Whitewater v. Summerhays

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Whitewater v. Summerhays Case No. 20000592-CA, Filed May 24, 2001 IN THE UTAH COURT OF APPEALS


Whitewater Whirlpool Baths & Systems, Inc.,
Plaintiff and Appellant,


Barbara R. Summerhays;
RanCo Homes, Inc.; and Does 1-25,
Defendants and Appellees.

(Not For Official Publication)

Case No. 20000592-CA

May 24, 2001 2001 UT App 166 -----

Fifth District, St. George Department
The Honorable James L. Shumate

Howard Chuntz, Orem, for Appellant
Bruce C. Jenkins and Robert M. Jensen, St. George, for Appellees


Before Judges Billings, Davis, and Orme.


Whitewater Whirlpool Baths & Systems, Inc. (Whitewater) appeals the trial court's order denying Whitewater's motion to set aside the parties' stipulated dismissal of Whitewater's complaint (stipulated dismissal). We affirm.

The stipulated dismissal unambiguously on its face dismisses with prejudice Whitewater's claims against Appellees. If a judgment or an order is unambiguous, "it must be enforced as it speaks." Park City Utah Corp. v. Ensign Co., 586 P.2d 446, 450 (Utah 1978). If Whitewater wanted to ensure receipt of a first position trust deed, then it should have asked the trial court to incorporate a written settlement agreement with appropriate terms in the stipulated dismissal. Cf. Zions First Nat'l Bank v. Barbara Jensen Interiors, Inc., 781 P.2d 478, 480 (Utah Ct. App. 1989). The trial court did not need to look beyond the unambiguous stipulated dismissal in denying Whitewater's motion. We accordingly conclude the trial court did not abuse its discretion. See id. at 479; Richins v. Delbert Chipman & Sons Co., 817 P.2d 382, 387 (Utah Ct. App. 1991).

We could also affirm the trial court because Whitewater's motion, supported only by the affidavit of Whitewater's counsel,(1) fails to advance any legal theory on which the trial court could have set aside the stipulated dismissal. On appeal we will not address a motion unsupported by legal authority and analysis below. See Tolman v. Winchester Hills Co., 912 P.2d 457, 461 (Utah Ct. App. 1996); LeBaron & Assocs., Inc. v. Rebel Enters., Inc., 823 P.2d 479, 482-83 (Utah Ct. App. 1991).

We therefore affirm the trial court's order denying Whitewater's motion to set aside the parties' stipulated dismissal.

Judith M. Billings, Judge -----


James Z. Davis, Judge

Gregory K. Orme, Judge

1. The affidavit asserts Whitewater and Appellee RanCo's counsel "understood and believed that RanCo . . . was giving [Whitewater] a first position trust deed and trust deed note . . . ." Subsequent to the entry of the order dismissing Whitewater's complaint, "the parties learned that the trust deed note and trust deed . . . was not a first position note and . . . the property was being foreclosed by the holder of the first position note."