Opinion
11 Kirk Blоsch, Martin W. Merrill, and David O'Bagy appeal from a jury verdict finding that Blosch was not a third-party beneficiary of a loan agreement between Na-tixis Real Estate Capital, Inc. (Natixis), Schoolhouse Downtown, LLC, and Schoolhouse Downtown's principal (Borrower) 1 Blosch also challenges the trial court's denial of his pretrial motion for summary judgment. We affirm.
BACKGROUND
12 On March 30, 2006, Natixis and Borrower entered into a loan agreement (the Loan Agreement) by which Natixis loaned Borrower $7.8 million.
2
The funds were to
T3 In May 2006, Borrower attempted to draw from the Eserowed Funds, but Natix-is's loan servicer denied Borrower's request because the contractual requirements for disbursement of the Eserowed Funds had not been met. Around that time, Borrower expressed frustration to Natixis over his inability to access the Escrowed Funds, but Natix-is was unable or unwilling to release the funds prior to completion of the contractual conditions. After his request to access the Escrowed Funds was refused, Borrower solicited Blosch to borrow money in order to complete the restaurant space and free the Escrowed Funds for disbursement. Borrower represented to Blosch that the Eserowed Funds totaled $1.5 million and that Borrower would need the loan from Blosch for only ninety days. >
14 Blosch agreed to arrange a loan of approximately $1 million to Borrower provided that Natixis would release the Eserowed Funds directly to an entity designated by Blosch onee the contractual requirements for disbursemеnt were met. Borrower arranged with a loan officer at Natixis (the Loan Officer) for the Escrowed Funds to be paid jointly to Blosch and Borrower, which required Natixis to "vet" Blosch as a legally permissible payee under federal law. On July 11, 2006, the Loan Officer emailed to Borrower a letter (the Joint Check Letter), which read, in relevant part,
Dear [Borrower]:
This letter confirms [Natixis's] completion of the vetting process for Kirk Blosch. Upon satisfaction of all requirements outlined in the Loan Documents, [Natixis] will release the escrow funds associated with the Ruth's Chris restaurant via a check issued to both you and Mr. Blosch.
T5 On July 12, 2006, Borrower executed a promissory note tо Blosch, O'Bagy, and Merrill promising to repay on or before October 12, 2006, the loan balance of $1,050,000, together with a loan fee of 15%, for a total repayment of $1,207,500. Any balance remaining unpaid after October 12, 2006, was subject to a 60% annual interest rate. Blosch, O'Bagy, and Merrill tendered to Borrower checks totaling $1,050,000.
T6 In August 2006, Natixis sold Borrower's loan to LaSalle Bank, and Capmark Finance, Inc. (Capmark) became the new servi-cer for the Loan Agreement. Natixis did not communicate to LaSalle Bank or Capmark that Natixis had agreed to the release of the Escrowed Funds via joint check to Borrower and Blosch, and did not provide LaSalle Bank or Capmark with a copy of the Joint Check Letter.
T7 On September 12, 2006, Borrower notified Natixis that the restaurant was in operation and requested guidance on how to obtain the release of the Escrowed Funds. Natixis directed Borrower to contact Capmark to arrange for release of the Escrowed Funds. On October 10, Borrower instructed Cap-mark to release the Escrowed Funds via wire transfer to the account of Wasatch Prime, LLC, another entity owned by Borrower. Capmark released the Eserowed Funds in full to Wasatch Prime, LLC on October 18, 2006.
T8 In November 2006, Blosch contacted Natixis to find out why he had not receivеd a joint payment of the Eserowed Funds after the restaurant space was completed. Natixis informed Blosch that the Escrowed Funds had been wired directly to Borrower. Blosch then met with Borrower, who informed Blosch that the money had been used for other purposes and that he was unable to repay the promissory note.
T9 On October 15, 2007, Blosch, Merrill, and O'Bagy filed a complaint against Natixis alleging breach of contract. Blosch moved for summary judgment, arguing that, as a
10 The case proceeded to trial in September 2010, and the jury returned a special verdict finding that Blosch was not a third-party beneficiary of the Loan Agreement. On December 14, 2010, the trial court entered an order dismissing with prejudice all of Blosch, Merrill, and O'Bagy's claims against Natixis. Blosch timely filed a motion for a new trial, arguing that the jury's verdict was against both the weight of the evidence and the law, and that the trial court had erred in instructing the jury regarding the effect of Natixis's аssignment of the Loan Agreement. However, Blosceh's supporting memorandum was struck for failure to comply with the Utah Rules of Civil Procedure, and his motion was denied on March 7, 2011. Blosch filed his notice of appeal on April 4, 2011.
ISSUES AND STANDARDS OF REVIEW
T11 As an initial matter, Natixis challenges whether this court has jurisdiction to hear this appeal. "'[T)he issue of subject matter jurisdiction is a threshold issue, which 'can be raised at any time and must be addressed before the merits of other claims."" Robinson v. Baggett,
1 12 Blosch first argues that the trial court erred in denying his summary judgment motion. We review "a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness." See Orvis v. Johnson,
113 Blosch also argues that insufficient evidence supported the jury's verdict that Blosch was not a third-party beneficiary of the Loan Agreement. "In reviewing a jury verdict, we view the evidence in the light most supportive of the verdict[ ] and assume that the jury believed those aspects of the evidence which sustain its findings and judgment." Billings v. Union Bankers Ins. Co.,
{14 Finally, Blosch argues that the trial court erred in instructing the jury on the effect of Natixis's assignment of the Loan Agreement. We review challenges to jury instructions for correctness, "granting the trial court no deference on its view of the law." Id. at 466 (citation omitted).
ANALYSIS
I. This Court Has Jurisdiction To Hear the Appeal.
115 Natixis argues that this court does not have jurisdiction to hear the appeal because Blosch did not timely file a notice of appeal. Generally, a notice of appeal must be filed within thirty days after the date of entry of the judgment appealed from. Utah R.App. P. 4(a). However, "[ilf a party timely files in the trial court ... a motion for a new trial under Rule 59," "the time for all parties to appeal from the judgment runs from the entry of the order disposing of the motion." Id. R. 4(b).
Wе do not agree that Bloseh's motion was a nullity or that his failure to file a compliant memorandum prevented the tolling of his time to appeal in this case. Tolling of the time to appeal under rule 4 is triggered when a party "timely files in the trial court" one of the motions enumerated under rule 4(b), such as a rule 59 motion for a new trial. Id. Failure to submit a supporting memorandum as required by rule 7 of the Utah Rules of Civil Procedure may render such a motion insufficient. Menzies v. Galetka,
{18 Here, Blosch timely moved the trial court for a new trial under rule 59. While the trial court struck Bloseh's supporting memorandum for failure to comply with the requirements of the Utah Rules of Civil Procedure, that decision rendered Bloseh's motion insufficient, not untimely or a nullity. Notably, Natixis moved the trial court to strike not just Blosch's memorandum but the rule 59 motion in its entirety. However, the trial court struck only Bloseh's supporting memorandum and did not strike Blosch's motion. Instead, the trial court ruled on the mоtion and denied it. Bloseh's time to appeal therefore ran "from the entry of the order disposing of" his rule 59 motion. See Utah R.App. P. 4(b).
{19 Because we determine that Bloseh's rule 59 motion satisfied rule 4(b)'s requirements and tolled his time to appeal, we conclude that Blosch's notice of appeal was timely and that we have jurisdiction to consider the merits of his appeal.
II. The Trial Court Correctly Denied Summary Judgment.
A. This Court May Review the Trial Court's Denial of Summary Judgment.
120 Blosch first argues that the trial court erred in denying his summary judgment motion. "Generally, the denial of a motion for summary judgment is not reviewable on appeal because the movant has had the opportunity to fully litigate [at triаl] the issues raised in the summary judgment motion[ ]." ASCUtah, Inc. v. Wolf Mountain Resorts, LC,
121 In denying Blosch's motion for summary judgment, the trial court explained,
The case law provides that a third-party may claim contract benefit only if the parties to the contract clearly express it. Loan Term $10.19 unambiguously precludes such third-party claims. However, the [Joint Check Letter] provides:
This letter confirms [Natixis's] completion of the vetting process for Kirk Blosch. Upon satisfaction of all the requirements outlined in the Loan Documents, [Natixis] will release the escrowfunds associated with the Ruth's Chris restaurant via a check issued to both [Borrower] and Mr. Blosch.
Whether there was intent among all parties to modify the Loan, is an issue of fact and cannot bе determined by this Court.
(Citations omitted.) Blosch contends that the trial court denied his motion for summary judgment based solely on the trial court's legal conclusion that it was a question of fact for the jury whether Natixis and Borrower intended to modify the Loan Agreement to make Blosch a third-party beneficiary. Blosch argues that because the trial court never found that the Joint Check Letter was ambiguous as to the parties' intent to make Blosch a third-party beneficiary, the trial court erroneously concluded that intent was a question of fact, rather than a question of law.
1 22 We agree that the trial court's denial of Blosch's motion for summary judgment was basеd on a purely legal issue. However, we disagree that the trial court never determined that the Joint Check Letter was ambiguous. It is well established that "[blefore the [trial] court may consider extrinsic evidence of the parties' intent ... it must first conclude that the contract is facially ambiguous." Wilson v. Johnson,
123 Our determination that we may review the trial court's ruling in this case is consistent with our supreme court's reasoning in Normandeau,
€24 Here, the trial court's determination that the Joint Check Letter is facially ambiguous as a matter of law was dispositive of the issue of ambiguity. It would have been futile for Blosch to attempt to litigate whether the Joint Check Lеtter was facially ambiguous at trial because the jury could not decide this purely legal issue. See id. 112. In other words, while the trial court denied Blosch's motion for summary judgment because its legal ruling on facial ambiguity meant there were disputed issues of material fact as to the parties' intent, Blosch was effectively foreclosed by that ruling from litigating the issue of ambiguity at trial We may therefore review the trial court's legal ruling that
B. The Trial Court Did Not Err in Denying Blosch's Motion for Summary Judgment, Because the Joint Check Letter Is Facially Ambiguous as to the Parties' Intent To Make Blosch a Third-Party Beneficiary of the Loan Agreement.
125 As explained above, because Blosch's appeal from the denial of his summary judgment motion comes after trial, our review of that denial is limited solely to the legal issue on which the trial court ruled in denying Blosch's motion, ie., whether the Joint Check Letter was, as a matter of law, facially ambiguous with respect to the parties' intent
3
"A contractual term or 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." Strohm v. ClearOne Communications, Inc.,
€26 With respect to Blosch's status as a third-party beneficiary of the Loan Agreement, "[a] third party may claim a contract benefit only if the parties to the contract clearly express an intention to confer a separate and distinct benefit on the third party." Bybee v. Abdulla,
T27 The operative language of the Joint Check Letter provides, "Upon satisfaction of all requirements outlined in the Loan Documents, [Natixis] will release the escrow funds associated with the Ruth's Chris restaurant via a check issued to both [Borrower] and Mr. Blosch." Blosch argues that this language unambiguously demonstrates Natixis's and Borrower's intent to make Blosch a third-party beneficiary of the Loan Agreement. However, we see nothing in the language of the Joint Check Letter from which Natixis and Borrower's intent in entering into the agreement can be ascertained. Whether or not Natixis and Borrower intended the Joint Check Letter for Bloseh's "direct benefit," the language of the Joint Check Letter itself does not "affirmatively make this intention clear." See id. 150. This "facial deficiency" is highlighted when compared with joint payment agreements held to unambiguously create a third-party status.
128 In Gender Machine Works, Inc. v. Eidal International Sales Corp.,
Eidal's joint venture manufacturing partner, Gender Machine is processing a substantial amount of work on this project (Purchase Order B89109200083RP) and this letter is sent to your group informing you that they are authorized by Eidal to submit an invoice with Eidal allowing them to collect the sum of $225,000.00 for work performed by their group on this project.
Eidal and Gender will invoice jointly with one invoice with payment to be made by ADM in both Gender's and Eidal's names.Due to оur financing needs, we are requesting this acknowledgment by your group today so that we can get started on this expedited project. We would like to start today.
Id. at 1086 (internal quotation marks omitted). ADM signed the agreement and confirmed its understanding that payment should be made to both Eidal and Gender. Id. After the shredder was delivered, Eidal invoiced ADM without reference to Gender, and ADM paid the full amount in a check made payable to Eidal only. Id. Gender brought a third-party beneficiary breach of contract claim against ADM. Id. at 1037. The Oregon Court of Appeals determined that the parties' intent to benefit Gender by the agreement was unambiguous from the language of the agreement because it stated both that Gender was performing substantial work on the shredder which ADM had purchased and that payment was therefore to be paid jointly to Eidal and Gender. Id. at 10839.
129 In contrast, in Eastern Aviation Group, Inc. v. Airborne Express, Inc.,
The fact that he is incidentally named in the contract, or that the contract, if carried out according to its terms, would inure to his benefit, is not sufficient to entitle him to demand its fulfillment. It must appear to have been the intention of the parties tо secure to him personally the benefit of its provisions.
Id. (citation and internal quotation marks omitted). The court held that ABX's obligation was only to BAC-the provision directing payments to the joint account was merely to accommodate BAC, not BAC's creditors-and EAG was therefore not a third-party beneficiary of the sales contract. Id. at 358.
130 We conclude that the Joint Check Letter is ambiguous as to whether the intent of the parties in entering into the agreement was to directly benefit Blosch as a third-party beneficiary. The operative language of the Joint Check Letter contains no expression of intent to benefit Blosch, and instead merely directs that "[ujpon satisfaction of all requirements outlined in the Loan Doeu-ments, [Natixis] will release the escrow funds associated with the Ruth's Chris restaurant via a check issued to both [Borrower] and Mr. Blosch." By comparison, the language of the joint payment agreement in Gender demonstrated the parties' intent to enter into the agreement to "allow[ Gender] to collect the sum of $225,000.00 for work performed by their group on this project," due to the "substantial amount of work" performed by Gender, and the "financing needs" of Eidal.
131 Blosch next claims that the evidence presented at trial was legally insufficient for the jury to determine that Blosch was not a third-party beneficiary. A party challenging the sufficiency of the evidence "has the heavy burden of marshaling the evidence in support of the verdict and showing that the evidence, viewed in the light most favorable to the verdict, is insufficient." State v. Maese,
32 Blosch primarily attacks the sufficiency of the Loan Officer's testimony at trial regarding the Loan Officer's knowledge and intent-and therefore Natizis's knowledge and intent-in drafting the Joint Check Letter. Blosch argues that this evidence of Natixis's intent is legally insufficient for the jury to find that Blosch was not a third-party beneficiary of the Loan Agreement because the language of the Joint Check Letter unambiguously establishes Natixis and Borrower's intent to make Blosch a third-party beneficiary, and Natixis and Borrower had the right to modify the provision of the Loan Agreement prohibiting third-party beneficiaries. We have determined that the Joint Check Letter did not unambiguously establish Natixis and Borrower's intent to make Blosch a third-party beneficiary of the Loan Agreement. Therefore, because the Joint Check Letter is ambiguous as to the parties' intent, evidence that Natixis did not intend to make Blosch a third-party beneficiary of the Loan Agreement, if believed by the jury, would be sufficient to support the jury's verdict.
133 Here, the Loan Officer's testimony that he believed the Loan Agreement prohibited third-party beneficiaries, that he did not intend to modify the Loan Agreement by entering into the Joint Check Letter, that he drafted the Joint Check Letter to accommodate Borrower, and that he did nоt know that Borrower had asked for the Joint Check Letter to be drafted in order to facilitate a loan from Blosch, all tend to demonstrate that Natixis did not intend to make Blosch a third-party beneficiary of the Loan Agreement. Additionally, the Loan Officer's testimony that he believed Borrower could revoke the Joint Check Letter or otherwise direct the disbursement of funds notwithstanding the Joint Check Letter, can be understood to show that Natixis did not believe or intend the Joint Check Letter to create in Blosch an enforceable right to receive payment of the Escrowed Funds from Natixis once the terms of the Loan Agreement were satisfiеd. Based on this evidence regarding Natixis's intent, we do not believe that the evidence so clearly preponderates against the jury's verdict that reasonable people could not differ on the outcome of the case.
4
See Watts,
[34 Because we conclude that there was sufficient evidence for the jury to find that Natixis did not intend to make Blosch a third-party beneficiary of the Loan Agreement, we affirm the jury's verdict that Blosch was not a third-party beneficiary of the Loan Agreement.
IV. Any Error in the Jury Instruction Was Harmless.
135 Finally, Blosch argues that the trial court erred in instructing the jury on the effect of Natixis's assignment of the Loan Agreement. "To prevail on an appeal based on instructions to the jury, this court must find both that the instruction was inaccurate and that there is not a mere possibility, but a reasonable likelihood that the error
136 The challenged jury instruction (Instruction 15) reads, "Whether an assignment of a contract includes an assumption of liabilities depends on the terms of the assignment and the parties' intent." Blosch argues that Instruction 15 fails to instruct the jury that "an assignment does not relieve the assignor of duties and obligations unless otherwise stated" and that such an instruction is compelled by Winegar v. Froerer Corp.,
T37 Blosch recognizes that because the jury determined that he was not a third-party beneficiary of the Loan Agreement, it never reached the issue of whether Natixis's assignment of the Loan Agreement to another lender was a defense to Blosch's claims. Because the jury did not reach this issue, any error in Instruction 15 could not have affected the result with respect to the effect of the assignment. Blosch instead argues that he was prejudiced by errors in Instruction 15 because Natixis used the instruction in its closing argument "to mislead the jury to believe that, as a result of Natixis's purported sale and assignment of [the Loan Agreement], Natixis ceased to have any obligation to Blosch under the Joint Check Letter, such that Blosch was not a third party beneficiary of any agreement between Natixis and [Borrower]."
138 We do not agree that Natixis used Instruction 15 to mislead the jury. In its closing argument, Natixis arguеd that even if the jury found that Blosch had established the elements of his claim, the assignment of the Loan Agreement would nevertheless serve as a defense for Natixis against Blosch's claims. In its only specific reference to Instruction 15, Natixis argued only that the Loan Agreement "made it absolutely clear" that assignment of obligations was contemplated and that the assignee therefore had all the responsibilities and rights under the Loan Agreement. Nothing in these statements was misleading as to whether Blosch was a third-party beneficiary of the Loan Agreement, and Natixis did not argue that the jury could find that Blosch was not a third-party beneficiary as a result оf the assignment of the Loan Agreement. Under these circumstances, there is no reasonable likelihood that Natixis's argument, to the extent it was based on the allegedly erroneous jury instruction, affected the jury's verdict that Blosch was not a third-party beneficiary of an agreement. 5 See id. Because our confidence in the verdict is not undermined, we decline to reverse on this basis.
CONCLUSION
139 We have jurisdiction to hear this appeal because Blosch timely filed a rule 59 motion with the trial court, effectively tolling his time to appeal. Our review of the denial of Blosch's summary judgment motion is limited to the legal ruling that the Joint Check Letter was ambiguous, and wе determine that the trial court did not err in so ruling. Blosch has not demonstrated that the evidence was insufficient to sustain the jury's verdiet that he was not a third-party benefi-clary of the Loan Agreement. Nor has he demonstrated that there is a reasonable likelihood that any claimed error in the jury instructions affected the jury's verdict.
1 40 Affirmed.
Notes
. Blosch, Merrill, and O'Bagy are all parties to this appeal. However, the only issues raised on appeal relate to Blosch's purported rights as a third-party beneficiary of the agreement between Natixis and Borrower. Thus, we refer primarily to Blosch as the appellant throughout this opinion. Neither Borrowеr nor any entity owned or controlled by Borrower is a party to this action.
. Due to the voluminous record involving non-parties and transactions not relevant to the claims before this court, "[wle limit our discussion to only those background facts necessary to
. We note that Blosch frames these issues somewhat differently in his arguments to this court. However, our conclusion that the Joint Check Letter is vfacially ambiguous is dispositive of the challenges Blosch raises to the trial court's denial of his summary judgment motion.
. Blosch also argues that the Loan Officer's testimony that Natixis sold the Loan Agreement to another lender cannot support the jury's verdict that Blоsch was not a third-party beneficiary of the Loan Agreement. However, the jury never reached the issue of whether Natixis's assignment of the Loan Agreement to another lender was a defense to Blosch's claims, and the jury did not need to consider the Loan Officer's testimony on this point to determine that Blosch was not a third-party beneficiary of the Loan Agreement.
. Blosch also argues that the trial court erred by refusing to instruct the jury that "[the fact Natix-is sold [Borrower's] loan obligation to a third party is not a defense to any of Plaintiff's claims." However, for the same reasons explained previously, see supra ¶¶ 37-38, there is no likelihood that this refusal, even if erroneous, affected the jury's verdict.