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Pioneer Builders Company of Nevada Inc. v. K D A Corp.

Court of Appeals of Utah

November 1, 2018

Pioneer Builders Company of Nevada Inc., Appellee,
v.
K D A Corporation, Appellant.

          First District Court, Logan Department The Honorable Brandon J. Maynard No. 030100421

          N. George Daines and Jonathan E. Jenkins, Attorneys for Appellant

          Gary N. Anderson and R. Christian Hansen, Attorneys for Appellee.

          Judge Kate A. Toomey authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

          OPINION

          TOOMEY, JUDGE.

         ¶1 K D A Corporation (K D A) appeals the district court's order that denied its Motion to Enforce Redemption Right and granted Pioneer Builders Company of Nevada Inc.'s (Pioneer) Motion to Enforce Settlement Agreement. K D A argues the court erred in ruling K D A waived the statutory right of redemption[1] under the terms of a settlement agreement (the Agreement) between K D A and Pioneer. We conclude K D A did not waive its right of redemption because the Agreement did not contain a clear and unmistakable waiver of that right. We therefore reverse and remand this case to the district court for further proceedings consistent with this opinion.

         BACKGROUND

         ¶2 In October 2000, K D A sold approximately forty acres of real property (the Property) to a buyer through an installment contract and secured by trust deed. The buyer financed the purchase with a loan from Pioneer, and Pioneer's loan was also secured by trust deed. When the buyer defaulted, Pioneer sought to foreclose. The foreclosure resulted in a dispute concerning the relative priority of the parties' trust deeds. After several years of litigation, Pioneer and K D A entered into the Agreement to "resolv[e] all differences between them, subject to the terms and conditions of [the] Agreement."

         ¶3 The Agreement included multiple provisions that subordinated K D A's trust deeds to Pioneer's trust deeds. Specifically, K D A agreed that Pioneer's trust deeds "attached to, affect, and encumber [the Property] . . . ahead of, superior to, and not subject to KDA's [trust deeds]." The parties reiterated that priority by including a formal subordination agreement, stating:

[A]s part of a settlement of various claims and disputes between and among them, KDA and Pioneer have agreed . . . to the subordination of KDA's [trust deeds] and its other claimed estates, rights, titles, liens, and encumbrances, and other interests in, on, and/or to the Property . . . to Pioneer's [trust deeds].

         K D A further agreed "that pursuant to [the subordination agreement] Pioneer's [trust deeds] . . . have priority over KDA's [trust deeds], and any and all other liens, encumbrances, and other interests of KDA in, on, and to the Property," and that the priority of Pioneer's trust deeds over K D A's trust deeds "shall be respected in the presently pending judicial foreclosure."

         ¶4 The Agreement also contained stipulations, releases, and reservations of claims. In one provision, K D A agreed that

Pioneer is entitled to foreclose upon [the Property], . . . including, but without limitation, foreclosing out, terminating, and extinguishing any and all estates, rights, titles, liens, encumbrances, and other interests . . . that KDA may have or claim in, on, or to [the ...

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