This opinion is subject to revision before final

p ublication in the Pacific Reporter

2014 UT 60

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

U TAH R ESOURC ES I NTERNATIONAL

, I NC

.,

a Utah Corporation

, Appellant

,

v.

M ARK T ECHNOLOGIES C ORPORATION and

K ENNETH G. H ANSEN

, Appellees

.

No. 20130131

December 23 , 2014

Third District, Salt Lake

The Honorable Deno G. Himonas

No. 040918982

Attorneys:

John H. Bogart, Salt Lake City, C raig M. White, Chicago, IL,

for appellant

Bruce J. Boehm, Salt Lake City, for appellees

C HIEF J USTICE D URRANT authored the opinion of the Court, in which

A SSOCIATE C HIEF J USTICE N EHRING

, J USTICE D URHAM
, J USTICE P ARRISH

, and J USTICE L EE joined.

C HIEF J USTI CE D URRANT , opinion of the Court:

Introduction

¶1 After the district court denied Utah Resources International, Inc.’s (URI) amended motion to stay enforcement of the judgment (Amended Motion) in this appeal’s companio n case ( valuation case), URI filed an app lication for a stay with this court under rule 8 of the Utah Rules of Appellate Procedure, asking for essentially the same

relief. While that application was pending, URI filed a separate appeal, arguing that the district court improvidently denied its

req uest to abate interest as a term of the stay under rules 62 and 60(b) of the Utah Rules of Civil Procedure

. We later denied URI’sURI v. MTC

Opinion of the Court

2 request under rule 8 but permitted the parties to brief the issue of whether this appeal was moot because we had denied URI’s rule 8 motion. The parties instead briefed the question of whether the

valuation case was moot

— a question that we address separately in that appeal. 1

¶2 As we clarify in our opinion below, the district court did not abuse its discretion in refusing to abate interest under rules 62 and 60(b) of the Utah Rules of Civil Procedure. District courts do not have authority to abate interest under rule 62, and URI never requested relief under rule 60(b) with the district court. Accordingly, the district court did not abuse its discretion in denying URI’s

Amended Motion.

Background

¶3 In June 2004, appellant URI conducted a share consolidation transaction. Appellees M ark Technologies Corporation (MTC) and

K enneth G. Hansen dissented ( Dissenters). Section 16

- 10a

- 1302 of the Utah Code entitles such dissenters to payment of the fair value of their shares, but the parties were unable to agree to the fair value.

Pursuant to section 16

- 10a

- 1330 of the Utah Code, URI petitioned the

district court to determine the fai r value of the shares. In May 2012, the district court entered judgment, determining that the fair value of each share was $10,722. The district court award ed MTC $1,347,090.61 plus ten percent interest compounded annually and

awarded Mr. Hansen $335,002.50 plus ten percent intere st compounded annually. The merits of that determination are before this court in a separate appeal.

¶4 In response, URI filed a motion with the district court under rule 62 of the Utah Rules of Civil Procedure to stay execution pending the appeal. In its motion, URI requested that, in lieu of a supersedeas bond, the district court allow URI to deposit with the court the principal amount of th e judgments, plus thr ee years of

interest. Per rule 62(j)(2)(A ), this is the presumptive amount the court should require to stay execution. Shortly after URI filed this motion, the Dissenters began execution proceedings and recorded the judgment, which cre ated a lien ag ainst URI’s property.

¶5 Before the district court ruled on the motion, and in an effort to stave off the compounding interest, URI sent an email to the Dissenters, asking if they would be interested in entering into an

a lternative agreement. In the email, URI proposed to pay the Dissenters the full judgment amount

, but with key stipulations that

1 Utah Res. Int’l, Inc. v. Mark Techs. Corp.

, 2014 UT 59 , ¶¶ 28

– 33

.Cite as: 2014 UT 6 0

Opinion of the Court

3 are now the center of this controversy: (1) that URI preserves its right to appeal, (2) that the payment stay s the judgment, ( 3 ) that all liens

are rele ased, ( 4 ) that further interest on the judgment is waived, ( 5 ) that the Dissenters repay URI to the extent the judgments are altered on appeal, and ( 6 ) that the judgments be deemed satisfied

and that a satisfaction of judgment be filed should the j udgments be affirmed on appeal.

¶6 Before the Dissenters responded, the district court granted

URI’s m otion to stay, provided that it deposit the principal amount plus three years’ worth of interest. The motion was granted without prejudice to URI’s right to pay the judgment in lieu of or subse quent to the deposit. Thereafter, Mr. Hansen informed URI that he would not agree to URI’s proposed payment stipulations, and MTC proposed a few changes to the agreement, including that interest continue to accrue at five perce n t during the appeal. In the end, the parties did not enter into any agreement.

¶7 A week after the court approved its initial stay request , URI

filed its Amended Motion , seeking two changes to its original motion. First, it sought permission to deposit only t he amount it owed at that point to the Dissenters, without any future interest.
Second, it asked the district court to order that the accrual of interest was abated because the Dissenters rejected URI’s offer to pay the judgment by the previously mentioned stipulations. The district court denied the Amended Motion, citing its lack of statutory or equitable power, but the judge did note that URI’s willingness to pay the judgments centered on its desire to abate interest and not to

wai ve its right to appeal. The present appeal , which was filed on February 5, 2013, stems from this order.

¶8 At the suggestion of the district court, URI paid part of the judgments in the amounts of $750,000 to MTC and $185,000 to Hansen. In the letter delivering the payment, URI sta ted that it did not intend to waive its current appeal and that it was paying only to

abate interes t and reduce the threat of post judgment enforcement

pr oceedings. The Dissenters accepted the payments and filed partial satisfactions of judgment.

¶9 On Janua ry 17, 2013, the Dissenters obtained a supplemental order directing URI to appear for a debtor’s examination. On January 25, URI filed a motion with the district court to vacate that order, which was denied. On the same day, URI filed a new motion

to stay execution directly with this court under rule 8 of the Utah Rules of Appellate Procedure. We denied URI’s motion and further requested that the parties submit memoranda addressing theURI v. MTC

Opinion of the Court

4 question of whether our denial of URI’s rule 8 motion mooted URI’s

appea l of the district court’s denial of the Amended Motion. In the end, we deferred our consideration of mootness until plenary consideration of the merits of URI’s appeal.

¶10 In April 2013, URI informed the Dissenters that it had placed the remaining amount of the judgment, with interest, in a single bank account. URI stated that it placed the money in a single

account in hopes of forestall ing the Dissenters’ enforcement efforts. As of today’s date

, the Dissenters have not collected the money. We have juri sdict ion pursuant to Utah Code s ection 78A

- 3

- 102(3)(j).

Standard of Review

¶11 URI brings its challenge under rules 62 and 60(b) of the Utah

Rules of Civil Procedure. As to URI’s request for a stay under rule 62, ―[t] he decision to stay enforcement of a judgment is within the

di scretion of the reviewing court,‖ 2 and we review the district court’s

denial of URI’s Amended Motion for an abuse of discretion. 3
Furthermore, ―a district court has broad discretion in ruling on a motion to set aside an order or judgment u nder rule 60(b), and [t] hus, we review a district court’ s denial of a 60(b) motion under an

abuse of d iscretion standard.‖ 4

Analysis

¶12 URI challenges two interrelated aspects of the district court’s ruling below: (1) its failure to grant a stay under URI’s

d esired conditions and (2) its failure to abate interest as of June 11,

2012

— the date on which URI claims it properly tendered payment of the judgment. At bottom, however, URI is merely challenging the district court’s refusal to approve a lesser amount of security by abating interest, since the court already approved URI’s previous request for a stay conditioned on a deposit of the presumptive statutory security amount.

2 Jensen v. Schwendiman , 744 P.2d 1026 , 1027 (Utah Ct. App. 1987).

3 See Olympia Equip. Leasing Co. v. W. Union Tel. Co ., 786 F.2d 794, 798 (7th Cir. 1986) (―The judgment [the district court judge] had to make‖ in approving an alternative form of security u nder Federal Rule of Civil Procedure 62 ―was discretionary

— equitable

— judgmental

— in a strong sense which limits the scope of appellate review.‖).

4 Metro. Water Dist. v. Sorf , 2013 UT 27, ¶ 12, 304 P.3d 824 (alteration in original) (internal quotation marks omitted).Cite as: 2014 UT 6 0

Opinion of the Court

5 ¶13 As explained below, the district court did not err in declining to abate interest, and it was correct in ruling that it lacked authority to abate interest under rule 62 . Furthermore, we do not review URI’s rule 60(b) challenge, since URI never filed a rule 60(b)

motion in the district court. To properly obtain review of the

abatement of inte rest issue , URI needed to tender payment of the judgment and then seek a satisfaction of judgment with the district

court under rule 58B of the Utah Rules of Civil Procedure. URI never tendered payment of the judgment, let alone file d a motion under

rule 5 8B. The district court therefore did not abuse its discretion in denying URI’s request to abate interest.

I. The District Court Properly Declined to Abate Interest and

Grant an Alternative S tay Request

¶14 As we explain below, it was not error for the distric t court to

refuse to abate interest under rule s 62 and 60(b) , since district courts do not have authority to do so under rule 62, and because URI never requested relief in the district court under rule 60(b) . Furthermore, we clarify that a party’s request to abate interest is properly done under rule 58B by seeking a satisfaction of the judgment.

A. A Party May Both Apply for a Stay Under Rule 8 and Appeal From a District Court’s Order Denying Its Request for a Stay Under Rule 62

¶15 Under rule 62(d) of the Utah Rules of Civil Procedure, a judgment debtor may seek a stay of execution from a judgment ―by giving a supersedeas bond.‖ If the district court denies the judgment debtor’s request, or fails to grant the specific relief requeste d, the judgment debtor may file an application for a stay in the appellate court pursuant to rule 8 of the Utah Rules of Appellate Procedure. In that instance, our review of the application is de novo , though the application must show ―that the trial court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the trial court for its action.‖ 5

¶16 Additionally, the judgment debtor may challenge the district court’s denial of his request for a stay under rule 62 by separately appealing from the order. The Diss enters argue that this is

a non appealable order, and that this court therefore lacks j urisdiction to hear the appeal. In support of this position, they cite to McVinnie v. University of Utah Hos pital , a court of appeals case, wherein the court ruled that it was improper to appeal from a denial of a motion

5 U TAH R. A PP

. P. 8(a).URI v. MTC

Opinion of the Court

6 to stay. 6 But apart from this case, the Dissenters do not cite, and we do not find, any authority in our caselaw or rules that would preclude a judgment debtor from appealing from such an order. Quite the contrary, rule 3 of the Utah Rules of Appellate Procedure states that parties may ―appeal from all final orders and judgments‖ issued by a district court. 7 This includes all final postjudgment

o rders, though postjudgment orders are also ―independently subject to the test of finality, according to their own substance and effect.‖ 8 A denial of a motion to stay enforcement under rule 62 is a final postjudgment order as well, since ―the effect of the order . . . [is] to determine substantial rights . . . and to terminate finally the litigation.‖ 9

¶17 The effect of a party’s appeal from an order under rule 62 is also different in kind than an application for a stay under rule 8. For instance, our expedite d review under rule 8 is limited to the facts of the case and whether a stay is warranted; we neither defer to the district court, nor do we correct errors in the district court’s ruling. By contrast, a party may challenge the district court’s order under rule 62 in a separate appeal, at which time we will review the district court’s order for an abuse of discretion and correct any errors in the district court’s judgment, including misinterpretations or misapplications of the governing rules. Here, URI’s on ly opportunity to challenge the district court’s interpretation of its authority under rule 62 was in filing an appeal from the district court’s order. Accordingly, parties may both apply for a stay under appellate rule 8 and appeal from an order under civ il rule 62, depending on the nature of their challenge. Although as discussed in the following section, district courts do not have authority to abate interest under rule 62, so URI’s challenge in this case fails.

B. T he District Court Lacked Authority to Abate Interest Under Rule 62

¶18 Rule 62(d) of the Utah Rules of Civil Procedure allows district courts to stay enforcement of a judgment pending appeal, but it requires the appellant to give a supersedeas bond to obtain the stay. In lieu of a supersedeas bon d, the court may permit one of two alternatives: first, the court ―[u]pon m otion and good cause shown,

6 2004 UT App 63 U, para. 5 (per curiam) (―Rather than an appeal, a properly supported motion for stay should have been filed in the appellate court after th e trial court’ s denial.‖)

7 U TAH R. A PP

. P. 3( a) (emphasis added).

8 Cahoon v. Cahoon , 641 P.2d 140, 142 (Utah 1982).

9 Id

.Cite as: 2014 UT 6 0

Opinion of the Court

7 . . . may permit a deposit of money in court or other security to be given in lieu of giving a supersedeas bond;‖ 10 second, the parties may either stipula te to waive the bond requirement altogether, or they may ―agree to an alternate form of security.‖ 11

¶19 Unless the parties stipulate to waive the bond requirement, district court judges must apply one of the forms of security prescribed by the rule. And regard less of the specific form in which the security is given, the security must be ―in an amount that adequately protects the judgment creditor against loss or damage occasioned by the appeal.‖ 12 The rule then provides several factors to consider in setting thi s amount, but goes on to note that, despite these factors, ―the presumptive amount of a bond for compensatory damages is the amount of the compensatory damages plus costs and attorney fees, as applicable, plus 3 years of interest at the applicable

interest rate .‖ 13 Here, the applicable intere st rate was set by statute at

ten percent, compounded annually. 14

¶20 The rule do es permit district courts to approve a bond

amount that is less than the judgment or even the presumptive amount described above. In fact, one of the factors the court may consider in setting the amount of security is ―the respective harm to the parties from setting a higher or lower amount.‖ 15 Furthermore,

the rule pr ovides that ―[i]f the court permits a bond that is less than the presumptive amount of compensatory damages, the court may also enter such orders as are necessary to protect the judgment creditor during the appeal.‖ 16 But even though the rule permit s distri ct courts to approve a lesser amount of security, their decision to do so is entirely dependent on whether that amount would ―adequately protect[] the judgment creditor against loss or damage

10 U TAH R. C IV

. P. 62(i)(2).

11 Id . 62(i)(3).

12 Id . 62(j)(1).

13 Id . 62(j)(2)(A) (emphasis added).

14 U TAH C ODE § 15

- 1

- 1(2); see also id . § 16

- 10a

- 1301 (5) ( defining

interest as ―interest f rom the effective date of the corporate action until the date of payment, at the statutory rate set forth in Section 15

- 1

- 1, compounded annually‖).

15 U TAH R. C IV

. P. 62(j)(1)(E) (emphasis added).

16 Id . 62(j)(3) (emphasis added).URI v. MTC

Opinion of the Court

8 occasioned by the appeal.‖ 17 Absent an order protecting the judgm ent creditor in some additional way, an amount of security that excludes interest will not adequately protect the judgment creditor against losses during the pendency of the appeal.

¶21 Here, URI contends that it does not challenge the amount of the security r equired by the court, but rather challenges the fact that ―the district court passed on the question‖ of the revised security request following its alleged tender of payment. We conclude that the district court did not err, since rule 62 prevented the cour t from approving URI’s request. As shown above, the district court was required under rule 62 to approve an amount of security that would protect the Dissenters during the pendency of the appeal. Having failed to properly tender payment of the judgment, as discussed
below, 18 interest continued to accrue from the effective date of the corporate action, and the district court lacked the authority under rule 62 to abate interest from URI’s requested date. Accordingly, the

district court did not abuse its discre tion in declining to abate interest, since it had no authority to do so under rule 62

. C. Rule 60(b) I

s an Improper Route to Seek Abatement of Interest, and URI Never Properly Raised a Request Under Rule 60(b) Regardless

¶22 On appeal, URI also argues that th e district court erred in not abating interest under rule 60(b) of the Utah Rules of Civil Procedure. As discussed below, URI never made a proper request under rule 60(b), and district courts do not have authority to abate interest under rule 60(b) even if URI had properly captioned its request. We accordingly reject URI’s argument and affirm the district

court’s refus al to rule on the abatement of interest issue on this argument as well.

1. URI’s Motion W as Not a Rule 60(b) Motion

¶23 To begin, URI argues tha t the second request in its Amended Motion (its request to abate interest) was essentially a request under rule 60(b)(5)

— that it was ―no longer equitable that the judgment should have prospective application.‖ But we cannot review URI’s request under rule 60(b) because URI in no way argued for relief under rule 60(b) before the district court.

¶24 When a post

judgment motion does not properly reference the appropriate rule, we have repudiated the practice of rescuing such motions by construing them in accordance with our rules of

17 Id . 62(j)(1).

18 See in fra ¶¶ 34

– 40

.Cite as: 2014 UT 6 0

Opinion of the Court

9 procedure. In Worker s Compensation Fund v. Argonaut Insurance Co.

, the appellant had filed an ―objection to judgment‖ with the district court and on appeal argued that the motion should be construed as

either a rule 59 motion or a rule 6 0(b) motion. 19 We declined to do so and noted that ―the form of a rule 60(b) motion does matter and attorneys requesting relief under rule 60(b) should notify the court that they are seeking relief under that rule.‖ 20 Failing to cite the proper rule places t he burden of research and argument on the court and also prejudices the opposing party by making it more difficult to respond to the motion. 21 Further, the rules ―are designed to provide a pattern of regularity of procedure which the parties and the courts can follow and rely upon.‖ 22 Allowing parties to change the form of their motions on appeal invites exactly the kind of confusion our rules were designed to avoid.

¶25 URI attempts to distinguish our decision in Argonaut by contrasting it with our more recent d ecision in In re Discipline of

Rasmussen

. 23 In Rasmussen , we held that a district court may entertain a rule 60(b) motion not expressly argued as such. We distinguished Argonaut by noting that there is a diffe rence between a ―district

court’ s denial of a motion for failure to identify its essential basis ‖

and ― a decision granting a motion that we now deem properly presented.‖ 24 Because the district court could have viewed the request as a motion under rule 60(b) and chose to grant it, we

affirmed the decision. This stands in direct contrast with Argonaut

, where the district court denied the motion. In summary, a district court may consider a motion under rule 60(b) even if the movant does not argue it as such, but the movant cannot, on appeal

, recharac terize a motion as a rule 60(b) motion when it was never

considered as such below.

¶26 The situation in this case is governed by Argonaut . URI never cited rule 60; rather, it raised both of its requests (for a stay

19 2011 UT 61, ¶ 1, 266 P.3d 792.

20 Id. ¶ 13; see also Gillett v. Price , 2006 UT 24, ¶ 8, 135 P.3d

861 (―Hereafter, when a party seeks relief from a judgment, it must
turn to the rules to determine whether relief exists, and if so, direct

the court to the specific relief available.‖).

21 Argonaut , 2011 UT 61, ¶ 13.

22 Id. (internal quotation marks omitted).

23 2013 UT 14, 299 P.3d 1050.

24 Id. ¶ 14.URI v. MTC

Opinion of the Court

10 and to abate interest) under rule 62, citing only to rule 62. The district

court denied the motion and as in Argonaut , the court did not err in failing to construe the motion under rule 60(b), because the rule was never cited, and further, no language from rule 60(b) was employed

in URI’s motion. To rule otherwise would place a greater weight of research and argument on district courts

— a practice we repudiated

in Argonaut . While Rasmussen does permit a district court to consider a request for relief as, in effect, a motion under rule 60(b), it does n ot make it error to fail to do so, and the Dissenters should have been afforded the opportunity to respond to a motion that was properly captioned under rule 60(b). Accordingly, we decline to review the motion as a rule 60(b) motion.

2. Rule 60(b) Does Not Give District Courts Authority to Abate

Interest

¶27 Even if we were to review URI’s request as a rule 60(b) motion, the rule does not give district courts authority to abate interest. URI argues that it requested relief under rule 60(b)(5), which

states:

[T] he court may in the furtherance of justice relieve a party or his legal representative from a final judgm ent, order, or proceeding [if] . . . the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reve rsed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. 25

There is no dispute that a denial of a post judgment motion under rule 60(b)(5) is a final order, so the only real question is whether it

was ―no longer equitable that the judgment should have prospective application.‖ This raises two sub

- issues: (1) which situations favor

inv oking a court’s power of equity and (2) whether a party is challenging the ―prospective‖ effect of a judgment or is seeking to alter the terms of a judgment that is remedial in nature. URI argues
that the district court should have abated interest under this rule, since it would have been inequitable to continue to compound interest after the Dissenters refused tender of paymen t. We disagree, since this rule does not give district courts authority to abate interest.

¶28 To begin , the court’s power of equity is only to be applied under the rule when highly significant changes alter the landscape of a judgment

— for instance, ―subsequent legislation, a change in the

25 U TAH R. C IV

. P. 60(b) (5)

.Cite as: 2014 UT 6 0

Opinion of the Court

11 decisional law, or a change in the operative facts.‖ 26 And ―the

burde n will be high on those seeking relief on this ground as they must demonstrate extraordinary circumstances justifying relief.‖ 27

¶29 Next , rule 60(b)(5) ―applies to any judgment that has prospective effect‖ but does not apply where a party seeks to alter a judg ment that remedies a past wrong. 28 In other words, aggrieved parties cannot seek relief under 60(b)(5) from a term of the judgment that addresses past action

— it ―does not allow relitigation of issues that have been resolved by the judgment. Instead it refer s to some change in conditions that makes continued enforcement inequitable.‖ 29 And in determining what a ―prospective‖ effect of a judgment is, many circuit courts have held that a ―judgment operates prospectively if it requires a court to supervise changing conduct or conditions that are provisional or tentative.‖ 30 The vast majorit y of these cases deal with injunctions or consent decrees where the terms of the judgment have continued application. 31 For instance, many of these cases deal with institutional reform and

26 11 C HARLES A LAN W RIGHT & A RTHUR M ILLER
, F EDERAL

P RACTICE AND P ROCEDURE § 2863 (3d ed. 2014) (footnotes omitted). In our analysis of this rule, we turn to federal rules for guidance ―[b]ecause the Utah Rules of Civil Procedure are patterned after the

Federal Rules of Civil Procedure.‖ Bichler v. DEI Sys., Inc ., 2009 UT 63, ¶ 24 n.2, 220 P.3d 1203.

27 W RIGHT & M ILLER
, supra note 26 , § 2863

.

28 Id.

29 Id . (footnote omitted).

30 Moody v. Empire Life Ins. Co. ( In re Moody

) , 84 9 F.2d 902, 906 (5th Cir. 1988); s ee also Hall v. C

. I

. A

. , 437 F.3d 94, 101 (D.C. Cir. 2006) (noting that rule 60(b)(5) is addressed to executory decrees and those requiring supervision of changi ng circumstances or conditions); Cook v. Birmingham News , 618 F.2d 1149, 1152 (5th Cir. 1980) (―The

distinction is bet ween restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative. Any co ntinuing injunction, for example, would have the requisite prospective effect.‖ (inte rnal quotation marks omitted)).

31 W RIGHT & M ILLER
, supra note 26 , § 2863 (compiling cases).URI v. MTC

Opinion of the Court

12 situations where an emergency situation leads to a party’s inability to comply with the terms of a consent decree. 32

¶30 URI’s request here does not qualify under either inquiry. First, URI is seeking to alter a judgment that is remedial in nature; the judgment here does not have prospective application and will

terminate immed iately upon satisfaction. ―Interest‖ is a specifically defined term under the statute, and prevailing parties are afforded interest by law until the judgment is satisfied. URI attempts to characterize the issue of interest differently, but interest is not a ―prospective‖ effect of a judgment as contemplated by rule 60(b)(5). District courts do not need to supervise the assessment of interest, nor is it a tentative or provisional condition of the judgment. Rather, the statute mandating the payment of ten per cent compounding
interest is remedial in nature, protecting shareholders who have not been paid the fair value of their respective shares . Because the relief URI seeks cannot be granted under rule 60(b)(5), the district court did not err in denying URI’s r equest to abate interest.

D . A Satisfaction of Judgment Under Rule 58B I s Required in

Order to Abate Interest

¶31 Instead of seeking to abate interest under rules 62 and 60(b), parties may end the accrual of interest by satisfying the judgment

under rule 58B of the Utah Rules of Civil Procedure

. Because URI failed to seek this relief, the district court did not err in passing on the abatement of interest question. Furthermore, since URI failed to even properly ―tender‖ payment of the judgment, interest never

a bated in this case.

¶32 W e have ruled previously that ―[a]n appeal does not stop the running of interest. To obtain such a result, the obligor must make a tender that is rejected by the obligee.‖ 33 This rule rai ses two questions that our case law has yet to clar ify: (1) the procedure by

which an obligor may seek to abate interest and (2) what constitutes

a valid ―tender‖ that would serve to abate interest.

¶33 First, a party may seek to validate its purported tender in order to abate interest on the judgment under r ule 58B either ―by acknowledgement or order.‖ 34 If a judgment debtor offers a ―full satisfaction of the judgment,‖ the judgment creditor must, ―[w]ithin

32 Id

.

33 Utah County v. Brown , 672 P.2d 8 3, 87 n.9 (Utah 1983) ( citation omitted).

34 U TAH R. C IV

. P. 58B(c).Cite as: 2014 UT 6 0

Opinion of the Court

13 28 days,‖ ―file an acknowledg ment of satisfaction in the court in which the judgment was entered.‖ 35 If t he judgment creditor fails to do so, the judgment debtor may file a motion with the district court and, with ―satisfactory proof,‖ the court may ―enter an order declaring the judgment satisfied.‖ 36 Once obtained, the order serves to ―discharge [] the judgmen t, and the judgment ceases to be a lien as to the debtors named and to the extent of the amount paid.‖ 37 The ―satisfactory proof‖ necessary for the court to enter such an order may include proof of acceptance of payment or, in the case where payment is refu sed, it may include proof that the judgment debtor validly tendered payment. In either case, interest will abate as of the date of the tender of the payment, as long as the tender is valid and not ―[a] mere offer to pay.‖ 38

¶34 This brings us to the second que stion of what constitutes a valid tender. As we acknowledged in Fitzgerald v. Corbett , valid tender must be ―(1) timely, (2) made to the person entitled to payment, (3) unconditional, (4) an offer to pay the amount of money due, and (5) coupled with an act ual production of the money or its equivalent.‖ 39 The parties do not dispute th e timeliness of the purported tender, that it was made to the person entitled to payment, or that the amount in question was the amount of money due. But the parties do dispute whether there was an ―actual product ion‖ of the money in this case and whether URI’s purported

tender was unconditional.

¶35 We conclude, and agree with the Dissenters, that there was no ―actual pro duction‖ of money in this case. A party may be

excuse d from extending actual payment of a judgment if it is obvious that the other party would reject it. As URI notes, ―[a]n exception to the general requirements of a valid tender arises where it is plain and clear that a tender, if made, would be an idle

cer emony and of no avail.‖ 40 But this argument cannot be made where the party attempting to invoke the exception has never made

an offer of payment to begin with

— there must be evidence that the

35 I d. 58B(a).

36 Id. 58B(b).

37 Id. 58B(c).

38 Fitzgerald v. Corbett , 793 P.2d 356, 359 (Utah 1990).

39 Id. (footnotes omitted) (internal quotation marks omitted).

40 Id. (internal quotation marks omitted).URI v. MTC

Opinion of the Court

14 debtor would actually make payment but for the creditor’s refusal to accept it.

¶36 To illustrate, in Zion’s Properties, Inc. v

. Holt , a buyer missed the deadline for the final payment on a piece of property, thus forfeiting the property under contract. 41 The buyer argued that it tendered payment before the deadline, but we concluded that it just ―discussed with the defendants the prospect that payment would be made [under] certain conditions.‖ 42 We did not address what the conditions were, but found that the gesture was not a valid offer. 43

¶37 URI’s communi cation with the Dissen ters ( May 31 email)

resembles the situation in Zion’s Properties . It stated:

Aside from the appraiser fees, we have also been exploring the possibility of simply paying your clients the current judgment amounts, rather than depositing the money with the c ourt, in order to abate the continued accrual of compound interest while still preserving URI's appellate rights. We think the simplest and most straightforward way to do this would be to enter into a stipulation providing that the judgments are stayed ind efinitely and any liens are released, that further interest on the judgments is waived, that your clients would be required to repay URI to the extent the judgments are later reduced or reversed on appeal, and that, i n the event they are ultimately affirme d, the judgments would be deemed fully satisfied by this payment and a satisfaction of judgment would be filed.

Would you please let me know as soon as possible if your clients would consider such an arrangement? If so we will begin drafting a proposed st ipulation.

The Dissenters’ re action to this e mail was mixed. On June 11, Hansen rejected URI’s proposal, while MTC countered with other stipulations.

¶38 The language used in this e mail evidences the lack of any
definitive offer, since the parties appear to b e engaging in negotiations for how payment

— if ever

— would be made. Stated otherwise, there was nothing for the Dissenters to ―accept‖ because

41 538 P.2d 1319, 1320

– 21 (Utah 1975).

42 Id. at 1322.

43 Id.Cite as: 2014 UT 6 0

Opinion of the Court

15 the proposed stipulation had not even been drafted at that point. URI’s suggestions here are not definitive enough to be considered a tender of payment.

¶39 The parties also dispute whether URI’s purported tender

was unconditional. In conjunction with its email, URI proposed that the parti es stipulate to the following: (1) URI’s appellate rights would be preserved, (2) the judgments would be stayed, (3) all liens would be released, (4) future interest would be waived, (5) the Dissenters would repay the judgme nt in case of reversal, and (6) payment would be deemed fully satisfied if affirmed. But we

have no need to addres s whether these conditions rendered URI’s purported tender conditional because URI never made an actual production of money, which independently invalidates the purported tender

. ¶40 In sum, in order to establish that interest had abated, URI

needed to tender payment and then seek a satisfaction of judgment under rule 58B, which it failed to do. Accordingly, the district court properly avoided ruling on the abatement of interest question, since such a request was not properly before it. Furthermore, as we

discu ssed above, to even seek a satisfaction of judgment, URI needed to first tender the full amount of the judgment

— whether or not the tender was ultimately accepted. B ecause URI’s proposed stipulation was in the context of negotiations to pay

— rather than an o ffer to

pay

— its t ender was invalid in any event.

Conclusion

¶41 T he district court did not err in refusing to rule on the abatement of interest issue under rules 62 and 60(b), since district courts are not empowered to abate interest under these rules. Instead, URI could have abated interest by tendering payment and

the n seeking a satisfaction of judgment under rule 58B. Because URI

failed to both submit a valid tender and seek a satisfaction of judgment, it was not error for the district court to refuse to rule on the abatement of interest issue. We accordingly affirm t he judgment

of the district court.