Goldenwest Fed. Credit Union v. Kenworthy
| Decision Date | 13 October 2017 |
| Docket Number | No. 20150397-CA,20150397-CA |
| Citation | 406 P.3d 253 |
| Parties | GOLDENWEST FEDERAL CREDIT UNION, Appellant, v. Kathleen F. KENWORTHY, Appellee. |
| Court | Utah Court of Appeals |
Dana T. Farmer, Ogden, Attorney for Appellant
Peter A. Klc, Attorney for Appellee
1
Opinion2
¶ 1 Goldenwest Federal Credit Union appeals the district court's entry of summary judgment in favor of Kathleen F. Kenworthy. We affirm.
¶ 2 "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 (citation and internal quotation marks omitted). "A summary judgment movant must show both that there is no material issue of fact and that the movant is entitled to judgment as a matter of law." Orvis v. Johnson, 2008 UT 2, ¶ 10, 177 P.3d 600 (emphasis in original).
¶ 3 On April 24, 2006, Kenworthy entered into a loan agreement with Goldenwest to fund the purchase of a vehicle. The loan's maturity date was April 15, 2012. Kenworthy initially agreed to repay the loan in monthly installments of $487.21. In May 2008, after missing the payment due in February and all payments due thereafter, Kenworthy called Goldenwest, discussed her financial difficulties, and indicated that she would not be able to make the scheduled payments. On May 9, 2008, Goldenwest agreed to reduce Kenworthy's monthly payments to $200 per month. No other terms of the loan agreement were modified. Kenworthy made one $200 payment but made no payments thereafter.
¶ 4 Almost six years later, on February 5, 2014, Goldenwest sued Kenworthy for the remaining balance due on the loan.3 Kenworthy moved for summary judgment, claiming that Goldenwest's claims were "barred by the statute of limitations." The district court granted Kenworthy's motion, concluding that "[t]he applicable statute of limitations had run prior to [Goldenwest] initiating the present action." It then granted Kenworthy's request for attorney fees, to which Goldenwest had failed to respond. Goldenwest appeals.
¶ 5 Goldenwest argues that the district court erred in granting Kenworthy's summary judgment motion because "[t]he statute of limitations did not run before this action was commenced." "An appellate court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness[.]" Orvis, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation marks omitted).
¶ 6 According to Goldenwest, its action was timely because it was brought within six years of when the oral agreement to reduce the monthly payment to $200 was reached. "Subject to one exception inapplicable here," a six-year statute of limitations "applies to ‘any contract, obligation, or liability founded upon an instrument in writing.’ " Griffin v. Cutler, 2014 UT App 251, ¶ 18, 339 P.3d 100 (emphasis added) (quoting Utah Code Ann. § 78B-2-309(2) (LexisNexis 2012)). But an action on an oral agreement is subject to a four-year statute of limitations. See Utah Code Ann. § 78B-2-307(1)(a) (LexisNexis 2012); Griffin, 2014 UT App 251, ¶ 15, 339 P.3d 100. And "where a specific material term of [a] contract in writing is subsequently changed orally, the statute of limitations applicable to oral contracts applies." Strand v. Union Pac. R.R., 6 Utah 2d 279, 312 P.2d 561, 563 (Utah 1957) (emphasis added).
¶ 7 The case comes to us in this posture. If the six-year statute applicable to written contracts applies, Goldenwest's complaint was timely.4 If Goldenwest's oral agreement to reduce Kenworthy's monthly payments to $200 changed a material term of the written contract, then, under Strand, the four-year statute applicable to oral contracts applies, and the complaint was not timely.
¶ 8 But on appeal, Goldenwest does not contend that the oral modification of the amount of the monthly payment was immaterial. Rather, Goldenwest argues that Strand is "inapplicable" because the terms of the agreement between Goldenwest and Kenworthy "can be proven without resort to parol evidence" and because the agreement and subsequent oral modification "are within the statute of frauds." With respect to the parol evidence argument, Goldenwest does not explain what evidence in Strand consisted of parol evidence, nor does it explain how consideration of parol evidence would render Strand"inapplicable" to the current case.
¶ 9 With respect to the statute of frauds argument, Goldenwest seemingly treats its argument as self-evident. We assume that Goldenwest believes the agreement is governed by the statute of frauds because the agreement between Goldenwest and Kenworthy is one that cannot be performed within one year. See Pasquin v. Pasquin, 1999 UT App 245, ¶ 18, 988 P.2d 1. If Goldenwest is claiming that oral modifications to written agreements governed by the statute of frauds cannot fall within the four-year statute of limitations, it has not cited authority to that effect. Goldenwest instead cites the venerable case of Texas Western Railway Co. v. Gentry, 69 Tex. 625, 8 S.W. 98, 101 (Tex. 1888), but the court in Gentry concluded that a written resolution was governed by the same statute of limitations applicable to written contracts. Id. Because the agreement between Goldenwest and Kenworthy involved an oral modification to a written contract, Gentry has little relevance.5
¶ 10 Ultimately, Goldenwest does not adequately develop its arguments that Strand is inapplicable. See State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (). Given the complex nature of these doctrines, Goldenwest cannot merely mention parol evidence and the statute of frauds and assume that this court will ascertain the arguments it is trying to make. Therefore, as a result of its cursory briefing on the matter, Goldenwest has not persuaded us that Strand—and the four-year statute of limitations it implicates—is "inapplicable."
¶ 11 Nevertheless, in our previous decision, we expressed doubts regarding the applicability of Strand. See Goldenwest Federal Credit Union v. Kenworthy, 2017 UT App 9, ¶ 7, 391 P.3d 388. Specifically, we were unsure whether the parties' oral modification constituted a "material change." Id. Goldenwest and Kenworthy orally agreed to change a single term of the written loan agreement, namely the amount of the monthly installment payments. The total amount due, the rate of interest, the maturity date, and the collateral for the loan all remained the same. Although we might have been receptive to the argument that a mere reduction in the monthly payment as an accommodation to its borrower was not a material change that would deprive Goldenwest of the benefit of the longer statute of limitations, we need not resolve this question because Goldenwest has not raised it.
¶ 12 We also pointed out in our prior decision that when an " ‘installment contract calls for the entire balance to become due on some specific future date, and the obligee has done nothing to legally accelerate the future payments, the statute of limitations begins to run only after the obligor defaults on the final due date.’ "6 Id.¶ 8 ). We premised our initial decision on the fact that Kenworthy did not demonstrate that Goldenwest accelerated Kenworthy's repayment obligation. If Goldenwest did not accelerate, then the statute of limitations began to run on April 15, 2012, the maturity date of the loan. See id.¶ 9. Because Kenworthy did not establish that Goldenwest accelerated the debt, we determined that the unpaid balance became due at maturity. See id. Under this analysis, we could not conclude as a matter of law that Goldenwest's suit was time-barred given that it filed its complaint within four years of the loan's maturity date. On that basis, we held that the district court erred in granting summary judgment to Kenworthy regardless of whether the six- or four-year statute applied. See id.
¶ 13 After we issued our decision, Kenworthy filed a petition for rehearing, contending that we had based our decision on an argument that was not preserved below and that was not raised by Goldenwest on appeal, namely the argument that Anderson provided the proper date from which to commence the statute of limitations. Concerned that there might have been error in our decision, we asked for a response from Goldenwest, wherein it conceded that it had not raised this sound argument below or on appeal. Nonetheless, Goldenwest argued that this court could base its decision on any applicable legal theory apparent from the record.
¶ 14 While we are quite familiar with the principle on which Goldenwest attempts to rely, this court and the Utah Supreme Court have employed it only to affirm decisions, not to reverse them. See, e.g., State v. Griffin, 2016 UT 33, ¶ 34, 384 P.3d 186 ; Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 7, 321 P.3d 1021 ; Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 ; Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225 ; Friedman v. Salt Lake County, 2013 UT App 137, ¶ 5 n.3, 305 P.3d 162. But see, e.g., Acton v. Deliran, 737 P.2d 996, 998–99 (Utah 1987) (). Aside from cases that involve insufficient findings of fact or provide a basis for affirmance, we have stated that we will not consider arguments that were not preserved for appeal. See, e.g., State v. Holgate, 2000 UT 74...
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