Lavender v. FCOI Preserve

2025 UT App 47
THE UTAH C OURT OF APPEALS
J AMES W. LAVENDER , J ULIE J. LAVENDER , AND LEIGH MEIER ,
Appellants,
v.
FCOI P RESERVE , LLC,
Appellee.
Opinion
No. 20230390-CA
Filed April 3, 2025
Third District Court, Silver Summit Department
The Honorable Richard E. Mrazik
No. 110500404
Trent J. Waddoups, Attorney for Appellants
Nicholas J. Reisch, Brian W. Zimmerman, Jacob A.
Green, and Adam D. Wahlquist,
Attorneys for Appellee
J UDGE R YAN D. T ENNEY authored this Opinion, in which
J UDGES G REGORY K. ORME and A MY J. OLIVER concurred.
TENNEY, Judge:
¶1 	James 	Lavender, 	Julie 	Lavender, 	and 	Leigh 	Meier
(collectively, Lavender) sued Fortress Credit Opportunities I
(FCOI), requesting a declaratory judgment that the trust deeds
that Lavender had recorded on a property were superior to a trust
deed that FCOI had recorded earlier on the same property. FCOI
later brought a counterclaim against Lavender alleging slander of
title.1
1. The Lavenders and Meier invested in the properties at issue
together, 	have 	been 	represented 	by 	the 	same 	attorneys
(continued…)

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20230390-CA 	2 	2025 UT App 47
¶2 	The case was litigated for over a decade before reaching
trial, and during that period, the district court decided an array of
motions. These included a decision granting FCOI’s motion for
summary judgment against Lavender on Lavender’s declaratory
judgment 	claim, 	a 	decision 	allowing 	an 	entity 	called 	FCOI
Preserve to substitute in for FCOI as the counterclaim plaintiff,
and various decisions allowing FCOI Preserve to seek certain
kinds of damages. At the close of trial, a jury determined that
Lavender was liable for slander of title and awarded damages.
¶3 	Lavender now appeals, challenging the district court’s
decisions regarding these and other motions. For the reasons set
forth below, we see no reversible error. We therefore affirm.
BACKGROUND2
Lavender Provides Money to Developer
¶4 	The Preserve is a large residential land development in
Park City that includes approximately 1,500 acres of land. When
a developer (Developer) set out to develop the Preserve in 2000,
he divided and organized it into four sections—Preserve I, II, III,
throughout the pendency of this case, and have litigated it
together. For ease of reference, we’ll refer to the Lavender-side
parties as the singular “Lavender” throughout this opinion. And
with James Lavender seemingly functioning as the lead (and
certainly the first-named) plaintiff, we’ll use “singular, masculine
pronouns for convenience.” See Bodell Constr. Co. v. First Interstate
Fin. LLC, 2018 UT App 199, ¶ 1 n.1, 437 P.3d 483.
2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Suhail, 2023 UT App 15, n.1, 525 P.3d 550 (quotation simplified),
cert. denied, 531 P.3d 730 (Utah 2023).

Lavender v. FCOI Preserve
20230390-CA 	3 	2025 UT App 47
and IV. To finance various phases of the Preserve, Developer
utilized personal capital, partnership investments, and bank
financing.
¶5 	In 	2004, 	Lavender 	purchased 	a 	lot 	in 	Preserve 	I 	for
$540,000, and less than a year later, Lavender sold that lot for
around $1.1 million. Lavender decided to reinvest those proceeds
into 	the 	development 	of 	Preserve 	III. 	Lavender 	and 	others
ultimately invested $4 million into Preserve III.
¶6 	Lavender 	and 	Developer 	agreed 	that 	Lavender 	was
contributing this money as an investment. As part of the related
transactions, 	for 	example, 	Lavender 	signed 	various 	written
agreements that stated Lavender was purchasing “ownership
[i]nterest[s]” in the company that had been set up to develop
Preserve III. In a similar vein, other documents that Lavender
signed stated that he would receive “equity” in the development
rights for the properties that were part of Preserve III.
¶7 	In late 2005, and in an apparent effort to reduce Lavender’s
tax burden, Lavender and Developer agreed that at least part of
the investment could be retroactively structured as a “1031
exchange.”3 To this end, Developer agreed to provide Lavender
with notes and trust deeds for 10 of the 31 properties involved in
Preserve III, and these documents represented that at least some
portions of the investment were actually loans that would have to
be repaid (as opposed to investments made in exchange for
equity). But, as was alleged by FCOI in the subsequent litigation,
3. As we’ve recently explained, a 1031 exchange is a type of “real
estate transaction in which a taxpayer sells real estate . . . and uses
the funds to acquire replacement property,” and the “benefit of a
1031 exchange is that it allows the capital gains taxes to be
deferred.” Mortensen v. Mortensen, 2025 UT App 8, ¶ 12 n.4, 564
P.3d 508 (quotation simplified), petition for cert. filed, Feb. 24, 2025
(No. 20250197).

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20230390-CA 	4 	2025 UT App 47
Developer did not actually “intend that the trust deeds be
recorded,” nor did Developer intend for Lavender to ever be
considered 	a 	lender. 	Instead, 	the 	understanding 	was 	that
Lavender would still be what he was all along—a partner who had
purchased an interest in the development (as opposed to a lender
who had made a loan and would receive his principal plus
interest back in return). Thus, FCOI later alleged that the trust
deeds and notes that were created in late 2005 were “a subterfuge,
only to be used if the IRS came calling.” And consistent with this
allegation, FCOI later pointed out the trust deeds and notes were
not drafted and finalized until more than a month after the
transaction—namely, 	the 	transaction 	in 	which 	Lavender
provided funds to Developer—had closed, those documents set
forth no definitive date for repayment (which, FCOI alleged,
would be an oddity if Lavender had originally intended for them
to be collectible), and were not recorded until nearly two years
after the transaction.4
After Fortress Loans Money to Developer, Lavender Records His Trust
Deeds
¶8 	In 	early 	2007, 	the 	Preserve’s 	original 	lender 	advised
Developer that it would not renew its development loan on the
Preserve. Developer accordingly approached Fortress Investment
Corp., a New York private equity fund, which agreed to refinance
the development of the Preserve (thereby satisfying the original
loan and making Fortress Credit Corp. (Fortress) the lender on the
project). As conditions of its agreement, Fortress obtained “a first
lien position” and an agreement that it would receive payment of
“100% of net sales proceeds until its loan was fully repaid.” On
August 10, 2007, Lavender quitclaimed his interest in the Preserve
III property to an entity called the Preserve Development (a
4. As further explained below, infra ¶ 35, the district court later
concluded that the jury’s verdict implicitly (if not explicitly)
accepted this view regarding the true nature of these documents.

Lavender v. FCOI Preserve
20230390-CA 	5 	2025 UT App 47
master partnership which seems to have been controlled by or
affiliated with Developer) so that title to the property vested in
the Preserve Development alone. On August 13, 2007, Fortress
funded a $25,580,000 loan to the Preserve Development.
¶9 	Fortress’s loan was secured by a construction trust deed.
This construction trust deed was recorded on August 14, 2007.
¶10 	On September 19, 2007, after Fortress completed its loan
and recorded its trust deed, Lavender recorded the trust deeds
that he had previously obtained from Developer. Lavender’s trust
deeds directly encumbered only 10 of the 31 lots in Preserve III.
Fortress had been previously unaware that these trust deeds
existed.
Fortress’s Pattern of Intracorporate Assignments
¶11 	In the ensuing years, Fortress’s trust deed exchanged
hands several times. As will be discussed in more detail below,
these 	assignments 	ultimately 	drove 	much 	of 	the 	ensuing
litigation. For the reader’s convenience, we’ll recount all the
various assignments together here.
• 	On August 13, 2007, the same day the loan funded, Fortress
assigned 	the 	trust 	deed 	to 	Drawbridge 	Special
Opportunities Fund LP (Drawbridge).
• 	A little over a month later, Drawbridge assigned that trust
deed to FCOI.
• 	FCOI retained the trust deed for the next several years. In
May 2011, FCOI obtained title to the lots in Preserve III
after foreclosing on the Fortress loan (an event that we’ll
describe shortly).
• 	In early 2015, FCOI created FCOI Preserve as an entity that
would hold and then sell the properties that FCOI had now

Lavender v. FCOI Preserve
20230390-CA 	6 	2025 UT App 47
obtained. In March 2015, FCOI assigned the trust deed to
FCOI Preserve.
Of 	note, 	no 	consideration 	was 	exchanged 	for 	any 	of 	these
transfers, and a Fortress employee later described them in a sworn
statement 	as 	“intracompany 	transfers” 	“from 	one 	Fortress
controlled entity to another.”
After FCOI Forecloses on Its Loan, Lavender Asserts Priority over
Fortress
¶12 	In May 2011, Developer defaulted on its loan obligations to
Fortress. At that time, Fortress’s original trust deed on the
properties was assigned to FCOI. Pursuant to its rights under the
trust deed, FCOI initiated foreclosure proceedings.
¶13 	After Lavender learned of the pending foreclosure action,
his 	counsel 	sent 	a 	demand 	letter 	to 	Fortress 	claiming 	that
Lavender had a security interest in the Preserve property. In
support, he pointed to the trust deeds that Lavender had obtained
from Developer (which, again, he had belatedly recorded after
Fortress had recorded its own trust deed on the same properties).
Relying on his own trust deed, Lavender now insisted that
Fortress was on inquiry notice of his interest in the properties and
that he had “a first priority lien” that would not be “terminate[d]”
by Fortress’s foreclosure.
Lavender’s Complaint and FCOI’s Counterclaims
¶14 	In 	May 	2011, 	Lavender 	sued 	Fortress, 	requesting 	a
declaratory judgment that his trust deeds were superior to the
interests claimed by Fortress, and he filed notices of lis pendens
with the county recorder. Later that year, Lavender filed an
amended complaint that now listed Drawbridge as the defendant
(given that, at the time, it was Drawbridge that held the trust
deed). In this amended complaint, Lavender affirmatively agreed
that Fortress had “assigned its interest” in its trust deed to

Lavender v. FCOI Preserve
20230390-CA 	7 	2025 UT App 47
Drawbridge and that Drawbridge was “a subsidiary of Fortress.”
A month after filing the amended complaint, Lavender filed a
second amended complaint that listed FCOI as the defendant,
asserting that Drawbridge had assigned its interest to FCOI and
that FCOI was a “subsidiar[y] of Fortress.”
¶15 	In 	2014, 	FCOI 	filed 	counterclaims 	against 	Lavender,
alleging 	slander 	of 	title 	and 	intentional 	interference 	with
economic relations. With respect to the slander of title claim, FCOI
asserted that by “improperly recording” his trust deeds, Lavender
“published a slanderous and disparaging statement,” that the
trust deeds were “false and of no value,” that this was done “to
impair [FCOI’s] property rights,” and that Lavender “knew or
should have reasonably foreseen might result in damage to”
FCOI. With respect to the intentional interference with economic
relations 	claim, 	FCOI 	asserted 	that 	Lavender 	“intentionally
interfered with [FCOI’s] ability to market and [sell] its property”
with “an improper purpose or by improper means,” which caused
“damage[s]” and “irreparable harm” to FCOI. FCOI sought
“actual or special damages” for “[un]complete[d] land sales,” as
well as “an order for temporary, preliminary, and permanent
injunctive relief.”
Relevant Pretrial Motions
¶16 	The case was then litigated for many years. During that
time, the court ruled on a number of motions. The motions
relevant to the issues that we decide in this appeal include the
following.
¶17 	In July 2017, FCOI filed a motion for summary judgment
on Lavender’s declaratory judgment claim, asserting that its trust
deed had priority over Lavender’s because FCOI was “a bona fide
purchaser for value” under the Utah Recording Act. Lavender
opposed the motion, arguing that “a legitimate question of fact
exist[ed] whether [FCOI] was a bona fide purchaser without
constructive notice.” The district court granted FCOI’s motion,

Lavender v. FCOI Preserve
20230390-CA 	8 	2025 UT App 47
ruling that “Fortress was a bona fide purchaser for value and its
trust deed[] ha[s] priority over [Lavender’s] trust deeds.” The
court accordingly dismissed Lavender’s declaratory judgment
claim.
¶18 	In 	November 	2019, 	while 	litigation 	on 	FCOI’s
counterclaims was still underway, FCOI filed a motion under
rules 17 and 25 of the Utah Rules of Civil Procedure, requesting
leave to substitute FCOI Preserve as “the proper real party in
interest to pursue the [counterclaims] against Lavender.” In
support of this motion, FCOI attached a sworn declaration from a
Fortress employee explaining that, in accordance with FCOI’s
“general practices,” FCOI had deeded the properties to FCOI
Preserve in 2015, so “[a]ll sales of the properties in [t]he Preserve
. . . were made in the name of FCOI Preserve.”5
¶19 	Lavender opposed the motion to substitute, arguing that
“Fortress is judicially estopped from seeking substitution because
it has previously requested and received judicial relief base[d] on
its representation that Fortress is the actual party in interest.”
Notably, Lavender did not also argue that substitution would be
improper under the terms of rules 17 or 25 themselves. The district
court granted FCOI’s motion to substitute, holding “that the
Motion 	and 	supporting 	declaration 	of 	[Fortress’s 	employee]
provide sufficient support to grant the relief requested.” In its
order, the court explicitly noted that FCOI sought substitution
“under Rules 25 and 17 of the Utah Rules of Civil Procedure.”
¶20 	In 	March 	2020, 	with 	the 	assistance 	of 	new 	counsel,
Lavender 	filed 	a 	motion 	for 	summary 	judgment 	on 	the
counterclaims, arguing that FCOI Preserve lacked standing and
that the district court therefore lacked jurisdiction. In Lavender’s
5. The record indicates that by March 2017, all 31 lots in Preserve
III, including both the 10 lots encumbered by Lavender and the 21
other lots too, had been sold.

Lavender v. FCOI Preserve
20230390-CA 	9 	2025 UT App 47
view, 	FCOI 	Preserve 	couldn’t 	show 	injury, 	causation, 	or
redressability, because, at the time that Lavender’s trust deeds
were recorded (which, again, was the impetus for FCOI’s slander
of title counterclaim), it was Drawbridge, not FCOI Preserve, that
owned the lots in Preserve III. In other words, Lavender asserted
that the only entity that had standing to pursue either of the
claims at issue in the counterclaim was the entity that owned the
lots at the time that Lavender recorded his trust deeds.
¶21 	The 	district 	court 	denied 	the 	request 	for 	summary
judgment as to the slander of title claim. In the district court’s
view, FCOI Preserve had “alleged damages and has standing to
pursue its slander of title claim” because the cause of action was
available “to property owners categorically rather than to a
specific 	property 	owner.” 	But 	the 	district 	court 	granted
Lavender’s request for summary judgment on the intentional
interference with economic relations claim, concluding that this
claim “require[s] a showing of intent to harm by the offending
party, and the intent to harm must be specific to the party
asserting the claim.” The district court concluded that Lavender
could not have intended to harm FCOI Preserve “because it did
not yet exist at the time the trust deeds were filed.”
¶22 	In March 2020, Lavender also filed a motion pursuant to
rule 54(b), asking the court to set aside its earlier ruling granting
FCOI’s 	motion 	for 	summary 	judgment 	on 	the 	declaratory
judgment claim. In this motion, Lavender argued, in relevant part,
that neither Fortress nor FCOI Preserve qualified as bona fide
purchasers. The district court denied the rule 54(b) motion on
several grounds, including that Lavender had identified no “clear
error of law” and that any entity that acquired title through
Fortress (which was, as the court had previously ruled, a bona fide
purchaser for value) was likewise protected under what the court
referred to as “the shelter rule.”

Lavender v. FCOI Preserve
20230390-CA 	10 	2025 UT App 47
¶23 	As the case got closer to trial, Lavender filed various
motions in limine. In one of them, Lavender asked the court to
exclude evidence of what Lavender referred to as “stigma”
damages to 21 lots that were within Preserve III but were not
encumbered by Lavender’s trust deeds. The district court denied
this 	motion, 	ruling 	that 	the 	Utah 	Code 	places 	a 	“narrow
definition” on the term “stigma” which “does not include clouds
on title.”
¶24 	In another motion in limine, Lavender asked the court to
rule that his act of recording his trust deeds was protected by both
an absolute privilege (namely, the judicial proceeding privilege)
and a conditional privilege (namely, what Lavender referred to as
the “rival claimant” privilege). The district court denied this
motion, ruling, in part, that since “a finding of malice would
vitiate any conditional privilege defense that might apply,” “no
separate instruction regarding conditional privilege is necessary.”
¶25 	In July 2020, Lavender filed another motion for summary
judgment on FCOI Preserve’s slander of title claim, this time
arguing that the claim was time barred under “the applicable
statute of limitations.” In Lavender’s view, the cause of action
accrued on the date on which the property in question was sold—
which was September 21, 2007 (i.e., the day that Drawbridge
assigned its interest to FCOI). Lavender then identified two
different statutes of limitation that “might, arguably, apply”—a
one-year limitation under Utah Code section 78B-2-302(4) and a
three-year 	limitation 	under 	Utah 	Code 	section 	78B-2-305(1).
Lavender 	thus 	argued 	that, 	because 	FCOI 	did 	not 	file 	its
counterclaim 	until 	January 	24, 	2014, 	the 	counterclaim 	was
untimely under either statute of limitations, and Lavender further
argued that the counterclaim did not “relate back to the date the
complaint was filed.”
¶26 	The district court denied the motion. In the court’s view,
the three-year statute of limitations applied. From this, the court

Lavender v. FCOI Preserve
20230390-CA 	11 	2025 UT App 47
then ruled that since “FCOI presented evidence that the first sale
by FCOI that caused special damages to FCOI occurred in 2012,”
and since “FCOI asserted its counterclaim in early 2014,” the
motion should be denied.
¶27 	In May 2021, Lavender filed a motion to dismiss the
slander of title claim, asserting that because FCOI Preserve was a
“subsequent purchaser” of the property, Lavender “owed no
duty” to FCOI Preserve and the slander of title claim failed “as a
matter of law.” The district court denied the motion, ruling that
Lavender’s argument was “incorrect under Utah law.”
¶28 	In 	the 	same 	ruling, 	the 	district 	court 	indicated 	that
although Lavender’s arguments were “not entirely clear from the
initial 	motion,” 	it 	understood—through 	a 	combination 	of
arguments made in Lavender’s reply memorandum and at oral
argument—that Lavender was also arguing that FCOI Preserve’s
slander of title claim should be dismissed because it “lacks
evidence of special damages or failed to disclose evidence of
special damages.” The district court denied the apparent request
for dismissal on this additional ground as well, concluding that it
“previously ruled that such evidence was sufficient to proceed to
trial and was sufficiently and timely disclosed.”
¶29 	In 	February 	2022, 	Lavender 	filed 	another 	motion 	to
dismiss, this time arguing that the counterclaim failed to comply
with the specificity requirements for pleading special damages set
forth in rule 9 of the Utah Rules of Civil Procedure. Lavender
additionally argued that FCOI Preserve should be limited to the
damages pleaded in the 2014 counterclaim—which, again, had
initially been based on uncompleted sales (as opposed to reduced
sale prices). FCOI Preserve opposed the motion, contending that
it had properly pleaded special damages, and alternatively,
requesting leave to amend its counterclaim. The district court
denied Lavender’s motion to dismiss and granted FCOI Preserve
leave to file an amended counterclaim. The court found “that the

Lavender v. FCOI Preserve
20230390-CA 	12 	2025 UT App 47
amendment is justified by a good faith effort to have the operative
pleading match the damages model that has been disclosed and
litigated 	in 	this 	case 	for 	years.” 	And 	it 	found 	that 	such
amendment would “not cause any unfair prejudice to” Lavender.
¶30 	FCOI Preserve accordingly filed an amended counterclaim
in March 2022. The amended counterclaim stated the same claim
for relief for slander of title that had originally been pleaded. The
amended 	counterclaim 	clarified 	that 	FCOI 	Preserve 	had
“incurred actual or special damages in the form of reduced sales
prices for lots as a result of the clouds on title created by” the filing
of 	Lavender’s 	trust 	deeds. 	It 	specifically 	listed 	the 	parcel
designations of 31 lots “which suffered reduced sales prices,” and
alleged that FCOI Preserve “incurred $3,941,760 in damages due
to the diminished . . . marketability and value of its encumbered
properties and neighboring properties.”6
¶31 	In September 2022, Lavender filed yet another motion for
summary judgment, now arguing that the cause of action for
slander of title asserted in FCOI Preserve’s amended counterclaim
was “barred by the applicable statute of limitations.” Lavender
claimed that the “cause[] of action accrued no later than 2017” (the
date that the last Preserve property was sold), and that the “3-year
time limit of § 78B-2-305(1) ran no later than 2020.” Lavender then
argued 	that 	the 	“new 	cause[] 	of 	action” 	in 	the 	amended
counterclaim could not relate back to the cause of action asserted
in the original counterclaim because this cause of action asserted,
“for the first time, allegations about injuries purportedly suffered
by [FCOI Preserve] in its own behalf.” The district court later
6. The amended counterclaim also re-pleaded the cause of action
for intentional interference with economic relations, even though
the court had previously granted summary judgment as to that
cause of action. That cause of action was not submitted to the jury,
however, and the parties have raised no arguments on appeal
relating to it.

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20230390-CA 	13 	2025 UT App 47
denied the motion, holding “as a matter of law that [FCOI
Preserve’s] amended counterclaim which asserts a single cause of
action for slander of title relates back to the date of filing of [its]
original counterclaim under Rule 15(c)(2) as interpreted and
applied and explained in” Noor v. State, 2019 UT 3, ¶ 47, 435 P.3d
221.
Trial and Verdict
¶32 	The case proceeded to a four-day jury trial in November
2022.
¶33 	At the close of FCOI’s case, Lavender filed a motion for
directed verdict. There, Lavender asked the district court to
dismiss FCOI Preserve’s claim for slander of title because “no
evidence exist[ed] to support” the claim and “no reasonable mind
could differ on the facts.” Lavender argued that there was “no
evidence 	that 	the 	Trust 	Deeds 	are 	false” 	and 	no 	evidence
demonstrating “malice in the filing of the Trust Deeds.” And with
respect to the 21 unencumbered lots, Lavender further argued
that there was “no specific monetary loss or special damages, only
general damages,” which Lavender understood to be “stigma
damages” in this case. The court deferred ruling on the motion
until FCOI Preserve had a chance to respond. The court later
denied the motion.
¶34 	After the case closed and was submitted, the jury returned
a verdict in FCOI Preserve’s favor on its slander of title claim.
Through a special verdict form, the jury then awarded damages
on 	a 	lot-by-lot 	basis—including 	damages 	based 	on 	the 	21
unencumbered lots. In total, the jury awarded FCOI Preserve
$1,416,730 in damages. The district court later issued a final

Lavender v. FCOI Preserve
20230390-CA 	14 	2025 UT App 47
judgment that awarded an additional $677,419.90 in prejudgment
interest.7
¶35 	A month after trial, Lavender filed a motion for judgment
as a matter of law. Lavender argued that the jury’s verdict on the
slander of title claim should be vacated because “no evidence
exist[ed] to support” the claim and “no reasonable mind could
differ on the facts.” The district court denied the motion, ruling
that there was evidence from which the jury could find in favor of
FCOI Preserve on all four elements of the claim. Specifically, the
court pointed to evidence that Lavender recorded trust deeds
against 10 of FCOI Preserve’s lots, “evidence from which [the
jury] could draw a reasonable inference that the trust deeds were
part of a sham loan transaction,” evidence “demonstrating that
Lavender . . . knew the trust deeds and associated loans were not
real transactions,” and “evidence from which a reasonable jury
could find that FCOI [Preserve] suffered special damages in the
form of reduced sales proceeds.”
ISSUES AND STANDARDS OF REVIEW
¶36 	On appeal, Lavender first claims that the district court
erred when it granted FCOI’s motion to substitute FCOI Preserve
as the counterclaim plaintiff. “A district court’s substitution
ruling is a discretionary one that we review for an abuse of
7. As noted above, Leigh Meier was a named defendant in the
counterclaim. In its verdict, the jury apportioned fault equally
between the Lavenders and Meier. As a result, in the final
judgment, the district court ordered (1) the Lavenders and (2)
Meier to each pay $708,365 relating to the jury’s verdict on the
slander of title claim and $338,709.95 relating to the award of
prejudgment interest. Again, the Lavenders and Meier have
proceeded together, and the apportionment of fault between them
has no bearing on any of the issues raised on appeal.

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20230390-CA 	15 	2025 UT App 47
discretion.” Bradburn v. Alarm Prot. Tech., LLC, 2019 UT 33, ¶ 8, 449
P.3d 20.
¶37 	Second, Lavender challenges the district court’s denial of
the motion to dismiss that he filed in May 2021. “Because a trial
court’s grant or denial of a motion to dismiss is a question of law,
the standard of review is correctness. This standard of review
grants no deference to the decision of the district court.” Moulding
Invs., LLC v. Box Elder County, 2024 UT App 23, ¶ 21, 545 P.3d 781
(quotation simplified).
¶38 	Third, Lavender claims that the district court erred in
ruling that FCOI Preserve qualified for protection as a bona fide
purchaser under the shelter rule. The district court made this
ruling when it denied Lavender’s rule 54(b) motion, which asked
the court to set aside an earlier ruling granting FCOI’s motion for
summary judgment. “We review a district court’s refusal to
reconsider a nonfinal summary judgment order only for an abuse
of discretion.” Chilton v. Young, 2009 UT App 265, ¶ 4, 220 P.3d
171; see also IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT
73, ¶ 27, 196 P.3d 588 (“[R]econsideration of an issue before a final
judgment is within the sound discretion of the district court.”).
¶39 	Fourth, Lavender claims that the district court erred in
ruling that FCOI Preserve’s “amended counterclaim related back
to [the] original counterclaim filed by” FCOI as part of its ruling
on 	the 	statute 	of 	limitations 	issue. 	When 	a 	district 	court
determines that a claim relates back under rule 15, we review that
determination for correctness. See Gary Porter Constr. v. Fox
Constr., Inc., 2004 UT App 354, ¶¶ 29–31, 101 P.3d 371.
¶40 	Fifth, Lavender argues that the district court erred in ruling
that two privileges (the absolute judicial proceeding privilege and
the conditional rival claimant’s privilege) did not apply. “The
existence of a privilege is a question of law for the court, which
we review for correctness, giving no deference to the trial court’s
determination.” Price v. Armour, 949 P.2d 1251, 1254 (Utah 1997).

Lavender v. FCOI Preserve
20230390-CA 	16 	2025 UT App 47
As 	to 	conditional 	privileges 	in 	particular, 	the 	question 	of
“whether a publication is conditionally privileged is a question of
law, unless a genuine factual issue exists regarding whether the
scope of the qualified privilege has been transcended or the
defendant acted with malice.” Wayment v. Clear Channel Broad.,
Inc., 2005 UT 25, ¶ 53, 116 P.3d 271 (quotation simplified); see also
O’Connor 	v. 	Burningham, 	2007 	UT 	58, 	¶ 	38, 	165 	P.3d 	1214
(“Whether a statement is entitled to the protection of a conditional
privilege presents a question of law; whether the holder of the
privilege lost it due to abuse presents a question of fact.”).
¶41 	Sixth, Lavender makes two claims related to damages.
Lavender initially claims that FCOI Preserve failed to sufficiently
plead or prove special damages. As explained below, Lavender
has not sufficiently identified the ruling that he’s now appealing,
so it’s unclear what standard of review should apply. As a result,
we 	ultimately 	disregard 	this 	damages 	claim 	for 	inadequate
briefing. Lavender also claims that the district court erred in
allowing FCOI Preserve to recover damages “as to the 21 stigma
lots.” We understand this to be a challenge to both the denial of
the stigma-related motion in limine, as well as the denial of
Lavender’s mid-trial motion for a directed verdict. With respect
to the motion in limine, Lavender’s argument is legal in nature, so
the court’s ruling is reviewed for correctness. See In re Estate of
Osguthorpe, 2021 UT 23, ¶ 58, 491 P.3d 894. With respect to the
denial of his motion for a directed verdict, we consider whether,
examining all evidence in a light most favorable to the non-
moving party, there was any competent evidence that would
support a verdict in the non-moving party’s favor. See Merino v.
Albertsons, Inc., 1999 UT 14, ¶ 3, 975 P.2d 467.
¶42 	Finally, Lavender claims that the district court erred in
awarding prejudgment interest to FCOI Preserve. “A trial court’s
decision to award prejudgment interest presents a question of law
which we review for correctness.” Encon Utah, LLC v. Fluor Ames
Kraemer, LLC, 2009 UT 7, ¶ 11, 210 P.3d 263 (quotation simplified).

Lavender v. FCOI Preserve
20230390-CA 	17 	2025 UT App 47
ANALYSIS
I. Motion to Substitute
¶43 	At the broadest level, this litigation started with a dispute
about who had the superior security interest in certain Preserve
III properties. On one side of the dispute was Lavender. But
identifying the other side of the dispute was a little more
complicated. 	As 	detailed 	above, 	Fortress 	loaned 	money 	to
Developer and obtained a trust deed. Then, in a series of what it
later alleged were “intracompany transfers,” that trust deed went
from Fortress to Drawbridge in August 2007, from Drawbridge to
FCOI in September 2007, and from FCOI to FCOI Preserve in
March 2015.8
¶44 	This series of assignments impacted this litigation in
numerous ways—including, of note here, the question of who the
Fortress-side party was at various stages of the case. As noted,
Lavender 	initially 	sued 	Fortress, 	only 	to 	then 	amend 	his
complaint to list Drawbridge as the defendant, only to then
amend his complaint again to list FCOI as the defendant. For its
part, it was FCOI that filed the counterclaim against Lavender, but
after FCOI assigned its interest in its trust deed to FCOI Preserve,
FCOI filed a motion to amend, seeking to substitute FCOI
Preserve in as “the proper real party in interest to pursue the
[counterclaims] against Lavender” under rules 17 and 25 of the
Utah Rules of Civil Procedure. Lavender opposed the substitution
motion, but the district court granted it, holding “that the Motion
8. FCOI’s assertion that these were “intracompany transfers” is
consistent with how Lavender has approached the case too. In his
amended 	complaint, 	Lavender 	asserted 	that 	Fortress 	had
“assigned its interest” in its trust deed to Drawbridge and that
Drawbridge was “a subsidiary of Fortress,” and in his second
amended complaint, he asserted that Drawbridge had assigned
its interest to FCOI and that FCOI was a “subsidiar[y] of Fortress.”

Lavender v. FCOI Preserve
20230390-CA 	18 	2025 UT App 47
and supporting declaration of [Fortress’s employee] provide
sufficient support to grant the relief requested.” In its order, the
court explicitly noted that FCOI sought substitution “under Rules
25 and 17 of the Utah Rules of Civil Procedure.”
¶45 	Lavender now challenges that decision on appeal. In his
opening brief, Lavender argued that substitution was improper
under the terms of rule 25 because “the trial court received no
evidence of a ‘transfer of interest’ as required by” that rule. Then,
in his reply brief, Lavender further argued that rule 17 did not
apply because that rule “relates to matters occurring prior to filing
of an action.”9
¶46 	But we decline to address Lavender’s assertions because
they were not preserved below. Under our preservation rules, if a
party “fail[s] to raise an issue at the appropriate time,” the party
“risk[s] losing the opportunity to have the court address that
issue.” Hillam v. Hillam, 2024 UT App 102, ¶ 30, 554 P.3d 1137
(quotation simplified). An issue is properly preserved “when it
has been presented to the district court in such a way that the
court ha[d] an opportunity to rule on it”—i.e., “the issue must be
specifically raised by the party asserting error, in a timely manner,
and must be supported by evidence and relevant legal authority.”
Id. (quotation simplified). By contrast, a party is allowed to
9. With respect to rule 17, he more particularly argued that this
rule “has no application to the facts of this case” because it “relates
to matters occurring prior to filing of an action” and FCOI
Preserve did not have an interest in the properties (or even exist)
in 2014 when the original counterclaim was filed. And with
respect to rule 25, he argued that “[o]ne seeking substitution must
demonstrate that the ‘action’ was transferred from the original
party to the party that wants to take its place under [rule] 25(c)”
and that FCOI Preserve had presented no evidence of such a
transfer.

Lavender v. FCOI Preserve
20230390-CA 	19 	2025 UT App 47
present “new arguments” on appeal, even if those arguments
were not advanced below. Id. (quotation simplified).
¶47 	The distinction between issues and arguments turns on
what, exactly, is being presented. When a party advances “an
entirely distinct legal theory,” our appellate courts treat that
theory 	as 	a 	new 	issue. 	Id. 	(quotation 	simplified). 	And 	our
appellate courts will “reject as unpreserved a legal theory entirely
distinct from the legal theory the appellant raised to the district
court.” Wittingham, LLC v. TNE Ltd. P’ship, 2024 UT 23, ¶ 53, 554
P.3d 924 (quotation simplified). But if a party instead simply
provides “new authority or cases supporting an issue,” that
constitutes a new argument, and new arguments are not subject
to the preservation rule. Id. (quotation simplified).10
10. The preservation rule is not an exercise in formalistic box-
checking. To the contrary, it promotes judicial economy by
ensuring that the district court is given the “opportunity to
address the claimed error, and if appropriate, correct it,” thereby
“avoid[ing] 	unnecessary 	appeals 	and 	retrials.” 	Patterson 	v.
Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828 (quotation simplified).
For somewhat similar reasons, it also promotes fairness between
the parties. After all, “if no objection was made in the trial court,
the adverse party would not be compelled to overcome the
objection 	by 	presenting 	a 	rebuttal, 	providing 	an 	alternative
argument, establishing an alternative defense, or introducing new
evidence in an effort to overcome such an objection.” Kelly v.
Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 32, 507 P.3d
357 (quotation simplified). And even if a party had no valid
defense to that issue, the party would then in theory have been
presented with entirely different sets of litigation choices and
incentives. By waiting until an appeal to raise an issue, an
appellant thus deprives the appellee of making informed choices
with the benefit of the district court’s ruling.
(continued…)

Lavender v. FCOI Preserve
20230390-CA 	20 	2025 UT App 47
¶48 	Here, Lavender advances fairly intricate arguments about
why, in his view, substitution was improper under both rule 17
and rule 25. These arguments depend not only on the language of
those rules, but also on a particular distinction drawn by our
supreme court in Trapnell & Associates, LLC v. Legacy Resorts, LLC,
2020 UT 44, 469 P.3d 989.
¶49 	But 	when 	Lavender 	opposed 	the 	substitution 	motion
below, he didn’t cite either rule, much less claim, as he does on
appeal, 	that 	this 	requested 	substitution 	would 	violate 	the
requirements of these rules. Instead, he opposed the request
solely on judicial estoppel grounds. Judicial estoppel doesn’t find
its footing in rule 17 or rule 25, however, but is instead a common
law doctrine under which “a person may not, to the prejudice of
another person, deny any position taken in a prior judicial
proceeding between the same persons or their privies involving
the same subject matter, if such prior position was successfully
maintained.” Café Rio, Inc. v. Larkin-Gifford-Overton, LLC, 2009 UT
27, ¶ 42, 207 P.3d 1235 (quotation simplified).
¶50 	“Although formal citation to a particular statute”—or, in
this case, a particular rule—“might not always be required to
preserve an issue, it would be the usual and presumptive starting
place if an assertion is predicated on” that rule. Hillam, 2024 UT
Here, because Lavender did not present his claims relating
to the alleged inapplicability of rules 17 and 25 below, the district
court had no opportunity to make any necessary findings or
rulings relating to the applicability or inapplicability of those
rules. And if it were true that FCOI Preserve somehow had no
meritorious response to these new assertions (a point that, to be
clear, we do not decide), FCOI Preserve would have then needed
to adjust its litigation posture to account for that new reality. It
would therefore be unfair to FCOI Preserve for this substitution
ruling to be reversed on appeal based on new issues that
Lavender could have asserted much earlier in this case.

Lavender v. FCOI Preserve
20230390-CA 	21 	2025 UT App 47
App 102, ¶ 37. “Without such a citation,” the party “would have
at least been required to present this distinct legal theory to the
district court in such a way that the court had an opportunity to
rule on it.” Id. (quotation simplified). Here, there is ample
conceptual daylight between an assertion that the requirements of
rules 17 and 25 were not satisfied (which is what Lavender asserts
on appeal) and an assertion that the other party should be
judicially estopped from being allowed to substitute (which is
what Lavender asserted below). These assertions are derived
from 	different 	sources 	of 	authority, 	turn 	on 	different 	legal
principles, 	and 	ask 	the 	courts 	to 	answer 	entirely 	different
questions.
¶51 	For the sake of precedential clarity, we acknowledge that
in FCOI’s motion to substitute, FCOI argued that substitution was
proper “under Rules 25 and 17 of the Utah Rules of Civil
Procedure.” And we also acknowledge that when the district
court granted that motion, it referenced both rules. And we
further recognize that in some cases, even if a party didn’t
preserve an issue, an appellate court may consider the issue if the
district court “directly addressed” or chose to “[take] up the
question” in its ruling. Fort Pierce Indus. Park Phases II, III & IV
Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 20 n.5, 379 P.3d 1218.
¶52 	But 	this 	branch 	of 	the 	preservation 	rule 	doesn’t
automatically apply whenever a court simply references a rule in
its decision. Instead, as we’ve recently recognized, there’s some
complexity to it, and an appellate court may decline to apply it
when doing so would not advance the “prudential considerations
behind the preservation rule.” Abu-Ulba v. Ananda Sci., Inc., 2024
UT App 64, ¶¶ 37–38, 550 P.3d 480, cert. granted, 561 P.3d 688
(Utah 2024); see also Patterson v. Patterson, 2011 UT 68, ¶ 13, 266
P.3d 828. Here, Lavender did not even ask us to reach his
assertions about rule 17 and rule 25 under this branch of the
preservation rule, much less adequately brief how or why it
applies. Because Lavender didn’t invoke or brief it, FCOI Preserve

Lavender v. FCOI Preserve
20230390-CA 	22 	2025 UT App 47
had no occasion to respond on appeal with any argument about
why it didn’t apply. Without any meaningful discussion of this,
we have no basis to consider whether it applies here.
¶53 	In short, we agree with FCOI Preserve that the issues raised
by Lavender on appeal relating to the substitution motion were
not preserved below. As a result, we do not address them
further.11
11. In his opening brief, Lavender also asserted that FCOI
Preserve “lacked standing” to proceed below. In Lavender’s view,
because FCOI Preserve was improperly substituted into the case,
it was never a proper party, and because it was never a proper
party, it lacked standing to proceed. But we’ve now rejected
Lavender’s challenge to the court’s substitution ruling. To the
extent that Lavender’s standing argument turns on that same
argument, we reject it too.
We also note that standing is typically assessed under a
three-part test. See Utah Chapter of Sierra Club v. Utah Air Quality
Board, 2006 UT 74, ¶ 19, 148 P.3d 960. While Lavender did make
arguments below about FCOI’s alleged lack of standing under this
test, he did not make any such arguments on appeal. Indeed, in
his briefing, he didn’t cite any case invoking that standard at all.
We recognize, as we have before, that we have an “independent
obligation to ensure that we have jurisdiction over all matters
before us.” 11500 Space Center LLC v. Private Cap. Group, Inc., 2022
UT App 92, ¶ 34, 516 P.3d 750 (quotation simplified). But it’s
unclear whether this obligation requires an appellate court to
manufacture and then affirmatively respond to any and all
potential 	arguments 	about 	jurisdictional 	concepts 	such 	as
standing, 	including 	those 	that 	the 	parties 	themselves 	have
apparently chosen not to advance on appeal. Regardless, we have
reviewed the record and have assured ourselves that, as the
(continued…)

Lavender v. FCOI Preserve
20230390-CA 	23 	2025 UT App 47
II. Motion to Dismiss
¶54 	Lavender next argues that FCOI Preserve could not legally
bring a slander of title claim. Lavender points out that FCOI
Preserve didn’t own the properties in question (or, indeed, even
exist 	as 	an 	entity) 	at 	the 	time 	of 	the 	allegedly 	slanderous
statements. Because of this, Lavender claims that he “owed no
duty” to FCOI Preserve and that its slander of title claim failed as
a matter of law.
¶55 	As an initial matter, we note that, in his opening brief,
Lavender 	did 	not 	specifically 	identify 	the 	ruling 	that 	he’s
challenging. That said, in various places in his opening brief,
Lavender made several references to the district court’s failure to
“dismiss” the counterclaim. Drawing on this, FCOI Preserve
expressed its understanding in its responsive brief that this
argument related to the district court’s denial of Lavender’s
motion to dismiss. And this seems to be how Lavender viewed it
too. In his reply brief, Lavender asserted that, because FCOI
Preserve was a subsequent purchaser, it “had no cause of action,”
which seems to be a reference to a motion to dismiss. Moreover,
we note that this same argument was central to a motion to
dismiss that Lavender filed in May 2021, where Lavender asserted
that because FCOI Preserve was a “subsequent purchaser” of the
property, Lavender “owed no duty” to FCOI Preserve and that
the slander of title claim therefore failed “as a matter of law.” In
properly substituted counterclaim plaintiff, FCOI Preserve had
standing to proceed below—and, by extension, on appeal as well.
Finally, 	in 	a footnote in 	his opening 	brief, Lavender
suggests in passing that the case is moot. But his briefing on this
point is inadequate—among others, he cites no cases setting forth
the mootness doctrine, nor does he develop any argument that
fleshes out how, exactly, this case is now moot. On the arguments
presented to us and our review of the record, we see no basis for
concluding that this case is moot.

Lavender v. FCOI Preserve
20230390-CA 	24 	2025 UT App 47
light of all this, like FCOI Preserve, we understand Lavender to
be challenging the court’s denial of the motion to dismiss that
Lavender filed in May 2021 (which was after the district court had
granted the motion to substitute). On that understanding, we
reject Lavender’s assertion.
¶56 	A rule 12(b)(6) motion turns on whether the complaint (or,
as here, a counterclaim) stated a claim upon which relief could be
granted. See Utah R. Civ. P. 12(b)(6). Such a motion “should be
granted only if, assuming the truth of the allegations in the
complaint and drawing all reasonable inferences therefrom in the
light most favorable to the plaintiff, it is clear that the plaintiff is
not entitled to relief.” Moulding Invs., LLC v. Box Elder County, 2024
UT App 23, ¶ 22, 545 P.3d 781 (quotation simplified). A district
court’s “denial of a motion to dismiss” presents “a question of
law.” Id. ¶ 21 (quotation simplified).
¶57 	Under Utah law, “to prove slander of title, a claimant must
prove that (1) there was a publication of a slanderous statement
disparaging claimant’s title, (2) the statement was false, (3) the
statement was made with malice, and (4) the statement caused
actual or special damages.” Dillon v. Southern Mgmt. Corp. Ret.
Trust, 2014 UT 14, ¶ 36, 326 P.3d 656 (quotation simplified). When
drawing all reasonable assumptions and viewing the facts in the
light most favorable to FCOI Preserve, we agree with the district
court that the counterclaim stated a claim on which relief could be
granted for slander of title.12
12. In setting forth the elements of a slander of title claim in the
briefing, FCOI Preserve pointed us to Neff v. Neff, 2011 UT 6, 247
P.3d 380. There, our supreme court stated that a “claim for slander
of title requires proof of four elements: (1) publication of a
slanderous statement, (2) the statement must be false, (3) the
statement must be made with malice, and (4) the statement must
(continued…)

Lavender v. FCOI Preserve
20230390-CA 	25 	2025 UT App 47
¶58 	At the time that Lavender filed the motion to dismiss, the
operative pleading was the counterclaim that FCOI had filed in
2014. That counterclaim alleged, among others, the following:
• 	In August 2007, Fortress had “funded a $25,580,000 loan to
the Preserve, subject to a first lien position on all of the
unsold . . . Preserve land.”
cause special damages to the plaintiff.” Id. ¶ 79. Since Lavender’s
claim on appeal turns on whether a subsequent purchaser can
pursue a slander of title claim, we note that, at first blush, there
may seem to be a potentially significant difference between Neff
and Dillon in terms of how the first element is phrased. After all,
under the Dillon formulation we cited above, the first element
turns 	on 	whether 	there 	was 	a 	publication 	of 	a 	slanderous
statement 	“disparaging 	claimant’s 	title,” 	while 	the 	Neff
formulation simply speaks of a “slanderous statement” without
the ownership-based modifier.
That said, Neff phrases the fourth element as requiring
proof of damages “to the plaintiff,” which, conceivably accounts
for the difference by requiring proof that the slanderous statement
damaged this particular plaintiff. In this sense, the differences
between the two formulations could be seen as a matter of
phrasing and sequencing. But more importantly, if there is a
meaningful 	legal 	difference 	between 	the 	two 	formulations,
neither party has briefed the question of what, exactly, it might be
or how it would impact this case.
Regardless, the version set forth in Dillon seems more
favorable to the arguments advanced by Lavender on appeal. But
for the reasons set forth in this part of the opinion, Lavender’s
claim still fails even under that version of the elements of this
cause of action. As a result, given the state of this record and the
arguments made in the briefing, we see no basis for deciding
whether Dillon and Neff are at odds with each other, given that
any such difference would not change our resolution of this case.

Lavender v. FCOI Preserve
20230390-CA 	26 	2025 UT App 47
• 	That same month, a title company recorded Fortress’s
“Construction Trust Deed.”
• 	In September 2007, “after Fortress’s Trust Deed” was
recorded, Lavender “recorded the Trust Deeds that [he]
had previously been given.”
• 	At the time Lavender’s “Trust Deeds were recorded, they
were false and of no value.”
• 	“Upon information and belief, they were recorded solely to
impair [FCOI’s] property rights.”
• 	“[Lavender] 	knowingly 	and 	wrongfully 	recorded 	and
maintained the Trust Deeds under circumstances” where
he “knew or should have reasonably foreseen might result
in damage to [FCOI].”
• 	“As a result of the false statement published by [Lavender],
[FCOI] has incurred actual or special damages, including
attorney’s fees incurred in prosecuting this action.”
• 	“As a result of the recording of the Trust Deeds, [FCOI] has
been unable to complete land sales which were anticipated
and has suffered damages as a result.”
¶59 	When these allegations are viewed as true and in the light
most favorable to FCOI, they were enough to satisfy the elements
of this tort. After all, these allegations alleged publication of a false
and slanderous statement that disparaged FCOI’s title, that the
statement was made with the requisite mental state, and that it
resulted in damages.
¶60 	The fact that FCOI Preserve didn’t own the property at the
time of the slanderous statement wouldn’t change this, at least not
for purposes of a motion to dismiss, and particularly not under
the circumstances at issue here. As discussed above, by the time

Lavender v. FCOI Preserve
20230390-CA 	27 	2025 UT App 47
that Lavender filed this motion to dismiss, the district court had
already granted the motion to substitute. That motion was
supported, 	in 	part, 	by 	a 	sworn 	statement 	from 	a 	Fortress
employee averring that FCOI had deeded the properties to FCOI
Preserve in 2015, and that as a result of that transaction, “[a]ll sales
of the properties in [t]he Preserve . . . were made in the name of
FCOI 	Preserve.” 	And 	this 	chain 	was 	likewise 	reflected 	in
Lavender’s 	own 	pleadings, 	with 	Lavender 	asserting 	in 	his
amended and second amended complaints that Fortress’s interest
in the properties had been “assigned” to Drawbridge and then to
FCOI, with both of these entities, according to Lavender, being
“subsidiaries of Fortress.”
¶61 	In light of all this, if it were true that by recording the trust
deeds in September 2007, Lavender had knowingly filed a false
and slanderous statement that disparaged the title owned by
Fortress, thereby damaging it, then because FCOI Preserve now
owned that same title, FCOI Preserve could in theory prove that
this same title (and, thus, its own interests) had been damaged.
¶62 	Lavender has pointed to no case in which an appellate
court held that as a matter of law, a subsequent owner cannot
pursue a slander of 	title claim 	if 	the slanderous statement
occurred 	before 	the 	owner 	obtained 	title 	to 	the 	property.
Nevertheless, even without any on-point authority, Lavender
offers three reasons why, in his view, we should now hold that, as
a matter of law, a subsequent owner cannot pursue such a claim.
¶63 	First, Lavender repeatedly claims that he had no “duty” to
FCOI Preserve, given that FCOI Preserve did not own the
properties at the time of the slanderous statement. In support of
this argument, Lavender points to our supreme court’s decision
in B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228. But Jeffs
involved a negligence claim. Id. ¶ 3. Duty is, of course, an element
of a negligence claim. But it’s not an element of a slander of title
claim under the tests set forth in Dillon or Neff or any controlling

Lavender v. FCOI Preserve
20230390-CA 	28 	2025 UT App 47
Utah case. Instead, as discussed, those cases explain that this tort
requires proof that the defendant acted with “malice” when
making a false statement that damaged the plaintiff’s title.
¶64 	Second, Lavender asks us to incorporate the elements of
Colorado’s product disparagement claim as outlined in Teilhaber
Manufacturing Co. v. Unarco Materials Storage, 791 P.2d 1164, 1166
(Colo. App. 1989). But product disparagement and slander of title
are different causes of action with different elements. Lavender
has not persuaded us that we should add the elements of a
different 	cause 	of 	action 	(as 	conceptualized 	by 	a 	different
jurisdiction, no less) to Utah’s slander of title claim, particularly
where our supreme court has already set forth the elements of
slander of title in several opinions.
¶65 	Finally, Lavender appeals to policy. In his view, it would
be unfair to allow a subsequent owner to pursue a slander of title
claim, given the possibility that the owner might have obtained
the property with the benefit of a reduced sales price as a result of
the very slander of title in question. While we recognize the
possibility that, in some circumstances, this might be the case, this
would in theory impair a subsequent purchaser’s ability to prove
damages. But as indicated, the record here belies the suggestion
that FCOI Preserve was a purchaser—instead, it appears to have
received the properties through intracorporate transfers. And in
any 	event, 	the 	possibility 	of 	unfair 	recovery 	proposed 	by
Lavender 	isn’t 	reason 	to 	categorically 	prohibit 	subsequent
purchasers from ever pursuing a slander of title claim. Instead, if
a subsequent purchaser has adequately pleaded that it has been
damaged in some way, the case should survive a motion to
dismiss, thereby allowing the jury to decide the resultant question
of whether the purchaser was actually damaged.
¶66 	Here, at the close of trial, the jury found that FCOI Preserve
had proved that Lavender’s slanderous statement caused it to
incur special damages in the form of reduced sales. Lavender has

Lavender v. FCOI Preserve
20230390-CA 	29 	2025 UT App 47
raised a number of claims regarding FCOI Preserve’s ability to
prove damages, and we address those below. For purposes of the
motion to dismiss issue, however, we conclude that the district
court committed no error when it held that even though FCOI
Preserve obtained the properties later, it could still pursue a claim
for slander of title. We reject Lavender’s arguments to the
contrary.
III. Lavender’s Rule 54(b) Motion and the Shelter Rule
¶67 	Lavender next argues that the district court erred in
concluding 	that, 	for 	purposes 	of 	Lavender’s 	request 	for
declaratory judgment, FCOI Preserve qualified as a bona fide
purchaser under what has sometimes been referred to as “the
shelter rule.” Lavender argues that (1) the shelter rule “does not
apply to slander of title actions” and (2) the shelter rule did not
protect FCOI Preserve in this case “because it had actual or
constructive notice of Lavender’s interest in the property.” We
disagree with Lavender on both fronts.13
¶68 	First, we agree with the district court that the shelter rule
can apply to a slander of title claim. The shelter rule is a “common
law doctrine that exists to prevent the stagnation of property,”
and “many states have recognized [it] in one form or another.”
Nampa Highway Dist. No. 1 v. Knight, 462 P.3d 137, 143 (Idaho 2020)
13. Lavender has again failed to specifically identify the particular
ruling he’s challenging. But from the context of the briefing and
the record, it seems clear enough that, with this issue, Lavender is
intending to challenge the district court’s denial of his rule 54(b)
motion to set aside the earlier ruling granting summary judgment.
We also note that, in addition to the two arguments we’ve
identified, Lavender briefly asserts that the district court erred by
“adopt[ing] the shelter rule sua sponte.” Lavender provides little
support or analysis for this assertion, however, so we reject it on
grounds of inadequate briefing.

Lavender v. FCOI Preserve
20230390-CA 	30 	2025 UT App 47
(quotation simplified). Under its terms, “even if a subsequent
purchaser is not a bona fide purchaser, if they took an interest in
their 	property 	from 	a 	bona 	fide 	purchaser, 	they 	may 	be
vicariously sheltered in the latter’s protective status.” Id.
¶69 	Although no Utah case has expressly adopted the shelter
rule, FCOI Preserve argues that its core concepts are already “part
of the common law of Utah” and are also “built into Utah
statutory law.” We agree. In support of its Utah common law
argument, FCOI Preserve points to Utah Farm Production Credit
Ass’n v. Wasatch Bank of Pleasant Grove, 734 P.2d 904 (Utah 1986)
(per curiam). But we need not definitively determine whether this
case essentially adopted the shelter rule. This is so because we
agree 	with 	FCOI 	Preserve 	that 	it’s 	also 	inherent 	in 	certain
provisions of the Utah Code.
¶70 	Under Utah Code section 57-3-102(5):
The grantee in a recorded document may convey the
interest granted to him free and clear of all claims
not disclosed in the document in which he appears
as grantee or in any other document recorded in
accordance with this title that sets forth the names
of the beneficiaries, specifies the interest claimed,
and 	describes 	the 	real 	property 	subject 	to 	the
interest.
Utah Code section 57-3-103 then provides:
Each 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

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20230390-CA 	31 	2025 UT App 47
(2) the subsequent purchaser’s document is first
duly recorded.
Taken together, these statutes establish that a party who receives
title from a bona fide purchaser takes the property free and clear
of any interest that would be “void” against the bona fide
purchaser. As explained, that’s essentially the shelter rule. And
that’s likewise how the district court applied it here. The court
concluded that since there was “no factual dispute that Fortress
. . . qualified as a bona fide purchaser for value,” “every entity that
has or had interest in the Preserve property through Fortress[’s]
. . . chain of title has superior title to [Lavender’s] trust deeds.” As
also noted, Drawbridge, FCOI, and FCOI Preserve each obtained
their interests in the Preserve property through “intracompany
transfers” in Fortress’s chain of title. Like the district court, we
conclude that these entities are therefore protected under the
shelter rule if Fortress was in fact a bona fide purchaser.
¶71 	This leads to Lavender’s second argument, which is that
the shelter rule did not protect FCOI Preserve in this case
“because it had actual or constructive notice of Lavender’s interest
in the property.” We again disagree.
¶72 	The district court properly concluded that Fortress was a
bona fide purchaser. “A bona fide purchaser is one who pays
valuable consideration for a conveyance, acts in good faith, and
takes without notice of an adverse claim or others’ outstanding
rights to the seller’s title.” Davis v. Sperry, 2012 UT App 278, ¶ 28,
288 P.3d 26 (quotation simplified); see also Utah Code § 57-3-103.
“Notice of a prior interest may be actual or constructive.” Harman
v. 105 Partners LLC, 2024 UT App 109, ¶ 54, 556 P.3d 669 (quotation
simplified). “Actual notice arises from actual knowledge of an
unrecorded interest or infirmity in the grantor’s title.” FDIC v.
Taylor, 2011 UT App 416, ¶ 36, 267 P.3d 949 (quotation simplified).
And

Lavender v. FCOI Preserve
20230390-CA 	32 	2025 UT App 47
constructive 	notice 	can 	include 	both 	(1) 	record
notice which results from a record or which is
imputed by the recording statutes, and (2) inquiry
notice which is presumed because of the fact that a
person has knowledge of certain facts which should
impart to him, or lead him to, knowledge of the
ultimate fact.
Id. (quotation simplified).
¶73 	According to the district court, there was “no evidence that
demonstrates that Fortress had any actual notice of the trust
deeds” or that “the circumstances put Fortress on guard so as to
require further inquiry about the trust deeds.” Lavender has not
persuaded us otherwise.
¶74 	But because Fortress qualified as a bona fide purchaser,
then, under the version of the shelter rule embodied in Utah’s
statutes, Fortress was entitled to pass along its interest to FCOI
Preserve. Put differently, the issue isn’t, as Lavender claims,
whether FCOI Preserve had notice of Lavender’s asserted interest.
Rather, 	because 	FCOI 	Preserve 	was 	seeking 	shelter 	under
Fortress’s status as a bona fide purchaser, the issue was whether
Fortress had such notice. Because there was no evidence that it did,
we agree with the district court’s conclusion that the shelter rule
applied and was an adequate reason to reject Lavender’s request
under 	rule 	54(b) 	to 	reverse 	the 	earlier 	grant 	of 	summary
judgment.
IV. The Statute of Limitations and the Amended Counterclaim
¶75 	As 	noted, 	FCOI 	Preserve 	was 	substituted 	as 	the
counterclaim plaintiff in January 2020. In March 2022, FCOI
Preserve filed an amended counterclaim under which it now
explicitly sought damages for reduced sales prices caused by the
slander of title. In September 2022, Lavender filed a motion for
summary judgment, arguing that the amended counterclaim was

Lavender v. FCOI Preserve
20230390-CA 	33 	2025 UT App 47
subject to a three-year statute of limitations, and that because all
of 	the 	sales 	in 	question 	happened 	by 	2017, 	the 	amended
counterclaim was untimely. Lavender further argued that what
he referred to as the “new cause[] of action” in the amended
counterclaim could not relate back to the original counterclaim
because it asserted “for the first time, allegations about injuries
purportedly suffered by [FCOI Preserve] in its own behalf.” The
district court denied the motion. It held “as a matter of law that
[FCOI Preserve’s] amended counterclaim which asserts a single
cause of action for slander of title relates back to the date of filing
of [its] original counterclaim under Rule 15(c)(2) as interpreted
and applied and explained in” Noor v. State, 2019 UT 3, ¶ 47, 435
P.3d 221. And the court further explained “that the amendment is
justified by a good faith effort to have the operative pleading
match the damages model that has been disclosed and litigated in
this case for years.”
¶76 	On appeal, Lavender challenges that ruling, arguing, as he
did before, that the relation-back doctrine did not apply. We
disagree.14
¶77 	Rule 15 of the Utah Rules of Civil Procedure governs
amendments generally, and rule 15(c) governs the “relation back”
doctrine more particularly. Under rule 15(c), “[a]n amendment to
a pleading relates back to the date of the original pleading when
. . . the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set
14. As noted above in the Background, this wasn’t the only statute
of limitations ruling in this case. In July 2020, Lavender filed a
previous motion for summary judgment that was based on the
statute 	of 	limitations, 	asserting 	there 	that 	FCOI’s 	original
counterclaim 	was 	time-barred 	based 	on 	the 	timing 	of 	the
assignment of interest from Drawbridge to FCOI. The district
court denied that motion, and Lavender does not challenge that
ruling on appeal.

Lavender v. FCOI Preserve
20230390-CA 	34 	2025 UT App 47
out—in the original pleading.” Utah R. Civ. P. 15(c)(2). This means
that “when a new claim relates back to the date of the original
pleading, a party may include it even when the statute of
limitations has otherwise run on that claim.” Noor, 2019 UT 3, ¶ 38
(quotation simplified). For purposes of this rule, “an amendment
arises out of the same ‘conduct, transaction, or occurrence’ when
it arises out of the same cause of action and alleges the same kind
of factual basis as the original allegation.” Id. ¶ 47 (quoting Utah
R. Civ. P. 15(c)(2)). When confronted with questions that arise
under 	rule 	15, 	courts 	“liberally 	construe 	amendments 	to
pleadings . . . to permit a complete adjudication of the matters in
controversy.” Id. ¶ 41. (quotation simplified).
¶78 	Here, the only relevant change made in the amended
counterclaim was that FCOI Preserve was now more specific
about its theory of damages. The original counterclaim alleged
that “[a]s a result of the recording of the Trust Deeds, [FCOI] has
been unable to complete land sales which were anticipated and
has suffered damages as a result,” and from that allegation, it
requested 	“actual 	or 	special 	damages.” 	The 	amended
counterclaim more explicitly alleged that “FCOI [Preserve] was
forced to sell its properties in the Preserve at reduced prices due
to Lavender[’s] . . . Trust Deeds and has suffered damages as a
result,” and it accordingly requested “actual and special damages,
in an amount to be proven at trial.”
¶79 	In our view, when FCOI Preserve expounded on its
damages theory in the amended counterclaim, that change fit
comfortably within the rule 15(c) “relation back” doctrine. After
all, rule 15(c) applies when an amendment “asserts a claim or
defense that arose out of the conduct, transaction, or occurrence set
out—or attempted to be set out—in the original pleading.” Utah
R. Civ. P. 15(c)(2) (emphasis added). Here, while the damages
theory may have changed, the “claim” itself didn’t. In the original
counterclaim, FCOI asserted a claim for slander of title, and that
claim was based on Lavender improperly recording his trust

Lavender v. FCOI Preserve
20230390-CA 	35 	2025 UT App 47
deeds in September 2007. So too with the amended counterclaim,
which asserted the same claim for slander of title based on the
same alleged conduct from Lavender.
¶80 	This conclusion finds support in Behrens v. Raleigh Hills
Hospital, Inc., 675 P.2d 1179 (Utah 1983). There, the plaintiff filed a
wrongful death action, “seeking compensatory damages only.” Id.
at 1181. The case proceeded to trial, where the jury awarded
$100,000 in damages. Id. The district court then granted the
defendant’s motion for a new trial on an unrelated issue, after
which the “plaintiff moved to amend her complaint to include a
claim for punitive damages.” Id. The district court denied the
motion to amend, but our supreme court reversed, holding that
“if the plaintiff were able to adduce the necessary foundational
evidence at trial, she could claim punitive damages under Rule
54(c) without a formal amendment to the pleadings.” Id. at 1181–
82; see also Utah R. Civ. P. 54(c) (“Every other judgment should
grant the relief to which each party is entitled, even if the party
has not demanded that relief in its pleadings.”). The supreme
court 	explained 	that 	an 	“amendment 	to 	include 	[punitive]
damages does not import into a case a new and different cause of
action.” Behrens, 675 P.2d at 1182.
¶81 	Others 	have 	recognized 	this 	same 	principle 	too. 	The
California Court of Appeal, for example, has held that “an
amendment seeking new damages relates back to the original
complaint if such damages resulted from the same operative
facts—i.e., the same misconduct and the same injury—previously
complained of.” Amaral v. Cintas Corp. No. 2, 78 Cal. Rptr. 3d 572,
606 (Cal. Ct. App. 2008). And this principle likewise finds support
in relevant treatises. See, e.g., 54 C.J.S. Limitations of Actions § 332
(2024) (“An amendment altering the prayer of the petition or the
remedy sought, in order to enable the court to award the relief to
which the plaintiff is entitled on her cause of action, does not
introduce a new cause of action so as to be subject to a plea of
limitations, as when an amendment is filed claiming increased

Lavender v. FCOI Preserve
20230390-CA 	36 	2025 UT App 47
damages.”); 6A Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 1497 (3d ed. 2024) (“[A]mendments
increasing the amount claimed in the prayer for relief or changing
a demand for equitable relief to one for legal relief, although
actually unnecessary in light of Rule 54(c), have been held to relate
back.”).
¶82 	In his brief, Lavender pushes back, pointing to 2010-1
RADC/CADC Venture, LLC v. Dos Lagos, LLC, where we held that
the relation back rule “generally does not apply to an amendment
which 	substitutes 	or 	adds 	new 	parties 	whether 	plaintiff 	or
defendant.” 2016 UT App 89, ¶ 11, 372 P.3d 683 (quotation
simplified). But as discussed, the amended counterclaim didn’t
add a new party. FCOI Preserve was added in January 2020
through 	the 	substitution 	motion, 	not 	through 	the 	amended
counterclaim in March 2022. In any event, in Dos Lagos, we
recognized that there’s an “exception” to this rule that applies
when the “new and old parties have an identity of interest; so it
can be assumed or proved the relation back is not prejudicial.” Id.
¶ 12. (quotation simplified). We noted that the “rationale of rule
15(c) is that a party who has been notified of litigation concerning
a particular occurrence has been given all the notice that statutes
of limitations were intended to provide.” Id. ¶ 14 (quotation
simplified). 	And 	we 	further 	noted 	that 	the 	“same 	general
standard of notice applies regardless of whether a litigant seeks to
add defendants, plaintiffs, or claims.” Id. (quotation simplified).
As discussed, there was an identity of interest here. FCOI (the
original counterclaim plaintiff) and FCOI Preserve (the amended
counterclaim plaintiff) were each subsidiaries of Fortress, and,
through the slander of title claim, they each asserted an interest in
the same properties based on the same original underlying loan
and trust deed. Our decision in Dos Lagos therefore does not
compel a different result here.
¶83 	In 	short, 	after 	the 	original 	counterclaim 	was 	filed,
Lavender was on notice that he was being sued for improperly

Lavender v. FCOI Preserve
20230390-CA 	37 	2025 UT App 47
recording 	trust 	deeds 	in 	September 	2007. 	The 	amended
counterclaim didn’t change that. As a result, we see no basis for
reversing the district court’s denial of the motion for summary
judgment that was based on the statute of limitations.
V. Privileges
¶84 	As discussed, the slander of title claim was based on
Lavender filing his trust deeds in September 2007. Lavender now
argues that this act was “absolutely immune under the judicial
proceedings privilege” and conditionally immune under the rival
claimant’s privilege. We disagree on both fronts.15
15. As with some of the prior issues that we’ve addressed, it’s
again unclear from his brief which ruling Lavender is targeting,
particularly given that these privilege issues were raised and
ruled on in various places below. In its responsive brief, FCOI
Preserve assumes that the ruling at issue is the ruling that denied
the request for a directed verdict. From our review of the briefing
and the record, we largely assume as much too. But we note that,
with 	respect 	to 	the 	absolute 	privilege 	issue, 	it 	would 	not
necessarily matter which ruling was at issue, since the question
turns on a question of law that would be reviewed for correctness.
See Price v. Armour, 949 P.2d 1251, 1254 (Utah 1997). That said, for
the conditional rival claimant privilege that’s also at issue, the
standard 	of 	review 	is 	a 	touch 	more 	nuanced—namely, 	the
question of “whether a publication is conditionally privileged is a
question of law, unless a genuine factual issue exists regarding
whether the scope of the qualified privilege has been transcended
or the defendant acted with malice.” Wayment v. Clear Channel
Broad., Inc., 2005 UT 25, ¶ 53, 116 P.3d 271 (quotation simplified).
As we explain below, since this conditional privilege turns in
some measure on a factual question, and since that question was
then resolved in FCOI Preserve’s favor at trial, the court correctly
(continued…)

Lavender v. FCOI Preserve
20230390-CA 	38 	2025 UT App 47
A. 	Judicial Proceedings Privilege
¶85 	“The 	common 	law 	judicial 	proceeding 	privilege
immunizes certain statements that are made during a judicial
proceeding from defamation claims. The privilege is intended to
promote the integrity of the adjudicatory proceeding and its truth
finding processes.” Pratt v. Nelson, 2007 UT 41, ¶ 27, 164 P.3d 366
(quotation simplified). “It does so by facilitating the free and open
expression by all participants,” which would “only occur if they
are not inhibited by the risk of subsequent defamation suits.” Id.
(quotation 	simplified). 	The 	privilege 	also 	“extend[s] 	to 	an
attorney’s 	conduct 	occurring 	in 	the 	course 	of 	judicial
proceedings.” Moss v. Parr Waddoups Brown Gee & Loveless, 2012
UT 42, ¶ 35, 285 P.3d 1157. And to “establish absolute immunity”
under this privilege, the statements (or conduct) in question
“must be (1) made during or in the course of a judicial proceeding;
(2) have some reference to the subject matter of the proceeding;
and (3) be made by someone acting in the capacity of judge, juror,
witness, litigant, or counsel.” Pratt, 2007 UT 41, ¶ 28 (quotation
simplified).
¶86 	The parties in this appeal dispute whether Lavender can
satisfy the first element, so we focus our attention there as well.
The first element “is interpreted broadly,” and it “extends to
statements made prior to the filing of a lawsuit because it is
intended to encourage reasonable efforts to resolve disputes prior
to the filing of a complaint.” Id. ¶ 29 (quotation simplified); see also
Krouse v. Bower, 2001 UT 28, ¶ 10, 20 P.3d 895 (“Because the
purpose of the privilege is to promote the resolution of disputes,
it should be interpreted to encourage this end.”).
¶87 	In Pratt, our supreme court cited Beezley v. Hansen, 286 P.2d
1057 (Utah 1955), to support its position that the privilege applies
denied both the pretrial and posttrial motions that implicated this
privilege.

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20230390-CA 	39 	2025 UT App 47
to “certain pretrial” statements. Pratt, 2007 UT 41, ¶ 29 & n.48. In
Beezley, 	the 	court 	quoted 	the 	following 	provision 	from 	the
Restatement:
The 	publication 	of 	defamatory 	matter 	by 	an
attorney is protected not only when made in the
institution of the proceedings or in the conduct of
litigation 	before 	a 	judicial 	tribunal, 	but 	in
conferences and other communications preliminary
thereto. The institution of a judicial proceeding
includes all pleadings and affidavits necessary to set
the judicial machinery in motion.
Beezley, 286 P.2d at 1058 (quoting Restatement (Second) of Torts
§ 586 (Am. L. Inst. 1977)). In this vein, our supreme court has also
held that a demand letter that threatened legal action was subject
to the judicial proceedings privilege. See Krouse, 2001 UT 28, ¶¶ 1,
10.
¶88 	From all this, it seems that while the judicial proceedings
privilege 	can 	in 	some 	circumstances 	apply 	to 	pre-litigation
statements, it only does so when the statements can fairly be
viewed as being “preliminary” to anticipated litigation, including
statements that were made in an attempt to resolve a dispute
before a complaint was filed.
¶89 	As recognized by the district court, however, this was not
the case here. Lavender’s trust deeds were recorded in 2007,
nearly four years before Lavender filed his complaint. At the time
that Lavender filed his trust deeds, there was no apparent threat
of a lawsuit and the parties weren’t engaged in any settlement
negotiations. Indeed, on their face, the point of the trust deeds
wasn’t to initiate or even forestall litigation. Rather, the trust
deeds were legal documents purporting to establish a security
interest in the identified properties, and the act of recording them
was designed to notify others of that claimed interest. Thus, we
agree with the district court that the act of recording the trust

Lavender v. FCOI Preserve
20230390-CA 	40 	2025 UT App 47
deeds was not done “during or in the course of a judicial
proceeding.” Pratt, 2007 UT 41, ¶ 28 (quotation simplified).
¶90 	Moreover, we also agree with FCOI Preserve’s contention
that it would make little jurisprudential sense to allow this
privilege (which, again, is derived from the common law) to cover
this kind of conduct, at least as a defense to a slander of title claim.
Lavender asserts that the act of recording the trust deeds was
“closely related” to the eventual litigation. It’s of course true that
this act is what led to the litigation, insofar as it formed the basis
for FCOI’s slander of title claim. But the very reason that the
slander of title tort exists is to provide “for special damages for
the loss sustained by reason of the publication of the slander.” 103
Am. Jur. Trials 1 Slander of Title Claims § 2 (2025). To serve this
purpose, it commonly applies to the very kind of conduct at issue
here—the act of publishing “a slanderous statement . . . that is
derogatory or injurious to the legal validity of an owner’s title or
to his or her right to sell or hypothecate the property.” First Sec.
Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253, 1257 (Utah
1989) (quotation simplified).
¶91 	If this court embraced Lavender’s proposed application of
the judicial proceedings privilege to this tort, this privilege would,
as a practical matter, largely negate most claims for slander of
title. And it would further enable unsavory actors to do the very
thing that the tort is designed to penalize—knowingly file false
documents that assert ownership interests over properties that
belong to others, thereby clouding title to those properties. We see
no basis for allowing this privilege to essentially swallow this tort
in this manner. For this additional reason, we affirm the district
court’s determination that Lavender’s conduct was not protected
by the judicial proceedings privilege.
B. 	Rival Claimant Privilege
¶92 	Lavender also argues that his conduct was covered by
what he refers to as the “rival claimant privilege.” Lavender

Lavender v. FCOI Preserve
20230390-CA 	41 	2025 UT App 47
points to no Utah case that has applied the particular privilege he
asserts here, however, let alone in this manner.16 Instead, he points
to a Restatement provision that provides that “[a] rival claimant
is conditionally privileged to disparage another’s property in
land, 	chattels 	or 	intangible 	things 	by 	an 	assertion 	of 	an
inconsistent legally protected interest in himself.” Restatement
(Second) of Torts § 647 (Am. L. Inst. 1977). In Lavender’s view,
since he was a rival claimant, the burden was on FCOI Preserve
to show that the rival claimant privilege did not apply, and he
then argues that since FCOI Preserve failed to do so, “the
judgment must be vacated.” In its brief, however, FCOI Preserve
asserts that the proposed “qualified privilege would make no
sense as a defense to a slander of title claim.” We readily agree
with FCOI Preserve on this point, particularly in light of the jury’s
verdict at the close of trial.
¶93 	As explained in a comment to the same Restatement
provision that Lavender relies on, the rival claimant privilege
allows a “publisher to assert a claim to a legally protected interest
of his own provided that the assertion is honest and in good faith, even
though his belief is neither correct nor reasonable.” Id. § 647 cmt.
b (emphasis added). Thus, according to the Restatement, a
statement made in “[b]ad faith is treated as an abuse of the
privilege” and provides no defense. Id. § 647 cmt. d.
16. Lavender does point to two Utah cases that applied other
kinds of conditional privileges to the tort of defamation. See
O’Connor v. Burningham, 2007 UT 58, ¶¶ 34–37, 165 P.3d 1214
(recognizing 	an 	intra-family 	relationship 	privilege 	to
defamation); Brehany v. Nordstrom, Inc., 812 P.2d 49, 58–59 (Utah
1991) 	(recognizing 	an 	employer-employee 	communications
privilege to defamation). But for the reasons explained here, we
conclude that the slander of title tort is sufficiently different,
particularly as it relates to the kind of conduct at issue.

Lavender v. FCOI Preserve
20230390-CA 	42 	2025 UT App 47
¶94 	As noted above, however, in Utah, a slander of title claim
requires proof that both “the statement was false” and “the
statement was made with malice.” Dillon, 2014 UT 14, ¶ 36
(quotation simplified); see also Neff, 2011 UT 6, ¶ 79. “For a
slanderous statement to be malicious, the defendant must have
actually known that it was false or misleading.” Dillon, 2014 UT
14, ¶ 36 (quotation simplified). And a finding of malice necessarily
precludes a finding of good faith. See Wayment v. Clear Channel
Broad., Inc., 2005 UT 25, ¶ 53 n.19, 116 P.3d 271 (explaining that
while “the concept of ‘malice’ . . . is distinct from [that of] ‘actual
malice,’” “proof of knowledge of or reckless disregard for a
statement’s falsity would satisfy either standard”); Davidson v.
Baird, 2019 UT App 8, ¶ 51, 438 P.3d 928 (“A statement made with
a good-faith belief in its accuracy is not a statement made with
actual malice.”). For this reason, if a plaintiff is able to prove his
or her slander of title claim at trial, this necessarily means that the
privilege proposed by Lavender did not apply.
¶95 	Indeed, this was the very reason given by the district court
in its ruling rejecting the argument Lavender made in his request
for a directed verdict. As explained by the court:
Under Utah law, a finding of malice would vitiate
any conditional privilege defense that might apply.
If the factfinder determines that FCOI [Preserve]
failed to meet its burden, then [Lavender] will
prevail without the need for an instruction related
to conditional privileges. On the other hand, if the
factfinder determines that FCOI [Preserve] met its
burden, the conditional privilege could not be met
because of the finding of malice. This analysis is
supported by comments in the injurious falsehood
section of MUJI 2nd and relevant case law. Thus, no
separate instruction regarding conditional privilege
is necessary.

Lavender v. FCOI Preserve
20230390-CA 	43 	2025 UT App 47
¶96 	Here, the jury was instructed that for FCOI Preserve to
succeed on its slander of title claim, “FCOI Preserve must prove
the following elements: (1) [Lavender] published a slanderous
statement; (2) the statement was false; (3) the statement was made
with malice; and (4) the statement caused specific monetary loss to
FCOI Preserve.” (Emphasis added.) At the close of trial, the jury
returned a verdict finding Lavender liable to FCOI Preserve for
slander of title.
¶97 	In 	short, 	the 	question 	of 	“whether 	a 	publication 	is
conditionally privileged is a question of law, unless a genuine
factual issue exists regarding whether the scope of the qualified
privilege has been transcended or the defendant acted with
malice.” Wayment, 2005 UT 25, ¶ 53 (quotation simplified).
Because the proposed privilege turned on a question of good faith
versus malice, and because that same question was going to be
submitted to the jury at trial, we agree with the district court that
there would have been no basis on this record for holding, before
trial, 	that 	the 	statements 	in 	question 	were 	conditionally
privileged. 	And 	we 	further 	conclude 	that 	since 	the 	jury
determined that FCOI Preserve had met its burden of establishing
malice by a preponderance of the evidence, there was likewise no
basis for the court to conclude after trial that the rival claimant
privilege applied.
VI. Damages
¶98 	Lavender 	next 	makes 	two 	arguments 	relating 	to
damages—namely, that FCOI Preserve failed to sufficiently plead
or prove special damages, and that the district court also erred in
allowing FCOI Preserve to recover damages “as to the 21 stigma
lots.” We address and reject these arguments in turn.

Lavender v. FCOI Preserve
20230390-CA 	44 	2025 UT App 47
A. 	Special Damages
¶99 	Lavender argues that FCOI Preserve failed to adequately
plead or prove special damages. We reject this argument for
inadequate briefing.
¶100 	In the opening brief, a party “must explain, with reasoned
analysis supported by citations to legal authority and the record,
why the party should prevail on appeal.” Utah R. App. P. 24(a)(8).
“Appellants carry the burden to persuade a reviewing court
through reasoned, supported argument that the district court
committed harmful, reversible error—a burden that necessarily
requires the appellant to address the reasoning and basis of the
district court’s ruling and to explain why that court got it wrong.”
Cottam v. IHC Health Services Inc., 2024 UT App 19, ¶ 15, 544 P.3d
1051 (quotation simplified); see also Allen v. Friel, 2008 UT 56, ¶ 7,
194 P.3d 903 (“If an appellant fails to allege specific errors of the
lower court, the appellate court will not seek out errors in the
lower court’s decision.”). “When an appellant’s brief fails to
satisfy the minimal requirements of rule 24, we need not discuss
the merits of the case.” Cottam, 2024 UT App 19, ¶ 15 (quotation
simplified). “And an appellant’s claim is inadequately briefed
when the overall analysis of the issue is so lacking as to shift the
burden of research and argument to the reviewing court.” Id.
(quotation simplified).
¶101 	In several places in this opinion, we’ve noted that it was
unclear to us which ruling, exactly, Lavender was challenging.
But in each prior instance, we deemed it appropriate to address
the issue, either because the record made it clear enough which
ruling 	Lavender 	was 	challenging, 	or 	instead 	because 	the
differences between the various potential rulings didn’t matter.
¶102 	But this issue is different. As noted, it took over 11 years to
get this case to trial. Over the course of those years, the parties
litigated dozens of motions. The record spans almost 10,000
pages.

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20230390-CA 	45 	2025 UT App 47
¶103 	During that lengthy process, the district court issued
several rulings relating to whether FCOI (or, later, FCOI Preserve)
had 	properly 	pleaded 	or 	could 	prove 	special 	damages. 	Of
particular note here, these included the following:
• 	In February 2022, Lavender filed a motion to dismiss,
arguing that the counterclaim failed to comply with the
specificity 	requirements 	for 	pleading 	special 	damages
found in rule 9 of the Utah Rules of Civil Procedure.
Alternatively, Lavender argued that FCOI Preserve should
be 	limited 	to 	the 	damages 	pleaded 	in 	the 	2014
counterclaim. 	FCOI 	Preserve 	opposed 	the 	motion,
contending that it had properly pleaded special damages;
in 	the 	alternative, 	it 	requested 	leave 	to 	amend 	its
counterclaim. The district court denied Lavender’s motion
to dismiss and granted FCOI Preserve leave to file an
amended counterclaim.
• 	At the close of FCOI Preserve’s case at trial, Lavender filed
a motion for directed verdict, arguing that FCOI Preserve
had presented no evidence of “specific monetary loss or
special damages, only general damages.” The district court
deferred ruling on the motion until FCOI Preserve had a
chance to respond, and it later denied the motion.
• 	After trial, in December 2022, Lavender filed a motion for
judgment as a matter of law, arguing that “FCOI [Preserve]
did not present any evidence of special damages.” The
district court denied this motion as well, finding that FCOI
Preserve’s 	“witnesses 	including 	its 	expert 	witnesses
provide[d] evidence from which a reasonable jury could
find that FCOI [Preserve] suffered special damages in the
form of reduced sales proceeds from lots actually sold
caused by [Lavender’s] recording of the trust deeds against
the 	ten 	lots 	against 	which 	those 	trust 	deeds 	were
recorded.”

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20230390-CA 	46 	2025 UT App 47
¶104 	It is unclear from Lavender’s opening brief which of these
rulings Lavender is actually challenging. Lavender speaks in
general terms about the perceived problems of pleading and
proof 	with 	respect 	to 	FCOI 	Preserve’s 	damages 	claim. 	But
whether it be in his Statement of the Issues, his headings, or in his
Argument, Lavender never specifically identifies which ruling he
intends for us to reverse with respect to these arguments.17
¶105 	This failure is particularly problematic given that the
rulings we’ve just identified (which seem to us to be the ones that
Lavender most likely has in 	mind) 	are subject to different
standards of review (which Lavender likewise fails to address at
all in his opening brief). A denial of a motion to dismiss is
reviewed for correctness, and this standard of review “grants no
deference to the decision of the district court.” Moulding Invs.,
2024 UT App 23, ¶ 21 (quotation simplified). A denial of a motion
for directed verdict is reviewed by “examining all evidence in a
light most favorable to the non-moving party” to determine
whether there is any “competent evidence that would support a
verdict in the non-moving party’s favor.” Merino v. Albertsons,
Inc., 1999 UT 14, ¶ 3, 975 P.2d 467 (quotation simplified). A denial
of a motion for judgment as a matter of law is reviewed for
“correctness, and in doing so [the court] accept[s] as true all
testimony and reasonable inferences that support the jury’s
17. In his Statement of the Issues, for example, Lavender doesn’t
have an entry that corresponds to this issue, even though it has its
own heading and discussion in the Argument portion of his brief.
In other words, there’s a mismatch between the number of issues
set forth in his Statement of the Issues on the one hand and the
number of issues he sets forth in his headings and text on the
other. This problem matters here because, in a rules-compliant
brief, there would be a citation in the preservation section (which,
under our rules, is linked up with the issues) that would give
some guidance as to which ruling the appellant intended to
challenge.

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20230390-CA 	47 	2025 UT App 47
verdict.” Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 38,
513 P.3d 729 (quotation simplified). In addition, if Lavender
actually means to challenge the decision to allow FCOI Preserve
to amend its counterclaim (which also has some bearing on this
legal issue), that decision would be reviewed for an abuse of
discretion. See Red Cliffs Corner, LLC v. J.J. Hunan, Inc., 2009 UT
App 240, ¶ 32, 219 P.3d 619.
¶106 	An appellant carries the burden of persuasion on appeal,
and to carry this burden, it’s “the appellant’s job to tell us where
and how the district court went wrong.” Pinder v. Duchesne County
Sheriff, 2020 UT 68, ¶ 36, 478 P.3d 610. One part of telling the
appellate court where the district court went wrong is telling the
court which ruling contains the alleged error, and we’ve said as
much in several cases. See, e.g., Camco Constr. Inc. v. Utah Baseball
Academy Inc., 2018 UT App 78, ¶ 46, 424 P.3d 1154 (“[B]ecause
[a]ppellants fail to even clearly identify which of the trial court’s
rulings they challenge, they have not carried their burden of
persuasion on appeal.”); Wing v. Still Standing Stable LLC, 2016 UT
App 229, ¶ 27, 387 P.3d 605 (“Because [appellant] does not
identify the ruling appealed from or deal with the issues it
presents, we reject this claim.”); Elite Legacy Corp. v. Schvaneveldt,
2016 UT App 228, ¶ 67, 391 P.3d 222 (noting that we were
“hampered in our review of this claim of error because, as
[appellees] 	observe, 	‘it 	is 	unclear 	which 	ruling 	or 	rulings
[appellant] is appealing,’” particularly where appellant’s brief did
“not identify in the record the ruling he challenges”).
¶107 	To be clear, we don’t intend to invite appellees to now
reflexively argue that an issue was inadequately briefed simply
because the appellant failed to use some combination of magic
words. In many, if not most, instances, it will likely be clear
enough from the arguments made in the opening brief (including,
most notably, the preservation section) which ruling is being
challenged. But in a case involving a particularly lengthy record,
an appellant’s failure to guide the court to the appropriate place

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20230390-CA 	48 	2025 UT App 47
in the record is more important than normal. See Allen, 2008 UT
56, ¶ 9 (noting that an “appellate court is not a depository in which
a party may dump the burden of argument and research” and that
an appellant “must plead his claims with sufficient specificity for
this court to make a ruling on the merits” (quotation simplified)).
And if a legal doctrine was raised by a party several times and
considered by the district court in multiple rulings, and if those
rulings would be reviewed under different standards of review,
identifying the ruling that is being challenged is even more
important. Put simply, if it’s unclear from the brief and the context
of the case which ruling the appellant is asking the appellate court
to reverse, and if that difference matters in some way (such as for
preservation or standard of review purposes), the appellate court
would essentially be making litigation choices for the appellant if
it were to decide for itself which ruling it would choose to review.
Because this is the case here with respect to special damages, we
decline to address this issue.
B. 	“Stigma” Damages
¶108 	Lavender next argues that FCOI Preserve’s request for
“stigma” damages on the 21 lots that were not encumbered by his
trust deeds was “neither pleaded nor supported by evidence.” In
support of both aspects of this claim, Lavender relies on Utah
Code section 57-1-37, which provides:
(1) The failure of an owner of real property to disclose
that 	the 	property 	being 	offered 	for 	sale 	is
stigmatized is not a material fact that must be
disclosed in the transaction of real property.
(2) Neither an owner nor his agent is liable for failing to
disclose that the property is stigmatized.
From this, Lavender argues that “stigma is not relevant and
incapable of disparaging title—even if publication had been
shown.” In other words, and so far as we can understand the

Lavender v. FCOI Preserve
20230390-CA 	49 	2025 UT App 47
argument, Lavender seems to be suggesting that any damages to
the 21 lots not directly encumbered by his trust deeds should have
been regarded as “stigma” damages, and that under the terms of
this statute, he could not be found liable for causing that “stigma.”
We disagree.18
¶109 	Under the plain language of the controlling statute, the
kinds of damages at issue here do not qualify as stigma damages
for purposes of this statute. The stigma statute is governed by a
definitions statute under which the term “‘[s]tigmatized’ means”
the following:
(a) the site or suspected site of a homicide, other felony,
or suicide;
(b) the dwelling place of a person infected, or suspected
of 	being 	infected, 	with 	the 	Human
Immunodeficiency Virus, or any other infectious
disease 	that 	the 	Utah 	Department 	of 	Health
determines cannot be transferred by occupancy of a
dwelling place; or
(c) property that has been found to be contaminated,
and 	that 	the 	local 	health 	department 	has
subsequently found to have been decontaminated.
Utah Code § 57-1-1(4). A cloud on title resulting from the
improper recording of trust deeds does not fall within the rubric
of any of these categories. The stigma statute therefore has no
bearing on this case, and the district court committed no error
18. From the briefing, we understand Lavender’s assertion that
FCOI Preserve did not “plead” these damages to be a challenge to
the district court’s denial of his motion in limine on this issue,
while we understand his assertion that these damages were not
“supported by evidence” to be a challenge to the district court’s
denial of his mid-trial motion for a directed verdict.

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20230390-CA 	50 	2025 UT App 47
(either pretrial or during trial) in denying Lavender’s motions
relating to this issue.19
19. In his brief, Lavender repeatedly suggests that FCOI Preserve
could 	not 	recover 	damages 	for 	the 	21 	lots 	that 	were 	not
encumbered by his trust deeds. But in every such instance,
Lavender did so in conjunction with his argument that FCOI
Preserve could not recover for “stigmatized” lots. Of particular
note, that’s how Lavender framed the issue in his Statement of the
Issues, and Lavender is of course free to frame his issues however
he sees fit. For the reasons just given, we see no basis for
concluding that these lots fell under the “stigma” statute at all.
We recognize that in some case, we may be asked to answer
the question that’s lurking in the shadows here—namely, if a
single entity (likely a developer) owns multiple lots and there has
been a slanderous statement that was made about just some of
them, can the owner recover damages if it can prove that the
statement depressed the values for the other lots too, or is the
owner instead limited to receiving damages for only the lots
directly affected by the slanderous statement? But since it’s not
clear that Lavender meant to raise this as an issue outside the
context of the “stigma” statute, it’s not clear that we are even
being asked to answer that question. And if Lavender meant to
implicitly raise it, Lavender has not pointed to any authority or
adequately developed an argument to support his apparent view
on this nuanced question. As a result, we conclude that he has not
carried his burden of persuasion. See Bank of Am. v. Adamson, 2017
UT 2, ¶ 12, 391 P.3d 196 (“An appellant who fails to adequately
brief an issue will almost certainly fail to carry its burden of
persuasion on appeal.” (quotation simplified)). But in resolving
this potential issue on this limited basis, “we leave open the
possibility that, if some future case arises in which” this issue is
“better presented, we may consider [it] anew.” Keisel v. Westbrook,
2023 UT App 163, ¶ 52 n.9, 542 P.3d 536, cert. denied, 554 P.3d 1097
(Utah 2024).

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20230390-CA 	51 	2025 UT App 47
VII. Prejudgment Interest
¶110 	At the close of trial, the jury returned a verdict finding
Lavender liable to FCOI Preserve for slander of title. Using a
special verdict form, the jury awarded damages on a lot-by-lot
basis, ultimately awarding FCOI Preserve $1,416,730 in damages.
FCOI Preserve’s proposed final judgment included an award of
prejudgment 	interest. 	Lavender 	opposed 	the 	inclusion 	of
prejudgment interest on multiple grounds, including that it was
unavailable 	in 	this 	kind 	of 	case 	and 	that 	FCOI 	Preserve’s
proposed amount was improperly calculated. The district court
disagreed. In the final judgment, the court ruled that “FCOI
Preserve is entitled to prejudgment interest on its damages at a
rate under Utah law base[d] upon application of Utah Code
section 15-1-4,” and it awarded interest at the “applicable rate of
6.73%” set forth in the then-controlling rule. Based on the jury’s
overall damages award, it accordingly awarded $677,419 in
prejudgment interest.
¶111 	Lavender 	now 	challenges 	that 	award 	on 	appeal. 	In
Lavender’s view, (1) prejudgment interest could not be awarded
in this case, and (2) even if it could be, the interest was improperly
calculated. We disagree.
¶112 	“A prejudgment interest award is proper when the damage
is complete, the loss can be measured by facts and figures, and the
amount of loss is fixed as of a particular time.” Harris v. IES
Assocs., Inc., 2003 UT App 112, ¶ 52, 69 P.3d 297 (quotation
simplified). This is sometimes referred to as “the Fell standard.”
Smith v. Fairfax Realty, Inc., 2003 UT 41, ¶ 19, 82 P.3d 1064 (citing
Fell v. Union Pac. Ry. Co., 88 P. 1003 (Utah 1907)). On the other
hand, “courts will not award prejudgment interest in cases where
the trier of fact has to use its best judgment in assessing the
amount to be allowed for past as well as for future injury,” KTM
Health Care Inc. v. SG Nursing Home LLC, 2018 UT App 152, ¶ 81,
436 P.3d 151 (quotation simplified), such as “personal injury

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cases, 	cases 	of 	death 	by 	wrongful 	act, 	libel, 	slander, 	false
imprisonment and all cases where the damages are incomplete
and are peculiarly within the province of the jury to assess at the
time of trial,” Smith, 2003 UT 41, ¶ 20 (quotation simplified).
¶113 	Our supreme court has explained that it is “reluctant to
award prejudgment interest for unrealized profits.” USA Power
LLC v. PacifiCorp, 2016 UT 20, ¶ 100, 372 P.2d 629 (quotation
simplified). But in Smith, our supreme court cited with approval
two of its earlier cases–San Pedro, Los Angeles & Salt Lake Railroad
Co. v. Board of Education, 99 P. 263 (Utah 1909), and Kimball v. Salt
Lake City, 90 P. 395 (Utah 1907)—for the proposition that “fair
market valuations of real property are within the category of
damages upon which prejudgment interest may properly be
awarded.” Smith, 2003 UT 41, ¶ 21. It explained that, in such an
instance, “‘for the purpose of fixing damages, the injury is
complete; the damages are ascertained by the ordinary rules of
evidence and according to a known standard or measure of value.
And all this must be determined from competent evidence, which
is binding upon both the court and jury.’” Id. (quoting San Pedro,
99 P. at 267).
¶114 	Here, FCOI Preserve called an expert to testify about
reduced sales prices—i.e., “the difference between the market
value for each lot . . . and the actual sales price received for each
lot.” This instance thus falls comfortably within the Smith/San
Pedro rule. While it’s true that the jury did not award the exact
amount of damages to which FCOI Preserve’s expert testified, this
wrinkle doesn’t mean that the district court was prohibited from
awarding prejudgment interest. To the contrary, our supreme
court has explained that what matters is whether the “damage
figures are subject to calculation,” so “even if the method of
calculating 	is 	uncertain, 	or 	the 	damage 	figures 	change,
prejudgment interest is appropriate.” Encon Utah, LLC v. Fluor
Ames Kraemer, LLC, 2009 UT 7, ¶ 55, 210 P.3d 263. As explained,
FCOI Preserve’s damages were subject to calculation. As FCOI

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20230390-CA 	53 	2025 UT App 47
Preserve points out in its brief, “[t]he actual sales prices were fixed
on the date of the sale, were ascertainable, and indisputable,” and
“[t]he market values were also fixed as of the date of the sale and
ascertainable.” Thus, we conclude that the district court was
correct to award prejudgment interest.
¶115 	Lavender also argues that the district court improperly
calculated prejudgment interest. In his view, the district court
should have used a variable rate that accounted for fluctuations
in historical postjudgment interest rates from 2014 to 2023, rather
than relying on the postjudgment interest rate from 2023. But he
points to no authority indicating that the district court was
required to do so.
¶116 	Moreover, 	our 	court 	has 	affirmed 	an 	award 	of
prejudgment 	interest 	based 	on 	the 	rate 	provided 	in 	our
postjudgment 	interest 	rate 	statute. 	See 	Kealamakia, 	Inc. 	v.
Kealamakia, 2009 UT App 148, ¶ 16, 213 P.3d 13. Our postjudgment
interest statute provides that “final civil and criminal judgments
. . . shall bear interest at the federal postjudgment interest rate as
of January 1 of each year, plus 2%.” Utah Code § 15-1-4(3)(a). That
rate is fixed “for the duration of the judgment.” Id. § 15-1-4(3)(b).
And this is the rate that the district court applied here.20
¶117 	We therefore hold that the district court did not err in
awarding prejudgment interest to FCOI Preserve.
20. Utah’s postjudgment interest rates are available online. See
Historic 	Post 	Judgment 	Interest 	Rates, 	Utah 	State 	Courts,
https://www.utcourts.gov/en/court-records-publications/resources/
interest-rates/historic.html 	[https://perma.cc/C4MS-ERTC]. 	In
2023, the postjudgment interest rate was 6.73%, see id., which is
the rate that the district court applied here.

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CONCLUSION
¶118 	Lavender has challenged a large number of the district
court’s rulings. For the reasons set forth above, we see no basis for
reversing any of them. The verdict and judgment are therefore
affirmed.