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Carmichael v. Higginson

Court of Appeals of Utah

August 3, 2017

Jacquelynn D. Carmichael and Megan M. Moss, Appellees,
Kraig T. Higginson and Mark Burdge, Appellants.

         Third District Court, Salt Lake Department The Honorable Royal I. Hansen No. 140907046

          Stephen Quesenberry and Mark R. Nelson, Attorneys for Appellants

          Richard H. Johnson II, D. Matthew Moscon, and Landon A. Allred, Attorneys for Appellees

          Judge Michele M. Christiansen authored this Opinion, in which Judges J. Frederic Voros Jr. and Stephen L. Roth concurred. [1]

          CHRISTIANSEN, Judge.

         ¶1 Kraig T. Higginson and Mark Burdge appeal the district court's grant of summary judgment in favor of Jacquelynn D. Carmichael and Megan M. Moss (the Morton Estate). We affirm and remand to the district court for the limited purpose of calculating reasonable attorney fees incurred on appeal.


         ¶2 Higginson was friends with James Morton for several years. In early 2006, Higginson, who was then the CEO of Raser Technologies, Inc., found himself in personal financial trouble and asked Morton for help. On January 24, 2006, Morton sent instructions to his bank to wire $491, 000 to Higginson. Morton's bank wired the money to Higginson's bank account the next day. According to Higginson, he "agreed to repay Morton contingent on Higginson selling his Raser stock for a large profit." Raser eventually filed for bankruptcy, and Higginson was unable to sell his Raser stock.

         ¶3 Higginson and Morton occasionally discussed the money via email. For example, in December 2006, Higginson sent Morton an email stating, "I also need to get 'squared up' on the $ I owe you. I haven't forgotten . . . and you will get paid." (Ellipsis in original.) In an April 2008 email, Morton asked an associate of his to inquire about the " $500K" he had "loaned [Higginson] a couple of years ago to close on his house." A few days later, Higginson emailed Morton, stating:

Things are going great. Should be able to get the [Raser] stock up nicely soon, and get you paid back. You were truly a life saver this past year. Thanks for the patience. I have asked Stan Kimball to prepare a Note . . . just in case I get run over by a bus . . . you would get paid.

(Emphasis and ellipses in original.)

         ¶4 In September 2008, Mark Burdge[2] emailed Morton regarding the money:

[C]an I get the details of the loan that [Higginson] owes you? I'm trying to tidy up his accounting and he indicated he has an outstanding obligation to you in excess of $500, 000.00. I need dates, interest, amount advanced etc. and any other loan documents or memos if you have them.

         Morton responded to Burdge's email as follows:

As far as the loan to [Higginson] goes, Stan Kimball has asked me to put it in the form of a demand note. The 491K was transferred . . . to [Higginson] by me on [January 24, 2006]. I agreed to have it accrue interest at 5%, compounding annually. If for any reason the terms are not acceptable to [Higginson], let me know and we'll go back to the drawing board.

         ¶5 On December 31, 2008, Higginson executed a demand note (the Demand Note) in favor of Morton. The Demand Note provided:

FOR VALUE RECEIVED, I, Kraig T. Higginson, the undersigned ("Borrower"), promises to pay to James E. Morton ("Lender"), or his designee, the sum of Four Hundred Ninety One Thousand Dollars, together with interest thereon at the rate of five percent (5%) per annum, compounded annually. The entire unpaid principal and accrued interest thereon shall become immediately due and payable on demand by the holder hereof. This Note originated on January 24, 2006 with the accrual of interest commencing as of said date and continuing until paid.

         The Demand Note also stated, "This instrument constitutes the entire agreement of the parties and may not be modified or altered except by an instrument in writing executed by both of the parties." Lastly, Higginson, as the borrower, agreed to "pay all costs and expenses, including reasonable attorney's fees, in the event of a default under this Note." Higginson provided a signed copy of the Demand Note to Morton but retained the original.

         ¶6 Morton died in May 2009. In 2013, the Morton Estate first contacted Higginson about the Demand Note. Over the next eighteen months, the Morton Estate tried, to no avail, to collect on the Demand Note. In October 2014, the Morton Estate filed a complaint against Higginson, alleging breach of contract and, in the alternative, promissory estoppel and unjust enrichment. The Morton Estate later filed an amended complaint adding Burdge as a defendant. In addition to the original claims against Higginson, the amended complaint included alternative claims for conversion ...

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