author: JACKSON, Presiding Judge: BILLINGS, Associate P.J. BENCH, Judge

text:
    2002 UT App 251
    Joseph MECHAM, Plaintiff and Appellant, v. CONSOLIDATED OIL & TRANSPORTATION, INC., a Colorado corporation; and Chase Manhattan Bank, a New York corporation, Defendants and Appellees.
    No. 20010041-CA.
    Court of Appeals of Utah.
    July 26, 2002.

      Wayne A. Freestone, Parker, Freestone & Angerhofer, PC, Sandy, for Appellant.
    Clark B. Alired and Clark A. McClelian, McKeachnie, Allred, McClellan & Trotter, Roosevelt, and Barbara L. Maw, Salt Lake City, for Appellees.
    Before Judges JACKSON, P.J., BILLINGS, Associate P.J., and BENCH, J.
   OPINION

JACKSON, Presiding Judge:

INTRODUCTION

T1 Appellant Joseph Mecham (Mecham) appeals the district court's grant of summary judgment to Chase Manhattan Bank (Chase), a lender and secured creditor of Landmark Petroleum, Inc. (Borrower). He also appeals the district court's Order that dismissed his claims against a Colorado corporation, Consolidated Oil & Transportation, Inc. (Consolidated), whom Mecham alleges was the owner, co-owner, operator or co-operator of equipment or property on which he was injured.

1 2 Judges Jackson and Billings affirm the district court's grant of summary judgment in favor of Chase. We unanimously affirm the conclusion that the district court could not exercise general jurisdiction over Consgol-idated. Judges Billings and Bench reverse the district court's conclusion that it could not exercise specific jurisdiction over Consgol-idated, with Judge Jackson dissenting in seetion II(B) of the main opinion.

BACKGROUND

T3 In 1994 and 1995, Mecham was employed by Adler Hot Oil Service (Adler) as a hot oil truck driver. In September of 1994 and February of 1995, Shirley Hebert, on behalf of Consolidated, telephoned Adler, contracting on each occasion with Adler for the performance of hot oil services. Mec-ham was injured while performing the February contract. He brought a suit for, inter alia, negligence against Consolidated and Borrower. Mecham describes both companies as owners, co-owners, operators, or cooperators "of certain portions of land[,] petroleum products[, or] storage tanks on which the incident causing [Mecham's] injuries occurred." He also sued Chase, a secured creditor of Borrower, alleging that Chase exercised sufficient control over Borrower as to be considered its principal, and was thus responsible for Borrower's actions.

14 In 1994, Chase and Borrower agreed that the refinery where Mecham was injured should be closed, and that Borrower's assets would either be sold or maintained for later disposal. They also agreed to the use of two bank accounts-one for the proceeds of the sale of assets, and one to serve as an expense account for the sale and maintenance of Borrower's assets. Chase had exclusive access to the sales proceeds account. Chase insisted that the plant manager, Richard Means, an employee of the refinery, continue to be employed at the refinery to maintain the assets pending their disposal. He was to be paid out of the expense account.

15 Also, Chase was required to be informed of any sale greater than $250,000 and had the right to object to that sale. If Chase objected, Chase's accounting department would resolve the dispute. In addition, Borrower was required to have monthly meetings with Chase to discuss projected expenses. Chase had the power to approve or disapprove of expenses greater than $2,500. If a disagreement arose, then the average of the previous two months' expenses was used.

T6 The district court granted summary judgment to Chase, concluding that Chase was not a principal of Borrower. It also granted Consolidated's motion to dismiss, concluding that it could exercise neither general nor specific personal jurisdiction over Consolidated. Mecham appeals both the grant of summary judgment and the grant of Consolidated's motion to dismiss.

ISSUES AND STANDARDS OF REVIEW

17 Mecham first appeals the district court's grant of summary judgment to Chase pursuant to Rule 56 of the Utah Rules of Civil Procedure. "Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law." Jones v. ERA Brokers Consol., 2000 UT 61,-¶ 8, 6 P.3d 1129; see also Utah R. Civ. P. b6(c). "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." K & T, Inc. v. Koroulis, 888 P.2d 623, 627 (Utah 1994). " * "We determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact." *" Berenda v. Langford, 914 P.2d 45, 50 (Utah 1996) (citations omitted).

18 Mecham challenges the district court's determination that no agency relationship existed between Chase and Borrower. He argues that "the trial court err[ed] in finding that there was no genuine issue of material fact as to whether [Chase] was a principal/agent of [Borrower] and that [Chase] was entitled to judgment as a matter of law." Other than this ultimate determination regarding the existence of an agency relationship, Mecham does not allege that any issues of material fact are in dispute. Normally "the question of whether an agency relationship exists is one of fact, which we review for an abuse of discretion." Valcarce v. Fitzgerald, 961 P.2d 305, 314 (Utah 1998). However, "[wlhere the evidence as to the agent's authority is undisputed, or different reasonable logical inferences may not be drawn therefrom, [this] question is one of law." 8 Am.Jur.2d Agency § 373, at 891-92 (2000). The underlying evidence as to whether Borrower was Chase's agent is undisputed. Thus, the district court's determination that no agency relationship existed is a legal conclusion, which we review for correctness. See id. Accordingly, because Mecham disputes no issues of material fact, we conclude that the district court "correctly held that there were no disputed issues of material fact," and "[wle. determine only whether the trial court erred in applying the governing law" to its agency determination. Berenda, 914 P.2d at 50 (quotations and citations omitted).

19 Next, Mecham appeals the district court's Order, which dismissed his claims against Consolidated. Mecham challenges the district court's conclusions that it could exercise neither general nor specific personal jurisdiction over Consolidated. Because the "pretrial jurisdictional decision [was] made on documentary evidence only, [this] appeal from that decision presents only legal questions that are reviewed for correctness." Arguello v. Indus. Woodworking Mach. Co., 838 P.2d 1120, 1121 (Utah 1992).

ANALYSIS

I. Appeal of Summary Judgment to Chase

10 In his memorandum in opposition to Chase's Motion for Summary Judgment, and on appeal, Mecham cites section 14(0) of the Restatement (Second) of Agency to support his theory that Chase became Borrower's principal, and is thus liable for Borrower's negligent acts. This section of the Restatement provides, "A creditor who assumes control of his debtor's business for the mutual benefit of himself and his debtor, may become a principal, with liability for the acts and transactions -of the debtor in connection with the business." Id. Because a secured creditor may become its debtor's principal "either in person or through an agent," under this section, Restatement (Second) of Agency § 14(0) emt. a, Mecham argued below that Chase became Borrower's principal both in person and through Means, whom Mecham alleges is Chase's agent. He thus argued that Chase is responsible for his injuries, which he alleges are the result of Borrower's negligence.

{11 However, the district court rejected Mecham's agency argument, concluding that no agency relationship existed between Chase and Borrower because (1) Means was not Chase's agent, so "having Means on-site to oversee the sale did not establish an agency relationship unless Chase exercised some actual control," which it "did not," and (2) it "did not find anything unusual about Chase's position [as a lender or secured creditor]," and "that the actions of Chase were appropriate and did not exceed its position as lienbolder." It further reasoned that there were "no allegation[s] or evidence that Chase took part in any management of the company or had any input as to how the sale of assets was performed." Mecham challenges both conclusions.

A. Chase's Relationship with Means

112 Because we affirm the district court's conclusion that Means was not Chase's agent, we need not address Mee-ham's argument under Restatement (Second) of Agency § 14(0), that Chase's relationship with Means created an agency relationship between Chase and Borrower.

T18 In support of his argument that Means became Chase's agent, Mecham correctly asserts that "[algency is 'the fidu-clary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act' " Wardley Corp. v. Welsh, 962 P.2d 86, 89 (Utah Ct.App.1998) (citation omitted). However,

for [Mecham] to show [Means] was [Chase's] agent, he must [thus] prove that (1) [Chase] manifested that [Means] could act for [it], (2) [Means] accepted the proposed undertaking, and (8) both [Chase] and [Means] understood that [Chase] was to be in charge of the undertaking. In other words, "an agency is created and authority is actually conferred very much as a contract is made": a meeting of the minds must exist between the parties. Moreover, and critical in this case, "(aln agency relationship can arise only at the will and by the act of the principal."

Id. (last alteration in original) (citations omitted). As a result, "[these principles doom [Mecham's] arguments." Id. To meet his burden, Mecham alleges only that (1) Chase insisted that Means remain employed at the refinery to manage the maintenance of Borrower's assets, and (2) Means's salary was paid out of the approved monthly expenses. We do not agree that these two facts alone are sufficient to establish the necessary three criteria. Accordingly, this argument fails, and the district court correctly concluded that Means was not Chase's agent. As a result, we address Mecham's remaining argument that Chase effectively took over the management of Borrower in person.

B. Chase's Relationship with Borrower

11 14 Mecham offers little, if any, legal analysis to support his challenge to the trial court's conclusion that Chase could not be said to have taken over the management of Borrower and was not Borrower's principal. Mecham's legal argument is based solely on the Restatement (Second) of Agency § 14(0) and two cases that apply this section of the Restatement to dissimilar cireumstances. Moreover, he states the following facts as evidence that Chase exercised the necessary degree of control over Borrower, but he fails to apply any law or meaningful analysis to them: (1) Chase was authorized to agree or disagree over monthly expenses of preserving the assets-if a disagreement occurred, the average of the two previous months' expenses was used; (2) Chase had the power to agree or disagree over the sale of the secured assets-if a dispute arose, it was settled by Chase's accounting department; (8) Chase needed to approve any sale of assets greater than $250,000; and (4) Chase eventually became a shareholder of Borrower.

¶15 Mecham's brief contains virtually no legal analysis regarding this argument. His reliance on Restatement (Second) of Agency § 14(0), is essentially an argument for lender liability. See Peoples Fed. Sav. & Loan Ass'n v. Myrtle Beach Golf & Yacht Club, 810 S.C. 182, 425 S.E.2d 764, 773 (Ct.App.1992) ("The Restatement (Second) of Agency § 14(0) (1958) supports the concept of lender liability under the agency theory where the lender takes control of its borrower."); Frances E. Freund, Note, Lender Liability: A Survey of Common-Law Theories, 42 Vand. L.Rev. 855, 856-867 & n. 75 (1989); see generally, J. Dennis Hynes, Lender Liability: The Dilemma of the Controlling Creditor, 58 Tenn. L.Rev. 685 (Summer 1991) (analyzing the Restatement (Second) of Agency § 14(0) (1958)).

116 We know of no jurisdiction that has applied lender liability in a personal injury setting, as Mecham attempts here. CJ 4-37 Joseph D. Zamore, Business Torts §§ 37.01, 37.08 (Matthew Bender 2001) (explaining various settings under which lender liability has been applied); Freund, 42 Vand. LRev. at 856-867 & n. 75 (same); Hynes, 58 Tenn. L.Rev. 635 (same); Restatement (Second) of Agency § 14(0) (stating lender liability may apply to "liability for the acts and transactions of the debtor in connection with the business" (emphasis added)); Restatement (Second) of Agency § 14(0) emt. a (stating when a creditor "takes over the management of the debtor's business ... and directs what contracts may or may not be made, he becomes a principal, liable as any principal for the obligations incurred thereafter in the normal course of business by the debtor who has now become his general agent." (Emphasis added)). We decline to do so today. Indeed, we need not address this issue because even if we held that lender lability could be applied in this manner, Mecham's negligence argument based on lender liability fails on the merits.

117 In DeBry v. Valley Mortgage Co., 835 P.2d 1000, 1006 (Utah Ct.App.1992), we set forth the principles under which a lender liability argument for negligence may succeed in Utah. "[Llender liability for neg ligence to a party not in privity, will not attach unless there are unusual circumstances that exceed normal lending operations. A lending institution which acts in the normal manner in carrying out its lending activities owes no duty to unrelated parties." Id. Mecham does not allege that any of the facts he listed constitute "unusual cireum-stances that exceed[ed] normal lending operations." Id. Nor does he provide any legal analysis that would support such an assertion. Mecham "argues that if Chase had the power to approve or disapprove of the monthly expenses, it necessarily had control of the day to day operations." However, he provides no legal support for this conclusion. Further, his assertion that because of the above-listed facts "Chase had complete control over the refinery," is not an issue of fact, but "is actually a conclusion, which we may disregard." Id. at 1007. Thus, we cannot say that the district court erred in concluding that Chase did not exercise such a large degree of control as to establish a principal-agent relationship. Accordingly, we affirm the district court's grant of summary judgment to Chase.

II. District Court's Grant of Consolidated's Motion to Dismiss

A. General Jurisdiction

118 We next address Mecham's challenge to the district court's conclusions that it could not exercise either general or specific personal jurisdiction over Consolidated, a Colorado corporation. We first discuss general jurisdiction. Our supreme court has stated that "[flor [general] jurisdiction to exist, the defendant must be conducting substantial and continuous local activity in the forum state." Arguello v. Indus. Woodworking Mach. Co., 838 P.2d 1120, 1122 (Utah 1992). To meet this requirement, Mecham alleges that (1) Consolidated engages in "occasional telephone calls and electronic communications to transact spot purchases of product that is then shipped out of Utah," and (2) it maintains an informational website that requests visitors to contact it. We need not address whether maintenance of a website sufficiently meets the requirement of "substantial and continuous local activity in the forum state," Id. at 1122, because Mec-ham does not allege that Consolidated had any contact with Utah through use of the website. Thus, we only consider whether occasional telephone calls, electronic communications, and spot purchases are sufficient to confer general jurisdiction upon a Utah district court.

1 19 We do not agree that "occasional telephone calls and electronic communications to transact spot purchases" constitute substantial and continuous contact such that it would be reasonable "for [Consolidated] to be expected to be '[haled] into court' in Utah." Buddensick v. Stateline Hotel, Inc., 972 P.2d 928, 931 (Utah Ct.App.1998) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 LEd.2d 490 (1980). Thus, the district court correctly concluded that it did not have general jurisdiction over Consolidated.

B. Specific Jurisdiction

120 I respectfully dissent from my colleagues regarding specific jurisdiction, and would affirm the district court's conclusion that it could not exercise specific jurisdiction over Consolidated.

Under Utah law, a three-part inquiry is used to determine specific personal jurisdiction: "(1) the defendant's acts or contacts must implicate Utah under the Utah long-arm statute;[] (2) a 'nexus' must exist between the plaintiff's claims and the defendant's acts or contacts; and (8) application of the Utah long-arm statute must satisfy the requirements of federal due process."

Phone Directories Co. v. Henderson, 2000 UT 64, ¶ 12, 8 P.3d 256 (citation omitted). Neither party argues that Consolidated's " 'acts or contacts' " fail to " '"implicate[ ] Utah under the Utah long-arm statute" " Id. (citation omitted). Thus, I address the "nexus" prong.

1 21 Mecham challenges the district court's conclusion that "(there is not a sufficient nexus between the injury and the contacts of [Consolidated] in the state of Utah to give the court jurisdiction." He argues there is a sufficient nexus between his negligence claim and Consolidated's acts or contacts because he "was infured when he was performing the contract.... Thus, the injury arose out of the contract." However, to establish the required nexus, he must show that Consolidated's contacts with Utah, in this case a contract, was the basis for his negligence claim. See Arguello, 838 P.2d at 1128. Because his injury arises from negligence occurring while a contract was being performed, his injury cannot be said to have arisen out of the contract. Thus, I would conclude that there is no nexus between Mecham's negligence claims and Consolidated's acts or contacts with Utah. See Henderson, 2000 UT 64 at ¶ 12, 8 P.3d 256; Arguello, 888 P.2d at 1123. Accordingly, I believe the district court correctly concluded that it could not exercise personal jurisdiction over Consolidated, and would affirm its Order dismissing Consolidated.

CONCLUSION

122 The trial court correctly concluded that Chase had not become Borrower's principal and that it does not have general jurisdiction over Consolidated. However, for the reasons set forth in my colleagues' separate opinion below, the trial court's conclusion that it could not exercise specific jurisdiction over Consolidated is reversed and its Order dismissing Consolidated is also reversed.

BILLINGS, Associate P.J.

"[ 23 I concur in the main opinion, except as to section II(B). I concur in Judge BENCH'S separate opinion as to the issue of specific jurisdiction.

BENCH, Judge

(concurring in part and dissenting in part):

$24 I concur in the conclusion that Consolidated has not conducted substantial and continuous activity in Utah so as to expose itself to general jurisdiction in this state. I disagree, however, with the lead opinion's analysis of specific jurisdiction. If our long-arm statute applies, and the lead opinion concedes that it does, then the nexus is certainly there. As explained in the lead opinion, Consolidated called Mecham's employer in Utah and contracted for the performance of hot oil services. While performing those services, Mecham was injured in Colorado. The nexus of the injury to the contact with the forum state is therefore quite clear. See Phone Directories Co. v. Henderson, 2000 UT 64,¶ 12, 8 P.3d 256.

125 Because of the nature of Consolidated's contacts with Utah, this case differs from the case relied on by the lead opinion, Arguello v. Industrial Woodworking Mach. Co., 838 P.2d 1120 (Utah 1992). In Arguello, the defendant's contacts with Utah were "sales or advertisements." Id. at 1128. The supreme court determined that Arguello's injury did not arise out of the defendant's contacts with Utah, because the defendant's representative only advised Arguello's employer on how the machine that caused Ar-guello's injury could be fixed to operate more safely and efficiently. See id. The defendant's representative "did not undertake to make any changes or repairs to the machine," which resulted in Arguello's injury. Id. By comparison, Consolidated's contacts with Utah are based on a contract with a Utah corporation to perform services in Colorado, and Mecham was injured while performing the essential terms of the contract. Therefore, Mecham's claim arose out of Consolidated's contacts with this state, and a Utah court may properly exercise specific jurisdiction over Consolidated.

T26 I believe the majority has erred in affirming the trial court's grant of summary judgment to Chase Manhattan Bank, who did not even bother to file a brief in this appeal. A genuine issue of fact exists as to whether Chase's relationship with Landmark Petroleum was more than that of a mere lender. I do not believe, therefore, that the issue of agency can be appropriately resolved on summary judgment. See Valcarce v. Fitzgerald, 961 P.2d 805, 314 (Utah 1998) (stating that "the question of whether an agency relationship exists is one of fact").

      . Other than these contracts, Consolidated's contacts with Utah are completely comprised of (1) "occasional telephone calls and electronic communications to transact spot purchases of product that is then shipped out of Utah," and (2) any potential contact arising out of its informational website, which requests visitors to contact Consolidated.

      . The comment accompanying section 14(0) states: '
      A security holder who merely exercises a veto power over the business acts of his debtor by preventing purchases or sales above specified amounts does not thereby become a principal. However, if he takes over the management of the debtor's business either in person or through an agent, and directs what contracts may or may not be made, he becomes a principal, liable as any principal for the obligations incurred thereafter in the normal course of business by the debtor who has now become his general agent. The point at which the creditor becomes a principal is that at which he assumes de facto control over the conduct of his debtor, whatever the terms of the formal contract with his debtor may be.
      Restatement (Second) of Agency § 14(0) emt. a (1958).

      . See Plymouth Rock Fuel Corp. v. Leucadia, Inc., 100 A.D.2d 842, 474 NY.S.2d 79 (1984) (citing Restatement (Second) of Agency § 14(0) and holding mortgagee liable on contractual claims against mortgagor because mortgagee exercised the necessary degree of control to become mortgagor's principal); Save Way Oil Company v. Mehlman, 115 A.D.2d 721, 496 NY.S.2d 537 (1985) (relying on Restatement (Second) of Agency § 14(0) to hold there was a material issue of fact as to whether mortgagee became liable on contractual claims against mortgagor).

      . Thus, we analyze Mecham's argument under DeBry, and need not address the applicability of the Restatement (Second) of Agency § 14(0).

      . Moreover, comment A to the Restatement (Second) of Agency § 14(0), which Mecham cites for legal support, appears to contradict his assertion that facts he lists to demonstrate the necessary degree of control amount to establishing a principal-agent relationship: "A security holder who merely exercises a velo power over the business acts of his debtor by preventing purchases or sales above specified amounts does not thereby become a principal." Restatement (Second) of Agency § 14(0) emt. a.

      . See also 4-37 Joseph D. Zamore, Business Torts §§ 37.02[3] (Maithew Bender 2001) (explaining what factors courts have considered to determine if a lender's control is excessive).

      . We note that prior to the district court's ruling, counsel for Mecham stated, "I can flip on my computer, pull up a site. Everybody in Utah can pull up a site on their computer from Consolidated.... Now-but that in and of itself is not enough. Just pulling up the site that's not a presence in Utah because that would be similar to just an advertisement." However, the only Internet contact Mecham alleges that Consolidated had with Utah appears unrelated to Consolidated's website.

      . In Buddensick, the court considered whether the corporate defendant is: (1) engaged in business in this state; (2) licensed to do business in this state; (3) owning, leasing, or controlling property (real or personal) or assets in this state; (4) maintaining employees, offices, agents, or bank accounts in this state; (5) present in that shareholders reside in this state; (6) maintaining phone or fax listings within this state; (7) advertising or soliciting business in this state; (8) traveling to this state by way of salespersons, etc.; (9) paying taxes in this state; (10) visiting potential customers in this state; (11) recruiting employees in this state; and (12) generating a substantial percentage of its national sales through revenue generated from in-state customers.
      Nga Tuyet Thi Ho v. Jim's Enters. Inc., 2001 UT 63, ¶ 8 n. 7, 29 P.3d 633.

      . Acts implicating Utah under Utah's long-arm statute include, [inter alia,]:
      "(1) the transaction of any business within this state;
      (2) contracting to supply services or goods in this state;
      (3) the causing of any injury within this state whether tortious or by breach of warranty;
      (4) the ownership, use, or possession of any real estate situated in this state;
      (5) contracting to insure any person, property, or risk located within this state at the time of contracting...."
      Phone Directories Co. v. Henderson, 2000 UT 64,-¶ 12, 8 P.3d 256 (quoting Utah Code Ann. § 78-27-24 (Supp.1999)) ("Any person ... who ... does any of the following enumerated acts, submits himself ... to the jurisdiction of the courts of this state as to any claim arising out of or related to [such acts)." (Alterations in original.)).


source: Caselaw Access Project

author: GREENWOOD, Judge:

license: Public Domain

text:
    2002 UT App 259
    STATE of Utah, Plaintiff and Appellee, v. Richard Andrew FRAUSTO, Defendant and Appellant.
    No. 20000520-CA.
    Court of Appeals of Utah.
    Aug. 1, 2002.

      Margaret P. Lindsay, R. Paul Kawai, Ald-rich Nelson Weight & Esplin, Provo, for Appellant.
    Mark L. Shurtleff, Attorney General, Christine Soltis, Assistant Attorney General, for Appellee.
    Before Judges BENCH, GREENWOOD, and THORNE.
   OPINION

GREENWOOD, Judge:

[T1 Richard Andrew Frausto (Defendant) appeals from a conviction of Murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (Supp.1991). Defendant argues that the trial court committed plain error by failing to define terms in a jury instruction and failing to give the jury a supplemental instruction. Defendant also argues that because his trial counsel did not object to the trial court's failure to give a supplemental instruction, he received ineffective assistance of counsel. Finally, Defendant argues that delays in his appeals process violated his due process rights. We affirm.

BACKGROUND

{2 Sometime during the early morning hours of July 28, 1992, Defendant sat in his living room with a loaded .22 caliber pistol pointed at his head and told his friend to bring Larry Gilstrap (Gilstrap) to Defendant's trailer or Defendant would kill himself. Defendant was upset with Gilstrap because of Gilstrap's relationship with the girlfriend of one of Defendant's friends. Defendant's wife went to Gilstrap's home to tell him that Defendant was "getting crazy, holding a gun to his head and stuff like that."

13 Gilstrap drove his truck over to Defendant's home. Defendant armed himself with a .357 caliber revolver in addition to the .22 caliber pistol and went outside to meet Gil-strap, who was standing by his truck, Defendant confronted Gilstrap about his relationship with Defendant's friend's girlfriend. Defendant then fired his weapons hitting Gil-strap in the neck, chest, and back. Gilstrap died as a result of his injuries. Defendant was arrested for murder.

T 4 At trial, after they had begun deliberating, the jury made two inquiries concerning Jury Instruction 18-C. The first note sent to the trial judge asked for a clarification of Instruction 13-C, which was an instruction on duels, mutual combat, or consensual altercation. The trial judge, with the consent of counsel, told the jury, "Please rely on the language of 13-C as it is written and consider all the instructions as a whole." Later, the jury again sent a note to the trial judge asking, "Does the statement 'it is no defense "to" the prosecution' mean no help for thle] prosecution[?]" Again, both parties' counsel were called into the judge's chambers to discuss a reply. Over the prosecution's objection, Defense counsel persuaded the court to give a supplemental instruction. The court then informed counsel that it would call the jury back into session and read the new instruction to the jury in open court.

15 Before the instruction could be read, however, the jury announced it had reached a verdict. The trial judge instructed the bailiff to bring the jury back in, "unless there's anything before the Court prior to their return." Both counsel responded in the negative. The supplemental instruction was never read to the jury, and defense counsel did not move to have the instruction read.

16 The jury found Defendant guilty of murder. Defendant was sentenced to six years to life for the Murder. The judgment was entered on January 6, 1998.

7 Defendant's trial attorney, Mr. J. MacArthur Wright, filed a timely notice of appeal and requested preparation of the trial record and transcripts On February 10, 19983, Mr. Wright withdrew as counsel because of statements made by Defendant concerning what issues Defendant thought should be the basis of the appeal. Mr. Michael Miller entered his appearance as substitute counsel for Defendant. Mr. Miller filed a Motion to Supplement Record with the unrecorded discussions concerning the supplemental instruction. On March 7, 1994, Defendant filed a letter requesting appointment of substitute counsel. This court remanded the case to the district court for consideration of Defendant's request for substitute counsel, and for proceedings on the creation of a supplemental record pursuant to Mr. Miller's motion. Mr. Miller filed a notice of withdrawal.

18 On June 15, 1994, Mr. Floyd Holm was appointed to represent Defendant. Both parties' counsel informed the court that a stipulation had been reached as to the Motion to Supplement Record. On October 19, 1995, Defendant again requested appointment of new counsel. This court denied Defendant's request for new counsel and ordered Mr. Holm to file Defendant's brief by January 10, 1996. Mr. Holm wrote to Defendant informing him that he was aware of Defendant's complaint against him to this court and to the Utah State Bar (the Bar). Mr. Holm informed Defendant that if he continued with his complaint against him to the Bar, he would be unable to represent him on appeal. Mr. Holm also informed Defendant that if Mr. Holm had to withdraw, his appeal would be delayed until new counsel could be appointed. Nevertheless, Defendant renewed his request that Mr. Holm be removed and new counsel be appointed. On January 29, 1996, this court remanded the case back to the trial court for a determination of whether new counsel should be appointed. The trial court removed Mr. Holm due to Defendant's appeal of the Bar's dismissal of his complaint against Mr. Holm and appointed Mr. Thomas A. Blakely.

1 9 Mr. Blakely was required to file Defendant's brief by June 7, 1996. On June 28, 1996, this court dismissed Defendant's appeal for failure to file a brief within the time permitted. From August 12, 1996, to June 5, 2000, no appeal was pending in this case.

4 10 On September 2, 1997, Defendant filed a pro se motion asking the trial court to resentence him nune pro tune so he could appeal his conviction. Defendant argued that Mr. Blakely's failure to file an appellate brief resulted in the dismissal of his appeal. Mr. Odean Bowler was appointed as Defendant's counsel and the trial court ordered Defendant to be resentenced nune pro tunc to correct the error in the docket text regarding Defendant's sentence and to accord him another opportunity to appeal. On May 8, 2000, a nune pro tune judgment was entered that permitted Mr. Bowler to file a new notice of appeal.

111 Mr. Bowler filed a docketing statement, but then moved to withdraw because he was no longer a Washington County Pub-lie Defender. On October 26, 2000, this court remanded the case to the trial court for appointment of new counsel. Defendant's current appellate counsel was appointed on January 17, 2001, and filed Defendant's brief on November 28, 2001.

ISSUES AND STANDARDS OF REVIEW

1 12 Defendant argues that the trial court committed plain error by giving Jury Instruction 183-C without defining the terms within it and by failing to give the jury a supplemental instruction. Because Defendant did not object on the record to the trial court's alleged errors, Defendant can only obtain relief by demonstrating plain error. See State v. Pecht, 2002 UT 41, ¶ 18, 48 P.3d 931.

Plain error requires a showing that error exists; (i) the error should have been obvious to the trial court; and (Hi) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for [Defendant]" To show obviousness of the error, [Defendant] must show that the law was clear at the time of trial.

State v. Garcia, 2001 UT App 19, ¶ 6, 18 P.3d 1123 (citations omitted).

118 Defendant also argues that he received ineffective assistance of counsel because defense counsel did not object to the trial court's failure to give a supplemental instruction. For Defendant to establish an ineffective assistance of counsel claim, Defendant "must show that trial counsel 'rendered deficient performance which fell below an objective standard of professional judgment,' and that the deficiency was ultimately prejfu-dicial. A defendant cannot prevail on a claim of ineffective assistance of counsel where 'the challenged act of omission might be considered sound trial strategy'" Pecht, 2002 UT 41 at ¶ 41, 48 P.3d 931 (citations omitted).

114 Finally, Defendant argues that substantial delays in his appeals process violated his due process rights. " 'Constitutional issues, including ... due process, are questions of law which we review for correctness." State v. Mast, 2001 UT App 402, ¶ 8, 40 P.3d 1143 (citation and quotations omitted) (alteration in original).

ANALYSIS

I. Failure to Define Jury Instruction Terms

T15 Defendant argues that the trial court plainly erred by not including a definition of "duels, mutual combat, or consensual altercations" in Jury Instruction 183-C, causing jury confusion. We disagree.

{ 16 Jury Instruction 13-C stated,

You are instructed that it is no defense to the prosecution that the Defendant was a party to any duel, mutual combat, or other consensual altercation if during the course of the duel, combat, or altercation any dangerous weapon was used. A firearm is a dangerous weapon.

Instruction 18-C was drafted almost verbatim from the language of Utah Code Anu. § 76-5-104 (Supp.1989).

1 17 The jury sent two notes to the trial judge concerning Jury Instruction 18-C. The first note stated, "Could we get a [clarification] on Instruction 18-C." After consulting with both parties' counsel, the trial judge sent a note back to the jury stating, "Please rely on the language of 18-C as it is written, and consider all the instructions as a whole." The jury's second note concerning Jury Instruction 13-C asked, "Does the statement 'it is no defense "to" the prosecution' mean no help for thle] prosecution[?]" Neither of these notes asked the trial judge to define the terms "duel, mutual combat, or consensual altercation," nor indicated that the jury was confused about the meaning of these commonly used terms.

{18 The Utah Supreme Court has stated that "ilt is normally unnecessary and undesirable for a trial judge to volunteer definitions of terms of common usage for the jury." State v. Couch, 635 P.2d 89, 94 (Utah 1981). Jury Instruction 13-C tracks the language of section 76-5-104 and is consistent with case law that has approved jury instructions using similar terms. See State v. Starks, 627 P.2d 88, 90 (Utah 1981) ("If an instruction is supported by the evidence and its meaning is clear, an instruction in the form of statutory language is not improper."); see also State v. Sherard, 818 P.2d 554, 561 (Utah Ct.App.1991) (approving instruction that used the terms "mutual combat, or other consensual altercation"); State v. Pascual, 804 P.2d 553, 556 (Utah Ct.App.1991) (concluding that an instruction using terms "duel, mutual combat, or other [consensual] altercation" did not prejudice defendant). Furthermore, "beyond the substantive seope, correctness, and clarity of the jury instructions, their precise wording and specificity is left to the sound discretion of the trial court." Sherard, 818 P.2d at 560 (citation, quotations and alteration omitted).

1 19 "Ordinarily, non-technical words of ordinary meaning should not be elaborated upon in the instructions given by the court. It is presumed that jurors have ordinary intelligence and understand the meaning of ordinary words. ..." Couch, 635 P.2d at 94 (quotations and citation omitted). Defendant has failed to establish that the terms "dual, mutual combat, or consensual altercation" used in Jury Instruction 13-C were uncommon or that the jury did not understand their meaning. Thus, Defendant has not established that the trial court committed plain error in not defining the terms "duel, mutual combat, or consensual altercation."

IIL Failure to Give a Supplemental Instruction

120 Defendant argues the trial court committed plain error by not giving a supplemental instruction to answer the jury's see-ond question before the jury reached its verdict, thereby jeopardizing the integrity of the jury's verdict to Defendant's detriment. Defendant also argues that his defense counsel's failure to request the trial court to read the supplemental instruction resulted in Defendant receiving ineffective assistance of counsel.

121 After the trial judge received the jury's second note asking, "Does the statement 'it is no defense "to" the prosecution' mean no help for thle] prosecution," the trial judge called both parties' counsel into chambers to discuss the jury's question. Over the prosecution's objection, the trial judge agreed to give the jury a supplemental instruction. However, before the trial judge could give the supplemental instruction to the jury, the jury announced it had reached a verdict. Before the jury was brought back into the courtroom to read its verdict, the trial court asked counsel if there was anything they wanted to bring before the court. Defense counsel did not make any motions to have the supplemental instruction given before the verdict was read.

122 Even if this court were to assume arguendo that the trial court erred in not giving the supplemental instruction, Defendant must still show under the plain error standard that this error should have been obvious, meaning that "the law was clear at the time of trial" and that he was prejudiced by the error. State v. Garcia, 2001 UT App 19, ¶ 18, 18 P.3d 1123 (citing State v. Ross, 951 P.2d 236, 239 (Utah Ct.App.1997) (stating that "error is not plain where there was no settled appellate law to guide the trial court.").

1 23 There is no Utah case law addressing whether a trial court must give a supplemental instruction after the jury has requested one but then reaches a verdict without the supplemental instruction. Without well-settled law in this area to guide the trial court, such an error would not have been obvious. Therefore, Defendant has failed to meet the second prong of the plain error test.

124 In addition, Defendant has failed to show that he was prejudiced by the trial court's failure to read the supplemental instruction. See id. at 119 ("[EJrror is harmful [if] absent the error, there is a reasonable likelihood of a more favorable outcome for [Defendant]." (Citation and quotations omitted) (second alteration in original.)); see also State v. Kozik, 688 P.2d 459, 461 (Utah 1984) ("[Wle do not upset the verdict of a jury merely because some error or irregularity may have occurred, but will do so only if it is something substantial and prejudicial in the sense that there is a reasonable likelihood that in its absence there would have been a different result." (Quotations and citation omitted) (alteration in original.)).

1 25 Defendant argues that "[if the Court had insisted on addressing the issue, before allowing the verdict to be read, the jury might have returned to further deliberatle], to the benefit of the Defendant." The proposed supplemental instruction stated:

It is the law, as stated in Instruction No. 13-C, that dueling, mutual combat, or a consensual altercation shall be no defense to a criminal charge of Murder, if the accused employed a dangerous weapon in causing the death of another during a duel, mutual combat or consensual altercation. However, you are also instructed that in this case, you must consider whether or not the Defendant was justified in the use of deadly force under the law of self-defense as set forth in Instruction No. 13-E.

(Emphasis added.) There is no indication that giving the supplemental instruction would have produced a more favorable outcome for Defendant. In fact, any confusion the jury may have had would likely have worked in Defendant's favor. The supplemental instruction would have benefitted the prosecution because it clarified that if the jury found Defendant to have engaged in mutual combat or a consensual encounter using a dangerous weapon, Defendant did not have the benefit of the self-defense theory against the charge of Murder,. Therefore, Defendant has failed to show prejudice by the trial court's failure to read the supplemental instruction.

1126 Defendant next argues that without defining the phrase, "it is no defense to the prosecution," the jury instruction unfairly limited his reliance on self-defense because the resulting confusion "include[d] the belief that the burden of proof regarding self-defense fell upon the Defendant." Defendant's argument is without merit.

127 Jury Instruction 13-E, which is not at issue here, stated the law concerning self-defense and the State's burden to prove beyond a reasonable doubt that the killing was not in self-defense. In addition, defense counsel discussed this instruction and the State's burden at length during his closing arguments.

128 In State v. Garcia, this court found that the trial court committed plain error by not adequately instructing the jury about the burden of proof for self-defense. See 2001 UT App 19 at ¶ 20, 18 P.3d 1123. While the trial court in Garcia had given jury instructions that "generally informed the jury correctly of the general burden of proof and of who carried it," the instructions did not clarify who had the burden of proof for self-defense. Id. at ¶ 16, 18 P.3d 1123. This court concluded that,

When the defendant has reached the threshold to merit self-defense instructions, those instructions must clearly communicate to the jury what the burden of proof is and who carries the burden. Trial courts should separately instruct each jury clearly that the State must disprove self-defense, and other affirmative defenses, beyond a reasonable doubt.

Id.

1129 In the present case, the trial court fulfilled its obligation to inform the jury that the burden of proof for self-defense was on the State. This court has said that "[Jlury instructions must be read and evaluated as a whole." State v. Lucero, 866 P.2d 1, 3 (Utah Ct.App.1993). The trial judge reminded the jury of their obligation to read the jury instructions as a whole in its first note to the jury which stated, "Please rely on the language of 13-C as it is written, and consider all the instructions as a whole." It is purely speculative that the jury was confused about who had the burden of proof from its question about whether "the statement 'it is no defense "to" the prosecution' mean[s] no help for the] prosecution." The jury instructions, taken as a whole, correctly informed the jury that the burden of proof for showing that the Defendant did not act in self-defense was on the State.

130 Given these decisions, there is no basis for Defendant's ineffective assistance of counsel claim. As we have noted, if the supplemental instruction had been given, it would not have benefitted Defendant. Therefore, we assume that as part of his trial strategy, defense counsel did not insist that the trial court give the supplemental instruction before the verdict was read. See State v. Parker, 2000 UT 51, ¶ 10, 4 P.3d 778 (" IKF the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel." " (Citation omitted.)).

III. Delay in Appeal Process

131 Defendant argues that the substantial delay in his appeals process violated his due process rights Citing Harris v. Champion, 15 F.3d 1538 (10th Cir.1994), Defendant argues that because his direct appeal has been pending for nine years, there has been a breakdown in Utah's judicial system that requires not only the reversal of his conviction, but also a bar to retrial. We disagree.

132 Harris addressed state conviets' collateral claims that they were deprived of their right to appeal by the systematic breakdown of the Oklahoma criminal appellate system. See id. at 1548-49. The Harris court was faced with an "appellate eriminal justice system in Oklahoma [that] was in a crisis." Id. at 1550. The public defenders office was unable to keep up with a growing number of felony appeals resulting in a serious backlog, due to lack of funding and staffing. It became routine practice for the public defender to ask for 360-day extensions followed by requests for extensions of 180 days or less. These extensions were normally granted by the Oklahoma Court of Appeals. See id. at 1548. Petitioners, all of whom were represented by the public defenders, had to wait three years or more before a brief was filed in their direct appeals. See id. at 1546.

1 33 The Harris court also found that the Oklahoma Court of Criminal Appeals was experiencing a growing backlog of cases. See id. at 1550. Even the Attorney General's office began to show a trend of filing untimely briefs. See id. As a result of this systematic breakdown of Oklahoma's eriminal justice system, the Harris court modified the U.S. Supreme Court's four-part test for determining whether a criminal defendant has been deprived of his or her right to a timely process at the trial level and applied it to determine whether a defendant's due process right to a timely, direct eriminal appeal had been violated. See id. at 1558-59. Defendant urges this court to apply Harris's four-part test in evaluating whether his due process rights to a timely appeal were violated. We decline Defendant's invitation.

1134 While we acknowledge that an extraordinary length of time has passed since Defendant was convicted in December 1992, the delay in this case was inordinate and atypical and certainly not one condoned by this court. However, the reasons for the delay in Defendant's appeal are not analogous to the systematic breakdown experienced by the Oklahoma criminal appellate system. Instead, the majority of delays in Defendant's case can be directly attributed to Defendant's repeated requests for new counsel.

1385 For example, Defendant was sentenced on January 6, 1998, and on January 22, 1998, Mr. Wright filed a timely notice of appeal and requested preparation of the trial transcripts. Mr. Wright then withdrew due to concerns he had about comments that Defendant made to him about what issues should be appealed. Mr. Miller was then appointed as new counsel on February 10, 1993 and worked diligently on Defendant's appeal until Defendant requested that Mr. Miller be removed and new counsel be appointed. On June 15, 1994, Mr. Holm was appointed to represent Defendant. Again, the record shows that Mr. Holm worked continually on Defendant's appeal. However, on October 19, 1995, one week before Defendant's brief was to be filed, Defendant requested appointment of new counsel. Defendant also filed a complaint against Mr. Holm with the Bar, which was ultimately dismissed. This court denied Defendant's request for new counsel and ordered Defendant's brief to be filed by January 10, 1996. On January 5, 1996, five days before Defendant's brief was due, Defendant again requested that Mr. Holm be removed and new counsel be appointed, despite Mr. Holm's warnings to Defendant that his request would delay his appeal. Mr. Holm ultimately had to be removed due to Defendant's appeal of the Bar's dismissal of his complaint against Mr. Holim and Mr. Blakely was appointed.

36 The record shows that each of Defendant's appointed counsel, with the exception of Mr. Blakely, worked diligently on Defendant's appeal. This required each newly appointed counsel to perform the time consuming review of the 1500 page trial court record to become familiar with Defendant's issues. The record shows that from January 6, 1998 until February 28, 1996, Defendant was primarily responsible for the delays in his appeal process. In addition, from August 1996 to June 2000, no direct appeal was pending in Defendant's case. Defendant's current appeal has only been pending since June 2000.

137 Furthermore, Defendant has failed to show how he has suffered prejudice because of the delays in his appeal. Only one of Defendant's appointed counsel failed to do a required act. That error was cured when Defendant was resentenced nune pro tune and his right to appeal was reinstated. In addition, Defendant has failed to present any meritorious issues on appeal and, therefore, has not suffered any prejudice from the delays in his appeals process. Thus, Defendant's due process rights were not violated. See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.1996) ("Even if [the defendant's] appeal had been decided in a timely fashion, he still would have failed on the merits. Thus, [the defendant's] due process rights were not violated, for he has failed to show prejudice."); United States v. Tucker, 8 F.3d 673, 676-77 (Oth Cir.1993) (affirming defendant's conviction where appeal was meritless and failed to demonstrate prejudice by delays in appeals process); People v. Rios, 43 P.3d 726, 733 (Colo.Ct.App.2001) ("a claim of prejudice" will not be established if defendant failed to present "any basis for reversal of his conviction").

CONCLUSION

138 In sum, Defendant has failed to show that the trial court plainly erred by not defining terms within Jury Instruction 13-C and by not giving the jury a supplemental instruction. Defendant has also failed to show that his trial counsel was ineffective. Finally, because delays in Defendant's appeal are largely the result of his numerous requests for new counsel and four years during which no appeal was pending, and because Defendant has presented no meritorious issues on appeal, he has failed to establish that he has been prejudiced by the delays in his appeals process. Therefore, we affirm Defendant's conviction.

139 WE CONCUR: RUSSELL W. BENCH and WILLIAM A. THORNE JR., Judges.

      . "'We state the facts in the light most favorable to the jury's verdict." State v. Morgan, 865 P.2d 1377, 1378 (Utah Ct.App.1993).

      . The original judgment imposed an erroneous term for the firearm enhancement. The judgment was subsequently amended to impose the correct six-year minimum term.

      . In any prosecution for criminal homicide under Part 2 of this chapter or assault, it is no defense to the prosecution that the defendant was a party to any duel, combat, or altercation if during the course of the duel, combat, or altercation any dangerous weapon as defined in Section 76-1-601 was used.
      Utah Code Ann. § 76-5-104 (Supp.1989).

      . Defendant does not challenge the court's response to the jury's first question.

      . Defendant also argues that his trial counsel was ineffective for (1) failing to object to Instruction 13-C in its proposed form; (2) failing to request a supplemental instruction giving the jury the definitions of duel, mutual combat, or consensual altercation; and (3) failing to request a mistrial. We do not consider these claims because Defendant has failed to show he was prejudiced as a result of his counsel's performance. See State v. Pursifell, 746 P.2d 270, 275 (Utah Ct.App.1987) ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed." (Quotation and citation omitted) (alteration in original.)).


text:
    2002 UT App 258
    Daniel C. McKEON and Lisa McKeon, Plaintiffs, Appellants, and Cross-appellees, v. Kenneth CRUMP and Amy S. Crump, Defendant, Appellees, and Cross-appellants.
    No. 20010121-CA.
    Court of Appeals of Utah.
    Aug. 1, 2002.

      Nelson Abbott, Abbott Spencer & Smlth LLC, Provo, for Appellants.
    Richard D. Bradford, Bradford Brady & Johnson, Provo, for Appellees.
    Before Judges BILLINGS, GREENWOOD, and THORNE.
   OPINION

GREENWOOD, Judge:

11 Daniel and Lisa McKeon (the McKeons) appeal the trial court's grant of Kenneth and Amy Crump's (the Crumps) motion to dismiss with prejudice based on the McKeons' failure to return the earnest money deposit to the Crumps before filing suit. We affirm.

BACKGROUND

12 On October 25, 1999, the McKeons and the Crumps entered into a Real Estate Purchase Contract (the Purchase Contract) for the sale of the McKeons' home to the Crumps. As part of the Purchase Contract, the Crumps paid the McKeons $2,500 as an earnest money deposit. The Crumps invoked the appraisal condition under the Purchase Contract, whereby the Crumps' obligation to purchase the home was conditioned on the property appraising for not less than the purchase price. On December 3, 1999, the Crumps' attorney sent a letter to the McKeons' attorney alleging that the appraisal was "seriously flawed" and was rejected by the Crumps. The Crumps hired another appraiser, but the McKeons would not let the new appraiser inside their home. The see-ond appraisal ultimately was less than the purchase price.

T3 On December 2, 1999, the McKeons filed a lawsuit against the Crumps, seeking specific performance and damages. On December 6, 1999, the Crumps gave notice that they would not go through with the purchase based on the new appraisal and demanded return of the earnest money. The McKeons had not returned the earnest money deposit to the Crumps prior to filing suit. On February 16, 2000, the McKeons filed a Motion to Deposit Earnest Money into Court. The Crumps filed a Motion in Opposition to the Deposit of Earnest Money into Court based upon the proposition that "[ilf the plaintiffs keep the Earnest Money or pay it into Court, they have elected as their only remedy liquidated damages." On May 19, 2000, in an attempt to revive or preserve their claim for specific performance, the McKeons returned the earnest money to the Crumps.

T4 On June 6, 2000 and August 29, 2000, the McKeons presented their case at trial. At the close of the McKeons' case, the Crumps made a motion to dismiss based upon the McKeons' failure to return the earnest money to the Crumps before filing suit. The trial court granted the Crumps' motion to dismiss with prejudice, concluding that failure to return the earnest money was an affirmative defense that could not be waived. The trial court also awarded the Crumps attorney fees. However, the trial court reduced the attorney fee amount, finding the Crumps had waited to raise the defense and had stipulated to waive it, thereby increasing costs of the suit. The trial court also required the Crumps to return the earnest money deposit to the MeKeons. This appeal followed.

ISSUE AND STANDARD OF REVIEW

1 5 The sole issue presented is whether the trial court erred in granting the Crumps' motion to dismiss with prejudice for failure of the MeKeons to return the earnest money deposit before filing suit. We review an appeal from a motion to dismiss for correctness and "accept the material allegations of the complaint as true, and the trial court's ruling [willl be affirmed only if it clearly appears the complainant can prove no set of facts in support of his or her claims." Hansen v. Department of Fin. Inst., 858 P.2d 184, 186 (Utah Ct.App.1993).

ANALYSIS

16 The McKeons argue neither the language of the Purchase Contract nor Utah case law requires that their claim be dismissed with prejudice because of their failure to return the earnest money deposit prior to filing suit. The Purchase Contract is a standardized real estate agreement. The default provision at issue reads:

If Buyer defaults, Seller may elect either to retain the Earnest Money Deposit as liquidated damages, or to return it and sue Buyer to specifically enforce this Contract or pursue other remedies available at law.

"When contract language is unambiguous, we interpret the contract as a matter of law. In so doing, [we] must attempt to construe the contract so as to harmonize and give effect to all of [its] provisions." Tretheway v. Furstenau, 2001 UT App 400, ¶ 9, 40 P.3d 649 (quotations and citation omitted) (alteration in original). Furthermore,

[Ilt is pertinent to observe that the attempt to enforce this clause of the contract is almost invariably against a purchaser who has been induced to sign it and deposit money under the impression that its forfeiture will be the extent of his loss if he decides not to buy the property. And the suit is by a seller who wants to be sure to keep the money in hand, and also seek additional relief. This clause is for the benefit of the seller. He will obviously always choose the option to his advantage and to the disadvantage of the buyer. Under those circumstances the clause should be strictly applied against the seller and he should be held to meet its requirements with exactness.

Close v. Blumenthal, 11 Utah 2d 51, 354 P.2d 856, 857 (1960) (emphasis added). Because the McKeons, as sellers, had the benefit of choosing the language of the default clause in the Purchase Contract, they must "meet its requirements with exactness." Id.

T7 This court analyzed a similar default provision in Palmer v. Hayes, 892 P.2d 1059 (Utah Ct.App.1995). The issue before the Palmer court was, "[Dlid the [seller's] failure to release the Earnest Money Deposit to the [buyers] before commencing their action for damages constitute, as a matter of law, an election of the remedy for liquidated damages[?]" Id. at 1061. For guidance, the Palmer court looked to four prior Utah Supreme Court cases that had analyzed whether failure to return the earnest money deposit precludes a seller from pursuing other remedies under the Purchase Contract.

T 8 In Palmer, we first looked to the analysis in Andreasen v. Hansen, 8 Utah 2d 370, 335 P.2d 404 (1959), which held that the plaintiffs who failed to return the earnest money deposit to defendants before filing " 'must be deemed to have kept it for the purpose indicated in the contract, that is, as liquidated damages" Palmer, 892 P.2d at 1061 (quoting Andreasen, 335 P.2d at 408). We concluded that Andreasen and those cases that followed stood for the proposition that "a seller's failure to offer to return earnest money deposits precludes the seller from pursuing other remedies." Id. (citing Dowding v. Land Funding Ltd., 555 P.2d 957, 957 (Utah 1976) (holding that because neither seller nor his agent offered to return deposit, seller's damages were limited to deposit amount); Close, 354 P.2d at 857 (holding sellers who did not offer to return deposit opted for liquidated damages and were precluded from seeking specific performance); McMullin v. Shimmin, 10 Utah 2d 142, 349 P.2d 720, 721 (1960) (same)). Accordingly, we concluded that the sellers "had an affirmative duty to release their interest in the deposit money to the [buyers] before they filed their suit for damages." Palmer, 892 P.2d at 1062. Therefore, the trial court was correct in granting the buyers summary judgment because "by failing to release the deposit money, the [sellers] elected to retain it as liquidated damages." Id.

T9 The McKeons argue their case is distinguishable because they eventually returned the earnest money deposit to the Crumps. The McKeons argue that the plain language of the contract does not require one event to occur before the other, as long as "both events ... occur before the seller actually obtains the specific performance." As we have already discussed, the language and reasoning of Palmer indicate otherwise.

110 For example, in Paimer, we stated that the issue before us was whether "the [seller's] failure to release the Earnest Money Deposit to the [buyers] before commencing their action for damages constitute[s], as a matter of law, an election of the remedy of liquidated damages." Id. at 1061 (emphasis added). Again, in dicta, the court found that "the [Andreasen line of] cases uniformly hold that before a seller may pursue a remedy other than liquidated damages, the seller must release any claim to the deposit money." Id. at 1062 (emphasis added). In answering the seller's argument that the An-dreasen line of cases were not dispositive because of changes in the rules governing escrow accounts, we stated that the sellers "needed only to indicate to [the agency holding the deposit], in writing, that they released the deposit money to the [buyers]. Then they could have proceeded with their suit for damages." Id. (emphasis added). Thus, we held as a matter of law that the sellers "had to tender release of the earnest money deposit before pursuing other remedies." Id. at 1063 (emphasis added). Therefore, the McKeons' argument fails.

T11 Next, the McKeons argue that the defense of failure to return the earnest money deposit is an affirmative defense that can be and was waived by the Crumps. However, the trial judge determined that the McKeons' failure to return the Crumps' earnest money deposit before filing suit was an election to keep the money as liquidated damages and was an election that could not be waived. We agree.

1 12 In Palmer, the sellers argued that the holdings in the Andreasen line of cases were inconsistent with the election of remedies doctrine defined in Angelos v. First Interstate Bank of Utah, 671 P.2d 772, 778 (Utah 1983). In Angelos, the Utah Supreme Court defined election of remedies as a

"technical rule of procedure and its purpose is not to prevent recourse to any remedy, but to prevent double redress for a single wrong. Said doctrine presupposes a choice between inconsistent remedies, and knowledgeable selection of one thereof, free of fraud or imposition, and a resort to the chosen remedy evincing a purpose to forego all others."

Palmer, 892 P.2d at 1061-62 (quoting Angelos, 671 P.2d at 778) (emphasis added). We disagreed that the Andreasen line of cases conflicted with Angelos's definition of election of remedies, stating, "[the Andreasen line does not dispute the fact that election of remedies is a procedural rule; the cases simply define the procedure for electing remedies." Id. at 1062, 335 P.2d 404. We reasoned that the default clause provides the seller with an election of remedies; however, the "procedure for electing" the remedy has to be followed as described in the Andreasen line of cases. Id. That is, the seller must return the earnest money before filing suit or will be deemed to have elected to keep it as liquidated damages. See McMullin, 349 P.2d at 721 ("Such [election] is exercised by retention of the down payment. The clause tells the parties that the seller need only retain, the sum to exercise his right to keep it The seller chooses the language. His retention becomes meaningful when he claims the buyer has breached the contract and refuses to go through with it.").

€13 As Justice Henriod noted in his concurring opinion in Andreasen,

It was agreed that the sellers, at their option, could retain the amount advanced as liquidated damages if the buyers broke their promise.... [SJuch retention constituted an exercise of the option and precluded the sellers from pursuing any other remedy. It is inconsistent for the sellers to insist on holding the buyers to the terms of the contract and at the same time retain the money that they agreed would be the measure of damages upon breach, if they retained it. Such inconsistency must be resolved against the sellers who not only furnished the printed contract, but who had the power of election.

Andreasen, 335 P.2d at 409 (Henriod, J., concurring) (emphasis added); see also Close v. Blumenthal, 11 Utah 2d 51, 354 P.2d 856, 857 (1960) ("[Where there was an option to be exercised regarding the forfeiture of the deposit as liquidated damages, the fact that the money was kept was incontrovertible evidence that the seller had exercised the option to keep it ... for the purpose indicated in the contract, that is, as liquidated damages."); Cook v. Covey-Ballard Motor Co., 69 Utah 161, 253 P. 196, 200 (1927) ("The doctrine of an election rests upon the principle that one may not take contrary positions ... the deliberate and settled choice of one . will preclude him thereafter from going back and electing again.").

{14 All of the supreme court cases discussed in Palmer, and Palmer itself, came to the same conclusion despite the fact that each was at a different stage in the proceeding. See Dowding, 555 P.2d at 957 (unclear if this defense pleaded, defendant's motion to dismiss affirmed); Close 354 P.2d at 857 (defense does not appear to have been pleaded; however, appellate court reverses plaintiff's award for specific performance based on plaintiff's failure to return earnest money, holding plaintiff had opted for liquidated damages and was precluded from seeking specific performance); Andreasen, 335 P.2d at 405-09 (appears defense not pleaded, judgment for plaintiff reversed for failure to return earnest money); Palmer, 892 P.2d at 1061 (defense pleaded and motion for summary judgment was granted).

I 15 We acknowledge that these cases do not specifically address the waiver issue, but a reading of these cases together with the Purchase Contract at issue indicates that the election of remedies defense, in this situation, is one that cannot be waived. McMullin v. Shimmin, 10 Utah 2d 142, 349 P.2d 720, 721 (1960) supports our conclusion. In MceMuli-lin, the court dismissed the seller's complaint at the pre-trial stage before the buyers could plead the election of remedies defense of the seller's failure to return the buyers' earnest money deposit before filing suit. See id. at 721. If waiver were possible, dismissal without prejudice would have been appropriate to allow the seller the opportunity to return the earnest money and then refile. Such a result would make the election of remedies doctrine meaningless. See Close, 354 P.2d at 857 ("[To) permit the seller to retain the [earnest] money and also to sue for specific performance would in effect render the option clause meaningless by not requiring him to exercise his option."). The election of remedies doctrine does not allow a seller to choose liquidated damages, and then elect again if he or she is unsatisfied by the first choice. See id. ("That [seller] has his choice is enough without giving him the advantage of both alternatives and thus providing two strings to his bow."). Instead, these cases support a conclusion that the election of remedies defense under these conditions cannot be waived. See Palmer, 892 P.2d at 1062 ("The [Andreasen] line of cases uniformly hold that before a seller may pursue a remedy other than liquidated damages, the seller must release any claim to the deposit money.").

16 Our conclusion is congruent with the Purchase Contract's default provision, stating that a "seller may elect either to retain the Earnest Money Deposit as liquidated damages, or to return it and sue Buyer." (Emphasis added.) The language unambiguously provides that seller must elect one of the two remedies. Only if the Seller first returns the earnest money deposit may he or she then sue the Buyer.

CONCLUSION

{ 17 Utah case law establishes that to pursue specific performance or damages under the Purchase Contract's default clause, sellers must return the earnest money deposit before filing suit. These cases also stand for the proposition that once a seller has made his or her election of remedies, that election cannot be waived. Therefore, when the McKeons elected to keep the earnest money deposit as liquidated damages, the provisions of the default clause were satisfied and could not be waived. The McKeons are thereby precluded from pursuing alternative remedies.

1 18 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and WILLIAM A. THORNE JR., Judge.

      . The Crumps cross-appealed the trial court's order requiring them to return the earnest money to the McKeons and reducing the Crumps' award of attorneys fees. Because the Crumps' cross-appeal was untimely filed we do not address it. See Glezos v. Frontier Invs., 896 P.2d 1230, 1233 (Utah Ct.App.1995) ("[When a notice of ... cross-appeal is untimely filed, we do not have jurisdiction to consider the appeal.").


author: GREENWOOD, Judge.

text:
    2002 UT App 257
    SALT LAKE COUNTY, a body corporate and politic of the State of Utah, Plaintiff and Appellant, v. METRO WEST READY MIX, INC., a Utah corporation; and Monterra Rock Products, Inc., a Utah corporation, Defendants and Appellees.
    No. 20010276-CA.
    Court of Appeals of Utah.
    Aug. 1, 2002.
    Donald H. Hansen, Salt Lake County Attorney's Office, Salt Lake City, for Appellant.
    Mark Clements, Mark F. James, and Mark H. Richards, Hatch & James PC, Salt Lake City, for Appellees.
    Before Judges BENCH, GREENWOOD, and ORME.
   OPINION

GREENWOOD, Judge.

T 1 Salt Lake County (the County) appeals the trial court's grant of Metro West Ready Mix, Inc's (Metro) motion for summary judgment. The judgment granted Metro quiet title to Parcel G (the Property) on the basis that Metro was a bona fide purchaser (BFP) under Utah Code Ann. § 57-8102, - 103 (2000) (the Recording Statute). We affirm.

BACKGROUND

1 2 In 1878, the United States Government conveyed the Property by land patent to William Turner. Turner recorded his patent in Salt Lake County, even though the Property is located entirely within Utah County. The Property's northern border is the Utah County/Salt Lake County line. In 1878, Turner conveyed the Property to the County by warranty deed. The County immediately recorded the warranty deed in Salt Lake County, but more than 120 years passed before the County recorded the warranty deed in Utah County in 1998.

13 Nine years before the County recorded in Utah County, Metro became interested in acquiring the Property to further its business interests. Metro principals approached the Tingeys, who were reputed to be the owners of the Property, and inquired as to the purchase price. The Tingeys represented that the Property had been in their family since the turn of the century, and a title search Metro conducted indicated that the Property had no record owner in Utah County. Furthermore, the Tingeys were in possession of the Property and neither the County nor anyone else had posted any signs or carried on any activities that would indicate that anyone other than the Tingeys owned the Property. The Tingeys conveyed the Property to Metro by quitelaim deed for $25,000 on April 14, 1989. Metro promptly recorded its quitclaim deed in Utah County, and incorporated the Property into its gravel pit operations on adjacent land owned by Metro.

'I 4 Shortly after discovering the competing interests in the Property, the County filed an action to quiet title. Metro filed a motion for summary judgment, arguing that Metro was entitled to BFP protection under the Recording Statute. The trial court granted Metro's motion and this appeal followed.

ISSUE AND STANDARD OF REVIEW

T5 The dispositive issue on appeal is whether the trial court correctly granted Metro's motion for summary judgment, holding that Metro is a BFP meriting protection under the Recording Statute even though the Tingeys never had legal title to the Property. We review a trial court's summary judgment ruling for correctness, affording no deference to the trial court's conclusions of law. See Peterson v. Coca-Cola U.S.A., 2002 UT 42,¶ 7, 446 Utah Adv. Rep. 27, 48 P.3d 941. Summary judgment is appropriate only if "there is no genuine issue as to any material fact." Utah R. Civ. P. 56(c).

ANALYSIS

16 The Recording Statute reads in part as follows:

Each document not recorded as provided in this title is void as against any subsequent purchaser of the same real property, or any portion of it, if:
(1) the subsequent purchaser purchased the property in good faith and for a valuable consideration; and
(2) the subsequent purchaser's doeument is first duly recorded.

Utah Code Ann. § 57-3-1083 (2000). Although the plain language of section 57-3-103 does not specifically require that the subsequent purchaser take title without notice of prior conveyances, Utah courts have included this element as inherent in the good faith requirement. See Ault v. Holden, 2002 UT 33, ¶ 31, 44 P.3d 781; Johnson v. Higley, 1999 UT App 278,¶ 24, 989 P.2d 61. Furthermore, this court has stated that the purpose of the Recording Statute "is not to make the transfer of property effective as between the parties, but to protect the purchaser's interest against the asserted interest of any third parties, and to inform third parties of the existence of pre-existing encumbrances on the property." Horman v. Clark, 744 P.2d 1014, 1016 (Utah Ct.App.1987) (citations omitted). However, the issue of whether a subsequent purchaser may obtain BFP protection when his or her grantor never had legal title to the property is an issue of first impression in Utah. We therefore begin our analysis by looking to other jurisdictions to find the rule most in harmony with existing Utah law.

I 7 The County urges us to adopt a historic approach followed by many courts. Under the historic approach,

The doctrine of bona fide purchaser without notice does not apply where the purchaser buys no title at all. If he buys from one who has title, and it should afterwards appear that another had a better title which he had not recorded, or that there was a fraud in the title of which he had no notice, the purchaser would be protected. But this doctrine cannot apply where no title whatever existed in the vendor. The good faith of a purchaser cannot create a title.

Dodge v. Briggs, 27 F. 160, 166-67 (C.C.S.D.Ga.1886) (emphasis omitted); see also Iowa Land & Trust Co. v. United States, 217 F. 11, 13 (8th Cir.1914) ("The equitable doctrine of a bona fide purchaser without notice does not apply where there is a total absence of title in the vendor. The good faith of a purchaser cannot create a title where none exists."); Lindblom v. Rocks, 146 F. 660, 663 (9th Cir.1906) (same); Kaiser Energy, Inc. v. Department of Envtl. Res., 113 Pa.Cmwlth. 6, 535 A.2d 1255, 1259 (Pa.Commw.Ct.1988) ("It is axiomatic that a person cannot effectively convey property in which he has no ownership rights. The bona fide purchaser concept applies only to purchasers of legal title."); Cook v. Eller, 298 S.C. 395, 380 853, 854 (1989) ("An individual cannot claim bona fide purchaser status if his grantor never had title to the property."). Therefore, under the historic approach, BFP protection does not apply when a grantor lacks legal title because "[the purchaser's] good faith cannot create title" where none exists. Lindblom, 146 F. at 663.

18 However, as Metro points out, some modern courts have rejected the historic approach because of its logical inconsistencies when juxtaposed against the plain language of race-notice recording statutes that are similar to Utah's. For example, in Roberts v. Estate of Pursley, 718 A.2d 837 (Pa.Super.Ct.1998), the appellants had an unbroken chain of title back to 1854, whereas the ap-pellees' chain of title was broken in 1901. See id. at 840. Despite the appellees' broken chain of title, the appellees' predecessor in interest recorded first. See id.

T9 Although appellants could trace their legal title to 1854, the court held in favor of appellees under the BFP doctrine. Based on the Pennsylvania recording statute, the court reasoned:

If "legal title," within the Appellant[s'] definition, were required for a subsequent purchaser to qualify as a bona fide purchaser, the recording statute would not further its intended goals. For instance, in the typical recording statute situation, a grantor sells land to a grantee who does not record the deed; then, a subsequent buyer purchases the same land from the same grantor as the original grantee and this subsequent grantee records his deed before the first grantee. The subsequent grantee does not have "legal title" within the Appellant{s'] definition because at the time the land was sold to him, the grantor did not have legal title to give such right. Yet, notwithstanding the fact that he does not have "legal title," he is a bona fide purchaser if at the time of the sale he was without notice of an adverse interest and value was given for the purchase of the land. As evidenced here, imposing a requirement of "legal title" to the definition of a bona fide purchaser would nearly render the recording statute useless. We, therefore, find no merit in Appellants' argument.

Id. at 841 (citations and emphasis omitted). Therefore, under this view, the historical approach is illogical because the traditional recording act hypothetical does not require the seller to have legal title in order for the subsequent purchaser to receive BFP protection.

1 10 Despite the historical approach's logical inconsistencies, the County argues that reading the Recording Statute in the manner adopted in Roberts creates "absurd consequences" by contradicting the purposes of the Recording Statute and sanctioning fraud in land conveyances. See State v. Redd, 1999 UT 108, ¶ 12, 992 P.2d 986 (stating that courts avoid interpreting statutes in such a manner as to render absurd consequences). The County's argument is compelling because the Roberts rationale fails to acknowledge that the Recording Statute was not enacted for the purpose of making otherwise worthless transactions effective as between the parties. See Horman, 744 P.2d at 1016. However, the reasoning in Roberts exposes the flaw of the historical approach. Thus, both of the approaches heretofore discussed have logical and practical failings that make them inadequate to solve the question at issue in this case. For this reason, we examine the rationale of other courts in adopting a third alternative approach.

1[ 11 A number of courts have adopted the rule that a purchaser may obtain BFP protection if the grantor had apparent legal title, even if he or she did not have perfect legal title. See, eg., Muller v. Hallenbeck, 200 Cal. 366, 19 Cal.Rptr. 251, 255 (1962) ("A bong fide purchaser is«one who can prove possession of his grantor, the purchase of the property, and the payment of the purchase money in good faith and without notice, actual or constructive."); Montana Elec. Co. v. Northern Valley Mining Co., 51 Mont. 266, 153 P. 1017, 1018 (1915) (same); First Nat'l Bank of Plattsmouth v. Gibson, 60 Neb. 767, 84 NW. 259, 260 (1900) (stating rule that purchaser acquires only title that his grantor had at time of sale, unless he bought and paid for property on faith of apparent owner, upon which he was legally justified in relying); Smith v. Huff, 164 SW. 429, 481 (Tex.Civ.App.-Galveston 1914) (holding that purchaser could not have BFP status because grantor never had actual or apparent title to land).

112 Courts that have adopted the apparent title rule implement the Recording Statute without sacrificing a plain language reading. For example, in Montana Electric, the court defined a bona fide purchaser as:

"One who at the time of his purchase advances a new consideration, surrenders some security, or does some other act which leaves him in a worse position if his purchase should be set aside, and purchases in the honest belief that his vendor had a right to sell, without notice, actual or constructive, of any adverse rights, claims, interest, or equities of others in and to the property sold."

153 P. at 1018 (emphasis added) (quoting Foster v. Winstanley, 39 Mont. 314, 102 P. 574, 579 (1909). Thus, the purchaser must take title without notice that the grantor is in fact not the owner.

113 Courts applying the apparent title rule have analyzed several factors to determine whether the purchaser was without notice that the grantor did not have at least apparent title to the property. If the ree-ords are silent on ownership, courts have considered the following: (1) whether the purported owner claimed to own the property, see Pender v. Bird, 119 Utah 91, 224 P.2d 1057, 1059 (1950); (2) whether the purported owner possessed the property, see Ault v. Holden, 2002 UT 38,¶ 42, 44 P.3d 781; Muller, 19 Cal.Rptr. at 255; and (8) whether there was any activity or indication on the property that would raise questions as to who owned the property. See First Am. Title Ins. Co. v. J.B. Ranch, Inc., 966 P.2d 834, 838 (Utah 1998) (stating party on inquiry notice where railroad poles, guy wires, and trolley wires on property subject to adverse claim).

14 We adopt the apparent title rule because it harmonizes the purposes of the Recording Statute. First, by recognizing the need for a grantor to have at least apparent title to make a valid conveyance, the Recording Statute does not validate sham conveyances. Second, it protects purchasers whose honest belief that the purported owner owns the property is supported by legally significant facts.

115 Applying the apparent title rule to this case, we conclude that the trial court was correct in extending BFP protection to Metro. To determine whether Metro was legally justified in its belief that the Tingeys owned the Property, the threshold question is whether the records were silent as to ownership. Metro contends the records were silent regarding ownership because the Utah County Recorders Office had no record owner listed for the Property. The County argues, however, that Metro had a duty to inquire beyond the Utah County records, and had it done so, would have discovered that the Tingeys were not the owners. The Recording Statute states that if a document is recorded in the appropriate county, it provides notice to the world. See Utah Code Ann. § 57-3-102(1) (2000). No statute or Utah case requires a party to conduct investigation beyond the county records unless the party has knowledge of certain facts and circumstances requiring further inquiry. See Johnson v. Higley, 1999 UT App 278,¶ 24, 989 P.2d 61. However, the facts and cireumstances requiring further inquiry do not arise from records unless a statute so provides. See First Am. Title Ins., 966 P.2d at 839 (holding road maps on file in county clerk's office did not provide constructive notice).

116 Since the Utah County records relevant to the Recording Statute were silent as to the owner, the apparent title approach requires that we address the secondary factors. First, the Tingeys asserted that the Tingey family had owned the Property since the turn of the century. Second, the Tingeys were in possession of the Property. Third, the County did not have any signs on the Property or carry out any activity that would lead Metro to believe that the Tingeys were not the owners. Therefore, applying this rule, Metro is entitled to BFP protection because it was legally justified in relying on the Tingeys' claims of ownership.

CONCLUSION

{17 In sum, the trial court was correct in concluding that Metro was a BFP because Metro was legally justified in concluding that the Tingeys were the owners based on the lack of record evidence, the Tingeys' possession of the Property, and the County's failure to post signs or carry on any activity that would raise questions about the Tingeys' title to the Property,. Accordingly, we affirm.

118 WE CONCUR: RUSSELL W. BENCH and GREGORY K. ORME, Judges.

      . As used in this opinion, the term "legal title" means title superior to all others, based on real property legal principles other than the Recording Statute. It is also the term used in several of the opinions cited herein.

      . It is undisputed that Metro purchased the Property for value and recorded first,. The only issue we address in regard to Metro's BFP status is whether it had notice that the Tingeys did not have legal title to the Property.

      . Because we affirm the trial court based on the Recording Statute, we do not reach Metro's adverse possession argument.


author: GOLDEN, Justice.

text:
    2002 WY 124
    Nevins HARDING, Appellant (Defendant), v. George Thomas GLATTER and Joanne R. Glatter, Appellees (Plaintiffs).
    No. 01-47.
    Supreme Court of Wyoming.
    Aug. 26, 2002.
    Ernest A. Roybal, Roybal Law Office, Cody, Wyoming, Representing Appellant.
    Colin M. Simpson of Simpson, Kepler & Edwards, LLC, Cody, Wyoming, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument

   GOLDEN, Justice.

[¶1] Nevins Harding appeals a judgment entered against him in a contract action. George and Joanne Gilatter argue that the appeal was not filed timely, leaving this Court without jurisdiction to hear the appeal. We agree with the Glatters and dismiss the appeal.

ISSUES

[¶2] Harding presents these issues:

1. Whether the Appellees met their Pri-ma Facie burden of clearly establishing that there was no issue of material fact involved as to whether the Appellant made telephone calls to the Internal Revenue Service in Worland, Wyoming and Ogden, Utah on the telephone of R.M. Harding in January and February of 1996.
2. Whether, if the Appellees made a Pri-ma Facie showing that no genuine issue of the [sic] material fact existed concerning who made the mentioned telephone calls and what was discussed, did Appellant meet his burden of demonstrating that a genuine issue of material fact did exist.
3. Whether the Trial Court erred in entering summary judgment because the evidence of the parties sets forth conflicting facts and resolution of the issues depends, at least in part, on the credibility of the witnesses.
4. Whether Summary Judgment is precluded due to the fact that contradictory inferences can be drawn from undisputed evidentiary facts.
5. Whether the "Liquidated damages" clause of the Agreement is punitive in nature and, therefore, unenforceable as against the Appellant.

The Clatters present the issues as follows:

1. Was the Notice of Appeal untimely under Rules 1.08 and 2.07(a), W.R.A.P. so as to deny this Court jurisdiction over the issues raised by Appellant?
2. Has Appellant failed to adequately supply this Court with a record of the proceedings below so as to preclude a review of the lower court's decision?
3. Did the trial court properly grant Ap-pellees' summary judgment on their claim that Appellant violated the parties' "confidentiality agreement"?
4. Did Appellant waive any right to assert that the liquidated damages provision of the confidentiality agreement was a penalty provision by failing to raise this argument in the trial court?
5. Is the liquidated damages provision of the Parties' agreement valid and enforceable?

FACTS

[T3] The parties to this appeal have been involved in previous litigation against each other. The previous litigation culminated in a settlement agreement that contained several confidentiality provisions. The Glatters brought the instant action alleging several causes of action all stemming from their claim that Harding violated a confidentiality provision. The Glatters alleged, among other things, that they were entitled to damages pursuant to a liquidated damages clause in the settlement agreement. Harding answered and asserted several counterclaims against the Glatters.

[T4] A partial summary judgment was entered in November 1999 against Harding awarding damages to the Hatters pursuant to the liquidated damages clause. The Glat-ters immediately filed a precipe for a writ of attachment and a precipe for a writ of execution. The Glatters seized several horses, which prompted a motion to intervene from Cheri Bischoff. Bischoff claimed she owned the horses seized by the Glatters. Bischoff was allowed to intervene and the action proceeded based upon the initial complaint and counterclaims, and on Bischoff's "Petition to Quash the Writ of Execution and for Return of Property Wrongfully Seized" (Intervenor's Petition).

[T5] In November 2000, all remaining claims and counterclaims from the initial complaint and answer were dismissed. On December 4, 2000, an "Order and Judgment" was entered disposing of all issues related to the Intervenor's Petition. On December 5, 2000, Harding, invoking W.R.C.P. 54(b), filed a "Motion for Entry of Final Judgment on Plaintiffs' and Defendants' Claims and Counterclaims." A "Final Judgment on Plaintiffs' and Defendants' Claims and Counterclaims" was entered pursuant to Harding's motion on January 25, 2001 (Final Judgment). Harding filed his notice of appeal on February 28, 2001, appealing the grant of partial summary judgment against him.

DISCUSSION

[T6] The Glatters have questioned the Jurisdiction of this Court to hear this appeal, claiming that the notice of appeal was not timely filed. A notice of appeal must be filed "within thirty days from entry of the appeal-able order." WRAP. 2.0l1(a). Failure to timely file a notice of appeal robs this Court of jurisdiction to hear the appeal. W.R.AP. 1.08. The order being appealed from in this case is the order granting partial summary judgment against Harding entered in November 1999. The central question we must answer is when did that order become ap-pealable, thus triggering the running of the thirty-day time limit in which to file a notice of appeal.

[T7] The order granting partial summary judgment was interlocutory and initially was not certified as appealable pursuant to W.R.C.P. 54(b). Without such a certification, the order on the partial summary judgment was "subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." W.R.C.P. 54(b). The corollary of this rule is that, barring certification pursuant to Rule 54(b), all interlocutory orders become final and appealable onee all the substantive claims of all the parties have been finally adjudicated and nothing is left for future consideration by the district court.

[¶8] The CGlatters argue that there were no further issues outstanding between any of the parties as of the December 4 order. If this is true, then as of December 4, the litigation was ended. All prior interlocutory orders became appealable as of December 4, 2000. Rule 54(b) no longer had any application to the case since all claims against all parties had been adjudicated. Thus, Harding's December 5 motion and the ensuing judgment entered were not only unnecessary, they were unauthorized under the Wyoming Rules of Civil Procedure. The motion and judgment were, in effect, nullities and had no affect on the time for filing a notice of appeal. Harding's notice of appeal, filed in February 2001, was untimely, and this Court has no jurisdiction to hear this appeal.

[¶9] Harding does not seem to dispute that all issues as to all parties were determined as of the December 4 order. Harding did not brief the issue. His only statement on the issue came at oral argament when his attorney protested that he had never seen the December 4 order. Harding's attorney commented: "had I known about the other order, I would have simply relied on that order as the date when the final judgment was entered." Given this concession, the only potential argument that might exist would stem from the statement at oral argument from Harding's attorney that Harding was unaware of the December 4 order. Obviously, however, we are given no cogent argument or pertinent authority as to how Harding's being unaware of the December 4 order affects the question of the timely filing of his notice of appeal. We therefore refuse to consider any such potential argument. VIL v. RED, 2002 WY 25, ¶¶ 20, 21, 22, 39 P.3d 1110, 1114 (Wyo.2002) (declining to address an issue unsupported by cogent argument or pertinent authority). Given the state of the record and arguments before us, we determine that the order granting partial summary judgment against Harding became appealable on December 4, 2000.

CONCLUSION

[T10] Pursuant to W.R.AP. 2.01(a), an appeal must be taken within thirty days from the entry of an appealable order. Failure to timely file a notice of appeal constitutes a jurisdictional bar to appellate review. W.R.AP. 1.03. The December 4, 2000, order, taken in conjunction with the previous orders in the case, constituted a complete adjudication of the rights and Habilities of all parties to the action. The order granting partial summary judgment against Harding thus became appealable as of December 4, 2000. Harding did not file his notice of appeal until February 23, 2001. This appeal is untimely and is therefore dismissed.

      . In fact, Harding attempted to appeal the order granting the partial summary judgment upon its initial entry but the appeal was dismissed without prejudice upon Harding's motion.