District Court, Logan Department The Honorable Brandon J.
Maynard No. 030100421
George Daines and Jonathan E. Jenkins, Attorneys for
N. Anderson and R. Christian Hansen, Attorneys for Appellee.
Kate A. Toomey authored this Opinion, in which Judges David
N. Mortensen and Ryan M. Harris concurred.
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 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
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]
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."
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 ...