Harman v. 105 Partners

2024 UT App 109

THE UTAH COURT OF APPEALS

DAVID R. HARMAN,
Appellant,
v.
105 PARTNERS, LLC; ANTHONY M. THURBER; BREKKE R. FELT;
AND LORRAINE THURBER,
Appellees.

Opinion
No. 20220076-CA
Filed August 1, 2024

Fourth District Court, Provo Department
The Honorable Robert A. Lund
No. 210400689

J. Spencer Ball, Attorney for Appellant
D. David Lambert and Richard A. Roberts, Attorneys
for Appellees Anthony M. Thurber, Brekke R. Felt,
and Lorraine Thurber
Richard D. Flint and Angelica M. Juarez, Attorneys
for Appellee 105 Partners, LLC

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

TENNEY, Judge:

¶1 The dispute before us involves two competing real estate
developers (David Harman and 105 Partners, LLC, respectively)
each of whom signed an agreement to purchase the same property
Harman v. 105 Partners

from the same seller. 1 Through a set of circumstances set forth
below, 105 Partners ended up with title to the Property. After this
occurred, Harman sued both 105 Partners and the seller (Trust
Defendants), raising a number of claims for relief. 2 The district
court later dismissed all of Harman’s claims, and it also awarded
attorney fees to both 105 Partners and the Trust Defendants based
on its conclusion that they had prevailed in the suit.

¶2 Harman now appeals both the dismissal of his suit and the
award of attorney fees. For the reasons set forth below, we first
reject the assertions of 105 Partners and the Trust Defendants that
Harman’s claims have become moot by recent events. Turning to
the merits, we affirm the district court’s dismissal of some, but not
all, of the claims. We accordingly reverse in part, vacate the award
of fees, and remand for further proceedings consistent with this
opinion.

1. As discussed below, this appeal turns in some measure on a
potential differentiation between one purchaser’s attempt to
purchase the land, the buildings on the land, or both. For
simplicity, we’ll refer to the land and the buildings collectively as
the Property, differentiating between them as needed, and we’ll
likewise capitalize the word “property” in any quotation from the
record that refers to the land and buildings in question.

2. Before the contested sale, the Property was owned by the
Anthony Fernlund & Lorraine Thurber Trust (the Trust). In the
suit at issue, Harman sued Anthony M. Thurber and Brekke R.
Felt (who were the trustees of the Trust) and Lorraine Thurber
(who was its beneficiary). For convenience, we’ll refer to them
collectively as the Trust Defendants.

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Harman v. 105 Partners

BACKGROUND

105 Partners and Harman Both Sign Contracts to Purchase the
Property 3

¶3 The Property is comprised of two adjacent parcels of land
in downtown Provo, Utah. In 2014, 105 Partners sought to obtain
the Property so that 105 Partners could develop it. In August of
that year, the Trust Defendants and 105 Partners signed an
agreement that was titled “Contribution Agreement.” Under its
terms, the Trust Defendants and 105 Partners created a
partnership under which the Trust Defendants would convey the
Property to 105 Partners in exchange for some shares of interest
in 105 Partners. The Contribution Agreement specified that title
to the Property would be conveyed to 105 Partners after 105
Partners received approval from Provo City for a project plan and
after 105 Partners acquired another nearby property. These
conditions were not immediately fulfilled, however, so title to the
Property was not conveyed at that time.

¶4 In 2015, the Trust Defendants and 105 Partners amended
the Contribution Agreement, adding provisions under which the
Trust Defendants would convey title to the Property to 105
Partners within 30 days. The parties made further amendments in
2017 that memorialized, among other things, an additional capital
contribution from Cobble Way Holdings, LLC (Cobble Way),
which was a “substantial partner” in the development plans for
the Property. Despite the terms of the 2015 amendment, the Trust

3. The facts set forth in this subsection of the Background are
drawn from Harman’s complaint. See Lewis v. U.S. Bank Trust NA,
2020 UT App 55, n.1, 463 P.3d 694 (“On appeal from a motion to
dismiss, we review the facts only as they are alleged in the
complaint. We accept the factual allegations as true and draw all
reasonable inferences from those facts in a light most favorable to
the plaintiff.” (quotation simplified)).

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Harman v. 105 Partners

Defendants did not convey title to the Property to 105 Partners in
2015, nor did they do so in 2017. And 105 Partners “never took
any ancillary steps to obtain the conveyance of [the Property],
including filing for record with the Utah County Recorder any
instrument identifying the [Contribution Agreement], paying any
of the taxes or expenses of [the Property], or taking any other
action in furtherance of instigating the conveyance.”

¶5 In January 2020, Cobble Way communicated with 105
Partners about potentially dissolving the project because it had
“not progressed, leaving the various contributed land parcels
encumbered for over five years,” and Cobble Way and its owner
also expressed the view that the “existing additional equity
contribution requirement expired in August 2018, leaving no
possibility of [105 Partners] obtaining a construction loan.”
Further, Provo City had not approved the development project,
and “the time period in which city approval could be given” had
allegedly passed.

¶6 In August 2020, Harman entered the picture and offered to
purchase the Property from the Trust Defendants for $500,000.
The Trust Defendants accepted Harman’s offer, and Harman and
the Trust Defendants each signed a Real Estate Purchase Contract
(the REPC). Under a heading labeled “Offer to Purchase,” the
REPC listed “Property (General Description): small commercial
buildings located on” the address for the Property, which it then
listed in a separate line. An attached Notice of Interest and Exhibit
identified the underlying plats of land as well. Under the REPC,
Harman was required to pay the purchase price of $500,000 by
August 10, 2021.

¶7 After learning about the REPC, 105 Partners sued the Trust
Defendants, seeking enforcement of the Contribution Agreement
(including its subsequent amendments). Harman filed a motion
to intervene in that lawsuit. On May 14, 2021, however, and before
the court could rule on Harman’s motion to intervene, the Trust

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Harman v. 105 Partners

Defendants and 105 Partners reached a settlement, and 105
Partners’ suit was voluntarily dismissed with prejudice. Under
the settlement terms, the Trust Defendants agreed to convey title
to the Property to 105 Partners in exchange for $375,000, and the
parties soon executed that agreement. 4

This Lawsuit

¶8 Because Harman knew about the settlement agreement
between the Trust Defendants and 105 Partners, Harman never
tendered the $500,000 purchase price required by the REPC.
Instead, on May 21, 2021, Harman filed the suit that’s at issue in
this appeal. In this suit, Harman named both 105 Partners and the
Trust Defendants as defendants. 5 And in conjunction with this
suit, Harman filed a lis pendens against the Property.

¶9 In the Complaint, Harman alleged seven causes of action.
For analytical reasons, we’ll discuss them in two groups.

¶10 In what we’ll call the Partnership Claims (comprised of
Claims I through IV), Harman sought to invalidate the
partnership that had been created between 105 Partners and the
Trust Defendants, and he likewise sought to invalidate the

4. It’s a touch unclear from the record when title was actually
conveyed. In a hearing that was held before the district court on
November 29, 2021, counsel for 105 Partners simply said it had
occurred after Harman entered into the REPC. When Harman’s
counsel was asked about this at oral argument in this appeal,
counsel said that the Trust Defendants conveyed title to 105
Partners on August 9, 2021.

5. The district court allowed Harman to file an amended
complaint, and this amended complaint was the operative
complaint at the time of the various rulings at issue in this appeal.
For simplicity, we’ll refer to it as the Complaint moving forward.

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Harman v. 105 Partners

agreement for the Trust Defendants to transfer the Property to 105
Partners. In brief, Harman asserted that the partnership was
“void” and that “all agreements of the same [were] not binding”
because the partnership’s purposes had been frustrated (Claim I);
that the doctrine of laches barred enforcement of the property-
transfer agreement (Claim II); that 105 Partners had “repudiated”
“all prior agreements in the former partnership” (Claim III); and
that 105 Partners had committed fraud against the Trust
Defendants (Claim IV).

¶11 In what we’ll call the Ownership Claims (comprised of
Claims V through VII), Harman sought to obtain ownership of the
Property himself. In Claim V, Harman requested an order
quieting title to the Property. In Claim VI, Harman sought specific
performance of the REPC against the Trust Defendants based on
Utah’s Recording Act. And in Claim VII, Harman sought specific
performance under the REPC, asserting that the Trust Defendants
should be obligated to provide a “clear marketable title to
Harman at closing of the specific performance of the sales
contract.”

¶12 In both the claims themselves and again at the close of the
Complaint, Harman set forth his requests for relief. With respect
to the Partnership Claims, Harman asked the court to invalidate
the partnership and the Contribution Agreement, arguing that
this was necessary so that he could obtain specific performance of
the REPC. Harman also requested monetary damages against 105
Partners, but he did so only with respect to the fraud allegations
he set forth in Claim IV. With respect to the Ownership Claims,
Harman asked for an order requiring the Trust Defendants to
“provide clear marketable title” to him and “quieting title as
against 105 [P]artners.” Harman did not request monetary
damages relating to any of the Ownership Claims.

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Harman v. 105 Partners

The District Court Dismisses the Suit and Awards Attorney Fees to
105 Partners and the Trust Defendants

¶13 The Trust Defendants and 105 Partners both filed motions
to dismiss the suit under rule 12(b)(6) of the Utah Rules of Civil
Procedure, and Harman opposed both motions. The district court
held a hearing on those motions in November 2021.

¶14 On December 14, 2021, the district court issued a ruling
dismissing all of Harman’s claims with prejudice, and as a result,
it released the lis pendens against the Property as well. Of note for
this appeal, the court dismissed all of the Partnership Claims
based on its conclusion that Harman lacked standing to “enforce
and/or void any of the agreements between 105 Partners and the
Trust Defendants.” The court then dismissed the Ownership
Claims for a variety of reasons.

• The court dismissed Claim V (which asked the court to
quiet title in Harman’s favor) because Harman “did not
allege” that he had “title to the Property” but was instead
only seeking a declaration that he should obtain title.

• The court dismissed Claim VI (specific performance based
on Utah’s Recording Act) because of the court’s conclusion
that Harman did “not allege[] that he signed the real estate
purchase contract without notice of the interest of 105
Partners.”

• The court dismissed Claim VII (specific performance based
on the terms of the REPC) for two reasons. First, the court
concluded that because Harman failed to tender the
purchase price required by the REPC, he was not entitled
to specific performance. And second, the court concluded
that under a combination of provisions from the REPC, the
court could not order the Trust Defendants to “provide a
clear, marketable title.”

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Harman v. 105 Partners

¶15 On the same day that the district court dismissed the suit,
Harman filed a notice of appeal. A few weeks after Harman filed
his notice of appeal, the Trust Defendants and 105 Partners filed
separate motions requesting attorney fees. On March 3, 2022, the
district court issued a ruling granting these motions and awarding
the Trust Defendants $10,000 and 105 Partners $15,000 in attorney
fees, recognizing that both the Trust Defendants and 105 Partners
“prevailed on the claims associated with” the REPC and the
Contribution Agreement.

The Injunction Proceedings

¶16 On June 22, 2022, Harman filed a “Rule 62(c) Motion for
Injunction” with the district court. In conjunction with this rule
62(c) motion, Harman submitted his own sworn affidavit (it was
titled as his “Declaration,” and we’ll refer to it as such moving
forward).

¶17 In the Declaration, Harman informed the court that he had
learned that 105 Partners was “planning to prepare the Property
and its adjacent properties in order to proceed with the
development” that it had “planned.” Harman also said that as
part of this project, 105 Partners intended “to destroy the single
family dwelling which [he] plan[s] to purchase, by bulldozing the
same.”

¶18 Harman then said that he had “a serious need to purchase
the Property by reason” of his plans “to use it in connection with
[his] apartment complex, which [he] own[s] and which is adjacent
to the Property on the east.” Harman declared that if “105 Partners
destroys the single family dwelling which [he] plan[s] to
purchase, it will cause immediate total irreparable harm, because
[he] will not be able to then purchase the dwelling which [the
Trust Defendants] agreed to sell to [him].” Drawing on this
Declaration, Harman’s motion requested “a Rule 62(c) injunction
during the pendency of the appeal” that would “restrain

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Harman v. 105 Partners

Defendant 105 Partners LLC from destroying, demolishing or
causing harm to the single family dwelling which exists” on the
Property. 6

¶19 Without waiting for a response from 105 Partners, the
district court denied the request for an injunction. The court gave
two reasons for doing so: first, it believed that “the pending
appeal” had “divest[ed]” it of jurisdiction to issue an injunction;
and second, the court believed that rule 62(c) was “inapplicable”
as a means of obtaining an injunction in the first instance.

¶20 On July 11, 2022, Harman filed a motion asking this court
to issue an injunction pursuant to rule 8 of the Utah Rules of
Appellate Procedure, and he attached the same Declaration in
support. Due to what 105 Partners has alleged was a

6. There’s some inconsistency in the record and briefing as to the
nature of the buildings that were on the two parcels of land that
we’ve collectively referred to as the Property. As indicated above,
the REPC referred to “commercial buildings” that were located on
the plats of land. In its appellate brief, the Trust Defendants
simply refer to “pre-existing structures,” while 105 Partners’
appellate brief refers to “a single-family dwelling and a closely
adjacent commercial building.” And as an additional point of
potential complication, in the portion of Harman’s motion for a
“Rule 62(c) Injunction” that we just cited (as well as in various
other documents that he filed in an effort to stop the demolition),
Harman referred to the importance of the “single family
dwelling” that was on one of the parcels (and he did so with no
apparent mention of the other building).
For fidelity to the record, we’ve left unchanged any
quotations in which Harman referred to the importance of the
“single family dwelling.” And in any event, as will be discussed
shortly, both of the buildings have since been demolished, so any
potential distinction regarding the number and nature of these
buildings proves immaterial to our resolution of this appeal.

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Harman v. 105 Partners

“misunderstanding” between its officers and its contractor, 105
Partners’ contractor demolished the buildings sometime around
July 18, 2022. On August 3, 2022, this court denied Harman’s
motion for a rule 8 injunction.

ISSUES AND STANDARD OF REVIEW

¶21 On appeal, Harman raises various challenges to the court’s
decision to dismiss his claims. We “review the grant of a motion
to dismiss for correctness, granting no deference to the decision of
the district court.” Gregory v. Shurtleff, 2013 UT 18, ¶ 8, 299 P.3d
1098 (quotation simplified).

ANALYSIS

I. Mootness

¶22 Harman challenges the district court’s dismissal of his suit.
Before considering the merits of his various arguments, however,
we must first determine whether we have jurisdiction to consider
them at all.

¶23 In their briefs, the Trust Defendants and 105 Partners both
argue that because the buildings that were on the Property have
been demolished, this case is now moot. If they’re correct, we lack
jurisdiction to consider Harman’s claims. See First Nat’l Bank of
Layton v. Palmer, 2018 UT 43, ¶ 10, 427 P.3d 1169 (recognizing that
a court lacks “jurisdiction over issues that have become moot”);
Bywater v. Brigham City Corp., 2024 UT App 53, ¶ 21, 548 P.3d 531
(explaining that mootness is jurisdictional), petition for cert. filed,
June 12, 2024 (No. 20240627). We have an “obligation to ensure
that we have jurisdiction over all matters before us, and we do not
take lightly our responsibility to ensure we have proper
jurisdiction before deciding a case.” 11500 Space Center LLC v.

20220076-CA 10 2024 UT App 109
Harman v. 105 Partners

Private Capital Group Inc., 2022 UT App 92, ¶ 34, 516 P.3d 750
(quotation simplified). We accordingly start here.

¶24 As indicated, Harman raised two groups of claims—the
Partnership Claims and the Ownership Claims. For analytical
reasons, we’ll start with the Ownership Claims, turning from
there to the Partnership Claims.

A. Ownership Claims

¶25 “A case may be mooted on appeal if the relief requested is
rendered impossible or of no legal effect.” Transportation All. Bank
v. Int’l Confections Co., 2017 UT 55, ¶ 15, 423 P.3d 1171 (quotation
simplified). Where “the issues that were before the trial court no
longer exist, the appellate court will not review the case.” Richards
v. Baum, 914 P.2d 719, 720 (Utah 1996).

¶26 Because the mootness doctrine largely turns on the
continuing availability of the “relief requested,” Transportation
All. Bank, 2017 UT 55, ¶ 15 (quotation simplified), Utah’s mootness
cases have commonly looked to the precise terms of the plaintiff’s
pleadings (whether it be the complaint or some other filing) to
determine the nature of the requested relief. See, e.g., Franklin Fin.
v. New Empire Dev. Co., 659 P.2d 1040, 1043 (Utah 1983) (holding
that an appeal was not moot where the “appellants [sought] not
to prevent the sale, but to establish their right to a share of the sale
proceeds,” and where that “relief could be granted even though
the sale [was] already completed and the time for redemption
[had] elapsed”); Wasatch County v. Utility Facility Review Board,
2018 UT App 191, ¶ 20, 437 P.3d 406 (holding that “under the
circumstances of [that] case, the specific remedy Wasatch County
[sought]—revocation of the conditional use permit—[was] simply
unavailable”). And this focus makes sense. After all, “our law of
civil procedure has long deferred to the plaintiff as the master of
the complaint. . . . We judges are neutral arbiters—not advocates.
To police that distinction we keep ourselves out of the business of

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Harman v. 105 Partners

second-guessing the pleading decisions of the parties.” Hunter v.
Finau, 2024 UT App 17, ¶ 29, 545 P.3d 294 (quotation simplified),
cert. denied, 550 P.3d 993 (Utah 2024).

¶27 The Trust Defendants and 105 Partners both assert that
Harman cannot obtain his requested relief without the continued
existence of the buildings. After all, in the Complaint, Harman
sought to enforce his right to purchase the Property under the
terms set forth in the REPC. And as indicated, the REPC initially
identified the property that was being purchased as “small
commercial buildings located on” the identified address. In
addition, the Trust Defendants and 105 Partners also point to
various statements and arguments that Harman made while
seeking to prevent the destruction of the buildings. In the motion
for an injunction that Harman filed with the district court,
Harman claimed that “his agreement” was “to purchase the
Property which includes the dwelling on the Property,” and he
further argued that “[i]f the Property [was] destroyed”—which
seems to be a reference to the buildings, not the land—he would
“not then be able to obtain the fruits of his agreement in this suit
for specific performance.” In the motion for a rule 8 injunction that
he filed with this court, Harman similarly claimed that he “would
truly be irreparably harmed in a profound way if the Property
which has such a dwelling on it is demolished,” that allowing 105
Partners to “bulldoze the single family dwelling” would
“destroy[] most of the value of the [Property],” and that “[i]f the
Property is destroyed,” he would “not then be able to obtain the
fruits of his agreement in this suit for specific performance.”

¶28 We thus understand the mootness arguments from 105
Partners and the Trust Defendants to essentially turn on two
sequential propositions: first, that the “relief [Harman] requested”
was inextricably linked to the buildings, and second, that
regardless of whether the requested relief was exclusively or even
partially predicated on the buildings, Harman cannot obtain that

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Harman v. 105 Partners

relief now because the buildings have been demolished. We
disagree on both fronts.

¶29 First, in the Complaint, Harman claimed that he was
“entitled to specific performance” of the REPC. The agreement
itself specifically referenced the buildings, but through both its
broad language and the attached Notice of Interest and Exhibits,
this agreement also contemplated that Harman was purchasing
the underlying plots of land. Moreover, in the “General
Allegations” section of the Complaint, Harman identified the
Property that “is the subject matter of [his] action” by referencing
the parcel numbers and the geographical descriptions of the
Property. Thus, the Complaint and the underlying REPC made it
clear that Harman was seeking specific performance of the right
to purchase both the buildings and the land.

¶30 It’s true that, in his requests for injunctive relief, Harman
repeatedly stressed the importance of the buildings to him. But
contrary to the suggestions of 105 Partners and the Trust
Defendants, we don’t believe that by doing so, Harman
affirmatively disclaimed his intent to purchase the land in the
event that the buildings were destroyed. In his Declaration, for
example, Harman said that he had “a serious need to purchase the
Property by reason” of his plans “to use it in connection with [his]
apartment complex, which [he owns] and which is adjacent to the
Property on the east.” And in his rule 8 motion to this court,
Harman explained that the Property provides “an important right
of way to [his] apartment property for large trucks as well as [his]
tenants.” This right of way would, of course, operate
independently of the buildings, and this assertion thus reinforces
that, separate from the buildings, Harman saw value in the land
itself.

¶31 From all this, we think it’s clear that the “relief requested”
in this lawsuit was a request for specific performance of an
agreement to purchase both the buildings and the land.

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Harman v. 105 Partners

¶32 The second question, then, is this: since the buildings were
part of this contract and part of the requested relief, and since
those buildings have now been destroyed, can Harman obtain
specific performance for just part of the contract? The answer to
that question is yes. Our supreme court has held that when the
nature of a property changes in between the formation of the
contract and the completion of the transfer, the purchaser may
seek partial specific performance (often with an abatement of the
purchase price). See, e.g., Kelley v. Leucadia Fin. Corp., 846 P.2d 1238,
1242 (Utah 1992) (holding that “[s]pecific performance with an
abatement in the purchase price” was available as “an appropriate
remedy” when the parties learned, after the formation of the
contract, that the sellers might not have owned all of the property
in question); Castagno v. Church, 552 P.2d 1282, 1283–84 (Utah
1976) (holding that the district court was justified in awarding
specific performance “with an abatement in the purchase price
equal to the value of the deficiency or defect” where, after the
parties had agreed to a contract for the sale of land and water
rights, an administrative decision prevented the purchasers from
actually obtaining the water rights). 7

7. Utah is not alone in recognizing the availability of such a
remedy. See, e.g., 81A C.J.S. Specific Performance § 10 (2024)
(“Ordinarily, unless the court can decree specific performance as
to the whole of a contract, it will not enforce any part of it,” but
“where it is impossible to afford specific performance of an entire
contract, relief may be granted as to a part of it in appropriate
circumstances,” including an award of “partial specific
performance of the contract with an abatement in the purchase
price reflecting the loss.”); 25 Williston on Contracts Specific
Performance and Other Equitable Remedies § 67:36 (2024) (holding
that a “court of equity” “may order specific performance of the
contract on terms different from those set forth in the contract
(continued…)

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Harman v. 105 Partners

¶33 Indeed, after the Trust Defendants and 105 Partners made
their mootness arguments in their appellate briefs, Harman cited
to both Kelley and Castagno in his reply brief. In express reliance
on these decisions, Harman argued that this case is not moot
precisely because he could still obtain specific performance plus
abatement of the purchase price as a means of accounting for the
destruction of the buildings.

¶34 In response to this assertion, 105 Partners and the Trust
Defendants suggest that it’s too late for Harman to request this
type of remedy. In their view, a party must ordinarily set forth
any request for damages in its pleadings at the trial court level,
which is problematic because Harman did not ask for specific
performance plus abatement in his pleadings below. But this
argument asks us to turn a blind eye to the sequencing of this case.
After all, Harman had no reason to request specific performance
plus abatement from the district court, given that the buildings
weren’t demolished until after the district court had dismissed his
suit and after he had filed his notice of appeal. Moreover, we also
emphasize the procedural posture in which we’ve received this
case—namely, Harman is appealing the district court’s grant of a
rule 12(b)(6) motion to dismiss. In theory, if we reversed that
dismissal, the case would be returned to the district court in a
pretrial posture—and, as a result, Harman would then have the
ability to request leave to amend his initial damages request to ask

where the court identifies equitable justifications, such as the
fulfillment of the parties’ actual intention, or where doing so will
remedy a harm caused by the unconscionable or inequitable
conduct of one of the parties”). And of particular note given the
facts of this case, some authorities have suggested that partial
specific performance is available in a situation in which
“improvements were destroyed prior to the completion of the
transfer.” 19 Am. Jur. 3d Specific Performance with Abatement § 16
(2024).

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Harman v. 105 Partners

for specific performance plus abatement. Cf. Richards, 914 P.2d at
721–22 (noting that “the amendment of pleadings is sometimes
permitted on remand”). 8

¶35 To be clear, for purposes of our mootness analysis, we’re
not holding that Harman actually is entitled to relief. Rather, the
sole question at this stage is whether the requested relief is
“rendered impossible or of no legal effect.” Transportation All.
Bank, 2017 UT 55, ¶ 15 (quotation simplified). Because Harman
has always sought specific performance of a contract that
included the sale of land, and because our supreme court has
recognized that a party can, under some circumstances, obtain
specific performance of a portion of a contract accompanied by
abatement of the purchase price, it would still be possible for

8. While we were deliberating on this appeal, our supreme court
issued Grewal v. Junction Market Fairview, LC, 2024 UT 20, -- P.3d -
-. The Trust Defendants subsequently filed a rule 24(j) letter
suggesting that Grewal “confirms” that Harman’s “potential but
unpleaded claims” for specific performance plus abatement “do
not defeat mootness.” We disagree with the Trust Defendants'
proposed application of Grewal. In Grewal, the supreme court held
that the case had become moot because, while the appeal was
pending, title to the property in question was transferred to an
unquestioned bona fide purchaser. Id. ¶ 24. Because of this, the
plaintiff—who had filed a request for specific performance—
could no longer obtain any relief at all. By contrast, as we’ve
explained, Harman can in theory still obtain specific performance,
and the destruction of the buildings (which is the only thing the
Trust Defendants or 105 Partners has pointed to as the basis for a
mootness determination) does not alter that conclusion.

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Harman v. 105 Partners

Harman to obtain the relief that he has always sought. For these
reasons, we conclude that his claims are not moot. 9

B. Partnership Claims

¶36 We also conclude that Harman’s challenges to the
dismissal of the Partnership Claims are not moot.

¶37 In each of these claims (i.e., Claims I through IV), Harman
argued that the partnership agreement between the Trust
Defendants and 105 Partners should be voided. In isolation, the
nature of this requested relief alone suggests that these claims
should survive a mootness challenge because, in theory, the

9. We’ve previously held that a party’s failure to obtain a stay of
a lower court judgment may become “material to the question of
mootness.” Wasatch County v. Utility Facility Review Board, 2018 UT
App 191, ¶ 14, 437 P.3d 406. In other words, an appeal may
become moot “where the appealing party did not use available
procedural tools to preserve the status quo.” Id. ¶ 16. Other
decisions have recognized this principle too. See, e.g., Richards v.
Baum, 914 P.2d 719, 721–22 (Utah 1996); Kellch v. Westland Mins.
Corp., 484 P.2d 726, 726 (Utah 1971); Bywater v. Brigham City Corp.,
2024 UT App 53, ¶¶ 27–35, 548 P.3d 531. This additional
component of our mootness jurisprudence might provide
additional reason to conclude that Harman’s suit is not moot.
After all, after the district court dismissed his suit, Harman asked
both the district court and this court to issue an injunction that
would stop the demolition of the buildings.
The potential wrinkle here is that the courts denied
Harman’s requests. But we need not determine how a mootness
analysis would proceed if a party tried preserving the status quo
and yet the courts rejected the request, thereby allowing the status
quo to change. Because we conclude that the continuing
availability of specific performance alone means that this case is
not moot, we need not answer this question.

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Harman v. 105 Partners

partnership could be voided irrespective of whether the buildings
survived. And separate from that, we also note that Harman
linked each of these claims to his request for specific performance
of the REPC:

• At the outset of Claim I, Harman asserted that “105
Partners should not be allowed to interfere or stop Harman
from purchasing [the Property] because the partnership
between it and the [Trust Defendants] is void.”

• At the outset of Claim II, Harman asserted that “105
Partners [has] no power to interfere with Harman’s
Purchase Agreement because all of its agreements with the
[Trust Defendants] are void on grounds of laches.”

• At the outset of Claim III, Harman asserted that there “is
no agreement now existing where 105 Partners can
interfere or stop the [Trust Defendants] from selling the
Property to Harman.”

• And at the outset of Claim IV, Harman asserted that “105
Partners should not be allowed to stop or interfere with
Harman’s purchase contract with the [Trust Defendants]
because of fraud on the part of 105 Partners.”

Harman also included similar language with respect to each claim
in the portion of the Complaint in which he detailed the relief
requested. And at oral argument in this appeal, Harman’s counsel
again affirmed that each of these claims was linked to his request
for specific performance of the REPC. Because we concluded
above that the Ownership Claims survive this mootness challenge
because of Harman’s request for specific performance, it thus
follows that the Partnership Claims survive too.

¶38 In short, we conclude that Harman’s claims are not moot.
As a result, we have jurisdiction to consider the merits of
Harman’s challenges to the dismissal of his suit.

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II. Dismissal of the Partnership Claims

¶39 As discussed above, Harman raised seven claims in his
brief, and we’ve referred to Claims I through IV as the Partnership
Claims. In these claims, Harman sought to invalidate the
partnership between 105 Partners and the Trust Defendants on
various grounds, including laches, repudiation, and fraud, as well
as an assertion that the partnership was “void” and “all
agreements of the same [were] not binding” because the
partnership’s purposes had been “frustrated.” 10 As explained, he
sought to do so to facilitate his own claims to the Property. The
district court dismissed the Partnership Claims, however,
concluding that Harman lacked standing to try to invalidate
agreements between 105 Partners and the Trust Defendants.
Harman now challenges that conclusion on appeal, but we agree
with the district court.

¶40 “To properly bring an issue before the court for
adjudication, a party must have standing.” Provo City Corp. v.
Thompson, 2004 UT 14, ¶ 9, 86 P.3d 735. The “traditional standing
test requires plaintiffs to allege that they have suffered or will
suffer some distinct and palpable injury that gives them a
personal stake in the outcome of the legal dispute.” Southern Utah
Wilderness All. v. Kane County Comm’n, 2021 UT 7, ¶ 16, 484 P.3d
1146 (quotation simplified). This test also “require[s] a plaintiff to
show that he or she suffered an invasion of a legally protected
interest that is concrete and particularized.” Id. ¶ 17 (quotation

10. We have some question about whether a plaintiff even can
raise laches as a cause of action, as opposed to a defendant raising
it as a defense. See, e.g., Fundamentalist Church of Jesus Christ of
Latter-Day Saints v. Horne, 2012 UT 66, ¶¶ 19, 21, 289 P.3d 502
(referring to the “affirmative defense of laches”); 30A C.J.S. Equity
§ 146 (2024) (referring to the “defense of laches”). But we need not
resolve this here since we ultimately resolve these claims based
on a lack of standing.

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Harman v. 105 Partners

simplified); see also Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah 1983)
(explaining that under “the traditional test for standing,” a
plaintiff “must have a legally protectible interest in the
controversy” (quotation simplified)); In re John Edward Phillips
Family Living Trust, 2022 UT App 12, ¶ 24, 505 P.3d 1127 (same).
In this sense, “a party may generally assert only his or her own
rights and cannot raise the claims of third parties who are not
before the court.” Thompson, 2004 UT 14, ¶ 9; accord Lehi City v.
Rickabaugh, 2021 UT App 36, ¶ 16 n.7, 487 P.3d 453.

¶41 We applied these principles in D.U. Co. v. Jenkins, 2009 UT
App 195, 216 P.3d 360, a case that has some similarity to what’s at
issue here. In that case, Elaine and Sam Jenkins lived in a home
that was owned by the D.U. Company (DUC). 11 See id. ¶ 2. DUC
sold the home to Alan Jenkins (Sam’s brother). See id. After Elaine
divorced Sam, she filed suit against both Alan and DUC, seeking
to quiet title in the property. See id. ¶ 3. DUC dismissed itself from
the suit, claiming that it had no interest. See id. At trial, Elaine
prevailed against Alan and thus received title. See id. Unhappy
with this result, DUC then sued Elaine. In its first cause of action,
it sought to quiet title on behalf of Alan. See id. ¶ 4. The district
court dismissed that cause of action for lack of standing, however,
and we affirmed that conclusion on appeal. See id. ¶¶ 11–12.
Relying on Thompson, we held that by seeking to “quiet[] title in
Alan Jenkins’s name,” DUC was asserting a claim of a “third party
who [was] not before the court.” Id. ¶ 12 (quotation simplified).
Because DUC had not established that it had a “legally protectable
interest in asserting Alan Jenkins’s potential claims,” we held that
DUC lacked standing to raise such claims on his behalf. Id.

11. Elaine and Sam belonged to a religious order under which “all
property was held in common,” and DUC was a holding company
for that order. D.U. Co. v. Jenkins, 2009 UT App 195, ¶ 2, 216 P.3d
360.

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¶42 Of some note, DUC had also asserted a second cause of
action in the alternative in which it tried to undo its own earlier
sale of the property to Alan. See id. ¶ 4. In DUC’s view, prevailing
on this cause of action would provide a basis for quieting title to
the property in its own right. See id. We affirmed the dismissal of
that cause of action on res judicata grounds. See id. ¶¶ 13–17. But
in doing so, we held that even though DUC was now asserting,
through its second cause of action, that it had a “legally
protectable interest in the validity of the warranty deed it earlier
issued to Alan Jenkins,” and even though that same warranty
deed was also at issue in the claims that DUC sought to assert on
Alan’s behalf against Elaine, this still did not give DUC standing
to assert claims for Alan against Elaine in the first cause of action.
See id. ¶ 12. This was so because, again, DUC had not shown that
it had a legally protectible interest in asserting claims for Alan
against Elaine. See id.

¶43 These principles have clear application to this case. In its
ruling dismissing Harman’s claims, the district court concluded
that Harman was not “an assignee or third-party beneficiary
of any of the agreements between 105 Partners and the
Trust Defendants” and that Harman therefore had no “authority
to act on behalf of the Trust Defendants” to raise these claims.
Harman has not meaningfully challenged these conclusions on
appeal, much less carried his burden of persuading us that any
of them were incorrect. Because Harman has not established
that he had a “legally protectable interest in asserting” claims
for the Trust Defendants against 105 Partners, he lacks
standing to do so. Id. In other words, he “cannot raise the
claims of third parties,” Thompson, 2004 UT 14, ¶ 9, but, instead,
can only assert his own rights. And under D.U. Co., this remains
true even though Harman claims to have his own “legally
protectable interest” in the Property through the REPC. 2009 UT
App 195, ¶ 12.

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Harman v. 105 Partners

¶44 In light of all this, we thus conclude that the district court
correctly dismissed the Partnership Claims for lack of standing. 12

III. Dismissal of the Ownership Claims

¶45 Harman next challenges the dismissal of Claims V through
VII, which we have referred to as the Ownership Claims. As
explained below, we (A) reverse the district court’s dismissal of
Claim VII, which sought specific performance under the REPC;
(B) affirm the district court’s dismissal of Claim VI, which sought
specific performance under Utah’s Recording Act; and (C) reverse
the district court’s dismissal of Claim V, which sought to quiet
title.

A. Specific Performance of the REPC

¶46 The district court dismissed the specific performance claim
for two independent reasons. Neither ground supports dismissal,
at least not at this procedural stage.

¶47 Failure of tender. The district court first concluded that
Harman was not entitled to specific performance because he
failed to tender the purchase price required by the REPC. In his
brief, Harman acknowledges that he did not tender the $500,000
required by the REPC, but he nevertheless argues that the court

12. Although somewhat unclear from his brief, we understand
Harman to be asserting standing under the traditional test we’ve
discussed above. In addition to traditional standing, our supreme
court has recognized other forms of standing. These include
public interest standing and associational standing, see ACLU of
Utah v. State, 2020 UT 31, ¶¶ 3–4, 467 P.3d 832, as well as statutory
standing, see Bleazard v. City of Erda, 2024 UT 17, ¶ 37, -- P.3d --.
Harman has not specifically argued that he has standing under
any of these alternate approaches. If he meant to do so implicitly,
we reject such arguments as being inadequately briefed.

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Harman v. 105 Partners

should have held that this failure was justified by futility, which
is a recognized exception to the tender requirement. See, e.g.,
Shields v. Harris, 934 P.2d 653, 655 (Utah Ct. App. 1997) (explaining
that Utah courts consider “tender to be fruitless and thus excused
where the lienor states that he or she does not intend to accept
payment” (quotation simplified)); Carr v. Enoch Smith Co., 781
P.2d 1292, 1295 (Utah Ct. App. 1989) (recognizing that the
“familiar rule that the law does not require one to do a vain or
useless thing excuses the making of a formal tender which would
otherwise be required, where it is reasonably plain and clear that
if made, such a tender would be an idle ceremony and of no avail”
(quotation simplified)). Relying on these principles, Harman
argues that any tender he might have made would not have
mattered because the Trust Defendants would not have
conveyed the Property to him even if he had tendered the
purchase price.

¶48 Although Harman raised the futility defense below, the
district court did not discuss this defense in its ruling, let alone
explain how this fact-bound defense failed as a matter of law in
the context of a motion to dismiss. Futility “is an equitable defense
that, in the first instance, is best addressed to the sense of justice
and good conscience of the trial court, to which we accord
considerable latitude of discretion.” Richardson v. Hart, 2009 UT
App 387, ¶ 21, 223 P.3d 484; see also Jenkins v. Equipment Center,
Inc., 869 P.2d 1000, 1003 (Utah Ct. App. 1994) (“The question of
whether a tender would have been fruitless is fact-intensive. Thus,
we defer to the trial court’s findings.” (quotation simplified)).
Given that Harman preserved his futility argument, and given
that his lack of tender would be excused if Harman prevails on
that argument, we conclude that the district court’s dismissal for
a lack of tender was improper, at least at this procedural stage,
because the court failed to address the potentially dispositive
issue that was before it. We thus reverse that ruling and remand

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Harman v. 105 Partners

with directions for the court to consider and rule on Harman’s
futility defense.

¶49 Failure of obligations. The district court separately
concluded that, even if Harman was “not required to make a full
tender,” he still was not entitled to specific performance. The
court’s explanation for this ruling was a touch unclear, and the
parties’ briefs have failed to offer much additional clarity. As we
understand it, the court’s ruling was grounded in various
provisions in the REPC under which Harman agreed to purchase
the Property subject to a “Commitment for Title Insurance” that
was to be provided by the Trust Defendants. The court noted that,
under the REPC, Harman was entitled to either rescind or pursue
other remedies if the Commitment for Title Insurance revealed
potential problems with the title. The district court also noted that
it was undisputed that Harman was “aware of the existing prior
interest of 105 Partners and its agreements with the Trust
Defendants” when he agreed to the REPC. From all this, the court
dismissed Harman’s specific performance claim because, in its
view, the Trust Defendants could not—and were not required
to—“provide a clear, marketable title to [Harman] that was not
subject to the contents of the Commitment for Title.”

¶50 On the briefing presented to us on appeal, we conclude that
this dismissal was in error. Our supreme court has held that a
“seller is not entitled to take advantage of a provision intended to
benefit the buyer alone.” Kelley, 846 P.2d at 1242. In other words,
if a seller violates its “contractual obligations under a provision”
that is “clearly for the benefit of the buyer,” the buyer may still
seek specific performance. Id.; see also SMS Fin., LLC v. CBC Fin.
Corp., 2017 UT 90, ¶ 23, 417 P.3d 70 (recognizing that “contractual
conditions can be waived by the benefitted party and do not
prevent specific performance”).

¶51 In his brief, Harman argued that these particular
provisions from the REPC (obligating the Trust Defendants to

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Harman v. 105 Partners

obtain a Commitment for Title Insurance and allowing Harman
the option to rescind the REPC if a title issue were identified) were
intended to benefit him, not the Trust Defendants. In direct
reliance on Kelley, Harman then argued that the court’s ruling on
this point was therefore in error. In their responsive briefs, neither
of the appellees even acknowledged Kelley, much less responded
to Harman’s claim that the REPC provisions in question were
intended to benefit only him. Given the nature of the ruling before
us, the unrebutted legal arguments presented by Harman on
appeal, and the supreme court’s decision in Kelley, we conclude
that Harman has carried his burden of demonstrating that this
dismissal was erroneous. We accordingly reverse it. 13

13. Though somewhat unclear, the district court’s ruling was at
least arguably predicated on an additional conclusion—namely,
that because there were competing claims to the Property,
Harman is not entitled to specific performance as a matter of law.
But our supreme court has contemplated that a buyer in such a
circumstance can still pursue “traditional common law or
equitable remedies,” including specific performance. Kelley v.
Leucadia Fin. Corp., 846 P.2d 1238, 1242 (Utah 1992). Were it
otherwise, “a seller [would] have no motivation to clear title” and
“the cost of clearing title” would be improperly “shifted to a buyer
determined to purchase the property.” Id. Moreover, as explained
below, Utah’s Recording Act seems designed to confront
scenarios in which there are competing claims to the same
property. From this, we see no support for the district court’s
seeming conclusion that the existence of competing claims to the
Property means that Harman cannot seek specific performance of
his own rights under the REPC.
But we also note that the briefing on this entire issue has
been less than robust. Because the parties “made no real effort” to
present the competing arguments on it, “we’re in no position to
(continued…)

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Harman v. 105 Partners

B. Utah’s Recording Act

¶52 Harman next challenges the district court’s decision to
dismiss his claim under what has sometimes been referred to as
Utah’s Recording Act. See Haik v. Sandy City, 2011 UT 26, ¶ 13, 254
P.3d 171. The district court dismissed this claim based on its
conclusion that Harman was not a “bona fide purchaser[],” and it
based this on its conclusion that, under the allegations set forth in
the Complaint, Harman had purchased the Property with
knowledge of the “existing prior interest of 105 Partners and its
agreements with the Trust Defendants.” In the court’s view,
Harman had “notice of a prior, unrecorded interest” and therefore
could not have acted in “good faith” as required to be a bona fide
purchaser. See Pioneer Builders Co. of Nevada v. KDA Corp., 2012 UT
74, ¶ 23, 292 P.3d 672.

¶53 Harman challenges this ruling on appeal, asserting that
although he knew about the Contribution Agreement, he also had
reason to believe that the terms of the Contribution Agreement
had not been fully accomplished and, thus, that 105 Partners had
no valid interest in the Property. In their briefs, the two sides
dispute whether Harman’s presumptions about the status of the
Contribution Agreement relieved him of being on notice of a prior
interest. But we need not resolve this dispute. This is so because,
separate from this potential issue, 105 Partners and the Trust
Defendants also ask us to affirm on the alternate ground that

do this work ourselves.” Keisel v. Westbrook, 2023 UT App 163, ¶ 52
n.9, 542 P.3d 536. As a result, “we leave open the possibility that,
if some future case arises in which” this issue is “better presented,
we may consider [it] anew.” Id. Thus, for purposes of this appeal,
we simply hold that, based on the ruling and the briefing before
us, we see no sustainable support for the court’s dismissal of
Harman’s REPC-based specific performance claim under rule
12(b)(6) based on the conclusion that specific performance was
unavailable.

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Harman v. 105 Partners

Harman did not qualify as a subsequent purchaser for purposes
of Utah’s Recording Act. We agree with this contention and affirm
the dismissal on this basis alone. See Cochegrus v. Herriman City,
2020 UT 14, ¶ 36, 462 P.3d 357 (“It is within our discretion to affirm
a judgment on an alternative ground if it is apparent in the
record.” (quotation simplified)). 14

¶54 Utah’s Recording Act applies when more than one
purchaser claims a right to a single property. Under its terms,

[e]ach document not recorded as provided in this
title is void as against any subsequent purchaser of
the same real property, or any portion of it, if: (1) the
subsequent purchaser purchased the property in
good faith and for a valuable consideration; and
(2) the subsequent purchaser’s document is first
duly recorded.

Utah Code § 57-3-103. Put differently, “where two purchasers
claim title to real property, the subsequent purchaser prevails
only so long as he took the property in good faith and was the first to
record his interest.” Morris v. Off-Piste Capital LLC, 2018 UT App
7, ¶ 29, 418 P.3d 66 (emphasis added, quotation otherwise
simplified). “To take property in good faith, a subsequent
purchaser must take title to the property without notice of a prior,
unrecorded interest in the property. Notice of a prior interest may
be actual or constructive.” Pioneer Builders Co. of Nevada, 2012 UT

14. Because Harman recorded the REPC prior to 105 Partners
recording its interest in the Property, we note here that the Utah
Supreme Court has left open the possibility that there may be
circumstances in which an “executory contract”—i.e., a “contract
that contemplates that the performance of a contractual duty is to
occur in the future”—“may subvert a subsequent purchaser’s
claim to having purchased the property in good faith.” Haik v.
Sandy City, 2011 UT 26, ¶¶ 19, 22, 254 P.3d 171.

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Harman v. 105 Partners

74, ¶ 23 (emphasis added, quotation otherwise simplified); see also
Haik, 2011 UT 26, ¶ 13 (“Under Utah’s Recording Act . . . , a
subsequent purchaser for value prevails over a previous
purchaser if the subsequent purchaser (1) takes title in good faith
and (2) records before the previous purchaser.”).

¶55 In Young Resources Limited Partnership v. Promontory Landfill
LLC, 2018 UT App 99, ¶ 23, 427 P.3d 457, we reiterated and
applied the rule that a subsequent purchaser is one who has
actually received title to the property in question. There, an entity
called PPLR was formed for the purpose of developing a landfill.
Id. ¶ 2. One of its founding members, Young Resources Limited
Partnership (Young Resources), conveyed property to PPLR. See
id. ¶¶ 4–5. In 2004, the manager of PPLR transferred that property
to another entity (referred to as “Promontory Landfill”) without
the approval of PPLR’s members and without attaching certain
conditions that were arguably required by PPLR’s operating
agreement. See id. ¶ 5. In 2016, Young Resources filed a lawsuit
claiming that the transfer from PPLR to Promontory Landfill was
invalid. See id. ¶ 6. One of its claims asserted that, under Utah
Code section 57-3-103, Promontory Landfill was not a bona fide
purchaser. See id. ¶ 23. The district court dismissed this claim on
statute of limitations grounds, and we affirmed. See id. ¶¶ 7, 23–
34.

¶56 In doing so, we first considered the question of when the
cause of action under section 57-3-103 accrued. See id. ¶ 23. We
held that the “last event necessary to complete this cause of action
was deeding the [property] from PPLR to Promontory Landfill”
without the necessary conditions, and we then held that “[a]t that
point, the issue of whether Young Resources’ unrecorded rights
were extinguished by the sale to a bona fide purchaser was ripe
for adjudication.” Id. ¶ 23 (emphasis added). We further held that
“[o]nce PPLR conveyed the property to Promontory Landfill”
without the conditions, “an actual clash of the parties’ legal rights
existed that could be resolved” in a suit under section 57-3-103. Id.

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Harman v. 105 Partners

In other words, Young Resources “could have brought and
prosecuted this claim as soon as the allegedly null and void
transfer occurred.” Id. ¶ 24 (emphasis added). And because that
transfer had occurred in 2004, the suit that was filed in 2016 was
untimely. See id. ¶¶ 20–34.

¶57 Consistent with the language cited above and our
application of it in Young Resources, other Utah cases that have
interpreted Utah’s Recording Act have commonly involved
competing parties who had each received a deed or title to the
property in question. See, e.g., Insight Assets, Inc. v. Farias, 2013 UT
47, ¶¶ 1, 15–16, 321 P.3d 1021 (assessing the priority of two
executed mortgages); Salt Lake County v. Metro West Ready Mix,
Inc., 2004 UT 23, ¶¶ 2–3, 12–19, 89 P.3d 155 (interpreting the
recording statute where one party had an unrecorded deed and
the other a quitclaim deed); Ault v. Holden, 2002 UT 33, ¶¶ 2, 32,
44 P.3d 781 (considering a claim under the recording statute
between two parties who each had a deed to the property); Morris,
2018 UT App 7, ¶¶ 2–3, 28–38 (determining priority between two
entities with competing trust deed assignments); Sterling
Fiduciaries LLC v. JPMorgan Chase Bank, 2016 UT App 107, ¶¶ 2–6,
20, 372 P.3d 741 (assessing the competing interests of the property
owner and the owner of a note attached to the property).

¶58 Here, however, Harman never received a deed to the
Property, so he has not “take[n] title to the property,” Pioneer
Builders Co. of Nevada, 2012 UT 74, ¶ 23 (quotation simplified),
much less done so in good faith. Moreover, as explained above,
Harman also has not completed the terms of his own contract—
i.e., he has not tendered the $500,000 as required by the REPC, nor
has any court held that he’s entitled to specific performance of it.
As a result, on this record and under the current procedural
posture, Harman has no “legal rights” to the Property, so his
assertion that he should be regarded as a “bona fide purchaser”
of the Property for purposes of Utah’s Recording Act is not “ripe
for adjudication.” Young Res. Ltd. P’ship, 2018 UT App 99, ¶ 23.

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Harman v. 105 Partners

For this reason, we see no basis for reversing the district court’s
dismissal of his claim under Utah’s Recording Act. 15

C. Quiet Title

¶59 Finally, the district court dismissed Harman’s separate
claim to quiet title.

¶60 “A quiet title claim . . . is one to quiet an existing title
against an adverse or hostile claim of another. It is not an action
brought to establish title. Consequently, a quiet title claim fails if
the plaintiff cannot establish valid title or some other valid and
existing property right.” WDIS, LLC v. Hi-Country Estates
Homeowners Ass’n, 2019 UT 45, ¶ 42, 449 P.3d 171 (quotation
simplified). “Generally, to succeed in an action to quiet title to real
estate, a plaintiff must prevail on the strength” of the plaintiff’s
“own claim to title and not on the weakness of a defendant’s title
or even its total lack of title.” Thatcher v. Lang, 2020 UT App 38,
¶ 26, 462 P.3d 397 (quotation simplified).

¶61 Above, we reversed the district court’s dismissal of
Harman’s specific performance claim. Depending on the outcome
of that claim, Harman may be entitled to quiet title as well. As a
result, we also reverse the dismissal of Harman’s quiet title
claim. 16

15. Under this same analysis, however, if Harman does obtain title
to the Property in the future (such as through further litigation),
he may yet have a claim under Utah’s Recording Act that would
at that point be ripe for litigation.

16. At the close of the case, the district court awarded attorney fees
to both 105 Partners and the Trust Defendants. Those awards
were based on the court’s conclusion that 105 Partners and the
(continued…)

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Harman v. 105 Partners

CONCLUSION

¶62 Because Harman could still obtain specific performance of
his contract to purchase the Property, his claims were not mooted
by the demolition of the buildings during the pendency of this
appeal. Turning to the merits, we affirm the district court’s
dismissal of the Partnership Claims based on Harman’s lack of
standing. On the Ownership Claims, we affirm the dismissal of
Harman’s claim under Utah’s Recording Act, given that the claim
is not yet ripe. But we reverse the district court’s dismissal of
Harman’s request for specific performance based on the REPC,
and we likewise reverse its dismissal of the quiet title action.
Finally, because we have reversed the dismissal of the specific
performance and quiet title claims, we vacate the district court’s
award of attorney fees. We accordingly remand for further
proceedings consistent with this opinion. 17

Trust Defendants were the prevailing parties; that conclusion, in
turn, was partially based on their successes in obtaining the
dismissal of the specific performance and quiet title claims.
Because we have now reversed those dismissals, we likewise
vacate the court’s decision to award attorney fees, though we
leave open the possibility that the court may reconsider the
question later if any party requests attorney fees after the case has
concluded.

17. As a final matter, we think it appropriate to note that while
Harman has prevailed on some of the issues in this appeal, his
successes came despite, not because of, the overly aggressive tone
used throughout much of his appellate briefing.
Attorneys have a duty to “act with reasonable diligence”
in representing a client, Utah R. Prof’l Conduct 1.3, and that duty
is often described as one of “zealous advocacy,” see Utah R. Prof’l
Conduct, Preamble. But zealous advocacy must still be
(continued…)

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2024 UT App 109

professional advocacy. The standards of civility set forth by our
supreme court establish as much. As explained there, while
“fulfilling [the] duty to represent a client vigorously,” a lawyer
must still avoid conduct that may be characterized as “uncivil [or]
abrasive.” Utah R. Sup. Ct. 14-301, Preamble.
The language used by Harman’s counsel in his briefs
repeatedly crossed the line from stridency to incivility. Harman’s
counsel characterized arguments that had been made by his
opponents as “nonsense,” “silly and outrageous,” “totally, totally,
totally absurd,” and “ludicrous,” and he also claimed that
opposing counsel had “breathtakingly [and] completely
ignore[d]” controlling precedent. Harman’s counsel directed
similar hostility at the district court. At one point, he stated that
“with full due respect for all courts of this state, still, for the
n’teenth time, the lower court has gone again directly against the
plain language of appellate case law.” At another, he claimed that
it was “absolutely unbelievable and incredible that a lower court
could ever, ever, ever make” a ruling such as the one he was
challenging.
We don’t intend to become the word police for the bar. But
even so, we stress that language such as the above has no place in
litigation. Harman’s counsel could have zealously challenged
each of the district court’s rulings without being unprofessional.
Indeed, from a pure advocacy standpoint, he would have been
better served had he done so. As recognized by our supreme
court, intemperate advocacy “is usually highly
counterproductive” and can “distract[] the decision-maker from
the merits of the case.” Peters v. Pine Meadow Ranch Home Ass’n,
2007 UT 2, ¶ 21, 151 P.3d 962. Such advocacy is the rhetorical
equivalent of turning on a cell phone in a crowded movie theater,
with the effect in this context being to pull the judge’s mind away
from the merits of counsel’s arguments and put it instead on
counsel’s professionalism and overheated word choices. If an
attorney’s goal is truly to persuade the court (as opposed to
simply scoring rhetorical points), advocacy of this sort should be
avoided.