2023 UT App 124

THE UTAH COURT OF APPEALS

GEOMETWATCH CORPORATION,

Appellant,

v.

UTAH STATE UNIVERSITY,

Appellee.

Opinion

No. 20210654-CA

Filed October 19, 2023

First District Court, Logan Department

The Honorable Brian G. Cannell

No. 190100294

Peggy Tomsic, James E. Magleby, Adam Alba, and 

Yevgen Kovalov, Attorneys for Appellant

Sean D. Reyes, Peggy E. Stone, and 

Joshua D. Davidson, Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

HARRIS, Judge:

¶1 GeoMetWatch Corporation (GMW) sued Utah State 

University (USU) for breach of a shareholder agreement. USU 

denies ever signing the agreement, and no copy of the agreement 

signed by USU exists in the record. Nevertheless, GMW asserted 

that USU had manifested its assent to the agreement in other 

ways. At the close of fact discovery, USU moved for summary 

judgment, asserting that, even though it was a shareholder of 

GMW, it had never signed or otherwise agreed to the terms of the 

agreement in question, and that the agreement was in any event 

unenforceable under the statute of frauds. GMW opposed USU’s 

motion, and also filed a motion of its own asking for more time to 
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conduct discovery. The district court granted USU’s motion, 

concluding that, on this record, no genuine issue of material fact 

existed about whether USU had agreed to be bound by the 

shareholder agreement. The court also denied GMW’s motion for 

additional discovery. GMW appeals both rulings, and we affirm. 

BACKGROUND

¶2 GMW is a “global weather services company” that sought 

to develop a weather-detecting satellite sensor system. In 2009, 

GMW entered into discussions with USU about the university 

acting as a potential contractor to build part of the sensor system. 

Eventually, USU agreed to work with GMW through an affiliated 

corporate entity, the Utah State University Research Foundation 

(USURF), a wholly owned subsidiary of USU. In 2010, as part of 

this arrangement, USURF purchased shares of GMW stock, 

paying about $2 million for a 5.77% ownership interest in GMW.

¶3 In January 2013, USU asked GMW to issue USU a stock 

certificate for the GMW shares that had been earmarked for 

USURF. About a month later, GMW delivered the stock certificate 

to USU, along with a cover letter signed by GMW’s president 

(President). The certificate—dated October 2012 and signed by 

President—proclaimed that “Utah State University” was the 

owner of “Six Hundred Sixty Six Thousand Six Hundred Sixty 

Seven” shares of GMW stock. Other than a request that USU 

confirm receipt of the certificate, neither the cover letter nor the 

certificate contained any restrictions or asked USU to take any 

action; in particular, GMW did not reference any condition that 

needed to be fulfilled before USU became a shareholder of GMW, 

and GMW did not at that time ask USU to sign any sort of written 

agreement in order to become a shareholder.

¶4 Thereafter, USU behaved, in material ways, consistent 

with its status as a GMW shareholder. It held itself out to others 
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as a company shareholder. Several months later, it asked that a 

USU representative be named to GMW’s board of directors. And 

in 2014, it asked to exercise its right, “[a]s a shareholder of” GMW, 

to inspect GMW’s books and records.

¶5 In April 2013, about two months after sending USU the 

unrestricted stock certificate, GMW sent USU two copies of a 

“Shareholder Book” containing several different agreements;

GMW asked USU to sign both copies of the agreements, keep one 

signed copy, and send the other back to GMW. One of the 

agreements in the Shareholder Book was a “Preferred Stock 

Purchase Agreement” (the Purchase Agreement) under which 

USU would, among other things, agree that it was a purchaser of 

the stock. Another of the agreements in the Shareholder Book was 

a “Shareholder Agreement” which contained the following

provisions, among others:

• A “business opportunity” provision under 

which each shareholder would agree that “any 

business opportunity that comes to the attention 

of” the shareholder “belongs to the 

[c]orporation.” 

• A non-competition provision under which each 

shareholder would agree not to compete with 

GMW “while a [s]hareholder” and “for a period 

of 2 years” thereafter.

• A non-solicitation provision under which each 

shareholder would agree, “while a 

[s]hareholder” and “for a period of 2 years” 

thereafter, not to solicit GMW employees to 

leave the company.

¶6 USU maintains that it did not sign any of the agreements 

in the Shareholder Book, including the Shareholder Agreement; 
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indeed, USU officials that would have been the ones likely to have 

signed such agreements testified that they did not sign them.

GMW takes issue with USU’s contention that it did not sign the 

agreements, but it has been unable to locate or produce a copy of 

any of them that was signed by anyone at USU, and it has been 

unable to present any direct evidence (e.g., eyewitness testimony)

supporting the conclusion that USU ever signed any of them. 

¶7 Several months later, in November 2013, President sent 

USU an email taking the position that USU’s shares were in 

“limbo,” and that “USU does not own the shares,” because USU 

hadn’t signed the Purchase Agreement. President asked USU to 

sign the agreements and indicated that GMW’s lawyer (GMW 

Counsel) would be in touch with a “certified letter” that would 

contain a deadline by which USU would need to sign the 

agreements, and that if USU did not sign them by that date USU’s 

ownership of the shares would “be cancelled.”

¶8 GMW Counsel never sent any certified demand letter. 

Instead, he had two separate telephone conversations with one of 

USU’s attorneys (USU Counsel) to discuss the matter. The first 

conversation occurred on November 12 or 13, 2013, and GMW 

Counsel memorialized his recollection of that call in an email—

sent on November 13—to President. In that email, GMW Counsel 

indicated that, during this first telephone conversation, USU 

Counsel expressed specific concerns only about the Purchase 

Agreement, explaining that USU was not able to obtain shares by 

purchase “except in consideration for a license grant, so the only 

way it could take the shares from GMW was by donation.”

¶9 A few days later, on November 18, GMW Counsel and 

USU Counsel had a second telephone conversation to discuss the 

unsigned agreements. The record does not contain any 

contemporaneously drafted emails describing this conversation. 

But USU Counsel, at a deposition in 2020, testified that, in this 

second conversation, he told GMW Counsel that the proposed 
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agreements “wouldn’t work” for USU because they “did not 

reflect the expectations of the parties,” and that USU “rejected” all 

of them, including the Shareholder Agreement.1

¶10 The day after the second phone call, USU Counsel returned 

the documents, unsigned, to GMW Counsel. About a week later, 

GMW Counsel sent USU a different document that “GMW 

propose[d] be executed in connection with the stock issuance 

transaction.” That document, entitled “Joinder Agreement,” 

purported to “ensure” that the shares USU received would be 

“entitled to the same rights and subject to the same restrictions as 

those applicable to other shares” of GMW stock. USU maintains 

that it never signed the Joinder Agreement either; GMW takes 

issue with this contention, but no signed copy appears in the 

record, and GMW has been unable to produce any other evidence 

that USU ever signed it. 

¶11 In the months that followed, GMW appeared quite aware 

that USU had never signed any of the agreements in the 

Shareholder Book, including the Shareholder Agreement. In an 

email in May 2014, President complained to another GMW officer

that, in his view, USU “read the Shareholder Agreement very 

thoroughly and decided early on they would not sign it.” And just 

weeks later, one of GMW’s outside attorneys sent a letter to a USU 

attorney lamenting USU’s “continuing refusal to sign [GMW’s] 

Shareholder Agreement.”

1. GMW Counsel—the only other participant in the second phone 

call—was never deposed and did not submit any affidavit or 

declaration, so the record submitted to us does not include his 

account of this second call. Moreover, in connection with the 

motion it filed (discussed below) pursuant to rule 56(d) of the 

Utah Rules of Civil Procedure, GMW did not list GMW Counsel 

as one of the witnesses it wanted to depose.
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¶12 In August 2019, GMW initiated the present lawsuit against 

USU, asserting two causes of action: (1) breach of the Shareholder 

Agreement and (2) breach of the covenant of good faith and fair 

dealing. Specifically, GMW alleged that USU breached the 

Shareholder Agreement by partnering with a potential investor in 

GMW to compete with GMW, activity which it claims “essentially 

destroyed” GMW.2

¶13 Before answering the complaint, USU filed a motion to 

dismiss, asserting (among other things) that there existed no 

enforceable contract between the parties because it had never 

signed the Shareholder Agreement and any unsigned agreement 

would be barred by the statute of frauds. The motion was later 

mooted by GMW’s filing of an amended complaint, in which 

GMW set forth with additional particularity its claims that USU 

had—with or without signature—assented to the terms of the 

Shareholder Agreement.

¶14 After resolution of the motion to dismiss, USU answered 

the complaint, and the district court set certain scheduling

deadlines, including a December 24, 2020 deadline for the 

completion of fact discovery. During that discovery period, the 

parties exchanged initial disclosures, engaged in written 

discovery (including the production of voluminous documents), 

and scheduled and took several depositions, including a 

deposition of USU Counsel.

¶15 On December 17, 2020, seven days prior to the close of fact 

discovery, the parties filed a stipulated motion to stay all 

2. A more fulsome description of the activity GMW references in 

its complaint can be found in reported opinions in a related case. 

See generally GeoMetWatch Corp. v. Behunin, 38 F.4th 1183 (10th Cir. 

2022); see also GeoMetWatch Corp. v. Utah State Univ. Rsch. Found., 

2018 UT 50, 428 P.3d 1064 (answering certified questions in the 

federal lawsuit). 
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scheduling deadlines, noting USU’s intent to file a motion for 

summary judgment which, “if granted, would obviate the need 

for any additional discovery.” On December 21, the court signed 

an order staying all deadlines in the case pending its ruling on 

USU’s expected motion. 

¶16 As expected, USU then filed a motion for summary 

judgment, arguing that, although it was a GMW shareholder, it

had never signed the Shareholder Agreement and had never 

otherwise assented to its specific terms. USU further argued that, 

even if it had somehow assented to those terms through some 

means other than signing the agreement, Utah’s statute of frauds 

would bar enforcement of them because those terms—in 

particular the two-year non-competition and non-solicitation 

commitments—were incapable of being performed within one 

year. GMW opposed the motion on its merits, asserting that there 

was at least a fact question about whether USU agreed to be 

bound by the terms of the Shareholder Agreement, and that the 

statute of frauds was no bar to enforcement of those terms. In 

addition, GMW made a request, pursuant to rule 56(d) of the Utah 

Rules of Civil Procedure, asking the court to defer any ruling on 

USU’s motion until after GMW had more time to conduct 

additional discovery. GMW identified two depositions it wanted 

to take: a rule 30(b)(6) corporate deposition of USU and a 

deposition of a witness whose name had come up in a deposition 

conducted in early November 2020. And GMW stated its intent to 

make additional “targeted written discovery requests to USU 

concerning its intent to be bound by the Shareholder Agreement.” 

The district court conducted a hearing on both motions and, after 

the hearing, took the matter under advisement.

¶17 A few weeks later, the court issued a written decision 

granting USU’s summary judgment motion and denying GMW’s 

request for additional discovery. The court determined that GMW 

had failed to present any “documentation showing any assent to 

the [Shareholder Agreement] on the part of” USU, and therefore 
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concluded that no genuine issue of material fact remained to be 

decided on that question. The court further determined that the 

statute of frauds provided an additional ground for summary 

judgment because the key provisions at issue were not capable of 

being performed within one year. The court reasoned that GMW’s 

second claim—for breach of the implied covenant of good faith 

and fair dealing—was also subject to dismissal because it was 

dependent upon the existence of an underlying agreement. And 

the court declined to give GMW more time to conduct additional 

discovery, noting that “the issues raised by [USU’s] summary 

judgment motion should [have] come as no surprise” to GMW, 

especially given the content of USU’s earlier motion to dismiss 

and the associated litigation regarding amendment of the 

complaint; the court concluded that GMW therefore “had plenty 

of time to engage in the discovery it now seeks to engage in” and 

“was not conscientious in pursuing additional discovery in this 

case as such could have been completed well before now.”

ISSUES AND STANDARDS OF REVIEW

¶18 GMW now appeals, and it presents two issues for our 

review. First, it asserts that the district court erred in granting

USU’s motion for summary judgment. “We review the district 

court’s summary judgment ruling for correctness and view all 

facts and reasonable inferences in favor of the nonmoving party.” 

USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 28, 235 P.3d 749 

(quotation simplified).

¶19 Second, GMW challenges the court’s refusal to grant its 

request for more time to conduct additional discovery. We review 

a district court’s denial of such a request only “for an abuse of 

discretion.” Robinson v. Jones Waldo Holbrook & McDonough, PC, 

2016 UT App 34, ¶ 10, 369 P.3d 119, cert. denied, 379 P.3d 1183

(Utah 2016). 
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ANALYSIS

I

¶20 First, GMW challenges the district court’s grant of 

summary judgment in USU’s favor. In particular, it challenges the 

court’s conclusion that no genuine issue of material fact remained 

to be decided regarding whether USU agreed to the terms of the 

Shareholder Agreement. 

¶21 Formation of a contract requires, among other things, “a 

manifestation of mutual assent.” Aquagen Int’l, Inc. v. Calrae Trust, 

972 P.2d 411, 413 (Utah 1998) (quotation simplified); see also

Restatement (Second) of Contracts § 17 (1981) (“[T]he formation 

of a contract requires a bargain in which there is a manifestation 

of mutual assent to the exchange and a consideration.”). A 

signature is perhaps the most common method by which a party 

can exhibit assent to the terms of a contract. See Livingston v. Finco 

Holdings Corp., 2022 UT App 71, ¶ 16, 513 P.3d 94 (“The purpose 

of a signature is to demonstrate mutuality of assent.” (quotation 

simplified)), cert. denied, 525 P.3d 1263 (Utah 2022); see also, e.g., 

Boswell v. Panera Bread Co., 879 F.3d 296, 305 (8th Cir. 2018) (stating 

that “signatures remain a common, though not exclusive, method 

of demonstrating agreement” to the terms of a contract (quotation 

simplified)). But it is not the only way: “It is fundamental contract 

law that the parties may become bound by the terms of a contract 

even though they did not sign the contract,” and this occurs where 

the parties, through words or actions, “have otherwise indicated 

their acceptance of the contract, or led the other party to so believe 

that they have accepted the contract.” Livingston, 2022 UT App 71, 

¶ 16 (quotation simplified).

¶22 In this case, GMW asserts that genuine issues of material 

fact remain to be decided concerning both (a) whether USU 

actually signed the Shareholder Agreement and (b) whether, even 

in the absence of any signature, USU’s actions manifested an 
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intent to be bound by the Shareholder Agreement. The district 

court concluded otherwise, and we agree on both counts. 

A

¶23 First, there is no genuine issue of material fact regarding 

whether USU signed the Shareholder Agreement. No signed copy 

is to be found in the record submitted to us. And GMW has not 

located any witness who can testify that anyone affiliated with 

USU actually signed the Shareholder Agreement. Indeed, to the 

contrary, the evidence that does exist in the record indicates that 

USU did not sign the Shareholder Agreement and that GMW was, 

at all relevant times, fully aware of that fact. GMW has produced 

no evidence refuting USU’s position on this point. 

¶24 “[T]he extent of the moving party’s burden” in connection 

with a summary judgment motion “varies depending on who 

bears the burden of persuasion at trial.” Salo v. Tyler, 2018 UT 7, 

¶ 26, 417 P.3d 581. “A movant who seeks summary judgment on 

a claim on which it will bear the burden of persuasion at trial 

cannot seek summary judgment without producing affirmative 

evidence in support of the essential elements of its claim.” Id. “But 

a movant who seeks summary judgment on a claim on which the 

nonmoving party bears the burden of persuasion may show that 

there is no genuine issue of material fact without producing its 

own evidence.” Id. (emphasis added); see also Orvis v. Johnson, 2008 

UT 2, ¶ 18, 177 P.3d 600 (stating that “where the nonmoving party 

will bear the burden of proof at trial,” a movant “may satisfy its 

burden on summary judgment” simply by demonstrating a lack 

of evidence supporting the movant’s position, and at that point 

“the burden then shifts to the nonmoving party” to “set forth 

specific facts showing that there is a genuine issue for trial” 

(quotation simplified)). 

¶25 Here, GMW bears the ultimate burden of persuasion, at 

trial, on its claim for breach of contract. In this situation, USU—as 
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the summary judgment movant—may satisfy its burden by 

demonstrating that there exists no evidence supporting GMW’s 

claim that USU signed the Shareholder Agreement. USU has 

discharged that burden here, and thus the burden shifts to GMW 

to identify evidence that supports its position. It cannot identify 

any direct evidence that USU ever signed the Shareholder 

Agreement, but it maintains that a factfinder could nevertheless 

reasonably infer that USU did indeed sign. 

¶26 It is certainly true that, during the summary judgment 

process, “all reasonable inferences” must be drawn in favor of the 

nonmoving party. SeeIHC Health Services, Inc. v. D & K Mgmt., Inc., 

2008 UT 73, ¶ 19, 196 P.3d 588. And it is also true that 

“circumstantial evidence may sometimes raise an inference strong 

enough to create a genuine issue of material fact on summary 

judgment.” Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 21, 

390 P.3d 314. But in order to be considered “reasonable,” 

inferences—including, and perhaps especially, those based on 

circumstantial evidence—“must present something more than 

pure speculation.” Id. And while “the line separating ‘speculation’ 

from ‘reasonable inference’ can at times be faint,” State v. Prisbrey, 

2020 UT App 172, ¶ 23, 479 P.3d 1126, cert. denied, 485 P.3d 946

(Utah 2021), courts have explained that “a reasonable inference 

exists when there is at least a foundation in the evidence upon 

which the ultimate conclusion is based, while in the case of 

speculation, there is no underlying evidence to support the 

conclusion,” Heslop, 2017 UT 5, ¶ 22 (quotation simplified). 

¶27 In this case, there is no direct evidence to support a 

conclusion that USU signed the Shareholder Agreement. And as 

discussed more fully below, the only circumstantial evidence to 

which GMW cites—and it does so more to support its contention 

of non-signatory assent than to support its contention that USU 

actually signed the agreement—is evidence indicating that USU 

considered itself a shareholder of GMW. But such evidence does 

nothing at all to support the notion that a USU official actually put 
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pen to paper on the Shareholder Agreement. It would be entirely 

speculative to infer, merely from USU’s position that it considered 

itself a shareholder of GMW, that USU—despite its denials and 

the utter lack of evidence to contradict them—actually signed the 

Shareholder Agreement. 

¶28 Thus, on this record, no reasonable factfinder could 

conclude that a USU official with authority to do so actually 

executed the Shareholder Agreement. Accordingly, we discern no 

error in the district court’s conclusion that no genuine issue of 

material fact remains to be decided on the question of whether 

USU actually signed the Shareholder Agreement. 

B

¶29 Despite the absence of USU’s signature on the

Shareholder Agreement, GMW maintains that USU—by its 

words and actions—nevertheless exhibited assent to the 

agreement’s terms, and it contends that there is at least a genuine 

issue of material fact remaining to be decided on this point. In 

support of this contention, it points to six pieces of circumstantial 

evidence:

(1) USU asked GMW to issue USU a stock certificate 

for the GMW shares that had been earmarked for 

USURF; 

(2) USU received from GMW a copy of the 

Shareholder Agreement signed by GMW;

(3) USU asked that one of its representatives be 

named to GMW’s board of directors;

(4) USU asked to exercise its right, as a shareholder 

of GMW, to inspect GMW’s books and records; 
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(5) USU held itself out to third parties as a 

shareholder of GMW; and

(6) USU “[n]ever explicitly reject[ed]” the 

Shareholder Agreement. 

GMW asserts that a factfinder could reasonably infer, from this 

evidence, that USU—despite not signing the Shareholder 

Agreement—agreed to be bound by its terms. The district court 

disagreed, and so do we, because any such inference is 

insufficiently supported by the evidence and would be unduly 

speculative. 

¶30 The second item in the list—that USU received a copy of 

the Shareholder Agreement from GMW that was signed by 

GMW3—does nothing to support GMW’s contention that USU 

3. In its phrasing of this second item of asserted circumstantial 

evidence, GMW somewhat ambiguously states that USU “never 

return[ed]” the copy of the Shareholder Agreement that it 

received from GMW. This statement is either untrue, or is of no 

assistance to GMW. If GMW intends to indicate that USU did not 

return the unsigned copy to GMW, that statement is contradicted 

by the record; USU Counsel testified—without contradiction and 

corroborated by a contemporaneous email—that he returned the 

documents, unsigned, to GMW Counsel. If GMW intends to 

indicate that USU did not return to GMW a copy of the agreement 

that USU had executed, USU would presumably agree with that 

statement; USU’s position is that it never signed the agreement 

and therefore did not ever return a signed one to GMW. But that 

statement doesn’t assist GMW at all; the fact that USU did not 

return to GMW a copy signed by USU does nothing to support 

GMW’s position that USU agreed to be bound by the terms of the 

agreement. For purposes of our analysis, then, we construe the 

second item in the list as simply asserting that USU received the 

(continued...)
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assented to the agreement’s terms. Receipt of the document 

simply indicates that USU received GMW’s offer; it has nothing 

at all to say about whether USU accepted that offer. That item 

therefore does not support GMW’s contention. 

¶31 Four of the items in this list (the first, third, fourth, and 

fifth) are undisputedly true, but—on this record—they support 

only the notion that USU was a shareholder of GMW, not that 

USU agreed to be bound by the specific terms of the Shareholder 

Agreement. The chronology of how USU became a GMW 

shareholder is crucially important here; if GMW had conditioned 

USU’s stock ownership on USU signing the Shareholder 

Agreement, a factfinder would likely be able to draw a reasonable 

inference that USU’s acceptance of those shares indicated assent 

to the terms of the Shareholder Agreement. See Commercial Union 

Assocs. v. Clayton, 863 P.2d 29, 36–37 (Utah Ct. App. 1993) (holding

that, where the parties mistakenly believed that a lessee had 

signed a contract, and where the lessee “acted in every respect as 

if it were under contract,” the district court’s finding that the 

lessee “manifested its intent to be bound” by the terms of the 

contract, despite never signing it, was not clearly erroneous). But 

that is not how the situation unfolded in this case. 

¶32 USU asked GMW to issue it a stock certificate in January 

2013. The next month, in February, GMW delivered the requested 

stock certificate to USU; that certificate was unrestricted and 

proclaimed USU to be the owner of 666,667 shares of GMW stock. 

GMW sent a cover letter with the certificate but did not in that 

letter ask USU to sign any shareholder agreement, and it did not 

attempt to condition USU’s shareholder status on anything. When 

USU took receipt of that stock certificate in February 2013, it was 

by that point a full-fledged shareholder of GMW, with every right 

Shareholder Book which contained a copy of the Shareholder 

Agreement that had been signed by GMW. 
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to seek representation on GMW’s board of directors and to inspect 

the company’s books and records. 

¶33 It wasn’t until April 2013—about two months later—that 

GMW asked USU to agree to the specific terms of the Shareholder 

Agreement. At that point, USU was already a shareholder of 

GMW, with full rights and privileges. It did not need to sign the 

Shareholder Agreement to become a shareholder of GMW, 

because it already was one. And given this chronology, evidence 

that USU considered itself a shareholder of GMW does not 

support the completely separate notion that USU somehow 

assented to the specific terms of the Shareholder Agreement. 

¶34 Finally, the sixth item in GMW’s list of evidence does not 

aid GMW. There, GMW asserts that USU “never explicitly 

reject[ed] the Shareholder Agreement.” Presumably, this is a 

reference to GMW Counsel’s email summary of the first 

November 2013 phone conversation between GMW Counsel and 

USU Counsel; according to that summary, USU Counsel 

expressed reservations only with the Purchase Agreement, and 

not specifically with the Shareholder Agreement. We assume, for 

purposes of our analysis, that GMW Counsel’s email summary is 

correct, and that USU Counsel, in that first November phone call, 

did not specifically reject the Shareholder Agreement. 

¶35 But the evidence is undisputed that USU Counsel did

specifically reject the Shareholder Agreement in the second

November 2013 phone call, the one that occurred on November 

18. At a deposition, USU Counsel testified that, during that second 

call, he told GMW Counsel that the proposed agreements 

“wouldn’t work” for USU because they “did not reflect the 

expectations of the parties,” and that USU “rejected” all of them, 

including the Shareholder Agreement. USU Counsel’s account of 
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this second conversation stands unrebutted in the record.4 Thus, 

GMW’s sixth item of evidence—that USU never expressly rejected 

the Shareholder Agreement—is not supported by the record: the 

undisputed evidence indicates that USU did reject the Shareholder 

Agreement, but it did so in the second call, if not in the first. 

¶36 Still, GMW continues to assert, even in the face of this 

paucity of evidence, that a factfinder could reasonably draw an 

inference that USU agreed to be bound by the specific terms of the 

Shareholder Agreement. In support of this contention, GMW 

directs our attention to AKB Properties LLC v. Rubberball 

Productions LLC, 2021 UT App 48, 487 P.3d 465, cert. denied, 496 

P.3d 713 (Utah 2021). In that case, we reversed a district court’s 

grant of summary judgment on the basis that available 

4. At times in its briefing, GMW complains about USU Counsel’s 

invocation, at several points during his deposition, of attorneyclient privilege, and about his refusal to answer certain questions 

on that basis. GMW even asserts that the district court should 

have inferred, from USU Counsel’s invocation of privilege 

regarding certain questions about the Shareholder Agreement, 

that USU signed the Shareholder Agreement or otherwise 

assented to its terms. But there is no indication in the record that 

GMW attempted to litigate, in the district court, whether USU 

Counsel’s invocation of the privilege was proper. And if it was

proper, then no negative inference can fairly be drawn from it. See

In re Tudor Assocs., Ltd., II, 20 F.3d 115, 120 (4th Cir. 1994) (“A 

negative inference should not be drawn from the proper 

invocation of the attorney-client privilege.”). Thus, any argument 

GMW might make about invocation of the privilege was not 

preserved for our review, and we therefore decline to address it. 

See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party 

fails to raise and argue an issue in the [district] court, it has failed 

to preserve the issue, and an appellate court will not typically 

reach that issue absent a valid exception to preservation.”). 
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circumstantial evidence was sufficient “to cast doubt on the 

veracity of” sworn declarations provided by the moving party. Id.

¶ 21. At issue in the case was whether the parties to a written 

agreement had, during a “brief” and “casual” subsequent 

meeting, agreed to a significant oral modification of that 

agreement. Id. ¶¶ 7, 23. Two of the three participants in that 

meeting submitted declarations attesting that the modification 

had been made. Id. ¶ 9. The only other participant in the meeting 

had passed away; there was therefore no living witness who 

could contradict the other participants’ declarations. Id. ¶ 20. One 

side moved for summary judgment, asserting that—because the 

two declarations were unrebutted—no genuine issue of fact 

remained to be decided regarding the existence of the oral 

modification. Id. ¶¶ 8–9. The other side—a company controlled by 

the deceased person’s heirs—asserted that questions of fact 

remained because their witness was deceased and because other 

circumstantial evidence existed in the record supporting the 

notion that no oral modification had been effected. Id. ¶¶ 1, 12. 

¶37 The district court entered summary judgment in the 

movant’s favor, id. ¶ 11, but we reversed, noting the importance 

of the fact that the only witness who could controvert the 

declarations was deceased, and concluding that “there was more 

than enough circumstantial evidence [in the record] to cast doubt 

on the veracity of those declarations,” id. ¶¶ 20–25. Specifically, 

we noted that, given the nature of the modification, a factfinder 

“could reasonably infer that the matter was of importance to the 

[parties] and that any modification would have occurred in 

writing.” Id. ¶ 23. We noted that the modification may have lacked 

consideration. Id. ¶ 24. And we noted that the factfinder could 

take into account certain conduct by the parties, occurring after 

the alleged modification, that appeared to cut against the notion 

that the modification had occurred. Id. ¶ 25. In light of these items 

of circumstantial evidence, we concluded that there existed 

sufficient evidence from which a factfinder could disbelieve the 
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20210654-CA 18 2023 UT App 124

two declarations and reasonably infer that no oral modification 

had taken place. Id. ¶ 26. In so doing, however, we were careful to 

point out that “[t]he circumstances of this case are distinct from a 

situation in which living witnesses exist who might be able to 

refute [a] movant’s evidence but the nonmovant has not bothered 

to seek their input.” Id. ¶ 20 n.4. 

¶38 In our view, AKB Properties is materially distinguishable 

from the case at hand, for two reasons. First, in this case there 

exists no problem with the availability of witnesses: there is no 

indication that any relevant witness has passed away or is 

otherwise unavailable. GMW was at all times free to contact and 

depose witnesses, affiliated with both USU and GMW, who might 

have had information about whether USU assented to the 

Shareholder Agreement.5 Second, the circumstantial evidence 

available in AKB Properties was more extensive than similar 

evidence here. In AKB Properties, there existed several items of 

circumstantial evidence that suggested there had been no oral 

modification to the original written agreement. Here, by contrast, 

all the circumstantial evidence to which GMW points indicates 

only that USU was a shareholder and—given the chronology of 

events—does not support the separate notion that USU agreed to 

be bound by the specific terms of the Shareholder Agreement. 

¶39 Under the circumstances presented here, even viewing the 

evidence and all reasonable inferences in favor of GMW, there is 

no genuine issue of material fact remaining to be decided 

regarding whether USU assented to the terms of the Shareholder 

Agreement. On this record, no reasonable factfinder could 

conclude that USU assented to those specific terms; any inference 

a factfinder might draw to support such a conclusion would be 

5. In this vein, we note that GMW did not depose its own previous 

attorney, GMW Counsel, who could have provided his account of 

the second November 2013 phone call. 
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20210654-CA 19 2023 UT App 124

unduly speculative. Accordingly, the district court did not err in 

entering summary judgment in favor of USU on these issues.6

II

¶40 Second, GMW challenges the district court’s denial of its 

request for more time to conduct additional discovery. We discern 

no abuse of discretion in the court’s decision. 

¶41 Under our rules, if the nonmoving party believes that it

“cannot present facts essential to justify its opposition” to a 

motion for summary judgment, it may ask the court to “defer 

considering the motion or deny it without prejudice” in order to 

allow it additional time “to obtain affidavits or declarations or to 

take discovery.” See Utah R. Civ. P. 56(d). As noted, in this context 

district courts enjoy wide discretion in their consideration of 

requests for additional time to conduct discovery, and we review 

a court’s decision in this regard for an abuse of that discretion, 

reversing only in cases in which the decision “exceeds the limits 

of reasonability.” See Campbell, Maack & Sessions v. Debry, 2001 UT 

App 397, ¶ 6, 38 P.3d 984 (quotation simplified); see also Robinson 

v. Jones Waldo Holbrook & McDonough, PC, 2016 UT App 34, ¶ 10, 

369 P.3d 119, cert. denied, 379 P.3d 1183 (Utah 2016). 

¶42 In considering a request under rule 56(d), courts are to 

consider “the specific circumstances of each case.” See

Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, ¶ 21, 192 P.3d 

858. In particular, courts should examine the requesting party’s 

rule 56(d) affidavit or declaration, and assess “whether the 

discovery sought will uncover disputed material facts that will 

prevent the grant of summary judgment” or whether the 

requesting party “is simply on a fishing expedition.” Id.

6. In light of this conclusion, we need not reach GMW’s other 

contention that the district court erred in its application of the 

statute of frauds. 
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20210654-CA 20 2023 UT App 124

(quotation simplified). Courts should also examine whether the 

requesting party “has had adequate time to conduct discovery 

and has been conscientious in pursuing such discovery.” Id. And 

courts may take into account whether the party moving for 

summary judgment has been diligent “in responding to the 

discovery requests” lodged by the requesting party. Id.

¶43 In this case, the district court grounded its refusal to grant 

GMW’s request for more time largely on the second factor: the 

court noted that the fact discovery period was all but over, and 

that the discovery GMW requested could easily have been 

obtained earlier, during the discovery period. It noted that “the 

issue of contract formation has been the crux of this case since its 

inception,” and that those issues were not only the subject of 

USU’s current summary judgment motion but had also been the 

subject of its earlier motion to dismiss. Given that USU’s motion 

was not filed until after the fact discovery period was all but 

finished, the court concluded that GMW “had plenty of time to 

engage in the discovery it now seeks to engage in” and that GMW 

“was not conscientious in pursuing” that discovery during the 

fact discovery period. We discern no infirmity in the district 

court’s reasoning. 

¶44 In its rule 56(d) declaration, GMW identified only three 

specific items of additional discovery it wished to obtain: (1) a 

corporate deposition of USU, taken pursuant to rule 30(b)(6) of 

the Utah Rules of Civil Procedure, in which it could “get 

additional information regarding contract formation”; (2) a 

deposition of a witness whose identity GMW asserted it had 

discovered while taking another deposition in early November 

2020, which witness GMW believed had additional information 

“concerning USU’s ownership of the shares” and “concerning the 

terms and conditions of USU’s ownership of those shares”; and 

(3) “targeted written discovery requests to USU concerning its 

intent to be bound by the Shareholder Agreement.”
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20210654-CA 21 2023 UT App 124

¶45 With regard to the first and third items, the district court’s 

reasoning is clearly sound. From the outset of the case, it was quite 

clear—from, among other things, USU’s initial motion to 

dismiss—that USU would defend the case chiefly on the basis that 

it had not agreed to the terms of the Shareholder Agreement. 

Under these circumstances, some of the most obvious things 

GMW might have wanted to do during the fact discovery period 

would have been to send USU written discovery requests on this 

topic and to conduct a corporate deposition of USU. GMW had 

every opportunity, during the entirety of the fact discovery 

period, to undertake this discovery. It did not, and it offers no 

persuasive explanation for its decision not to do so. 

¶46 The question is somewhat closer with regard to the second

item, because the identity of the witness in question apparently 

was not known to GMW until early November 2020. But even 

assuming that to be true, GMW still had some seven weeks 

remaining in the fact discovery period at that point, and it offers 

no reason why it could not have noticed up and taken this 

witness’s deposition in that period of time. Under these 

circumstances, we cannot say that it was an abuse of the district 

court’s discretion to conclude that GMW was not conscientious in 

using the available discovery period to take this deposition. 

¶47 We note that this case differs, in one significant respect,

from many other cases in which rule 56(d) requests are made: 

GMW’s rule 56(d) request was not made until after the effective 

expiration of the fact discovery period. A requesting party who 

faces a motion for summary judgment filed early in the case, 

months before expiration of the fact discovery period, can often 

credibly argue that it has not yet had the chance to conduct 

discovery on the relevant topics. But a requesting party who has 

had the entire fact discovery period to conduct discovery on a 

topic it knew was relevant may find that argument much harder 

to credibly make. And that is the case here. 
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20210654-CA 22 2023 UT App 124

¶48 Given the posture of the case, a grant of GMW’s rule 56(d) 

request would by definition have required a significant extension 

of the fact discovery cutoff date, as well as concomitant extensions 

of time for the deadlines to follow (e.g., expert discovery 

deadlines). It was well within the district court’s discretion to take 

all of this into account, and to decline to grant GMW’s request 

under the circumstances.7

CONCLUSION

¶49 There is no genuine issue of material fact regarding 

whether USU signed the Shareholder Agreement or otherwise

assented to its specific terms, and therefore the district court did 

not err in granting USU’s motion for summary judgment on those

points. Furthermore, it was reasonable for the court to deny 

GMW’s request for additional discovery, and its denial of GMW’s

rule 56(d) request was therefore not an abuse of its discretion. 

¶50 Affirmed.

7. Decisions regarding the management of a court’s docket, 

“including whether to grant continuances or extend deadlines,” 

are also reviewed for an abuse of discretion. See Segota v. Young 

180 Co., 2020 UT App 105, ¶ 9, 470 P.3d 479; see also Solis v. 

Burningham Enters., Inc., 2015 UT App 11, ¶ 25, 342 P.3d 812 

(acknowledging that district courts possess “broad discretion in 

managing the cases assigned to” them (quotation simplified)).