Hussein v. UBS Bank , 446 P.3d 96 ( 2019 )


Menu:
  •                        
    2019 UT App 100
    THE UTAH COURT OF APPEALS
    AHMED D. HUSSEIN,
    Appellant,
    v.
    UBS BANK USA,
    Appellee.
    Opinion
    No. 20170709-CA
    Filed June 6, 2019
    Third District Court, Salt Lake Department
    The Honorable Robert P. Faust
    No. 150907967
    Matthew R. Lewis, Stephen E. Morrissey, Kemper P.
    Diehl, and Bryan J.E. Caforio, Attorneys
    for Appellant
    Stephen P. Horvat, David L. Goldberg, Zachary
    Denver, Christian T. Kemnitz, and David Luger,
    Attorneys for Appellee
    JUDGE GREGORY K. ORME authored this Opinion, in which
    JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
    MORTENSEN concurred.
    ORME, Judge:
    ¶1     Ahmed D. Hussein appeals the district court’s grant of
    summary judgment in favor of UBS Bank USA. We affirm and
    remand for the determination of attorney fees reasonably
    incurred by UBS Bank on appeal.
    Hussein v. UBS Bank
    BACKGROUND 1
    ¶2    Hussein is an investor who worked as a broker for major
    brokerage firms in the United States for 15 years before moving
    to Egypt in 1996 to pursue his own investment opportunities.
    Until July 2012, he was a director and the second-largest
    shareholder of Quality Systems, Inc. (QSI), owning 15.7% of the
    company—an interest “worth hundreds of millions of dollars.”
    ¶3     In 2009, Hussein developed a relationship with a financial
    advisor (Financial Advisor) from UBS Financial Services, Inc.
    (UBS-FS), a brokerage firm and UBS subsidiary.2 To maintain a
    relationship with Financial Advisor and receive financial and
    investment services from UBS-FS, Hussein signed a Client
    Relationship Agreement (CRA), which governed his relationship
    with UBS-FS in connection with anticipated margin loans 3
    between Hussein and UBS Bank.
    1. “In reviewing a district court’s grant of summary judgment,
    we view the facts and all reasonable inferences drawn therefrom
    in the light most favorable to the nonmoving party and recite the
    facts accordingly.” Ockey v. Club Jam, 
    2014 UT App 126
    , ¶ 2 n.2,
    
    328 P.3d 880
     (quotation simplified).
    2. UBS AG, a global bank headquartered in Zurich, Switzerland,
    is the parent company of both UBS Bank and UBS-FS.
    3. Margin loans allow investors to borrow against the value of
    securities that they already own. Margin Loans, Fidelity,
    https://www.fidelity.com/trading/marginloans/overview [https:
    //perma.cc/HE5V-9CPE]. “Investors generally use margin to
    increase their purchasing power so that they can own more stock
    without fully paying for it.” U.S. Sec. & Exch. Comm’n, Margin:
    Borrowing Money to Pay for Stocks (Apr. 17, 2009), https://
    (continued…)
    20170709-CA                    2               
    2019 UT App 100
    Hussein v. UBS Bank
    The Loan Agreements
    ¶4     In 2009 and 2010, UBS Bank extended two margin loans to
    Hussein totaling $35.5 million. Hussein secured the loans with
    1.3 million shares of QSI stock, then valued at $77 million, and $5
    million in diversified assets, but he also pledged his other
    UBS­FS accounts as collateral.4 Without the assistance of legal
    counsel, Hussein negotiated the terms of the loans and reviewed
    the loan documentation (the Loan Agreements), which granted
    UBS Bank the rights to call in the loans at any time and, upon the
    occurrence of certain events, to liquidate Hussein’s collateral. 5
    (…continued)
    www.sec.gov/reportspubs/investor-publications/investorpubs
    marginhtm.html [https://perma.cc/QZ64-K78P].
    4. Hussein granted UBS Bank “a first priority lien and security
    interest” in “any and all accounts of the Borrower at the Bank or
    any of its affiliates” and “each Collateral Account,” defined as
    “individually and collectively, each account of the Borrower or
    Pledgor at [UBS-FS] . . . that is either identified as a Collateral
    Account on the Application to which this Agreement is attached
    or subsequently identified as a Collateral Account by the
    Borrower or Pledgor.”
    5. In securities-based lending, a margin account is opened when
    a customer borrows funds from a firm or bank to pay for a
    portion of the purchase price for securities. The customer’s
    portion of the purchase price and the initial equity in the account
    are called margin. See Purchasing on Margin, Risks Involved with
    Trading in a Margin Account, Financial Industry Regulation
    Authority, http://www.finra.org/investors/purchasing-margin-
    risks-involved-trading-margin-account [https://perma.cc/79NU-
    ZA8A]. Maintenance margin requirements establish the
    (continued…)
    20170709-CA                     3               
    2019 UT App 100
    Hussein v. UBS Bank
    ¶5      In particular, UBS Bank could “demand full or partial
    payment of the credit line obligations, at its sole option and
    discretion without cause, at any time.” And if UBS Bank
    “otherwise deems itself or its security interest in the Collateral
    insecure, . . . then the Credit Line Obligations will become
    immediately due and payable (without demand) and the Bank
    may, in its sole and absolute discretion, liquidate, withdraw or
    sell all or any part of the Collateral.” If the collateral “decline[s]
    speedily in value” or “customarily is sold on a recognized
    exchange or market,” then UBS Bank had the right to sell the
    collateral and to do so without “prior notice” to Hussein.
    ¶6       The Loan Agreements also disclosed that UBS Bank and
    its affiliates were creditors whose “interests may be inconsistent
    with, and potentially adverse to, [Hussein’s] interests.”
    Furthermore, UBS-FS would “comply with entitlement orders
    originated by [UBS] Bank” without consent from Hussein, and if
    UBS Bank asserted control over the collateral, UBS-FS would
    (…continued)
    minimum equity that must be maintained by the customer in a
    margin account. Maintenance Margin, Investopedia, https://www.
    investopedia.com/terms/m/maintenancemargin.asp [https://per
    ma.cc/Y2J9-EGTX]. “If the equity in a margin account falls below
    the maintenance margin, the broker will issue a margin call,
    which requires that the [customer] deposit more cash into the
    margin account to bring the level of funds up to the maintenance
    margin, or liquidate securities in order to fulfill the maintenance
    amount.” 
    Id.
     Hussein’s loans were subject to a 50% margin
    maintenance level. Therefore, if the value of his collateralized
    securities fell below the 50% equity level that he was required to
    maintain, a margin call could be triggered and he would have to
    provide additional funds or liquidate some of his securities to
    cover the equity shortfall.
    20170709-CA                      4                
    2019 UT App 100
    Hussein v. UBS Bank
    have to comply with UBS Bank’s entitlement orders even if in
    conflict with Hussein’s instructions.
    ¶7     Separately, UBS Bank and UBS-FS had an agreement
    (the Servicing Agreement) whereby UBS Bank would offer
    margin loans to UBS-FS’s clients “to be collateralized by [UBS-
    FS] securities accounts and the securities, financial assets and
    other investment property . . . in which a security interest has
    been granted to the Bank by the Borrower.” UBS Bank would
    then have “ultimate control over all entitlement orders and
    other instructions . . . made with respect to the Accounts,” and
    UBS-FS would have to “comply with all instructions given by
    [UBS] Bank without further consent by any Borrower or
    Pledgor.”
    ¶8     After issuing the loans, UBS Bank sent a letter to Hussein,
    stating that Financial Advisor could answer any questions about
    his credit line. And until 2012, Hussein’s only interactions
    regarding the loans were with UBS-FS employees—not UBS
    Bank itself.
    ¶9     Meanwhile, Hussein also opened two Portfolio
    Management Program accounts (the PMP Accounts) with
    UBS-FS that held $8.7 million in assets. Financial Advisor also
    suggested a Prepaid Variable Forward (PVF), a financial product
    aimed at helping Hussein obtain liquidity from his substantial
    stock holdings in QSI and as an eventual replacement for the
    loans. Discussions on the PVF proposal continued between
    Hussein and UBS-FS employees until July 25, 2012, but a PVF
    was never finalized.
    The Liquidation
    ¶10 By July 2012, QSI’s stock price had substantially declined,
    eroding the value of Hussein’s collateral for the loans. On
    Saturday, July 21, 2012, Financial Advisor informed Hussein that
    20170709-CA                     5              
    2019 UT App 100
    Hussein v. UBS Bank
    “[u]nfortunately, with the stock closing at $23.41 we are looking
    at a [margin] call on Monday” and that Hussein needed to
    deliver $600,000 in cash or additional collateral in order to
    prevent such action. He also informed Hussein that selling from
    the PMP Accounts “would not give us much coverage” and that
    UBS Bank was “insisting we first sell [the QSI] shares (about
    25,000 shares), or bring in cash or additional Collateral that is not
    [QSI shares].”
    ¶11 Hussein told Financial Advisor that he did not want
    UBS-FS to sell the QSI shares because of an ongoing proxy
    contest 6 and that he needed time to acquire cash to cover the
    margin call. He directed Financial Advisor to sell from the PMP
    Accounts before selling the QSI shares.
    ¶12 For a period of five days, UBS Bank and UBS-FS did not
    touch the QSI shares, yet Hussein did not provide any cash or
    additional collateral to cover the equity shortfall in the account.
    On July 26, 2012, QSI stock continued to decline, reducing the
    value of the collateral by $23 million. UBS Bank started
    liquidating Hussein’s QSI shares. After five days, UBS Bank had
    sold approximately 2,276,756 shares. 7
    6. A proxy contest is a battle for the control of a corporation
    where “a group of shareholders join forces and gather enough
    shareholder proxies to win a corporate vote.” Proxy Fight,
    Investopedia, https://www.investopedia.com/terms/p/proxyfigh
    t.asp [https://perma.cc/7V5Y-T4HG].
    7. A total of 1.3 million QSI shares were initially pledged as
    collateral. UBS Bank asserts that Hussein “pledged over $100
    million in [QSI] stock and other collateral to UBS Bank” to secure
    repayment for the loans. In deposition testimony, a UBS Bank
    officer stated that 2.6 million QSI shares secured the UBS Bank
    (continued…)
    20170709-CA                      6               
    2019 UT App 100
    Hussein v. UBS Bank
    ¶13 Hussein lost the proxy fight and a substantial percentage
    of his QSI shares. He eventually filed suit against UBS Bank in
    an effort to recover his losses.
    The District Court’s Decision
    ¶14 Hussein asserted six causes of action against UBS Bank in
    the course of alleging that UBS Bank fraudulently induced him
    to enter into the loans, breached its contractual duties when it
    liquidated his QSI shares, and violated fiduciary duties it owed
    to him.
    ¶15 Following discovery, and relying in large part on the
    governing documents, UBS Bank moved for summary judgment,
    arguing that it “acted within the scope of its contractual rights
    when it liquidated certain collateral that secured $35.5 million in
    loans that Hussein had received from UBS Bank, and did not
    breach any financial duties in that regard.” Hussein responded
    by arguing that UBS-FS gave him “bad investment advice” as
    UBS Bank’s agent and that UBS Bank wrongfully liquidated his
    QSI shares.
    ¶16 The district court granted UBS Bank’s motion, concluding
    that there were no genuine issues of material fact because
    UBS-FS did not render financial advice to Hussein as UBS Bank’s
    agent. It also concluded that UBS Bank “acted pursuant to its
    clear and indisputable rights under the Loan Agreements” “to
    (…continued)
    loans. Yet these additional pledged shares are not acknowledged
    in the loan documentation provided in the record. Given that
    Hussein does not challenge UBS Bank’s security interest in the
    additional QSI shares, we assume that those shares were either
    collateralized or held in UBS-FS accounts and subject to the
    terms of the Loan Agreements.
    20170709-CA                     7                  
    2019 UT App 100
    Hussein v. UBS Bank
    ‘liquidate any part of the Collateral’ without notice to Hussein.”
    Because the Loan Agreements contained an expansive
    indemnification provision, the district court awarded UBS Bank
    its costs and attorney fees.
    ¶17   Hussein appeals.
    ISSUES AND STANDARDS OF REVIEW
    ¶18 Hussein raises two issues on appeal. 8 First, he contends
    that the district court improperly granted UBS Bank’s motion
    for summary judgment because there were genuine disputes
    of material fact concerning each of his claims against UBS
    Bank. Summary judgment is proper when “the moving party
    shows that there is no genuine dispute as to any material
    fact and the moving party is entitled to judgment as a matter of
    law.” Utah R. Civ. P. 56(a). We review a district court’s decision
    to grant or deny summary judgment for correctness,
    “view[ing] the facts and all reasonable inferences drawn
    therefrom in the light most favorable to the nonmoving party.”
    Orvis v. Johnson, 
    2008 UT 2
    , ¶ 6, 
    177 P.3d 600
     (quotation
    simplified).
    ¶19 Hussein also contends that the district court erred in
    awarding UBS Bank attorney fees. “Whether attorney fees are
    recoverable in an action is a question of law, which we review
    for correctness.” Valcarce v. Fitzgerald, 
    961 P.2d 305
    , 315 (Utah
    1998).
    8. Hussein raises a third issue, arguing that the district court
    erred in granting UBS Bank’s motion to strike his jury demand.
    Because we affirm the district court’s grant of summary
    judgment, this issue is moot and we do not address it further.
    20170709-CA                     8              
    2019 UT App 100
    Hussein v. UBS Bank
    ANALYSIS
    I. Summary Judgment
    ¶20 Hussein challenges the district court’s grant of UBS
    Bank’s motion for summary judgment on his claims for fraud,
    constructive fraud, breach of fiduciary duty, breach of contract,
    tortious interference with contract, and aiding and abetting a
    breach of fiduciary duty. Essentially, Hussein asserts two
    theories of liability on the part of UBS Bank. He first contends
    that UBS Bank induced him into taking out the loans by failing
    to disclose material facts and to provide investment advice that
    would have protected him from a margin call (referred to in the
    briefing as the Advisory Claims). Second, Hussein contends that
    UBS Bank wrongfully liquidated his QSI shares, breaching the
    Loan Agreements and the CRA (referred to in the briefing as the
    Liquidation Claims).
    A.    The Advisory Claims
    ¶21 Hussein argues that UBS Bank failed to disclose material
    facts to him. He also argues that UBS Bank owed him fiduciary
    duties through its agent, UBS-FS. These assertions are the
    grounds for his breach of fiduciary duty, fraud, and constructive
    fraud claims.
    ¶22 On these claims, the district court concluded that UBS
    Bank disclosed the potentially adverse relationship UBS Bank
    and UBS-FS could have with Hussein. The court also concluded
    that there was no existence of a confidential relationship
    between UBS Bank and Hussein, determining that the Loan
    Agreements “established an arms-length borrower/lender
    relationship” and Hussein “cannot identify any fact which, if
    proven at trial, would permit a finding that UBS-FS rendered
    financial advice to Hussein as UBS Bank’s agent.”
    20170709-CA                    9               
    2019 UT App 100
    Hussein v. UBS Bank
    1.    Fraud
    ¶23 Hussein asserts that, during the loan process, UBS Bank
    had a duty to disclose that UBS-FS employees would put UBS
    Bank’s interests before his and that his loans could be canceled
    without notice and demand. 9 He maintains that certain terms of
    the Servicing Agreement between UBS Bank and UBS-FS should
    have been disclosed, in particular that UBS-FS “agreed to follow
    UBS Bank’s instructions to liquidate Hussein’s collateral in all
    circumstances.”
    ¶24 “An action for fraud lies where there are false
    representations by defendant and reliance thereon by plaintiff to
    his damage,” Semenov v. Hill, 
    1999 UT 58
    , ¶ 9, 
    982 P.2d 578
    (quotation simplified), including concealments and omissions,
    see DeBry v. Valley Mortgage Co., 
    835 P.2d 1000
    , 1007 (Utah Ct.
    App. 1992). Whether a duty to disclose certain material facts
    “‘exists is determinable by reference to all the circumstances of
    the case.’” 
    Id.
     (quoting Elder v. Clawson, 
    384 P.2d 802
    , 804 (Utah
    1963)). “If those circumstances include a relation of trust or
    confidence, or inequality of condition, a duty may exist.” 
    Id.
     But
    9. Hussein contends that the district court failed to address his
    fraud claim, but in opposing UBS Bank’s motion, Hussein
    asserted that UBS Bank breached a limited fiduciary duty to
    disclose under Davencourt at Pilgrims Landing Homeowners Ass’n
    v. Davencourt at Pilgrims Landing, LC, 
    2009 UT 65
    , 
    221 P.3d 234
    .
    The district court determined that UBS Bank did not owe a
    limited fiduciary duty under Davencourt, and furthermore, it
    concluded that the Loan Agreements “clearly disclose” the
    parties’ potentially adverse relationship. On appeal, instead of
    citing Davencourt, Hussein relies on case law concerning
    fraudulent failure to disclose, while asserting basically the same
    arguments that were considered and resolved by the district
    court.
    20170709-CA                    10              
    2019 UT App 100
    Hussein v. UBS Bank
    such a duty “‘will not be found where the parties deal at arm’s
    length, and where the underlying facts are reasonably within the
    knowledge of both parties. Under such circumstances, the
    plaintiff is obliged to take reasonable steps to inform himself,
    and to protect his own interests.’” 
    Id.
     (quoting Sugarhouse Fin. Co.
    v. Anderson, 
    610 P.2d 1369
    , 1373 (Utah 1980)). “The false
    representations or omissions must be knowing or reckless to
    constitute fraud.” 
    Id. ¶25
     Hussein, an experienced investor who previously worked
    as a broker and who has a history of dealing with margin loans,
    testified that he personally reviewed and negotiated the Loan
    Agreements, which provided, with our emphasis, that “UBS
    Bank USA and its affiliates will act as creditors and, accordingly,
    their interests may be inconsistent with, and potentially adverse to,
    [Hussein’s] interests.” UBS Bank was given the right to liquidate
    “without demand,” “in its sole and absolute discretion,” “any
    part of the Collateral” when UBS Bank “deems itself or its
    security interest in the Collateral insecure.” And it could sell
    “[a]ny Collateral that may decline speedily in value or that
    customarily is sold on a recognized exchange or market . . .
    without providing any Loan Party with prior notice of the sale.”
    ¶26 Referring to UBS-FS as a securities intermediary, 10 the
    Loan Agreements disclosed that “pursuant to a control
    agreement between the Bank and the Securities Intermediary”:
    10. Article 8 of the Uniform Commercial Code defines a
    securities intermediary as “a person, including a bank or broker,
    that in the ordinary course of its business maintains securities
    accounts for others and is acting in that capacity.” U.C.C.
    § 8­102(14)(ii) (Unif. Law Comm’n 2017). This provision has been
    adopted verbatim in Utah. See Utah Code Ann.
    § 70A­8­101(1)(o)(ii) (LexisNexis Supp. 2017).
    20170709-CA                     11               
    2019 UT App 100
    Hussein v. UBS Bank
    •   The Securities Intermediary will comply
    with entitlement orders originated by [UBS]
    Bank regarding any Collateral Account
    without further consent from the Borrower
    or any Pledgor.
    •    [T]he Securities Intermediary may comply
    with entitlement orders originated by the
    Borrower . . . on the applicable Collateral
    Account or any Pledgor but only until the
    time that [UBS] Bank notifies the Security
    Intermediary, that [UBS] Bank is asserting
    exclusive control over the Collateral
    Account. After the Securities Intermediary
    has received a notice of exclusive control
    and has had reasonable opportunity to
    comply, it will no longer comply with
    entitlement orders originated by the
    Borrower or any Pledgor concerning the
    Collateral Account.
    These provisions granted UBS Bank the same control over a
    client’s accounts as the Servicing Agreement, which required
    UBS-FS employees to “comply with all instructions given by the
    Bank without further consent by any Borrower or Pledgor, and
    that the Bank’s instructions shall prevail if any conflict exists
    between any Bank instruction and a Borrower or Pledgor
    instruction.”
    ¶27 In reviewing the Loan Agreements, Hussein would have
    been aware that a separate agreement existed between UBS Bank
    and UBS-FS and that, under the terms of that agreement, if UBS
    Bank took control of his accounts, UBS-FS’s interests would
    become adverse to his own and UBS-FS would comply with UBS
    Bank’s orders over his own. Moreover, the material terms of the
    loans indicated that UBS Bank could call for repayment of
    20170709-CA                   12               
    2019 UT App 100
    Hussein v. UBS Bank
    Hussein’s loans at any time and could liquidate his QSI shares,
    without notice or demand, if the value of the stock declined.
    ¶28 Hussein fails to demonstrate the existence of facts
    establishing that UBS Bank made false representations to him or
    that it failed to disclose material facts to him during the loan
    process. 11 The district court therefore properly granted summary
    judgment on his fraud claims.
    2.     Breach of Fiduciary Duty
    ¶29 Hussein contends that UBS Bank owed him fiduciary
    duties and breached those duties. “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). See also First Sec. Bank of Utah NA v. Banberry Dev.
    Corp., 
    786 P.2d 1326
    , 1332 (Utah 1990) (stating that “the relation
    of mortgagor and mortgagee is not of a fiduciary character”)
    (quotation simplified). Instead, we look to the facts and
    circumstances surrounding the relationship of the parties and
    the transaction and conclude that a fiduciary or confidential
    relationship exists only “when one party, having gained the trust
    11. Hussein further asserts that UBS Bank withheld critical
    information from him, including the PVF proposal. A
    constructive fraud claim requires a party to not only
    demonstrate “‘a failure to disclose material facts,’” but also “‘a
    confidential relationship between the parties.’” d’Elia v. Rice Dev.,
    Inc., 
    2006 UT App 416
    , ¶ 51, 
    147 P.3d 515
     (quoting Jensen v. IHC
    Hosps., Inc., 
    944 P.2d 327
    , 339 (Utah 1997)). “[A] fiduciary
    relationship and a confidential relationship are considered one
    and the same.” 
    Id. ¶ 55
    . Because Hussein cannot establish a
    fiduciary relationship with UBS Bank—or attribute to UBS Bank
    UBS-FS’s actions in regards to the PVF proposal, as explained in
    the following section—his constructive fraud claim fails.
    20170709-CA                     13               
    2019 UT App 100
    Hussein v. UBS Bank
    and confidence of another, exercises extraordinary influence
    over the other party.” Von Hake v. Thomas, 
    705 P.2d 766
    , 769
    (Utah 1985). But “mere confidence in one person by another is
    not sufficient alone to constitute such a relationship.” 
    Id.
    (quotation simplified).
    ¶30 Hussein has not called our attention to evidence refuting
    UBS Bank’s evidence that there was no fiduciary relationship
    between them. Hussein’s interactions with UBS Bank were at
    arm’s length in 2009 during discussions surrounding the Loan
    Agreements. Although no fiduciary relationship existed between
    UBS Bank and Hussein, Hussein asserts that, because such a
    relationship did exist between him and UBS-FS, fiduciary duties
    were owed to him by UBS-FS and its employees. And he
    contends that UBS-FS employees were agents of UBS Bank and
    that UBS Bank is therefore liable for their actions. “Under agency
    law, an agent cannot make its principal responsible for the
    agent’s actions unless the agent is acting pursuant to either
    actual or apparent authority.” Zions First Nat’l Bank v. Clark
    Clinic Corp., 
    762 P.2d 1090
    , 1094 (Utah 1988).
    a.    Actual Authority
    ¶31 Hussein contends that the Loan Agreements gave UBS-FS
    actual authority to act as UBS Bank’s agent because UBS-FS
    “handled all communications with Hussein,” including those
    where he sought financial advice. 12
    12. Hussein also asserts a broad agency relationship based on the
    Loan Agreements designating UBS-FS as the “Bank’s agent.” But
    this language is found in the “Acceptance of Application and
    Agreement” section of the Loan Agreements and narrowly
    grants UBS-FS authority to receive and accept the Loan
    Agreements on UBS Bank’s behalf, providing, “This application
    (continued…)
    20170709-CA                    14              
    2019 UT App 100
    Hussein v. UBS Bank
    ¶32 Actual authority may either be express or implied.
    “Express authority exists whenever the principal directly states
    that its agent has the authority to perform a particular act on the
    principal’s behalf,” while implied authority “embraces authority
    to do those acts which are incidental to, or are necessary, usual,
    and proper to accomplish or perform, the main authority
    expressly delegated to the agent.” 
    Id.
     “This authority may be
    implied from the words and conduct of the parties and the facts
    and circumstances attending the transaction in question.” 
    Id. at 1095
    .
    ¶33 But Hussein fails to produce any evidence calling into
    question UBS Bank’s showing that UBS-FS had neither express
    nor implied authority from UBS Bank to give investment advice
    to Hussein on UBS Bank’s behalf. Under the Servicing
    Agreement, UBS-FS marketed and serviced loans for UBS Bank,
    and, in particular, it could “inform its customers and prospects
    regarding the availability of the Loans” and “refer persons
    interested in a Loan to the Bank.” This did not include marketing
    other financial and investment products, and providing such
    additional advice was not “incidental” or “necessary” to
    servicing Hussein’s loans where UBS-FS could collect payments
    and answer questions about the loans. One UBS Bank employee
    testified in his deposition that UBS Bank did not engage in
    “investment strategies with the client” or “make financial or
    investment proposals to a client.” Hussein has not meaningfully
    refuted UBS Bank’s showing that if UBS-FS provided such
    advice to Hussein, it was outside the scope of the services it
    performed on UBS Bank’s behalf.
    (…continued)
    and agreement will be received and accepted by Bank in the
    State of Utah, or if this application and agreement is delivered to
    Bank’s agent, [UBS-FS], it will be received and accepted.”
    20170709-CA                    15               
    2019 UT App 100
    Hussein v. UBS Bank
    b.     Apparent Authority
    ¶34 Hussein contends that UBS-FS had apparent authority to
    give him financial advice on behalf of UBS Bank because UBS
    Bank “signaled to Hussein that UBS-FS was its agent in myriad
    ways.” He points to the fact that Financial Advisor filled out
    personal information on his behalf for the loans, and in the
    following years, answered any questions Hussein had about the
    loans.
    ¶35 Apparent authority “can be inferred only from the acts
    and conduct of the principal.” City Elec. v. Dean Evans
    Chrysler-Plymouth, 
    672 P.2d 89
    , 90 (Utah 1983). This type of
    authority is “premised upon the corporation’s knowledge of and
    acquiescence in the conduct of its agent which has led third
    parties to rely upon the agent’s actions.” 
    Id.
     But the authority is
    not merely apparent “because it looks so to the person with
    whom he deals.” 
    Id.
     The principal must have “cause[d] third
    parties to believe that the agent [was] clothed with apparent
    authority.” 
    Id.
     “A belief that results solely from the statements or
    other conduct of the agent, unsupported by any manifestations
    traceable to the principal, does not create apparent authority.”
    Burdick v. Horner Townsend & Kent, Inc., 
    2015 UT 8
    , ¶ 22, 
    345 P.3d 531
     (quotation simplified).
    ¶36 Hussein cannot demonstrate on the record before us that
    UBS Bank manifested consent to UBS-FS providing financial
    advice to Hussein on UBS Bank’s behalf. 13 After the loans were
    13. Hussein cites two Utah federal district court cases, arguing
    that similar facts in those cases demonstrate that there is
    sufficient evidence to show an agency relationship here. But
    those cases were before the court on a motion to dismiss where
    “all well-pleaded factual allegations . . . are accepted as true and
    viewed in the light most favorable to Defendant as the
    (continued…)
    20170709-CA                     16               
    2019 UT App 100
    Hussein v. UBS Bank
    made, UBS Bank communicated to Hussein that he could
    “contact [his] Financial Advisor regarding information about
    [his] Credit Line or other credit services” and the UBS-FS branch
    manager regarding his “Collateral Account.” These
    communications would have demonstrated to Hussein only that
    UBS-FS employees had limited authority concerning any
    questions he had about his loans or his Collateral Account.
    Hussein fails to point to any other statements or manifestations
    from UBS Bank indicating that UBS-FS had any broader
    authority to provide Hussein investment advice on UBS Bank’s
    behalf.
    ¶37 Hussein therefore has not shown the existence of
    disputed facts bearing on whether UBS-FS had actual or
    apparent authority from UBS Bank to provide investment advice
    to Hussein, much less that UBS Bank breached a fiduciary duty
    owed to Hussein. Because there are no genuine disputes of
    material facts on Hussein’s Advisory Claims, we conclude that
    the district court correctly granted summary judgment in favor
    (…continued)
    nonmoving party.” UBS Bank USA v. Ibby, LLC, No.
    2:09­CV­372 TS, 
    2009 WL 4884383
    , at *3 (D. Utah Dec. 10, 2009)
    (quotation simplified). See also Morales v. UBS Bank USA, No.
    2:14-CV-888-JNP-BCW, 
    2016 WL 3746527
    , at *2 (D. Utah July 8,
    2016). “By the summary judgment stage of litigation, more is
    required.” Stevens-Henager College v. Eagle Gate College, 
    2011 UT App 37
    , ¶ 25, 
    248 P.3d 1025
    . And “the plaintiff can no longer rest
    on such mere allegations as are sufficient at the pleading stage,
    but must set forth by affidavit or other evidence specific facts,
    which for purposes of the summary judgment motion will be
    taken to be true.” 
    Id.
     (quotation simplified). Accordingly, we
    look to the specific facts of this case to determine whether an
    agency relationship existed between UBS Bank and UBS-FS.
    20170709-CA                    17              
    2019 UT App 100
    Hussein v. UBS Bank
    of UBS Bank on Hussein’s breach of fiduciary duty, fraud, and
    constructive fraud causes of action.
    B.     The Liquidation Claims
    ¶38 Hussein argues that UBS Bank violated contractual and
    fiduciary duties when it liquidated 2,276,756 shares of QSI stock
    securing his loans, thereby breaching the Loan Agreements and
    the CRA. The district court concluded that UBS Bank “acted
    pursuant to its clear and indisputable rights under the Loan
    Agreements” in liquidating Hussein’s QSI shares.
    1.     Breach of the Loan Agreements
    ¶39 Hussein contends that UBS Bank’s liquidation was neither
    “necessary” nor “consistent with normal lending practices,”
    thereby breaching the terms of the Loan Agreements.
    “Well-accepted rules of contract interpretation require that we
    examine the language of a contract to determine meaning and
    intent.” Glenn v. Reese, 
    2009 UT 80
    , ¶ 10, 
    225 P.3d 185
    . If the
    contract language is unambiguous, “the parties’ intentions are
    determined from the plain meaning of the contractual language,
    and the contract may be interpreted as a matter of law.” 
    Id.
    (quotation simplified). We also “consider each contract provision
    in relation to all of the others, with a view toward giving effect to
    all and ignoring none.” 
    Id.
     (quotation simplified). But, generally,
    “specific provisions ordinarily will be regarded as qualifying the
    meaning of broad general terms in relation to a particular
    subject.” Smith v. Smith, 
    2017 UT App 40
    , ¶ 16, 
    392 P.3d 985
    (quotation simplified).
    ¶40 To begin with, the Loan Agreements authorized UBS
    Bank to “take any steps necessary to perfect its interest in the
    Credit Line, issue a call for additional collateral or force the sale
    of the Borrower’s securities if the Borrower’s actions or inactions
    call the Borrower’s creditworthiness into question.” Hussein
    20170709-CA                     18               
    2019 UT App 100
    Hussein v. UBS Bank
    cites an email from Financial Advisor to UBS Bank employees, in
    which Financial Advisor questioned why UBS Bank was
    liquidating Hussein’s shares, stating, “I ask you, is it really
    necessary to blow Hussein out of the water without any
    consideration of his situation?” Regardless of Financial
    Advisor’s expressed concerns, UBS Bank could “take any steps
    necessary to . . . force the sale of [Hussein’s] securities,” without
    any requirement that the sale be “necessary” in some absolute
    sense.
    ¶41 These same terms, as well as the condition that the steps
    taken by UBS Bank in forcing a sale be “consistent with normal
    lending practices,” 14 are also found in the general
    acknowledgments section of the Loan Agreements. Any conflicts
    that these terms have with the other provisions of the Loan
    Agreements are resolved in favor of the specific provisions
    following them. See 
    id.
     (stating that “to reconcile [an] apparent
    conflict” courts will employ “the concept that general terms and
    provisions are restricted by specific terms and provisions
    following them” and “the specific provision is treated as an
    exception to the general rule”) (quotations simplified). The
    specific provisions that followed the general acknowledgments
    section specified a number of events where UBS Bank could
    liquidate Hussein’s QSI shares, including when “the Bank
    otherwise deems itself or its security interest in the Collateral
    insecure.” In such events, “the Credit Line Obligations will
    become immediately due and payable (without demand).”
    14. Hussein contends that UBS Bank failed to follow “normal
    lending practices” because it did not follow its own written
    procedures by issuing a margin deficiency notice to Hussein
    prior to selling his QSI shares. However, UBS Bank did not
    require margin deficiency notices be given to clients and gave
    them to clients only as a courtesy.
    20170709-CA                     19               
    2019 UT App 100
    Hussein v. UBS Bank
    ¶42 Nevertheless, Hussein argues that “UBS Bank could
    not have deemed itself insecure,” declaring that the loans
    were “fully secured” because he had assets totaling $85 million.
    The Loan Agreements stipulated, however, that UBS Bank
    could “deem[] itself or its security interest in the Collateral
    insecure.” The focus of these provisions was not on the
    insecurity of the loans themselves. Once UBS Bank deemed
    itself or its security insecure, “the Credit Line Obligations will
    become immediately due and payable (without demand)” and
    UBS Bank could “in its sole and absolute discretion, liquidate,
    withdraw or sell all or any part of the Collateral.” And “[a]ny
    Collateral that may decline speedily in value or that
    customarily is sold on a recognized exchange or market” could
    “be sold without providing any Loan Party with prior notice of
    the sale.”
    ¶43 Because Hussein’s collateral had declined substantially
    in value by July 2012, UBS Bank deemed itself insecure. Financial
    Advisor alerted Hussein to this fact, notifying him that “[o]ur
    credit department is insisting we first sell [QSI] shares (about
    25,000 shares), or bring in cash or additional [c]ollateral that
    is not [QSI].” Despite Hussein’s personal ability to cover
    the insecurity, the Loan Agreements provided that Hussein’s
    loans became “immediately due and payable (without demand)”
    and UBS Bank had the right “in its sole and absolute discretion”
    to liquidate Hussein’s 2,276,756 QSI shares and apply
    the proceeds as repayment. Because the shares “decline[d]
    speedily in value” and were sold on a market or exchange,
    UBS Bank did not have to give Hussein any notice of the
    sale given the terms of the Loan Agreements. Against the
    backdrop of these contractual provisions, Hussein has not
    provided any evidence establishing that UBS Bank improperly
    liquidated his collateralized QSI shares and breached the Loan
    Agreements.
    20170709-CA                    20              
    2019 UT App 100
    Hussein v. UBS Bank
    2.    Breach of the CRA
    ¶44 Hussein contends that by following UBS Bank’s
    entitlement orders, UBS-FS breached the CRA when it failed to
    send Hussein a margin deficiency notice and that UBS Bank
    interfered with fiduciary duties owed by UBS-FS to Hussein.
    These are the grounds for his claims of tortious interference with
    contract and aiding and abetting breach of a fiduciary duty.
    ¶45 First, there is no evidence suggesting that the CRA
    required UBS-FS to send Hussein a margin deficiency notice. 15
    The terms of the CRA stipulated that UBS-FS “may sell securities
    in your Account without notifying you” and that UBS-FS had
    “the right, at any time and without prior notice, to satisfy a
    margin call or to obtain full payment of a margin loan, without a
    demand for margin or additional margin.” UBS-FS policies did
    permit margin deficiency notices to be given to the customer as a
    15. Hussein also claims that UBS Bank and UBS-FS never
    notified him of the 50% margin maintenance requirement.
    However, Financial Advisor sent Hussein loan disclosure forms
    indicating that the Federal Reserve Board required an initial 50%
    margin requirement. From all that appears in the record, UBS
    Bank and UBS-FS did not adjust this margin requirement after
    the loans were issued and Hussein was required to maintain an
    ongoing 50% margin maintenance level in his account. But
    whether Hussein received this notification is not material to his
    Liquidation Claims because UBS Bank liquidated the shares after
    deeming itself insecure due to the declining value of the
    collateral and not because of Hussein’s failure to maintain his
    margin requirement. A separate provision of the Loan
    Agreements would have granted UBS Bank the right to liquidate
    Hussein’s shares had he not “maintain[ed] sufficient Collateral
    in a Collateral Account” or “fail[ed] to maintain collateral as
    required.”
    20170709-CA                    21              
    2019 UT App 100
    Hussein v. UBS Bank
    courtesy in some cases. And, as a courtesy, Hussein was notified
    prior to the liquidation that his margin account was deficient by
    $600,000, but five days passed and he had not taken any action
    to cover the shortfall in his margin account by some other
    means. Hussein has not shown the existence of disputed facts
    that undercut the conclusion that in following UBS Bank’s
    entitlement orders, UBS-FS did not breach the CRA because no
    margin deficiency notice was required.
    ¶46 Second, Hussein asserts that UBS Bank caused UBS-FS
    employees “to ignore Hussein’s order to sell the PMP
    Account[s]” and therefore aided and abetted a breach of a
    fiduciary duty by UBS-FS. A party aids and abets the breach of a
    fiduciary duty when it “knowingly join[s] a fiduciary in
    fraudulent acts, whereby the fiduciary breaches his or her
    fiduciary duties,” and is therefore “jointly and severally liable
    with that fiduciary.” Russell/Packard Dev., Inc. v. Carson, 
    2003 UT App 316
    , ¶ 33, 
    78 P.3d 616
     (quotations simplified), aff’d, 
    2005 UT 14
    , 
    108 P.3d 741
    . But “the gravamen of the claim of aiding and
    abetting a breach of fiduciary duty is the defendant’s knowing
    participation in the fiduciary’s breach.” Mower v. Simpson, 
    2012 UT App 149
    , ¶ 37, 
    278 P.3d 1076
     (quotation simplified). In
    resisting UBS Bank’s summary judgment motion, Hussein
    produced no evidence that UBS Bank aided or abetted UBS-FS in
    a breach of a fiduciary duty owed to Hussein.
    ¶47 Hussein was aware that UBS Bank and UBS-FS’s interests
    could become adverse to his own if he failed to maintain
    sufficient margin in his account. 16 Financial Advisor sent
    16. On Hussein’s constructive fraud claim, he argued that UBS
    Bank and UBS-FS never disclosed to him that UBS Bank’s
    interests would be put before his own. He contends that UBS-FS
    misrepresented to him that his QSI shares would not be sold. But
    while UBS-FS indicated that it would possibly give him time to
    (continued…)
    20170709-CA                    22               
    2019 UT App 100
    Hussein v. UBS Bank
    Hussein loan disclosure forms warning that “if the securities in
    your margin account decline in value, so does the value of the
    collateral supporting your loan and, as a result, [UBS-FS] can
    take action, such as . . . selling securities or other assets in any of
    your accounts held at [UBS-FS].” And the Loan Agreements
    provided that UBS-FS would comply with UBS Bank’s orders
    over Hussein’s instructions and that if UBS Bank deemed the
    collateral insecure, it could “in its sole and absolute discretion,
    liquidate, withdraw or sell all or any part of the Collateral.”
    Hussein therefore could not order UBS-FS to liquidate the
    collateral in any manner he wished after UBS Bank deemed his
    collateralized QSI shares inadequate as security for the loans.
    This included his preference that the PMP accounts be liquidated
    first, which was a risk that he accepted when he borrowed the
    $35.5 million from UBS Bank on the terms he agreed to because
    “any and all accounts” with UBS-FS became collateral for the
    loans. Because UBS Bank could, “in its sole and absolute
    discretion,” liquidate the QSI shares as repayment for the loans
    when the value of the stock declined, it did not aid or abet
    UBS­FS in a breach of a fiduciary duty to Hussein.
    ¶48 Because Hussein fails to demonstrate that there are
    genuine disputes of material fact remaining on the Liquidation
    Claims, the district court did not err in determining that UBS
    Bank was entitled to judgment as a matter of law on Hussein’s
    (…continued)
    either secure cash or additional collateral to cover the shortfall,
    Hussein did not produce evidence that UBS Bank gave him such
    assurances, and UBS Bank has shown that it was unwilling to
    take such a risk in waiting longer to see whether Hussein would
    cover the growing margin deficiency in some other way.
    Hussein was aware that, in such circumstances, UBS-FS would
    have to comply with UBS Bank’s orders, not his.
    20170709-CA                      23                
    2019 UT App 100
    Hussein v. UBS Bank
    breach of contract, tortious interference of contract, and aiding
    and abetting breach of fiduciary duty claims.
    II. Attorney Fees
    ¶49 Hussein contends that the district court erred in awarding
    attorney fees and costs to UBS Bank. “Generally, attorney fees
    are awarded only when authorized by contract or by statute.”
    Bilanzich v. Lonetti, 
    2007 UT 26
    , ¶ 11, 
    160 P.3d 1041
    . “When
    awarded pursuant to a contract, attorney fees are ‘allowed only
    in accordance with the terms of the contract.’” PC Crane Service,
    LLC v. McQueen Masonry, Inc., 
    2012 UT App 61
    , ¶ 9, 
    273 P.3d 396
    (quoting Turtle Mgmt., Inc. v. Haggis Mgmt., Inc., 
    645 P.2d 667
    ,
    671 (Utah 1982)).
    ¶50 In this case, the Loan Agreements provided that Hussein
    would “indemnify” UBS Bank “against any and all claims,” and
    “damages,” including “court costs and reasonable attorney fees,”
    “arising out of or in connection with this [a]greement.” The only
    exception was for losses “caused by the Bank’s or Securities
    Intermediary’s breach of its obligations under this Agreement.”
    Because the district court granted summary judgment in favor of
    UBS Bank on all of Hussein’s claims, which necessarily arose
    “out of or in connection with” the Loan Agreements, the district
    court awarded attorney fees and costs to UBS Bank. Because
    Hussein failed to produce evidence refuting UBS Bank’s
    showing that it did not breach the Loan Agreements, 17 the
    17. Hussein argues that a Financial Industry Regulation
    Authority (FINRA) arbitration panel found UBS-FS to have
    breached the Loan Agreements and that therefore no attorney
    fees should be granted. This arbitration decision is irrelevant to
    this appeal to which UBS-FS is not a party, see Buckner v.
    Kennard, 
    2004 UT 78
    , ¶ 11, 
    99 P.3d 842
     (holding that “a private
    arbitration award does not have nonmutual collateral estoppel
    (continued…)
    20170709-CA                    24              
    2019 UT App 100
    Hussein v. UBS Bank
    district court did not err in awarding attorney fees and costs to
    UBS Bank.
    ¶51 UBS Bank seeks an award of its attorney fees reasonably
    incurred on appeal. “[W]hen a party who received attorney fees
    below prevails on appeal, the party is also entitled to fees
    reasonably incurred on appeal.” Valcarce v. Fitzgerald, 
    961 P.2d 305
    , 319 (Utah 1998) (quotation simplified). Accordingly, we
    award UBS Bank its attorney fees reasonably incurred on appeal
    and remand to the district court for the calculation of that award.
    CONCLUSION
    ¶52 We affirm the district court’s grant of summary judgment
    in favor of UBS Bank because Hussein failed to demonstrate the
    existence of any genuine dispute of material fact on his six
    claims against UBS Bank. We also affirm the award of attorney
    fees and costs to UBS Bank and award attorney fees reasonably
    incurred on appeal, remanding to the district court for the
    limited purpose of calculating that award.
    (…continued)
    effect unless the parties expressly provide for such preclusive
    effect beforehand”), and in any event, the decision contains no
    findings of fact or any indication of the basis on which the
    arbitration panel made its ruling.
    20170709-CA                    25               
    2019 UT App 100