Can a party's conduct alone waive an antiwaiver provision in Utah? Neeshan v. Ravonsheed Explained

In Neeshan v. Ravonsheed, the Utah Court of Appeals addressed a critical question about when a party’s conduct can constitute implied waiver of contractual rights despite the presence of an antiwaiver provision.

Background and Facts

Lisa Neeshan executed a $114,000 promissory note secured by her residence, which contained penalty provisions for late payments and an antiwaiver clause stating that no failure to exercise rights would constitute a waiver. Over ten years, Neeshan repeatedly missed payments, and each time she requested payoff statements, the original holder John Maxfield provided amounts that excluded penalty interest because he found the calculations too complicated. When Maxfield sold the note to Aaron Ravonsheed, the new payoff demand was 75% higher than Maxfield’s last statement, prompting Neeshan to claim waiver of the penalty provisions.

Key Legal Issues

The central issue was whether Maxfield’s pattern of providing understated payoff amounts constituted implied waiver of both the penalty provisions and the antiwaiver clause itself. The court had to determine whether conduct alone could establish waiver or if subjective intent remained relevant.

Court’s Analysis and Holding

Following Mounteer Enterprises v. Homeowners Ass’n, the court reaffirmed that waiving rights protected by an antiwaiver provision requires clear intent to waive both the underlying provision and the antiwaiver clause. While conduct can serve as circumstantial evidence of intent, the district court’s factual finding that Maxfield lacked intent to waive was entitled to deference. The court distinguished this case from situations involving “affirmative disavowal” and noted that Maxfield’s testimony about retaining collection rights was credible and corroborated by documentation prepared during the note sale.

Practice Implications

This decision reinforces that antiwaiver provisions provide meaningful protection against inadvertent loss of contractual rights. Practitioners should understand that establishing implied waiver requires more than demonstrating non-enforcement patterns—there must be evidence of clear intent to relinquish rights. The decision also highlights the importance of credibility determinations in bench trials, as appellate courts will defer to trial courts’ assessments of witness testimony regarding subjective intent.