Full Opinion (html_with_citations)

Appellate Case: 21-4111    Document: 010110780326    Date Filed: 12/12/2022   Page: 1
                                                                             FILED
                                                                 United States Court of Appeals
                                     PUBLISH                             Tenth Circuit

                   UNITED STATES COURT OF APPEALS                     December 12, 2022

                                                                     Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                        Clerk of Court
                          _________________________________

  WELLS FARGO BANK, N.A.,

        Plaintiff - Appellee/
        Cross-Appellant,

  v.                                                Nos. 21-4111, 21-4115

  STEWART TITLE GUARANTY
  COMPANY,

        Defendant - Appellant/
        Cross-Appellee.
                     _________________________________

                Appeals from the United States District Court
                           for the District of Utah
                        (D.C. No. 2:19-CV-00285-TC)
                     _________________________________

 Aaron R. Maurice, Maurice Wood, Las Vegas, Nevada (Justin R. Baer,
 Hirschi Baer & Clayton, PLLC, Salt Lake City, Utah, with him on the
 briefs), on behalf of the Defendant-Appellant/Cross-Appellee.

 George W. Pratt (Angela Shewan with him on the briefs), Jones, Waldo,
 Holbrook & McDonough, P.C., Salt Lake City, Utah, on behalf of the
 Plaintiff-Appellee/Cross-Appellant.
                     _________________________________

 Before HARTZ, BACHARACH, and MORITZ, Circuit Judges.
                 _________________________________

 BACHARACH, Circuit Judge.
                _________________________________
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       This appeal sprung from Wells Fargo Bank’s loan to Talisker

 Finance, Inc. Under the loan agreement, Talisker gave Wells Fargo a

 security interest in three parcels of land owned by Talisker’s affiliates. To

 ensure that Talisker’s affiliates had good title to the parcels, Wells Fargo

 bought title insurance from Stewart Title Guaranty Company.

       Talisker defaulted, but it couldn’t deliver good title to part of the

 land promised as collateral. The default triggered Wells Fargo’s right to

 compensation under the title insurance policy. Under that policy, Stewart

 owed Wells Fargo for the diminution in the value of the collateral. But the

 amount of the diminution was complicated by the presence of multiple

 parcels.

       Each parcel typically has its own distinct value. But a parcel could

 theoretically enhance the value of an adjacent parcel. See 1 Joyce Palomar,

 Title Insurance Law § 10:11, at 10-36 to 10-37 (2010) (explaining that the

 inability to assemble an insured parcel with other parcels might diminish

 the value of the land that is conveyed). For example, if two adjacent

 parcels are usable for retail stores, a retailer might be willing to pay a

 premium for the opportunity to build a store covering both parcels. So the

 loss of one parcel might diminish the value of an adjacent parcel.

       Here the district court concluded that the lost parcel didn’t affect the

 value of the other parcels. Because their values remained constant, the



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 district court properly found that the diminution was simply the value of

 the collateral that Talisker’s affiliates didn’t own.

 1.    The district court found that Wells Fargo had suffered a loss
       under the insurance policy.

       Wells Fargo’s security interest covered three parcels of land,

 designated as Parcels A, B, and C. This coverage protected Wells Fargo

 from a defect in the title for any of the parcels. If a title defect existed,

 Wells Fargo would obtain the amount that the collateral had diminished in

 value.

       Talisker not only defaulted but failed to deliver good title on roughly

 127 acres within Parcel B. Given Talisker’s inability to deliver good title

 on this part of the collateral, Wells Fargo made a claim on the title

 insurance policy. The parties couldn’t agree on the amount that Stewart

 owed Wells Fargo, and this suit followed.

       After hearing the evidence, the district court awarded Wells Fargo

 $3,210,200 as the value of the lost parcel. That award included the value of

 the land and the improvements on the land.

       Stewart appeals, arguing that the loss of the collateral didn’t

 diminish the value of the collateral as a whole.




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 2.    Stewart disregards the context of the district court’s discussion of
       the diminution in value.

       Stewart argues that the district court acknowledged that the title

 defect hadn’t diminished the value of the collateral. For this argument,

 Stewart focuses on two statements by the district court:

       1.     “[I]t does not matter that [Stewart’s expert witness] calculated
              the [diminution in value] in relation to [the other part of Parcel
              B] when he should have used the entire collateral estate. Either
              way, there is no diminution in value.” Appellant’s App’x vol.
              3, at 678.

       2.     “The court concludes that there is no diminution in value to the
              collateral estate based on the loss of the Claim Property.” Id. at
              679.

 Stewart’s focus disregards the context of both excerpts. They discuss the

 effect of the lost parcel on the value of the rest of the collateral—not the

 separate value of the lost parcel.

       The court explained that the policy had protected against a

 diminution in value of the collateral. The policy measured the diminution

 in value based on a standard formula:

       Value of the insured estate – collateral that was received =
       Loss.

       This formula started with “the value of the insured estate.” Id. at

 676; Appellant’s App’x vol. 8, at 2074. Here the “insured estate” consisted

 of the combination of Parcels A, B, and C. So the starting point of the

 calculation was the combined value of these parcels.



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       The policy then required subtraction of the value of the collateral

 “subject to the [title] defect.” Appellant’s App’x vol. 3, at 676;

 Appellant’s App’x vol. 8, at 2074. This amount equaled the value of the

 collateral that Wells Fargo had actually received (the value of Parcels A

 and C and the part of Parcel B that Talisker was able to deliver).

       Wells Fargo was entitled to the difference between these amounts. In

 determining these amounts, the parties disagreed on three factors:

       1.     the market value of each parcel based on its highest and best
              use, 1

       2.     the possibility that the lost parcel could have enhanced the
              value of the remaining parcels, 2 and

       3.     the value of the structures (improvements) that are considered
              part of the land itself. 3

       The district court observed that the parties should have started with

 the combined values of Parcels A, B, and C. In light of this observation,



 1
       See, e.g., J. Bushnell Nielsen, Title and Escrow Claims Guide
 § 3.2.3.8 (2021 ed.) (“Generally accepted appraisal standards require an
 appraiser to establish fair market value according to the property’s highest
 and best use.”).
 2
       See, e.g., J. Bushnell Nielsen, Title and Escrow Claims Guide
 § 3.2.3.8 (2021 ed.) (“In some circumstances, land or interests in property
 have a greater value in the aggregate than separately.”).
 3
       See, e.g., J. Bushnell Nielsen, Title and Escrow Claims Guide
 § 3.2.3.8 (2021 ed.) (“The correct method for title insurance claim
 purposes is to instruct the appraiser to value the property with the
 improvements that were in place when the title defect was discovered.”).

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 the district court considered whether the lost parcel had enhanced the value

 of the other parcels.

       Talisker’s affiliates did have good title to Parcels A and C, but these

 parcels weren’t adjacent to Parcel B 4:




 So the district court found that the lost part of Parcel B wouldn’t have

 affected the value of Parcel A or C.

       But a disagreement remained over Parcel B. That parcel contained

 two segments: (1) a segment called “Bonanza Flats” and (2) a segment that

 Talisker’s affiliates didn’t own. Stewart argued that the second segment



 4
        This is a simplified illustration of the parcels’ locations based on the
 district court’s description. Appellant’s App’x vol. 3, at 673. This
 illustration is intended only to aid in understanding the district court’s
 findings. The image was obtained from Google Maps. See Paels v. Thomas,
718 F.3d 1210
, 1216 n.1 (10th Cir. 2013) (taking judicial notice of a
 satellite image from Google Maps to depict a particular location).
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 hadn’t affected the value of Bonanza Flats, and the district court agreed.

 So the court calculated the diminution in value as the value of the lost

 parcel. See, e.g., Barlow Burke, Law of Title Insurance § 7.02[B], at 7-28

 (3d ed. supp. 2022-2) (“[W]hen a distinct portion of the insured title’s

 property is lost because of an insured defect [it is] proper to measure the

 damages by the value of that portion.”); 5 see also Steven Plitt, et al.,

 Couch on Insurance § 185:82, at 185-100 (3d rev. ed. 2018) (“The measure

 of an insured owner’s partial loss in title resulting from an outstanding

 interest . . . has been held in some cases to be the value of the outstanding

 interest or the land lost.”).

       The court explained that it had focused on the lost parcel because it

 wouldn’t have affected the value of the rest of the collateral. From that

 explanation, Stewart plucks two sentences rejecting a “diminution in

 value,” arguing that

             the district court had found no diminution in value to the
              collateral as a whole and

             the lack of any diminution in value would prevent any
              recovery.

 But Stewart has ignored the context of the two sentences. The court was

 discussing Stewart’s argument that the title defect for the lost parcel


 5
       Professor Burke also explains that for a partial failure of title, courts
 can measure the diminution in the value of subdivided property “on a
 parcel-by-parcel basis.” Barlow Burke, Law of Title Insurance § 7.02[A],
 at 7-26 (3d ed. supp. 2022-2).
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 hadn’t affected the value of the rest of Parcel B (Bonanza Flats).

 Appellant’s App’x vol. 7, at 1905 (statement by Stewart’s expert witness

 that “in a diminution of value calculation, the primary valuation problem

 to be solved is determining the impact of the subject property on the

 remainder of the insured property Bananza [sic] Flats”); Appellant’s App’x

 vol. 6, at 1669–70 (statement by Stewart’s expert witness that his

 “assignment was to do a diminution in value of the Bonanza Flats,

 recognizing the [property that was promised even though Talisker’s

 affiliates lacked good title] as excess vacant land”).

       In addressing Stewart’s argument, the district court observed that the

 lost parcel had some value even if it wouldn’t have enhanced the value of

 the rest of the collateral: “Of course, [the property that was promised even

 though Talisker’s affiliates lacked good title] still has value based on its

 own highest and best use.” Appellant’s App’x vol. 3, at 678. Given this

 observation, the court

             found a diminution in value under the policy and

             based that diminution in value on the value of the lost parcel
              alone.

 Stewart’s contrary interpretation disregards the context of the district

 court’s discussion.




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 3.    The district court didn’t clearly err in finding an intent to
       include the four improvements.

       The lost parcel consisted of not only the land but also four

 improvements: two high-speed chairlifts, a telecommunication facility, and

 a ski patrol building. The district court included the value of these

 improvements when determining the value of the lost parcel.

       Stewart urges us to disregard the improvements because Wells Fargo

 hadn’t intended to include them in the collateral. 6 For this argument,

 Stewart points out that Wells Fargo had earlier appraised the parcels

 without the improvements. 7

       Despite the nature of Wells Fargo’s earlier appraisal, the insurance

 policy unambiguously included the improvements in Parcel B. That policy



 6
       In its reply brief, Stewart argues that the district court erred in
 calculating the award based on the value of the collateral that Wells Fargo
 was supposed to get and didn’t. Stewart insists that it—not Wells Fargo—
 had correctly calculated the award based on the diminution in value. But
 the district court used Stewart’s valuation of the land.

       Granted, the court added the value of the improvements. But Stewart
 doesn’t question the need to include improvements in a typical calculation
 of a diminution in value. To the contrary, Stewart argues only that the
 contracting parties hadn’t intended to include the improvements as
 collateral.
 7
       Wells Fargo argues that the district court shouldn’t have allowed the
 introduction of evidence questioning an intent to include the value of the
 improvements in the collateral. But Wells Fargo is defending the judgment,
 and reversal of the evidentiary ruling wouldn’t appear to help Wells Fargo.
 So we need not consider Wells Fargo’s argument on admissibility of the
 evidence.
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  defined “land” to include “improvements affixed thereto.” Appellant’s

  App’x vol. 8, at 2073. Under Utah law, “‘improvements’ are defined as

  real estate and includes all buildings, structures, fixtures, fences and

  improvements erected upon or affixed to land.” Great Salt Lake Mins. &

  Chemicals Corp. v. State Tax Comm’n,
573 P.2d 337, 339
 (Utah 1977).

  Under this definition, the covered improvements include the high-speed

  chairlifts, the telecommunication facility, and the ski patrol building. So

  the district court included these improvements when valuing the lost

  parcel.

        Stewart challenges the district court’s implicit finding that the

  parties to the loan had intended to include the improvements in the

  collateral. Because this challenge is factual, we consider only whether the

  district court clearly erred in its finding. Fed. R. Civ. P. 52(a)(6). We

  regard the finding as clearly erroneous only if (1) it lacked any factual

  support or (2) we’re definitely and firmly convinced that the district court

  made a mistake. Mathis v. Huff & Puff Trucking Co.,
787 F.3d 1297, 1305

  (10th Cir. 2015).

        In determining whether the district court clearly erred, we focus on

  the parties’ intent in entering the loan. See Winegar v. Froerer Corp.,
813 P.2d 104, 108
 (Utah 1991) (stating that the court must determine the




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  parties’ intent from the contractual terms alone when they’re

  unambiguous). That intent is unambiguously reflected in the policy, 8 which

             included all of the land within Parcel B, 9 Appellant’s App’x
              vol. 8, at 2076–2116, and

             defined “land” to encompass improvements “which by law
              constitute real property,” id. at 2073.

  And Utah law defines real property “improvements” as structures fixed to

  the land. See Great Salt Lake Mins. & Chemicals Corp. v. State Tax

  Comm’n,
573 P.2d 337, 339
 (Utah 1977) (defining “improvements”). So the

  parties must have intended for the loan to include the improvements within

  the lost parcel.

        Stewart argues that Wells Fargo didn’t intend to include the

  improvements, pointing to Wells Fargo’s prior valuations of the collateral.


  8
        Under Utah law, a contract “is ambiguous if it is capable of more
  than one reasonable interpretation because of ‘uncertain meanings of
  terms, missing terms, or other facial deficiencies.’” Winegar v. Froerer
  Corp.,
813 P.2d 104, 108
 (Utah 1991) (quoting Faulkner v. Farnsworth,
665 P.2d 1292, 1293
 (Utah 1983)); see also Cent. Fla. Invs., Inc. v.
  Parkwest Assocs.,
40 P.3d 599, 605
 (Utah 2002) (“In evaluating whether
  the plain language is ambiguous, we attempt to harmonize all of the
  contract’s provisions and all of its terms.”). Here the policy
  unambiguously covered Parcel B and defined “land” to include
  improvements.
  9
        Stewart points out that its expert witness opined that the loss of the
  improvements had resulted in “no ‘actual monetary loss or damage’ to
  Wells Fargo” because the improvements hadn’t enhanced the value of
  Bonanza Flats. Appellant’s Reply Br. at 28 (quoting Appellant’s App’x
  vol. 6, at 1585–86). But the district court could reasonably find that the
  improvements were valuable in themselves.

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  For example, Wells Fargo didn’t include the value of the improvements in

  the original proof of loss, the amended proof of loss, or the initial

  appraisal of the collateral.

        But Wells Fargo submitted the original and amended proofs of loss

  years after the parties had entered into the loan. So the district court could

  reasonably discount the effect of the proofs of loss on Wells Fargo’s intent

  roughly a decade earlier.

        The district court could also reasonably infer that Wells Fargo had

  intended to obtain a security interest in all of Parcel B. Rather than

  speculate that Talisker and Wells Fargo might have mistakenly included

  the improvements as collateral, the district court reasonably relied on the

  unambiguous language in the loan agreement.

        Stewart relies not only on the proofs of loss but also on Wells

  Fargo’s initial appraisal. There an appraiser measured the value based on a

  leased fee and omitted the improvements. From this omission, Stewart

  infers that Wells Fargo hadn’t intended to include the improvements.

        This inference is reasonable, but not dispositive. At trial, Wells

  Fargo’s appraiser used a fee simple valuation, which incorporated the

  value of the improvements. And Stewart doesn’t question (1) Wells Fargo’s

  intent to obtain a security interest in the fee simple title of the real

  property or (2) Utah’s classification of the improvements as part of the real



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  property. So Wells Fargo’s earlier appraisal didn’t foreclose an intent to

  include the improvements.

        Given this evidence, the district court didn’t clearly err by including

  the value of the improvements.

  4.    The district court didn’t err in quantifying the diminution in
        value.

        The district court awarded Wells Fargo $3,210,200. In its reply brief,

  Stewart observed that no witness had ever used this figure as the total

  value.

        This observation proves little. The court calculated the award by

  adding the values of the land and the improvements. Stewart’s expert

  witness had valued the land at $330,200, and the district court accepted

  this valuation.

        The court then added the value of the improvements. For the

  telecommunications facility and the two high-speed chairlifts, the court

  credited the appraisal by Wells Fargo’s expert witness: $2,860,000. And

  the parties agreed on the value of the ski patrol building: $20,000. So the

  court added these amounts to the value of the land, arriving at a total of

  $3,210,200.

        Though Stewart points out that no one had mentioned this amount,

  the district court calculated the award based on the expert testimony and




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  agreed valuation of the ski patrol building. And Stewart doesn’t identify

  any errors in this calculation. 10

  5.    The district court should have awarded prejudgment interest.

        Though the district court didn’t err in valuing the lost parcel, Wells

  Fargo argues that it should have obtained an award of prejudgment interest.

  In addressing this argument, we consider the availability of prejudgment

  interest under state law. AE, Inc. v. Goodyear Tire & Rubber Co.,
576 F.3d 1050, 1055
 (10th Cir. 2009). The parties agree that the pertinent state law

  is Utah’s, so we conduct de novo review over the district court’s

  application of Utah law.
Id.

        Under Utah law, prejudgment interest is available if damages “are

  complete” and are measurable by “fixed rules of evidence and known

  standards of value.” Smith v. Fairfax Realty, Inc.,
82 P.3d 1064, 1068

  (Utah 2003) (quoting Fell v. Union Pac. Ry. Co.,
88 P. 1003, 1007
 (Utah

  1907)). Applying this test, Utah courts have focused on the ability to fix

  the loss at a definite time and to calculate the amount “with mathematical

  accuracy in accordance with well-established rules of damages.” AE, 576



  10
        Under Utah law, Wells Fargo bears the burden to establish coverage.
  See Utah Farm Bureau Ins. Co. v. Dairyland Ins. Co.,
634 F.2d 1326, 1328
  (10th Cir. 1980). Stewart argues that Wells Fargo presented no pertinent
  evidence because its expert witness had not appraised the diminution in
  value to the entire collateral package. But the court could calculate the
  award based on appraisals of the lost parcel and its improvements.

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  F.3d at 1055 (quoting Encon Utah, LLC v. Fluor Ames Kraemer, LLC,
210 P.3d 263, 272
 (Utah 2009) (cleaned up)).

          The district court didn’t consider whether the damages were fixed. So

  we have no ruling on this element. But the appraisers for both parties

  valued the amount of Wells Fargo’s loss as of November 17, 2015 (when

  Wells Fargo tried to foreclose on the lost parcel). Given the appraisers’

  shared approach, the factfinder needed to fix the loss on November 17,

  2015.

          The remaining question is whether the damages could be calculated

  with mathematical accuracy based on well-established rules of damages.

  The district court concluded that too many uncertainties existed for this

  calculation. We disagree. The calculation was possible from the appraisals

  of the lost parcel and the improvements.

          The Utah Supreme Court considered a similar issue in Smith v.

  Fairfax Realty, Inc.,
82 P.3d 1064
 (Utah 2003). There the plaintiffs’ injury

  consisted of the loss of partnership assets.
Id. at 1067
. The court held that

  prejudgment interest was available because the factfinder had relied on an

  appraiser’s use of generally accepted principles of valuation.
Id. at 1070
.

  The court acknowledged disagreement between the parties, but concluded

  that the factfinder had used “known standards of value.”
Id.
 (quoting Fell

  v. Union Pac. Ry. Co.,
88 P. 1003, 1007
 (Utah 1907)).



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        Here too the factfinder relied on the appraisers’ use of accepted

  principles. For the land itself, the district court relied on Stewart’s

  appraiser, who had relied on the comparable sales approach. For the high-

  speed chairlifts, the district court relied on Wells Fargo’s appraiser, who

  had relied on the cost approach. For the telecommunication facility, the

  court relied on the same appraiser, who had relied on the cost approach and

  income capitalization approach. For the ski patrol building, the court relied

  on both parties’ appraisers, who had agreed on the value based on the cost

  approach. All of these approaches are generally accepted methods of

  appraising property. See Appraisal Institute, The Appraisal of Real Estate

  36 (14th ed. 2013) (stating that three approaches for appraising a

  property’s value are the “cost approach,” the “sales comparison approach,”

  and the “income capitalization approach”).

        Despite the apparent applicability of Smith, the district court

  reasoned that too many uncertainties remained for an award of prejudgment

  interest. For this reasoning, the court relied on AE, Inc. v. Goodyear Tire

  & Rubber Co.,
576 F.3d 1050
 (10th Cir. 2009). There this Court was

  addressing repair costs, not property value. The costs stemmed from a need

  to replace part or all of a heating and snowmelt system for a 13,000-square

  foot house.
Id. at 1053
. Not only did the parties disagree on the repair

  costs, but the plaintiff itself had presented roughly ten different cost

  estimates, ranging from roughly $3.8 million to $5.5 million.
Id. at 1054
.

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  The plaintiff’s expert witness explained that no one could predict the

  extent of the repairs. For example, this expert witness insisted on the need

  to damage some walls but acknowledged uncertainty on the extent of the

  damage.
Id.

        The plaintiff’s expert witness not only acknowledged this uncertainty

  on the extent of the damage, but also disagreed with the defense over the

  needed repairs.
Id.
 at 1054–55. For example, the defense’s expert witness

  proposed an approach that would eliminate the use of a hose underneath

  the cabinetry, eliminating the need for cabinetry work.
Id.
 The plaintiff’s

  expert witness had estimated $300,000 for the cabinetry work.
Id. at 1054
.

        Applying Utah law, we recognized the jury’s inability to calculate

  damages based on known standards. We explained that “nearly every aspect

  of the competing estimates required the jury to exercise vast discretion in

  assessing the necessity, scope, accuracy, and precision of the estimated

  costs.”
Id. at 1060
.

        No such discretionary decisions were needed here. The land and the

  improvements had defined market values. (For one of the improvements,

  the ski patrol building, the parties even agreed on the value.) In AE, the

  factfinder had to exercise considerable discretion to determine the extent

  of the needed repairs. And even then, the plaintiff itself had relied on

  roughly ten different estimates that were millions of dollars apart. See

  p. 16, above. Those concerns are not present here.

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        The district court used a measure of damages subject to calculation,

  so Smith required an award of prejudgment interest. The court thus erred in

  denying this award.

  V.    Conclusion

        We affirm on liability. The district court found a diminution in value

  to the collateral and didn’t err in calculating that value.

        But we reverse the denial of prejudgment interest. Despite the

  disagreement on the diminution in value, the court could calculate the

  amount based on the appraisers’ use of accepted methods. So on remand,

  the district court should determine the amount that Wells Fargo is owed in

  prejudgment interest.




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