DAVIS, Judge:
¶ 1 Davco Management Company, LC (Davco) appeals several of the trial court's rulings in favor of Iota, LLC and California Benefit, Inc. (collectively, Plaintiffs). We affirm in part, and reverse and remand in part.
¶ 2 In 2005, Davco, through its member and manager, David Fisher, entered into a real estate purchase contract (REPC) with Iota for the purchase of Casa Sonoma and with California Benefit for the purchase of Casa Grande, both of which are apartment complexes located in St. George, Utah. That purchase was never finalized because Davco was unable to obtain financing. However, in 2006, the parties entered into new REPCs for the purchase of the properties using owner financing. Under the new REPCs, Davco executed a promissory note for each property (the promissory notes). The first was executed in favor of Iota in the amount of $1,341,395, with the entire balance due on or before December 1, 2007. The second was executed in favor of California Benefit in the amount of $2,411,596, with the entire balance due on or before December 10, 2007. Davco was to make monthly interest-only payments on the notes until they became due. To secure payment of the notes, Davco also executed a trust deed for each property in favor of each property's seller (the trust deeds), granting a security interest in the property, rents, and security deposits.
¶ 3 In connection with the purchase, Davco requested profit and loss statements for the apartment complexes (the financial information). In advance of closing, Plaintiffs provided Davco with financial information for January 2005 through May 2006. Davco contends that this information was inaccurate because the statements contained information for other properties as well. Davco also alleges that Plaintiffs never provided financial information for the remainder of 2006, although the trial court found that Plaintiffs provided that information in February 2007. Davco contends that Plaintiffs orally agreed to provide the financial information and that this information was necessary in order for it to obtain financing.
¶ 4 Although Fisher attempted to obtain lender financing in order to pay the balances on the promissory notes, his loan application was denied on February 21, 2008, because (1) he "did not have two years of income stream as the owner," (2) the appraised value of Casa Grande was lower than anticipated, and (3) he had credit problems arising from eleven previous foreclosures. As a result, Davco was unable to pay the balance of the promissory notes when they matured in December 2007. However, Davco continued to seek financing after the maturity dates, and Plaintiffs continued to assist it in that effort.
¶ 5 While the apartments were under Davco's ownership, Davco conveyed Casa Sonoma
¶ 6 On June 3, 2008, approximately six months past the maturity dates on the promissory notes, Plaintiffs requested that Davco obtain financing by the end of July 2008. When Davco still had not obtained financing by August 25, 2008, Plaintiffs requested that Davco deliver deeds in lieu of foreclosure. Davco refused the request and asked Plaintiffs for an extension until October 2. Plaintiffs agreed but requested that Davco increase its monthly payments by $1,000 per month for Casa Sonoma and $1,500 per month for Casa Grande as consideration for the extension. Davco rejected the request and stopped payment on the September interest checks to Plaintiffs, after which Davco made no additional payments. On September 9, 2008, Davco requested reimbursement for the cost of improvements made to the apartments while they were under Davco's ownership. On September 24, Davco repeated the request and further alleged that Plaintiffs had previously agreed to a one-year extension on the maturity dates of the promissory notes. Plaintiffs denied the allegation and ultimately proceeded with nonjudicial foreclosures of the properties, at which time they discovered the conveyance to Father and the $500,000 encumbrance.
¶ 7 Between the time that Davco stopped making monthly payments in September 2008 and the time of the trustee's sale in February 2009, Davco collected and retained rents and security deposits from the apartment tenants. On November 5, 2008, the trial court issued an Ex Parte Order requiring that Davco and Fisher deposit all rents collected with the court.
¶ 8 A trustee's sale was conducted on February 20, 2009. Iota purchased Casa Sonoma with a credit bid of $934,000, and California Benefit purchased Casa Grande with a credit bid of $1,800,000. Following the trustee's sale, Plaintiffs brought suit to obtain deficiency judgments against Davco and to recover the rents and security deposits collected by Davco between September 1, 2008, and February 20, 2009. Davco disputed the claims, arguing breach of contract, breach of the implied covenant of good faith and fair dealing, equitable estoppel, and waiver. Davco also claimed that it was entitled to recover against Plaintiffs for the cost of improvements made to the apartments. Although no contempt allegation was raised in their complaint, Plaintiffs raised in the pretrial order and argued in their trial brief that both Davco and Fisher should be held in contempt for failing to comply with the Ex Parte Order. Davco challenged the trial court's jurisdiction to conduct the contempt proceeding in conjunction with the trial due to the lack of an affidavit of the facts constituting contempt. At trial, Davco also moved to have the Ex Parte Order stricken, asserting that the trial court failed to comply with rule 67 of the Utah Rules of Civil Procedure in issuing the order. The trial court denied the motion.
¶ 9 Following a three-day trial, the trial court rejected all of Davco's defenses and ruled that Plaintiffs were entitled to deficiency judgments against Davco. Davco was ordered to pay $389,438.30 to Iota and $272,266.20 to California Benefit, as well as Plaintiffs' attorney fees. Furthermore, the trial court concluded that Davco's failure to remit the rent and security deposits to Plaintiffs was a violation of the terms of the trust deeds and awarded Plaintiffs $132,844.96 for that violation. The trial court also ruled that Davco had violated the terms of the Iota
¶ 10 On appeal, Davco argues that the trial court made a number of errors. First, Davco challenges several of the trial court's factual findings, claiming that the findings were unsupported by the evidence. We review a trial court's findings of fact for clear error. See Houskeeper v. State, 2008 UT 78, ¶ 18, 197 P.3d 636.
¶ 11 Second, Davco argues that the court incorrectly applied the statute of frauds and its part performance exception. This is a mixed question of law and fact. See Spears v. Warr, 2002 UT 24, ¶ 23, 44 P.3d 742, overruled on other grounds by Tangren Family Trust ex rel. Tangren v. Tangren, 2008 UT 20, ¶ 16 & n. 20, 182 P.3d 326. Thus, we review the trial court's determinations regarding the applicability of the statute of frauds for correctness and its underlying factual determinations for clear error. See id.
¶ 12 Third, Davco argues that the trial court should have ruled that Plaintiffs' claims were barred by equitable estoppel. "The issue of whether equitable estoppel has been proven is a classic mixed question of fact and law." Department of Human Servs. ex rel. Parker v. Irizarry, 945 P.2d 676, 678 (Utah 1997). Because the equitable estoppel inquiry is highly fact-sensitive, "we properly grant the trial court's decision a fair degree of deference when we review the mixed question of whether the requirements of the law of estoppel have been satisfied in any given factual situation." Id.
¶ 13 Fourth, Davco contests the trial court's conclusion that Plaintiffs did not waive their right to enforce the terms of the promissory notes. "[W]e ... grant very broad discretion to the trial court's application of legal propositions to the facts in waiver cases." Living Scriptures, Inc. v. Kudlik, 890 P.2d 7, 10 (Utah Ct.App.1995).
¶ 14 Fifth, Davco contests the trial court's finding that Plaintiffs did not breach the implied covenant of good faith and fair dealing. "[W]hether there has been a breach of good faith and fair dealing is a factual issue," Cook v. Zions First Nat'l Bank, 919 P.2d 56, 61 (Utah Ct.App.1996), and "[w]e review questions of fact under the clearly erroneous standard," Tangren Family Trust ex rel. Tangren v. Tangren, 2006 UT App 515, ¶ 6, 154 P.3d 180, aff'd, 2008 UT 20, 182 P.3d 326.
¶ 15 Sixth, Davco contends that the trial court lacked jurisdiction to hold Davco and Fisher in contempt. "We review legal conclusions concerning the existence of jurisdiction for correctness and afford no deference to the district court." State v. Mullins, 2005 UT 43, ¶ 6, 116 P.3d 374.
¶ 16 Seventh, Davco argues that the Ex Parte Order was invalid because the trial court did not comply with rule 67 of the Utah Rules of Civil Procedure. "We review the interpretation and application of a rule of procedure for correctness." Edwards v. Powder Mountain Water & Sewer, 2009 UT App 185, ¶ 14, 214 P.3d 120. Nevertheless, where the outcome of the proceedings is not affected by an alleged error, it will be considered harmless. See Covey v. Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553.
¶ 17 Finally, Davco argues that the trial court erred in concluding that it had breached the terms of the Iota trust deed by conveying Casa Sonoma to Father and by recording the $500,000 encumbrance. Because this argument was not preserved for appeal, Davco argues plain error. In order to demonstrate plain error, Davco must establish
¶ 18 Davco challenges three of the trial court's factual findings: (1) that there was no oral contract to extend the maturity dates of the promissory notes, (2) that Plaintiffs provided the financial information to Davco, and (3) that the financial information was not necessary in order for Davco to refinance. We conclude that all of these findings are either supported or constitute harmless error.
¶ 19 Although both parties present arguments regarding the sufficiency of the evidence to support the trial court's finding that no oral contract existed, it does not appear to us that the trial court ever made such a finding. The findings merely state that Fisher alleged that Plaintiffs had agreed to a one-year extension and that Richard T. Murset, managing member of both Iota and California Benefit, denied that such an agreement existed. Because any such oral agreement would be unenforceable under the statute of frauds, and because we ultimately conclude that the part performance exception to the statute of frauds does not apply in this case for reasons independent of the oral contract's existence, see infra ¶¶ 24-25, we conclude that the trial court's failure to make a specific finding as to the existence of the oral contract was harmless.
¶ 20 Davco next alleges that the trial court's finding that Plaintiffs provided Davco with the financial information was clearly erroneous because the evidence was insufficient to demonstrate that the financial information for June through December of 2006 was ever provided. Murset's testimony that he provided the remainder of the 2006 information in February 2007 was sufficient to support the trial court's finding to that effect. Davco makes a number of arguments concerning the lack of documentation and inconsistencies between Murset's deposition and his testimony at trial. However, the trial court was free to accept Murset's testimony even in the absence of supporting documentation and in the face of alleged inconsistencies, see Henshaw v. Henshaw, 2012 UT App 56, ¶¶ 11-12, 271 P.3d 837 (explaining that "[i]t is within the province of the trial court, as the finder of fact, to resolve issues of credibility" and that a lack of documentary evidence supporting a witness's testimony or contradictory testimony from other witnesses does not preclude the trial court from accepting the witness's testimony as true), especially given that those inconsistencies appear to be attributable mainly to confusion about what was being asked.
¶ 21 Davco also alleges that it could not use the information provided to obtain refinancing because it included information regarding other rentals managed by Plaintiffs and the manner in which the numbers were presented made it impossible to determine what portion of the numbers actually reflected the profits and losses of Casa Grande and Casa Sonoma. However, even if we were to accept Davco's assertion that the financial information was detrimentally over-inclusive and that this fact rendered the trial court's finding erroneous, any error in the finding was harmless in light of the trial court's additional finding that the financial information was not needed to obtain refinancing.
¶ 22 The trial court's finding that the financial information was unnecessary was supported by the evidence and therefore not clearly erroneous. Davco asserts that the evidence on which the trial court relied — the testimony of the mortgage broker that Davco needed two years of financial information under its ownership and that the 2005 and 2006 financial information could not assist the refinance — was stricken by the trial court on hearsay grounds. However, the trial court struck only the mortgage broker's testimony regarding statements made to him by a commercial lender. The mortgage broker's testimony regarding the reasons the loan application was denied was not hearsay. The mortgage broker testified that one of the reasons for the denial was Fisher's failure to
¶ 23 The trial court ruled that Davco's defense that it had orally agreed with Plaintiffs to a one-year extension on the maturity dates of the promissory notes was barred by the statute of frauds. Davco does not dispute that the alleged modification is subject to the statute of frauds. See generally Fisher v. Fisher, 907 P.2d 1172, 1176 (Utah Ct.App.1995) ("[W]hen a contract is required to be in writing, the same requirement applies with equal force to any alteration or modification thereof." (alteration in original) (internal quotation marks omitted)). Rather, Davco asserts that the modification is subject to the part performance exception to the statute of frauds. "[W]here there is evidence of part performance under the modified agreement, and where it would be inequitable to permit a party to repudiate the oral modification and seek enforcement of the written contract, the oral agreement may be removed from the statute of frauds and enforced." Id. at 1177. In order for an oral contract to come under the part performance exception to the statute of frauds, the following conditions must exist:
Martin v. Scholl, 678 P.2d 274, 275 (Utah 1983) (internal quotation marks omitted).
¶ 24 Because we conclude that the reliance prong of the test is not satisfied here, we agree with the trial court that Davco's breach of contract defense is barred by the statute of frauds. The requirements of this prong are most stringent where the existence of the oral contract is uncertain, that is, where neither independent acts nor an admission of the contract affirmatively demonstrate that an oral contract existed. See id. at 277-78. Such is the case here. Plaintiffs vigorously deny the existence of an oral contract to extend the maturity dates, and the only evidence of the contract presented by Davco is Fisher's assertion and the testimony of the real estate agent that he "vaguely" remembered Murset telling him that Plaintiffs had given Davco "another year" to refinance. The disputed evidence in this case required the trial court to make a credibility judgment on the question of whether an oral contract existed, and thus, the acts in reliance must have been "exclusively referable to the contract,"
¶ 25 Davco's actions here are not such that they can only be explained by an agreement with Plaintiffs to extend the maturity dates
¶ 26 Davco next contends that the trial court should have concluded that Plaintiffs' claims were barred by equitable estoppel. This claim is based on Davco's assertion that Plaintiffs failed to fulfill their promises to provide Davco with accurate financial information and to extend the maturity dates on the promissory notes by one year.
¶ 27 In order to establish equitable estoppel, a party must prove
Whitaker v. Utah State Ret. Bd., 2008 UT App 282, ¶ 22, 191 P.3d 814 (internal quotation marks omitted). Davco cannot establish the third prong of the test — that it was injured by Plaintiffs' alleged failure to provide accurate financial information and to extend the maturity dates.
¶ 28 First, the trial court's finding that the financial information was not needed to obtain financing forecloses the possibility that the failure to provide the information injured Davco. But even if we were to agree with Davco that the evidence was insufficient to support this finding, Davco has pointed us to no evidence that would support the opposite conclusion, i.e., that the financial information was necessary to obtain refinancing and that Plaintiffs' failure to provide it caused Davco's failure to refinance. At best, Davco's arguments might demonstrate that the effect of not providing the financial information to the mortgage broker was unknown.
¶ 29 Similarly, Davco failed to establish that it would have been able to refinance if the maturity dates had been extended to December 2008 in accordance with Plaintiffs' other alleged promise, given that its original application was rejected not only for Davco's failure to meet seasoning requirements but also due to the low appraisal and Fisher's bad credit. The most Davco can show is that the mortgage broker stated in his deposition that he did not know whether the loan would have been approved if the seasoning requirement had been met, a statement the broker
¶ 30 While the trial court did not make any explicit conclusions regarding equitable estoppel, its ruling in favor of Plaintiffs implicitly and justifiably rejects this defense. Because we conclude that Davco failed to meet its burden in establishing its equitable estoppel claim, see generally State v. Hamilton, 2003 UT 22, ¶ 35, 70 P.3d 111 (explaining that "estoppel is an affirmative defense" and its proponent has "the burden of proving reliance"), we affirm the trial court's implicit ruling.
¶ 31 Next, Davco asserts that Plaintiffs waived their right to declare a default when the maturity dates passed without payment because they agreed to a one-year extension on the maturity dates of the promissory notes. Because we have determined that any such agreement was unenforceable due to its failure to comply with the statute of frauds, Davco's waiver argument fails.
¶ 32 Davco asserts that Plaintiffs breached the implied covenant of good faith and fair dealing because their failure to either provide the financial information or delay the maturity dates long enough for Davco to establish a two-year history of ownership prevented Davco from refinancing. "Under the covenant of good faith and fair dealing, each party impliedly promises that he will not intentionally or purposely do anything which will destroy or injure the other party's right to receive the fruits of the contract." Brown v. Moore, 973 P.2d 950, 954 (Utah 1998) (internal quotation marks omitted). "[O]ne party may not render it difficult or impossible for the other to continue performance and then take advantage of the non-performance he has caused." Zion's Props., Inc. v. Holt, 538 P.2d 1319, 1321 (Utah 1975). That is not what occurred here.
¶ 33 As to Plaintiffs' alleged failure to provide the financial information, the trial court determined that the information was not needed for refinancing, so the failure to provide it could not have been a breach of the covenant of good faith and fair dealing. Moreover, Plaintiffs' refusal to give Davco an additional year to refinance so it could establish two years of ownership could not have been a breach of good faith and fair dealing because Plaintiffs were not required to surrender their rights under the promissory notes in order to assist Davco in refinancing. Declining to give up rights granted by a contract does not constitute a breach of the covenant of good faith and fair dealing, cf. Cook Assocs., Inc. v. Utah Sch. & Institutional Trust Lands Admin., 2010 UT App 284, ¶ 16, 243 P.3d 888, and the alleged promise to do so in this case is unenforceable under the statute of frauds. Furthermore, it does not appear that Davco would have ultimately benefitted from an extension because the trial court found that there were factors apart from the seasoning issue that prevented Davco from refinancing and because Davco never did refinance, despite accruing two years of ownership prior to the trustee's sale. Thus, Plaintiffs' actions were unlikely to have injured Davco's ability to receive the fruits of its contract.
¶ 34 Davco next challenges the trial court's finding of contempt against Davco and Fisher, asserting that Davco and Fisher were not provided with proper notice of the contempt allegation and that the trial court therefore lacked jurisdiction to hold either of them in contempt.
¶ 35 Plaintiffs assert that the arguments in their pleadings satisfied due process because they provided "adequate and timely notice of the charges made against the alleged contemnor" by "set[ting] forth the acts done or omitted that form the factual basis for the contempt charge," see Khan v. Khan, 921 P.2d 466, 468-69 (Utah Ct.App. 1996) (internal quotation marks omitted), just as an affidavit would have done. But the statutory affidavit requirement is not concerned only with due process; it is jurisdictional. See Robinson v. City Court ex rel. City of Ogden, 112 Utah. 36, 185 P.2d 256, 258 (1947). Thus, even assuming that the discussion in the pretrial order and the trial brief complies with due process, it is not sufficient under the statute to confer jurisdiction on the trial court in the absence of an affidavit. Cf. Jones v. Cox, 84 Utah. 568, 37 P.2d 777, 778 (1934) (reversing a trial court's contempt ruling on jurisdictional grounds where the trial court had issued an order to show cause but no initiating affidavit was ever filed). Thus, the trial court's contempt ruling cannot stand.
¶ 36 Davco also argues that the trial court erred in issuing the Ex Parte Order without complying with the terms of rule 67 of the Utah Rules of Civil Procedure, which permits
¶ 37 Judge Voros's concurring opinion, in which Judge McHugh joins, electing not to address the merits of Davco's rule 67 argument in light of our determination that any error on the part of the trial court in failing to comply with rule 67 was harmless, constitutes the majority opinion on this matter. Nevertheless, because I anticipate that the contempt issue may again arise on remand in the event Plaintiffs elect to pursue the contempt matter, I would have us address the merits of the rule 67 argument as guidance for the trial court. See generally State v. Low, 2008 UT 58, ¶ 61, 192 P.3d 867 (explaining that appellate courts have discretion to address issues that are likely to arise on remand in order to provide guidance to the trial court).
¶ 38 As far as I can tell from the record and the briefs, Davco did not raise its challenge to the validity of the Ex Parte Order until the time of trial, almost eighteen months after the Ex Parte Order was issued and after the order had already been violated. Rather than challenge the order, Davco and Fisher simply elected to ignore it. "The orderly and expeditious administration of justice by the courts requires that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings." Maness v. Meyers, 419 U.S. 449, 459, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975) (internal quotation marks omitted).
United States v. Cutler, 58 F.3d 825, 832 (2d Cir.1995); see also Maness, 419 U.S. at 458, 95 S.Ct. 584 ("Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect."); United States v. United Mine Workers of Am., 330 U.S. 258, 294, 67 S.Ct. 677, 91 L.Ed. 884 (1947) ("Violations of an order are punishable as criminal contempt even though the order is set aside on appeal...."); 17 C.J.S. Contempt § 24 (2011) (outlining the collateral bar doctrine) cf. State v. Clark, 2005 UT 75, ¶¶ 35-36, 124 P.3d 235 (stating that "[t]he proper method for contesting an adverse ruling is to appeal it, not to violate it" and that "an attorney who violates court orders and breaks ethical rules ... cannot claim immunity from contempt proceedings" and "may not protest adverse rulings by violating them in the name of zealous advocacy"). "Even to invoke the `transparently invalid' `exception,' however, a defendant must make some good faith effort to seek emergency relief from the appellate court." Cutler, 58 F.3d at 832 (additional internal quotation marks omitted). Davco made no such effort.
¶ 39 Finally, Davco argues that the trial court plainly erred in concluding that Davco had breached the Iota trust deed by recording deeds to Father and by encumbering the property. Davco asserts that these conclusions are relevant to Plaintiffs' affirmative defense that any breach resulting from the failure to provide the financial information was excused by Davco's previous breaches. However, because we have concluded that Plaintiffs were not obligated to provide the financial information, any error in the trial court's conclusions regarding Davco's breaches could not have been prejudicial. See generally State v. Diaz-Arevalo, 2008 UT App 219, ¶ 13, 189 P.3d 85 (explaining that a party challenging a ruling on grounds of plain error must establish "that there was error below, that the error should have been obvious to the district court, and that the error was prejudicial" (emphasis added)).
¶ 40 Because we conclude that the trial court correctly rejected Davco's part performance, equitable estoppel, waiver, and good faith and fair dealing claims, we affirm the trial court's deficiency judgment in favor of Plaintiffs. We also reject Davco's plain error challenge to the trial court's findings that Davco breached the Iota trust deed because Davco has failed to demonstrate prejudice.
¶ 41 Affirmed in part, and reversed and remanded in part.
VOROS, Associate Presiding Judge (concurring in part and writing for the majority in part):
¶ 42 I fully concur in Judge Davis's opinion, except as to Part VII.B. That section of the opinion offers guidance on an issue that Judge Davis anticipates may arise on remand. I would decline to give such guidance in this case for reasons stated below. And because Judge McHugh concurs with my opinion on this issue, the following opinion represents the judgment of the court on this one limited point.
¶ 43 This court unanimously rejects Davco's challenge to the trial court's denial of its motion to set aside the Ex Parte Order on the ground that any possible error was harmless. This holding disposes of the claim of error on appeal. However, Judge Davis would in addition hold that Davco and Fisher forfeited their right to challenge the contempt citation on the ground that the Ex Parte Order was not a lawful order of the
¶ 44 First, we are not persuaded that the question is likely to arise on remand. Judge Davis anticipates "that the contempt issue may again arise on remand in the event Plaintiffs elect to pursue the contempt matter." Of course, none of us can foretell the future. But the fact that an issue might arise on remand if Plaintiffs elect to pursue the matter falls short of the "likely to arise" standard.
¶ 45 Second, the question treated in Part VII.B was not briefed by the parties on appeal. Judge Davis cites State v. Low, which in turn cites State v. James, and James limits the principle of giving guidance on remand to issues "fully briefed" on appeal:
Low, 2008 UT 58, ¶ 61, 192 P.3d 867; see also Utah R.App. P. 30(a) ("If a new trial is granted, the court may pass upon and determine all questions of law involved in the case presented upon the appeal and necessary to the final determination of the case." (emphasis added)). Neither party here briefed the question of whether one who disobeys a court order forfeits the right to challenge its lawfulness in a later contempt hearing. We are thus disinclined to resolve the issue "without the engaged participation of the parties whose affairs will be directly affected" by that resolution. See State v. Robison, 2006 UT 65, ¶ 16, 147 P.3d 448 (referring to reversing on an unbriefed issue).
¶ 46 Finally, the question treated in Part VII.B is one of first impression in Utah. Davco contends that it disobeyed an unlawful order of the court. Our contempt statute defines contempt of court to include "disobedience of any lawful ... order ... of the court." Utah Code Ann. § 78B-6-301 (2008) (emphasis added). We are aware of no Utah decision addressing what lawful means as used in this statute. The Utah case cited by our colleague holds that a lawyer's ethical duty of zealous advocacy does not insulate his actions from contempt proceedings. See State v. Clark, 2005 UT 75, ¶¶ 33-36, 124 P.3d 235. But in that case, the lawyer "knowingly violated a lawful court order." Id. ¶ 39 (emphasis added). The lawfulness of the Ex Parte Order here has not been resolved.
¶ 47 In sum, the question of law Judge Davis treats in Part VII.B is not necessary to the resolution of this appeal, was not briefed by the parties, involves a novel question of statutory interpretation, and may well not arise on remand. Consequently, we express no opinion on it.
¶ 48 I CONCUR: CAROLYN B. McHUGH, Presiding Judge.
Crank, 2001 UT 8, ¶ 25, 20 P.3d 307 (alterations in original) (citations omitted) (quoting Utah Code Ann. § 78-32-1(5), (9) (1996) (current version at Utah Code Ann. § 78B-6-301(5), (9) (2008))). Furthermore, we note that at the time Fisher was initially subjected to the Ex Parte Order, he was a party to the proceedings. See infra note 12.
