In Re Estate of Pahl

2007 UT App 389, 174 P.3d 642, 2007 WL 4259223
CourtCourt of Appeals of Utah
DecidedDecember 6, 2007
Docket20050867-CA
StatusPublished
Cited by5 cases

This text of 2007 UT App 389 (In Re Estate of Pahl) 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
In Re Estate of Pahl, 2007 UT App 389, 174 P.3d 642, 2007 WL 4259223 (Utah Ct. App. 2007).

Opinion

174 P.3d 642 (2007)
2007 UT App 389

In the matter of the ESTATE OF Gary G. PAHL, deceased.
KaLynn Ninow, Petitioner and Appellee,
v.
William Lowe; Augusta Rose; Robert Mortensen; and Grand Staircase Land Co., Inc., Respondents and Appellants.
Augusta Rose, Third-party Petitioner,
v.
KaLynn Ninow, Ryan Pahl, Richard Ninow, and Does I-V, Third-party Respondents.

No. 20050867-CA.

Court of Appeals of Utah.

December 6, 2007.
Rehearing Denied December 26, 2007.

*643 Robert Henry Copier, Salt Lake City, for Appellants.

Hala L. Afu, Daniel F. Van Woerkom, and Sandra K. Weeks, Lehi, for Appellee.

Before BENCH, P.J., DAVIS and THORNE, JJ.

OPINION

DAVIS, Judge:

¶ 1 Respondents William Lowe and Augusta Rose appeal from several of the district court's determinations in favor of Petitioner KaLynn Ninow. We dismiss the appeal for lack of jurisdiction, but we award Petitioner her reasonable attorney fees and remand to the trial court for a determination of such fees.

BACKGROUND

¶ 2 Gary Pahl passed away on June 25, 2000, and shortly thereafter, Petitioner became the court-appointed representative for his estate. At the time of his death, Pahl owned all 6000 shares of stock in Pahl's Salt Palace Loan Office, Inc. (the Pawn Shop). On May 15, 2002, Petitioner executed a shareholder action by consent to remove Respondents as officers and directors of the Pawn Shop. The trial court then issued a temporary restraining order, which was later converted into a preliminary injunction, forbidding Respondents from acting on behalf of the Pawn Shop. During the course of these proceedings, Respondents submitted a document purporting to show that prior to his death, Pahl sold 3000 of his shares to the Pawn Shop, thus leaving him only 3000 shares at the time of his death. Petitioner then filed a petition asking the court to determine the ownership of the Pawn Shop.

¶ 3 On June 4, 2002—a few days after the petition was filed and after the preliminary injunction was granted from the bench—Respondents' attorney, Robert Copier, filed a document purporting to transfer the 3000 disputed shares to Grand Staircase Land Company, Inc. (Grand Staircase). One month later, Copier filed another document, this time purporting to transfer shares from Grand Staircase to Diamond Fork Land Company (Diamond Fork). Interestingly, Copier was the sole officer and only director of both Grand Staircase and Diamond Fork.

¶ 4 Shortly thereafter, Petitioner moved for summary judgment, which the trial court granted from the bench on August 26, 2002. A final order memorializing this decision was entered on May 1, 2003. The findings accompanying the summary judgment order explained that although a sale of 3000 shares to the Pawn Shop had apparently been contemplated, the terms of the sale were never met and, thus, Pahl retained all 6000 shares of stock at the time of his death. The court therefore concluded that "the subsequent `transfers' ha[d] all been void ab initio" and also found that the shareholder action that Petitioner had previously executed had removed Respondents as officers and directors of the Pawn Shop. Respondents appealed the summary judgment order to this court, and we affirmed. See Ninow v. Lowe (In re Estate of Pahl), 2004 UT App 291U, para. 8, 2004 WL 1945746 (mem.).

¶ 5 On September 3, 2002, shortly after the hearing regarding summary judgment but before the resulting summary judgment order was issued, Copier filed a separate shareholder derivative action brought by Diamond Fork on behalf of the Pawn Shop against Petitioner. More than two months later, Petitioner responded with a Motion to Dismiss and Motion to Consolidate. Unaware of Petitioner's responsive motions, the trial court entered a default judgment against Petitioner on November 26, 2002. The trial court later set aside this default judgment on June 12, 2003, reasoning that "the entry of default [had] result[ed] solely from court error." The following month, Diamond Fork moved to vacate the June 12, 2003 order setting aside the default judgment, but the motion was never submitted for decision. On March 12, 2004, Diamond Fork moved for dismissal, *644 arguing that it no longer had standing in the case because it had since transferred its 3000 shares to outside companies. On April 15, 2004, the shareholder action was consolidated into the probate proceeding, and the following month the trial court granted Diamond Fork's motion to dismiss.

¶ 6 Petitioner then filed a motion alleging that actions of both Respondents and Copier constituted contempt of the trial court's previous preliminary injunction and the court's summary judgment order determining the ownership of the Pawn Shop shares. On March 7, 2005, the trial court issued orders to show cause, and a hearing was held on the matter on April 6, 2005. The court then entered its resulting Memorandum Decision on May 26, 2005, ruling that the preliminary injunction was still in force and that the summary judgment adjudicating ownership of all 6000 Pawn Shop shares precluded further pursuits of any ownership interest in the Pawn Shop. In the Memorandum Decision, the court also set a hearing regarding the contempt issues.

¶ 7 During the time between the hearing on the order to show cause and the issuance of the trial court's resulting Memorandum Decision, Respondents filed a proposed order, which the trial court entered on April 26, 2005. The order stated that it was the final order for all claims included in the probate case and dismissed the case. This order, however, may have been inadvertently entered by the court as it is somewhat inconsistent with the court's later-entered Memorandum Decision discussed above, which contemplated future contempt hearings.

¶ 8 On about August 12, 2005, Respondents submitted another proposed "final" order. The trial court signed the proposed order on August 16, 2005, likely before the five-day time window for Petitioner's objection had passed. The order stated, among other things, that Respondents "are hereby ordered removed as officer and directors of [the Pawn Shop]." Respondents now appeal this order, as well as many prior orders of the trial court.

ISSUE AND STANDARD OF REVIEW

¶ 9 Respecting the issues Respondents raise on appeal, Petitioner argues that this court does not have jurisdiction to reach these issues because they were not timely appealed. See generally Utah R.App. P. 4(a) (instructing that the notice of appeal must be filed "within 30 days after the date of entry of the judgment or order appealed from"); Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 7, 13 P.3d 616 ("If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal."). If we do not have jurisdiction, we cannot reach the underlying issues but "retain[] only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App. 1989). Thus, before we address any of the issues Respondents raise on appeal, we must determine if we have jurisdiction to reach those issues, which is a question of law, see Code v. Utah Dep't of Health, 2007 UT 43, ¶ 3, 162 P.3d 1097.

ANALYSIS

I. The August 16, 2005 Final Order

¶ 10 The only issue from the August 16, 2005 order that Respondents appeal is their removal as officers and directors of the Pawn Shop. This removal of Respondents, however, was addressed by the trial court years prior in its summary judgment of May 1, 2003.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 UT App 389, 174 P.3d 642, 2007 WL 4259223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-pahl-utahctapp-2007.