Ninow v. Lowe

Ninow v. Lowe

IN THE UTAH COURT OF APPEALS

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In the matter of the Estate of Gary G. Pahl, deceased.

______________________________

KaLynn Ninow,

Petitioner and Appellee,

v.

William Lowe; Augusta Rose; Robert Mortensen; and Grand Staircase Land Co., a Utah corporation,

Respondents and Appellants.

______________________________

Augusta Rose,

Third-party Petitioner,

v.

KaLynn Ninow, Ryan Pahl, Richard Ninow, and Does I-V,

Third-party Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030169-CA
 

F I L E D
(September 2, 2004)
 

2004 UT App 291

 

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Third District, Salt Lake Department

The Honorable Tyrone E. Medley

Attorneys: Robert H. Copier, Salt Lake City, for Appellants

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

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Before Judges Billings, Davis, and Thorne.

DAVIS, Judge:

    William Lowe and Augusta Rose (collectively, Respondents) appeal the trial court's October 1, 2002 order determining that Lowe was in contempt of court and the trial court's May 1, 2003 order granting summary judgment in favor of KaLynn Ninow. We affirm in part, and reverse and remand in part.

    As an initial matter, we have determined that Respondents' appeal is taken from a final, appealable order. See In re Estate of Voorhees, 12 Utah 2d 361, 366 P.2d 977, 980 (1961).

    Respondents argue that the trial court erred in its October 1, 2002 order by determining that Lowe was in contempt of court. Pursuant to rule 65A of the Utah Rules of Civil Procedure, once a temporary restraining order (TRO) is granted, it

shall expire by its terms within such time after entry, not to exceed ten days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record.

Utah R. Civ. P. 65A(b)(2).

    The terms of the TRO in this case provided for the preliminary injunction hearing to be held at 10:00 a.m. on May 30, 2002, and for the TRO to expire at 11:00 a.m. on the same day. The parties did not stipulate to an extension of the TRO; Ninow did not request that the trial court extend the TRO for "good cause"; and, contrary to Ninow's argument, commencement of the preliminary injunction hearing one hour prior to the expiration of the TRO did not operate as a "good cause" extension of the TRO. Id. As such, under the plain language of rule 65A(b)(2), the TRO expired at 11:00 a.m. on May 30, 2002. Therefore, Lowe's actions during the noon recess of the preliminary injunction hearing were not in violation of the TRO.(1)

    Accordingly, we reverse the trial court's determination that Lowe was in contempt of court for violating the TRO. With respect to the relief granted by the trial court in its October 1, 2002 order, we reverse only Ninow's attorney fee award.(2) We remand and instruct the trial court to order the return to Lowe of all amounts paid for Ninow's attorney fees awarded in connection with the trial court's contempt determination.(3)

    Respondents also argue that the trial court erred in its May 1, 2003 summary judgment order by determining that Gary G. Pahl (Gary) owned all 6000 shares of Pahl's Salt Palace Loan Office, Inc. (the Corporation) at the time of his death. More specifically, Respondents assert that the trial court erred by determining that, at the time of his death, Gary owned 3000 shares of the Corporation (the 3000 shares) that were previously owned by Frank H. Pahl (Frank).(4) Based upon this alleged error, Respondents argue that it was error for the trial court to grant summary judgment in favor of Ninow.

    Pursuant to rule 56 of the Utah Rules of Civil Procedure, summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). Rule 56 also provides that

[w]hen a motion for summary judgment is made and supported as provided in [rule 56], an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Utah R. Civ. P. 56(e).

    The 3000 shares were the subject matter of two transfer agreements contained in the record before us.(5) In the first agreement, dated May 6, 1998 (the May agreement),(6) Frank agreed to transfer the 3000 shares to Gary.(7) In the second agreement, dated December 28, 1998 (the December agreement),(8) the Corporation agreed to purchase the 3000 shares from Gary, so that the Corporation could hold them as treasury stock. In the statement of undisputed facts contained in Ninow's memorandum in support of her motion for summary judgment, she asserted that (1) the May agreement was completed and "paid in full," and (2) the Corporation did not make the required payments to Gary under the December agreement. Ninow supported these facts with citations to affidavits and exhibits contained in the trial record. Respondents did not specifically dispute these facts either in their memorandum in opposition to Ninow's motion for summary judgment, or by way of the affidavits and exhibits cited therein. Because Respondents failed to "set forth specific facts showing that there is a genuine issue for trial," the trial court was required to accept these facts as undisputed.(9) Utah R. Civ. P. 56(e); see Utah R. Civ. P. 56(c). Because these undisputed facts, together with the plain language of both the May agreement and the December agreement, are determinative of Gary's ownership of the 3000 shares at the time of his death, summary judgment in favor of Ninow was appropriate. See Utah R. Civ. P. 56(c), (e). Therefore, we conclude that the trial court did not err by determining that Gary owned all 6000 shares of the Corporation at the time of his death, and we affirm the trial court's May 1, 2003 order granting summary judgment in favor of Ninow.(10)

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James Z. Davis, Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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William A. Thorne Jr., Judge

1. We disagree with Ninow's assertion that our holding on this issue will "invite judicial chaos." If a party wishes to have a TRO extended beyond its original terms, that party can simply seek the opposing party's consent to an extension, or request an extension from the trial court. See Utah R. Civ. P. 65A(b)(2). Ninow could have pursued either of these alternatives prior to or at the outset of the preliminary injunction hearing, but chose not to. Even if Ninow had been unable to secure consent to an extension from Respondents, it is unlikely the trial court would have denied a request to extend the TRO until completion of the preliminary injunction hearing.

2. Based upon our resolution of Respondents' next argument, we affirm the trial court's determinations that Lowe was not entitled to the $7500 he obtained during the noon recess of the preliminary injunction hearing and that he was required to return those funds to Ninow.

3. Respondents argue that Lowe is also entitled to his reasonable attorney fees in opposing the contempt motion both in the trial court and on appeal. However, none of the legal authorities that Respondents have cited in support of this argument authorize an award of attorney fees to a party opposing a contempt motion. Therefore, we conclude that this argument is inadequately briefed and we do not address it further. See Utah R. App. P. 24(a)(9); State v. Thomas, 961 P.2d 299, 304-05 (Utah 1998).

4. Respondents do not dispute that, at the time of his death, Gary owned the other 3000 shares of the Corporation.

5. Neither party asserts that these were not legal, binding agreements.

6. The trial court determined, and we agree, that the May agreement is "not ambiguous, and can therefore be interpreted as a matter of law."

7. Respondents assert that the May agreement somehow "conveyed" the 3000 shares to Lowe. However, this assertion is contrary to the plain language of the May agreement. The May agreement provided that Lowe was merely "holding" the 3000 shares until the May agreement was "fulfilled in whole." The May agreement also provided that it was "[Frank's] desire to sell [the 3000 shares] to Gary," and that upon "successful completion" of the May agreement, the 3000 shares would "belong to Gary." Accordingly, under the plain language of the May agreement, the trial court correctly determined that "Lowe had no power or authority to retain the [3000 shares] in any way once the [May agreement] had been completed."

8. The trial court determined, and we agree, that the December agreement is "unambiguous and may be interpreted as a matter of law."

9. Based upon these undisputed facts, the trial court correctly determined that (1) "[a]s soon as the payments had been made under the [May agreement], the ownership of the [3000 shares] vested in Gary"; and (2) because "[p]ayment was not made according to the terms of the [December agreement]," it "was never successfully completed and the [3000 shares] could not have become treasury stock, either prior to, or following [Gary's] death."

10. In their reply brief, Respondents ask this court to reverse a June 12, 2003 order entered in a separate civil case against Ninow. We do not address this argument for several obvious reasons. First, although the separate civil case against Ninow may have been combined with this case, that did not occur until nearly one year after Respondents filed their notice of appeal in this case; therefore, any proceedings in the separate civil case against Ninow are not part of Respondents' appeal in this case. Also, the June 12, 2003 order was not entered until after Respondents' notice of appeal was filed in this case. See Utah R. App. P. 4(a) (stating that "the notice of appeal . . . shall be filed . . . within [thirty] days after the date of entry of the judgment or order appealed from" (emphasis added)). Finally, Respondents raised this argument for the first time in their reply brief. See Utah R. App. P. 24(c); Hart v. Salt Lake County Comm'n, 945 P.2d 125, 139 n.9 (Utah Ct. App. 1997) ("[B]ecause this argument was raised for the first time in [the] reply brief, we decline to address it.").