Aspenwood, L.L.C. v. C.A.T., L.L.C.

2003 UT App 28, 73 P.3d 947, 466 Utah Adv. Rep. 7, 2003 Utah App. LEXIS 6
CourtCourt of Appeals of Utah
DecidedFebruary 6, 2003
DocketNo. 20010735-CA
StatusPublished
Cited by10 cases

This text of 2003 UT App 28 (Aspenwood, L.L.C. v. C.A.T., L.L.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aspenwood, L.L.C. v. C.A.T., L.L.C., 2003 UT App 28, 73 P.3d 947, 466 Utah Adv. Rep. 7, 2003 Utah App. LEXIS 6 (Utah Ct. App. 2003).

Opinion

OPINION

GREENWOOD, Judge:

11 Plaintiffs Aspenwood, L.L.C. (Aspen-wood), JMS Hidden, LL.C., and JMS Financial, LLC. (together referred to as JMS) appeal various orders and judgments entered against them and in favor of Defendants CAT., LLC. (CAT), Paul Taggart (Tag-gart), and John Coats (Coats). We affirm.

BACKGROUND 1

2 Dan Mehr (Mehr) owned an excavation company called Baucorp, Inc. (Baucorp). Baucorp entered into a contract with Newport Holdings, Inc. (Newport), owned by Kent Hogan (Hogan), to acquire Newport's interest in various real estate development projects (the Newport Contract). The Newport Contract gave Baucorp an option to purchase and assume Newport's position in various contracts for real estate development projects described in an addendum. The addendum did not include legal descriptions or addresses of the properties, but only generalized reference to projects, usually by name of city. The Newport Contract did not specify a closing date, but indicated closings would occur "as developed."

T3 Mehr approached Coats and Taggart about their possible financial participation in the Newport enterprise. Coats and Taggart operated through their company, CAT. According to Mehr, Hogan had represented that he anticipated imminent subdivision approval for one of the proposed projects, Hidden Ridge, and that Ryland Homes had contracted to purchase 100 of the Hidden Ridge lots. As a result, Hidden Ridge would produce substantial cash flow by fall 1997. [950]*950Mehr, Taggart, and Coats formed Aspen-wood for the purchase of the Hidden Ridge project and on May 22, 1997 executed an Operating Agreement. Baucorp and CAT each owned 50% of Aspenwood.

T4 Contemporaneously, Aspenwood executed a purchase agreement (the Hidden Ridge Agreement) with Newport and its partner in Hidden Ridge, Lonnie Oman (Oman), to purchase their interest in the Hidden Ridge project and assume various underlying contracts. CAT funded Aspen-wood's initial payment of $100,000 towards the purchase price of this project. The balance was to be paid in monthly installments with final payment due December 22, 1997. Mehr, Taggart, and Coats expected that within a couple of months, proceeds from a construction loan and lot sales would pay off their obligation under the Hidden Ridge Agreement. They also expected the funds would be sufficient to develop phase one of the Hidden Ridge project and fund other projects referred to in the Newport Contract. Aspenwood made further payments on the Hidden Ridge Contract and received title to phase one of the project.

T5 Unfortunately, the Hidden Ridge project did not generate funds as the parties had hoped. Aspenwood stopped making payments on the Hidden Ridge Contract in fall 1997. Negotiations between Aspenwood and the Hidden Ridge principals were unsuccessful. By November 1998, there were unpaid bills on the Hidden Ridge project of approximately $319,000.

T6 Mehr told Taggart and Coats that he knew of others who might buy out CAT's interest in Aspenwood. Subsequently, CAT sold its 50% interest in Aspenwood to JMS as documented in a written agreement (the JMS Purchase Agreement). The principals of JMS were Brian Steffensen, Harold Ro-sen, and Pam and Brent Watson. CAT quitelaimed its interest to JMS and was to receive the amount CAT had invested in Hidden Ridge, without any interest accrual. JMS did not pay CAT the amount agreed upon.

T7 In June 1999, Aspenwood and JMS filed suit, claiming that CAT, Taggart, and Coats had defrauded JMS into purchasing CAT's interest in Aspenwood. Aspenwood claimed that the Defendants had breached their contractual duty to provide funds necessary to purchase and develop the projects that Mehr had an option to purchase from Hogan. Aspenwood also sued Hogan and his partner, Oman, for fraud. Aspenwood settled its claim against Oman and Hogan for $200,000 plus 30% of profits to be realized from further development of Hidden Ridge. CAT counterclaimed seeking payments due under the JMS Purchase Agreement.

T8 The trial court set dates for discovery cutoff, motion cutoff, and trial. At the request of JMS, the court twice extended the discovery cutoff and continued the trial date. One business day before the motion cutoff date, Defendants filed a motion for partial summary judgment, seeking dismissal of all claims except the fraud claim against Tag-gart. JMS filed a rule 56(f) motion, seeking more time for discovery. The parties filed memoranda and supplemental memoranda setting forth their positions and the trial court conducted two hearings on the motion for partial summary judgment and subsequently granted the motion.

T9 After a pretrial hearing in the trial court's chambers, the trial court sent a scheduling order and notices to the parties indicating that the trial would be to the bench. Almost a year later, shortly before the scheduled trial date, JMS indicated to the court clerk it wanted a jury trial. After a conference with the parties, the trial court determined that JMS had waived its right to a jury trial.

{ 10 A four day bench trial was held, after which the trial court dismissed the fraud claim with prejudice. The trial court found in favor of CAT on its counterclaim for the amount due from JMS for the 50% interest in Aspenwood. Judgment was entered for CAT in the amount of $612,995 plus interest and reasonable attorney fees.

{11 After JMS filed a Notice of Appeal, CAT initiated proceedings to collect its judgment. The trial court issued an Order in Supplemental Proceedings requiring that the judgment debtors appear, through Harold Rosen, for questioning about the assets of [951]*951the debtors. After a series of objections, motions, and hearings, Rosen's examination was scheduled to take place on July 80, 2001. CAT became aware of a $230,000 payment on July 29 from Hogan and Oman to Aspen-wood, as final settlement of sums due on the Hidden Ridge project. At CAT's request, the trial court issued a preliminary injunction prohibiting Aspenwood from disposing of the funds except for payment of ordinary business expenses. - Aspenwood subsequently voluntarily paid JMS's share of the payment to CAT as a credit on the judgment.

ISSUES

{ 12 JMS devotes the first eighteen pages of its one-hundred page opening brief to a description of thirty-two issues it raises on appeal, including where the issues were preserved at trial and the standards of review applicable. However, JMS only argues five of those issues in the body of the brief. Those issues include the following: (1) Was JMS given the opportunity to conduct full and fair discovery; (2) Did the trial court properly grant CAT's motion for partial summary judgment; (8) Did JMS waive its right to a jury trial; (4) Are the findings of fact clearly erroneous; and (5) Did the trial court err in its rulings during the post trial proceedings?

ANALYSIS

I. Opportunity to Conduct Full and Fair Discovery

¶ 13 JMS argues that CAT should have been sanctioned for discovery abuses and that the trial court improperly imposed a discovery schedule. "Trial courts have broad discretion in determining discovery sanctions because trial courts must deal first hand with the parties and the discovery process." Hales v. Oldroyd, 2000 UT App 75,¶ 15, 999 P.2d 588 (internal quotations, citation, and alteration omitted). Therefore, "appellate courts will interfere with the exercise of such discretion only when abuse of that discretion is clearly shown." Id.

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Cite This Page — Counsel Stack

Bluebook (online)
2003 UT App 28, 73 P.3d 947, 466 Utah Adv. Rep. 7, 2003 Utah App. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aspenwood-llc-v-cat-llc-utahctapp-2003.