Mark O. Morris and Zaven A. Sargsian | Snell & Wilmer | September 25, 2018
The Utah Court of Appeals recently decided Camco Construction, Inc., et al. v. Utah Baseball Academy, Inc., et al., 863 Utah Adv. Rep. 58, 2018 UT App 78. The case involved the plan of Athletic Performance Institute LLC (“API”) to build an indoor athletic facility, which it would then lease to the Utah Baseball Academy Inc. (“UBA”). Robert Keyes owned both API and UBA. Unfortunately, the baseball facility was not built and no one came. Rather, the project became mired in a dispute and litigation.
API’s plan to build an indoor athletic facility began smoothly. To obtain financing for the project, API reached out to a banking institution (the “Bank”). The Bank agreed to provide API a 12-month construction loan, which would then convert to a 20-year, $1.9 million loan. Mr. Keyes and UBA guaranteed the loan to API, and hired Camco Construction as its general contractor for the project. After beginning construction, things took a turn for the worse. The project faced several difficulties, including funding issues and a floor elevation issue that made the sports facility suitable for only baseball—even though the plan was to make the facility usable for basketball and other sports.
When API and Camco could not resolve the construction-related dispute, Camco filed a mechanic’s lien and, eventually, a lawsuit against API. The legal battle, however, spread to the Bank. After Camco filed its mechanic’s lien, the Bank refused to fund API’s draw request. This refusal became a source of conflict between API and the Bank, and API, UBA, and Mr. Keyes (collectively, “Owner”) asserted multiple claims against the Bank in the litigation. Among its many claims, Owner claimed that the Bank caused intentional infliction of emotional distress, breached the loan documents, acted in bad faith by failing to fund its draw request, failed to cooperate with Owner’s attempt to refinance, and demanded a larger payoff than the Bank what was actually due.
The Bank ultimately prevailed on all counts. During a long and complex case, the trial court struck Owner’s jury demand, granted the Bank summary judgment on several of Owner’s claims and, after a bench trial on the remaining claims, ruled in favor of the Bank. Owner appealed from the ruling, raising numerous issues on appeal. Although many of the issues were easily affirmed by the Court, and do not deserve attention in this article, there are three things that can be learned from the Court’s opinion.
First, a claim by a corporation of intentional infliction of emotional distress (IIED) is not viable. At the district court, API and UBA had argued that the Bank’s failure to fund its draw request was “outrageous conduct” giving rise to an IIED claim. This claim was dismissed on summary judgment and the Court of Appeals affirmed. After noting that API and UBA were both corporations, the Court held that corporations cannot suffer emotional distress. The Court explained that it “is a logical tenet . . . because a corporation lacks the cognizant ability to experience emotions,” and therefore “cannot suffer emotional distress.”
Second, jury waivers are enforceable against sophisticated parties, even if the parties, as a matter of fact, did not—but had the chance to—read the waiver. Here, although Owner had signed multiple jury waivers in the loan documents with the Bank, Owner argued that the “right to a jury trial may only be waived if done knowingly and intentionally.” Owner argued that if the documents containing the jury waiver were not read, then the right to jury could not have been knowingly and intentionally waived. In discussing Owner’s argument, the Court of Appeals assumed the federal requirement that a jury waiver be made knowingly and intentionally applies in Utah for purposes of deciding the case. The Court, however, rejected Owners’ substantive argument. The Court explained that it has repeatedly held that a sophisticated party cannot assert failure to read a contract as a defense to a claim that it waived its rights. In this case, the Court was incredulous as the jury waiver was contained in 20 of the loan documents. The Court stated that, to the contrary, Owner’s failure to read a jury waiver, 20 times, operated to support the trial court’s decision to strike Owner’s request for a jury.
Third, attorneys need to adequately brief all arguments on appeal. No less than seven times, the Court of Appeals refused to consider Owner’s arguments because they were inadequately briefed. This included (1) Owner’s challenge to the district court’s dismissal of their fraud claim; (2) that the jury waiver provision was an adhesion contract; (3) that the jury waiver was overbroad and ambiguous; (4) that there was a fiduciary relationship between the Bank and Owner; (5) that the Bank failed to cooperate in the refinance process; (6) that the Bank breached the loan documents by demanding more than it was due; and (7) that Owner was entitled to a mistrial. The Court cautioned that “[a]n adequately briefed argument contains the contentions and reasons of the appellant with respect to the issues presented with citations to the authorities, statutes, and parts of the record relied on. . . . A reviewing court is not simply a depository in which the appealing party may dump the burden of argument and research.” Thus, attorneys need to adequately brief all issues raised on appeal lest potentially winnable arguments are disregarded by the Court.