Tronson v. Eagar
2019 UT App 212
| Utah Ct. App. | 2019Background
- In October 2008 five individuals (including the four appellants) signed a Loan Agreement and a Promissory Note for $25,000 (total due $31,250 after a 25% lender fee); the Note was signed by the individuals (not a business entity) and stated payment was “for value received.”
- The day after execution, Those Money Guys LLC (controlled by the lenders) issued a $25,000 cashier’s check payable to Those Guys LLC (the Borrower’s Firm), and Those Guys LLC deposited the funds; no repayments were ever made.
- In October 2014 Tronson sued the five individual borrowers, seeking joint-and-several recovery; one borrower defaulted, four answered and later became appellants here.
- Tronson moved for summary judgment in April 2017 (signed and filed by attorney Elswick); the borrowers did not timely respond and the district court granted the unopposed motion, entering judgment against the borrowers joint and several and awarding fees.
- Defendants filed belated opposition and multiple post-judgment motions (including under Rule 59 and Rule 60(b)), asserting among other things that the Note was not an “instrument,” Elswick was not an attorney of record when he filed the motion, and the judgment should not be joint and several; the district court denied relief.
- On appeal the court affirmed: it found no reversible error (no harmful plain error in granting the unopposed motion), held Elswick had become an attorney of record before filing, concluded the Promissory Note was an “instrument” under Utah law enabling joint-and-several liability, and awarded appellate attorney fees to Tronson (but denied Rule 33 sanctions).
Issues
| Issue | Tronson's Argument | Defendants' Argument | Held |
|---|---|---|---|
| 1) Validity of grant of unopposed summary judgment | Tronson was entitled to judgment as a matter of law based on the Note, Loan Agreement, affidavits, check stub, and bank statement | District court may not grant SJ just because it is unopposed; failure to review movant’s materials is error and reversible | Court: even if order was signed because motion was unopposed, no plain error—papers show no genuine issue and entitlement to judgment as a matter of law |
| 2) Availability of Rule 59 to challenge summary judgment | Rule 59 can apply; Tronson opposed defendants’ motions on merits | Rule 59 is not appropriate where no trial occurred; defendants invoked Rule 59 to vacate SJ | Court: stating Rule 59 is available was error but harmless—court considered merits and denied relief on substance |
| 3) Validity of summary-judgment filing (Elswick’s status) | Elswick was counsel of record before filing (signed earlier papers and filed an affidavit) so motion was validly filed | Motion was invalid because Elswick had not filed a formal notice of appearance when he signed/filed the SJ motion, making defendants’ opposition timely | Court: Elswick had sufficiently become attorney of record via filings and affidavit; motion valid and defendants’ response was untimely |
| 4) Whether Promissory Note is an “instrument” creating joint-and-several liability | Note is an unconditional promise to pay and fits UCC definition of instrument; references to Loan Agreement concern acceleration only | Note is conditional (dependent on lender disbursing funds, or governed by Loan Agreement) so it is not an “instrument” | Court: Note is an “instrument”; references to Loan Agreement fall within statutory exception for acceleration and do not make the Note conditional; joint-and-several liability proper |
| 5) Entitlement to appellate attorney fees and sanctions | Loan Agreement authorizes recovery of fees to enforce the agreement; appeal is frivolous under Appellate Rule 33 so fees and sanctions requested | Appeal not frivolous—appellants raised arguable issues; fees limited to contractual recovery by defendants | Court: Tronson entitled to recover reasonable appellate fees under the contract; Rule 33 sanctions denied (appeal not frivolous or brought in bad faith) |
Key Cases Cited
- Pepperwood Homeowners Ass’n v. Mitchell, 351 P.3d 844 (Utah Ct. App. 2015) (unopposed summary judgment still requires independent judicial review of movant’s materials)
- Orvis v. Johnson, 177 P.3d 600 (Utah 2008) (appellate review of summary judgment views facts in light most favorable to nonmoving party)
- State v. Johnson, 416 P.3d 443 (Utah 2017) (elements of plain-error review articulated)
- Moon Lake Elec. Ass’n v. Ultrasystems W. Constructors, Inc., 767 P.2d 125 (Utah Ct. App. 1988) (Rule 59 may be used to challenge a summary judgment)
- Mojo Syndicate, Inc. v. Fredrickson, 297 P.3d 36 (Utah Ct. App. 2013) (Rule 59 motion can challenge summary judgment)
- Covey v. Covey, 80 P.3d 553 (Utah Ct. App. 2003) (contractual fee provisions cover appellate attorney fees)
- Telegraph Tower LLC v. Century Mortg. LLC, 376 P.3d 333 (Utah Ct. App. 2016) (prevailing party entitled to reasonable appellate fees)
- Crookston v. Fire Ins. Exch., 860 P.2d 937 (Utah 1993) (denial of post-trial motions reviewed for abuse of discretion)