ASC Utah v. Wolf Mountain

This opinion is subject to revision before final
publication in the Pacific Reporter

2013 UT 24

IN THE

SUPREME COURT OF THE STATE OF UTAH
ASC UTAH, INC. and
STEPHEN A. OSGUTHORPE,
Plaintiffs and Appellees,
v.
WOLF MOUNTAIN RESORTS, L.C.,
Defendant and Appellant,
and
ENOCH RICHARD SMITH,
Intervenor and Appellee.

No. 20110742
Filed May 3, 2013

Third District, Silver Summit Dep’t
Honorable Robert K. Hilder
No. 060500297

Attorneys:
John P. Ashton, Clark K. Taylor, John R. Lund, Kara L. Pettit,
David W. Scofield, Christopher Jon Finley, M. David Eckersley,
Salt Lake City, for plaintiffs and appellees
Steve K. Gordon, Todd D. Wakefield, Joseph E. Wrona,
Salt Lake City, for defendant and appellant

JUSTICE DURHAM authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE LEE, and JUDGE ORME joined.
Having recused herself, Justice Parrish does not participate
herein; Court of Appeals Judge Orme sat.

JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 Wolf Mountain Resorts, L.C. (Wolf Mountain) appeals
following a trial in which the jury found it liable to ASC Utah, Inc.
(ASCU) for $54,437,000 in damages. Wolf Mountain argues that the
district court committed reversible error when it denied Wolf Moun-
tain’s motions for summary judgment, determined that the
Amended and Restated Development Agreement for the Canyons
 ASC UTAH v. WOLF MOUNTAIN
Opinion of the Court

Specially Planned Area (SPA Agreement) is ambiguous, and denied
Wolf Mountain’s motions for post-judgment relief. ASCU argues
that the entire appeal is moot because it purchased Wolf Mountain’s
appellate rights in this case (and is happy to drop the appeal against
itself). We determine that ASCU did not acquire Wolf Mountain’s
appellate rights and that the appeal is therefore not moot. We then
consider the merits of Wolf Mountain’s appeal and affirm.
BACKGROUND
¶2 Wolf Mountain and ASCU have been litigating their rights
and responsibilities regarding development of the Canyons Resort
in Park City, Utah, for several years.1 After a seven-week trial in
2011, the jury awarded ASCU $54,437,000 in damages. Several
months later, in an effort to collect on this judgment, ASCU filed an
Application for Writ of Execution. The Application listed Wolf Moun-
tain’s real and personal property, including “[c]laims asserted in
litigation entitled ASC Utah, Inc. v. Wolf Mountain Resorts, L.C.,
and all actions consolidated therein, Third Judicial District, Summit
County, State of Utah, Consolidated Case No. 060500297.” On the
same day, the district court issued a Writ of Execution authorizing
the seizure and sale of the property listed in the Application to the
extent necessary to satisfy the judgment.
¶3 Wolf Mountain twice moved the district court to stay en-
forcement of the Writ of Execution. The district court denied these
motions because Wolf Mountain had not posted a supersedeas bond,
as required by rule 62(d) of the Utah Rules of Civil Procedure
(URCP). Instead, Wolf Mountain had offered real property as secu-
rity. The district court held hearings on whether the Writ of Execu-
tion was wrongfully obtained and whether any of the listed pro
perty was exempt from seizure. Following these hearings, the court
ordered Wolf Mountain’s real and personal property to be sold to
satisfy the judgment. Wolf Mountain did not appeal from the Writ
of Execution or any of the related orders or proceedings. Nor did it
seek a stay from this court.
¶4 Thereafter, at a public sale conducted by a Summit County
sheriff’s deputy, ASCU purchased “all rights, title, claims and inter-

1
For a more detailed account of this appeal’s factual and
procedural background, see Osguthorpe v. Wolf Mountain Resorts, L.C.
(Wolf Mountain III), 2013 UT 12, ¶¶ 2–6, __ P.3d __; ASC Utah, Inc. v.
Wolf Mountain Resorts, L.C. (Wolf Mountain II), 2010 UT 65, ¶¶ 2–9,
245 P.3d 184, and Osguthorpe v. Wolf Mountain Resorts, L.C. (Wolf
Mountain I), 2010 UT 29, ¶¶ 2–9, 232 P.3d 999.

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ests of Wolf Mountain” in the “[c]laims asserted in [the present]
litigation.” The property description in the Certificate of Sale was
drawn verbatim from the Application for Writ of Execution. See
supra ¶ 2. ASCU then moved this court to dismiss the appeal as
moot, arguing that because ASCU now owned Wolf Mountain’s
appellate rights, there was no longer a controversy. We deferred
ruling on the motion and instructed the parties to brief the merits of
the appeal. We have jurisdiction under Utah Code section 78A-3-
102(3)(j).
STANDARD OF REVIEW
¶5 Wolf Mountain appeals various issues involving different
standards of review. We set forth the proper standard as we address
each issue.
ANALYSIS
¶6 Because mootness is a jurisdictional matter, Utah Transit
Auth. v. Local 382 of the Amalgamated Transit Union, 2012 UT 75,
¶¶ 18–19, 289 P.3d 582, we begin by addressing ASCU’s contention
that no actual controversy exists.
I. MOOTNESS
¶7 ASCU contends that “no actual controversy exists and the
issues in the appeal are moot because Wolf Mountain no longer has
any rights, title, claims or interests in this litigation.” Because Wolf
Mountain did not appeal from the Writ of Execution, we are not re-
viewing the execution proceedings or orders. See Cheves v. Williams,
1999 UT 86, ¶ 50, 993 P.2d 191 (holding that an “execution order . . .
stands as a separate and distinct order from the underlying judg-
ment and that, as such, . . . [a party must] file a separate notice of
appeal to challenge it”). Rather, our task is to interpret the language
of the Writ of Execution and the Certificate of Sale to determine
what effect, if any, the sale had on Wolf Mountain’s appellate rights.
¶8 The Certificate of Sale states that ASCU purchased “all
rights, title, claims and interests of Wolf Mountain” in the “[c]laims
asserted in litigation entitled ASC Utah, Inc. v. Wolf Mountain Re-
sorts, L.C., and all actions consolidated therein, Third Judicial Dis-
trict, Summit County, State of Utah, Consolidated Case No.
060500297.” Wolf Mountain argues that the word “claim” is synony-
mous with “chose in action,” which we have defined as “a claim or
debt upon which a recovery may be made in a lawsuit” and as “a
right to sue.” Applied Med. Techs., Inc. v. Eames, 2002 UT 18, ¶ 12, 44
P.3d 699 (internal quotation marks omitted). ASCU does not offer a
competing definition of “claim.” It simply asserts that it has pur-

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chased Wolf Mountain’s appellate rights. Black’s Law Dictionary
defines “claim” as “[t]he aggregate of operative facts giving rise to
a right enforceable by a court” and as “[a] demand for money, prop-
erty, or a legal remedy to which one asserts a right.” BLACK’S LAW
DICTIONARY 281–82 (9th ed. 2009).
¶9 We agree with Wolf Mountain that the term “claim” refers
to a demand for affirmative relief, as opposed to a defense or a right
to appeal. Thus, the term “[c]laims” in the Certificate of Sale did not
encompass Wolf Mountain’s appellate rights in this case. Accord-
ingly, we need not determine whether, in the case of a certificate of
sale that unambiguously purported to transfer appellate rights, Utah
public policy would prevent a judgment creditor from executing on
a judgment debtor’s right to appeal.2
II. MERITS
¶10 Having established that an actual controversy exists, we
turn to the merits of the appeal. Wolf Mountain argues that the dis-
trict court erred when it denied Wolf Mountain’s motions for sum-
mary judgment, ruled that section 3.2.6 of the SPA Agreement is am-
biguous, and denied Wolf Mountain’s motion for judgment notwith-
standing the verdict and its motion in the alternative for a new trial
and for remittitur. We affirm.
A. Motions to Dismiss
¶11 ASCU argued at trial that Wolf Mountain breached its
agreements with ASCU by failing to convey certain land for con-
struction of a golf course. Wolf Mountain filed three motions for
summary judgment based on the following asserted facts, which it
alleged to be undisputed: (1) that Wolf Mountain fulfilled its obliga-

2
In RMA Ventures California v. SunAmerica Life Insurance Co., 576
F.3d 1070, 1074–76 (10th Cir. 2009), the Tenth Circuit granted the
defendants’ motion to dismiss after the defendants executed on the
plaintiffs’ appellate rights under circumstances similar to those in
this case. The court “found no Utah authority . . . precluding the
execution sale” and therefore upheld the sale. Id. at 1075. We note
that we would not uphold such a sale without first undertaking a
careful review of the constitutional and other implications of
allowing judgment creditors to execute on judgment debtors’
appellate rights. See Kristopher Wood, Comment, Short Circuiting the
Justice System: How Defendants Are Misusing Writs of Execution, 39
PEPP. L. REV. 747 (2012), for a discussion of some of the constitutional
and policy interests at stake.

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tions by actually conveying the land; (2) that Wolf Mountain had no
obligation to convey the land because ASCU had not fulfilled a con-
dition precedent to the obligation; and (3) that Wolf Mountain had
no obligation to convey the land under the SPA Agreement, because
the only provision in that agreement addressing conveyance of the
land is merely an agreement to agree. The district court ruled that
summary judgment was not appropriate because of factual disputes
that the jury needed to resolve.
¶12 Generally, the denial of a motion for summary judgment
is not reviewable on appeal because the movant has had “the oppor-
tunity to fully litigate [at trial] the issues raised in the summary
judgment motion[].” Wayment v. Howard, 2006 UT 56, ¶ 19, 144 P.3d
1147. Appellate review is available only when a motion for summary
judgment is denied on a purely legal basis. Normandeau v. Hanson
Equip., Inc., 2009 UT 44, ¶ 15, 215 P.3d 152.
¶13 Here, although the interpretation of the agreements be-
tween Wolf Mountain and ASCU presented a legal question,
whether and when Wolf Mountain conveyed the property and
whether and when any condition precedent was fulfilled were fac-
tual questions. Furthermore, interpretation of the contracts may not
have been possible until underlying factual disputes were resolved.
Indeed, the district court explicitly stated that it denied the motions
because of factual disputes. Appellate review is therefore unavail-
able.
B. Ambiguity
¶14 Wolf Mountain appeals the district court’s determination
that section 3.2.6 of the SPA Agreement (Section 3.2.6) is ambiguous.
Wolf Mountain asserts that ASCU’s interpretation, which was adop-
ted by the district court, was contradicted by key provisions in other
related contracts between the parties and ignored several canons of
contract interpretation. Wolf Mountain claims that its own interpre-
tation “gave effect to all contract provisions, harmonized all provi-
sions, and did not render any of the provisions meaningless.”
¶15 We have no way to evaluate these contentions, however,
because Wolf Mountain has not presented the competing interpreta-
tions of Section 3.2.6 or even identified the portion of Section 3.2.6
found to be ambiguous. Elsewhere in its brief, Wolf Mountain ar-
gues that Section 3.2.6 was merely an “agreement to agree.” Thus,
we can infer that the district court may have held Section 3.2.6 to be
ambiguous on that point. However, we will not exercise appellate
review based on our best guess as to the subject of the appeal. Fur-

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thermore, because Wolf Mountain has not explained what prejudice
resulted from the court’s finding of ambiguity, we cannot rule out
the possibility of harmless error.
¶16 Appellants have the burden to clearly set forth the issues
they are appealing and to provide reasoned argument and legal au-
thority. See UTAH R. APP. P. 24(a)(9). Appellate courts are “not a de-
pository in which [a party] may dump the burden of argument and
research.” Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (alteration in
original) (internal quotation marks omitted). We accordingly decline
to address this inadequately briefed issue. See Broderick v. Apartment
Mgmt. Consultants, L.L.C., 2012 UT 17, ¶ 11, 279 P.3d 391 (stating that
the court has “discretion to not address an inadequately briefed ar-
gument” (internal quotation marks omitted)).
C. Post-Judgment Relief
¶17 After the jury rendered its verdict, Wolf Mountain moved
for judgment notwithstanding the verdict (JNOV) and, in the alter-
ative, for a new trial and for a remittitur on damages. We affirm the
district court’s denial of these motions.
1. Motion for JNOV
¶18 Wolf Mountain argues that the district court erred in deny-
ing its JNOV motion under URCP 50(b). Because “[i]t is the exclu-
sive function of the jury to weigh the evidence,” Child v. Gonda, 972
P.2d 425, 433 (Utah 1998) (alteration in original) (internal quotation
marks omitted), a jury verdict “should not be regarded lightly nor
overturned without good and sufficient reason,” Bowden v. Denver
& Rio Grande W. R.R. Co., 286 P.2d 240, 244 (Utah 1955). Accordingly,
a district court may grant a JNOV motion only if there is no “basis
in the evidence, including reasonable inferences which could be
drawn therefrom, to support the jury’s determination.” Braithwaite
v. W. Valley City Corp., 921 P.2d 997, 999. We review rulings on
JNOV motions for correctness. Gold Standard, Inc. v. Getty Oil Co., 915
P.2d 1060, 1066 (Utah 1996).
¶19 Under these standards, Wolf Mountain’s burden on appeal
was to demonstrate that there was no basis in the evidence to sup-
port the jury’s verdict. Wolf Mountain appears to have misappre-
hended this burden because it has presented no legal arguments as
to the sufficiency of the evidence. Rather, Wolf Mountain has used
the appeal as an opportunity to “re-argue the factual case . . . pre-
sented in the trial court.” Chen v. Stewart, 2004 UT 82, ¶ 77, 100 P.3d
1177. ASCU’s brief provides voluminous references to and summa-
ries of the evidence supporting the verdict, and Wolf Mountain has

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not explained why this evidence was “so slight and unconvincing as
to make the verdict plainly unreasonable and unjust.” Child, 972
P.2d at 434 (emphasis omitted). Wolf Mountain should have mar-
shaled the evidence in compliance with Utah Rule of Appellate Pro-
cedure 24(a)(9) and then explained why the evidence supporting the
verdict was insufficient.3 Because Wolf Mountain has failed to carry
its burden on appeal, we affirm the district court’s denial of the
JNOV motion.
2. Motion for a New Trial
¶20 Wolf Mountain argues that the district court further erred
in denying its motion in the alternative for a new trial under URCP
59(a), which provides that a new trial may be granted if the movant
makes certain showings. Wolf Mountain contends that the following
grounds for a new trial are present here: “[e]xcessive . . . damages,
appearing to have been given under the influence of passion or prej-
udice”; “[i]nsufficiency of the evidence to justify the verdict”; and
“[e]rror[s] in law.” UTAH R. CIV. P. 59(a)(5)–(7).
¶21 A motion for a new trial “invokes the sound discretion of
the trial court, and appellate review of its ruling is quite limited.”
Davis v. Grand Cnty. Serv. Area, 905 P.2d 888, 890 (Utah Ct. App.
1995), overruled on other grounds by Gillett v. Price, 2006 UT 24, ¶ 8,
135 P.3d 861. We will reverse a district court’s ruling on a motion for
a new trial “only if there is no reasonable basis for the decision.”
Crookston v. Fire Ins. Exch., 817 P.2d 789, 805 (Utah 1991). District
courts are required to explain the basis for their decisions only when
they grant motions for a new trial—not when they deny such
motions. See UTAH R. CIV. P. 52(a) (“The trial court need not enter
findings of fact and conclusions of law in rulings on motions, except
as [otherwise required].”); Crookston, 817 P.2d at 804 (“If the trial
court determines that a new trial is warranted and grants the
motion, it should describe the basis for its decision in the record
such that an appellate court can have the benefit of those reasons.”);
Golden Meadows Props., LC v. Strand, 2011 UT App 421, ¶ 6, 268 P.3d
849 (“The district court was not required to enter findings of fact in
conjunction with [its denial of] . . . the motion for a new trial.”).

3
“A party challenging a fact finding must first marshal all record
evidence that supports the challenged finding.” UTAH R. APP. P.
24(a)(9). See Chen, 2004 UT 82, ¶¶ 73–83, and Kimball v. Kimball, 2009
UT App 233, ¶ 20 n.5, 217 P.3d 733, for a more detailed explanation
of the marshalling requirement.

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¶22 The district judge who presided over a trial is in a far
better position than an appellate court to determine, for example,
whether the evidence was sufficient to justify the verdict or whether
the jury awarded damages “under the influence of passion or
prejudice.” UTAH R. CIV. P. 59(a)(5)–(6). This is particularly true in
the present case, where the record is thousands of pages long, the
trial transcripts cover seven weeks of testimony and presentation of
evidence, and the pre-trial litigation spanned several years. The
district judge prefaced his ruling on Wolf Mountain’s motion for a
new trial by noting that he “sat through every moment of testimony,
took substantial notes, . . . had the benefit of thousands of exhibits,”
and “heard every witness.” He then ruled that
on every issue where Wolf Mountain believes that
evidence was insufficient there was credible and
substantial evidence that supported the verdict. This is
not to say that a verdict to the contrary, in Wolf
Mountain’s favor, could not have been equally justified.
It could, but that is not what occurred. What Wolf
Mountain has failed to do is demonstrate to this Court
a dearth of evidence such that the verdict on each of the
claims cannot stand.
Elsewhere in the order, the court identified the expert testimony
upon which the jury based its verdict and noted as evidence of the
jury’s lack of passion or prejudice the fact that during deliberation,
the jury sent the court a question to ensure that no multiplier or
other factor would be applied to their damages award. Evidently,
the jury wanted to award ASCU precisely $54,437,000—no more and
no less. We are not persuaded that the district court abused its
discretion in denying Wolf Mountain’s motion for a new trial on the
grounds of insufficient evidence or of passion or prejudice.
¶23 In contrast, the district court is not necessarily in a better
position than an appellate court to identify its own errors of law.
Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35, ¶ 41,
__ P.3d __. Thus, we review an appellant’s allegations of legal error
under URCP 59(a)(7) for correctness. See id. However, we will
reverse and order a new trial only if we (1) identify a legal error that
would be grounds for a new trial under URCP 59(a)(7) and (2) deter-
mine that the error “resulted in prejudice necessitating a new trial.”
Gbur v. Golio, 932 A.2d 203, 207 (Pa. Super. Ct. 2007), aff’d, 963 A.2d
443 (Pa. 2009) (internal quotation marks omitted).
¶24 Here, Wolf Mountain alleges that the district court erred
in three ways: (1) by holding that the SPA Agreement was

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ambiguous, (2) by allowing ASCU to amend its complaint in the
middle of trial, and (3) by making several erroneous evidentiary
rulings. As noted above, we decline to address the argument
involving ambiguity in the SPA Agreement because that issue was
inadequately briefed. See supra ¶ 16.
¶25 Wolf Mountain’s second allegation is incorrectly labeled as
a claim of legal error. It is actually a claim of abuse of discretion
because district courts have discretion to allow parties to amend
their pleadings “when justice so requires.” UTAH R. CIV. P. 15(a). An
abuse of discretion may be grounds for a new trial if it deprived a
party of a fair trial. UTAH R. CIV. P. 59(a)(1). However, even if Wolf
Mountain had correctly made this argument under URCP 59(a)(1),
it would fail because the district court did not abuse its discretion in
allowing ASCU to amend its complaint.
¶26 In ruling on a motion to amend, district courts must weigh
“(1) the timeliness of the motion; (2) the justification for delay; and
(3) any resulting prejudice to the responding party.” Savage v. Utah
Youth Vill., 2004 UT 102, ¶ 9, 104 P.3d 1242 (internal quotation marks
omitted). Here, in January 2011, two months before trial, ASCU
notified the district court and Wolf Mountain that it intended to
move to amend its complaint to include a SPA Agreement claim.
ASCU explained that before the district court’s November 2010
ruling, ASCU had interpreted the SPA Agreement to preclude
independent causes of action until default proceedings with Summit
County had been completed. The court’s November 2010 ruling
apparently interpreted the SPA Agreement to permit independent
claims before the default proceedings were completed. The district
court communicated to Wolf Mountain that it planned to grant the
motion to amend unless Wolf Mountain could show prejudice. Wolf
Mountain was unable to show prejudice, and the court granted the
motion. The district court properly considered the timeliness of and
justification for ASCU’s motion to amend and the possible prejudice
to Wolf Mountain. Thus, the district court did not abuse its
discretion when it granted the motion.
¶27 Finally, Wolf Mountain alleges several erroneous
evidentiary rulings. We cannot review the majority of these rulings
because Wolf Mountain has not explained why the district court
excluded or admitted the evidence or why these rulings were in

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error.4 Because these arguments were inadequately briefed, we
decline to address them. See supra ¶ 16.
¶28 The sole evidentiary issue we can address involves the
exclusion of a document pertaining to ASCU’s development plans.
Wolf Mountain argues that the district court erred in excluding the
document for lack of foundation because (1) “Hirasawa [presumably
an ASCU employee] testified that it was prepared by his office and
that he was familiar with it,” (2) the parties stipulated to its
authenticity, and (3) one of ASCU’s damages experts relied on it.
Regarding the first grounds, we disagree with Wolf Mountain’s
characterization of Mr. Hirasawa’s testimony. Mr. Hirasawa agreed
with the examining attorney’s statement that the development plans
were “the type of material that those under [him] would prepare for
The Canyons,” but he stated that he did not recognize the document
or know when it was prepared or who prepared it. The second
ground was not adequately presented to the district court. Wolf
Mountain’s attorney vaguely stated that the parties had entered a
stipulation pertaining to “any documents produced by ASC.”
ASCU’s attorney responded, “[W]e have not stipulated that
everything in our files is admissible in evidence.” Wolf Mountain
did not dispute ASCU’s response, provide further details regarding
the scope or nature of the stipulation, or offer to provide the court
a copy of the stipulation. Even if Wolf Mountain had given the
district court a copy of the stipulation, we could not review the
court’s interpretation of it because Wolf Mountain has not provided
us a citation to or copy of the stipulation. The third ground was not
before the district court either. ASCU’s damages expert had not yet
testified at the time Wolf Mountain sought to admit the
development plans. When the expert did testify, Wolf Mountain did
not renew its efforts to admit the plans. Accordingly, the district
court’s ruling that Wolf Mountain did not provide an adequate
foundation was proper. We therefore affirm the denial of Wolf
Mountain’s motion for a new trial.

4
We are also unable to determine whether these evidentiary
rulings involve legal questions or are purely discretionary matters.
State v. Whittle, 1999 UT 96, ¶ 20, 989 P.2d 52 (noting that evidentiary
rulings are generally reviewed for abuse of discretion but are
reviewed for correctness “when the evidentiary ruling at issue is an
independent legal issue and does not involve the balancing of
factors”). Thus, we cannot determine even whether Wolf Mountain
properly brought these claims under URCP 59(a)(7). See supra ¶ 25.

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3. Motion for Remittitur
¶29 Wolf Mountain asserts that the district court erred in
denying its request for a remittitur on damages. A remittitur is an
alternative form of relief that a district court may provide when a
new trial is warranted. See Crookston, 817 P.2d at 803 (explaining that
a court may encourage parties to settle by “proposing a remittitur or
additur to the jury’s award of damages,” to which the parties may
agree in order to avoid a new trial). Where a district court has
appropriately determined that a new trial is not warranted, there are
no grounds for remittitur. Thus, in light of our conclusion that the
district court appropriately denied Wolf Mountain’s motion for a
new trial, see supra ¶ 28, the court did not err in denying Wolf
Mountain’s request for remittitur.
CONCLUSION
¶30 We hold that ASCU did not acquire Wolf Mountain’s
appellate rights when it executed on its “[c]laims” in this litigation.
However, because Wolf Mountain has failed to demonstrate that the
district court erred or abused its discretion in any way, we affirm on
the merits.

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