Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 2010 Iota a Utah limited liability company, and California Benefit nc.,I a California corporation v. Davco Management Company L.C., a Utah Limited liability company : Unknown Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca3 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Darwin C. Fisher; Attorney for Appellant. Paul D. Veasy; David R. Hall; Alan S. Mouritsen; Parsons Behle and Latimer; Attorneys for Appellees. Recommended Citation Legal Brief, Iota v. Davco, No. 20100855 (Utah Court of Appeals, 2010). https://digitalcommons.law.byu.edu/byu_ca3/2571 This Legal Brief is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. IN THE UTAH COURT OF APPEALS IOTA LLC, a Utah limited liability ADDENDUM TO APPELLEES' company, and CALIFORNIA BENEFIT, BRIEF INC., a California corporation, Plaintiffs-Appellees, Utah Court of Appeals No. 20100855-CA vs. DAVCO MANAGEMENT COMPANY L.C., a Utah limited liability company, Defendant-Appellant. Appeal from the Fifth District Court of Washington County, State of Utah The Honorable James L. Shumate DARWIN C. FISHER (1080) PAUL D. VEASY (3964) DARWIN C. FISHER P.C. DAVID R. HALL (9225) Attorney for Appellant ALAN S. MOURTTSEN (13558) 40 N. 300 E., Suite 101 PARSONS BEHLE & LATIMER St. George, UT 84770 Attorneys for Appellees 201 South Main Street, Suite 1800 Salt Lake City, UT 84111 FILED UTAH APPELLATE COURTS AUG 2 2 2011 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. 4852-0898-3818.1 Machine-generated OCR, may contain errors. IN THE UTAH COURT OF APPEALS IOTA LLC, a Utah limited liability ADDENDUM TO APPELLEES' company, and CALIFORNIA BENEFIT, BRIEF INC., a California corporation, Plaintiffs-Appellees, Utah Court of Appeals No. 20100855-CA vs. DAVCO MANAGEMENT COMPANY L.C., a Utah limited liability company, Defendant-Appellant. Appeal from the Fifth District Court of Washington County, State of Utah The Honorable James L. Shumate DARWIN C. FISHER (1080) PAUL D. VEASY (3964) DARWIN C. FISHER P.C. DAVID R. HALL (9225) Attorney for Appellant ALAN S. MOURITSEN (13558) 40 N. 300 E., Suite 101 PARSONS BEHLE & LATIMER St. George, UT 84770 Attorneys for Appellees 201 South Main Street, Suite 1800 Salt Lake City, UT 84111 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. TABLE OF CONTENTS ADDENDUM 1 Iota's Deed of Trust ADDENDUM 2 California Benefit's Deed of Trust ADDENDUM 3 2005 Real Estate Purchase Contract ADDENDUM 4 Fax from Darcy Thompson to Richard Murset ADDENDUM 5 Profit and Loss Statements ADDENDUM 6 Iota's 2006 Real Estate Purchase Contract ADDENDUM 7 Iota's Promissory Note ADDENDUM 8 California Benefit's Promissory Note ADDENDUM 9 Warranty Deed Conveying Casa Sonoma Apartments from Darwin Fisher to DAVCO ADDENDUM 10 Casa Grande Profit and Loss Statement ADDENDUM 11 Denial of Loan Application for Casa Grande Apartments ADDENDUM 12 Withdrawal of Loan Application for Casa Sonoma Apartments ADDENDUM 13 3/26/08 e-mail from David Fisher to Rich Murset ADDENDUM 14 Trust Deed in Favor of Fab5 Management LLC ADDENDUM 15 06/03/08 e-mail from Richard Murset to David Fisher ADDENDUM 16 06/20/08 e-mail from David Fisher to Richard Murset ADDENDUM 17 07/21/08 e-mail from David Fisher to Richard Murset ADDENDUM 18 September, 2008 — Stop Payment Checks ADDENDUM 19 09/30/08 letter from Richard Murset to David Fisher ADDENDUM 20 09/24/08 letter from David Fisher to Richard Murset Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. 4852-0898-3818.1 Machine-generated OCR,11 may contain errors. 21 10/02/08 e-mail from David Fisher to Richard Murset ADDENDUM 22 10/03/08 e-mail from Richard Murset to David Fisher and 10/08/08 e-mail from Richard Murset to David Fisher ADDENDUM 23 Summary of Activities of David Fisher and DAVCO from 09/01/08 to 02/20/09 ADDENDUM 24 Notice of Trustee's Sale ADDENDUM 25 Trustee's Deeds for Casa Sonoma and Casa Grande Apartments ADDENDUM 26 Chart on Damages for Casa Sonoma and Casa Grande Apartments ADDENDUM 27 Summary Appraisal Report for Casa Sonoma and Casa Grande Apartments ADDENDUM 28 Testimony of Darcy Thompson ADDENDUM 29 Testimony of Richard Murset ADDENDUM 30 Testimony of David Fisher ADDENDUM 31 Bennett v. Bennett, 2005 UT App 528 (per curiam) (unpublished) Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. Tabl Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. ADDENDUM "1" Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. V WHEN RECORDED, RETURN TO: Parsons Behle & Latimer One Utah Center 201 South Main Street, Suite 1800 Salt Lake City, UT 84111 Attn: Drew Gilliland DOC tt 20060046174 Trust Deed Page 1 of 21 \vac\\ ^S1,^i53?3^8SiffliSn$CiSne&yR"Sag,Tr TITLE SERVICES INC Tax Parcel Nos. SG-763 & SG-762-B DEED OF TRUST, SECURITY AGREEMENT ASSIGNMENT OF RENTS AND LEASES, AND FIXTURE FILING THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES, AND FIXTURE FILING (the uDeed of Trust") is made and entered into effective as of the 29lh day of September, 2006, by and among DAVCO MANAGEMENT COMPANY, L.C., an Utah limited liability company ("Trustor"), in favor of INWEST TITLE SERVICES, INC. ("Trustee"), for the benefit of IOTA, LLC, an Utah limited liability company ("Beneficiary"). RECITALS: A. Trustor is or is about to become the owner of fee simple title in and to certain real property located in Washington County, Utah, as more particularly described on Exhibit "A" attached to and incorporated by reference in this Deed of Trust (the "Property"). B. Pursuant to the Note (as defined below), Beneficiary has extended financing to Trustor for the purchase of the Property in the maximum principal amount of ONE MILLION THREE HUNDRED FORTY-ONE THOUSAND THREE HUNDRED NINETY-FIVE DOLLARS ($1,341,395.00), to be secured by the Property and such other items as set forth herein. NOW, THEREFORE, upon the terms, covenants and conditions set forth in this Deed of Trust, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, TRUSTOR HEREBY CONVEYS AND WARRANTS TO TRUSTEE, IN TRUST, WITH POWER OF SALE, and hereby grants to Beneficiary, as a secured party, a security interest in the following described real and personal property; GRANTING CLAUSE I: REAL PROPERTY All right, title, interest and estate of Trustor in and to the Property. GRANTING CLAUSE II: ASSIGNED CONTRACTS •jm All right, title, interest and estate of TrustO|w»o^|G^^^j the following to the extent applicable to the Property of the Imptoyeni^its (as defined in AifyipLLof Jjfup; *,** -,, y & Deed of Trust) 895909.2 9/29/06 1 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. 20060046174 10/04/2006 03:32:05 PM Page 2 of 21 Washington County (1) All contracts and agreements relating to the planning, design, engineering, or architecture of the Improvements; (2) All drawings, models, plans, specifications, budgets, cost estimates, bid packages, bids, and other related documents relating to the development or construction of the Improvements; (3) All contracts and agreements relating to the installation, construction or demolition of any of the Improvements, including all retainages, payment and performance bonds, and performance escrows described in or required by any of the foregoing; (4) All contracts and agreements relating to the development of the Property or the Improvements, including all contracts with government authorities granting entitlements or development rights with respect to the Property, appraisals, soils reports, feasibility studies, environmental assessment reports, and engineering, mechanical and wetlands reports; (5) All contracts and agreements between Trustor and any utility company, water company or user association, or telecommunications company for the purpose of: (a) furnishing electricity, natural gas or oil, telephone, sewer, water, cable television, internet or other such services to the Property; (b) providing hook-ups, connections, lines or other necessary laterals or tie-ins to the Property and the Improvements constructed or to be constructed on the Property, including any "will serve" letters benefiting the Property; or (c) granting any such utility or other company access to the Improvements or to space in or on the Property or the Improvements to provide service to the Property; (6) All contracts and leases granted by Trustor, as lessor, to any individual or entity for the use of roof-top space or other areas on the Improvements or the Property for the placement of telecommunications equipment, antennae or transmission devices, or for the placement of billboards, signs or other advertising media; (7) All contracts and agreements for marketing, leasing, advertising, use, or sale of the Improvements or any portion of the Improvements; (8) All contracts and agreements relating to the management of the Property and the Improvements, or with any franchisor relating to the operation or use of the Improvements; (9) All security deposits, connection fees, prepayments, reservation fees and other payments made by Trustor with respect to any of the foregoing; and (10) All modifications, amendments, substitutions and replacements of any of the foregoing.