Opinion
Case No. 20060177-CA.
Filed April 19, 2007. Not For Official Publication.
Appeal from Third District, Silver Summit Department, 040500403 The Honorable Bruce C. Lubeck.
Attorneys: David W. Scofield, Salt Lake City, for Appellant James S. Lowrie, R.L. Knuth, and Ryan M. Harris, Salt Lake City, for Appellee.
Before Judges Bench, McHugh, and Orme.
MEMORANDUM DECISION
Michael Nielsen contends that the trial court erred in granting Kirkpatrick MacDonald's motion for summary judgment. "Because entitlement to summary judgment is a question of law, we accord no deference to the trial court's resolution of the legal issues presented." Harline v. Barker, 912 P.2d 433, 438 (Utah 1996) (quotations and citation omitted). Summary judgment is appropriate "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). "When we review a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party." Hermansen v. Tasulis, 2002 UT 52, ¶ 10, 48 P.3d 235 (quotations and citation omitted).
Nielsen asserts that the disputed contract (the Note) is ambiguous and that we should consider extrinsic evidence to preclude summary judgment. "If the language within the four corners of the contract is unambiguous, the parties' intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law." WebBank v. American Gen. Annuity Serv. Corp., 2002 UT 88, ¶ 19, 54 P.3d 1139 (quotations and citation omitted). "A contract provision is ambiguous if it is capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies." Winegar v. Froerer Corp., 813 P.2d 104, 108 (Utah 1991) (quotations and citation omitted).
Nielsen also contends that there is a question of fact as to whether the Note was an integrated agreement. Nielsen did not "preserve [this] issue by raising it before the district court" and "we decline to address [an issue] raised for the first time on appeal." Carrier v. Salt Lake County, 2004 UT 98, ¶ 43, 104 P.3d 1208. In any event, Nielsen failed to present evidence to rebut the "presumption that a writing which on its face appears to be an integrated agreement is what it appears to be." Union Bank v. Swenson, 707 P.2d 663, 665 (Utah 1985);see also Restatement (Second) of Contracts § 209(3) (1981).
In this case, the financial terms of the Note are clear and unambiguous. The Note specifies a payment of $60,000 to be considered "as a loan to [Nielsen] personally," for "1 year . . . [i]nterest free if paid within a year, 10% if not, for whatever reason." Nielsen contends that the Note's statement that the parties "may eventually recast it in some other manner, depending on how things develop," creates an ambiguity as to the parties' intentions. We disagree. The recasting language in the Note is not ambiguous on its face. The Note clearly states that the parties "may" recast the terms at a later time, and it is undisputed that such recasting never occurred. The parties' inclusion of the recasting language merely states the obvious, reflecting "a well-established rule of law that parties to a written contract may modify, waive, or make new terms." Prince v. R.C. Tolman Constr. Co., 610 P.2d 1267, 1269 (Utah 1980) (quotations and citation omitted).
"[S]ome cases have permitted the consideration of any relevant evidence in determining whether a contract is ambiguous." Tangren Family Trust v. Tangren, 2006 UT App 515, ¶ 10. Those cases, however, permitted extrinsic evidence only when it "helped uncover ambiguities in the text of the agreements that may not have been obvious on their face."Id. at ¶ 11. The extrinsic evidence that Nielsen submits does not "uncover" any ambiguity, but merely explains why the parties included the recasting language in the Note. We conclude that the recasting language is not ambiguous and determine the parties' intentions from the plain meaning of the Note. Based on the plain meaning, the parties did not intend for an automatic recasting.
Nielsen also contends that because the Note states that the purpose of the loan is to pay overdue invoices, it is ambiguous as to whether the parties intended the Note to be a personal or business loan. When read as a whole, the Note provides that MacDonald made a personal loan to Nielsen so that he could pay his corporation's overdue invoices. See Sears v. Riemersma, 655 P.2d 1105, 1108 (Utah 1982) (stating that courts should "look at the entire contract and all of its parts in relation to each other, giving an objective and reasonable construction to the contract as a whole"). The business purpose for the loan proceeds does not conflict with the conclusion that the Note constituted a personal loan and, therefore, does not create an ambiguity.
Finally, Nielsen argues that an arbitration panel adjudicating a dispute between the parties' corporations already considered the Note in its 1999 arbitration award. MacDonald has shown that an unpaid personal loan existed between him and Nielsen, which presumptively would not be at issue in a contest between corporate entities. MacDonald, as the moving party, therefore met his burden of "presenting evidence to demonstrate that no genuine issues of fact existed and that he was entitled to judgment as a matter of law." Orvis v. Johnson, 2006 UT App 394, ¶ 16, 146 P.3d 886. The burden then shifted to Nielsen "to present evidence that is sufficient to establish a genuine issue of material fact." Id. The nonmoving party "must submit more than conclusory or speculative assertions." Id. at ¶ 11. In his affidavit, Nielsen provides in detail the reasons he "believes" that the arbitration panel took into account the Note, but fails to present any admissible evidence to support his belief. Further, in a 2004 letter to the arbitration panel, Nielsen's own attorney stated that the "claimed personal loan" is not amenable to "adjudication in this [arbitration] or any other forum." Nielsen therefore has failed to establish that a question of fact exists as to whether the arbitration panel considered the loan.
Accordingly, we affirm the trial court's order granting summary judgment.
WE CONCUR: Carolyn B. McHugh, Judge, Gregory K. Orme, Judge