Geometwatch v. Utah State University ( 2023 )

2023 UT App 124THE UTAH COURT OF APPEALS
GEOMETWATCH CORPORATION,
Appellant,
v.
UTAH STATE UNIVERSITY,
Appellee.
Opinion
No. 20210654-CA
Filed October 19, 2023
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 190100294
Peggy Tomsic, James E. Magleby, Adam Alba, and
Yevgen Kovalov, Attorneys for Appellant
Sean D. Reyes, Peggy E. Stone, and
Joshua D. Davidson, Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
HARRIS, Judge:
¶1 GeoMetWatch Corporation (GMW) sued Utah State
University (USU) for breach of a shareholder agreement. USU
denies ever signing the agreement, and no copy of the agreement
signed by USU exists in the record. Nevertheless, GMW asserted
that USU had manifested its assent to the agreement in other
ways. At the close of fact discovery, USU moved for summary
judgment, asserting that, even though it was a shareholder of
GMW, it had never signed or otherwise agreed to the terms of the
agreement in question, and that the agreement was in any event
unenforceable under the statute of frauds. GMW opposed USU’s
motion, and also filed a motion of its own asking for more time to
GeoMetWatch v. Utah State University
conduct discovery. The district court granted USU’s motion,
concluding that, on this record, no genuine issue of material fact
existed about whether USU had agreed to be bound by the
shareholder agreement. The court also denied GMW’s motion for
additional discovery. GMW appeals both rulings, and we affirm.
BACKGROUND
¶2 GMW is a “global weather services company” that sought
to develop a weather-detecting satellite sensor system. In 2009,
GMW entered into discussions with USU about the university
acting as a potential contractor to build part of the sensor system.
Eventually, USU agreed to work with GMW through an affiliated
corporate entity, the Utah State University Research Foundation
(USURF), a wholly owned subsidiary of USU. In 2010, as part of
this arrangement, USURF purchased shares of GMW stock,
paying about $2 million for a 5.77% ownership interest in GMW.
¶3 In January 2013, USU asked GMW to issue USU a stock
certificate for the GMW shares that had been earmarked for
USURF. About a month later, GMW delivered the stock certificate
to USU, along with a cover letter signed by GMW’s president
(President). The certificate—dated October 2012 and signed by
President—proclaimed that “Utah State University” was the
owner of “Six Hundred Sixty Six Thousand Six Hundred Sixty
Seven” shares of GMW stock. Other than a request that USU
confirm receipt of the certificate, neither the cover letter nor the
certificate contained any restrictions or asked USU to take any
action; in particular, GMW did not reference any condition that
needed to be fulfilled before USU became a shareholder of GMW,
and GMW did not at that time ask USU to sign any sort of written
agreement in order to become a shareholder.
¶4 Thereafter, USU behaved, in material ways, consistent
with its status as a GMW shareholder. It held itself out to others
20210654-CA 2 2023 UT App 124GeoMetWatch v. Utah State University
as a company shareholder. Several months later, it asked that a
USU representative be named to GMW’s board of directors. And
in 2014, it asked to exercise its right, “[a]s a shareholder of” GMW,
to inspect GMW’s books and records.
¶5 In April 2013, about two months after sending USU the
unrestricted stock certificate, GMW sent USU two copies of a
“Shareholder Book” containing several different agreements;
GMW asked USU to sign both copies of the agreements, keep one
signed copy, and send the other back to GMW. One of the
agreements in the Shareholder Book was a “Preferred Stock
Purchase Agreement” (the Purchase Agreement) under which
USU would, among other things, agree that it was a purchaser of
the stock. Another of the agreements in the Shareholder Book was
a “Shareholder Agreement” which contained the following
provisions, among others:
• A “business opportunity” provision under
which each shareholder would agree that “any
business opportunity that comes to the attention
of” the shareholder “belongs to the
[c]orporation.”
• A non-competition provision under which each
shareholder would agree not to compete with
GMW “while a [s]hareholder” and “for a period
of 2 years” thereafter.
• A non-solicitation provision under which each
shareholder would agree, “while a
[s]hareholder” and “for a period of 2 years”
thereafter, not to solicit GMW employees to
leave the company.
¶6 USU maintains that it did not sign any of the agreements
in the Shareholder Book, including the Shareholder Agreement;
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indeed, USU officials that would have been the ones likely to have
signed such agreements testified that they did not sign them.
GMW takes issue with USU’s contention that it did not sign the
agreements, but it has been unable to locate or produce a copy of
any of them that was signed by anyone at USU, and it has been
unable to present any direct evidence (e.g., eyewitness testimony)
supporting the conclusion that USU ever signed any of them.
¶7 Several months later, in November 2013, President sent
USU an email taking the position that USU’s shares were in
“limbo,” and that “USU does not own the shares,” because USU
hadn’t signed the Purchase Agreement. President asked USU to
sign the agreements and indicated that GMW’s lawyer (GMW
Counsel) would be in touch with a “certified letter” that would
contain a deadline by which USU would need to sign the
agreements, and that if USU did not sign them by that date USU’s
ownership of the shares would “be cancelled.”
¶8 GMW Counsel never sent any certified demand letter.
Instead, he had two separate telephone conversations with one of
USU’s attorneys (USU Counsel) to discuss the matter. The first
conversation occurred on November 12 or 13, 2013, and GMW
Counsel memorialized his recollection of that call in an email—
sent on November 13—to President. In that email, GMW Counsel
indicated that, during this first telephone conversation, USU
Counsel expressed specific concerns only about the Purchase
Agreement, explaining that USU was not able to obtain shares by
purchase “except in consideration for a license grant, so the only
way it could take the shares from GMW was by donation.”
¶9 A few days later, on November 18, GMW Counsel and
USU Counsel had a second telephone conversation to discuss the
unsigned agreements. The record does not contain any
contemporaneously drafted emails describing this conversation.
But USU Counsel, at a deposition in 2020, testified that, in this
second conversation, he told GMW Counsel that the proposed
20210654-CA 4 2023 UT App 124GeoMetWatch v. Utah State University
agreements “wouldn’t work” for USU because they “did not
reflect the expectations of the parties,” and that USU “rejected” all
of them, including the Shareholder Agreement. 1
¶10 The day after the second phone call, USU Counsel returned
the documents, unsigned, to GMW Counsel. About a week later,
GMW Counsel sent USU a different document that “GMW
propose[d] be executed in connection with the stock issuance
transaction.” That document, entitled “Joinder Agreement,”
purported to “ensure” that the shares USU received would be
“entitled to the same rights and subject to the same restrictions as
those applicable to other shares” of GMW stock. USU maintains
that it never signed the Joinder Agreement either; GMW takes
issue with this contention, but no signed copy appears in the
record, and GMW has been unable to produce any other evidence
that USU ever signed it.
¶11 In the months that followed, GMW appeared quite aware
that USU had never signed any of the agreements in the
Shareholder Book, including the Shareholder Agreement. In an
email in May 2014, President complained to another GMW officer
that, in his view, USU “read the Shareholder Agreement very
thoroughly and decided early on they would not sign it.” And just
weeks later, one of GMW’s outside attorneys sent a letter to a USU
attorney lamenting USU’s “continuing refusal to sign [GMW’s]
Shareholder Agreement.”
1. GMW Counsel—the only other participant in the second phone
call—was never deposed and did not submit any affidavit or
declaration, so the record submitted to us does not include his
account of this second call. Moreover, in connection with the
motion it filed (discussed below) pursuant to rule 56(d) of the
Utah Rules of Civil Procedure, GMW did not list GMW Counsel
as one of the witnesses it wanted to depose.
20210654-CA 5 2023 UT App 124GeoMetWatch v. Utah State University
¶12 In August 2019, GMW initiated the present lawsuit against
USU, asserting two causes of action: (1) breach of the Shareholder
Agreement and (2) breach of the covenant of good faith and fair
dealing. Specifically, GMW alleged that USU breached the
Shareholder Agreement by partnering with a potential investor in
GMW to compete with GMW, activity which it claims “essentially
destroyed” GMW. 2
¶13 Before answering the complaint, USU filed a motion to
dismiss, asserting (among other things) that there existed no
enforceable contract between the parties because it had never
signed the Shareholder Agreement and any unsigned agreement
would be barred by the statute of frauds. The motion was later
mooted by GMW’s filing of an amended complaint, in which
GMW set forth with additional particularity its claims that USU
had—with or without signature—assented to the terms of the
Shareholder Agreement.
¶14 After resolution of the motion to dismiss, USU answered
the complaint, and the district court set certain scheduling
deadlines, including a December 24, 2020 deadline for the
completion of fact discovery. During that discovery period, the
parties exchanged initial disclosures, engaged in written
discovery (including the production of voluminous documents),
and scheduled and took several depositions, including a
deposition of USU Counsel.
¶15 On December 17, 2020, seven days prior to the close of fact
discovery, the parties filed a stipulated motion to stay all
2. A more fulsome description of the activity GMW references in
its complaint can be found in reported opinions in a related case.
See generally GeoMetWatch Corp. v. Behunin, 38 F.4th 1183 (10th Cir.
2022); see also GeoMetWatch Corp. v. Utah State Univ. Rsch. Found.,
2018 UT 50, 428 P.3d 1064 (answering certified questions in the
federal lawsuit).
20210654-CA 6 2023 UT App 124GeoMetWatch v. Utah State University
scheduling deadlines, noting USU’s intent to file a motion for
summary judgment which, “if granted, would obviate the need
for any additional discovery.” On December 21, the court signed
an order staying all deadlines in the case pending its ruling on
USU’s expected motion.
¶16 As expected, USU then filed a motion for summary
judgment, arguing that, although it was a GMW shareholder, it
had never signed the Shareholder Agreement and had never
otherwise assented to its specific terms. USU further argued that,
even if it had somehow assented to those terms through some
means other than signing the agreement, Utah’s statute of frauds
would bar enforcement of them because those terms—in
particular the two-year non-competition and non-solicitation
commitments—were incapable of being performed within one
year. GMW opposed the motion on its merits, asserting that there
was at least a fact question about whether USU agreed to be
bound by the terms of the Shareholder Agreement, and that the
statute of frauds was no bar to enforcement of those terms. In
addition, GMW made a request, pursuant to rule 56(d) of the Utah
Rules of Civil Procedure, asking the court to defer any ruling on
USU’s motion until after GMW had more time to conduct
additional discovery. GMW identified two depositions it wanted
to take: a rule 30(b)(6) corporate deposition of USU and a
deposition of a witness whose name had come up in a deposition
conducted in early November 2020. And GMW stated its intent to
make additional “targeted written discovery requests to USU
concerning its intent to be bound by the Shareholder Agreement.”
The district court conducted a hearing on both motions and, after
the hearing, took the matter under advisement.
¶17 A few weeks later, the court issued a written decision
granting USU’s summary judgment motion and denying GMW’s
request for additional discovery. The court determined that GMW
had failed to present any “documentation showing any assent to
the [Shareholder Agreement] on the part of” USU, and therefore
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concluded that no genuine issue of material fact remained to be
decided on that question. The court further determined that the
statute of frauds provided an additional ground for summary
judgment because the key provisions at issue were not capable of
being performed within one year. The court reasoned that GMW’s
second claim—for breach of the implied covenant of good faith
and fair dealing—was also subject to dismissal because it was
dependent upon the existence of an underlying agreement. And
the court declined to give GMW more time to conduct additional
discovery, noting that “the issues raised by [USU’s] summary
judgment motion should [have] come as no surprise” to GMW,
especially given the content of USU’s earlier motion to dismiss
and the associated litigation regarding amendment of the
complaint; the court concluded that GMW therefore “had plenty
of time to engage in the discovery it now seeks to engage in” and
“was not conscientious in pursuing additional discovery in this
case as such could have been completed well before now.”
ISSUES AND STANDARDS OF REVIEW
¶18 GMW now appeals, and it presents two issues for our
review. First, it asserts that the district court erred in granting
USU’s motion for summary judgment. “We review the district
court’s summary judgment ruling for correctness and view all
facts and reasonable inferences in favor of the nonmoving party.”
USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 28, 235 P.3d 749(quotation simplified).
¶19 Second, GMW challenges the court’s refusal to grant its
request for more time to conduct additional discovery. We review
a district court’s denial of such a request only “for an abuse of
discretion.” Robinson v. Jones Waldo Holbrook & McDonough, PC,
2016 UT App 34, ¶ 10, 369 P.3d 119, cert. denied, 379 P.3d 1183(Utah 2016).
20210654-CA 8 2023 UT App 124GeoMetWatch v. Utah State University
ANALYSIS
I
¶20 First, GMW challenges the district court’s grant of
summary judgment in USU’s favor. In particular, it challenges the
court’s conclusion that no genuine issue of material fact remained
to be decided regarding whether USU agreed to the terms of the
Shareholder Agreement.
¶21 Formation of a contract requires, among other things, “a
manifestation of mutual assent.” Aquagen Int’l, Inc. v. Calrae Trust,
972 P.2d 411, 413 (Utah 1998) (quotation simplified); see also
Restatement (Second) of Contracts § 17 (1981) (“[T]he formation
of a contract requires a bargain in which there is a manifestation
of mutual assent to the exchange and a consideration.”). A
signature is perhaps the most common method by which a party
can exhibit assent to the terms of a contract. See Livingston v. Finco
Holdings Corp., 2022 UT App 71, ¶ 16, 513 P.3d 94 (“The purpose
of a signature is to demonstrate mutuality of assent.” (quotation
simplified)), cert. denied, 525 P.3d 1263 (Utah 2022); see also, e.g.,
Boswell v. Panera Bread Co., 879 F.3d 296, 305 (8th Cir. 2018) (stating
that “signatures remain a common, though not exclusive, method
of demonstrating agreement” to the terms of a contract (quotation
simplified)). But it is not the only way: “It is fundamental contract
law that the parties may become bound by the terms of a contract
even though they did not sign the contract,” and this occurs where
the parties, through words or actions, “have otherwise indicated
their acceptance of the contract, or led the other party to so believe
that they have accepted the contract.” Livingston, 2022 UT App 71,
¶ 16 (quotation simplified).
¶22 In this case, GMW asserts that genuine issues of material
fact remain to be decided concerning both (a) whether USU
actually signed the Shareholder Agreement and (b) whether, even
in the absence of any signature, USU’s actions manifested an
20210654-CA 9 2023 UT App 124GeoMetWatch v. Utah State University
intent to be bound by the Shareholder Agreement. The district
court concluded otherwise, and we agree on both counts.
A
¶23 First, there is no genuine issue of material fact regarding
whether USU signed the Shareholder Agreement. No signed copy
is to be found in the record submitted to us. And GMW has not
located any witness who can testify that anyone affiliated with
USU actually signed the Shareholder Agreement. Indeed, to the
contrary, the evidence that does exist in the record indicates that
USU did not sign the Shareholder Agreement and that GMW was,
at all relevant times, fully aware of that fact. GMW has produced
no evidence refuting USU’s position on this point.
¶24 “[T]he extent of the moving party’s burden” in connection
with a summary judgment motion “varies depending on who
bears the burden of persuasion at trial.” Salo v. Tyler, 2018 UT 7,
¶ 26, 417 P.3d 581. “A movant who seeks summary judgment on
a claim on which it will bear the burden of persuasion at trial
cannot seek summary judgment without producing affirmative
evidence in support of the essential elements of its claim.” Id. “But
a movant who seeks summary judgment on a claim on which the
nonmoving party bears the burden of persuasion may show that
there is no genuine issue of material fact without producing its
own evidence.” Id. (emphasis added); see also Orvis v. Johnson, 2008
UT 2, ¶ 18, 177 P.3d 600 (stating that “where the nonmoving party
will bear the burden of proof at trial,” a movant “may satisfy its
burden on summary judgment” simply by demonstrating a lack
of evidence supporting the movant’s position, and at that point
“the burden then shifts to the nonmoving party” to “set forth
specific facts showing that there is a genuine issue for trial”
(quotation simplified)).
¶25 Here, GMW bears the ultimate burden of persuasion, at
trial, on its claim for breach of contract. In this situation, USU—as
20210654-CA 10 2023 UT App 124GeoMetWatch v. Utah State University
the summary judgment movant—may satisfy its burden by
demonstrating that there exists no evidence supporting GMW’s
claim that USU signed the Shareholder Agreement. USU has
discharged that burden here, and thus the burden shifts to GMW
to identify evidence that supports its position. It cannot identify
any direct evidence that USU ever signed the Shareholder
Agreement, but it maintains that a factfinder could nevertheless
reasonably infer that USU did indeed sign.
¶26 It is certainly true that, during the summary judgment
process, “all reasonable inferences” must be drawn in favor of the
nonmoving party. See IHC Health Services, Inc. v. D & K Mgmt., Inc.,
2008 UT 73, ¶ 19, 196 P.3d 588. And it is also true that
“circumstantial evidence may sometimes raise an inference strong
enough to create a genuine issue of material fact on summary
judgment.” Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 21,
390 P.3d 314. But in order to be considered “reasonable,”
inferences—including, and perhaps especially, those based on
circumstantial evidence—“must present something more than
pure speculation.” Id. And while “the line separating ‘speculation’
from ‘reasonable inference’ can at times be faint,” State v. Prisbrey,
2020 UT App 172, ¶ 23, 479 P.3d 1126, cert. denied, 485 P.3d 946(Utah 2021), courts have explained that “a reasonable inference
exists when there is at least a foundation in the evidence upon
which the ultimate conclusion is based, while in the case of
speculation, there is no underlying evidence to support the
conclusion,” Heslop, 2017 UT 5, ¶ 22 (quotation simplified).
¶27 In this case, there is no direct evidence to support a
conclusion that USU signed the Shareholder Agreement. And as
discussed more fully below, the only circumstantial evidence to
which GMW cites—and it does so more to support its contention
of non-signatory assent than to support its contention that USU
actually signed the agreement—is evidence indicating that USU
considered itself a shareholder of GMW. But such evidence does
nothing at all to support the notion that a USU official actually put
20210654-CA 11 2023 UT App 124GeoMetWatch v. Utah State University
pen to paper on the Shareholder Agreement. It would be entirely
speculative to infer, merely from USU’s position that it considered
itself a shareholder of GMW, that USU—despite its denials and
the utter lack of evidence to contradict them—actually signed the
Shareholder Agreement.
¶28 Thus, on this record, no reasonable factfinder could
conclude that a USU official with authority to do so actually
executed the Shareholder Agreement. Accordingly, we discern no
error in the district court’s conclusion that no genuine issue of
material fact remains to be decided on the question of whether
USU actually signed the Shareholder Agreement.
B
¶29 Despite the absence of USU’s signature on the
Shareholder Agreement, GMW maintains that USU—by its
words and actions—nevertheless exhibited assent to the
agreement’s terms, and it contends that there is at least a genuine
issue of material fact remaining to be decided on this point. In
support of this contention, it points to six pieces of circumstantial
evidence:
(1) USU asked GMW to issue USU a stock certificate
for the GMW shares that had been earmarked for
USURF;
(2) USU received from GMW a copy of the
Shareholder Agreement signed by GMW;
(3) USU asked that one of its representatives be
named to GMW’s board of directors;
(4) USU asked to exercise its right, as a shareholder
of GMW, to inspect GMW’s books and records;
20210654-CA 12 2023 UT App 124GeoMetWatch v. Utah State University
(5) USU held itself out to third parties as a
shareholder of GMW; and
(6) USU “[n]ever explicitly reject[ed]” the
Shareholder Agreement.
GMW asserts that a factfinder could reasonably infer, from this
evidence, that USU—despite not signing the Shareholder
Agreement—agreed to be bound by its terms. The district court
disagreed, and so do we, because any such inference is
insufficiently supported by the evidence and would be unduly
speculative.
¶30 The second item in the list—that USU received a copy of
the Shareholder Agreement from GMW that was signed by
GMW 3—does nothing to support GMW’s contention that USU
3. In its phrasing of this second item of asserted circumstantial
evidence, GMW somewhat ambiguously states that USU “never
return[ed]” the copy of the Shareholder Agreement that it
received from GMW. This statement is either untrue, or is of no
assistance to GMW. If GMW intends to indicate that USU did not
return the unsigned copy to GMW, that statement is contradicted
by the record; USU Counsel testified—without contradiction and
corroborated by a contemporaneous email—that he returned the
documents, unsigned, to GMW Counsel. If GMW intends to
indicate that USU did not return to GMW a copy of the agreement
that USU had executed, USU would presumably agree with that
statement; USU’s position is that it never signed the agreement
and therefore did not ever return a signed one to GMW. But that
statement doesn’t assist GMW at all; the fact that USU did not
return to GMW a copy signed by USU does nothing to support
GMW’s position that USU agreed to be bound by the terms of the
agreement. For purposes of our analysis, then, we construe the
second item in the list as simply asserting that USU received the
(continued…)
20210654-CA 13 2023 UT App 124GeoMetWatch v. Utah State University
assented to the agreement’s terms. Receipt of the document
simply indicates that USU received GMW’s offer; it has nothing
at all to say about whether USU accepted that offer. That item
therefore does not support GMW’s contention.
¶31 Four of the items in this list (the first, third, fourth, and
fifth) are undisputedly true, but—on this record—they support
only the notion that USU was a shareholder of GMW, not that
USU agreed to be bound by the specific terms of the Shareholder
Agreement. The chronology of how USU became a GMW
shareholder is crucially important here; if GMW had conditioned
USU’s stock ownership on USU signing the Shareholder
Agreement, a factfinder would likely be able to draw a reasonable
inference that USU’s acceptance of those shares indicated assent
to the terms of the Shareholder Agreement. See Commercial Union
Assocs. v. Clayton, 863 P.2d 29, 36–37 (Utah Ct. App. 1993) (holding
that, where the parties mistakenly believed that a lessee had
signed a contract, and where the lessee “acted in every respect as
if it were under contract,” the district court’s finding that the
lessee “manifested its intent to be bound” by the terms of the
contract, despite never signing it, was not clearly erroneous). But
that is not how the situation unfolded in this case.
¶32 USU asked GMW to issue it a stock certificate in January
2013. The next month, in February, GMW delivered the requested
stock certificate to USU; that certificate was unrestricted and
proclaimed USU to be the owner of 666,667 shares of GMW stock.
GMW sent a cover letter with the certificate but did not in that
letter ask USU to sign any shareholder agreement, and it did not
attempt to condition USU’s shareholder status on anything. When
USU took receipt of that stock certificate in February 2013, it was
by that point a full-fledged shareholder of GMW, with every right
Shareholder Book which contained a copy of the Shareholder
Agreement that had been signed by GMW.
20210654-CA 14 2023 UT App 124GeoMetWatch v. Utah State University
to seek representation on GMW’s board of directors and to inspect
the company’s books and records.
¶33 It wasn’t until April 2013—about two months later—that
GMW asked USU to agree to the specific terms of the Shareholder
Agreement. At that point, USU was already a shareholder of
GMW, with full rights and privileges. It did not need to sign the
Shareholder Agreement to become a shareholder of GMW,
because it already was one. And given this chronology, evidence
that USU considered itself a shareholder of GMW does not
support the completely separate notion that USU somehow
assented to the specific terms of the Shareholder Agreement.
¶34 Finally, the sixth item in GMW’s list of evidence does not
aid GMW. There, GMW asserts that USU “never explicitly
reject[ed] the Shareholder Agreement.” Presumably, this is a
reference to GMW Counsel’s email summary of the first
November 2013 phone conversation between GMW Counsel and
USU Counsel; according to that summary, USU Counsel
expressed reservations only with the Purchase Agreement, and
not specifically with the Shareholder Agreement. We assume, for
purposes of our analysis, that GMW Counsel’s email summary is
correct, and that USU Counsel, in that first November phone call,
did not specifically reject the Shareholder Agreement.
¶35 But the evidence is undisputed that USU Counsel did
specifically reject the Shareholder Agreement in the second
November 2013 phone call, the one that occurred on November
18. At a deposition, USU Counsel testified that, during that second
call, he told GMW Counsel that the proposed agreements
“wouldn’t work” for USU because they “did not reflect the
expectations of the parties,” and that USU “rejected” all of them,
including the Shareholder Agreement. USU Counsel’s account of
20210654-CA 15 2023 UT App 124GeoMetWatch v. Utah State University
this second conversation stands unrebutted in the record.4 Thus,
GMW’s sixth item of evidence—that USU never expressly rejected
the Shareholder Agreement—is not supported by the record: the
undisputed evidence indicates that USU did reject the Shareholder
Agreement, but it did so in the second call, if not in the first.
¶36 Still, GMW continues to assert, even in the face of this
paucity of evidence, that a factfinder could reasonably draw an
inference that USU agreed to be bound by the specific terms of the
Shareholder Agreement. In support of this contention, GMW
directs our attention to AKB Properties LLC v. Rubberball
Productions LLC, 2021 UT App 48, 487 P.3d 465, cert. denied, 496
P.3d 713 (Utah 2021). In that case, we reversed a district court’s
grant of summary judgment on the basis that available
4. At times in its briefing, GMW complains about USU Counsel’s
invocation, at several points during his deposition, of attorney-
client privilege, and about his refusal to answer certain questions
on that basis. GMW even asserts that the district court should
have inferred, from USU Counsel’s invocation of privilege
regarding certain questions about the Shareholder Agreement,
that USU signed the Shareholder Agreement or otherwise
assented to its terms. But there is no indication in the record that
GMW attempted to litigate, in the district court, whether USU
Counsel’s invocation of the privilege was proper. And if it was
proper, then no negative inference can fairly be drawn from it. See
In re Tudor Assocs., Ltd., II, 20 F.3d 115, 120 (4th Cir. 1994) (“A
negative inference should not be drawn from the proper
invocation of the attorney-client privilege.”). Thus, any argument
GMW might make about invocation of the privilege was not
preserved for our review, and we therefore decline to address it.
See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party
fails to raise and argue an issue in the [district] court, it has failed
to preserve the issue, and an appellate court will not typically
reach that issue absent a valid exception to preservation.”).
20210654-CA 16 2023 UT App 124GeoMetWatch v. Utah State University
circumstantial evidence was sufficient “to cast doubt on the
veracity of” sworn declarations provided by the moving party. Id.
¶ 21. At issue in the case was whether the parties to a written
agreement had, during a “brief” and “casual” subsequent
meeting, agreed to a significant oral modification of that
agreement. Id. ¶¶ 7, 23. Two of the three participants in that
meeting submitted declarations attesting that the modification
had been made. Id. ¶ 9. The only other participant in the meeting
had passed away; there was therefore no living witness who
could contradict the other participants’ declarations. Id. ¶ 20. One
side moved for summary judgment, asserting that—because the
two declarations were unrebutted—no genuine issue of fact
remained to be decided regarding the existence of the oral
modification. Id. ¶¶ 8–9. The other side—a company controlled by
the deceased person’s heirs—asserted that questions of fact
remained because their witness was deceased and because other
circumstantial evidence existed in the record supporting the
notion that no oral modification had been effected. Id. ¶¶ 1, 12.
¶37 The district court entered summary judgment in the
movant’s favor, id. ¶ 11, but we reversed, noting the importance
of the fact that the only witness who could controvert the
declarations was deceased, and concluding that “there was more
than enough circumstantial evidence [in the record] to cast doubt
on the veracity of those declarations,” id. ¶¶ 20–25. Specifically,
we noted that, given the nature of the modification, a factfinder
“could reasonably infer that the matter was of importance to the
[parties] and that any modification would have occurred in
writing.” Id. ¶ 23. We noted that the modification may have lacked
consideration. Id. ¶ 24. And we noted that the factfinder could
take into account certain conduct by the parties, occurring after
the alleged modification, that appeared to cut against the notion
that the modification had occurred. Id. ¶ 25. In light of these items
of circumstantial evidence, we concluded that there existed
sufficient evidence from which a factfinder could disbelieve the
20210654-CA 17 2023 UT App 124GeoMetWatch v. Utah State University
two declarations and reasonably infer that no oral modification
had taken place. Id. ¶ 26. In so doing, however, we were careful to
point out that “[t]he circumstances of this case are distinct from a
situation in which living witnesses exist who might be able to
refute [a] movant’s evidence but the nonmovant has not bothered
to seek their input.” Id. ¶ 20 n.4.
¶38 In our view, AKB Properties is materially distinguishable
from the case at hand, for two reasons. First, in this case there
exists no problem with the availability of witnesses: there is no
indication that any relevant witness has passed away or is
otherwise unavailable. GMW was at all times free to contact and
depose witnesses, affiliated with both USU and GMW, who might
have had information about whether USU assented to the
Shareholder Agreement. 5 Second, the circumstantial evidence
available in AKB Properties was more extensive than similar
evidence here. In AKB Properties, there existed several items of
circumstantial evidence that suggested there had been no oral
modification to the original written agreement. Here, by contrast,
all the circumstantial evidence to which GMW points indicates
only that USU was a shareholder and—given the chronology of
events—does not support the separate notion that USU agreed to
be bound by the specific terms of the Shareholder Agreement.
¶39 Under the circumstances presented here, even viewing the
evidence and all reasonable inferences in favor of GMW, there is
no genuine issue of material fact remaining to be decided
regarding whether USU assented to the terms of the Shareholder
Agreement. On this record, no reasonable factfinder could
conclude that USU assented to those specific terms; any inference
a factfinder might draw to support such a conclusion would be
5. In this vein, we note that GMW did not depose its own previous
attorney, GMW Counsel, who could have provided his account of
the second November 2013 phone call.
20210654-CA 18 2023 UT App 124GeoMetWatch v. Utah State University
unduly speculative. Accordingly, the district court did not err in
entering summary judgment in favor of USU on these issues. 6
II
¶40 Second, GMW challenges the district court’s denial of its
request for more time to conduct additional discovery. We discern
no abuse of discretion in the court’s decision.
¶41 Under our rules, if the nonmoving party believes that it
“cannot present facts essential to justify its opposition” to a
motion for summary judgment, it may ask the court to “defer
considering the motion or deny it without prejudice” in order to
allow it additional time “to obtain affidavits or declarations or to
take discovery.” See Utah R. Civ. P. 56(d). As noted, in this context
district courts enjoy wide discretion in their consideration of
requests for additional time to conduct discovery, and we review
a court’s decision in this regard for an abuse of that discretion,
reversing only in cases in which the decision “exceeds the limits
of reasonability.” See Campbell, Maack & Sessions v. Debry, 2001 UT
App 397, ¶ 6, 38 P.3d 984 (quotation simplified); see also Robinson
v. Jones Waldo Holbrook & McDonough, PC, 2016 UT App 34, ¶ 10,
369 P.3d 119, cert. denied, 379 P.3d 1183 (Utah 2016).
¶42 In considering a request under rule 56(d), courts are to
consider “the specific circumstances of each case.” See
Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, ¶ 21, 192 P.3d
858. In particular, courts should examine the requesting party’s
rule 56(d) affidavit or declaration, and assess “whether the
discovery sought will uncover disputed material facts that will
prevent the grant of summary judgment” or whether the
requesting party “is simply on a fishing expedition.” Id.
6. In light of this conclusion, we need not reach GMW’s other
contention that the district court erred in its application of the
statute of frauds.
20210654-CA 19 2023 UT App 124GeoMetWatch v. Utah State University
(quotation simplified). Courts should also examine whether the
requesting party “has had adequate time to conduct discovery
and has been conscientious in pursuing such discovery.” Id. And
courts may take into account whether the party moving for
summary judgment has been diligent “in responding to the
discovery requests” lodged by the requesting party. Id.¶43 In this case, the district court grounded its refusal to grant
GMW’s request for more time largely on the second factor: the
court noted that the fact discovery period was all but over, and
that the discovery GMW requested could easily have been
obtained earlier, during the discovery period. It noted that “the
issue of contract formation has been the crux of this case since its
inception,” and that those issues were not only the subject of
USU’s current summary judgment motion but had also been the
subject of its earlier motion to dismiss. Given that USU’s motion
was not filed until after the fact discovery period was all but
finished, the court concluded that GMW “had plenty of time to
engage in the discovery it now seeks to engage in” and that GMW
“was not conscientious in pursuing” that discovery during the
fact discovery period. We discern no infirmity in the district
court’s reasoning.
¶44 In its rule 56(d) declaration, GMW identified only three
specific items of additional discovery it wished to obtain: (1) a
corporate deposition of USU, taken pursuant to rule 30(b)(6) of
the Utah Rules of Civil Procedure, in which it could “get
additional information regarding contract formation”; (2) a
deposition of a witness whose identity GMW asserted it had
discovered while taking another deposition in early November
2020, which witness GMW believed had additional information
“concerning USU’s ownership of the shares” and “concerning the
terms and conditions of USU’s ownership of those shares”; and
(3) “targeted written discovery requests to USU concerning its
intent to be bound by the Shareholder Agreement.”
20210654-CA 20 2023 UT App 124GeoMetWatch v. Utah State University
¶45 With regard to the first and third items, the district court’s
reasoning is clearly sound. From the outset of the case, it was quite
clear—from, among other things, USU’s initial motion to
dismiss—that USU would defend the case chiefly on the basis that
it had not agreed to the terms of the Shareholder Agreement.
Under these circumstances, some of the most obvious things
GMW might have wanted to do during the fact discovery period
would have been to send USU written discovery requests on this
topic and to conduct a corporate deposition of USU. GMW had
every opportunity, during the entirety of the fact discovery
period, to undertake this discovery. It did not, and it offers no
persuasive explanation for its decision not to do so.
¶46 The question is somewhat closer with regard to the second
item, because the identity of the witness in question apparently
was not known to GMW until early November 2020. But even
assuming that to be true, GMW still had some seven weeks
remaining in the fact discovery period at that point, and it offers
no reason why it could not have noticed up and taken this
witness’s deposition in that period of time. Under these
circumstances, we cannot say that it was an abuse of the district
court’s discretion to conclude that GMW was not conscientious in
using the available discovery period to take this deposition.
¶47 We note that this case differs, in one significant respect,
from many other cases in which rule 56(d) requests are made:
GMW’s rule 56(d) request was not made until after the effective
expiration of the fact discovery period. A requesting party who
faces a motion for summary judgment filed early in the case,
months before expiration of the fact discovery period, can often
credibly argue that it has not yet had the chance to conduct
discovery on the relevant topics. But a requesting party who has
had the entire fact discovery period to conduct discovery on a
topic it knew was relevant may find that argument much harder
to credibly make. And that is the case here.
20210654-CA 21 2023 UT App 124GeoMetWatch v. Utah State University
¶48 Given the posture of the case, a grant of GMW’s rule 56(d)
request would by definition have required a significant extension
of the fact discovery cutoff date, as well as concomitant extensions
of time for the deadlines to follow (e.g., expert discovery
deadlines). It was well within the district court’s discretion to take
all of this into account, and to decline to grant GMW’s request
under the circumstances. 7
CONCLUSION
¶49 There is no genuine issue of material fact regarding
whether USU signed the Shareholder Agreement or otherwise
assented to its specific terms, and therefore the district court did
not err in granting USU’s motion for summary judgment on those
points. Furthermore, it was reasonable for the court to deny
GMW’s request for additional discovery, and its denial of GMW’s
rule 56(d) request was therefore not an abuse of its discretion.
¶50 Affirmed.
7. Decisions regarding the management of a court’s docket,
“including whether to grant continuances or extend deadlines,”
are also reviewed for an abuse of discretion. See Segota v. Young
180 Co., 2020 UT App 105, ¶ 9, 470 P.3d 479; see also Solis v.
Burningham Enters., Inc., 2015 UT App 11, ¶ 25, 342 P.3d 812(acknowledging that district courts possess “broad discretion in
managing the cases assigned to” them (quotation simplified)).
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