Jenkins v. Vetere

Jenkins v. Vetere

IN THE UTAH COURT OF APPEALS

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Larry K. Jenkins, an individual,

Plaintiff and Appellee,

v.

Timothy Vetere, an individual;
Kent Peterson, an individual;
Kent Peterson and Timothy Vetere, a general partnership;
and John Does 1-5,

Defendants and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030181-CA
 

F I L E D
(April 8, 2004)
 

2004 UT App 100

 

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Seventh District, Moab Department

The Honorable Lyle R. Anderson

Attorneys: J. Craig Smith and Scott M. Ellsworth, Salt Lake City, for Appellant

Kent Peterson and David F. Crabtree, South Jordan, for Appellee

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Before Judges Bench, Greenwood, and Jackson.

BENCH, Associate Presiding Judge:

The "Security Agreement" is, on its face, an investment contract between Jenkins and Peterson, giving Jenkins "25.0% of the selling price on any parcel(s) sold" from the subject property. See Ball v. Volken, 741 P.2d 958, 958-59 (Utah 1987). The interest Jenkins obtained by entering into the agreement can best be characterized as an "assignment of proceeds" or an interest in the proceeds obtained from the sale of the subject property.(1) The trial court's finding that Jenkins "holds a valid security interest in and to a one-half undivided interest in a certain portion" of the property is therefore not consistent with the language of the agreement giving Jenkins "25% of the selling price."

Generally accepted forms of conveyance include warranty deeds, quitclaim deeds, trust deeds, and conveyances through mortgages. See Utah Code Ann. §§ 57-1-1 to -15 (2000). "As a matter of law, in order to establish a valid trust deed or mortgage, a legal debt or obligation with a specific amount owing must exist." Bangerter v. Poulton, 663 P.2d 100, 101 (Utah 1983). While a signed promissory note is not required, and other evidence may be used to prove the existence of a debt, the evidence must establish "a debt and the specific amount owing on the debt." Id. The trial court found that Jenkins was entitled to "collect a debt due and owing to him in the amount of $12,000.00 plus interest." However, we fail to see how the agreement by itself establishes a specific amount owing on a debt.(2)

Thus, the trial court erred by granting Jenkins partial summary judgment in the absence of evidence establishing that the agreement was intended to be a conveyance, loan, mortgage, or other type of lien.

We therefore reverse and remand for further proceedings.

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Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

1. Because Vetere and Peterson owned the land as tenants in common, Peterson's agreement with Jenkins only encumbered Peterson's interest in the property. Likewise, the trust deed to Jay and Greg Vetere only encumbers Vetere's interest in the property.

2. Jenkins may, in fact, have been defrauded by Peterson in the amount of $12,000.00, however, an ascertainable amount of damages does not establish the existence of a mortgage or other lien.