Carmichael v. Higginson , 402 P.3d 146 ( 2017 )

2017 UT App 139THE UTAH COURT OF APPEALS
JACQUELYNN D. CARMICHAEL AND MEGAN M. MOSS,
Appellees,
v.
KRAIG T. HIGGINSON AND MARK BURDGE,
Appellants.
Opinion
No. 20160211-CA
Filed August 3, 2017
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 140907046
Stephen Quesenberry and Mark R. Nelson, Attorneys
for Appellants
Richard H. Johnson II, D. Matthew Moscon, and
Landon A. Allred, Attorneys for Appellees
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH
concurred. 1
CHRISTIANSEN, Judge:
¶1 Kraig T. Higginson and Mark Burdge appeal the district
court’s grant of summary judgment in favor of Jacquelynn D.
Carmichael and Megan M. Moss (the Morton Estate). We affirm
and remand to the district court for the limited purpose of
calculating reasonable attorney fees incurred on appeal.
1. Judges J. Frederic Voros Jr. and Stephen L. Roth participated
in this case as members of the Utah Court of Appeals. They
retired from the court before this decision issued.
Carmichael v. Higginson
BACKGROUND
¶2 Higginson was friends with James Morton for several
years. In early 2006, Higginson, who was then the CEO of Raser
Technologies, Inc., found himself in personal financial trouble
and asked Morton for help. On January 24, 2006, Morton sent
instructions to his bank to wire $491,000 to Higginson. Morton’s
bank wired the money to Higginson’s bank account the next
day. According to Higginson, he “agreed to repay Morton
contingent on Higginson selling his Raser stock for a large
profit.” Raser eventually filed for bankruptcy, and Higginson
was unable to sell his Raser stock.
¶3 Higginson and Morton occasionally discussed the money
via email. For example, in December 2006, Higginson sent
Morton an email stating, “I also need to get ‘squared up’ on the
$ I owe you. I haven’t forgotten . . . and you will get paid.”
(Ellipsis in original.) In an April 2008 email, Morton asked an
associate of his to inquire about the “+/- $500K” he had “loaned
[Higginson] a couple of years ago to close on his house.” A few
days later, Higginson emailed Morton, stating:
Things are going great. Should be able to get the
[Raser] stock up nicely soon, and get you paid
back. You were truly a life saver this past year.
Thanks for the patience. I have asked Stan Kimball
to prepare a Note . . . just in case I get run over by a
bus . . . you would get paid.
(Emphasis and ellipses in original.)
¶4 In September 2008, Mark Burdge 2 emailed Morton
regarding the money:
2. The parties dispute whether Burdge was Higginson’s personal
assistant or business associate. Burdge’s relation to Higginson is
irrelevant for purposes of this appeal.
20160211-CA 2 2017 UT App 139Carmichael v. Higginson
[C]an I get the details of the loan that [Higginson]
owes you? I’m trying to tidy up his accounting and
he indicated he has an outstanding obligation to
you in excess of $500,000.00. I need dates, interest,
amount advanced etc. and any other loan
documents or memos if you have them.
Morton responded to Burdge’s email as follows:
As far as the loan to [Higginson] goes, Stan
Kimball has asked me to put it in the form of a
demand note. The 491K was transferred . . . to
[Higginson] by me on [January 24, 2006]. I agreed
to have it accrue interest at 5%, compounding
annually. If for any reason the terms are not
acceptable to [Higginson], let me know and we’ll
go back to the drawing board.
¶5 On December 31, 2008, Higginson executed a demand
note (the Demand Note) in favor of Morton. The Demand Note
provided:
FOR VALUE RECEIVED, I, Kraig T. Higginson, the
undersigned (“Borrower”), promises to pay to
James E. Morton (“Lender”), or his designee, the
sum of Four Hundred Ninety One Thousand
Dollars, together with interest thereon at the rate of
five percent (5%) per annum, compounded
annually. The entire unpaid principal and accrued
interest thereon shall become immediately due and
payable on demand by the holder hereof. This
Note originated on January 24, 2006 with the
accrual of interest commencing as of said date and
continuing until paid.
The Demand Note also stated, “This instrument constitutes the
entire agreement of the parties and may not be modified or
altered except by an instrument in writing executed by both of
the parties.” Lastly, Higginson, as the borrower, agreed to “pay
20160211-CA 3 2017 UT App 139Carmichael v. Higginson
all costs and expenses, including reasonable attorney’s fees, in
the event of a default under this Note.” Higginson provided a
signed copy of the Demand Note to Morton but retained the
original.
¶6 Morton died in May 2009. In 2013, the Morton Estate first
contacted Higginson about the Demand Note. Over the next
eighteen months, the Morton Estate tried, to no avail, to collect
on the Demand Note. In October 2014, the Morton Estate filed a
complaint against Higginson, alleging breach of contract and, in
the alternative, promissory estoppel and unjust enrichment. The
Morton Estate later filed an amended complaint adding Burdge
as a defendant. In addition to the original claims against
Higginson, the amended complaint included alternative claims
for conversion and fraud against both Higginson and Burdge
(collectively, Appellants), as well as an alternative claim for
tortious interference against Burdge alone.
¶7 Both parties filed motions for summary judgment. The
district court denied Appellants’ motion and granted the Morton
Estate’s motion on its breach of contract claim, concluding that
the Demand Note constituted an enforceable contract between
Higginson and Morton. The court also concluded that the
provisions of Article 3 of the Uniform Commercial Code as
adopted by Utah (the UCC), see Utah Code Ann. §§ 70A-3-101 to
-607 (LexisNexis Supp. 2016), were “not imposed on the Demand
Note,” but that even if they were, the Morton Estate had
substantially complied with those provisions. Because the court
granted the Morton Estate’s motion for summary judgment on
the breach of contract claim, the court concluded that “the other
causes of action pled by the [Morton Estate] . . . in the
alternative” were moot. The court entered a money judgment
against Higginson in the amount of $794,247.27 and awarded
attorney fees and costs to the Morton Estate. 3
3. The district court did not enter a money judgment against
Burdge.
20160211-CA 4 2017 UT App 139Carmichael v. Higginson
ISSUE AND STANDARD OF REVIEW
¶8 On appeal, Appellants contend that the district court
“improperly granted summary judgment in favor of the Morton
Estate, and improperly denied summary judgment to
[Appellants].” “[W]e review a district court’s grant of summary
judgment for correctness[.]” Poulsen v. Farmers Ins. Exch., 2016
UT App 170, ¶ 8, 382 P.3d 1058. “Summary judgment is only
appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law.”
Id.; see also Utah R. Civ. P. 56(a).
ANALYSIS
¶9 Appellants contend that the district court erred in
denying their motion for summary judgment and in granting the
Morton Estate’s motion for summary judgment.
¶10 The district court first concluded that the Demand Note
constituted an enforceable contract 4 between Higginson and
Morton and that Higginson had breached that contract. 5 More
specifically, the court found that it was undisputed that
(1) “Higginson and Morton entered into a contract,” i.e., the
Demand Note; (2) the “Demand Note requires Higginson to pay
Morton $491,000 plus 5 percent interest annually calculated from
January 24, 2006 until the amount is repaid”; (3) “Morton
performed his obligation under the Demand Note by delivering
$491,000 to Higginson, which Higginson received”; (4) after
4. “The elements essential to contracts . . . includ[e] offer and
acceptance, competent parties, and consideration.” Golden Key
Realty, Inc. v. Mantas, 699 P.2d 730, 732 (Utah 1985).
5. “The elements of a prima facie case for breach of contract are
(1) a contract, (2) performance by the party seeking recovery,
(3) breach of the contract by the other party, and (4) damages.”
Bair v. Axiom Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d 388.
20160211-CA 5 2017 UT App 139Carmichael v. Higginson
Morton’s death, the Morton Estate sent a letter to Higginson on
September 5, 2014, “demanding repayment in full and providing
a copy of the Demand Note”; (5) “Higginson refused to repay
the Demand Note”; and (6) the Morton Estate was damaged as a
result. The court further concluded that the Demand Note
contained a valid integration clause “indicating that it represents
the entire agreement between Morton and Higginson,” that the
Demand Note contained no reference to any conditions that
would excuse Higginson from repayment, and that the language
in the Demand Note was unambiguous. In light of the
integration clause and “the clear language of the Demand Note,”
the court declined to consider any parol evidence.
¶11 The court also provided an alternative basis for its grant
of summary judgment in favor of the Morton Estate:
14. The provisions of the Uniform Commercial
Code—Negotiable Instruments (Utah [Code]
§§ 70A-3-101, et seq.) (“UCC 3”) are not imposed on
the Demand Note.
15. If the provisions of UCC 3 were imposed on the
[Morton Estate]’s enforcement of the Demand Note
against Higginson, the Court finds that the
[Morton Estate] has substantially complied with
those provisions.
¶12 On appeal, Appellants do not contest the primary basis
for the district court’s decision to grant summary judgment to
the Morton Estate; i.e., the Demand Note constituted an
enforceable contract. Instead, Appellants’ arguments focus on
the alternative basis for the district court’s grant of summary
judgment under Article 3 of the UCC. Specifically, Appellants
contend that Higginson “never issued the original Demand Note
to Morton” pursuant to the strictures of UCC section 3-105, and
that the district court “incorrectly and improperly concluded
20160211-CA 6 2017 UT App 139Carmichael v. Higginson
Higginson issued the Demand Note to Morton.” 6 See Utah Code
Ann. § 70A-3-105 (LexisNexis Supp. 2016) (discussing the
issuance of instruments). Appellants also contend that the
Morton Estate failed to comply with the presentment
requirements set forth in UCC section 3-501. See id. § 70A-3-501
(discussing the presentment requirements).
¶13 Appellants’ issuance and presentment arguments
presuppose that the Demand Note is a negotiable instrument.
See id. § 70A-3-104 (defining “negotiable instrument”). In doing
so, Appellants assert, without analysis, that the Demand Note
“fits within [the] definition” of “negotiable instrument” and is
therefore governed by Article 3 of the UCC. 7 However, as
6. The Morton Estate correctly observes that the district court
never made a specific determination regarding issuance.
Therefore, according to the Morton Estate, “Appellants’
argument must be understood as claiming that the [district]
court’s finding that all UCC 3 requirements were ‘substantially
complied with’ includes a finding of issuance.”
7. In an apparent attempt to persuade this court that the Demand
Note is a negotiable instrument, Appellants cite statements made
by the Morton Estate in the district court indicating that the
Morton Estate believed the Demand Note to be a negotiable
instrument governed by Article 3 of the UCC. However, “[w]hen
determining negotiability, only the instrument in question
should be examined.” First Fed. Sav. & Loan Ass’n of Salt Lake City
v. Gump & Ayers Real Estate, Inc., 771 P.2d 1096, 1097 (Utah Ct.
App. 1989); see also Universal Premium Acceptance Corp. v. York
Bank & Trust Co., 69 F.3d 695, 699 (3d Cir. 1995) (“How the
parties regard or characterize the instrument is immaterial.”);
Tompkins Printing Equip. Co. v. Almik, Inc., 725 F. Supp. 918, 920–
21 (E.D. Mich. 1989) (observing that the court was not bound to
accept the parties’ stipulation that the instrument involved was a
negotiable instrument where “such legal conclusion is clearly
wrong”).
20160211-CA 7 2017 UT App 139Carmichael v. Higginson
previously discussed, the district court determined that the
Demand Note was not a negotiable instrument governed by
Article 3 of the UCC. And although the court did not explain its
reasoning, the court’s ruling appears to be correct. At the very
least, it is not so obviously incorrect that Appellants may forgo
challenging it on appeal.
¶14 “When determining negotiability, only the instrument in
question should be examined.” First Fed. Sav. & Loan Ass’n of Salt
Lake City v. Gump & Ayers Real Estate, Inc., 771 P.2d 1096, 1097
(Utah Ct. App. 1989); see also Calfo v. D.C. Stewart Co., 717 P.2d
697, 700 (Utah 1986) (“[A]n instrument’s negotiability must be
determinable from what appears on its face and without
reference to extrinsic facts.”). For a writing to constitute a
negotiable instrument under Article 3 of the UCC, it must satisfy
the requirements set forth in Utah Code section 70A-3-104(1)—
the writing must be “an unconditional promise or order to pay a
fixed amount of money,” upon demand or at a definite time, and
be “payable to bearer or to order at the time it is issued or first comes
into possession of a holder.” Utah Code Ann. § 70A-3-104(1)
(emphasis added). A note 8 is “payable to bearer” if it:
(a) states that it is payable to bearer or to the order
of bearer or otherwise indicates that the person in
possession of the promise or order is entitled to
payment;
(b) does not state a payee; or
(c) states that it is payable to or to the order of cash
or otherwise indicates that it is not payable to an
identified person.
8. “An instrument is a ‘note’ if it is a promise[.]” Utah Code Ann.
§ 70A-3-104(5) (LexisNexis Supp. 2016).
20160211-CA 8 2017 UT App 139Carmichael v. Higginson
Id. § 70A-3-109(1). A note “that is not payable to bearer is
payable to order if it is payable to the order of an identified
person, or to an identified person or order.” Id. § 70A-3-109(2). 9
¶15 In First Investment Co. v. Andersen, 621 P.2d 683 (Utah
1980), the two promissory notes at issue stated, in relevant part,
“For value received, Robert Andersen of Nephi, Utah, promises
to pay to Great Lakes Nursery Corp. . . . .” Id. at 684 (internal
quotation marks omitted). Our supreme court observed that
9. The official comments to Article 3 section 104 of the Uniform
Commercial Code explain the rationale for requiring a writing to
contain certain “words of negotiability,” i.e., “to order” or “to
bearer,” to qualify as a negotiable instrument:
Total exclusion from Article 3 of other promises or
orders that are not payable to bearer or to order
serves a useful purpose. It provides a simple
device to clearly exclude a writing that does not fit
the pattern of typical negotiable instruments and
which is not intended to be a negotiable
instrument. If a writing could be an instrument
despite the absence of “to order” or “to bearer”
language and a dispute arises with respect to the
writing, it might be argued that the writing is a
negotiable instrument because the other
requirements of subsection (a) are somehow met.
Even if the argument is eventually found to be
without merit it can be used as a litigation ploy.
Words making a promise or order payable to bearer or to
order are the most distinguishing feature of a negotiable
instrument and such words are frequently referred to as
“words of negotiability.”
U.C.C. § 3-104 cmt. 2 (Am. Law Inst. & Uniform Law Comm’n
2014) (emphasis added); see also J.R. Simplot Co. v. Sales King Int’l,
Inc., 2000 UT 92, ¶ 40, 17 P.3d 1000 (observing that the official
comments to the Uniform Commercial Code are persuasive
authority in Utah).
20160211-CA 9 2017 UT App 139Carmichael v. Higginson
“one of the requirements to qualify a writing as a negotiable
instrument is that it contain the time-honored ‘words of
negotiability,’ such as ‘pay to the order’ or ‘pay to the bearer.’”
Id. at 685–86 (citation omitted). “The mere promise to pay, absent
the magic words ‘payable to order or to bearer’ renders the note
nonnegotiable, and the liability is determined as a matter of
simple contract law.” Id. at 686. Thus, because “the notes were
payable simply to the payee, and were not payable to the order
of the payee or its order,” the court concluded that the notes
were “not negotiable instruments.” Id.
¶16 Courts in other jurisdictions have also determined that
the absence of certain “words of negotiability” render a note
nonnegotiable. For instance, in In re Stanley, 514 B.R. 27 (Bankr.
D. Nev. 2012), the court noted the importance of “words of
negotiability” in flagging a note as a negotiable instrument:
The use of “order” language is one of the primary
distinctions between negotiable instruments and
ordinary contracts. The words “or order”
appearing after the name of the initial payee are
often referred to as the “words of negotiability.”
These simple words empower the payee to order
the maker to pay another person so named. By
such an “order,” usually in the form of an
endorsement, the payee thus transfers the
instrument to another, who takes the instrument
with the identical power to transfer to another by a
similar “order.”
Id. at 37 n.19 (citation omitted). And in Tompkins Printing
Equipment Co. v. Almik, Inc., 725 F. Supp. 918 (E.D. Mich. 1989),
the court explained the importance of the specific “words of
negotiability” to contracting parties and potential successors:
The issuance of a negotiable instrument imposes
the risk on the obligor that the instrument will be
acquired by a holder in due course who will take
free of any defenses of the obligor. The issuance of
20160211-CA 10 2017 UT App 139Carmichael v. Higginson
a non-negotiable instrument does not subject him
to this risk. To insure that an obligor will not issue
a negotiable instrument unintentionally, certain
words of negotiability must be used which are
intended to signal to the obligor that he may be
issuing a negotiable instrument. Use of these
words[] also enables a potential purchaser to
determine whether the instrument is negotiable.
These words of negotiability fall into two
categories: “payable to order” and “payable to
bearer”.
Id. at 920 (citation and additional internal quotation marks
omitted); see also Sirius LC v. Erickson, 156 P.3d 539, 542 (Idaho
2007) (“Notes payable simply to a specific payee, and not ‘to the
order of the payee’ or ‘to the payee or order,’ are non-
negotiable.”).
¶17 The Demand Note at issue here lacks the words of
negotiability necessary to qualify as a negotiable instrument. The
Demand Note provides, in relevant part, “FOR VALUE
RECEIVED, I, Kraig T. Higginson, the undersigned (‘Borrower’),
promises to pay to James E. Morton (‘Lender’), or his
designee, . . . .” Because the Demand Note “specifically identifies
the person to whom payment is to be made,” i.e., Morton, it is
not payable to bearer. See Sirius LC, 156 P.3d at 542. Generally, a
note “that is not payable to bearer is payable to order if it is
payable to the order of an identified person, or to an identified
person or order.” Utah Code Ann. § 70A-3-109(2) (LexisNexis
Supp. 2016). However, the Demand Note is not payable to order
because it lacks the words of negotiability “to order” that are
required under Utah Code section 70A-3-109(2). See Sirius LC,
156 P.3d at 542.
¶18 As previously discussed, “[t]he mere promise to pay,
absent the magic words ‘payable to order or to bearer’ renders
the note nonnegotiable.” First Inv. Co., 621 P.2d at 686; see also
Sirius LC, 156 P.3d at 542 (“Notes payable simply to a specific
20160211-CA 11 2017 UT App 139Carmichael v. Higginson
payee, and not ‘to the order of the payee’ or ‘to the payee or
order,’ are non-negotiable.”). Consequently, because the
Demand Note is not “payable to bearer or to order,” it is
nonnegotiable. 10 See Utah Code Ann. § 70A-3-104(1)(a); see also
First Inv. Co., 621 P.2d at 686 (observing that liability on a
nonnegotiable note “is determined as a matter of simple contract
law”); Sirius LC, 156 P.3d at 543 (observing that a nonnegotiable
promissory note “is governed by contract law”).
¶19 Based on the foregoing, the district court’s determination
that the Demand Note was not a negotiable instrument and was
thus not subject to the strictures of Article 3 of the UCC is, at the
very least, plausible. That determination served as the predicate
for the court’s ultimate ruling that the Demand Note was an
enforceable contract. On appeal, Appellants have not challenged
the district court’s determination that the Demand Note was an
enforceable contract between Morton and Higginson other than
to argue that because, in their view, the note was a negotiable
instrument subject to unfulfilled requirements of the UCC, it was
therefore not enforceable as a simple contract. Indeed,
Appellants do not raise any non-UCC challenges to the
enforcement of the Demand Note. Consequently, we affirm the
10. Appellants have not attempted to explain why the phrase “or
his designee” should have the same legal meaning as “or order”
in this case, and given the importance of designated “words of
negotiability” in safeguarding the reliability of the concept of a
negotiable instrument under the UCC, it seems unlikely that
they could. See generally 2 White, Summers, & Hillman, Uniform
Commercial Code § 18:4 (6th ed. 2016) (“More than any other
symbols, the words ‘order’ and ‘bearer’ are supposed to put
parties on notice that they are dealing with negotiable
instruments. For this reason, courts have been slow to recognize
substitutes for these symbols. The drafters of the 1990 revisions
exempt certain checks from the ‘payable to bearer or to order’
requirement, . . . but otherwise, they continue the policy of
discouraging alternate language in negotiable instruments.”).
20160211-CA 12 2017 UT App 139Carmichael v. Higginson
district court’s grant of summary judgment in favor of the
Morton Estate. See Golden Meadows Props., LC v. Strand, 2010 UT
App 257, ¶ 17, 241 P.3d 375 (observing that an appellant cannot
demonstrate that a district court erred if he or she “fails to attack
the district court’s reasons” for its decision); see also Salt Lake
County v. Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30,
¶ 28, 297 P.3d 38 (“This court will not reverse a ruling of the
[district] court that rests on independent alternative grounds
where the appellant challenges only one of those grounds.”).
¶20 Appellants next contend that the district court erred when
it “disregarded the statute of limitations bar to the Morton
Estate’s remaining causes of action” for promissory estoppel,
unjust enrichment, conversion, fraud, and tortious interference.
In addressing the Morton Estate’s remaining causes of action, the
district court concluded:
Because the Court has granted summary judgment
to the [Morton Estate] on its breach of contract
claim, and because the other causes of action pled
by the [Morton Estate] were pled in the alternative,
the Court does not need to reach those claims on
their merits and deems them MOOT.
We agree with the reasoning of the district court: because we
have affirmed the district court’s grant of summary judgment in
favor of the Morton Estate on the breach of contract claim, we
need not address Appellants’ arguments relating to the Morton
Estate’s alternative claims and the applicable statutes of
limitations. See generally Beehive Brick Co. v. Robinson Brick Co.,
780 P.2d 827, 833 (Utah Ct. App. 1989) (“It is an established
principle in both civil and criminal cases that this court need not
analyze and address in writing each and every argument, issue,
or claim raised and properly before us on appeal. Rather, the
nature and extent of an opinion rendered by this court is largely
discretionary with this court.” (citation and internal quotation
marks omitted)). Our affirmance of the district court’s grant of
20160211-CA 13 2017 UT App 139Carmichael v. Higginson
summary judgment on the breach of contract claim is dispositive
of this appeal. See id.¶21 Finally, the Morton Estate contends that it should be
awarded its attorney fees and costs incurred on appeal. “When a
party is entitled to attorney fees below and prevails on appeal,
that party is also entitled to fees incurred on appeal.” Jordan
Constr., Inc. v. Federal Nat’l Mortgage Ass’n, 2017 UT 28, ¶ 71
(brackets, citation, and internal quotation marks omitted). The
Morton Estate received attorney fees below and has prevailed on
appeal. Accordingly, we award the Morton Estate its reasonable
fees incurred in connection with this appeal in an amount to be
determined by the district court on remand.
CONCLUSION
¶22 We conclude that Appellants have not demonstrated that
the Demand Note was a negotiable instrument, and the district
court’s conclusion that “[t]he provisions of the [UCC] . . . are not
imposed on the Demand Note” therefore stands. Appellants
have not challenged the district court’s determination that the
Demand Note was an enforceable contract, and we therefore
affirm the district court’s grant of summary judgment in favor of
the Morton Estate and award attorney fees on appeal to the
Morton Estate.
¶23 Affirmed.
20160211-CA 14 2017 UT App 139