Asc Utah, Inc. v. Mounta (In re in Resorts, L.C.)

• Citation: 733 Utah Adv. Rep. 7,309 P.3d 201
• Decision Date: 03 May 2013
• Docket Number: No. 20110742.,20110742.
• Parties: ASC UTAH, INC. and Stephen A. Osguthorpe, Plaintiffs and Appellees, v. WOLF MOUNTAIN RESORTS, L.C., Defendant and Appellant, and Enoch Richard Smith, Intervenor and Appellee.
• Court: Supreme Court of Utah

309 P.3d 201

733 Utah Adv. Rep. 7

ASC UTAH, INC. and Stephen A. Osguthorpe, Plaintiffs and Appellees,

v. WOLF MOUNTAIN RESORTS, L.C., Defendant and Appellant,andEnoch Richard Smith, Intervenor and Appellee.

No. 20110742.

Supreme Court of Utah.

May 3, 2013.

John P. Ashton, Clark K. Taylor, John R. Lund, Kara L. Pettit, David W. Scofield, Christopher Jon Finley, M. David Eckersley, Salt Lake City, for plaintiffs and appellees.

Steve K. Gordon, Todd D. Wakefield, Joseph E. Wrona, Salt Lake City, for defendant and appellant.

Justice DURHAM, opinion of the Court:

INTRODUCTION

¶ 1 Wolf Mountain Resorts, L.C. (Wolf Mountain) appeals following a trial in which the jury found it liable to ASC Utah, Inc. (ASCU) for $54,437,000 in damages. Wolf Mountain argues that the district court committed reversible error when it denied Wolf Mountain's motions for summary judgment, determined that the Amended and Restated Development Agreement for the Canyons Specially Planned Area (SPA Agreement) is ambiguous, and denied Wolf Mountain's motions for post-judgment relief. ASCU argues that the entire appeal is moot because it purchased Wolf Mountain's appellate rights in this case (and is happy to drop the appeal against itself). We determine that ASCU did not acquire Wolf Mountain's appellate rights and that the appeal is therefore not moot. We then consider the merits of Wolf Mountain's appeal and affirm.

BACKGROUND

¶ 2 Wolf Mountain and ASCU have been litigating their rights and responsibilities regarding development of the Canyons Resort in Park City, Utah, for several years.¹ After a seven-week trial in 2011, the jury awarded ASCU $54,437,000 in damages. Several months later, in an effort to collect on this judgment, ASCU filed an Application for Writ of Execution. The Application listed Wolf Mountain's real and personal property, including “[c]laims asserted in litigation entitled ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., and all actions consolidated therein, Third Judicial District, Summit County, State of Utah, Consolidated Case No. 060500297.” On the same day, the district court issued a Writ of Execution authorizing the seizure and sale of the property listed in the Application to the extent necessary to satisfy the judgment.

¶ 3 Wolf Mountain twice moved the district court to stay enforcement of the Writ of Execution. The district court denied these motions because Wolf Mountain had not posted a supersedeas bond, as required by rule 62(d) of the Utah Rules of Civil Procedure (URCP). Instead, Wolf Mountain had offered real property as security. The district court held hearings on whether the Writ of Execution was wrongfully obtained and whether any of the listed property was exempt from seizure. Following these hearings, the court ordered Wolf Mountain's real and personal property to be sold to satisfy the judgment. Wolf Mountain did not appeal from the Writ of Execution or any of the related orders or proceedings. Nor did it seek a stay from this court.

¶ 4 Thereafter, at a public sale conducted by a Summit County sheriff's deputy, ASCU purchased “all rights, title, claims and interests of Wolf Mountain” in the “[c]laims asserted in [the present] litigation.” The property description in the Certificate of Sale was drawn verbatim from the Application for Writ of Execution. See supra ¶ 2. ASCU then moved this court to dismiss the appeal as moot, arguing that because ASCU now owned Wolf Mountain's appellate rights, there was no longer a controversy. We deferredruling on the motion and instructed the parties to brief the merits of the appeal. We have jurisdiction under Utah Code section 78A–3–102(3)(j).

STANDARD OF REVIEW

¶ 5 Wolf Mountain appeals various issues involving different standards of review. We set forth the proper standard as we address each issue.

ANALYSIS

¶ 6 Because mootness is a jurisdictional matter, Utah Transit Auth. v. Local 382 of the Amalgamated Transit Union, 2012 UT 75, ¶¶ 18–19, 289 P.3d 582, we begin by addressing ASCU's contention that no actual controversy exists.

I. MOOTNESS

¶ 7 ASCU contends that “no actual controversy exists and the issues in the appeal are moot because Wolf Mountain no longer has any rights, title, claims or interests in this litigation.” Because Wolf Mountain did not appeal from the Writ of Execution, we are not reviewing the execution proceedings or orders. See Cheves v. Williams, 1999 UT 86, ¶ 50, 993 P.2d 191 (holding that an “execution order ... stands as a separate and distinct order from the underlying judgment and that, as such, ... [a party must] file a separate notice of appeal to challenge it”). Rather, our task is to interpret the language of the Writ of Execution and the Certificate of Sale to determine what effect, if any, the sale had on Wolf Mountain's appellate rights.

¶ 8 The Certificate of Sale states that ASCU purchased “all rights, title, claims and interests of Wolf Mountain” in the “[c]laims asserted in litigation entitled ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., and all actions consolidated therein, Third Judicial District, Summit County, State of Utah, Consolidated Case No. 060500297.” Wolf Mountain argues that the word “claim” is synonymous with “chose in action,” which we have defined as “a claim or debt upon which a recovery may be made in a lawsuit” and as “a right to sue.” Applied Med. Techs., Inc. v. Eames, 2002 UT 18, ¶ 12, 44 P.3d 699 (internal quotation marks omitted). ASCU does not offer a competing definition of “claim.” It simply asserts that it has purchased Wolf Mountain's appellate rights. Black's Law Dictionary defines “claim” as “[t]he aggregate of operative facts giving rise to a right enforceable by a court” and as “[a] demand for money, property, or a legal remedy to which one asserts a right.” Black's Law Dictionary 281–82 (9th ed.2009).

¶ 9 We agree with Wolf Mountain that the term “claim” refers to a demand for affirmative relief, as opposed to a defense or a right to appeal. Thus, the term “[c]laims” in the Certificate of Sale did not encompass Wolf Mountain's appellate rights in this case. Accordingly, we need not determine whether, in the case of a certificate of sale that unambiguously purported to transfer appellate rights, Utah public policy would prevent a judgment creditor from executing on a judgment debtor's right to appeal.²

II. MERITS

¶ 10 Having established that an actual controversy exists, we turn to the merits of the appeal. Wolf Mountain argues that the district court erred when it denied Wolf Mountain's motions for summary judgment, ruled that section 3.2.6 of the SPA Agreement is ambiguous, and denied Wolf Mountain's motion for judgment notwithstanding the verdict and its motion in the alternative for a new trial and for remittitur. We affirm.

A. Motions to Dismiss

¶ 11 ASCU argued at trial that Wolf Mountain breached its agreements with ASCU by failing to convey certain land for construction of a golf course. Wolf Mountain filed three motions for summary judgment based on the following asserted facts, which it alleged to be undisputed: (1) that Wolf Mountain fulfilled its obligations by actually conveying the land; (2) that Wolf Mountain had no obligation to convey the land because ASCU had not fulfilled a condition precedent to the obligation; and (3) that Wolf Mountain had no obligation to convey the land under the SPA Agreement, because the only provision in that agreement addressing conveyance of the land is merely an agreement to agree. The district court ruled that summary judgment was not appropriate because of factual disputes that the jury needed to resolve.

¶ 12 Generally, the denial of a motion for summary judgment is not reviewable on appeal because the movant has had “the opportunity to fully litigate [at trial] the issues raised in the summary judgment motion [ ].” Wayment v. Howard, 2006 UT 56, ¶ 19, 144 P.3d 1147. Appellate review is available only when a motion for summary judgment is denied on a purely legal basis. Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 15, 215 P.3d 152.

¶ 13 Here, although the interpretation of the agreements between Wolf Mountain and ASCU presented a legal question, whether and when Wolf Mountain conveyed the property and whether and when any condition precedent was fulfilled were factual questions. Furthermore, interpretation of the contracts may not have been possible until underlying factual disputes were resolved. Indeed, the district court explicitly stated that it denied the motions because of factual disputes. Appellate review is therefore unavailable.

B. Ambiguity

¶ 14 Wolf Mountain appeals the district court's determination that section 3.2.6 of the SPA Agreement (Section 3.2.6) is ambiguous. Wolf Mountain asserts that ASCU's interpretation, which was adopted by the district court, was contradicted by key provisions in other related contracts between the parties and ignored several canons of contract interpretation. Wolf Mountain claims that its own interpretation “gave effect to all contract provisions, harmonized all provisions, and did not render any of the provisions meaningless.”

¶ 15 We have no way to evaluate these contentions, however, because Wolf Mountain has not presented the competing interpretations of Section 3.2.6 or even identified the portion of Section 3.2.6 found to be ambiguous. Elsewhere in its brief, Wolf Mountain argues that Section 3.2.6 was merely an “agreement to agree.” Thus, we can infer that the district court may have held Section 3.2.6 to be ambiguous on that point. However, we will not exercise appellate review based on our best guess as to the subject of the appeal. Furthermore, because Wolf Mountain has not explained what prejudice resulted from the court's finding of ambiguity, we cannot rule out the possibility of harmless error.

¶ 16 Appellants have the burden to clearly set forth the issues they are appealing and to provide reasoned argument and legal authority. SeeUtah R.App. P. 24(a)(9)....