UTAH RESOURCES INTERNATIONAL, INC., a Utah Corporation v. MARK TECHNOLOGIES CORPORATION and Kenneth G. Hansen
No. 20130131
Supreme Court of Utah
Dec. 23, 2014
2014 UT 60 | 342 P.3d 779
¶ 69 Although, the district court correctly recognized that courts should not employ a marketability discount with respect to a dissenter‘s interest, the court erroneously extended this principle to discounts on assets held by the company generally. The impermissible marketability discounts we referred to in Hogle were those minority discounts that apply at the shareholder level, not those that apply at an asset level. As we stated in Hogle, the reason we reject minority discounts is that “discounts at the shareholder level are inherently unfair to the minority shareholder.” 88
¶ 70 That is not the situation here. None of the appraisers discounted the Dissenters’ interest in URI based on their minority position. Rather, the appraisers discounted an asset held by URI. URI‘s lack of control over HHA affected each URI shareholder, majority and minority, on a pro rata basis. The Dissenters were not uniquely affected by the discount and so the discount was not “inherently unfair.”
Conclusion
¶ 71 We first hold that URI did not waive its right to appeal by partially paying the judgment against it. URI never fully satisfied the judgment and has expressly reserved its right to appeal throughout the proceedings. As to the merits of the case, we hold that the district court erred in its fair value determination. Specifically, the court erred in rejecting the challenged deductions by relying on inapplicable caselaw from other jurisdictions and by misconstruing the deductions as impermissible marketability deductions. Accordingly, we vacate the court‘s ruling and remand for proceedings consistent with this opinion.
Bruce J. Boehm, Salt Lake City, for appellees.
Chief Justice DURRANT authored the opinion of the Court, in which Associate Chief Justice NEHRING, Justice DURHAM, Justice PARRISH, and Justice LEE joined.
Chief Justice DURRANT, opinion of the Court:
Introduction
¶ 1 After the district court denied Utah Resources International, Inc.‘s (URI) amend
¶ 2 As we clarify in our opinion below, the district court did not abuse its discretion in refusing to abate interest under
Background
¶ 3 In June 2004, appellant URI conducted a share consolidation transaction. Appellees Mark Technologies Corporation (MTC) and Kenneth G. Hansen dissented (Dissenters).
¶ 4 In response, URI filed a motion with the district court under
¶ 5 Before the district court ruled on the motion, and in an effort to stave off the compounding interest, URI sent an email to the Dissenters, asking if they would be interested in entering into an alternative agreement. In the email, URI proposed to pay the Dissenters the full judgment amount, but with key stipulations that are now the center of this controversy: (1) that URI preserves its right to appeal, (2) that the payment stays the judgment, (3) that all liens are released, (4) that further interest on the judgment is waived, (5) that the Dissenters repay URI to the extent the judgments are altered on appeal, and (6) that the judgments be deemed satisfied and that a satisfaction of judgment be filed should the judgments be affirmed on appeal.
¶ 6 Before the Dissenters responded, the district court granted URI‘s motion to stay, provided that it deposit the principal amount plus three years’ worth of interest. The motion was granted without prejudice to URI‘s right to pay the judgment in lieu of or subsequent to the deposit. Thereafter, Mr. Hansen informed URI that he would not agree to URI‘s proposed payment stipulations, and MTC proposed a few changes to the agreement, including that interest continue to accrue at five percent during the appeal. In the end, the parties did not enter into any agreement.
¶ 7 A week after the court approved its initial stay request, URI filed its Amended Motion, seeking two changes to its original motion. First, it sought permission to depos
¶ 8 At the suggestion of the district court, URI paid part of the judgments in the amounts of $750,000 to MTC and $185,000 to Mr. Hansen. In the letter delivering the payment, URI stated that it did not intend to waive its current appeal and that it was paying only to abate interest and reduce the threat of postjudgment enforcement proceedings. The Dissenters accepted the payments and filed partial satisfactions of judgment.
¶ 9 On January 17, 2013, the Dissenters obtained a supplemental order directing URI to appear for a debtor‘s examination. On January 25, URI filed a motion with the district court to vacate that order, which was denied. On the same day, URI filed a new motion to stay execution directly with this court under
¶ 10 In April 2013, URI informed the Dissenters that it had placed the remaining amount of the judgment, with interest, in a single bank account. URI stated that it placed the money in a single account in hopes of forestalling the Dissenters’ enforcement efforts. As of today‘s date, the Dissenters have not collected the money. We have jurisdiction pursuant to
Standard of Review
¶ 11 URI brings its challenge under
Analysis
¶ 12 URI challenges two interrelated aspects of the district court‘s ruling below: (1) its failure to grant a stay under URI‘s desired conditions and (2) its failure to abate interest as of June 11, 2012—the date on which URI claims it properly tendered payment of the judgment. At bottom, however, URI is merely challenging the district court‘s refusal to approve a lesser amount of security by abating interest, since the court already approved URI‘s previous request for a stay conditioned on a deposit of the presumptive statutory security amount.
¶ 13 As explained below, the district court did not err in declining to abate interest, and it was correct in ruling that it lacked authority to abate interest under rule 62. Furthermore, we do not review URI‘s rule 60(b) challenge, since URI never filed a rule 60(b) motion in the district court. To properly obtain review of the abatement of interest
I. The District Court Properly Declined to Abate Interest and Grant an Alternative Stay Request
¶ 14 As we explain below, it was not error for the district court to refuse to abate interest under rules 62 and 60(b), since district courts do not have authority to do so under rule 62, and because URI never requested relief in the district court under rule 60(b). Furthermore, we clarify that a party‘s request to abate interest is properly done under rule 58B by seeking a satisfaction of the judgment.
A. A Party May Both Apply for a Stay Under Rule 8 and Appeal From a District Court‘s Order Denying Its Request for a Stay Under Rule 62
¶ 15 Under
¶ 16 Additionally, the judgment debtor may challenge the district court‘s denial of his request for a stay under rule 62 by separately appealing from the order. The Dissenters argue that this is a nonappealable order, and that this court therefore lacks jurisdiction to hear the appeal. In support of this position, they cite to McVinnie v. University of Utah Hospital, a court of appeals case, wherein the court ruled that it was improper to appeal from a denial of a motion to stay.6 But apart from this case, the Dissenters do not cite, and we do not find, any authority in our caselaw or rules that would preclude a judgment debtor from appealing from such an order. Quite the contrary,
¶ 17 The effect of a party‘s appeal from an order under rule 62 is also different in kind than an application for a stay under rule 8. For instance, our expedited review under rule 8 is limited to the facts of the case and whether a stay is warranted; we neither defer to the district court, nor do we correct errors in the district court‘s ruling. By contrast, a party may challenge the district court‘s order under rule 62 in a separate appeal, at which time we will review the district court‘s order for an abuse of discretion and correct any errors in the district court‘s judgment, including misinterpretations or misapplications of the governing rules. Here, URI‘s only opportunity to challenge the district court‘s interpretation of its authority under rule 62 was in filing an ap
B. The District Court Lacked Authority to Abate Interest Under Rule 62
¶ 18
¶ 19 Unless the parties stipulate to waive the bond requirement, district court judges must apply one of the forms of security prescribed by the rule. And regardless of the specific form in which the security is given, the security must be “in an amount that adequately protects the judgment creditor against loss or damage occasioned by the appeal.” 12 The rule then provides several factors to consider in setting this amount, but goes on to note that, despite these factors, “the presumptive amount of a bond for compensatory damages is the amount of the compensatory damages plus costs and attorney fees, as applicable, plus 3 years of interest at the applicable interest rate.”13 Here, the applicable interest rate was set by statute at ten percent, compounded annually.14
¶ 20 The rule does permit district courts to approve a bond amount that is less than the judgment or even the presumptive amount described above. In fact, one of the factors the court may consider in setting the amount of security is “the respective harm to the parties from setting a higher or lower amount.” 15 Furthermore, the rule provides that “[i]f the court permits a bond that is less than the presumptive amount of compensatory damages, the court may also enter such orders as are necessary to protect the judgment creditor during the appeal.”16 But even though the rule permits district courts to approve a lesser amount of security, their decision to do so is entirely dependent on whether that amount would “adequately protect[] the judgment creditor against loss or damage occasioned by the appeal.”17 Absent an order protecting the judgment creditor in some additional way, an amount of security that excludes interest will not adequately protect the judgment creditor against losses during the pendency of the appeal.
¶ 21 Here, URI contends that it does not challenge the amount of the security required by the court, but rather challenges the fact that “the district court passed on the question” of the revised security request following its alleged tender of payment. We conclude that the district court did not err, since rule 62 prevented the court from approving URI‘s request. As shown above, the district court was required under rule 62 to approve an amount of security that would protect the Dissenters during the pendency of the appeal. Having failed to properly tender payment of the judgment, as discussed below,18 interest continued to accrue from the effective date of the corporate action, and the district court lacked the authority under rule 62 to abate interest from
C. Rule 60(b) Is an Improper Route to Seek Abatement of Interest, and URI Never Properly Raised a Request Under Rule 60(b) Regardless
¶ 22 On appeal, URI also argues that the district court erred in not abating interest under rule 60(b) of the Utah Rules of Civil Procedure. As discussed below, URI never made a proper request under rule 60(b), and district courts do not have authority to abate interest under rule 60(b) even if URI had properly captioned its request. We accordingly reject URI‘s argument and affirm the district court‘s refusal to rule on the abatement of interest issue on this argument as well.
1. URI‘s Motion Was Not a Rule 60(b) Motion
¶ 23 To begin, URI argues that the second request in its Amended Motion (its request to abate interest) was essentially a request under rule 60(b)(5)—that it was “no longer equitable that the judgment should have prospective application.” But we cannot review URI‘s request under rule 60(b) because URI in no way argued for relief under rule 60(b) before the district court.
¶ 24 When a postjudgment motion does not properly reference the appropriate rule, we have repudiated the practice of rescuing such motions by construing them in accordance with our rules of procedure. In Workers Compensation Fund v. Argonaut Insurance Co., 2011 UT 61, ¶ 1, 266 P.3d 792, the appellant had filed an “objection to judgment” with the district court and on appeal argued that the motion should be construed as either a rule 59 motion or a rule 60(b) motion.19 We declined to do so and noted that “the form of a rule 60(b) motion does matter and attorneys requesting relief under rule 60(b) should notify the court that they are seeking relief under that rule.”20 Failing to cite the proper rule places the burden of research and argument on the court and also prejudices the opposing party by making it more difficult to respond to the motion.21 Further, the rules “are designed to provide a pattern of regularity of procedure which the parties and the courts can follow and rely upon.”22 Allowing parties to change the form of their motions on appeal invites exactly the kind of confusion our rules were designed to avoid.
¶ 25 URI attempts to distinguish our decision in Argonaut by contrasting it with our more recent decision in In re Discipline of Rasmussen.23 In Rasmussen, we held that a district court may entertain a rule 60(b) motion not expressly argued as such. We distinguished Argonaut by noting that there is a difference between a “district court‘s denial of a motion for failure to identify its essential basis” and “a decision granting a motion that we now deem properly presented.”24 Because the district court could have viewed the request as a motion under rule 60(b) and chose to grant it, we affirmed the decision. This stands in direct contrast with Argonaut, where the district court denied the motion. In summary, a district court may consider a motion under rule 60(b) even if the movant does not argue it as such, but the movant cannot, on appeal, recharacterize a motion as a rule 60(b) motion when it was never considered as such below.
¶ 26 The situation in this case is governed by Argonaut. URI never cited rule 60; rather, it raised both of its requests (for a stay and to abate interest) under rule 62, citing only to rule 62. The district court denied the motion and as in Argonaut, the court did not err in failing to construe the
2. Rule 60(b) Does Not Give District Courts Authority to Abate Interest
¶ 27 Even if we were to review URI‘s request as a rule 60(b) motion, the rule does not give district courts authority to abate interest. URI argues that it requested relief under
[T]he court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding [if] ... the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.25
There is no dispute that a denial of a postjudgment motion under rule 60(b)(5) is a final order, so the only real question is whether it was “no longer equitable that the judgment should have prospective application.” This raises two sub-issues: (1) which situations favor invoking a court‘s power of equity and (2) whether a party is challenging the “prospective” effect of a judgment or is seeking to alter the terms of a judgment that is remedial in nature. URI argues that the district court should have abated interest under this rule, since it would have been inequitable to continue to compound interest after the Dissenters refused tender of payment. We disagree, since this rule does not give district courts authority to abate interest.
¶ 28 To begin, the court‘s power of equity is only to be applied under the rule when highly significant changes alter the landscape of a judgment—for instance, “subsequent legislation, a change in the decisional law, or a change in the operative facts.”26 And “the burden will be high on those seeking relief on this ground as they must demonstrate extraordinary circumstances justifying relief.”27
¶ 29 Next, rule 60(b)(5) “applies to any judgment that has prospective effect” but does not apply where a party seeks to alter a judgment that remedies a past wrong.28 In other words, aggrieved parties cannot seek relief under 60(b)(5) from a term of the judgment that addresses past action—it “does not allow relitigation of issues that have been resolved by the judgment. Instead, it refers to some change in conditions that makes continued enforcement inequitable.”29 And in determining what a “prospective” effect of a judgment is, many circuit courts have held that a “judgment operates prospectively if it requires a court to supervise changing conduct or conditions that are provisional or tentative.”30 The vast majority of these
¶ 30 URI‘s request here does not qualify under either inquiry. First, URI is seeking to alter a judgment that is remedial in nature; the judgment here does not have prospective application and will terminate immediately upon satisfaction. “Interest” is a specifically defined term under the statute, and prevailing parties are afforded interest by law until the judgment is satisfied. URI attempts to characterize the issue of interest differently, but interest is not a “prospective” effect of a judgment as contemplated by rule 60(b)(5). District courts do not need to supervise the assessment of interest, nor is it a tentative or provisional condition of the judgment. Rather, the statute mandating the payment of ten percent compounding interest is remedial in nature, protecting shareholders who have not been paid the fair value of their respective shares. Because the relief URI seeks cannot be granted under rule 60(b)(5), the district court did not err in denying URI‘s request to abate interest.
D. A Satisfaction of Judgment Under Rule 58B Is Required in Order to Abate Interest
¶ 31 Instead of seeking to abate interest under rules 62 and 60(b), parties may end the accrual of interest by satisfying the judgment under rule 58B of the Utah Rules of Civil Procedure. Because URI failed to seek this relief, the district court did not err in passing on the abatement of interest question. Furthermore, since URI failed to even properly “tender” payment of the judgment, interest never abated in this case.
¶ 32 We have ruled previously that “[a]n appeal does not stop the running of interest. To obtain such a result, the obligor must make a tender that is rejected by the obligee.”33 This rule raises two questions that our caselaw has yet to clarify: (1) the procedure by which an obligor may seek to abate interest and (2) what constitutes a valid “tender” that would serve to abate interest.
¶ 33 First, a party may seek to validate its purported tender in order to abate interest on the judgment under rule 58B either “by acknowledgement or order.”34 If a judgment debtor offers a “full satisfaction of the judgment,” the judgment creditor must, “[w]ithin 28 days,” “file an acknowledgment of satisfaction in the court in which the judgment was entered.”35 If the judgment creditor fails to do so, the judgment debtor may file a motion with the district court and, with “satisfactory proof,” the court may “enter an order declaring the judgment satisfied.”36 Once obtained, the order serves to “discharge[] the judgment, and the judgment ceases to be a lien as to the debtors named and to the extent of the amount paid.”37 The “satisfactory proof” necessary for the court to enter such an order may include proof of acceptance of payment or, in the case where payment is refused, it may include proof that the judgment debtor validly tendered payment. In either case, interest will abate as of the date of the tender of the payment, as long as the tender is valid and not “[a] mere offer to pay.”38
¶ 34 This brings us to the second question of what constitutes a valid tender. As we acknowledged in Fitzgerald v. Corbett, valid tender must be “(1) timely, (2) made to the person entitled to payment, (3) unconditional, (4) an offer to pay the amount of money due, and (5) coupled with an actual production of
¶ 35 We conclude, and agree with the Dissenters, that there was no “actual production” of money in this case. A party may be excused from extending actual payment of a judgment if it is obvious that the other party would reject it. As URI notes, “[a]n exception to the general requirements of a valid tender arises where it is plain and clear that a tender, if made, would be an idle ceremony and of no avail.”40 But this argument cannot be made where the party attempting to invoke the exception has never made an offer of payment to begin with—there must be evidence that the debtor would actually make payment but for the creditor‘s refusal to accept it.
¶ 36 To illustrate, in Zion‘s Properties, Inc. v. Holt, a buyer missed the deadline for the final payment on a piece of property, thus forfeiting the property under contract.41 The buyer argued that it tendered payment before the deadline, but we concluded that it just “discussed with the defendants the prospect that payment would be made [under] certain conditions.”42 We did not address what the conditions were, but found that the gesture was not a valid offer.43
¶ 37 URI‘s communication with the Dissenters (May 31 email) resembles the situation in Zion‘s Properties. It stated:
Aside from the appraiser fees, we have also been exploring the possibility of simply paying your clients the current judgment amounts, rather than depositing the money with the court, in order to abate the continued accrual of compound interest while still preserving URI‘s appellate rights. We think the simplest and most straightforward way to do this would be to enter into a stipulation providing that the judgments are stayed indefinitely and any liens are released, that further interest on the judgments is waived, that your clients would be required to repay URI to the extent the judgments are later reduced or reversed on appeal, and that, in the event they are ultimately affirmed, the judgments would be deemed fully satisfied by this payment and a satisfaction of judgment would be filed.
Would you please let me know as soon as possible if your clients would consider such an arrangement? If so we will begin drafting a proposed stipulation.
The Dissenters’ reaction to this email was mixed. On June 11, Mr. Hansen rejected URI‘s proposal, while MTC countered with other stipulations.
¶ 38 The language used in this email evidences the lack of any definitive offer, since the parties appear to be engaging in negotiations for how payment—if ever—would be made. Stated otherwise, there was nothing for the Dissenters to “accept” because the proposed stipulation had not even been drafted at that point. URI‘s suggestions here are not definitive enough to be considered a tender of payment.
¶ 39 The parties also dispute whether URI‘s purported tender was unconditional. In conjunction with its email, URI proposed that the parties stipulate to the following: (1) URI‘s appellate rights would be preserved, (2) the judgments would be stayed, (3) all liens would be released, (4) future interest would be waived, (5) the Dissenters would repay the judgment in case of reversal, and (6) payment would be deemed fully satisfied if affirmed. But we have no need to address whether these conditions rendered URI‘s purported tender conditional because URI never made an actual production of money, which independently invalidates the purported tender.
Conclusion
¶ 41 The district court did not err in refusing to rule on the abatement of interest issue under rules 62 and 60(b), since district courts are not empowered to abate interest under these rules. Instead, URI could have abated interest by tendering payment and then seeking a satisfaction of judgment under rule 58B. Because URI failed to both submit a valid tender and seek a satisfaction of judgment, it was not error for the district court to refuse to rule on the abatement of interest issue. We accordingly affirm the judgment of the district court.