Abel Constr. v. Gangwer

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Abel Construction, Inc.,
Plaintiff and Appellee,

v.

Kenton W. Gangwer, an individual;
First Community Industrial Bank,
a Colorado corporation;
and Wells Fargo Bank, N.A.,
a national banking association,
Defendants and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010098-CA

F I L E D
May 9, 2002 2002 UT App 150 -----

Third District, Salt Lake Department
The Honorable Ronald E. Nehring

Attorneys:
Nick J. Colessides, Salt Lake City, for Appellant
Larry G. Reed, Salt Lake City, for Appellee -----

Before Judges Bench, Greenwood, and Orme.
BENCH, Judge:

"As a general rule, claims not raised before the trial court may not be raised on appeal . . . unless a defendant can demonstrate that 'exceptional circumstances' exist or 'plain error' occurred." State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346. Gangwer raises a number of issues on appeal for the first time. We find no preservation of these claims in the record and, on appeal, Gangwer has not even attempted to demonstrate that "exceptional circumstances" exist or that "plain error" occurred. Id. We do not, therefore, address these issues, but decide only the single remaining issue of whether the trial court erred in entering judgment for Abel on the stipulation.

"A stipulation is construed as a contract." Coalville City v. Lundgren, 930 P.2d 1206, 1209 (Utah Ct. App. 1997). If there is no need to resort to extrinsic evidence, the interpretation of a contract is a question of law and "we accord the trial court's
interpretation no presumption of correctness." Lee v. Barnes, 1999 UT App 126,¶7, 977 P.2d 550 (quotations and citation omitted). "If a contract is unambiguous, the intentions of the parties must be determined from the words of the agreement." Id. at ¶9.

Paragraph three of the stipulation provides: Should Gangwer fail to pay to Abel any payment on, or before, the payment due date described in paragraph no. 1, above, [November 6, 2000 is the date at issue in this case] then Gangwer consents to the entry of judgment in favor of Abel and against Gangwer . . . . The submission to the Court of the Affidavit of Abel's counsel as to a default in the payments required by this Stipulation, along with a Motion For Entry of Judgment shall be sufficient and the Court may enter a judgment, . . . promptly upon receipt of those pleadings, copies of all such pleadings will be served on counsel for Gangwer prior to submission to the Court. (Emphasis added.)

The stipulation unambiguously sets forth the intentions of the parties. See Lee 1999 UT App at ¶9. Gangwer undisputedly did not make payment, as required by the stipulation, on or before November 6, 2000. The words "on, or before," as used in the stipulation, are the equivalent of a "time is of the essence" clause. Defendant had clear notice as to when payment was due, and the consequences for not making payment on time.

On November 8, 2000, Abel's counsel delivered to Gangwer's counsel a copy of the motion for entry of judgment and the affidavit. Later that same day, Abel's counsel filed these pleadings with the trial court. The trial court held a hearing at Gangwer's request, and subsequently entered judgment for Abel according to the terms found within the stipulation.

We conclude that the trial court properly entered judgment on the stipulation. Gangwer failed to make payment as required
by the stipulation, and Abel complied with the provisions for obtaining judgment. We therefore affirm.

______________________________

Russell W. Bench, Judge

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WE CONCUR:

______________________________

Pamela T. Greenwood, Judge

______________________________

Gregory K. Orme, Judge