Clark Props., Inc. v. JDW–CM, LLC

• Decision Date: 07 June 2012
• Docket Number: No. 20100851–CA.,20100851–CA.
• Citation: 710 Utah Adv. Rep. 51,2012 UT App 163,282 P.3d 1009
• Parties: CLARK PROPERTIES, INC., Petitioner and Appellant, v. JDW–CM, LLC, Respondent, Counterclaim Petitioner, and Appellee, v. Clark Properties, Inc., Counterclaim Respondent and Appellant, and Deer Run at Maple Hills, LLC, Third-party Respondent and Appellant.
• Court: Utah Court of Appeals

282 P.3d 1009

710 Utah Adv. Rep. 51

2012 UT App 163

CLARK PROPERTIES, INC., Petitioner and Appellant,

v.JDW–CM, LLC, Respondent, Counterclaim Petitioner, and Appellee,

v.Clark Properties, Inc., Counterclaim Respondent and Appellant,andDeer Run at Maple Hills, LLC, Third-party Respondent and Appellant.

No. 20100851–CA.

Court of Appeals of Utah.

June 7, 2012.

Mark R. Anderson and George A. Hunt, Salt Lake City, for Appellants.

Brian W. Steffensen, Salt Lake City, for Appellee.

Before Judges VOROS, ORME, and DAVIS.

MEMORANDUM DECISION

ORME, Judge:

¶ 1 In this real estate financing dispute with related title issues, appellants Clark Properties, Inc., and Deer Run at Maple Hills, LLC (collectively, Clark) challenge the trial court's ruling that appellee JDW–CM, LLC (JDW) is entitled to quiet title in a parcel of land designated as Lot 307. Clark also appeals the court's denial of its motion for new trial. We affirm.

¶ 2 Clark contends that the trial court erred in its initial trial ruling on the issues before it and by denying Clark's motion for new trial ¹ because the court failed to receive any evidence “through testimony or otherwise,” had no motions pending before it, and based its ruling on the parties' trial briefs. At oral argument before this court, Clark stated that the trial court's violation of Clark's right to due process ² constitutes the broader issue before us and that the related “technical” matter is that the court had no evidence to support the quiet title judgment or the findings of fact ³ ultimately entered by the court. Clark also argues that the court violated section 78B–6–1315(3) of the Utah Code. SeeUtah Code Ann. § 78B–6–1315(3) (2008).

¶ 3 Clark's claims of error are based on the underlying question of whether, in the context of a bench trial, the trial court erred when it resolved the remaining claims in the case based on the parties' pretrial submissions, opening statements, and ensuing discussion. As interesting as this question is and as unorthodox as such a procedure might be, we need not reach the merits because Clark acquiesced in the procedure employed by the court.

¶ 4 We first note that the record does not support Clark's contention that the trial court “attempted to rule before the Clark Appellants ever gave their opening statement” or that, after JDW's opening statement, the court “informed the parties that it was able to resolve the matter.” After JDW's opening statement but before Clark's opening statement, the court simply stated, “When you're done with your opening arguments, I have some comments to make.... I think there may be a little different way to go through this[.]” When Clark's counsel asked, “Would you like me to speak first, your Honor?,” the court replied, “Yes. I didn't want to prejudice either of you to present what ever you're going to present.” The record contains no indication that the court sought to prevent Clark from presenting its opening statement or that “the judge had made up his mind before the trial started.”

¶ 5 Clark also states that the trial court “expressly discouraged the presentation of evidence” and that, after opening statements, the court “expressly told the parties that any presentation of evidence was futile.” We disagree. At no time did the trial court indicate by word or action that it was unwilling to allow the parties to present evidence. On the contrary, throughout the proceeding, the court indicated that it was amenable to hearing evidence if the parties wished to present it. At one point during discussion of the quiet title claims, the court asked, “[A]re the[re] issues that counsel is prepared to go forth and try? I mean, is there evidence or people here to testify today? I don't want to deprive either of you of your right to court [.]” Although Clark did not indicate, at that time or at any other point during the time set for trial, that it wanted to present evidence, JDW proffered evidence for the court's consideration.⁴ And when JDW's counsel indicated that he disagreed with the court's construction of the one-action rule and stated that he “just want[ed] to make my record,” the court responded that “it's important that you make the record.” Thus, the court demonstrated its willingness to listen to the parties.

¶ 6 The trial court's ruling is based on its interpretation of the parties' foreclosure and redemption agreement (FRA) and its understanding of the one-action rule, seeUtah Code Ann. § 78B–6–901 (Supp.2011), both of which present questions of law that generally require no factual development. See Tretheway v. Furstenau, 2001 UT App 400, ¶ 9, 40 P.3d 649 (“When contract language is unambiguous, we interpret the contract as a matter of law.”); Wilson v. Valley Mental Health, 969 P.2d 416, 418 (Utah 1998) (“The proper construction of a statute is a question of law.”). However, “when a contract provision is ambiguous because it is susceptible to more than one reasonable interpretation due to uncertain meaning of terms, missing terms, or other facial deficiencies, extrinsic evidence is admissible to explain the intent of the parties.” Willard Pease Oil & Gas Co. v. Pioneer Oil & Gas Co., 899 P.2d 766, 770 (Utah 1995). Yet when the matter of parol evidence relating to the FRA was raised, Clark did not argue that the FRA was ambiguous or ask to present evidence on the matter, even though it clearly could have done so. See id.

¶ 7 More significantly, Clark's conduct may well have encouraged the trial court to believe that Clark had no objection to the court's procedure ⁵ or rulings. For example, at one point, the court stated:

I don't want to waste everybody's time. I don't want to jump in prematurely, but I don't see anything and I didn't hear anything in argument that would change my mind as to what you were going to present today or what you were going to do that would change my mind as to how I read the law, how I read the statute, how I read this agreement.

Clark's counsel responded by acknowledging that the FRA “has to speak for itself,” thus implying agreement with—or at the very least, acquiescence in—the trial court's assessment and reinforcing the court's conclusion that no evidence was necessary to interpret the FRA. Shortly thereafter, Clark's counsel asked the court to clarify “what just happened here,” in relation to its ruling, and when the court did so, counsel then stated that he understood the ruling, without interposing an objection to the ruling itself or the procedure employed in reaching it.⁶

¶ 8 We recognize that when a party is surprised by a court's action, as Clark's counsel no doubt was, it is often difficult to articulate with precision the grounds for objection. Nevertheless, to the extent that Clark had any concerns regarding the procedure, it had an obligation to contemporaneously express those concerns in some way. Here, Clark did not object to the court's procedure or attempt to put on or even proffer any evidence, even though the court indicated its willingness to allow the parties to present relevant evidence and expressly asked the parties if they wanted to do so. The court also demonstrated that it was willing to listen to counsel, answer questions, and clarify its reasoning. By failing to interpose any objection to the court's decision to rule based on its interpretation of the FRA and construction of the one-action rule, and by indicating its willingness to accede to the court's suggested procedure, Clark acquiesced in the court's decision that it could rule as a matter of law ⁷ and in the procedure the court chose to employ.⁸ Accordingly, Clark cannot now argue that the court erred by refusing to allow Clark to present evidence. Similarly, Clark cannot reasonably contend that the court's failure to hear evidence constitutes a basis for a new trial.

¶ 9 Insofar as Clark suggests that it preserved its due process claim by raising it in its motion for new trial, that fact alone is inadequate to preserve an issue for appellate review. See, e.g., State v. Pinder, 2005 UT 15, ¶ 46, 114 P.3d 551. “[T]he purpose of the preservation rule is to ensure that the trial court is first given an opportunity to decide if a mistake has been made before appellate review becomes appropriate.” Id.

Although a new argument may be advanced when moving for a new trial, the trial court may refuse to consider the merits of the argument ... because it may find the issue waived. If the trial court refuses to address the merits of the newly advanced argument, the issue remains unpreserved for appellate review and may be addressed only if the challenging party can show plain error or exceptional circumstances.⁹Id. (omission in original) (citation and internal quotation marks omitted). Here, the court did not address the merits of the claim when ruling on the motion for new trial. Instead, the court ruled that Clark waived the opportunity to present evidence.¹⁰ On appeal, Clark states that the court committed plain error because it “had made up [its] mind before the trial started” and “ruled without evidence.” The record does not support the first statement. As to the second statement, we conclude that Clark acquiesced in the court's suggestion that it could rule as a matter of law, that is, without the presentation of evidence. In the absence of plain error or exceptional circumstances, we conclude that the due process issue “remains unpreserved.” See id.

¶ 10 Clark also argues that section 78B–6–1315(3) of the Utah Code requires a trial court to hear evidence before ruling in a quiet title action. ¹¹SeeUtah Code Ann. § 78B–6–1315(3) (2008) (“[I]n all cases [the court] shall require evidence of plaintiff's title and possession and hear the evidence offered respecting the claims and title of any of the defendants [.]”). Thus, Clark contends that the court violated section 78B–6–1315(3) by ruling without hearing evidence.

¶ 11 We first note that it is questionable whether Clark preserved this issue,...