Jacquelynn D. Carmichael and Megan M. Moss, Appellees,
Kraig T. Higginson and Mark Burdge, Appellants.
District Court, Salt Lake Department The Honorable Royal I.
Hansen No. 140907046
Stephen Quesenberry and Mark R. Nelson, Attorneys for
Richard H. Johnson II, D. Matthew Moscon, and Landon A.
Allred, Attorneys for Appellees
Michele M. Christiansen authored this Opinion, in which
Judges J. Frederic Voros Jr. and Stephen L. Roth concurred.
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
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.
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.)
In September 2008, Mark Burdge 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.
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
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.
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.
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 ...