Utah Resources International, Inc. v. Mark Technologies Corp. ( 2014 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2014 UT 60IN THE
SUPREME COURT OF THE STATE OF UTAH
UTAH RESOURCES INTERNATIONAL, INC.,
a Utah Corporation,
Appellant,
v.
MARK TECHNOLOGIES CORPORATION and
KENNETH G. HANSEN,
Appellees.
No. 20130131
December 23, 2014
Third District, Salt Lake
The Honorable Deno G. Himonas
No. 040918982
Attorneys:
John H. Bogart, Salt Lake City, Craig M. White, Chicago, IL,
for appellant
Bruce J. Boehm, Salt Lake City, for appellees
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM,
JUSTICE PARRISH, and JUSTICE LEE joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 After the district court denied Utah Resources International,
Inc.’s (URI) amended motion to stay enforcement of the judgment
(Amended Motion) in this appeal’s companion case (valuation case),
URI filed an application for a stay with this court under rule 8 of the
Utah Rules of Appellate Procedure, asking for essentially the same
relief. While that application was pending, URI filed a separate
appeal, arguing that the district court improvidently denied its
request to abate interest as a term of the stay under rules 62 and
60(b) of the Utah Rules of Civil Procedure. We later denied URI’s
URI v. MTC
Opinion of the Court
request under rule 8 but permitted the parties to brief the issue of
whether this appeal was moot because we had denied URI’s rule 8
motion. The parties instead briefed the question of whether the
valuation case was moot—a question that we address separately in
that appeal.1
¶2 As we clarify in our opinion below, the district court did not
abuse its discretion in refusing to abate interest under rules 62 and
60(b) of the Utah Rules of Civil Procedure. District courts do not
have authority to abate interest under rule 62, and URI never
requested relief under rule 60(b) with the district court. Accordingly,
the district court did not abuse its discretion in denying URI’s
Amended Motion.
Background
¶3 In June 2004, appellant URI conducted a share consolidation
transaction. Appellees Mark Technologies Corporation (MTC) and
Kenneth G. Hansen dissented (Dissenters). Section 16-10a-1302 of the
Utah Code entitles such dissenters to payment of the fair value of
their shares, but the parties were unable to agree to the fair value.
Pursuant to section 16-10a-1330 of the Utah Code, URI petitioned the
district court to determine the fair value of the shares. In May 2012,
the district court entered judgment, determining that the fair value
of each share was $10,722. The district court awarded MTC
$1,347,090.61 plus ten percent interest compounded annually and
awarded Mr. Hansen $335,002.50 plus ten percent interest
compounded annually. The merits of that determination are before
this court in a separate appeal.
¶4 In response, URI filed a motion with the district court under
rule 62 of the Utah Rules of Civil Procedure to stay execution
pending the appeal. In its motion, URI requested that, in lieu of a
supersedeas bond, the district court allow URI to deposit with the
court the principal amount of the judgments, plus three years of
interest. Per rule 62(j)(2)(A), this is the presumptive amount the court
should require to stay execution. Shortly after URI filed this motion,
the Dissenters began execution proceedings and recorded the
judgment, which created a lien against URI’s property.
¶5 Before the district court ruled on the motion, and in an effort
to stave off the compounding interest, URI sent an email to the
Dissenters, asking if they would be interested in entering into an
alternative agreement. In the email, URI proposed to pay the
Dissenters the full judgment amount, but with key stipulations that
1 Utah Res. Int’l, Inc. v. Mark Techs. Corp., 2014 UT 59, ¶¶ 28–33.
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are now the center of this controversy: (1) that URI preserves its right
to appeal, (2) that the payment stays the judgment, (3) that all liens
are released, (4) that further interest on the judgment is waived,
(5) that the Dissenters repay URI to the extent the judgments are
altered on appeal, and (6) that the judgments be deemed satisfied
and that a satisfaction of judgment be filed should the judgments be
affirmed on appeal.
¶6 Before the Dissenters responded, the district court granted
URI’s motion to stay, provided that it deposit the principal amount
plus three years’ worth of interest. The motion was granted without
prejudice to URI’s right to pay the judgment in lieu of or subsequent
to the deposit. Thereafter, Mr. Hansen informed URI that he would
not agree to URI’s proposed payment stipulations, and MTC
proposed a few changes to the agreement, including that interest
continue to accrue at five percent during the appeal. In the end, the
parties did not enter into any agreement.
¶7 A week after the court approved its initial stay request, URI
filed its Amended Motion, seeking two changes to its original
motion. First, it sought permission to deposit only the amount it
owed at that point to the Dissenters, without any future interest.
Second, it asked the district court to order that the accrual of interest
was abated because the Dissenters rejected URI’s offer to pay the
judgment by the previously mentioned stipulations. The district
court denied the Amended Motion, citing its lack of statutory or
equitable power, but the judge did note that URI’s willingness to pay
the judgments centered on its desire to abate interest and not to
waive its right to appeal. The present appeal, which was filed on
February 5, 2013, stems from this order.
¶8 At the suggestion of the district court, URI paid part of the
judgments in the amounts of $750,000 to MTC and $185,000 to
Hansen. In the letter delivering the payment, URI stated that it did
not intend to waive its current appeal and that it was paying only to
abate interest and reduce the threat of postjudgment enforcement
proceedings. The Dissenters accepted the payments and filed partial
satisfactions of judgment.
¶9 On January 17, 2013, the Dissenters obtained a supplemental
order directing URI to appear for a debtor’s examination. On
January 25, URI filed a motion with the district court to vacate that
order, which was denied. On the same day, URI filed a new motion
to stay execution directly with this court under rule 8 of the Utah
Rules of Appellate Procedure. We denied URI’s motion and further
requested that the parties submit memoranda addressing the
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Opinion of the Court
question of whether our denial of URI’s rule 8 motion mooted URI’s
appeal of the district court’s denial of the Amended Motion. In the
end, we deferred our consideration of mootness until plenary
consideration of the merits of URI’s appeal.
¶10 In April 2013, URI informed the Dissenters that it had
placed the remaining amount of the judgment, with interest, in a
single bank account. URI stated that it placed the money in a single
account in hopes of forestalling the Dissenters’ enforcement efforts.
As of today’s date, the Dissenters have not collected the money. We
have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).
Standard of Review
¶11 URI brings its challenge under rules 62 and 60(b) of the Utah
Rules of Civil Procedure. As to URI’s request for a stay under rule
62, ―[t]he decision to stay enforcement of a judgment is within the
discretion of the reviewing court,‖2 and we review the district court’s
denial of URI’s Amended Motion for an abuse of discretion.3
Furthermore, ―a district court has broad discretion in ruling on a
motion to set aside an order or judgment under rule 60(b), and
[t]hus, we review a district court’s denial of a 60(b) motion under an
abuse of discretion standard.‖4
Analysis
¶12 URI challenges two interrelated aspects of the district
court’s ruling below: (1) its failure to grant a stay under URI’s
desired conditions and (2) its failure to abate interest as of June 11,
2012—the date on which URI claims it properly tendered payment of
the judgment. At bottom, however, URI is merely challenging the
district court’s refusal to approve a lesser amount of security by
abating interest, since the court already approved URI’s previous
request for a stay conditioned on a deposit of the presumptive
statutory security amount.
2 Jensen v. Schwendiman, 744 P.2d 1026, 1027 (Utah Ct. App. 1987).
3 See Olympia Equip. Leasing Co. v. W. Union Tel. Co., 786 F.2d 794,
798 (7th Cir. 1986) (―The judgment [the district court judge] had to
make‖ in approving an alternative form of security under Federal
Rule of Civil Procedure 62 ―was discretionary—equitable—
judgmental—in a strong sense which limits the scope of appellate
review.‖).
4 Metro. Water Dist. v. Sorf, 2013 UT 27, ¶ 12, 304 P.3d 824(alteration in original) (internal quotation marks omitted).
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¶13 As explained below, the district court did not err in
declining to abate interest, and it was correct in ruling that it lacked
authority to abate interest under rule 62. Furthermore, we do not
review URI’s rule 60(b) challenge, since URI never filed a rule 60(b)
motion in the district court. To properly obtain review of the
abatement of interest issue, URI needed to tender payment of the
judgment and then seek a satisfaction of judgment with the district
court under rule 58B of the Utah Rules of Civil Procedure. URI never
tendered payment of the judgment, let alone filed a motion under
rule 58B. The district court therefore did not abuse its discretion in
denying URI’s request to abate interest.
I. The District Court Properly Declined to Abate Interest and
Grant an Alternative Stay Request
¶14 As we explain below, it was not error for the district court to
refuse to abate interest under rules 62 and 60(b), since district courts
do not have authority to do so under rule 62, and because URI never
requested relief in the district court under rule 60(b). Furthermore,
we clarify that a party’s request to abate interest is properly done
under rule 58B by seeking a satisfaction of the judgment.
A. A Party May Both Apply for a Stay Under Rule 8 and Appeal From a
District Court’s Order Denying Its Request for a Stay Under Rule 62
¶15 Under rule 62(d) of the Utah Rules of Civil Procedure, a
judgment debtor may seek a stay of execution from a judgment ―by
giving a supersedeas bond.‖ If the district court denies the judgment
debtor’s request, or fails to grant the specific relief requested, the
judgment debtor may file an application for a stay in the appellate
court pursuant to rule 8 of the Utah Rules of Appellate Procedure. In
that instance, our review of the application is de novo, though the
application must show ―that the trial court has denied an
application, or has failed to afford the relief which the applicant
requested, with the reasons given by the trial court for its action.‖5
¶16 Additionally, the judgment debtor may challenge the
district court’s denial of his request for a stay under rule 62 by
separately appealing from the order. The Dissenters argue that this is
a nonappealable order, and that this court therefore lacks jurisdiction
to hear the appeal. In support of this position, they cite to McVinnie
v. University of Utah Hospital, a court of appeals case, wherein the
court ruled that it was improper to appeal from a denial of a motion
5 UTAH R. APP. P. 8(a).
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Opinion of the Court
to stay.6 But apart from this case, the Dissenters do not cite, and we
do not find, any authority in our caselaw or rules that would
preclude a judgment debtor from appealing from such an order.
Quite the contrary, rule 3 of the Utah Rules of Appellate Procedure
states that parties may ―appeal from all final orders and judgments‖
issued by a district court.7 This includes all final postjudgment
orders, though postjudgment orders are also ―independently subject
to the test of finality, according to their own substance and effect.‖8
A denial of a motion to stay enforcement under rule 62 is a final
postjudgment order as well, since ―the effect of the order . . . [is] to
determine substantial rights . . . and to terminate finally the
litigation.‖9
¶17 The effect of a party’s appeal from an order under rule 62 is
also different in kind than an application for a stay under rule 8. For
instance, our expedited review under rule 8 is limited to the facts of
the case and whether a stay is warranted; we neither defer to the
district court, nor do we correct errors in the district court’s ruling.
By contrast, a party may challenge the district court’s order under
rule 62 in a separate appeal, at which time we will review the district
court’s order for an abuse of discretion and correct any errors in the
district court’s judgment, including misinterpretations or
misapplications of the governing rules. Here, URI’s only opportunity
to challenge the district court’s interpretation of its authority under
rule 62 was in filing an appeal from the district court’s order.
Accordingly, parties may both apply for a stay under appellate rule 8
and appeal from an order under civil rule 62, depending on the
nature of their challenge. Although as discussed in the following
section, district courts do not have authority to abate interest under
rule 62, so URI’s challenge in this case fails.
B. The District Court Lacked Authority to Abate Interest Under Rule 62
¶18 Rule 62(d) of the Utah Rules of Civil Procedure allows
district courts to stay enforcement of a judgment pending appeal,
but it requires the appellant to give a supersedeas bond to obtain the
stay. In lieu of a supersedeas bond, the court may permit one of two
alternatives: first, the court ―[u]pon motion and good cause shown,
62004 UT App 63U, para. 5 (per curiam) (―Rather than an appeal,
a properly supported motion for stay should have been filed in the
appellate court after the trial court’s denial.‖)
7 UTAH R. APP. P. 3(a) (emphasis added).
8 Cahoon v. Cahoon, 641 P.2d 140, 142 (Utah 1982).
9 Id.6
Cite as: 2014 UT 60Opinion of the Court
. . . may permit a deposit of money in court or other security to be
given in lieu of giving a supersedeas bond;‖10 second, the parties
may either stipulate to waive the bond requirement altogether, or
they may ―agree to an alternate form of security.‖11
¶19 Unless the parties stipulate to waive the bond requirement,
district court judges must apply one of the forms of security
prescribed by the rule. And regardless of the specific form in which
the security is given, the security must be ―in an amount that
adequately protects the judgment creditor against loss or damage
occasioned by the appeal.‖12 The rule then provides several factors to
consider in setting this amount, but goes on to note that, despite
these factors, ―the presumptive amount of a bond for compensatory
damages is the amount of the compensatory damages plus costs and
attorney fees, as applicable, plus 3 years of interest at the applicable
interest rate.‖13 Here, the applicable interest rate was set by statute at
ten percent, compounded annually.14
¶20 The rule does permit district courts to approve a bond
amount that is less than the judgment or even the presumptive
amount described above. In fact, one of the factors the court may
consider in setting the amount of security is ―the respective harm to
the parties from setting a higher or lower amount.‖15 Furthermore,
the rule provides that ―[i]f the court permits a bond that is less than
the presumptive amount of compensatory damages, the court may
also enter such orders as are necessary to protect the judgment
creditor during the appeal.‖16 But even though the rule permits
district courts to approve a lesser amount of security, their decision
to do so is entirely dependent on whether that amount would
―adequately protect[] the judgment creditor against loss or damage
10 UTAH R. CIV. P. 62(i)(2).
11 Id. 62(i)(3).
12 Id. 62(j)(1).
13 Id. 62(j)(2)(A) (emphasis added).
14 UTAH CODE § 15-1-1(2); see also id. § 16-10a-1301(5) (defining
interest as ―interest from the effective date of the corporate action
until the date of payment, at the statutory rate set forth in Section 15-
1-1, compounded annually‖).
15 UTAH R. CIV. P. 62(j)(1)(E) (emphasis added).
16 Id. 62(j)(3) (emphasis added).
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Opinion of the Court
occasioned by the appeal.‖17 Absent an order protecting the
judgment creditor in some additional way, an amount of security
that excludes interest will not adequately protect the judgment
creditor against losses during the pendency of the appeal.
¶21 Here, URI contends that it does not challenge the amount of
the security required by the court, but rather challenges the fact that
―the district court passed on the question‖ of the revised security
request following its alleged tender of payment. We conclude that
the district court did not err, since rule 62 prevented the court from
approving URI’s request. As shown above, the district court was
required under rule 62 to approve an amount of security that would
protect the Dissenters during the pendency of the appeal. Having
failed to properly tender payment of the judgment, as discussed
below,18 interest continued to accrue from the effective date of the
corporate action, and the district court lacked the authority under
rule 62 to abate interest from URI’s requested date. Accordingly, the
district court did not abuse its discretion in declining to abate
interest, since it had no authority to do so under rule 62.
C. Rule 60(b) Is an Improper Route to Seek Abatement of Interest, and URI
Never Properly Raised a Request Under Rule 60(b) Regardless
¶22 On appeal, URI also argues that the district court erred in
not abating interest under rule 60(b) of the Utah Rules of Civil
Procedure. As discussed below, URI never made a proper request
under rule 60(b), and district courts do not have authority to abate
interest under rule 60(b) even if URI had properly captioned its
request. We accordingly reject URI’s argument and affirm the district
court’s refusal to rule on the abatement of interest issue on this
argument as well.
1. URI’s Motion Was Not a Rule 60(b) Motion
¶23 To begin, URI argues that the second request in its
Amended Motion (its request to abate interest) was essentially a
request under rule 60(b)(5)—that it was ―no longer equitable that the
judgment should have prospective application.‖ But we cannot
review URI’s request under rule 60(b) because URI in no way argued
for relief under rule 60(b) before the district court.
¶24 When a postjudgment motion does not properly reference
the appropriate rule, we have repudiated the practice of rescuing
such motions by construing them in accordance with our rules of
17 Id. 62(j)(1).
18 See infra ¶¶ 34–40.
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procedure. In Workers Compensation Fund v. Argonaut Insurance Co.,
the appellant had filed an ―objection to judgment‖ with the district
court and on appeal argued that the motion should be construed as
either a rule 59 motion or a rule 60(b) motion.19 We declined to do so
and noted that ―the form of a rule 60(b) motion does matter and
attorneys requesting relief under rule 60(b) should notify the court
that they are seeking relief under that rule.‖20 Failing to cite the
proper rule places the burden of research and argument on the court
and also prejudices the opposing party by making it more difficult to
respond to the motion.21 Further, the rules ―are designed to provide
a pattern of regularity of procedure which the parties and the courts
can follow and rely upon.‖22 Allowing parties to change the form of
their motions on appeal invites exactly the kind of confusion our
rules were designed to avoid.
¶25 URI attempts to distinguish our decision in Argonaut by
contrasting it with our more recent decision in In re Discipline of
Rasmussen.23 In Rasmussen, we held that a district court may entertain
a rule 60(b) motion not expressly argued as such. We distinguished
Argonaut by noting that there is a difference between a ―district
court’s denial of a motion for failure to identify its essential basis‖
and ―a decision granting a motion that we now deem properly
presented.‖24 Because the district court could have viewed the
request as a motion under rule 60(b) and chose to grant it, we
affirmed the decision. This stands in direct contrast with Argonaut,
where the district court denied the motion. In summary, a district
court may consider a motion under rule 60(b) even if the movant
does not argue it as such, but the movant cannot, on appeal,
recharacterize a motion as a rule 60(b) motion when it was never
considered as such below.
¶26 The situation in this case is governed by Argonaut. URI
never cited rule 60; rather, it raised both of its requests (for a stay
19 2011 UT 61, ¶ 1, 266 P.3d 792.
20 Id. ¶ 13; see also Gillett v. Price, 2006 UT 24, ¶ 8, 135 P.3d
861 (―Hereafter, when a party seeks relief from a judgment, it must
turn to the rules to determine whether relief exists, and if so, direct
the court to the specific relief available.‖).
21 Argonaut, 2011 UT 61, ¶ 13.
22 Id. (internal quotation marks omitted).
23 2013 UT 14, 299 P.3d 1050.
24 Id. ¶ 14.
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Opinion of the Court
and to abate interest) under rule 62, citing only to rule 62. The district
court denied the motion and as in Argonaut, the court did not err in
failing to construe the motion under rule 60(b), because the rule was
never cited, and further, no language from rule 60(b) was employed
in URI’s motion. To rule otherwise would place a greater weight of
research and argument on district courts—a practice we repudiated
in Argonaut. While Rasmussen does permit a district court to consider
a request for relief as, in effect, a motion under rule 60(b), it does not
make it error to fail to do so, and the Dissenters should have been
afforded the opportunity to respond to a motion that was properly
captioned under rule 60(b). Accordingly, we decline to review the
motion as a rule 60(b) motion.
2. Rule 60(b) Does Not Give District Courts Authority to Abate
Interest
¶27 Even if we were to review URI’s request as a rule 60(b)
motion, the rule does not give district courts authority to abate
interest. URI argues that it requested relief under rule 60(b)(5), which
states:
[T]he court may in the furtherance of justice relieve a
party or his legal representative from a final judgment,
order, or proceeding [if] . . . the judgment has been
satisfied, released, or discharged, or a prior judgment
upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment
should have prospective application.25
There is no dispute that a denial of a postjudgment motion under
rule 60(b)(5) is a final order, so the only real question is whether it
was ―no longer equitable that the judgment should have prospective
application.‖ This raises two sub-issues: (1) which situations favor
invoking a court’s power of equity and (2) whether a party is
challenging the ―prospective‖ effect of a judgment or is seeking to
alter the terms of a judgment that is remedial in nature. URI argues
that the district court should have abated interest under this rule,
since it would have been inequitable to continue to compound
interest after the Dissenters refused tender of payment. We disagree,
since this rule does not give district courts authority to abate interest.
¶28 To begin, the court’s power of equity is only to be applied
under the rule when highly significant changes alter the landscape of
a judgment—for instance, ―subsequent legislation, a change in the
25 UTAH R. CIV. P. 60(b)(5).
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decisional law, or a change in the operative facts.‖ 26 And ―the
burden will be high on those seeking relief on this ground as they
must demonstrate extraordinary circumstances justifying relief.‖27
¶29 Next, rule 60(b)(5) ―applies to any judgment that has
prospective effect‖ but does not apply where a party seeks to alter a
judgment that remedies a past wrong.28 In other words, aggrieved
parties cannot seek relief under 60(b)(5) from a term of the judgment
that addresses past action—it ―does not allow relitigation of issues
that have been resolved by the judgment. Instead it refers to some
change in conditions that makes continued enforcement
inequitable.‖29 And in determining what a ―prospective‖ effect of a
judgment is, many circuit courts have held that a ―judgment
operates prospectively if it requires a court to supervise changing
conduct or conditions that are provisional or tentative.‖30 The vast
majority of these cases deal with injunctions or consent decrees
where the terms of the judgment have continued application. 31 For
instance, many of these cases deal with institutional reform and
26 11 CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2863 (3d ed. 2014) (footnotes omitted). In
our analysis of this rule, we turn to federal rules for guidance
―[b]ecause the Utah Rules of Civil Procedure are patterned after the
Federal Rules of Civil Procedure.‖ Bichler v. DEI Sys., Inc., 2009 UT
63, ¶ 24 n.2, 220 P.3d 1203.
27 WRIGHT & MILLER, supra note 26, § 2863.
28 Id.
29 Id. (footnote omitted).
30 Moody v. Empire Life Ins. Co. (In re Moody), 849 F.2d 902, 906 (5th
Cir. 1988); see also Hall v. C.I.A., 437 F.3d 94, 101 (D.C. Cir. 2006)
(noting that rule 60(b)(5) is addressed to executory decrees and those
requiring supervision of changing circumstances or conditions); Cook
v. Birmingham News, 618 F.2d 1149, 1152 (5th Cir. 1980) (―The
distinction is between restraints that give protection to rights fully
accrued upon facts so nearly permanent as to be substantially
impervious to change, and those that involve the supervision of
changing conduct or conditions and are thus provisional and
tentative. Any continuing injunction, for example, would have the
requisite prospective effect.‖ (internal quotation marks omitted)).
31 WRIGHT & MILLER, supra note 26, § 2863 (compiling cases).
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situations where an emergency situation leads to a party’s inability
to comply with the terms of a consent decree.32
¶30 URI’s request here does not qualify under either inquiry.
First, URI is seeking to alter a judgment that is remedial in nature;
the judgment here does not have prospective application and will
terminate immediately upon satisfaction. ―Interest‖ is a specifically
defined term under the statute, and prevailing parties are afforded
interest by law until the judgment is satisfied. URI attempts to
characterize the issue of interest differently, but interest is not a
―prospective‖ effect of a judgment as contemplated by rule 60(b)(5).
District courts do not need to supervise the assessment of interest,
nor is it a tentative or provisional condition of the judgment. Rather,
the statute mandating the payment of ten percent compounding
interest is remedial in nature, protecting shareholders who have not
been paid the fair value of their respective shares. Because the relief
URI seeks cannot be granted under rule 60(b)(5), the district court
did not err in denying URI’s request to abate interest.
D. A Satisfaction of Judgment Under Rule 58B Is Required in
Order to Abate Interest
¶31 Instead of seeking to abate interest under rules 62 and 60(b),
parties may end the accrual of interest by satisfying the judgment
under rule 58B of the Utah Rules of Civil Procedure. Because URI
failed to seek this relief, the district court did not err in passing on
the abatement of interest question. Furthermore, since URI failed to
even properly ―tender‖ payment of the judgment, interest never
abated in this case.
¶32 We have ruled previously that ―[a]n appeal does not stop
the running of interest. To obtain such a result, the obligor must
make a tender that is rejected by the obligee.‖33 This rule raises two
questions that our caselaw has yet to clarify: (1) the procedure by
which an obligor may seek to abate interest and (2) what constitutes
a valid ―tender‖ that would serve to abate interest.
¶33 First, a party may seek to validate its purported tender in
order to abate interest on the judgment under rule 58B either ―by
acknowledgement or order.‖34 If a judgment debtor offers a ―full
satisfaction of the judgment,‖ the judgment creditor must, ―[w]ithin
32 Id.
33Utah County v. Brown, 672 P.2d 83, 87 n.9 (Utah 1983) (citation
omitted).
34 UTAH R. CIV. P. 58B(c).
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28 days,‖ ―file an acknowledgment of satisfaction in the court in
which the judgment was entered.‖35 If the judgment creditor fails to
do so, the judgment debtor may file a motion with the district court
and, with ―satisfactory proof,‖ the court may ―enter an order
declaring the judgment satisfied.‖36 Once obtained, the order serves
to ―discharge[] the judgment, and the judgment ceases to be a lien as
to the debtors named and to the extent of the amount paid.‖ 37 The
―satisfactory proof‖ necessary for the court to enter such an order
may include proof of acceptance of payment or, in the case where
payment is refused, it may include proof that the judgment debtor
validly tendered payment. In either case, interest will abate as of the
date of the tender of the payment, as long as the tender is valid and
not ―[a] mere offer to pay.‖38
¶34 This brings us to the second question of what constitutes a
valid tender. As we acknowledged in Fitzgerald v. Corbett, valid
tender must be ―(1) timely, (2) made to the person entitled to
payment, (3) unconditional, (4) an offer to pay the amount of money
due, and (5) coupled with an actual production of the money or its
equivalent.‖39 The parties do not dispute the timeliness of the
purported tender, that it was made to the person entitled to
payment, or that the amount in question was the amount of money
due. But the parties do dispute whether there was an ―actual
production‖ of the money in this case and whether URI’s purported
tender was unconditional.
¶35 We conclude, and agree with the Dissenters, that there was
no ―actual production‖ of money in this case. A party may be
excused from extending actual payment of a judgment if it is
obvious that the other party would reject it. As URI notes, ―[a]n
exception to the general requirements of a valid tender arises where
it is plain and clear that a tender, if made, would be an idle
ceremony and of no avail.‖40 But this argument cannot be made
where the party attempting to invoke the exception has never made
an offer of payment to begin with—there must be evidence that the
35 Id. 58B(a).
36 Id. 58B(b).
37 Id. 58B(c).
38 Fitzgerald v. Corbett, 793 P.2d 356, 359 (Utah 1990).
39 Id. (footnotes omitted) (internal quotation marks omitted).
40 Id. (internal quotation marks omitted).
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URI v. MTC
Opinion of the Court
debtor would actually make payment but for the creditor’s refusal to
accept it.
¶36 To illustrate, in Zion’s Properties, Inc. v. Holt, a buyer missed
the deadline for the final payment on a piece of property, thus
forfeiting the property under contract.41 The buyer argued that it
tendered payment before the deadline, but we concluded that it just
―discussed with the defendants the prospect that payment would be
made [under] certain conditions.‖42 We did not address what the
conditions were, but found that the gesture was not a valid offer.43
¶37 URI’s communication with the Dissenters (May 31 email)
resembles the situation in Zion’s Properties. It stated:
Aside from the appraiser fees, we have also been
exploring the possibility of simply paying your clients
the current judgment amounts, rather than depositing
the money with the court, in order to abate the
continued accrual of compound interest while still
preserving URI's appellate rights. We think the
simplest and most straightforward way to do this
would be to enter into a stipulation providing that the
judgments are stayed indefinitely and any liens are
released, that further interest on the judgments is
waived, that your clients would be required to repay
URI to the extent the judgments are later reduced or
reversed on appeal, and that, in the event they are
ultimately affirmed, the judgments would be deemed
fully satisfied by this payment and a satisfaction of
judgment would be filed.
Would you please let me know as soon as possible if
your clients would consider such an arrangement? If so
we will begin drafting a proposed stipulation.
The Dissenters’ reaction to this email was mixed. On June 11,
Hansen rejected URI’s proposal, while MTC countered with other
stipulations.
¶38 The language used in this email evidences the lack of any
definitive offer, since the parties appear to be engaging in
negotiations for how payment—if ever—would be made. Stated
otherwise, there was nothing for the Dissenters to ―accept‖ because
41 538 P.2d 1319, 1320–21 (Utah 1975).
42 Id. at 1322.
43 Id.
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Cite as: 2014 UT 60Opinion of the Court
the proposed stipulation had not even been drafted at that point.
URI’s suggestions here are not definitive enough to be considered a
tender of payment.
¶39 The parties also dispute whether URI’s purported tender
was unconditional. In conjunction with its email, URI proposed that
the parties stipulate to the following: (1) URI’s appellate rights
would be preserved, (2) the judgments would be stayed, (3) all liens
would be released, (4) future interest would be waived, (5) the
Dissenters would repay the judgment in case of reversal, and
(6) payment would be deemed fully satisfied if affirmed. But we
have no need to address whether these conditions rendered URI’s
purported tender conditional because URI never made an actual
production of money, which independently invalidates the
purported tender.
¶40 In sum, in order to establish that interest had abated, URI
needed to tender payment and then seek a satisfaction of judgment
under rule 58B, which it failed to do. Accordingly, the district court
properly avoided ruling on the abatement of interest question, since
such a request was not properly before it. Furthermore, as we
discussed above, to even seek a satisfaction of judgment, URI needed
to first tender the full amount of the judgment—whether or not the
tender was ultimately accepted. Because URI’s proposed stipulation
was in the context of negotiations to pay—rather than an offer to
pay—its tender was invalid in any event.
Conclusion
¶41 The district court did not err in refusing to rule on the
abatement of interest issue under rules 62 and 60(b), since district
courts are not empowered to abate interest under these rules.
Instead, URI could have abated interest by tendering payment and
then seeking a satisfaction of judgment under rule 58B. Because URI
failed to both submit a valid tender and seek a satisfaction of
judgment, it was not error for the district court to refuse to rule on
the abatement of interest issue. We accordingly affirm the judgment
of the district court.
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