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Tretheway v. Furstenau12/20/2001
(For Official Publication)
Third District, Salt Lake Department The Honorable Leslie A. Lewis
Appellant Sandra L. Tretheway, Trustee of the Tretheway Family Trust (Tretheway), appeals the district court's grant of Appellees' (Borrowers) motion for summary judgment and its denial of her motion for summary judgment. Tretheway also appeals the denial of her motion to amend her complaint. The district court concluded that the promissory note and trust deed unambiguously required reconveyance of all trust deed property because the obligation secured by the trust deed was satisfied. The district court also concluded that Tretheway's motion to amend was untimely and legally insufficient. Borrowers argue that the district court correctly ruled on these motions, and request attorney fees and costs on appeal. We affirm and remand for a determination of costs and attorney fees on appeal.
BACKGROUND
On February 1, 1999, Tretheway and Borrowers executed a promissory note (Promissory Note) for a $150,000 loan, and a trust deed (Trust Deed) to secure payment of the promissory note. The Trust Deed conveyed two properties (Trust Property) in trust to Tretheway, one with apartments (Apartments Property) and the other with a gas station (Gas Station Property). Exhibit "A" attached to the Trust Deed describes both the Apartments Property and the Gas Station Property. The tax serial numbers of the Apartments Property were attached to the Promissory Note as "Exhibit 'A,'" and a description of the Gas Station Property was attached as "Exhibit 'B.'"
The Promissory Note contains three paragraphs in a section designated as "RELEASES" (Release Section). The first paragraph grants Borrowers a partial release of "A SECOND TRUST DEED ON THE PROPERTY ATTACHED HERETO AS EXHIBIT 'A,'" the Apartments Property, "upon the payment of the sum of $20,000.00 per [apartment] sold to" Tretheway. The second paragraph states that " pon the payment of $150,000.00 to [Tretheway] . . . the Trust Deed described in Exhibit 'A' shall be released." Finally, paragraph three grants Borrowers a transfer or conveyance of four items "on the payment of the som of $53,400.00 for the purchase of the note Described as the Camillo note, now owned by the Tipton Family Trust": (1) release of " he first trust deed on the property described in Exhibit 'B,'" (2) assignment of the Camillo note to Borrowers, (3) assignment of a "Deed of trust to Blair Nebeker," and (4) any additional papers needed to transfer the rights to a cause of action in a case related to the Camillo note.
Borrowers paid $150,000 plus interest to Tretheway on June 23, 1999, and requested reconveyance of the Trust Property. Tretheway reconveyed the Apartments Property, but refused to reconvey the Gas Station Property. Tretheway then filed an action for a declaratory judgment in district court, seeking a declaration "that [Tretheway] need not execute the release for the property described in Exhibit 'B' to the promissory note until [Borrowers] can pay $150,000.00 and pay the additional sums as described in paragraph 3 of the Promissory Note." Tretheway and Borrowers both filed motions for summary judgment.
The district court denied Tretheway's motion for summary judgment and granted the motion submitted by Borrowers. The district court concluded that the "unambiguous language" of both the Promissory Note and the Trust Deed merely created alternative release provisions and that paragraph two required release of the Trust Deed upon payment of $150,000. Tretheway then filed a motion to amend her complaint to include a claim for reformation of the Trust Deed and Promissory Note based on mutual mistak
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