304 P.3d 104
Utah Ct. App.2013Background
- Createrra, Inc. and Sundial, LLC formed Jordan Village Development, LLC and executed an operating agreement governing notice and arbitration.
- The arbitration history spanned 2009–2010, with multiple decisions delivered by email, a method Createrra did not object to at the time.
- The final arbitration decision (Nov. 3, 2010) dissolved the LLC and awarded Sundial $52,731 in attorney fees, with notice sent by email.
- Createrra filed a motion to vacate on Feb. 2, 2011, 91 days after the November 3, 2010 award, asserting untimeliness under Utah law.
- The district court found that the parties orally modified the notice provisions to allow email service and thus that email notice triggered the 90-day filing window.
- Createrra argues modifications to the notice provision must be in writing; the court concluded oral modification was permissible and that Createrra’s late filing was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice provisions can be modified orally | Createrra: modifications must be in writing. | Sundial: oral modification allowed to notice. | Oral modification to notice procedure is permissible. |
| Whether email notice satisfies statutory notice requirements | Createrra contends email notice does not meet the agreement’s notice requirement. | Sundial: email notice suffices under ordinary-course notice standards. | Email notice satisfies notice requirements triggering the 90-day period. |
| Timeliness of Createrra's motion to vacate | Createrra argues timely under notice provisions. | Sundial: motion filed 91 days after notice is untimely. | The motion to vacate was untimely. |
Key Cases Cited
- Pacific Dev., LC v. Orton, 23 P.3d 1035 (Utah 2001) (modification of scope; writing required for scope changes, not notice)
- Allred v. Educators Mut. Ins. Ass'n of Utah, 909 P.2d 1263 (Utah 1996) (timeliness principles for motions to modify or vacate arbitration awards)
- Buzas Baseball, Inc. v. Salt Lake Trappers, Inc., 925 P.2d 941 (Utah 1996) (review standard for district court decision on arbitration awards)