20 18 UT App 78



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

C AMCO C ONSTRUCTION I NC

. , K EY B ANK N ATIONAL A SSOCIATION , S HARRON T ROSZAK , AND D ALE C ONDER , Appell ee s ,
v. U TAH B ASEBALL A CADEMY I NC ., A THLETIC P ERFORMANCE I NSTITUTE LLC, AND R OBERT K EYES , Appell ants

.

Opinion
N o. 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

, Attorney s for Appellant s 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

J UDGE D AVID N. M ORTENSEN authored th is Opinion

, in which J UDGES R YAN M. H ARRIS and D IANA H AGEN concurred

.

MORTENSEN

, Judge :

¶1 When the bank that fund ed 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 theCamco Construction v. Utah Baseball Academy

20150932

- CA 2 2018 UT App 78 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 “ac commodate 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 cou ld 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 wou ld 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.Camco Construction v. Utah Baseball Academy

20150932

- CA 3 2018 UT App 78 ¶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 ris e 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

— Sportur f 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 Appell ants’ claims ag ainst KeyBank in a bench trial.

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

, since t he 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 p roblematic for a number of reasons, and KeyBank ultimately “refunded the $15,000, plus interest, and unconditionally tender ed additional
in terest 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’ clai ms. 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.Camco Construction v. Utah Baseball Academy

20150932

- CA 4 2018 UT App 78 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, th e trial court disposed of several of Appellants’ claims. Those claims were for intentional infliction of emotional dis tress (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 pl aintiff 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 per son 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 (U tah 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.Camco Construction v. Utah Baseball Academy

20150932

- CA 5 2018 UT App 78 Safeco Ins. Co. of Am

. , 2011 UT 83, ¶ 4 0
, 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 inf liction of emotional distress.”

¶13 Appellants brought an IIED claim for alleged behavior connected to KeyBank’s fai lure 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 bee n 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 determin ed that any disputed facts were immaterial. In other words, wh ether or not KeyBank failed to fund the draw request or cooperate with replacement fin ancing ha d no bearing on the outcome of th e case ; what matter ed is that Appellants asserted the claim on behalf of two corporate entities and a private in dividual, reveal ing that either the claim was made on behalf of a corporation or the claim was derivative of injury to a corporation

. Both situation s 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 i d. ¶ 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 d etermined that “all of the acts that are alleged

. . . should be dismissed under that decision because they fail to allege a distinct and palpable injuryCamco Construction v. Utah Baseball Academy

20150932

- CA 6 2018 UT App 78 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.
Bu t all of these alleged facts speak to conduct directed at corporations. Under Stone Flood , a private individual cannot succeed on a n IIED claim for such behavior. See id.

¶16 Likewise, neither API nor UBA could recover for the alleged conduct. Several jurisdic tions 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 intentiona l 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 mater ial 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 C en t e r, Inc. v. Certa in 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)

.Camco Construction v. Utah Baseball Academy

20150932

- CA 7 2018 UT App 78 outrageous enough to establish the tort. In so doing they miss a larger problem: the only plaintiff in th is action is a corporation, and a corporation cannot suf fer mental anguis h 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. App ellants 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 recitat ion 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 conclus ion that the behavior was “not sufficiently outrageous to justify a claim for intentional inf liction 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 A PI 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 c ould 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...)Camco Construction v. Utah Baseball Academy

20150932

- CA 8 2018 UT App 78 ¶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 di stress. 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 judg ment.” 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 8 5 , 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 a dequately 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. Prof essiona l Title Serv ices , 2010 UT App 294, ¶ 2, 242 P.3d 796 (cleaned up).Camco Construction v. Utah Baseball Academy

20150932

- CA 9 2018 UT App 78 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 Mu t ual 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 inflict ion of emotional distress claim. A court is to determine whether a defendant’ s conduct may reasonably be regarded as so extreme and o utrageous as to permit recovery.” (cleaned up)).

¶20 F or 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 ill egal

.

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

— parking near someone’s house, visiting a facility where that person work s three times, and threatening to sue

— simply is not the sort of behavior for which plaintiffs can recover under a theory of
i ntentional infliction of emotion al 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 stan dards 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...)Camco Construction v. Utah Baseball Academy

20150932

- CA 10 2018 UT App 78 B. Lost Profit s

¶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 time s when it otherwise would h ave been available to be used.” KeyBank moved for summary judgment on this claim, which the trial court granted because “the undisputed evidence” showed “t hat 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 r equest 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 favor able 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.”Camco Construction v. Utah Baseball Academy

20150932

- CA 11 2018 UT App 78 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 concl usions 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 incur red 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 Req uest 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. ; s ee 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 c ourt also granted summary judgment on Appellants’ claim of fraud. Appellants devote just one

6

. We expres sly affirm this factual finding. See infra ¶¶ 50

– 51

.Camco Construction v. Utah Baseball Academy

20150932

- CA 12 2018 UT App 78 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 grou nds on which the trial court granted summary judgment, and no analysis of relevant case law as it applies to the facts of the case. W e 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. Prof essiona l Title Serv ices
, 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. AP I 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. Key Bank 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.)Camco Construction v. Utah Baseball Academy

20150932

- CA 13 2018 UT App 78 II. Grant of Motion to Strike Jury Demand 8

¶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 ju ry 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 gra nt 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

- argu e 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 pro fits 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 cour t 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.Camco Construction v. Utah Baseball Academy

20150932

- CA 14 2018 UT App 78 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 motion s by establishing a breach of contract by KeyBank as a matter of law, the Court is wil ling 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. a mend. VII, we focus on Appellants’ contentions as to why the jury waiver should not be enforced: the waiver was supposedly not m ade 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.
, Whirl pool 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.Camco Construction v. Utah Baseball Academy

20150932

- CA 15 2018 UT App 78 voluntarily” (citations omitted) ). We therefore assume the same standard applies in Utah for purposes of deciding this case

. 10

¶30 Ap pellants 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 waiv ed.” 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 cours e, 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); Sec urity 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 wai ver of trial by jury).Camco Construction v. Utah Baseball Academy

20150932

- CA 16 2018 UT App 78 sign without read ing; jury waiver provisions appear in twenty of the loan documents.

¶32 W hile Appellants hold u p Keyes’s failure to read as a reason why the jury waiver was not made knowing ly , it actually operates to support the trial court’ s decision to grant KeyBank’s
motio n 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

matte r 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 Commer cial 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., In c. , 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 [ Appellant s] 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] th e heading ‘Waive Jury.’”Camco Construction v. Utah Baseball Academy

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- CA 17 2018 UT App 78 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 enf orce the jury waiver provision.

See Household Commercial Fin. Service s 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. A ug. 5, 2004) (“ Here again, it must be noted that a contracting party’ s failure to read his contract before signing it cannot exc use his obligations thereunder in the absence of accident, fr aud, 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 bargainin g 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 E quip ment 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.Camco Construction v. Utah Baseball Academy

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 b ench 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 h ave 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. O verbroad 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 co nsidered 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 A ppellants do not explain how factors

c oncerning knowledge and voluntariness impact an analysis of overbreadth and ambiguity. Thus, this issu e 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 waive r should not be enforced . We thus affirm the trial court’s conclusion that Appellants had, in fa ct, waived their right to have a jury hear their claims.Camco Construction v. Utah Baseball Academy

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

accor ding 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 tr ial 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 M fg. 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

w hich 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, i n 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...)Camco Construction v. Utah Baseball Academy

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- 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 conclud ed 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

cour t 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, KeyBan k routinely made the monthly interest payments automatically by advancing sums sufficient to pay the interest
fr om Construction Loan proceeds.”

¶40 The trial court, in its findings of facts, went on to detail the sequence of events that led to Appellants’ clai m 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 th is 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.Camco Construction v. Utah Baseball Academy

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- CA 21 2018 UT App 78 Those late fees were included as part of the p ayoff of the Cons truction 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 inc luded interest with the amount refunded. Appellants offer no counterargument to this conclusion ; 13 they focus instead on whether “KeyBank’s failure to pay inte rest was a breach of the loan.”

¶43 Because Appellants do not challenge the trial court’s factual find ing, 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.Camco Construction v. Utah Baseball Academy

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- CA 22 2018 UT App 78 B. Breach of Fiduciary Duty, Bad Faith, and Breach of Loan
D ocuments

¶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 coo perate with Appellants’ attempts to refinance, and demanding a larger payoff amo unt 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 ru lings 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 t he 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 brea ch 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 th at [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 rela te to the

14

. Althou gh 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.Camco Construction v. Utah Baseball Academy

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- 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 the ir specific challenges have nothing to do with the $15,000 at issue at trial. And because Appellants fail to even clearly identify which o f 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 C ourt 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 judgmen t 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.”
S tate 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.Camco Construction v. Utah Baseball Academy

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- CA 24 2018 UT App 78 ¶48 We thus turn o ur 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 exp lained 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 th e 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 wh ich 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
irrec oncilable with other findings.”Camco Construction v. Utah Baseball Academy

20150932

- CA 25 2018 UT App 78 ¶51 The main damages Appellants claim they sustained were
costs associate d 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 conc lusions speculation, they do not address myriad factua l 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] determi nation . 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 deferenti al 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 evid ence”).

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.Camco Construction v. Utah Baseball Academy

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- 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 r efinancing. ” In so doing, Appellants arg ue, 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 als o 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 .

. . th e 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 obligatio n 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 m eager two paragraphs

— on reasserting evidence they seem to believe weighed in favor of finding for Appellants on this issue.Camco Construction v. Utah Baseball Academy

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- 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 clearl y 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. Johndr ow , 2015 UT 21, 345 P.3d 553

. A ccordingly, we cannot say the fi ndings of fact are

erroneous.

3. Demanding More than W as Due

¶55 Included in the section of their brief dealing with supposed bad faith and breache s 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.Camco Construction v. Utah Baseball Academy

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- 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 findin g that “KeyBank failed to give” “a good faith and prompt payoff information when[] requested,” thus breaching “the implied covenant o f good faith and fair dealing.”

¶58 When challenging factual findings on appeal, appellants are expected to carry a heavy burde n. 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 o pportunity

to re

- argue the factual case presented in the tria l court.” ASC Utah, Inc. v. Wolf Mountain Resorts, LC , 201 3 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 [ proceed ings ] of the court, jury or [opposing] party, or any order of the court

, or abuse of discretion by which [a] party was prevented from havi ng a fair trial.” (Quo ting Utah R. Civ. P. 59(a)(1).)

This rule is only in force s ubjec t 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 anythin g 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 atCamco Construction v. Utah Baseball Academy

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- 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 sub stantial rights of the parties. If so, it w as 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 problem s with Appellants’ challenge on appeal ar e 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 rule s 59 or 61, nor d id 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 o f the trial court that rests on independent alternative grounds where the appellant challenges only one o f 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 theCamco Construction v. Utah Baseball Academy

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- 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 c arried their burden of persuasion on appeal. Their arguments suffer from inadequate brief ing or otherwise fail as a matter of law.