeyBank was required to insure funds were used 

solely for construction of the baseball facility and 

no other purpose. KeyBank breached that duty by 

allowing $15,000 to go to a bank Vice-President. 

KeyBank failed to disclose and worked to conceal 

these facts from API. They say they concealed the 

facts because they considered Keyes a “suspect.” 

Keyes had no authority to make withdrawals, nor 

did he receive the Construction Equity Account 

statements. This claim was wrongly dismissed on 

summary judgment.

(Emphasis in original.)
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II. Grant of Motion to Strike Jury Demand8

¶26 We review a trial court’s conclusion that a party waived 

its right to a jury trial for an abuse of discretion. Aspenwood, LLC 

v. C.A.T., LLC, 2003 UT App 28, ¶ 33, 73 P.3d 947.

¶27 KeyBank moved “to strike the jury demand of Robert 

Keyes, Utah Baseball Academy, Inc., and Athletic Performance 

Institute, L.L.C.” because those parties had “signed multiple jury 

waivers in connection with the loan transactions that form the 

basis for this lawsuit.” Appellants opposed this motion, arguing: 

“[t]he right to trial by jury in civil cases is guaranteed by the 

 

8. Following the trial court’s order granting KeyBank’s motion to 

strike, Appellants filed a motion to reinstate their right to a jury. 

It is unclear whether they appeal from the grant of KeyBank’s 

motion or the denial of their own. In their statement of relevant 

facts, Appellants summarize both motions. In the argument 

section of Appellants’ brief, they assert the general law 

regarding the constitutional right to a jury, then re-argue the 

reasons the waiver should not be enforced. Finally, at the end of 

their argument, Appellants mention the trial court’s Order 

Denying Motion to Reinstate. But they do so only in the context 

of the trial court’s separate rulings to dismiss the lost profits 

claim—which we have already addressed—and the court’s 

decision to bifurcate claims asserted against another defendant, 

Sporturf—which has not been challenged on appeal. While one 

of Appellants’ subheadings includes the assertion that “[t]he 

trial court erred in bifurcating,” this assertion does not appear in 

the statement of issues, is accompanied by no statement of 

preservation, and is not briefed with citations to the record or 

relevant authority. Because the end result is the same, it matters 

little which motion we analyze. Thus, as the arguments 

regarding the jury right were first and thoroughly developed in 

response to KeyBank’s motion to strike, we address that motion.
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Seventh Amendment”; the right to a “jury trial may only be 

waived if done knowingly and intentionally”; and “[t]he jury 

waiver KeyBank inserted in KeyBank’s loan documents is 

unconstitutionally overbroad and ambiguous.” The trial court 

granted KeyBank’s motion to strike, explaining, “Contracting 

parties anticipate that there can be a dispute over breach when 

they agree to waive jury trial rights.” But the court allowed that 

“if API Parties prevail on dispositive motions by establishing a 

breach of contract by KeyBank as a matter of law, the Court is 

willing to revisit the issue.”

¶28 Because there is no question that the United States 

Constitution affords a right to jury trials in civil cases, see U.S. 

Const. amend. VII, we focus on Appellants’ contentions as to 

why the jury waiver should not be enforced: the waiver was 

supposedly not made knowingly and voluntarily and its 

purported overbreadth and ambiguity.9

A. Knowing and Voluntary

¶29 While Appellants cite no Utah precedent for their 

contention that civil jury waivers must be knowing and 

voluntary, we recognize that courts in federal jurisdictions have 

expressly held this to be the requirement. See, e.g., Whirlpool Fin.

Corp. v. Sevaux, 866 F. Supp. 1102, 1105 (N.D. Ill. 1994) 

(explaining that “the right to a jury trial in civil cases . . . is 

waivable” but that “such a waiver must be made knowingly and 

 

9. To the trial court, Appellants argued a third reason why 

KeyBank’s motion to strike should be denied—“KeyBank ha[d] 

waived the right to assert the jury waiver” by “failing to raise the 

jury waiver in a timely manner.” But because Appellants do not 

re-assert this argument on appeal, we see no need to address it 

further.
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voluntarily” (citations omitted)). We therefore assume the same 

standard applies in Utah for purposes of deciding this case.10

¶30 Appellants offer two reasons why the jury waiver was not 

made knowingly and voluntarily. First, “[i]f the documents 

containing the jury waiver were not read, then the clause 

relinquishing the right to jury could not have been knowingly 

and intentionally waived.” Second, “[w]here a party does not 

have any choice but to accept the contract as written if he wants 

to obtain the loan, coupled with the gross inequality in 

bargaining power, it undermines [whether] the waiver was . . . 

knowing [or] intentional.”

¶31 This first argument is unpersuasive because we have 

repeatedly and consistently held that a sophisticated party 

cannot assert failure to read a contract as a defense to a claim 

that they have waived their rights. See Maak v. IHC Health 

Services, Inc., 2016 UT App 73, ¶ 38, 372 P.3d 64. The trial court 

agreed with Appellants that “it is undisputed Mr. Keyes did not 

read the loan documents prior to signing them.” It is critical to 

point out that this was not a single document that Keyes chose to 

 

10. Of course, Utah law is well settled that the right to a jury trial 

in civil cases can, indeed, be waived. See, e.g., Bradbury v. 

Rasmussen, 401 P.2d 710, 712 n.2 (Utah 1965) (enforcing a waiver 

of jury trial made at pretrial); Security Title Co. v. Hunt, 337 P.2d 

718, 719 (Utah 1959) (explaining that where an attorney “at the 

pre-trial withdrew his request for and waived a jury trial,” the 

district court “did not abuse its discretion in refusing to grant a 

jury trial which appellant later again requested at the time of the 

trial”); Pete v. Youngblood, 2006 UT App 303, ¶ 31, 141 P.3d 629 

(clarifying that “failure to pay the statutory fee or to serve a 

timely jury demand constitutes a waiver of trial by jury”); see also 

Utah R. Civ. P. 38(d) (addressing waiver of trial by jury).
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sign without reading; jury waiver provisions appear in twenty of 

the loan documents.

¶32 While Appellants hold up Keyes’s failure to read as a 

reason why the jury waiver was not made knowingly, it actually 

operates to support the trial court’s decision to grant KeyBank’s 

motion to strike. For instance, Appellants point out that the “jury 

waiver is contained in fine print at the end of several form 

agreements.” Even assuming Appellants’ characterization of the 

appearance of the waiver language is accurate,11 that can hardly 

matter in this case, where the signatory admits he did not read 

the document—fine print or not.

In any event, the failure to read an agreement 

provides [Appellants] no relief from the 

application of a jury waiver provision. See ARH 

Distribs., Inc. v. ITT Commercial Fin. Corp., No. 87 C 

511, 1988 WL 17628, at *2 (N.D. Ill. Feb. 19, 1988) 

(enforcing jury waiver provision despite evidence 

that party seeking to avoid waiver did not read 

contract prior to signing); see also Heller Fin., Inc. v. 

Midwhey Powder Co., Inc., 883 F.2d 1286, 1292 (7th 

Cir. 1989) (“basic contract law establishes a duty to 

read the contract; it is no defense to say, ‘I did not 

read what I was signing.’”). Further, having 

previously owned and operated several companies 

[Appellants] were not inexperienced business 

persons and were not prevented from having 

counsel review the Guaranty, though they chose 

 

11. KeyBank argues that “the size of the font” of the jury waiver 

“was no smaller than the other provisions.” Furthermore, 

KeyBank points out that the forms “contained the words ‘JURY 

WAIVER’ in all capital letters” and “include[d] the heading 

‘Waive Jury.’”
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not to exercise this option. See Mellon Bank v. 

Miglin, No. 92 C 4059, 1993 WL 281111, at *12 (N.D.

Ill. Apr. 29, 1993) (enforcing waiver provision and 

noting that courts should be circumspect in helping 

any, but the most unsophisticated parties, where 

they have not read their contracts well). Therefore 

the language of the [jury waiver] is binding and 

this Court will enforce the jury waiver provision.

See Household Commercial Fin. Services Inc. v. Suddarth, No. 01 C 

4355, 2002 WL 31017608, at *8 (N.D. Ill. Sept. 9, 2002); see also 

Fleet Nat’l Bank v. Fiore Neylan Travel, Inc., No. CV030828385, 

2004 WL 1966069, at *4 (Conn. Super. Ct. Aug. 5, 2004) (“Here 

again, it must be noted that a contracting party’s failure to read 

his contract before signing it cannot excuse his obligations 

thereunder in the absence of accident, fraud, mistake or unfair 

dealing.” (cleaned up)). We therefore see no abuse of the trial 

court’s discretion where it followed the lead of so many other 

courts and refused to provide Appellants relief from a contract 

Keyes signed without reading.

¶33 The second argument on this point, regarding the parties’ 

comparative bargaining power, is inadequately briefed. 

Appellants assert as a generally accepted proposition of law that 

a contractual jury waiver cannot be knowing and voluntary if 

there is “gross inequality in bargaining power.” In so asserting, 

Appellants rely on National Equipment Rental, Ltd. v. Hendrix, 565 

F.2d 255 (2d Cir. 1977). In that case, the Second Circuit 

concluded that because “a presumption exists against its 

waiver,” and the waiving party “did not have any choice but to 

accept the . . . contract as written if he was to get badly needed 

funds,” the “gross inequality in bargaining power 

suggest[ed] . . . that the asserted waiver was neither knowing 

nor intentional.” Id. at 258. But Appellants point to no Utah case 

holding the same, and National Equipment is hardly 

representative of settled, universal law. See, e.g., IFC Credit Corp. 
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20150932-CA 18 2018 UT App 78

v. United Bus. & Indus. Fed. Credit Union, 512 F.3d 989, 993–94 (7th 

Cir. 2008) (declining to follow National Equipment, holding that 

“an agreement to resolve a dispute in a bench trial is no less 

valid than the rest of the contract in which the clause appears”). 

Because Appellants make no mention of these conflicting legal 

standards, what effect federal law should have on this state court 

case, or whether and how Utah courts have approached the 

issue, we conclude that this issue is inadequately briefed. 

Without adequate briefing on the question of whether we should 

adopt the rationale of National Equipment Rental or IFC Credit 

Corp., we decline to consider this issue further.

B. Overbroad and Ambiguous

¶34 We next consider Appellants’ contention that the jury 

waiver in this case is unenforceable because it is overbroad and 

ambiguous. In introducing this argument, Appellants rely on a 

federal court case explaining that “[c]ourts have considered a 

number of factors to determine whether a contractual waiver of 

the right to a jury was knowing and voluntary.” (Quoting 

Cooperative Fin. Ass’n, Inc. v. Garst, 871 F. Supp. 1168, 1172 (N.D. 

Iowa 1995).) But Appellants do not explain how factors 

concerning knowledge and voluntariness impact an analysis of 

overbreadth and ambiguity. Thus, this issue is also inadequately 

briefed.

¶35 The right to a jury is indeed, as Appellants contend, an 

important one. But it is also waivable. Where Appellants have 

not demonstrated that the jury waiver included in the loan 

documents was unknowing, involuntary, overbroad, or 

ambiguous, they have not demonstrated that the waiver should 

not be enforced. We thus affirm the trial court’s conclusion that 

Appellants had, in fact, waived their right to have a jury hear 

their claims.
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20150932-CA 19 2018 UT App 78

III. Trial Rulings

¶36 Following a bench trial,

we review a trial court’s legal conclusions for 

correctness, according the trial court no particular 

deference. We review a trial court’s findings of fact 

according to the standard set out in Utah Rule of 

Civil Procedure 52(a), which provides: Findings of 

fact, whether based on oral or documentary 

evidence, shall not be set aside unless clearly 

erroneous, and due regard shall be given to the 

opportunity of the trial court to judge the 

credibility of the witnesses. A trial court’s factual 

finding is deemed clearly erroneous only if it is 

against the clear weight of the evidence.

Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT 94, ¶¶ 11–12, 54 

P.3d 1177 (cleaned up).

¶37 The parties tried an eleven-day bench trial on all 

remaining claims. The trial court thereafter entered its findings 

of fact and conclusions of law on those claims. Appellants 

challenge the outcome of the trial in several respects, none of 

which we consider persuasive.

A. Obligation to Make Interest Payments

¶38 Appellants’ first argue that the trial court “erred [in]

finding KeyBank was under no obligation to make interest 

payments.”12 But this issue statement is insufficient to convey 

how the trial court actually ruled on this point.

 

12. Curiously, in their reply brief, Appellants take issue with 

what they characterize as “KeyBank ignor[ing] that the Trial 

Court decided KeyBank was obligated to make the interest 

(continued...)
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20150932-CA 20 2018 UT App 78

¶39 Appellants had alleged that “KeyBank agreed to set up 

and maintain a[n] automatic withdrawal system, whereby 

necessary payments were automatically withdrawn from API 

Parties’ designated account.” The trial court concluded that 

“[n]owhere in the KeyBank files or documents relating to the 

Construction Loans is there any” such agreement; “[t]he Loan 

documents are silent as to precisely how interest payments on 

the Construction Loan would be handled.” However, the trial 

court found “that the Construction Loan was large enough to 

include amounts to pay ongoing interest during the construction 

phase”; “[t]here was confusion at KeyBank with respect to how 

interest payments were to be handled”; and “[f]or a period of 

time, KeyBank routinely made the monthly interest payments 

automatically by advancing sums sufficient to pay the interest 

from Construction Loan proceeds.”

¶40 The trial court, in its findings of facts, went on to detail 

the sequence of events that led to Appellants’ claim that 

KeyBank had acted inappropriately with regard to interest 

payments. Specifically, it explained that the standard

process stopped and KeyBank showed the Loan as 

delinquent for a few months. When the 

delinquency was brought to Mr. Keyes’ attention, 

he immediately brought the interest payments 

current. . . . As a result of this technical default, 

KeyBank accrued late [fees] for the interest 

payments that had not been paid on a timely basis. 

 

(...continued)

payments.” Regardless, because we conclude that this issue 

turns on the trial court’s finding that Appellants were not 

damaged, it makes no difference whether the trial court found 

that such an obligation existed.
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20150932-CA 21 2018 UT App 78

Those late fees were included as part of the payoff 

of the Construction Loan.

¶41 But the trial court ultimately found that “[w]hen KeyBank 

understood what had happened, it unconditionally tendered a 

refund of the late payments, plus interest at the rate of ten 

percent to API.” Thus, the trial court avoided answering the 

question of obligation, instead finding that Appellants suffered 

no damages by KeyBank’s failure to make the interest payments.

¶42 Whether a party has been damaged is a question for the 

trier of fact, whose finding we disturb only if it is clearly 

erroneous. See Osguthorpe v. ASC Utah, Inc., 2015 UT 89, ¶¶ 35, 

38–39, 365 P.3d 1201. Under this standard, we have no difficulty 

affirming the trial court’s finding that Appellants were not 

damaged. Not only were late fees refunded to Appellants, but 

KeyBank also included interest with the amount refunded.

Appellants offer no counterargument to this conclusion;13 they 

focus instead on whether “KeyBank’s failure to pay interest was 

a breach of the loan.”

¶43 Because Appellants do not challenge the trial court’s 

factual finding, and because we conclude that the finding was 

not clearly erroneous, we affirm on this point.

 

13. Appellants do assert in their reply brief that the trial court 

“improperly found API had failed to prove damages.” But 

“issues raised by an appellant in the reply brief that were not 

presented in the opening brief are considered waived and will 

not be considered by the appellate court.” Brown v. Glover, 2000 

UT 89, ¶ 23, 16 P.3d 540.
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20150932-CA 22 2018 UT App 78

B. Breach of Fiduciary Duty, Bad Faith, and Breach of Loan 

Documents

¶44 Appellants argue that the trial court’s rulings on their 

claims of breach of fiduciary duty, bad faith, and breach of the 

loan documents were erroneous. These claims arose from 

KeyBank’s alleged conduct in failing to fund Draw Request No. 

6, failing to cooperate with Appellants’ attempts to refinance, 

and demanding a larger payoff amount than what was actually 

due.14 Before addressing these claims as they relate to each of 

these specific allegations, we must discuss a discrepancy 

between the trial court’s rulings and Appellants’ arguments on 

appeal.

¶45 Appellants brought each of their challenges to the trial 

court’s summary judgment rulings in the context of claims for 

intentional infliction of emotional distress, lost profits, and 

fraud. See supra Part I. But the trial court also largely disposed of 

Appellants’ breach of fiduciary duty claims on summary 

judgment. It concluded that “there is no overarching fiduciary 

duty between a borrower and a lender.” It therefore granted 

summary judgment on all claims of breach of fiduciary duty 

except for those premised on “the $15,000” payment from Keyes 

to a KeyBank employee. For trial, any claims resting on “the 

breach of fiduciary duty” would be “limited to the $15,000, and 

only to the extent that [Appellants] can show that [they were] 

entitled to more interest than [they had] been actually paid on 

the $15,000.” And in the trial court’s written findings and 

conclusions, in a section partially titled “Breach of Fiduciary 

Duty,” it explained that “[e]ach of these claims relate to the 

 

14. Although Appellants lump together these three causes of 

action, they do not all apply to each of the three categories of 

conduct. We do our best to clarify the issues as we address each 

one.
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20150932-CA 23 2018 UT App 78

$15,000 payment to Mr. Preston.” The court did not address 

breach of fiduciary duty in any other context in its trial rulings.

¶46 Nevertheless, Appellants contend that their challenges to 

the trial court’s rulings regarding breach of fiduciary duty stem 

from the court’s written findings of fact and conclusions of law 

entered after trial. This is incongruous, as their specific 

challenges have nothing to do with the $15,000 at issue at trial. 

And because Appellants fail to even clearly identify which of the 

trial court’s rulings they challenge, they have not carried their 

burden of persuasion on appeal. This is further demonstrated by 

the only argument we are able to make out on the question of 

breach of fiduciary duty: Appellants complain, “The Trial Court 

limited any damages relating to a breach of fiduciary duty to 

only damages from the failure to replace the stolen $15,000!” 

From the case law cited following this exclamation, we assume 

Appellants implicitly challenge the trial court’s summary 

judgment ruling that no fiduciary duty existed.

¶47 Even assuming such an approach was sufficient to be 

considered adequate briefing, we would affirm. “Ordinarily, no 

fiduciary relationship exists between a bank and its customer.” 

State Bank of S. Utah v. Troy Hygro Sys., Inc., 894 P.2d 1270, 1275 

(Utah Ct. App. 1995). An exception to this general rule exists in 

lender-borrower relationships when one party has “superiority” 

over the other; “there must exist a certain inequality, 

dependence, weakness of age, of mental strength, business 

intelligence, knowledge of the facts involved, or other 

conditions, giving to one advantage over the other.” First Sec.

Bank of Utah, NA v. Banberry Dev. Corp., 786 P.2d 1326, 1333 (Utah 

1990) (cleaned up). Appellants do not address whether or how 

this exception would apply in this case, and we thus consider it 

appropriate to apply the general rule. The trial court was 

therefore correct in concluding that there was no fiduciary duty 

to breach.
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20150932-CA 24 2018 UT App 78

¶48 We thus turn our attention to the remaining issues—bad 

faith and breach of the loan documents.

1. Failure to Pay Draw Request No. 6

¶49 In failing to timely fund Draw Request No. 6, Appellants 

contend, KeyBank engaged in bad faith. On this point, the trial 

court agreed. It explained that it “found that the Draw Process 

Overview was not intended to create an express contract 

requiring any draw requests to be processed within a fixed 

period of time” but that “the Draw Process Overview creates 

expectations that are protected by the covenant of good faith and 

fair dealing.” The trial court went on to find:

Those expectations include that KeyBank will act 

on any draw request within a reasonable time. The 

time frames set forth in the Draw Process 

Overview create a framework against which any 

delay in processing can be examined. The facts [of 

this case] suggest an unreasonable delay in

processing Draw Request No. 6.

Thus, while the trial court did not use the term “bad faith,” it did 

conclude that KeyBank’s behavior was contrary to the covenant 

of good faith—a distinction without a difference.

¶50 Critically, however, the trial court concluded, 

“Notwithstanding this finding, the claim fails because API has 

proven no damages that resulted from the delay.” In other 

words, the trial court found there was no causation between the 

delay in funding Draw Request No. 6 and any damages 

Appellants incurred. “Assessing causation is a question of fact, 

and a trial court’s findings of fact will not be set aside unless 

clearly erroneous.” Long v. Stutesman, 2011 UT App 438, ¶ 11, 269 

P.3d 178 (cleaned up). Appellants suggest that the trial court’s 

finding regarding causation is erroneous because it “is 

irreconcilable with other findings.”
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20150932-CA 25 2018 UT App 78

¶51 The main damages Appellants claim they sustained were 

costs associated with mechanic’s liens filed against the property. 

They argue that if KeyBank had paid Draw Request No. 6 in a 

timely manner, the liens “would never have been filed.” 

However, the trial court specifically “found that nonpayment of 

the draw request did not cause Camco to file a mechanics lien.” 

It also found that API’s failure to certify Draw Request No. 8—

not KeyBank’s delay in funding No. 6—triggered the lawsuit 

with Camco, for which Appellants sought damages from 

KeyBank. While Appellants call these conclusions speculation, 

they do not address myriad factual findings that supported 

them.

[B]y neglecting the court’s findings, [Appellants] 

necessarily fail to adequately call into question the 

factual basis for the district court’s ultimate 

[damages] determination. Cf. State v. Nielsen, 2014 

UT 10, ¶ 40, 326 P.3d 645 (explaining that, with 

regard to the marshaling requirement, “a party 

who fails to identify and deal with supportive 

evidence will never persuade an appellate court to 

reverse under the deferential standard of review 

that applies to such issues”); Wayment v. Howard, 

2006 UT 56, ¶ 17, 144 P.3d 1147 (presuming that the 

evidence presented supported the district court’s 

factual findings where the appellant “failed to 

marshal any of the supporting evidence”).

See Bresee v. Barton, 2016 UT App 220, ¶ 58, 387 P.3d 536. And the 

trial court expressly found that the evidence presented at trial 

“undermined” Appellants’ “claims of causation.” Thus, the trial 

court’s “detailed factual findings amply support its finding that” 

Appellants’ damages were not caused by KeyBank’s delay in 

funding Draw Request No. 6. See id.
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20150932-CA 26 2018 UT App 78

2. Failure to Cooperate with Refinance Process

¶52 The next issue raised stems from Appellants’ contention 

that “KeyBank delayed API’s efforts to obtain refinancing.” In so 

doing, Appellants argue, KeyBank acted in bad faith.

¶53 The trial court, in its findings of fact, explained:

During late 2006 and early 2007, API attempted to 

refinance its Construction Loan into permanent 

financing. In connection with the refinance it 

requested KeyBank verify certain facts with respect 

to the status of the construction and the 

Construction Loan. KeyBank declined to provide 

the verifications on the basis that the facts were 

inconsistent with the required verification.

It also concluded that nothing in the parties’ agreements 

“required or obligated KeyBank to execute the Lender’s 

Certification or otherwise to ‘provide certifications to the long 

term lender regarding the project in question’ as alleged in . . . 

the Second Amended Counterclaim.” And “[w]hen API 

requested KeyBank’s Certifications in connection with its 

proposed refinance, KeyBank could not make those 

Certifications because they were inaccurate.” The inaccuracies 

referenced by the trial court included that there was no default 

on the loan, that construction had been completed according to 

final plans and specifications, and that there were no mechanic’s 

liens on the property. Accordingly, the trial court concluded that 

KeyBank had breached no obligation in its behavior during 

API’s attempts to refinance. This conclusion amounts to an 

implicit finding that KeyBank did not act in bad faith.

¶54 Appellants do not address these findings or conclusions. 

Instead, they focus the relevant section of their brief—a meager 

two paragraphs—on reasserting evidence they seem to believe 

weighed in favor of finding for Appellants on this issue. 
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20150932-CA 27 2018 UT App 78

Recasting the evidence that was in front of the trial court is 

insufficient to demonstrate that a court’s factual finding was 

clearly erroneous. See ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 

255 (Utah Ct. App. 1997) (“To succeed in its challenge to findings 

of fact, [an appellant] may not simply reargue its position based 

on selective excerpts of evidence presented to the trial court.”), 

abrogated on other grounds by Eldridge v. Johndrow, 2015 UT 21, 345 

P.3d 553. Accordingly, we cannot say the findings of fact are 

erroneous.

3. Demanding More than Was Due

¶55 Included in the section of their brief dealing with 

supposed bad faith and breaches of loan documents, Appellants 

argue that “KeyBank demanded more than was due to payoff 

the Construction Loan.” They do not explain whether this 

behavior amounted to bad faith or a breach of the parties’ 

agreements. We thus assume that this issue is meant to challenge 

the trial court’s factual findings regarding the payoff amount.

¶56 The trial court found that KeyBank provided proper 

payoff amounts, was not required to provide the payoff amount 

within a certain period of time, and assessed contractual 

amounts in good faith and in accordance with relevant 

contractual terms. Based on these findings, the trial court 

concluded that

[t]he only amounts that were improperly included 

in the payoff were a few late fees based upon 

interest payments that were not paid timely during 

the Construction Loan phase. Ultimately, KeyBank 

returned those late fees, plus interest at the rate of 

ten percent. There was no evidence of any ongoing 

damage to the relationship between API and its 

takeout lender.
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20150932-CA 28 2018 UT App 78

¶57 Nowhere in the relevant section of their brief do

Appellants address the trial court’s findings or related 

conclusions. Furthermore, they provide no citation to case law or 

other legal authority. Instead, they address only the evidence 

presented that would have supported a finding that “KeyBank 

failed to give” “a good faith and prompt payoff information 

when[] requested,” thus breaching “the implied covenant of 

good faith and fair dealing.”

¶58 When challenging factual findings on appeal, appellants 

are expected to carry a heavy burden. Appellants here “appear[]

to have misapprehended this burden because [they have]

presented no legal arguments as to the sufficiency of the 

evidence. Rather, [they have] used the appeal as an opportunity 

to re-argue the factual case presented in the trial court.” ASC 

Utah, Inc. v. Wolf Mountain Resorts, LC, 2013 UT 24, ¶ 19, 309 P.3d 

201 (cleaned up). We accordingly reject their challenge.

IV. Denial of Mistrial Motion

¶59 Finally, Appellants argue that the trial court erred by not 

granting them a new trial. Appellants’ position is that the court 

should have granted them a new trial because of “[i]rregularity 

in the [proceedings] of the court, jury or [opposing] party, or any 

order of the court, or abuse of discretion by which [a] party was 

prevented from having a fair trial.” (Quoting Utah R. Civ. P. 

59(a)(1).)

This rule is only in force subject to the provisions 

of Rule 61, which states: “No error in either the 

admission or the exclusion of evidence, and no 

error or defect in any ruling or order or in anything 

done or omitted by the court or by any of the 

parties, is ground for granting a new trial or 

otherwise disturbing a judgment or order, unless 

refusal to take such action appears to the court 

inconsistent with substantial justice. The court at 
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20150932-CA 29 2018 UT App 78

every stage of the proceeding must disregard any 

error or defect in the proceeding which does not 

affect the substantial rights of the parties.” The 

question before us, then, is whether the admitted 

evidence affected the substantial rights of the 

parties. If so, it was grounds for a new trial. If not, 

the trial court did not abuse its discretion in 

denying the motion for a new trial.

Barrientos ex rel. Nelson v. Jones, 2012 UT 33, ¶¶ 15–16, 282 P.3d 50

(cleaned up).

¶60 The problems with Appellants’ challenge on appeal are

threefold: First, Appellants did not move for a new trial under 

rule 59. Second, Appellants do not identify what irregularities 

occurred during the trial that would justify a new trial. Third, 

Appellants make no mention of how “the substantial rights of 

the parties” were affected, thus warranting a new trial.

¶61 Following trial, Appellants filed a Motion for Mistrial. 

The motion and its supporting memorandum made no mention 

of rules 59 or 61, nor did they use the term new trial. The trial 

court ruled that Appellants had “not provided the Court with 

any binding or persuasive legal authority which supports the 

proposition that a party can move for a mistrial over six months 

after the trial ha[d] concluded. Therefore, the Court reject[ed] 

[Appellants’] Motion on those grounds alone.” Appellants make 

no mention of this rationale for the trial court denying their 

motion. “This court will not reverse a ruling of the trial court 

that rests on independent alternative grounds where the 

appellant challenges only one of those grounds.” Salt Lake 

County v. Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30, 

¶ 28, 297 P.3d 38. We thus affirm on this point.

¶62 But even assuming that we were inclined to reach the 

merits of Appellants’ argument on appeal, we would not be able 

to do so. Appellants do not explain how rules 59 and 61 of the 
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20150932-CA 30 2018 UT App 78

Utah Rules of Civil Procedure should operate to support their 

position. Thus, we have no occasion to reverse the trial court on 

this basis.

CONCLUSION

¶63 In short, we affirm. Appellants have not carried their 

burden of persuasion on appeal. Their arguments suffer from 

inadequate briefing or otherwise fail as a matter of law.