Tronson v. Eagar

2019 UT App 212THE UTAH COURT OF APPEALS
TED W. TRONSON,
Appellee,
v.
RYAN EAGAR, RYAN GARDNER,
JUDD SIMPSON, AND JAKE SIMPSON,
Appellants.
Opinion
No. 20180750-CA
Filed December 27, 2019
Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 140401483
Stony V. Olsen, Attorney for Appellants
Justin D. Heideman and Justin R. Elswick, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES KATE APPLEBY and DIANA HAGEN concurred.
HARRIS, Judge:
¶1 The district court entered summary judgment against four
individuals—Ryan Eagar, Ryan Gardner, Judd Simpson, and
Jake Simpson (collectively, Defendants)—after determining that
they were all jointly and severally liable to Ted W. Tronson on a
promissory note. Defendants appeal the district court’s
summary judgment ruling, but we find their arguments
unpersuasive, and therefore affirm.
Tronson v. Eagar
BACKGROUND 1
¶2 In 2008, Defendants were in search of money to fund an
“Internet marketing campaign.” Tronson and Howard Nelson 2
agreed to lend Defendants money for that purpose, and on
October 15, 2008, the two sides executed two documents that are
at the center of this case: a Loan Agreement and a Promissory
Note. The Loan Agreement defines “Lender” as Tronson and
Nelson, in their individual capacities, and defines “Borrower” as
Defendants, 3 in their individual capacities, although “Borrower’s
Firm” is defined as “Those Guys, LLC, a Nevada Company.”
The Loan Agreement states that “Lender agrees to [l]oan
Borrower monies,” in “one or more incremental disbursements,”
“to fund an ongoing Internet marketing campaign.” Each
1. The facts set forth herein are largely undisputed. To the extent
they are disputed, for the purposes of this appeal we view and
describe the relevant facts in the light most favorable to the non-
moving party. See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600(stating that, on appeal from a district court’s summary
judgment ruling, we view “the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party” (quotation simplified)).
2. The parties agree that Nelson has since assigned to Tronson
his right to recover from Defendants. Accordingly, Nelson is not
a party to this case, and Tronson was the only plaintiff before the
district court and is the only appellee here.
3. Five individuals were listed as borrowers in the Loan
Agreement, and only four of them are involved in this appeal.
The borrower who is not involved in this appeal never answered
Tronson’s complaint, and therefore the district court entered
judgment against him by default, and he has not appealed the
judgment against him. For ease of reference, however, except
where necessary for clarity, we sometimes refer to “borrowers”
and “Defendants” interchangeably.
20180750-CA 2 2019 UT App 212Tronson v. Eagar
disbursement was to be “evidenced by a proper Promissory
Note,” which would require repayment of the principal loan
amount, plus a “lender fee” of 25% of the loan amount. The Loan
Agreement was executed by seven individuals (two individual
lenders, and five individual borrowers), over signature lines
listing them only by name; although “Those Guys, LLC” was
listed as “Borrower’s Firm” in the body of the document, no
business entity was listed as a signatory to the Loan Agreement.
¶3 The Promissory Note, executed contemporaneously with
the Loan Agreement, was signed by all five individual
borrowers, over signature lines listing them only by name. It
listed the “principal amount” as $25,000, but the “total amount”
as $31,250, after accounting for the 25% lender fee dictated by the
Loan Agreement. The funds were to be repaid in installments
due over the next three months. The borrowers indicated that
the promise to pay was made “[f]or value received.”
¶4 However, payment of the $25,000 loan proceeds was not
made by Tronson and Nelson directly, and was not paid to the
borrowers individually. Instead, on October 16, 2008—the day
after the documents were executed—a company controlled by
Tronson and Nelson, known as Those Money Guys LLC, issued
a $25,000 cashier’s check payable to Those Guys LLC, the entity
listed in the Loan Agreement as “Borrower’s Firm.” That same
day, Those Guys LLC deposited the check into its bank account.
¶5 No individual or entity ever repaid any part of the loan;
the record does not contain evidence of any loan repayment
efforts made by Those Guys LLC or any of the individual
borrowers, or evidence of any loan repayments received by
Tronson, Nelson, or Those Money Guys LLC.
¶6 Nearly six years later, in October 2014, Tronson filed suit
against all five of the individual borrowers, seeking judgment
against them, “jointly and severally,” for $31,250 “plus interest,
attorney fees, and costs.” The complaint’s heading identified
Justin Heideman of the law firm Heideman & Associates as the
20180750-CA 3 2019 UT App 212Tronson v. Eagar
only attorney representing Tronson. Tronson took a while to
serve Defendants, prompting them to file a motion to dismiss,
filed through a law firm appearing specially, contesting the
propriety of service of process upon them. The district court,
after oral argument, determined that Tronson “sufficiently
served process on Defendants,” and denied the motion to
dismiss. Thereafter, the law firm that appeared specially to
represent Defendants in connection with the motion to dismiss
withdrew from representation.
¶7 After some procedural skirmishing, a different attorney—
Stony V. Olsen, current counsel for Defendants—entered an
appearance on behalf of Defendants 4 and filed an amended
answer on their behalf. Around the same time that Olsen
appeared on behalf of Defendants, a second attorney’s name—
Justin Elswick—began to appear on documents filed on behalf of
Tronson. Elswick, like Heideman, is an attorney at Heideman
& Associates. Over time, Elswick’s name began to appear on
both the heading as well as the signature block, where he
identified himself as “[a]ttorney for Plaintiff Ted W. Tronson.”
Elswick did not file a formal notice of appearance until May
2017, after the court had granted summary judgment in
Tronson’s favor, although in April 2017—after his name had
appeared on several papers filed with the court on Tronson’s
behalf—Elswick filed an affidavit attesting to some facts
regarding proof of service on one of the borrowers, and in that
affidavit stated, “I am counsel for the Plaintiff in the above-
captioned case.”
¶8 One day after Elswick filed his affidavit, Tronson filed a
motion for summary judgment, seeking final judgment against
Defendants in the amount of $31,250, “plus interest and all
attorney fees and costs.” The motion’s heading identified
4. Olsen’s appearance was on behalf of four of the five
borrowers, the ones who are parties to this appeal. As noted,
supra note 2, one of the borrowers did not answer the complaint.
20180750-CA 4 2019 UT App 212Tronson v. Eagar
Heideman and Elswick as “[a]ttorneys for Plaintiff Ted W.
Tronson.” The motion was signed by Elswick, the only attorney
identified in the motion’s signature block, which proclaimed
Elswick to be “[a]ttorney for Plaintiff Ted W. Tronson.” 5 The
motion was accompanied by seven attachments, including
sworn affidavits from Tronson and Nelson—who both averred
that they had “issued a $25,000 cashier’s check through [their]
entity” to Defendants’ entity, and that no repayment had been
made—as well as the following additional exhibits: copies of the
Loan Agreement and the Promissory Note; a copy of a stub from
the $25,000 cashier’s check sent from Those Money Guys LLC to
Those Guys LLC; a copy of a bank statement from Those Guys
LLC, demonstrating that the entity had deposited $25,000 into its
bank account on October 16, 2008; and a proposed order
granting the motion. The motion and its attachments were
served upon Olsen through the electronic filing system.
Defendants do not contest the fact that Olsen was served with a
copy of the motion for summary judgment.
¶9 Despite being served with a copy of the motion,
Defendants filed no timely response to it. Any timely response
would have been due on May 12, 2017; four days later, Tronson
filed a Request to Submit for Decision, informing the district
court that the matter was ready for its decision, because
“Defendants have not timely filed a response.” Later that same
day, the district court signed Tronson’s proposed order, granting
5. Defendants allege in their brief that Elswick often filed
documents—including the motion for summary judgment—
through Heideman’s electronic filing account, even though
Elswick signed them. The record submitted to us, however, does
not reveal whose electronic filing account was used to file
particular documents. Therefore, even if we were to agree with
Defendants that one attorney’s use of another attorney’s
electronic filing account was problematic in this instance, we
cannot discern, on this record, that any such thing happened
here. We therefore do not consider this issue further.
20180750-CA 5 2019 UT App 212Tronson v. Eagar
the motion for summary judgment. The order proclaimed that
Defendants had “not filed a response” to the motion, that the
court had “reviewed [Tronson’s] argument,” was “advised in the
premises,” and was granting the motion “for good cause
shown.” The total amount of money awarded to Tronson was
$64,014.61 (the principal loan amount, as well as lender fees, late
fees and interest) plus “attorney’s fees and costs” and post-
judgment interest to be quantified later.
¶10 Entry of that order against them spurred Defendants into
action. The very next day, Defendants filed both a belated
opposition to Tronson’s already-granted motion for summary
judgment, as well as a motion asking the court to “deny or
defer” the already-granted motion. Among other arguments,
Defendants asserted that because they had not received the
money in their individual capacities, they should not have to
repay it in those capacities; any judgment should not be joint
and several, because the Promissory Note was not an
“instrument”; the Loan Agreement and Promissory Note were
unconscionable; and any judgment should also include the fifth
borrower who had not yet answered the complaint. A few weeks
later, Defendants filed another motion, this one invoking rule 59
of the Utah Rules of Civil Procedure and asking the court to alter
or amend its summary judgment ruling. In their rule 59 motion,
Defendants asserted, among other things, that Tronson’s motion
for summary judgment had never truly been properly filed,
because Elswick had not filed a formal notice of appearance until
after the motion was granted. Nowhere in their filings did
Defendants offer any justification for their failure to file a timely
response to the summary judgment motion. Tronson opposed
Defendants’ motions, and filed a motion of his own to strike
Defendants’ belated response to the summary judgment motion.
¶11 The court heard oral argument on all of these motions,
and denied Defendants’ motions, including their rule 59 motion,
thereby leaving the court’s summary judgment order intact. In
its written order, the court stated that “Rule 59 is not the proper
20180750-CA 6 2019 UT App 212Tronson v. Eagar
procedural vehicle for seeking to set aside” a summary
judgment order, because “no trial occurred in this case.”
¶12 Soon after the court’s order denying their motions was
entered, Defendants filed another motion, this time invoking
rules 54(b) and 60(b) of the Utah Rules of Civil Procedure, and
asking for relief from both the summary judgment order as well
as the order denying their motions. In addition to making some
of the same arguments from their previous motions, Defendants
also argued that the court erred in concluding that rule 59 is
inapplicable in cases in which no trial has occurred, and that it
erred by granting summary judgment simply because the
motion was unopposed. After full briefing and oral argument,
the court denied this motion as well, stating in its written order
that, “[e]ven assuming arguendo that Rule 59 is an appropriate
avenue for relief in cases where summary judgment has been
granted due to a failure by a party to timely respond,” “none of
the grounds” proffered by Defendants “under Rule 59 have been
met” in this case. In addition, the court implied that it had not
granted the summary judgment motion simply because it was
unopposed, but instead noted that in its original order it had
stated that it had “reviewed [Tronson’s] argument” and had
granted the motion for “good cause” shown.
¶13 Further litigation ensued regarding the amount of
attorney fees to be awarded, as well as whether judgment should
also be awarded against the fifth borrower who had failed to
answer the complaint. Eventually, the court entered final
judgment against all five borrowers, including all four
Defendants, jointly and severally, in the amount of $124,550.92,
which included attorney fees and interest.
ISSUES AND STANDARDS OF REVIEW
¶14 Defendants now appeal from the district court’s original
summary judgment order as well as from the orders denying
their later-filed motions. “We review the district court’s grant of
20180750-CA 7 2019 UT App 212Tronson v. Eagar
summary judgment for correctness and accord no deference to
its conclusions of law.” Gardiner v. Anderson, 2018 UT App 167,
¶ 14, 436 P.3d 237 (quotation simplified). And we review the
court’s denial of “post-trial” motions for abuse of discretion. See
Crookston v. Fire Ins. Exch., 860 P.2d 937, 940 (Utah 1993) (“[W]e
review the [district] court’s decision denying [a] motion [for a
new trial] only for an abuse of discretion.”); Aghdasi v. Saberin,
2015 UT App 73, ¶ 4, 347 P.3d 427 (“We review a district court’s
denial of a rule 60(b) motion for abuse of discretion.”).
¶15 Tronson also asks us to award him the attorney fees and
costs he has incurred in defending this appeal, and grounds this
request in both the Loan Agreement—which allows recovery of
attorney fees incurred “in enforcing” the Loan Agreement or the
Promissory Note—and in rule 33(a) of the Utah Rules of
Appellate Procedure—which authorizes us to award attorney
fees if an “appeal taken . . . is either frivolous or for delay,” see
Utah R. App. P. 33(a). “Whether attorney fees are recoverable in
an action is a question of law,” Valcarce v. Fitzgerald, 961 P.2d 305,
315 (Utah 1998), and entitlement to attorney fees on appeal is a
matter for us to determine in the first instance.
ANALYSIS
A
¶16 Defendants first take issue with the district court’s
original grant of Tronson’s unopposed motion for summary
judgment. They point out that, under applicable rules and case
law, a district court may not grant a summary judgment motion
merely because it is unopposed, but instead must undertake a
review of the movant’s papers to make sure that the movant,
despite the lack of opposition, is actually entitled to summary
judgment. While Defendants accurately describe the state of the
law, their argument is ultimately unavailing, because a court
reviewing Tronson’s unopposed summary judgment papers
would conclude that Tronson is entitled to summary judgment.
20180750-CA 8 2019 UT App 212Tronson v. Eagar
¶17 Under our rules of civil procedure, summary judgment
may be granted only “if the moving party shows that there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a).
Even where the nonmovant “fails to properly address [the
movant’s] assertion of fact,” the court may grant a summary
judgment motion only “if the motion and supporting
materials—including the facts considered undisputed—show
that the moving party is entitled to it.” See id. R. 56(e)(3).
Interpreting a prior version of rule 56,6 we have held that
“summary judgment may not be entered against the nonmoving
party merely by virtue of a failure to oppose,” but instead a
“district court must still determine whether the moving party’s
pleadings, discovery, and affidavits demonstrate its entitlement
to judgment as a matter of law.” Pepperwood Homeowners Ass’n v.
Mitchell, 2015 UT App 137, ¶ 6, 351 P.3d 844; see also Smith v.
Kirkland, 2017 UT App 16, ¶ 16, 392 P.3d 847 (same).
¶18 But we also held that a nonmovant who fails to oppose a
summary judgment motion has thereby failed to preserve any
objection to the district court’s entry of summary judgment
against it, and that, on appeal, any challenge to the district
6. The prior version of rule 56 stated that “[s]ummary judgment,
if appropriate, shall be entered against a party failing to file a
response.” See Utah R. Civ. P. 56(e) (2015). In Pepperwood, we
emphasized the “if appropriate” language, interpreting those
words as requiring an independent judicial review of unopposed
summary judgment papers to confirm that summary judgment
really was “appropriate.” See Pepperwood Homeowners Ass’n v.
Mitchell, 2015 UT App 137, ¶ 6, 351 P.3d 844. The current version
of rule 56 is, if anything, even clearer in requiring independent
judicial review of unopposed summary judgment papers. See
Utah R. Civ. P. 56(e)(3). In this case, however, neither side argues
that the current version of the rule changes the analysis we set
forth in Pepperwood, and neither side asks us to reconsider
Pepperwood in any respect.
20180750-CA 9 2019 UT App 212Tronson v. Eagar
court’s entry of an unopposed summary judgment motion
would be reviewed only for plain error.7 See Pepperwood, 2015 UT
App 137, ¶ 11. “To demonstrate plain error, a defendant must
establish that (i) an error exists; (ii) the error should have been
obvious to the [district] court; and (iii) the error is harmful. If
any one of these requirements is not met, plain error is not
established.” State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443(quotation simplified).
¶19 In this case, we are not at all certain that the district court
granted Tronson’s motion solely because it was unopposed,
instead of conducting its own independent review of Tronson’s
summary judgment paperwork. After all, as the court pointed
out in one of its later rulings, its summary judgment order
indicated that it had “reviewed [Tronson’s] argument” and that
it was granting the motion “for good cause shown.” But even
assuming, for purposes of the argument, that the district court
signed Tronson’s proposed order simply because the motion
was unopposed, and did not so much as glance at Tronson’s
accompanying paperwork, the court did not commit plain error
here, because Tronson’s paperwork was complete and his
arguments were sound. The third element of plain error is
7. In Pepperwood, 2015 UT App 137, ¶ 11, we applied plain error
analysis without discussing the “ongoing debate about the
propriety of civil plain error review.” See Utah Stream Access Coal.
v. Orange St. Dev., 2017 UT 82, ¶ 14 n.2, 416 P.3d 553 (questioning
the applicability of plain error review outside of the criminal
context). Our supreme court has taken pains to point out that it
has not “endorse[d] the ongoing viability of plain error review in
civil cases,” nor has it “repudiate[d] it.” Id. In the meantime,
until our supreme court answers this question, Utah appellate
courts have sometimes applied plain error review in civil cases
in which neither party challenges its application, see, e.g., Hill v.
Estate of Allred, 2009 UT 28, ¶¶ 30–31, 216 P.3d 929; Danneman v.
Danneman, 2012 UT App 249, ¶ 10 & n.5, 286 P.3d 309, and we do
so here without opining on the propriety of such review.
20180750-CA 10 2019 UT App 212Tronson v. Eagar
prejudice: Defendants must demonstrate that the district court’s
obvious error—again, assuming without deciding that one was
committed—actually caused them harm. See Johnson, 2017 UT 76,
¶¶ 20–21 (stating that, under plain error analysis, an error is
harmful if it was “of such a magnitude that there is a reasonable
likelihood of a more favorable outcome for the defendant”
(quotation simplified)). And on this record, they cannot do so.
¶20 In support of his motion for summary judgment, Tronson
attached sworn affidavits from himself and Nelson, asserting
that, on the day after the documents were signed, the two of
them had, through their entity (Those Money Guys LLC), paid
$25,000 by cashier’s check to Those Guys LLC, the entity listed as
“Borrower’s Firm” in the Loan Agreement. Additionally,
Tronson attached copies of the Loan Agreement and Promissory
Note, as well as a copy of the stub from the cashier’s check itself,
and a copy of a bank statement from Those Guys LLC,
demonstrating that $25,000 had in fact been deposited into that
entity’s account on the day the check was delivered. Both
Tronson and Nelson averred, in their sworn affidavits, that no
repayment had ever been received by either of them.
¶21 Any judge reviewing the unopposed motion and its seven
exhibits would have been satisfied that Tronson was entitled to
judgment as a matter of law. The infirmity identified in
Pepperwood—failure to attach the operative document—was not
present here, because Tronson attached copies of both the Loan
Agreement and the Promissory Note. See Pepperwood, 2015 UT
App 137, ¶ 10. Those documents were signed by all Defendants,
and indicated that Defendants had promised, “for value
received,” to repay Tronson $25,000 plus interest and fees. The
papers also included evidence that the money had actually been
paid to borrowers’ entity, as well as sworn testimony that it had
not been repaid. Even if we assume, arguendo, that the district
court neglected to actually look at the paperwork, any such error
was harmless here, because the summary judgment motion, and
its exhibits, demonstrate the absence of any genuine issue of
20180750-CA 11 2019 UT App 212Tronson v. Eagar
material fact, and establish Tronson’s entitlement to judgment as
a matter of law.
¶22 Defendants resist this conclusion by asserting that,
because Tronson (through an entity) made payment to Those
Guys LLC rather than to the individual borrowers, Tronson
cannot seek recovery from the individual borrowers, because
they did not receive the money. But, especially in the context of
an unopposed summary judgment motion, this argument falls
flat. All five borrowers, including all four Defendants, signed the
Promissory Note, indicating that, “for value received,” they—
and not a business entity—were committing to repay Tronson—
and not a business entity—the loaned funds. Tronson asserted,
as a factual matter, that the money had been paid to Defendants
in the manner Defendants desired, and that the money had not
been repaid. Those factual assertions were supported by
evidence attached to the summary judgment motion, and were
not contested by Defendants. Under these circumstances, the
district court was justified in concluding that Defendants were
obligated to repay Tronson.
¶23 In sum, the district court did not plainly err by entering
summary judgment in this case, even if we assume that the court
granted the motion solely because it was unopposed.
B
¶24 Defendants next appeal the district court’s denial of their
various motions, filed after the court had already granted
Tronson summary judgment, in which Defendants asked the
court, for various reasons, to reconsider, alter, or amend the
summary judgment order. Specifically, Defendants identify
three alleged infirmities in the district court’s orders. First,
Defendants assign error to the court’s statement, in its first order
on these motions, that “Rule 59 is not the proper procedural
vehicle for seeking to set aside” a summary judgment order,
because “no trial occurred in this case.” Second, Defendants
assert that their opposition to Tronson’s summary judgment
20180750-CA 12 2019 UT App 212Tronson v. Eagar
motion was not, after all, untimely, because they claim that the
motion was not validly filed until Elswick filed a formal notice of
appearance of counsel in May 2017. And third, Defendants
object to the “joint and several” nature of the court’s summary
judgment order. We address each of these arguments in turn.
1
¶25 As to the first argument, Defendants are correct in
assigning error to the district court’s statement that rule 59 of the
Utah Rules of Civil Procedure is unavailable in civil cases
decided on summary judgment. That rule, by its terms, is not
limited to instances in which a trial has occurred; indeed,
subsection (e) of that rule specifically allows for the filing of
motions to alter or amend a judgment. See Utah R. Civ. P. 59(e)
(“A motion to alter or amend the judgment must be filed no later
than 28 days after entry of the judgment.”). Moreover, in
interpreting rule 59, we have previously determined that “the
concept of a new trial under Rule 59 is broad enough to include
a rehearing of any matter decided by the court without a jury.”
Moon Lake Elec. Ass’n, Inc. v. Ultrasystems W. Constructors, Inc.,
767 P.2d 125, 127 (Utah Ct. App. 1988) (quotation simplified).
Indeed, we concluded that, although neither rule 59 nor rule 56
“directly addresses the availability of a motion for a ‘new’ trial
following summary judgment,” such motions are, “nonetheless,
procedurally correct.” Id.; see also Mojo Syndicate, Inc. v.
Fredrickson, 2013 UT App 6, ¶ 2, 297 P.3d 36 (per curiam) (“[A]
rule 59 motion may be used to challenge a summary
judgment.”). Accordingly, the court’s statement that rule 59 is
unavailable to seek alteration or amendment of a summary
judgment order was incorrect.
¶26 However, the court’s error is in this instance harmless,
because the court—during Defendants’ second round of “post-
trial” motions—ended up considering the merits of Defendants’
arguments in any event. In the court’s order on the second round
of motions, it assumed, for the purposes of its analysis, that rule
59 “is an appropriate avenue for relief,” and proceeded to
20180750-CA 13 2019 UT App 212Tronson v. Eagar
analyze Defendants’ arguments. On the merits, however, the
court found that Defendants’ arguments were infirm, stating that
it had “review[ed] all of the various legal and factual arguments
presented by Defendants” and that “none of the grounds under
Rule 59 have been met to justify a reversal of the original Order.”
Because the court ultimately did consider the merits of
Defendants’ arguments, its previous statements about the
inapplicability of rule 59 in this context are of little moment.
2
¶27 Defendants now ask us to address the merits of two of the
arguments they raised in their rule 59 motions and which were
ultimately rejected by the district court. First, they point out that
Elswick did not file a formal notice of appearance of counsel
until May 2017, after the court had already granted Tronson’s
summary judgment motion, and they assert that all papers filed
by Elswick prior to that date were therefore of no force and
effect, including the summary judgment motion Elswick signed
and filed in April 2017. From this premise, they reason that their
opposition memorandum, which was not filed until after the
court granted Tronson’s motion, was actually timely filed due to
the asserted invalidity of the filing of Tronson’s motion. We find
this argument unpersuasive.
¶28 Applicable rules require that “[e]very pleading, written
motion, and other paper . . . be signed by at least one attorney of
record.” Utah R. Civ. P. 11(a)(1). But our rules—unlike the rules
of certain other courts, see, e.g., U.S. Sup. Ct. R. 9—do not specify
how one becomes an “attorney of record.” Defendants appear to
assume, without citation to any rule or other authority, that the
only way in which an attorney can become an “attorney of
record” is to file a formal notice of appearance of counsel. While
we acknowledge that filing a formal notice of appearance is one
way for an attorney to become an “attorney of record,” we are
not persuaded that, under our rules, this is the only way to
accomplish the feat.
20180750-CA 14 2019 UT App 212Tronson v. Eagar
¶29 In this case, Elswick’s name began appearing on
documents filed on Tronson’s behalf in August 2016, some eight
months before the motion for summary judgment was filed. On
those documents, most of which he signed, Elswick was listed as
“[a]ttorney for Plaintiff Ted W. Tronson.” Moreover, the day
before he filed the summary judgment motion on Tronson’s
behalf, Elswick filed a sworn affidavit with the court, stating
(among other things) that he was “counsel for the Plaintiff in the
above-captioned case.” Whatever the requirements might be for
becoming an “attorney of record” in a case, we think Elswick
clearly met those requirements here, where he had been filing
documents for many months listing himself as counsel for
Tronson, and where he also filed a sworn affidavit attesting that
he was in fact counsel for Tronson.
¶30 Defendants resist this conclusion by pointing to two cases
that they assert stand for the proposition that documents not
filed by an attorney of record are subject to being stricken. See In
re Discipline of Pendleton, 2000 UT 77, 11 P.3d 284; Lancino v.
Smith, 105 P. 914 (Utah 1909). But both of these cases are
distinguishable from the issue at hand. In Lancino, the attorney
of record was out of town, and sent his office mate to court to
ask for a continuance. 105 P. at 914–15. However, the pinch-
hitting attorney was unable to swear, under oath, that the
conditions necessitating the continuance were still in effect, and
the court therefore rejected the attorney’s efforts as a
foundational matter, stating that the original lawyer’s affidavit
should “have been supplemented by the oath of someone who
knew, and stated that the conditions set forth in the affidavit
continued the same as they were therein represented to be when
it was filed.” Id. at 915. And in Pendleton, our supreme court
refused to allow an attorney-litigant, who up to that point had
not been proceeding pro se, to file documents over his own
signature. 2000 UT 77, ¶ 48. Neither of these cases sheds any
light on the current issue: Lancino was decided on a foundation
issue, not on an “attorney of record” issue, and Pendleton
concerned the differences—not pertinent here—between a
represented party and a pro se litigant.
20180750-CA 15 2019 UT App 212Tronson v. Eagar
¶31 Under the circumstances presented here, Elswick had
done enough to establish himself as one of Tronson’s attorneys
of record before filing the summary judgment motion.
Accordingly, that motion was validly filed, and Defendants’
untimely response really was untimely. The district court did not
commit error in so concluding.
3
¶32 Finally, Defendants object to the “joint and several”
aspect of the district court’s summary judgment order. Under
Utah law, “two or more persons who have the same liability on
an instrument as makers . . . are jointly and severally liable in the
capacity in which they sign.” Utah Code Ann. § 70A-3-116(1)
(LexisNexis 2009). Defendants contend that the Promissory Note
at issue in this case is not an “instrument” for the purposes of
this statute, and therefore joint and several liability cannot
attach. The district court rejected this argument, and so do we.
¶33 The term “instrument” is defined by statute as “an
unconditional promise or order to pay a fixed amount of
money” that also meets three other criteria not at issue here. See
id. § 70A-3-104. Defendants contend that the Promissory Note
was not an unconditional promise to pay, and they make two
arguments in support of this contention.
¶34 First, Defendants assert that “the Promissory Note was
not binding on the Defendants until such time as the Lender
made payment, and . . . the Lender was under no obligation to
lend money based on the Promissory Note and the Loan
Agreement.” But while the Loan Agreement itself did not
obligate Tronson to loan any money or Defendants to pay any
money back, 8 those obligations kicked in once money was
8. Along these lines, Defendants also argue that the Loan
Agreement and Promissory Note are unconscionable, because
Tronson was never actually obligated to lend money to the
(continued…)
20180750-CA 16 2019 UT App 212Tronson v. Eagar
actually lent. And the Promissory Note documents a transaction
in which money was actually lent, thus triggering Defendants’
unconditional repayment obligations. Defendants’ first
argument is therefore without merit.
¶35 Second, Defendants point out that a document that “is
subject to or governed by another writing” is not considered
unconditional, see id. § 70A-3-106(1); see also First Fed. Sav. & Loan
Ass’n of Salt Lake City v. Gump & Ayers Real Estate, Inc., 771 P.2d
1096, 1098 (Utah Ct. App. 1989) (“A promise or order is
conditional if the instrument states that it is subject to or
governed by any other agreement.” (quotation simplified)), and
argue therefrom that the Promissory Note is conditional because
it refers to and incorporates certain provisions of the Loan
Agreement.
¶36 While the Promissory Note does indeed refer to the Loan
Agreement, many such references are made in passing, and even
Defendants acknowledge that “a mere reference to the Loan
Agreement does not, by itself, make the Promissory Note”
conditional. At one point, though, the Promissory Note makes
more than an in-passing reference to the Loan Agreement,
stating that “if any Event of Default (as defined in the Loan
Agreement) occurs under the Loan Agreement . . . , then the
entire unpaid balance . . . shall . . . at once become due and
payable in full.” But this reference is not enough to render the
Promissory Note conditional, because our legislature has
indicated that “[a] promise or order is not made conditional by a
reference to another writing for a statement of rights with
(…continued)
borrowers, a fact that Defendants claim renders the documents
unenforceable. These arguments are unpersuasive here, because
Tronson (through an entity) did lend money to Defendants, who
indicated in the Promissory Note that their promise to repay the
funds was made “for value received.” We therefore do not
further address Defendants’ unconscionability arguments.
20180750-CA 17 2019 UT App 212Tronson v. Eagar
respect to . . . acceleration.” See Utah Code Ann. § 70A-3-106(2)
(LexisNexis 2009). The reference in question has to do with
“acceleration” of payments, and therefore falls squarely within
the statutory exception to conditionality.
¶37 Accordingly, the district court did not err when it rejected
Defendants’ arguments regarding the unconditional nature of
the Promissory Note. That note is an “instrument” under Utah
law, and by signing it, Defendants made an unconditional
promise to pay Tronson; that promise was not rendered
conditional by the note’s reference to the Loan Agreement for
acceleration terms. Under these circumstances, the district court
did not err by entering a judgment that imposed joint and
several liability on Defendants.
C
¶38 Finally, Tronson asks us to award him the attorney fees
and costs he reasonably incurred in defending this appeal, and
asserts two separate grounds for his request. First, Tronson
asserts that, as the prevailing party on appeal, he is entitled to
recover fees and costs from Defendants pursuant to the language
of the Loan Agreement. Second, citing rule 33 of the Utah Rules
of Appellate Procedure, Tronson characterizes Defendants’
appeal as “not warranted by existing law” and “not based on a
good faith argument to extend, modify, or reverse existing law,”
and asks us to order that Defendants’ counsel likewise be jointly
and severally liable for payment of those fees and costs. We
agree with Tronson that, as the prevailing party on appeal, he is
entitled to recover fees from Defendants, but we do not consider
Defendants’ appeal to have been brought frivolously or in bad
faith, and therefore reject Tronson’s rule 33 request.
¶39 The Loan Agreement entitles Tronson to recover “all
costs, and expenses, including reasonable attorney fees and legal
expenses,” that he incurs “in enforcing, or exercising any
remedies under this Loan Agreement [or] the Promissory Note.”
Pursuant to this provision, the district court included in its
20180750-CA 18 2019 UT App 212Tronson v. Eagar
summary judgment order an award of attorney fees and costs
incurred by Tronson in obtaining the judgment. Moreover, in
light of the conclusions we reach herein, Tronson is
unquestionably the prevailing party in this appeal. It is well-
settled that “a provision for payment of attorney fees in a
contract includes attorney fees incurred by the prevailing party
on appeal as well as at trial, if the action is brought to enforce the
contract.” Covey v. Covey, 2003 UT App 380, ¶ 36, 80 P.3d 553(quotation simplified). In addition, when “a party who received
attorney fees below prevails on appeal, the party is also entitled
to fees reasonably incurred on appeal.” Telegraph Tower LLC v.
Century Mortg. LLC, 2016 UT App 102, ¶ 52, 376 P.3d 333(quotation simplified). Under the circumstances presented here,
Tronson is entitled to recover the reasonable attorney fees he
incurred on appeal.
¶40 But we do not find Tronson’s rule 33 argument as
persuasive. That rule provides that, “if the [appellate] court
determines that a motion made or appeal taken under these
rules is either frivolous or for delay, it shall award just damages
. . . to the prevailing party.” Utah R. App. P. 33(a). Further, the
rule gives us the discretion to “order that the damages be paid
by the party or by the party’s attorney.” Id. However, “the
imposition of [a rule 33] sanction is a serious matter and only to
be used in egregious cases, lest the threat of such sanctions
should chill litigants’ rights to appeal lower court decisions.”
Redd v. Hill, 2013 UT 35, ¶ 28, 304 P.3d 861. We have previously
authorized sanctions only in egregious cases, such as where an
appeal was mounted solely for the purpose of harassing the
defendant in the context of a hotly contested divorce, see, e.g.,
Porco v. Porco, 752 P.2d 365, 369 (Utah Ct. App. 1988), or where
the “appeal is not simply meritless but part of a long-standing
pattern of abusive and obstructive conduct,” Ross v. Short, 2018
UT App 178, ¶ 29, 436 P.3d 318 (quotation simplified). For the
reasons described herein, we do not find the positions taken by
Defendants on appeal to be persuasive. Nevertheless, we do not
consider Defendants’ appeal to have been brought frivolously, in
bad faith, or merely for purposes of delay. Accordingly, we
20180750-CA 19 2019 UT App 212Tronson v. Eagar
decline Tronson’s invitation to include Defendants’ counsel
among those parties liable to reimburse Tronson for the attorney
fees and costs he incurred on appeal.
CONCLUSION
¶41 The district court did not commit plain error by granting
Tronson’s unopposed summary judgment motion, and did not
err in denying all of Defendants’ “post-trial” motions seeking
alteration or amendment of the summary judgment order.
Moreover, Tronson is entitled to recover from Defendants (but
not from Defendants’ counsel), jointly and severally, the
reasonable attorney fees and costs he incurred in defending this
appeal, and we remand this case to the district court for the
purpose of quantifying those fees.
¶42 Affirmed.
20180750-CA 20 2019 UT App 212