author: HOWE, Chief Justice: DURHAM, Justice,

text:
    2001 UT 110
    In the Matter of the DISCIPLINE OF Jamis M. JOHNSON, No. 3937.
    No. 990806.
    Supreme Court of Utah.
    Dec. 18, 2001.
    Rehearing Denied April 25, 2002.
    Durham, J., filed opinion concurring in part and dissenting in part;
    Wilkins, J., filed opinion concurring in part and dissenting in part.

      Stewart M. Hanson, Ir., Cameron S. Den-ning, Salt Lake City, for Johnson.
    Kate A. Toomey, Salt Lake City, for the Utah State Bar.
   HOWE, Chief Justice:

INTRODUCTION

1 1 Attorney Jamis Johnson was disbarred from the practice of law for intentionally misappropriating client funds, a violation of the Utah Rules of Professional Conduct. The trial court stayed the judgment pending any appeal. The Utah State Bar, through its Office of Professional Conduct (OPC), appeals from the order staying the judgment. Johnson cross-appeals from the judgment of disbarment.

BACKGROUND .

[ 2 In connection with his representation of a client, Johnson settled a case for $50,000. He deposited that money in a trust account as required by rule 1.15 of the Utah Rules of Professional Conduct, and tendered a check in the amount of $28,800 to his client as its share of the settlement. Upon receiving the check, the client told Johnson it was going to return it to him because he did not have authority to settle for $50,000 without the client's consent. In a letter to his client dated January 19, 1998, Johnson responded:

In our last conversation, you claimed to have returned the trust account check I sent you. I have not received that check. I have therefore stopped payment on that check.
If you want me to issue another check I will, but I will await your instructions in that regard.
In the meantime, I will hold the funds in trust. If I am compelled to take any further action on the matter, you will be billed at the previously discussed rate of $150.00 and I will, as the bill accrues, draw down such legal fees out of the amount of the trust account.

(Emphasis added.) In a letter dated January 26, 1998, Johnson's client responded:

I inadvertently failed to return the Trust Account check,. Please find it enclosed herewith.
In response to your January 19, 1998 letter you may do as you wish with the funds, but you should be aware that you have not responded to our last conversation in which I suggested that we pursue arbitration or mediation. I am, therefore, proceeding formally against you under the laws of the State of Utah....
. [Dlo not work on this matter or any other matter related to [this client] or any of its subsidiaries.

(Emphasis added.) The client then filed an informal complaint with the OPC alleging that Johnson had settled the case without authority; the complaint was later dismissed. Approximately fifteen months later, the client demanded payment of the $28,800 by letter dated April 15, 1994. When Johnson had not returned the funds by February 16, 1995, the client again sent a letter demanding payment within ten days: When the client did not receive payment, it made a second informal complaint to the OPC, alleging misuse of a client's funds. The OPC subsequently filed a formal complaint against Johnson on May 20, 1997, charging that he violated rule 1.15 of the Utah Rules of Professional - Conduct by - misappropriating $28,800 of client money. The Bar moved for summary judgment, which the trial court granted. Following a sanctions hearing, the court disbarred Johnson for misappropriation of client funds based on the following findings of undisputed fact:

Johnson held the client's $28, 800 in a trust account.
Mr. Johnson attempted to deliver the $28,800 to the client and those funds were returned to Mr. Johnson.... Mr: Johnson placed the client's $28,800 in trust and agreed to hold the client funds in trust pending a resolution of their differences.
Thereafter the client requested the return of the funds, but .Mr. Johnson did not 'return the $28,800.
Mr. Johnson converted the $28,800 for his own use.
Mr. Johnson offered no satisfactory explanation of why he kept the $28,800. His explanation of expenses for the threatened malpractice action by the client agamst Mr. Johnson is not a satisfactory explanation.

Johnson was granted a stay of the judgment of disbarment pending any appeal.

-BTANDARD OF REVIEW

13 This court is charged with governing the conduct and discipline of those admitted to practice law in this state. Thus in reviewing attorney discipline cases, "while we review the trial court's finding of facts under the clearly erroneous standard, we reserve the right to draw different inferences from the facts than those drawn by the trial court." In re Discipline of Ince, 957 P.2d 1233, 1286 (Utah 1998) (citation omitted); see also In re Discipline of Babilis, 951 P.2d 207, 213 (Utah 1997). In addition, "our constitutional responsibility requires us to make an independent determination as to the [correctness of the discipline actually 1mposed] " Inca, 957 P.2d at. 1236

ANALYSIS -

14 We address first whether the trial court's sanction of disbarment was appropriate and then turn to the issue of whether Johnson was properly granted a stay pending this appeal.

I. DISBARMENT SANCTION

15 Attorney discipline sanctions are governed by the Standards for Imposing Lawyer Sanctions, chapter 15 of the Supreme Court Rules of Professional Practice. These standards state that the purpose of sanctioning an attorney is

to ensure and maintain the high standard of professional conduct required of those who undertake the discharge of professional responsibilities as lawyers, and to protect the public and the administration of justice from lawyers who have demonstrated by their conduct that they are unable or likely to be unable to discharge properly their professional responsibilities.

Standards for Imposing Lawyer Sanctions rule 1.1. Rule 8 of those standards provides that after misconduct has been found, the factors to be considered in imposing a 'sanction include "(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggr avatmg or mitigating factors."

1 6 These rules additionally provide that an order disbarring an attorney is generally appropriate absent mitigating or aggravating cireamstances when he or she

(a) knowingly engages in professional misconduct as defined in Rule 8.4(a), (d), (0), or (F) of the Rules of Professional Conduct with the intent to benefit the lawyer or another or to deceive the court, and causes serious or potentially serious injury to a party, the public, or the legal system, or causes serious or potentially serious interference with a legal proceeding; or
(b) engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation ... or an attempt or conspiracy or solicitation .of another to commit any of these offenses; or .
(c) engages in any other intentional misconduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice law.

Standards for Imposing Lawyer Sanctions rule 4.2.

T7 Subsection (a) above directs us to rule 8.4 of the Utah Rules of Professional Conduct for definitions of professional misconduct sufficient to trigger the sanction of disbarment. The first subsection of rule 8.4 provides that it is professional misconduct for an attorney to "[vliolate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another." Utah R. Profil Conduct 8.4(3).

118 The trial court held that Mr. "Johnson violated rule 1.15(a2), (b), and (c) ... of the Rules of Professional Conduct when he intentionally misappropriated [his client's] funds for his personal or business use." After determining that Johnson had violated the Utah Rules of Professional Conduct, the trial court correctly weighed mitigating and aggravating factors and determined that, although Johnson's conduct was not as egregious as that of other attorneys who have been disbarred by this court in recent years, disbarment was the appropriate remedy under our case law because there were no substantial mitigating cireumstances. We agree.

19 We held in Babilis that intentional misappropriation of a client's funds will result in disbarment absent "truly compelling mitigating cireumstances." 951 P.2d 207, 217 (Utah 1997). We see no reason to deviate from this rule. The rule takes into consideration the factors listed in rule 3, including the duty violated, the lawyer's mental state, the potential or actual injury caused,, and the existence of aggravating or mitigating circumstances. As we stated in Babilis, "[iJnten-tional misappropriation of a client's funds is always indefensible; it strikes at the very foundation of the trust and honesty that are indispensable to the functioning of the attorney-client relationship and, indeed, to the functioning of the legal profession itself." Id. We will not abide such conduct.

10 Johnson does not dispute the fact that he did not return the $28,800 to his client upon demand. The trial court found that he made no satisfactory explanation for this failure. The court weighed the mitigating factors presented by Johnson and determined that they were not sufficient to warrant a lesser sanction. He contends that he "has maintained a practice for many years, which includes significant pro bono work, involvement in community organizations, and a good reputation among his fellows" and that he "is not the type of individual committing the type of acts" requiring disbarment. Although a good reputation and community service are commendable, they do not constitute "truly compelling mitigating cireum-stances" when there has been a misappropriation of client's funds. Id. at 217.

T11 In addition, Johnson contends that the entire cirenmstances surrounding the misappropriation is a mitigating cireum-stance. Although he does not dispute that he used the $28,800 for personal or business purposes, he asserts that there is a question of fact about whether the client was even entitled to that money. He argues that when the client, after rejecting his tender of the money, terminated the attorney-client relationship and told him to do with the money what he would, his own obligation to keep the money in trust ended. He argues further that his client owed him money from other transactions including fees for protecting his interest in this case, and thus he was entitled to a-portion of the $28,800 he initially tendered. We disagree.

112 The Rules of Professional Conduct require that in the case of a dispute over funds, the attorney is to maintain those funds in a separate trust account until the dispute is resolved. Utah R. Profl Conduct 1.15(c). Johnson tendered $28,800 as the client's portion of the settlement funds. Pending resolution of the dispute with his client over ownership of those funds, he was required to maintain them in a separate trust account. Neither of the factors he presents as mitigating the presumptive sanction of disbarment is "truly compelling," and we therefore affirm the trial court's order.

T13 Johnson also contends that "[albsent a finding by the trial court of 'serious criminal conduct'" his case does not meet the requirements for presumptive disbarment in rule 4.2. We reject that argument here as we did in Babilis First, disbarment is appropriate when an attorney's conduct falls within any one of the three subsections of rule 4.2. The trial court's finding that Johnson knowingly violated rule 1.15 of the Utah Rules of Professional Conduct for his own benefit was sufficient to support his disbarment. As we earlier stated, this conduct seriously injures, at the very least, the public and the legal system.. Second, the intentional misappropriation of client funds falls within the description of "other intentional misconduct involving dishonesty, fraud, deceit, or misrepresentation" referred to in subsection. (c) of rule 4.2.4

T 14 We do not administer the sanction of disbarment lightly; we understand its devastating effects on an attorney. However, we are charged with protecting the public and the legal system of our state from those attorneys who do not abide by their professional responsibilities, and we cannot tolerate the intentional misappropriation of a client's funds. Thus we affirm the disbarment.

TIL STAY PENDING APPEAL

115 In appealing from the order granting Johnson's motion for a stay pending his appeal to this court, the OPC seeks "guidance on the important issue of the availability for stays of judgment in cases in which the district court has determined that the attorney's misconduct is so serious that it warrants disbarment." Our resolution of this issue today cannot affect the parties in this action and is therefore moot. We generally refrain from deciding moot questions because of our policy against issuing advisory opinions. In re Giles, 657 P.2d 285, 286 (Utah 1982). However, this case warrants an exception to this policy because the issue is one of wide public concern, and because of the short period any one litigant is affected by it, the issue is " 'capable of repetition yet evading review."" Id.; see also KUTV v. Conder, 668 P.2d 513, 516 (Utah 1988); Wickham v. Fisher, 629 P.2d 896, 899-900 (Utah 1981).

T16 The standard a trial court must follow in granting an attorney's motion for stay of a judgment of sanction pending appeal of that judgment is a question of first impression in this court. We look to the rules governing attorney discipline proceedings to resolve it. Rule 17 of the Rules of Lawyer Discipline and Disability provides that unless otherwise noted, "the Utah Rules of Civil Procedure, [and] the Utah Rules of Appellate Procedure governing civil appeals ... apply in formal discipline actions." Utah R. Civ. P. 17. Rule 8 of the Utah Rules of Appellate Procedure provides that a stay of a judgment or order of a district court pending appeal must generally be sought in the district court. Utah R. Civ. P. 8. Rule 62 of the Utah Rules of Civil Procedure provides that a trial court can grant a motion for stay pending appeal "in its discretion and on such conditions for the security of the adverse party as are proper." Utah R. Civ. P. 62(a).

117 Pursuant to our constitutional charge to "govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law," Utah Const. art. VIII, § 4, we enunciate a standard to guide the discretion of the district court in determining whether to stay a judgment of sanction pending appeal of that judgment to this court. Rule 18(a) of the Rules of Lawyer Discipline and Disability provides that a district court can grant a motion for interim suspension when an attorney "poses a substantial threat of ivreparable harm to the public" pending final disposition of a disciplinary proceeding. Although we recognize that an order of interim suspension is different from a final judgment of sanction in that the latter is based on a final determination of misconduct following a trial, the standard fits well in both situations and we adopt a modified version of it here. When an attorney can meet the burden of demonstrating to the trial court's satisfaction that his or her continued practice of law pending appeal does not pose a substantial threat of irreparable harm to the public, the trial court may, in its discretion, grant the stay. Under this standard, cases where the attorney's misconduct was a one-time incident as opposed to a pattern of misconduct over a period of time will probably be the most likely instances where a stay would be appropriate. We do not require, however, that the attorney also demonstrate that he or she has issues which are likely to result in reversal on appeal as we do in criminal cases where a convicted criminal defendant seeks a stay pending appeal. See Utah R.Crim. P. 27(d)(@). The discipline of an attorney is a civil case and the ultimate power to discipline is vested in this court under the Utah Constitution. The district courts in hearing the discipline cases act only as our agent. Because the private practice of law cannot easily be stopped and started again, unless there is a substantial threat of irreparable harm to the public, a disbarred lawyer should be entitled to a stay of judgment pending appeal to this court where the final authority for discipline rests.

[ 18 The trial court found that "the likelihood of harm to the public should Johnson be allowed to practice law during the pendency of this appeal is slim." We agree. Johnson's conduct warranting disbarment was a serious one-time offense and not a continuing pattern of misconduct that was likely to recur while he was allowed to continue to practice pending his appeal to this court.

119 The judgment of disbarment is affirmed. The trial court did not err in granting Johnson's motion for a stay pending his appeal to this court.

T20 Associate Chief Justice RUSSON and Justice DURRANT concur in Chief Justice HOWE's opinion.

DURHAM, Justice,

concurring and dissenting:

121 I concur in Part I of the majority opinion, but cannot join Part II. This court is charged by the Utah Constitution with the obligation to regulate the practice of law. We have delegated the screening, fact-finding, and initial judgment regarding discipline to the Utah State Bar and to the district courts, but we retain the final authority to oversee the system. When the prosecuting entity and the disciplined attorney accede to the appropriateness of the disciplinary sancetion imposed by the trial courts, or at least fail to challenge it, we lend our constitutional authority to the finality of the determination. Such trial court decisions, of course, create no precedent for the disposition of other cases. Where a sanction is challenged, however, this court undertakes a function that goes beyond the review of an individual case. We arbitrate questions of proportionality, rules of law, and guidelines for the imposition of sanctions that have general application for the practice of law in Utah. Our decisions interpret the Rules of Professional Conduct and develop the principles of application that will guide lawyers, the Bar, and the trial courts. |

122 Given the significance of our institutional role in the process of imposing sance-tions, I am troubled by the procedural analysis of my colleagues. Disbarment is the "ultimate" sanction in the context of disciplinary proceedings. Once it is effected, there is, in a professional sense, no turning back.. A disbarred lawyer must instantly close his practice, dismiss his clients, and remove himself from all Hitigation and transactions in which he has been engaged as a lawyer. There is little likelihood that a practice could be restored or regenerated if this court were to reverse the sanction after appeal, particularly given the many months required to resolve such appeals.

1 23 Trial courts have a more limited perspective on the disciplinary system than does this court. A trial judge is often called on to "predict" the answer to a question of first impression involving the rules and the scope of appropriate sanctions. It is not at all unexpected that a trial judge's best assessment of the trend of developing law turns out to be "wrong" in the sense that this court will reject it and opt for a different interpretation or policy. 'Where the judgment is equivalent to a professional death penalty, I believe that this court's review should precede execution.

124 This case presents a useful example. The facts ultimately support the sanction of disbarment, but it is in my view a very close question. An otherwise upright and commendable lawyer has committed one enormous error of judgment and behavior, for which he is to experience the complete loss of his career and reputation. It has been a very difficult decision for at least this member of the court to disbar. Simultaneously, this lawyer's misconduct, although meriting disbarment, constituted no interim danger to the public whatsoever during the pendency of the appeal. Had this court disagreed with the trial judge on the sanction, and had there been no stay of execution, a career might have been dismantled unnecessarily. I therefore take a view different from any of those supported by my colleagues. I believe that where disbarment is ordered by the trial judge and an appeal is taken, there should be an qutomatic stay unless there has been a showing sufficient to support an interim suspension under rule 18(a), either in the trial court proceedings themselves or on motion by the Bar. I don't want to overdo the analo-

888 Utah 48 PACIFIC REPORTER, 3d SERIES

gy to the death penalty in criminal cases, but I believe that the constitutional underpinnings and institutional structure of our disciplinary system require this court's review and approval before a career is terminated.

WILKINS, Justice, concurring and dissenting: T25 I concur in part I of Chief Justice Howe's opinion. I respectfully dissent to part II. The trial court should not have stayed the judgment.

26 I agree that once a judgment of disbarment is entered by the trial court, the burden should be on the lawyer to seek, and establish adequate grounds for, a stay of the disbarment pending review by this court. The obligation is on the lawyer to prove the entitlement to a stay by demonstrating to the trial court that the lawyer does not pose a substantial threat of irreparable harm to the public during the course of the review. Moreover, even making such a motion and showing should not entitle the disbarred lawyer to a stay of the disbarment pending review. Quite the contrary, the trial judge, acting as our agent in this type of proceeding, has broad discretion in deciding whether or not a stay is appropriate. In my opinion, we are unwise to create a presumption in favor of granting a stay. It would be better to require the disbarred lawyer to convince the trial court, or us, that he or she has a substantial likelihood of success on review by this court before granting a stay.

T27 At risk here is not only the livelihood of the lawyer, but the confidence of the public in the court's ability to police the ranks of those admitted to practice law. An interim suspension should be imposed when needed to protect the public. A disbarment should be effective when entered by the trial court, under all but the most unusual cireum-stances. Only when the lawyer can demonstrate that the disbarment is likely to be reversed on review by this court should the public be required to suffer continued exposure to the disbarred lawyer. Our duty to protect the public is higher than any duty to the disbarred lawyer, once the lawyer has been accorded a full measure of due process and evenhanded justice by the trial court.

Only when the quality of that justice is in real doubt should a stay be granted.

      . Rule 6 of the Standards for Imposing Lawyer Sanctions allows a departure from the presumptive sanction based on mitigating or aggravating circumstances to provide for the flexibility in discipline required by rule 1.3 of the Standards for Imposing Lawyer Sanctions.

      . Even Johnson asserts that he was entitled only to "an offset to some portion of the $28,800," not the entire amount. He knew his client 'did not mean to give him a gift of the money.

      . Once an attorney's conduct has been found to fall within rule 4.2 of the Standards for Imposing Lawyer Sanctions, the presumptive sanction is disbarment. There is no additional burden to show aggravating circumstances; the absence of aggravating factors is not a mitigating factor. 4. Johnson also asserts that disbarment is too harsh for his conduct because it "did not [even approach] the dishonest, egregious conduct" of Babilis. He argues instead that his situation is more akin to that of In re Cassity, the case of an attorney who was put on probation after receiving a public reprimand for failing to remit to his client her rightful portion of settlement proceeds. See In re Complaint of Cassity, 875 P.2d 548 (Utah 1994). Cassity was decided before we enunciated a firm rule in Babilis and may well have been decided differently today.


source: Caselaw Access Project

author: RUSSON, Associate Chief Justice.

license: Public Domain

text:
    2002 UT 32
    WATER & ENERGY SYSTEMS TECHNOLOGY, INC., Plaintiff, Appellee, and Cross-Appellant, v. Steven L. KEIL and Brody Chemical Company, Inc., Defendants, Appellants, and Cross-Appellees.
    No. 20000468.
    Supreme Court of Utah.
    March 19, 2002.
    Rehearing Denied May 3, 2002.

      Joseph C. Rust, Salt Lake City, for plaintiff.
    John T. Caine, Ogden, for Keil.
    Thomas R. Blonguist, Salt Lake City, for Brody Chemical.
   RUSSON, Associate Chief Justice.

T1 Steven L. Keil and Brody Chemical Company appeal from a trial court judgment awarding Water & Energy Systems Technology, Inc., $188,675 in damages for its claims of (1) intentional interference with existing and prospective business relations and (2) misappropriation of trade secrets pursuant to the Uniform Trade Secrets Act, Utah Code Ann. §§ 18-24-1 to -9 (1999). We affirm.

BACKGROUND

#2 "On appeal from a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to that verdict." Pratt v. Prodata, Inc., 885 P.2d 786, 787 (Utah 1994); see also Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107, 12, 37 P.8d 1180.

T3 Steven Keil ("Keil") began working for Water & Energy Systems Technology, Inc. ("WEST"), as a water treatment chemical sales representative in 1986. During his tenure at WEST, Keil spent the majority of his time managing and servicing certain of the company's industrial sales accounts, including those for Alliant Techsystems ("Alliant"), Cargill Flour Milling ("Cargill"), Magnesium Corporation of America ("MagCorp"), and Utah State University ("USU"). As part of his duties related to these accounts, Keil had access to the formulae WEST used to create its chemicals, as well as to WEST's confidential, customer-specific pricing lists for those chemicals.

4 Subsequently, in September 1997, representatives of Brody Chemical Company ("BCC") approached Keil about the possibility of his leaving WEST to work for BCC. Keil initially declined this invitation, deciding instead to stay with WEST. After further discussions, however, Keil agreed in late 1997 to begin selling for BCC water treatment chemicals similar to those he was marketing for WEST. i

15 In preparation for his departure from WEST, Keil began meeting with various employees of BCC, including the company's owner, Jon Liddiard. The purpose of these meetings was to ensure that BCC carried an inventory of treatment chemicals comparable to those marketed by WEST, and to establish a pricing scheme for the chemicals that would be "competitive" with WEST's pricing. Accordingly, the discussions at Keil's meetings with BCC centered around the necessary "[flormulations" for the chemicals, how and "where to obtain [the] raw materials" required by the formulae, and possible "pricing" for the ultimate products. Specifically, BCC and Keil worked to create products that would be "equivalent" to WEST"s but that would be sold for "ten percent less" than the confidential prices charged by WEST to each respective customer.

T6 Following these preparatory meetings, on February 18, 1998, Keil drafted on BCC stationery six substantively identical letters to the various clients he had been servicing for WEST, including Alliant, Cargill, MagCorp, and USU. In the letters, Keil explained that he had begun working for BCC and that because of this change in employment, he could now offer "essentially the same" chemicals he had provided before but at "substantially lower" prices. In support of this contention, Keil's letters to Alliant, Cargill, and USU each included a table that juxtaposed the proposed prices of BCC's treatment chemicals with the prices of WEST's "corresponding" . chemicals. The prices listed for BCC's chemicals represented approximately a ten percent discount from WEST's prices.

T7 Shortly thereafter, on March 2, 1998, Keil voluntarily terminated his employment with WEST. The next day, Keil began delivering the letters he had written to the clients he serviced while at WEST. Within two weeks of the delivery of these letters, Alliant, Cargill, and MagCorp all ceased ordering water treatment chemicals from WEST despite the fact that WEST had serviced each company continuously for the previous four years and WEST "had every expectation" of maintaining those relationships. Moreover, two of these companies, Alliant and Cargill, immediately began purchasing their water treatment chemicals from BCC. Similarly, MagCorp reported to WEST that it was terminating their relationship based in part on "problems with [its service] representative," Keil.

18 On March 9, 1998, WEST sued BCC and Keil (collectively, "defendants") in the Second District Court for Davis County, alleging among other things that Keil had intentionally interfered with WEST's "existing and future business relationships for improper purposes," and had misappropriated WEST's confidential prices by sharing them with BCC in violation of the Uniform Trade Secrets Act, Utah Code Ann. §§ 18-24-1 to - 9 (1999). On March 26, 1998, the district court granted WEST a preliminary injunetion against BCC and Keil, which we reversed on interlocutory appeal in Water & Energy Systems Technology, Inc. v. Keil, 1999 UT 16, 974 P.2d 821 ("Keil I ").

[ 9 Following our decision in Keil I, defendants moved for summary judgment, asserting in part that Keil had not misappropriated WEST's price lists as a matter of law. The district court, however, denied the motion on this issue in an order dated September 1, 1999. The court reasoned:

There is sufficient evidence from which the trier of fact could conclude that the ... price lists of [WEST] were confidential.... [Therefore,] [tlhere remains a question of fact as to the misappropriation of [WEST]'s price lists and as to whether [WEST]'s price lists were used by [BCC and Keil] in establishing [BCC]'s prices.

Accordinglyche case proceeded to trial.

110 At trial, defendants again urged the district court to enter judgment in their favor, moving for a directed verdict at the conclusion of WEST"s case in chief on a number of grounds, including (1) that insufficient evidence had been introduced to establish WEST's claim for misappropriation of its price lists, (2) that insufficient evidence had been introduced to substantiate WEST's claim for intentional interference with its business relations for improper purposes, and (8) that WEST had failed to prove Keil's actions caused the company damages in regard to its contractual relationship with USU. Concluding that the jury could reasonably find in WEST's favor on the issue of misappropriation if it "chose to believe everything ... presented by way of [WEST]s case"-and that a jury finding of misappropriation would satisfy the challenged "improper purpose" element of WEST's intentional interference with business relations claim-the district court denied defendants' motion on these two issues but granted the motion on WEST's claim for damages related to its USU account. The court stated, "[On] the element of damage having to do with USUI,] the Court finds that there is insufficient evidence to go to the jury ... and therefore will allow [WEST to proceed] only [on] those issues relative to the claim from Alliant, from MagCorp, [and] from Cargill."

{11 At the conclusion of trial, the jury rendered a verdict in WEST"s favor on both its intentional interference with business relations and misappropriation of trade secrets claims, awarding the company $188,675 of damages in lost profits and unearned salary and benefits that had been paid to Keil. Specifically, the jury found that WEST's price lists were confidential; that Keil had misappropriated WEST's price lists; that Keil intentionally interfered with WEST's business relationships with Alliant, Cargill, and MagCorp; that Keil's actions damaged WEST; and that Keil engaged in these actions as an agent of BCC.

12 Subsequently, on March 10, 2000, defendants moved for a new trial and for judgment notwithstanding the verdict, contending among other things that insufficient evidence had been introduced at trial to establish WEST's claim for misappropriation of its trade secrets, and that an incorrect standard for calculating damages had been used in the case. WEST responded, and on May 31, 2000, the trial court denied defendants' motions. Finding that sufficient evidence had been introduced at trial to prove Keil had disclosed WEST's respective price lists for Alliant, Cargill, and MagCorp in an effort to transfer that business to BCC, the court ruled that the "damages awarded by the jury were fair and reasonable." Defendants now appeal the Judgment of the trial court.

ANALYSIS

On appeal, BCC and Keil raise two arguments: (1) that the trial court erred by failing to direct or set aside the jury verdict because, as defendants allege, WEST presented "insufficient evidence to support the jury's verdict" for its claim of misappropriation of trade secrets; and (2) that the trial court erred by refusing to set aside the damages awarded to WEST as an improper assessment of damages under the Uniform Trade Secrets Act In addition, WEST cross-appeals, claiming that the trial court inappropriately disallowed the company from seeking additional damages beyond those ultimately awarded by the jury. We address each issue in turn.

I. INSUFFICIENCY OF THE EVIDENCE

114 BCC and Keil first contend that the trial court erred by denying their motions for directed verdict and for judgment notwithstanding the verdict because WEST failed to present sufficient evidence to establish a misappropriation of WEST'"s price lists. Specifically, defendants argue that the evidence presented at trial "did not purponderate [sic]" the jury's finding of either (1) Keil's disclosure of WEST"s price lists or (2) "a nexus between the any [sic] activity of Keil [and] damage to WEST."

T15 When an appellant contends that the evidence presented at trial is insufficient to support a jury's factual findings, "we do not weigh the evidence de novo." In re Estate of Bartell, 776 P.2d 885, 886 (Utah 1989). Rather, we follow one standard of review: We reverse only if, taking the evidence in the light most favorable to the prevailing party, the appellant demonstrates that the findings lack substantial evidentiary support. Id.; see also Scudder v. Kennecott Copper Corp., 886 P.2d 48, 52 (Utah 1994); Heslop v. Bank of Utah, 839 P.2d 828, 839 (Utah 1992); Gustaveson v. Gregg, 655 P.2d 693, 695 (Utah 1982). Specifically, this standard obligates the appealing party to marshal all the evidence supporting the verdict and then show that such evidence "cannot support the verdict." Hansen v. Stewart, 761 P.2d 14, 18 (Utah 1988); see also, e.g., Brewer v. Denver & Rio Grande W. RR., 2001 UT 77, ¶¶33-36, 31 P.3d 557; Seale v. Gowans, 923 P.2d 1861, 1863 (Utah 1996);

Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991). Indeed, we employ this standard in light of our general deference toward the jury's role as fact-finder and our repeated recognition of trial courts' "advantaged position to evaluate the evidence and determine the facts" Utah Med. Prods., Inc. v. Searcy, 958 P.2d 228, 282 (Utah 1998); see also, e.g., Willey v. Willey, 951 P.2d 226, 280 (Utah 1997). Accordingly, when the appealing party does not meet its marshaling burden, we "assume that the evidence adequately supported the finding[s]," and the complaining party's assertion of insufficiency must therefore fail. Young v. Young, 1999 UT 38, 130, 979 P.2d 388; see also, eg., State v. Hopkins, 1999 UT 98, 116, 989 P.2d 1065; Searcy, 958 P.2d at 2883; Interwest Constr. v. Palmer, 928 P.2d 18350, 1860 (Utah 1996); Hall v. Process Instruments & Control, Inc., 890 P.2d 1024, 1028 (Utah 1995); Saunders v. Sharp, 806 P.2d 198, 199 (Utah 1991).

16 In this case, defendants' brief contains a lengthy section purporting to marshal the evidence in favor of the jury verdict. However, although BCC and Keil do cite some evidence that supports the jury's findings, even a cursory review of the trial record reveals that defendants "frequently omitf ] crucial and incriminating evidence" that weighs in favor of the jury's verdict. Alta Indus. Ltd. v. Hurst, 846 P.2d 1282, 1287 (Utah 1998). For example, defendants admit that Keil repeatedly met with employees of BCC prior to his departure from WEST, but they fail to address what occurred at those meetings: that BCC and Keil openly discussed prices in a joint effort to develop a plan to offer chemicals equivalent to WEST's at a ten percent discount from that company's prices. Similarly, defendants assert that when he departed from WEST, Keil "took no documents with him that set forth pricing," even though WEST's president specifically testified at trial that Keil never returned pricing sheets for a number of WEST's clients, including. Alliant and: MagCorp, that were in his possession when he left WEST. Further, defendants maintain that pricing was not the "key" issue affecting WEST's loss of business as a result of Keil's actions, despite the fact that evidence was introduced at trial deeming pricing "important"; that Alliant, Cargill, and MagCorp all ceased purchasing chemicals from WEST following BCC's offers to provide equivalent chemicals at a ten percent discount; and that following such offers Alliant and Cargill immediately began purchasing their water treatment chemicals from BCC. Indeed, defendants' supposed marshaling of the evidence in reality only constitutes a reargument of the factual case they presented below, with the evidence construed in a light most favorable to BCC and Keil rather than to WEST. See In re Estate of Bartell, TIG P.2d at 886. By its very nature, such a tactic does not carry defendants' "heavy" marshaling burden, and we consequently will not disturb. the jury's findings rendered in favor of WEST. Alta Indus., 846 P.2d at 1286; see also Young, 1999 UT 38 at 180, 979 P.2d 338; Searcy, 958 P.2d at 282; In re Estate of Bartell, 776 P.2d at 886; Scharf v. BMG Corp., 700 P.2d 1068, 1069-70 (Utah 1985).

II. MEASURE OF DAMAGES

117 Defendants' second argument on appeal is that the trial court erred by refusing to set aside the damages awarded to WEST. Specifically, defendants argue that rather than allowing WEST to recover its lost profits caused by Keil's disclosure of its price lists, the trial court should have limited WEST's damages to the "benefit" BCC and Keil received as a result of misappropriation. We disagree.

$18 Section 18-24-4 of the Utah Code governs the amount of damages that may be awarded for the misappropriation of a trade secret. This provision states that damages available under the Act

can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss. .

Utah Code Ann. § 18-24-4(1) (1999). When interpreting a legislative enactment, "we look first to the plain language of the act to determine its meaning." City of Hildale v. Cooke, 2001 UT 56, 136, 28 P.3d 697; see also, eg., State ox rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, 10, 44 P.3d 680; Associated Gen. Contractors v. Bd. Oil, Gas & Mining, 2001 UT 112, 1 27, 38 P.8d 291; Hall v. Utah State Dep't of Corr., 2001 UT 34, T 15, 24 P.8d 958; Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, 906 (Utah 1984). In this case, the plain language of section 18-24-4 is entirely antithetical fo the position advanced by BCC and Keil. Rather than restricting damages in misappropriation cases to the windfall obtained by the defendant, section 13-24-4 unambiguously states that such damages "can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss." Utah Code Ann. § 18-24-4(1) (emphasis added). Indeed, this language specifically contemplates-in two separate places-that a sue-cessful plaintiff in a misappropriation case may obtain the losses it suffers due to the disclosure of its trade secret. See id. Accordingly, we reject defendants' argument that damages for the misappropriation of a trade secret must be restricted to the unjust enrichment such disclosure renders, and thus, hold that the trial court did not err in this case by allowing WEST to recover its lost profits caused by BCC and Keil. See id.

III. ADDITIONAL DAMAGE CLAIMS

£19 Finally, WEST contends on cross-appeal that the trial court erred by disallowing the company from seeking additional damages beyond those ultimately awarded by the jury. Specifically, WEST asserts that it is "entitlie[d]" to "double damages and attorney[ ] fees" for Keil's "malicious and willful ... misuse of WEST's trade secrets," and to "additional damages [derived from] Keil's interference with WEST's USU account." In making this assertion, however, WEST fails to adequately set forth an argument as required by rule 24(a)(9) of the Utah Rules of Appellate Procedure.

120 This court has repeatedly held that appealing parties must " 'clearly define[ J " the issues presented on appeal " 'with pertinent authority cited." " State v. Bishop, 753 P.2d 489, 450 (Utah 1988) (quoting Williamson v. Opsahl, 92 Tll.App.3d 1087, 48 Tll.Dec. 510, 416 N.E.2d 788, 784 (1981)). Likewise, Utah Rule of Appellate Procedure 24 unequivocally requires, "(Appellant's brief] shall contain the contentions and reasons of the appellant with respect to the issues presented, including ... citations to the authorities, statutes, and parts of the record relied on." Utah R.App. P. 24(a)(9). Consequently, "LH is well established that a reviewing court will not address arguments that are not adequately briefed." State v. Thomas, 961 P.2d 299, 304 (Utah 1998); see also, eg., Ellis v. Swensen, 2000 UT 101, T17, 16 P.3d 1233; Coleman v. Stevens, 2000 UT 98, 17, 17 P.3d 1122.

121 In this case, WEST has entirely failed to adequately brief its assertion that it is "entitled" to additional damages. WEST does not offer even a single statutory citation, judicial decision, or procedural rule in support of its claim for further damages. See, e.g., Associated Gen. Contractors v. Bd. Oil, Gas, & Mining, 2001 UT 112, 187, 38 P.3d 291; State v. Bisner, 2001 UT 99, n. 5, 37 P.3d 1073; Featherstone v. Schaerrer, 2001 UT 86, n. 11, 34 P.3d 194. Indeed, WEST baldly asserts it is "clear from trial court testimony" that the company is due additional damages, but WEST fails to refer us to even one location in the record where such evidence exists. Moreover, WEST utterly neglects to discuss, let alone construe or apply, the Uniform Trade Secrets Act's provisions on damages and attorney fees-statutory language that would certainly be determinative, if not dispositive, of whether WEST qualifies for the damages it seeks. See Utah Code Ann. §§ 18-24-4 to -5. Such an approach is neither adequate under the Utah Rules of Appellate Procedure nor acceptable. Accordingly, because WEST has not sufficiently presented its claim for additional damages, we will not address the argument. E.g., Ellis, 2000 UT 101 at 117, 16 P.3d 1233; Coleman, 2000 UT 98 at 17, 17 P.3d 1122; Thomas, 961 P.2d at 304. As we have all too often had occasion to explain, this court will not become " 'simply a depository in which the appealing party may dump the burden of argument and research' " Bishop, 753 P.2d at 450 (quoting Opsahl, 48 Ill.Dec. 510, 416 N.E.2d at 784). We onee again refuse to accept that role.

CONCLUSION

1 22 In view of the foregoing, we conclude that the trial court did not err by (1) refusing to set aside the jury's verdict based on defendants' claims of insufficiency of the evidence and inappropriately assessed damages or by (2) disallowing WEST from seeking additional damages beyond those awarded by the jury. Accordingly, we affirm the judgment of the trial court as entered below.

123 Chief Justice HOWE, Justice DURHAM, Justice DURRANT, and Justice WILKINS concur in Associate Chief Justice RUSSONS opinion.

      . WEST attempted to ensure the confidentiality of its customer-specific price lists in a number of ways. The company provided prices to its sales representatives only on a "need to know basis." Likewise, WEST instructed its sales personnel to always inform customers that any pricing information they received was confidential. Finally, all written disclosures of WEST prices to the company's customers was accompanied by language that read in substance, "This material is proprietary and confidential. We honor your commitment to maintain it as suck."

      . Apparently, defendants also argue that the jury's finding concerning the confidentiality of WEST's price lists was not supported by the evidence because Keil committed them to memory and because BCC could have obtained the prices by asking WEST's customers what they paid for their chemicals. Likewise, defendants contend that Keil's actions in this case could not have injured WEST because WEST's contracts with Alliant, Cargill, and MagCorp "were not adhesion or exclusive contracts and [the companies} were free to purchase other products and services at any time." These arguments, however, fail for at least three reasons. First, defendants have not adequately briefed these contentions, and we therefore will not address them. E.g., State v. Bishop, 753 P.2d 439, 450 (Utah 1988); Utah R.App. P. 24(a)(9); see also infra T120-21. In addition, defendants do not even attempt to meet their marshaling burden on these arguments, and thus, we assume that the record supports the jury's findings in favor of WEST on these issues. E.g., State v. Hopkins, 1999 UT 98, 116, 989 P.2d 1065; Young v. Young, 1999 UT 38, 130, 979 P.2d 338. Finally, even a cursory review of the record reveals that ample evidence was presented at trial for the jury to find that WEST's price lists were confidential and expected their employees to keep them as such, that water treatment chemical prices are treated as confidential and proprietary within the industry as a general practice, and that WEST reasonably expected to continue its relationships with Alliant, Cargill, and MagCorp despite the nonexclusive nature of their contracts.

      . We further note that, under other conditions, the jury's finding in favor of WEST on the company's claim for intentional interference with business relations would constitute independent grounds for affirmance. See Crookston v. Fire Ins. Exch., 817 P.2d 789, 797-98 (Utah 1991). However, because the trial court explicitly hinged the viability of this claim on WEST's misappropriation claim, we address defendants' insufficiency of the evidence argument on appeal regardless.

      . See Associated Gen. Contractors, 2001 UT 112 at 137 & n. 8, 38 P.3d 291 (listing twenty-three cases in which a party inadequately briefed an argument); MacKay v. Hardy, 973 P.2d 941, 948 n. 9 (Utah 1998) (giving examples of the "disconcertingly legion" number of inadequately briefed cases); see also Tanner v. Carter, 2001 UT 18, 142, 20 P.3d 332; Coleman, 2000 UT 98 at 17, 17 P.3d 1122.


author: RUSSON, Justice.

text:
    2002 UT 38
    HOLMES DEVELOPMENT, LLC, Plaintiff and Appellant, v. Paul COOK, an individual, Cook Development, LC, a Utah limited liability company, and First American Title Insurance Company, a California corporatlon, Defendants and Appellees.
    No. 20000745.
    Supreme Court of Utah.
    April 16, 2002.

      Barry N. Johnson, Daniel L. Steele, Salt Lake City, for plaintiff.
    Gregory N. Jones, Gifford W. Price, Salt Lake City, for Cook and Cook Development.
    Alan L. Sullivan, Robert W. Payne, Salt Lake City, for First American Title.
   RUSSON, Justice.

T1 Holmes Development, LLC ("Holmes"), appeals from an order granting summary judgment to First American Title Insurance Co. ('First American") and from an order granting summary judgment to Paul Cook ("Cook") and Cook Development, LC ("Cook Development"). We affirm. ~

BACKGROUND

12 The parties to this appeal do not dispute the material facts. In 1998, Cook purchased two parcels of land in Heber City, Utah. One parcel was approximately 823 acres, and the other parcel was approximately 73 acres. Cook began subdividing and developing the larger parcel. Eventually, Cook conveyed the two parcels to Cook Development, a Utah limited liability company. Cook is, and has been at all relevant times, the principal member, the manager, and the registered agent of Cook Development..

T3 To further the development of the property, Cook Development associated with Premier Homes ("Premier") to infuse cash into the project. In October 1997, Cook Development and Premier formed two limited liability companies known as Lake Creek Farms, LC ("LC Farms"), and Lake Creék Associates, LC ("LC Associates"). Cook Development conveyed the 828-acre parcel to LC Farms and the 78-acre parcel to LC Associates.

{4 Eventually, Premier and Cook Development decided to part ways and agreed that deeds would be executed on behalf of LC Farms and LC Associates to reconvey the 323- and T73-acre parcels, respectively, to Cook Development. To effectuate the parties' agreement, First American prepared two quitclaim deeds, which were signed 'by Cook on behalf of Cook Development and by an agent of Premier. The quitclaim deed conveying the 8238-acre parcel erroneously identified LC Associates, rather than LC Farms, as the grantor.

[5 Immediately thereafter, Cook Development obtained financing from Clark Real Estate and used both parcels as collateral. Neither Cook, Cook Development, nor First American discovered the error in the quitclaim deed at that time.

6 Then, in April 1998, Holmes and Cook Development agreed that Holmes would purchase both parcels from Cook Development. First American was again retained to prepare a title insurance commitment report and to issue a title insurance policy to Holmes. On or about May 20, 1998, Cook Development closed the property sale, conveying both parcels to Holmes by way of warranty deed.

T7 In connection with this closing, First American acted as the escrow agent for the transaction and prepared all the closing documents, deeds, and settlement statements. At closing, First American provided Holmes a title insurance policy that insured both parcels. According to subsection 4(b) of the policy, in the event of a title defect, the policy allowed First American

to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest, as insured, or to prevent or reduce loss or damage to the insured. [First American] may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this policy.

In addition, in connection with the transaction, Cook and Cook Development signed an indemnity agreement and a modification and extension agreement on May 19, 1998. Holmes was the other party to these agreements.

T8 After the transaction was consummated, Holmes sought additional financing from Bank One of Utah ("Bank One"). Bank One retained First American to prepare the trust deed and title insurance documents associated with the financing. In July 1998, while examining the title for the Bank One loan, First American discovered that Cook Development did not validly convey the 8283-acre parcel to Holmes because Cook Development never held title to the parcel as a result of the erroncous quitclaim deed that was intended to convey the parcel from LC Farms to Cook Development.

T9 Upon making this discovery, First American immediately attempted to rectify the error, as it was obligated to do under the title insurance policy. Initially, First American contacted Premier and Cook Development, the members of LC Farms, and requested that they execute a corrected quitclaim deed to convey the 828-acre parcel from LC Farms to Cook Development. When Premier refused to sign the deed, First American prepared a special warranty deed whereby LC Farms deeded the 823-acre parcel directly to Holmes. First American prepared the corrective special warranty deed from LC Farms for Cook's signature, and Cook signed the deed.

1 10 Then, in November 1998, Premier sold the 328-acre parcel, as a member of and on behalf of LC Farms, to Keystone Development, LC ("Keystone"). Realizing that there were various competing claims as to the ownership of the 328-acre parcel, Keystone commenced a quiet title action ("Keystone litigation") and promptly recorded a lis pendens to give notice of the action. Keystone named Holmes, Cook, Cook Development, First American, and Bank One as defendants. First American, pursuant to the title insurance policy, retained legal counsel to defend the named defendants.

T11 In the suit, Keystone contended that LC Farms did not validly convey the 3283-acre parcel to Holmes because Cook and Cook Development lacked the authority to convey the property. In addition, Keystone argued that Premier, instead of Cook Development, was the manager of LC Farms and thus able to convey the parcel on behalf of LC Farms, vesting paramount title to the 323-acre parcel in Keystone.

12 Defending against Keystone's claims, Cook and Cook Development realized that the special warranty deed did not specify that Cook signed the deed in his representative capacity of Cook Development. In an effort to correct the signature on the special warranty deed, defense counsel prepared an affidavit in which Cook maintained that he intended to sign the special warranty deed in his capacity as the manager of Cook Development, which was a managing member of LC Farms. After eight months of litigation, on June 29, 1999, the trial court granted summary judgment in favor of all defendants and against Keystone. In particular, the court determined that the special warranty deed was a valid instrument of conveyance and that title vested in Holmes.

13 During the pendency of the Keystone litigation, the lis pendens precluded Holmes from selling a single lot in the 328-acre parcel. In particular, Holmes was unable to avail himself of the prime spring selling season. Additionally, Holmes continued to make interest payments to Bank One in connection with the loan Holmes procured.

[ 14 As a result, in October 1999, Holmes brought suit against Cook, Cook Development, and First American, seeking recovery for damages suffered in the form of lost profits and lost sales, and reimbursement of interest paid to Bank One that Holmes alleged it would not have been required to pay if Holmes had been able to sell lots. Holmes asserted three causes of action against First American: (1) negligence in (a) preparing the original quitclaim deed conveying the 823-acre parcel from LC Farms to Cook Development where the quitclaim deed named LC Associates as grantor, (b) performing a title search respecting the warranty deed from Cook Development to Holmes, and (c) allowing Cook to sign the special warranty deed in his individual capacity; (2) breach of contract/third-party beneficiary liability; and (8) negligent misrepresentation in that the quitclaim deed and the special warranty deed were "representations" from First American upon which Holmes relied to its detriment. Holmes also asserted three causes of action against Cook and Cook Development: (1) negligence, (2) breach of warranty, and (8) indemnification of damages under the indemnity agreement resulting from Cook's, Cook Development's, and First American's alleged negligence.

15 First American, Cook, and Cook Development all moved to dismiss each of Holmes's claims, or in the alternative, for summary judgment. In its memoranda in opposition, Holmes opposed the motions on legal grounds and also moved for leave to amend its complaint to defeat the motions.

116 On May 18, 2000, after receiving evidence regarding the propriety of dismissal, the trial court entered summary judgment in favor of First American and denied Holmes's motion for leave to amend the complaint with respect to First American. The trial court stated five independent grounds upon which it relied: (1) First American cured any title defects by September 3, 1998, two months before Keystone initiated the Keystone litigation, and therefore First American did not proximately cause Holmes's damages; (2) First American diligently and timely cured all of Holmes's title problems pursuant to the title insurance policy; (8) the economic loss rule precluded the negligence and negligent misrepresentation claims; (4) First American could not have reasonably expected Holmes to rely on its conduct with respect to the quitclaim deeds, thus barring the negligent misrepresentation claims; and (5) First American and Cook Development did not intend to confer a benefit upon Holmes in March 1998 as a third-party beneficiary, precluding the third-party beneficiary claims as a matter of law.

{17 On August 2, 2000, the trial court entered summary judgment in favor of Cook and Cook Development on three independent grounds: (1) The economic loss rule precluded any recovery against Cook and Cook Development on Holmes's negligence claim; (2) the breach of warranty claims were barred because any breach of warranty was cured before Keystone filed its lawsuit against Holmes and no damages were alleged to have occurred prior to good title being conveyed; and (8) Holmes's claim for indemnification of damages resulting from these defendants' alleged negligence was barred as being outside the scope of the indemnification agreement. The trial court also denied Holmes's motion for leave to amend its complaint against Cook and Cook Development.

'T1S Holmes now appeals both summary judgment orders entered against it and the denials of the motions for leave to amend the complaint. Holmes appeals the surnmary judgment order in favor of First American, arguing that (1) a question of fact exists as to whether First American took "appropriate action" under the title insurance policy, and (2) First American assumed and breached contractual duties in addition to those of the title insurance policy. In response, First | Atnmerican contends that its actions did not cause Holmes's damages, 'that it fulfilled all duties it owed to Holmes under the title insurance policy, and that there is no evidence that it breached any contractual duty to Holmes outside of the policy.

T19 Further, Holmes appeals the summary judgment order in favor of Cook and Cook Development, arguing that these defendants (1) breached the covenants of title in the warranty deed, and (2) assumed and breached contractual duties under the indemnification agreement and the modification and extension agreement. In response, Cook and Cook Development contend that any alleged breach of the covenants of title was cured before Keystone initiated its quiet title suit and the actions of Cook and Cook Development therefore were not the cause of Holmes's damages. In addition, Cook and Cook Development contend that Holmes is not entitled to recover under either the indemnity agreement or the modification and extension agreement.

20 Finally, Holmes argues on appeal that the trial court abused its discretion by failing to grant Holmes's motions for leave to amend its complaint. In reply, First American, Cook, and Cook Development all contend that Holmes improperly moved for leave to amend and that therefore the trial court did not abuse its discretion in denying the motions.

STANDARD OF REVIEW

T21 Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c); see also Ault v. Holden, 2002 UT 88, 1 15, 44 P.3d 781; State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, 18, 44 P.8d 680. Whether a trial court appropriately granted summary judgment is a question of law. Hill v. Allred, 2001 UT 16, T12, 28 P.3d 1271; Rivera v. State Farm Mut. Auto. Ins. Co., 2000 UT 36, 18, 1 P.3d 539. In determining if summary judgment was appropriate, we need review only whether the trial court erred by applying the governing law and whether a material fact was in dispute. Hill, 2001 UT 16 at 112, 28 P.3d 1271,. We thus review the trial court's legal conclusions for correctness, according them no deference. Ault, 2002 UT 338 at 115; SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, ¶9, 28 P.3d 669. Further, when we review whether summary judgment is appropriate, " 'we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party'" Ault, 2002 UT 33 at 115 (quoting DCM Inv. Corp. v. Pinecrest Inv. Co., 2001 UT 91, 1 6, 34 P.3d 785).

ANALYSIS

I. CONTRACT CLAIM AGAINST FIRST AMERICAN

122 The first issue on appeal is whether the trial court properly granted First American summary judgment on Holmes's contractual claims. The trial court ruled in its order granting First American summary judgment that Holmes had no enforceable third-party beneficiary right in the contract between Cook, Cook Development, and First American. Holmes has not appealed this ruling. Thus, the only possible contract claims that Holmes may have against First American would be predicated upon a direct contract between Holmes and First American.

A. Title Insurance Policy

1 28 In the order granting summary judgment to First American, the trial court concluded that claims under the title insurance policy were "barred as a matter of law by section 9(b) of the First American Title Insurance Policy." Holmes asserts that the trial court erroneously granted summary judgment to First American because there is a question of material fact as to whether First American took "appropriate action" as required by the title insurance policy First American issued as insurer to Holmes as insured.

124 A title insurance policy, like other insurance policies, serves as a contract between the insurer and the insured, and as such " 'is subject to the general rules of contract construction"" Miller v. USAA Cas. Ins. Co., 2002 UT 6, 149, 44 P.3d 663 (quoting S.W. Energy Corp. v. Cont'l Ins. Co., 1999 UT 23, 1 12, 974 P.2d 1289); accord First Am. Title Ins. Co. v. J.B. Ranch, Inc., 966 P.2d 834, 836 (Utah 1998). Thus, unless the language of the policy is ambiguous or unclear, we construe it according to the policy's " 'plain and ordinary meaning."" Miller, 2002 UT 6 at 149 (quoting First Am. Title Ins. Co., 966 P.2d at 886). Further, we construe the individual provisions of the insurance policy in light of the policy as a whole, Id. at $49. Whether the trial court was correct in construing the insurance policy to preclude Holmes from suing under it is a question of law that we review for correctness. Rivera v. State Farm Mut. Auto. Ins. Co., 2000 UT 36, ¶ 29, 1 P.3d 539.

1. Section 4(b): Appropriate Action

125 We need not address whether First American took "appropriate action" because the policy did not require "appropriate action." The plain language of section 4(b) of the policy provides that First American "may take any appropriate action under the terms of this policy." (Emphasis added.) The plain, ordinary, and accepted meaning of the word "may" is " 'permissive' or "discretionary,'" generally indicating that an individual is either "permitted" or "[hlas a possibility" to do something. Black's Law Dictionary 998 (ith ed.1999). The parties use the word "may" in section 4(b) of the policy to set forth their intention that First American has the option to take appropriate action, but is not required to do so. See generally, eg., Strawberry Elec. Serv. Dist. v. Spanish Fork City, 918 P.2d 870, 882 (Utah 1996); State v. Mohi, 901 P.2d 991, 1006 (Utah 1995). Inasmuch as "appropriate action" is not mandated by the policy, the need to determine if First American took appropriate action is obviated.

2. Section 9(a): Full Performance of Obligations

126 Further, according to the plain language of the policy, by defending Holmes in the Keystone litigation and successfully establishing title to the 323-acre parcel in Holmes as against Keystone, First American fully performed its obligations under the insurance policy. Section 9(a) of the policy provides:

(a) If [First American] establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right of access to or from the land, or cures the claims of unmarketability of title, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, # shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby.

(Emphasis added.)

127 First American cured any claims of unmarketability of title by succeeding in establishing title in Holmes by litigation. Section 9(a) expressly provides that litigation is a "reasonably diligent manner" of establishing title and curing any alleged title defects. Therefore, according to the plain language of section 9(a), First American has "fully performed its obligations with respect to that matter" and cannot "be liable for any loss or damage caused thereby."

3. Section 9(b): Limitation on Liability for Litigation

128 Moreover, First American contracted in section 9(b) to limit its lability under the policy in the event of litigation. See generally Pac. Am. Constr. v. See. Union Title, 1999 UT 87, 15, 987 P.2d 45 (" [P larties [to a title insurance contract] are free to define the exact scope of the policy's coverage ....'" (citation omitted) (alteration in original)). Section 9(b) states:

(b) In the event of any litigation, including litigation by [First American] or with [First American's] consent, [First Ameri-cam] shall have no lability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title as insured.

(Emphasis added.)

{29 In the policy, First American contracted to have "no liability" to Holmes under the policy unless a court rendered a final judgment adverse to Holmes's title See generally Booth v. Attorneys' Title Guar. Fund, Inc., 2001 UT 18, 132, 20 P.3d 319 (noting that courts will address "damages only if the title is found to have been unmarketable"). In this case, First American defended Holmes in the Keystone litigation, including paying all costs incurred in defending Holmes's title The result of the Keystone litigation was favorable to Holmes, not adverse, because title to the 323-acre parcel was quieted in Holmes, Keystone's claims to the property were thwarted, and Keystone's lis pendens was removed from the title record. Accordingly, section 9(b) precludes Holmes from recovering further against First American beyond the costs First American incurred defending Holmes's title when the Keystone litigation quieted title in Holmes as against Keystone and no adverse final determination resulted.

B. Contractual Claims Outside of Title Insurance Policy

130 Holmes also contends that First American assumed and breached other first-party contractual duties to Holmes beyond those established in the title insurance policy. However, we decline to address this issue on appeal as it was never properly raised below.

131 This claim was originally raised in Holmes's memorandum in opposition to First American's motion to dismiss/for summary judgment, and was not raised in the complaint. A plaintiff cannot amend the complaint by raising novel claims or theories for recovery in a memorandum in opposition to a motion to dismiss or for summary judgment, Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th Cir.1989); McDowell v. Sullivan, 132 F.R.D. 501, 502 (N.D.I1l.1990), because such amendment fails to satisfy Utah's pleading requirements. See Utah R. Civ. P. 7, 8, 9, 10. Holmes's claims must therefore be restricted to the grounds set forth in the complaint. Mitchell v. Palmer, 121 Utah 245, 251, 240 P.2d 970, 972 (1952). Thus, because Holmes failed to raise a breach of contract action in its complaint against First American that was not predicated either upon third-party beneficiary liability or upon the title insurance policy, any claim that First American assumed and breached additional contractual duties to Holmes was waived.

II. CLAIMS AGAINST COOK AND COOK DEVELOPMENT

A. Breach of Covenants of Title

132 The next issue on appeal is whether the trial court erred by granting summary judgment to Cook and Cook Development on the breach of covenants of title claims. The trial court granted summary judgment on Holmes's breach of covenants of title claim because any breach was cured before Keystone filed its quiet title action against Holmes.

133 Even if covenants of title are not expressly set forth in a deed conveying real property, the covenants of title still inhere in a warranty deed as long as the deed is properly executed. The Utah Code provides in pertinent part:

A warranty deed when executed as required by law shall have the effect of a conveyance in fee simple to the grantee, his heirs and assigns, of the premises therein named, together with all the appurtenances, rights, and privileges thereunto belonging, with covenants from the grantor, his heirs, and personal representatives, that he is lawfully seised of the premises; that he has good right to convey the same; that he guarantees the grantee, his heirs, and assigns in the quiet possession thereof; that the premises are free from all encumbrances and that the gramtor, his heirs, and personal representatives will forever warrant and defend the title thereof in the grantees, his heirs, and assigns against all lawful -claims whatsoever.

Utah Code Ann. § 57-1-12 (2000) (emphasis added). According to the plain language of the statute, if a warranty deed comports with Utah law, then the five covenants of title articulated therein implicitly apply to the real property conveyance: (1) the covenant of seisin, (2) the covenant of right to convey, (8) the covenant against encumbrances, (4) the covenant of warranty, and (5) the covenant of quiet enjoyment. Id. Because the parties do not dispute the viability of the warranty deed or the validity of its execution, the five covenants of title are included in the warranty deed by operation of law. To determine if Cook Development breached these five covenants of title, we must review each of the covenants in turn.

1. Covenant of Seisin and Covenant of Right to Convey

a. Breach of Covenants of Seisin and Right to Convey

$84 Initially, we address whether the trial court properly granted summary judgment to Cook Development regarding Holmes's claim that Cook Development breached the covenants of seisin and right to convey. In making the covenant of seisin, a grantor warrants that the grantor is seized of the estate the deed purports to convey, both in quantity and quality. Utah Code Ann. § 57-1-12 (2000) (providing that grantor covenants "he is lawfully seised of the premises"); see also Bosnick v. Hill, 292 Ark. 505, 731 S.W.2d 204, 206 (1987); Brown v. Lober, 75 Ill.2d 547, 27 Ill.Dec. 780, 389 N.E.2d 1188, 1190-91 (1979); Maxwell v. Redd, 209 Kan. 264, 496 P.2d 1320, 1824 (1972); Seymour v. Evans, 608 So.2d 1141, 1144 (Miss. 1992); Ives v. Real Venture Inc., 97 N.C.App. 391, 388 S$.E.2d 573, 578 (1990); Double L. Props., Inc. v. Crandall, 51 Wash. App. 149, 751 P.2d 1208, 1210-11 (1988). Similarly, in making the covenant of the right to convey, a grantor guarantees that the grantor has the legal right to convey the estate the deed purports to convey. Utah Code Ann. $ 57-1-12 (providing that grantor covénants "he has good right to convey premises"); see also Brown, 27 Ill.Dec. 780, 389 N.E.2d at 1190-91; Seymour, 608 So.2d at 1144. Essentially, the covenants of seisin and the right to convey are synonymous, and the analysis of whether a grantor breached one of these covenants is the same for either covenant. Creason v. Peterson, 24 Utah 2d 305, 807, 470 P.2d 408, 404 (1970).

$85 Hence, the covenants of sei-sin and right to convey, if found in a warranty deed, attest that the grantor covenants that it has good title to the estate purportedly. conveyed. See id. Consequently, the grantor breaches these covenants "when it is shown that the grantor did not own the land that he purported to convey by the warranty deed description." Id.; see also Butler, Crockett & Walsh Dev. Corp. v. Pinecrest Pipeline Operating Co., 909 P.2d 225, 283 (Utah 1995). Once evidence is adduced showing the grantor does not own what the grantor purports to convey, in violation of these covenants of title, there is no need to show "an actual eviction or threat thereof." Creason, 24 Utah 2d at 307, 470 P.2d at 404.

136 These covenants épeak only to the cireurstances at the moment a grantor delivers a deed and are thus defined as present covenants. 20 Am.Jur2d Covenants, Conditions and Restrictions § 71 (1995) [hereinafter 20 Am.Jur.2d Covenants]; see also Creason, 24 Utah 2d at 307, 470 P.2d at 404 (stating that no need to await actual eviction or threat thereof to sue for breach of covenants of seisin and right to convey). Thus, a grantor breaches these covenants, if at all, when the deed is delivered. See Soderberg v. Holt, 86 Utah 485, 498, 46 P.2d 428, 481 (1985); see also Bernklau v. Stevens, 150 Colo. 187, 871 P.2d 765, 769 (1962); Brown, 27 Ill.Dec. 780, 389 N.E.2d at 1191; Double L. Props., T51 P.2d at 1210-11; 20 Am.Jur.2d Covenants § 71.

137 In this case, Cook Development breached the covenants of seisin and right to convey because it did not own the 328-acre parcel when Cook Development delivered the warranty deed to Holmes. The quitclaim deed conveying the property to Cook Development from LC Farms failed because it erroneously identified LC Associates as the grantor. Cook Development breached these two covenants regardless of whether that breach was subsequently "cured" by First American's defense of Holmes in the Keystone litigation because the breach occurred when the deed was delivered.

b. Damages for Breach of Covenants of Seisin and Right to Convey

.1 38 Although Cook Development breached the covenants of seisin and right to convey, summary judgment was nevertheless appropriate in the instant case because the damages were nominal. "The usual measure of damages for breach of covenant ... is compensation for actual loss suffered by reason of the breach." 20 Am.Jur.2d Covenants § 45 (1995). Generally, the measure of damages for breach of the covenants of seisin and right to convey, predicated upon a complete failure of title, is the consideration paid to purchase the property, plus applicable interest and any attorney fees incurred to establish title in the grantee pursusdnt to the deed. See, e.g., Koelker v. Turnbull, 127 Idaho 262, 899 P.2d 972, 976 (1995); Ralston v. Thacker, 932 S.W.2d 384, 388 (Ky.Ct.App.1996); Reese v. Smith, 12 Mo. 344, 347-48 (1849); Meyer v. Thompson, 188 N.C. 548, 112 S.E. 828, 329 (1922); Sun Exploration & Prod. Co. v. Benton, 728 SW.2d 35, 87 (Tex.1987); Schorsch v. Blader, 209 Wis.2d 401, 568 N.W.2d 538, 540 (Ct.App.1997); see also 20 Am.Jur.2d Covenants § 128. The consideration paid is the proper measure of damages at the moment of delivery because the grantee has paid his money, yet did not receive the prop— erty. Reese, 12 Mo. at 347-48.

139 However, a covenantee can recover only damages that are occasioned by the breach of these covenants. See Creason, 24 Utah 2d at 307, 470 P.2d at 404; Pac. Bond & Mortgage Co. v. Rohm, 101 Utah 835, 341, 121 P.2d 685, 687 (1942). For example, in Creason, we held that the damages recoverable for breach of the covenants of seisin and the right to convey were limited in that case. 24 Utah 2d at 307, 470 P.2d at 404. Specifically, we held that the plaintiff could recover only damages actually resulting from the breach, which included "reasonable and necessary" costs incurred "to clear up any difficulty [that] would represent a substantial flaw in his title," such as reasonable attorney fees. Id. at 307-09, 470 P.2d at 404-05.

140 In the event that the grantor "cures" the breach by ensuring that title vests in the grantee in fee simple absolute before an action is initiated, then the grantee has not suffered actual damages as a result of the breach. In such a case, any recovery for breach of these covenants is limited to nominal damages for a mere technical breach. Bair v. Aziom Design, L.L.C., 2001 UT 20, 118, 20 P.3d 388; Thompson v. Anderson, 107 Utah 331, 336, 158 P.2d 665, 667 (1944); Pac. Bond & Mortgage Co., 101 Utah at 841, 121 P.2d at 637; see also, eg., Perkins v. August, 109 Conn. 452, 146 A. 831, 833—34 (1929); § 148. 20 Am.Jur2d Covenants

{41 In Perkins, the defendant breached the covenants of seisin and good right to convey because another owned an interest in the land purportedly conveyed when the defendant deeded the property to the plaintiffs. 146 A. at 883. Nevertheless, the court determined that the "most [the plaintiffs] could claim would be nominal damages" because the breach was cured when the unowned "interest was conveyed to the plaintiffs at their request and without cost to them before the action was brought." Id. The court reasoned that "in effect all technical difficulties [were] healed and the plaintiffs have received in fact just what they purchased." Id.

€ 42 Similarly, in this case, Holmes's recovery is limited to nominal damages. Although Cook Development technically breached the covenants of seisin and right to convey, Cook Development cured the breach by having LC Farms convey the property directly to Holmes by the special warranty deed on September 3, 1998. Additionally, First American defended Holmes in the Keystone Iitigation pursuant to the title insurance policy Cook Development purchased for Holmes. In the Keystone litigation, First American established that the title to the 828-acre parcel vested in Holmes under the special warranty deed.

148 Thus, at most, Cook Development technically breached the two covenants. Holmes never incurred actual damages, however, because the breach of the covenants was cured. Indeed, Holmes conceded at oral argument that there were no damages before September 3, 1998, when LC Farms delivered the special warranty deed to Holmes. Further, Holmes can still sell the lots, which may have appreciated in value, and profit therefrom although Holmes claims that it was damaged in lost profits. Therefore, Holmes's recovery is limited to nominal damages. However, we will not remand because we generally do not remand if the damages are only nominal. Globe Leasing Corp. v. Bank of Salt Lake, 586 P.2d 420, 422 (Utah 1978); see also Perkins, 146 A. at 883-34; Castor v. Dufur, 188 Iowa 585, 111 N.W. 43, 46 (Iowa 1907). Thus, we affirm the trial court's order granting Cook and Cook Development summary judgment.

2. Covenant Against Encumbrances

944 Next, we address whether the trial court properly granted summary judgment to Cook Development on Holmes's claim that Cook Development breached the covenant against encumbrances. A grantor in a "warranty deed in Utah warrants to the grantee, among other things, 'that the premises are free from all encumbrances." Webb v. Interstate Land Corp., 920 P.2d 1187, 1190 (Utah 1996) (quoting Utah Code Ann. § 57-1-12); accord Brewer v. Peatross, 595 P.2d 866, 868 (Utah 1979). "Pursuant to [the] covenant [against encumbrances], a grantor obligates himself either to clear up any encumbrances that may 'be discovered or to indemnify the grantee." Upland Indus. Corp. v. Pac. Gamble Robinson Co., 684 P.2d 638, 643 (Utah 1984) (last alteration in original). This court has defined an encumbrance as "any interest in a third person consistent with a title in fee in the grantee, if such outstanding interest injuriously affects the value of the property," Hancock v. Planned Dev. Corp., 791 P.2d 183, 186 (Utah 1990) (emphasis omitted), or "constitutes a burden or limitation upon the rights of the fee title holder," Bergstrom v. Moore, 677 P.2d 1123, 1124 (Utah 1984). "The question as to whether there is an encumbrance on [the] property must depend upon the facts as they exist at the time the warranty deed is delivered, and not upon subsequent occurrences." Brewer, 595 P.2d at 868.

145 Holmes never specifically identifies a particular encumbrance that clouded Holmes's title when Cook Development delivered the warranty deed, which would have given rise to a breach of the covenant against encumbrances. Holmes infers that the lis pendens and the concomitant litigation encumbered the property, thereby breaching the warranty. We have never diréctly determined whether a lis pendens would constitute an encumbrance that breaches the covenant against encumbrances, see Utah Sav. & Trust Co. v. Stoutt, 36 Utah 206, 212, 102 P. 865, 868 (1909); see also Tolotti v. Equitable Real Estate & Inv. Co., 70 Utah 885, 887-95, 260 P. 415, 415-19 (1927), and we need not do so in this case. The lis pendens could not cloud the title when the warranty deed was delivered. Cook Development delivered the warranty deed to Holmes on May 19, 1998, when the sale of the 828-acre parcel closed. Keystone filed the lis pendens after Premier attempted to transfer the 323-acre parcel to Keystone in November 1998. Further, Holmes failed to identify any other encumbrance that existed on the record at the time Cook Development executed and delivered the warranty deed. Accordingly, Cook Development did not breach the covenant against encumbrances. |

3. Covenant of Quiet Enjoyment and Covenant of Warranty

146 Finally, we address whether the trial court properly granted summary judgment on Holmes's claim that Cook Development breached the covenants of warranty and quiet enjoyment. According to the covenant of quiet enjoyment, a grantor warrants that the grantee may possess and quietly enjoy the land. Utah Code Ann. § 57-1-12 (2000) (providing that grantor "guarantees the grantee, his heirs, and assigns in the quiet possession" of premises conveyed); see also Spiegle v. Seaman, 160 N.J.Super. 471, 390 A.2d 689, 645 (App.Div. 1978). The covenant of warranty is that the grantor will warrant and defend the title of the grantee against rightful claims regarding the title conveyed. Utah Code Ann. § 57-1-12 (providing that grantor covenants that "grantor, his heirs, and personal representatives will forever warrant and defend the title . in the grantee ... against all lawful claims"); see also Spiegle, 390 A.2d at 645; Morgan v. Reese, 99 Ohio App. 473, 184 N.E.2d 581, 585 (1954); City of Beaumont v. Moore, 146 Tex. 46, 202 S.W.2d 448, 453 (1947). In Utah, both the covenant of warranty and the covenant of quiet possession are synonymous " 'since the same occurrence of cireumstances is necessary to their breach," they both run with the land, and " 'the rule of damages is the same in [each]'" Van Cott v. Jacklin, 68 Utah 412, 415, 226 P. 460, 461 (1924) (citation omitted). Thus, for purposes of analysis, we consider these covenants simultaneously.

147 To establish a breach of the covenants of warranty and quiet enjoyment, ordinarily a grantee must show that the grantee was evicted from the property purportedly conveyed via the warranty deed by one with paramount or better title. Christiansen v. Utah-Idaho Sugar Co., 590 P.2d 1251, 1253 (Utah 1979); E. Canyon Land & Stock Co. v. Davis & Weber Counties Canal Co., 65 Utah 560, 564, 238 P. 280, 281 (1925); see also Van Cott, 63 Utah at 416, 226 P. at 461. Eviction can be either actual or constructive. Christiansen, 590 P.2d at 1258; Soderberg v. Holt, 86 Utah 485, 500, 46 P.2d 428, 484 (1985); E. Canyon Land & Stock Co., 65 Utah at 565-66, 288 P. at 281-82.

148 Before the grantee can recover for breach of these covenants, based upon either an actual or a constructive eviction, the grantee must establish that title has been affirmatively asserted against the grantee's title and possession, and that the title thus asserted is paramount or superior to the grantee's title. Christiansen, 590 P.2d at 1258; see also Lewis v. Jetz Serv. Co., 27 Kan.App.2d 987, 9 P.3d 1268, 1270 (2000); Stevenson v. Ecklund, 263 Mont. 61, 865 P.2d 296, 298-99 (1998); Omega Chem. Co. v. Rogers, 246 Neb. 935, 524 N.W.2d 330, 335 (1994); Schneider v. Lipscomb County Nat'l Farm Loan Ass'n, 146 Tex. 66, 202 S.W.2d 832, 884 (1947). Paramount title is one that would prevail over another title in an action or one that would be otherwise successfully asserted against another's title Omega Chem. Co., 524 NW2d at 885; see also Family Fin. Fund v. Abraham, 657 P.2d 1319, 1324-25 (Utah 1982); E. Canyon Land & Stock Co., 65 Utah at 564-68, 238 P. at 281-88.

T49 Consistent with these general rules, when a claim of paramount title to property has been defeated, the grantee cannot show eviction and the grantor has not breached the covenants of warranty or quiet enjoyment. Bloom v. Hendricks, 111 NM. 250, 804 P.2d. 1069, 1074 (1991); ef St. Paul Title Ins. Corp. v. Owen, 452 So.2d 482, 485 (Ala.1984) ("[A] final judgment or decree adverse to the covenamtee's title or right of possession constitutes a sufficient constructive eviction to entitle the covenantee to sue for breach of the covenant of warranty." (emphasis added)).

$50 In this case, Holmes failed to establish that paramount or superior title has been affirmatively asserted against Holmes's title and possession. Aside from Holmes's title, the only other claim to the property that has been asserted was Keystone's claim of ownership for which Keystone instigated the Keystone litigation to quiet title to the 328-acre parcel. In that suit, the trial court quieted title to the parcel in Holmes, which conclusively established that Holmes's title to the 323-acre parcel is paramount to any claim Keystone has to the property.

1 51 Accordingly, Holmes cannot show that it was ever evicted, either actually or constructively, because Holmes remains in possession of the 328-acre parcel and Holmes's title is not subject to a paramount title. Therefore, inasmuch as Holmes cannot show that it has been evicted from the 3283-acre parcel, Holmes cannot show that Cook Development breached the covenants of warranty and quiet enjoyment.

B. Indemmity Agreement and Modification and Extension Agreement

152 Holmes also contends that. Cook and Cook Development are liable to Holmes under both an indemnity agreement and a modification - and - extension - agreement. However, Holmes lacks standing to sue Cook and Cook Development under these contractual provisions.

158 Generally, unless a plaintiff can recover on a contract as a third-party benefi-clary or an assignee, only parties to a contract can bring suit under the contract. See SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, 110, 28 .P.3d 669; Harper v. Great Salt Lake Council, Inc., 1999 UT 34, 120, 976 P.2d 1218; MH. Walker Realty Co. v. Am. Sur. Co., 60 Utah 485, 450, 211 P. 998, 1004 (1922). Holmes was not specifically a party to either the indemnity agreement or the modification and extension agreement. - Holmes Ventures, LC, not Holmes Development, LLC, was the party to both of these agreements. Assuming Cook and Cook Development were liable under the indemnity agreement and the modification and extension agreement, Holmes would not be able to sue to recover. See Utah Code Ann. § 48-2e-110(1) (Supp.2001) (providing that limited liability company can "institute ... any action ... in its own name" - {emphasis - added)). Therefore, Holmes cannot pursue these claims against Cook or Cook Development.

III. FAILURE TO APPEAL

154 The trial court granted First American, Cook, and Cook Development summary judgment on Holmes's first cause of action, which avers negligence against all three defendants, and third cause of action, which avers negligent misrepresentation against First American, because the econom-ie loss rule barred these claims. See SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, 132, 28 P.3d 669. By failing to address these issues on appeal, Holmes has waived any appeal with respect to Holmes's negligence and negligent misrepresentation causes of action.

155 In addition, the trial court granted summary judgment on Holmes's third-party beneficiary contract claim. However, by failing to appeal that ruling, Holmes has waived any appeal on the issue of whether it was a third-party beneficiary under a contract between Cook, Cook Development, and First American. *

IV. MOTION FOR LEAVE TO AMEND COMPLAINT

56 The final issue in this appeal is whether the trial court abused its discretion in denying Holmes's motions for leave to amend its complaint. See Neztsosie v. Meyer, 8838 P.2d 920, 922 (Utah 1994) ("We will not disturb a trial court's ruling on a motion to amend a complaint absent a clear abuse of discretion."). At the end of Holmes's memorandum in opposition to First American's motion to dismiss, Holmes argued:

In the event this Court determines that Holmes' Complaint fails to adequately plead the claims and causes of action addressed above, Holmes moves this Court for leave to amend its Complaint pursuant to Rule 15 of the Utah Rules of Civil Procedure. Case law interpreting Rule 15 recognizes that the rules of Civil Procedure liberalize pleading requirements and require that the parties be afforded the privilege of presenting whatever legitimate contentions they may have pertaining to the dispute. Timm v. Dewsnup, 851 P.2d 1178 (Utah 1998). Rule 15 further requires that leave to amend "shall be freely given when justice so requires."

Holmes argues that the trial court abused its discretion in denying its motions for leave to amend.

157 Rule 15(a) of the Utah Rules of Civil Procedure provides that after a responsive pleading has been served, "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Utah R. Civ. P. 15(a). To properly move for leave to amend a complaint, a litigant must file a motion that "shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought." Utah R. Civ. P. T(b)(1); see also Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179, 1182 (Utah 1983); Long v. Satz, 181 F.8d 1275, 1279 (11th Cir.1999). Further, a motion for leave to amend must be accompanied by a memorandum of points and authorities in support, R. Jud. Admin. 4-501(1)(A), and by a proposed amended complaint, Behrens, 675 P.2d at 1182; see also Long, 181 F.3d at 1279; AT & T Corp. v. Am. Cash Card Corp., 184 F.R.D. 515, 520-21 (8.D.N.Y.1999).

1 58 By requiring parties seeking to amend a pleading to follow the rules pertaining to other motions, rules 7(b)(1) and 4-501 promote the policies of (1) mitigating prejudice to opposing parties by allowing that party to respond to the motion for leave to amend, and (2) assuring that a court can be apprised of the basis of a motion and rule upon it with a proper understanding of the motion. Calderon v. Kansas Dep't of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir.1999). Specifically, rule 7(b)(1) requires the grounds for a motion for leave to amend to be stated particularly and with an attached proposed amended pleading so that the court can ascertain what changes are sought and can determine whether the motion should be granted and whether justice so requires the amendment of a pleading. See AT&T Corp., 184 F.R.D. at 521.

159 In this case, Holmes never filed an actual motion for leave to amend. Further, Holmes's request failed to "state with particularity the grounds" upon which it based its motion for leave to amend. Utah R. Civ. P. 7(b)(1). Holmes merely cited rule 15(a) and noted that leave to amend should be freely given. Holmes never articulated a single reason why the trial court should have granted it leave to amend and never provided the trial court a proposed amended complaint so that the court could determine the changes that Holmes intended to make. By relegating its motion to the end of the memo-randa opposing the motions to dismiss, Holmes's motions did not comply with Utah's formal motion practice rules. See Glenn v. First Nat'l Bank in Grand Junction, 868 F.2d 368, 370 (10th Cir.1989); Long, 181 F.3d at 1279-80. Simply put, Holmes's abbreviated requests for leave to amend its complaint "lacking ... statement[s] of the grounds for amendment and dangling at the end of [its] memorand[a, do] not rise to the level of a motion for leave to amend." Calderon, 181 F.3d at 1187. Therefore, because Holmes's motions for leave to amend its complaint were insufficient, the trial court did not abuse its discretion in denying the motions.

CONCLUSION

T 60 In sum, the trial court correctly held that First American is not liable to Holmes under the title insurance policy and 'that Holmes failed to properly plead that First American assumed and breached any first-party contractual duties outside of the policy. Further, the trial court correctly concluded that Cook and Cook Development are not liable to Holmes for breach of the covenants of title for any damages beyond nominal damages, for which we will not remand. Moreover, the trial court did not err in concluding that Holmes does not have standing to sue Cook and Cook Development under the indemnity agreement and the modification and extension agreement. Finally, the trial court did not abuse its discretion in denying Holmes's motions for leave to amend the complaint. Therefore, in light of the foregoing, we affirm the orders granting summary judgment to First American, Cook, and Cook Development.

11 61 Chief Justice DURHAM, Associate Chief Justice DURRANT, and Justice WILKINS concur in Justice RUSSON'S opinion. ‘

T 62 Justice HOWE, concurs in the opinion with the exception of part IV, in which he concurs in the result.

      . It is undisputed by the parties that Cook Development had the authority to convey the 323-acre parcel on behalf of LC Farms to Holmes and that Cook, as the manager of Cook Development, was authorized to sign for Cook Development.

      . Holmes alleged that Premier attempted to sell the 323-acre parcel on behalf of LC Farms to Keystone only because it discovered that the original quitclaim deed from LC Farms had failed to convey the property to Cook Development.

      . Covenants of title are also often called warranties of title. Creason v. Peterson, 24 Utah 2d 305, 307, 470 P.2d 403, 404 (1970).

      . Utah law recognizes the covenant of further assurances, see Utah Sav. & Trust Co. v. Stoutt, 36 Utah 206, 212, 102 P. 865, 868 (1909), but the covenant is not implicit in a statutory warranty deed as are the other five covenants of title explicitly set forth in section 57-1-12, Ellis v. Hale, 13 Utah 2d 279, 284, 373 P.2d 382, 386 (1962).

      . Although summary judgment was granted for both Cook Development and Cook, the warranty deed conveying the 323-acre parcel to Holmes was executed by Cook Development only. Because Cook Development is a limited liability company, Utah law proscribes a direct action against Cook for breach of the warranty, although he signed the warranty deed in his capacity as the managing member of Cook Development. Utah Code Ann. §§ 48-2c-116, 48-2¢c-601 (Supp.2001).

      . It may be that Holmes Development, LLC, and Holmes Ventures, LC, have the same management and may be practically indistinguishable. However, the two are legally separate entities and were created as separate entities for a purpose. See Utah Code Ann. § 48-2c-402 (Supp. 2001). Therefore, we refuse to recognize them as the same entity for standing to sue on a contract.

      . There is a similar motion at the end of the memorandum in opposition to Cook and Cook Development's motion to dismiss/for summary judgment. However, it contains no ciiations to rule 15 or any cases and is set forth in a conclu-sory statement in the conclusion section to the memorandum.