Case 08-02077 Doc 55 Filed 04/30/09 Entered 04/30/09 16:27:22 Desc Main

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Gary E. Jubber A1758

Douglas J. Payne A4113
Clint R. Hansen A12108
FABIAN & CLENDENIN,
a Professional Corporation
215 South State Street, Suite 1200
Salt Lake City, Utah 84111-2323
Telephone: (801) 531-8900
Fax: (801) 596-2814
gjubber@fabianlaw.com
dpayne@fabianlaw.com
chansen@fabianlaw.com

Attorneys for Gary E. Jubber, Chapter 7 Trustee

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
)
In re: ) Bankruptcy No. 08-20308
)
BEDROCK MARKETING, LLC, ) (Chapter 7)
)
Debtor. )
) Honorable William T. Thurman
)
GARY E. JUBBER, Chapter 7 )
Bankruptcy Trustee of Bedrock Marketing, )
LLC and Enlightened Management, LLC, ) MEMORANDUM IN OPPOSITION TO
) DEFENDANT’S MOTION TO ALTER
Plaintiff, ) AND AMEND
v. )
)
WESTON WADE SLEATER, an ) Adversary No. 08-02077
individual, )
)
Defendant. )

Plaintiff Gary E. Jubber, Chapter 7 Trustee (“Plaintiff”), hereby submits this

Memorandum in Opposition to Defendant West Wade Sleater’s (“Sleater”) Motion to Alter and

Amend (“Motion to Amend”):

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I. Rule 59(e) is an Extraordinary Remedy to be Used Only to Address Manifest Errors

of Law or Newly Discovered Evidence.

“[A] Rule 59(e) motion is normally granted only to correct manifest errors of law or to

present newly discovered evidence.” Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir.2005); see

also Smith v. U.S., __ F.3d __, 2009 WL 820177, at *4, fn. 8 (10th Cir. 2009). Motions under

Rule 59(e) are an extraordinary remedy to be used sparingly and “will not be granted absent

highly unusual circumstances.” MacArthur v. San Juan County, D.Utah 2005, 405 F.Supp.2d

1302, 1305; see also Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, (4th Cir. 2008)

(Rule 59(e) motion “is a remedy to be used sparingly”). Such motions are not intended to

provide litigants with an opportunity for a “second bite at the apple” and “are not vehicles for

relitigating old issues.” MacArthur, 405 F.Supp.2d at 1305-06. As the Utah District Court has

explained:

the scope of rule 59(e) is quite limited: A party should not use a [Rule 59(e)
motion] to reargue the motion or present evidence that should have been raised
before. Moreover, a party seeking reconsideration must show more than a
disagreement with the Court's decision, and recapitulation of the cases and
arguments considered by the court before rendering its original decision fails to
carry the moving party's burden. When a motion for reconsideration raises only a
party's disagreement with a decision of the Court, that dispute should be dealt
with in the normal appellate process, not on a motion for reargument under Rule
59(e).

Whitmer v. World Financial Network Nat. Bank, 2006 WL 288326, *1 (D.Utah 2006) (slip copy)

(internal cites omitted); see also Resolution Trust Corp. v. Greif, 906 F.Supp. 1446, 1456-57

(D.Kan.1995) (holding that a party cannot invoke Rule 59(e) to “rehash arguments previously

considered and rejected by the court.”).

Sleater has not presented any newly-discovered evidence. The Motion to Amend appears

to be suggesting that this Court made a manifest error of law. In fact, as is shown below, this

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Court correctly applied the applicable law to the undisputed facts in granting Plaintiff’s motion

for summary judgment. The Motion to Amend is an improper attempt to rehash an argument

that has already been considered and rejected by the Court.

II. This Court Considered and Rejected Sleater’s Lack of Consideration Argument.

Sleater’s Motion to Amend asks the court to revisit his argument that the notes are

unenforceable because they lack consideration or “value.”1 The Court already heard and rejected

this argument.2

In fact, the Court not only rejected Sleater’s general argument that the notes lacked

consideration, but also considered, and rejected, the more specific argument that the notes lacked

“value” because the debt was an antecedent debt and that general contract law, not Utah’s

Commercial Code (Utah Code Ann. § 70A-1a-101, et seq.) should apply. See Memorandum

Decision, entered 4/27/09, Docket No. 53 (“Decision”), at 13 & 19-21. The Court analyzed the

notes at issue and correctly found that they are “unconditional, promises to pay a fixed amount,

payable to the bearer at a definite time,” being due within three years of execution, and therefore

satisfy all the requirements to be considered “negotiable instruments” under Utah law. Id. at 14-

15. Accordingly, the Court concluded that Chapter 3 of the UCC applies. Id. at 15.

The Court then addressed the Defendant’s lack of consideration argument by finding that

Utah Code Ann. § 70A-3-303(1)(c) validates past consideration as “value” to support an

instrument. Decision at 19. The Court further noted that “There is no dispute that all of the

1
The term “value”, as used in the UCC, is synonymous with the term “consideration.” See Utah Code Ann. §70A-3-
303(2) (“If an instrument is issued for value as stated in subsection (1), the instrument is also issued for
consideration.”).
2
See, Mem. in Opp. to Summ. Judgment, at 5-6; Reply Mem. in Supp. of Mot. for Summ. Judgment, at 4-6; Mem.
in Opp. to Mot. to Strike, at 5-6; Reply Mem. in Supp. of Mot. to Strike, at 3-4; and Memorandum Decision entered
4/27/09, Docket No. 53, at 19-21.

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money was advanced to Atlas Capital and not the defendant personally.” Id. at 20. The Court

could properly make these findings based upon the facts set forth in the Affidavit of John H.

Curtis3, which Sleater did not contest. Moreover, Sleater has affirmatively admitted several key

facts establishing that value was in fact given. For example, in his Memorandum in Support of

Motion for Summary Judgment (“S.J. Memo”),4 Plaintiff provided a Statement of Undisputed

Facts as required by Local Rule 56-1(b), and Sleater responded by filing a Memorandum in

Opposition (“S.J. Opp.”)5 in which he admitted that value was given to Atlas Capital, LLC

(“Atlas”). The following chart shows certain pertinent facts asserted by Plaintiff and Sleater’s

response:

Plaintiff’s Statement of Undisputed Fact Sleater’s Response

“Beginning in June 2006 Plaintiff advanced
funds in excess of $4 million to Defendant or his
affiliates.” S.J. Memo at 3, ¶ 1.
“Payments were made on the Bedrock Note after
March 15, 2007 in an amount totaling
$1,764,862.70.” S.J. Memo at 4, ¶ 4.
“The balance owed on the Bedrock Note, as of
November 30, 2008, was $7,697,079.71.” S.J.
Memo at 4, ¶ 5.
“From January 2007 to March 15, 2007,
Enlightened advanced funds to Defendant
totaling $470,000. As of March 15, 2007 the
amount owed by Sleater to Enlightened totaled
$470,000.” S.J. Memo at 4, ¶ 6.
“The balance owed on the Enlightened Note, as
of November 30, 2008, is $1,724,276.96.” S.J.
Memo at 4, ¶ 9.
“Defendant does not contest that beginning in
June, 2006 plaintiff advanced funds in excess of
$4 million, but disputes the balance of the
allegations and disputes that any funds were
advanced to Sleater or his affiliate: A) All funds
were advanced only to Atlas Capital, LLC . . .”
S.J. Opp. at 1-2.
“Admit these allegations.” S.J. Opp. at 2.
“Admit that there was a balance owed as
specified, but state that the balance was owed
only by Atlas Capital, LLC . . .” S.J. Opp. at 2.
“Admit that plaintiffs advanced funds in the
amount specified, but only to Atlas Capital, LLC,
and not to Sleater and that Sleater has no legal
obligation for the funds advanced.” S.J. Opp. at
3.
“Admit that there was a balance owed as
specified, but state that the balance was owed
only by Atlas Capital, LLC, and that nothing was
owed by Sleater.” S.J. Opp. at 3.

3
Filed 12/1/08, Docket No. 22.
4
“Memorandum in Support of Motion for Summary Judgment,” Docket No. 23, filed 12/1/08.
5
“Memorandum in Opposition to Summary Judgment,” Docket No. 24, filed 12/29/08.

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In addition, Sleater has elsewhere in his pleadings admitted the following facts relating to

value:

• Sleater is the sole member and manager of Atlas. See Unsworn Declaration of Def. in
Supp. of Opp. to Mot. for Summ. J. (“Declaration”),6 at ¶ 2.

• “Beginning in June, 2006 Plaintiff advanced funds to Atlas Capital, LLC. As of

March 15, 2007 Atlas Capital, LLC owed Bedrock $3,910,388.71.” Id. at ¶ 4.

• “Beginning in June, 2006, Enlightened advanced funds to Atlas Capital, LLC in the
amount of $470,000.00.” Id. at ¶ 5.

• “All funds advanced by Bedrock and Enlightened were deposited into the account of

Atlas Capital, LLC.” Id. at ¶ 12.

• “[M]oney had been loaned to Atlas Capital, LLC, pursuant to an oral agreement
between Sleater and Rex Wheeler.” Mem. in Opp. to Mot. to Strike at 8, ¶ 2.

• “Bedrock and Enlightened desired to and began advancing funds to Atlas Capital,

LLC, in June, 2006. From June, 2006, until March, 2007, the agreement between the

parties was oral. In March, 2007, counsel for Bedrock and Enlightened sent two

notes to Mr. Sleater for signature. [ . . . ] The two notes reflected the terms of

repayment originally orally agreed to . . .” S.J. Opp. at 5.

It is clear from the foregoing that the Court’s findings regarding “value” were amply

supported by the record, including admissions in the unstricken portions of Sleater’s own
6
Sleater actually filed two declarations which were identical in substance: the “Unsworn Declaration of Weston
Wade Sleater In Support of Opposition to Motion for Summary Judgment” (Docket No. 26, filed 12/31/08) and the
“Declaration Under Oath of Weston Wade Sleater In Support of Opposition to Motion for Summary Judgment”
(Docket No. 24-2, filed 12/28/08). Plaintiff moved to strike both declarations. The Court struck several paragraphs;
however, paragraphs 2, 4, 5 and 12 cited in this memorandum were not stricken by the Court. See Decision at 12.

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Declaration. Sleater’s contention that “Plaintiff presented no evidence whatsoever that ‘value’

was presented” (Motion to Amend at 2) is simply not correct. It is also clear from the foregoing

that the parties intended that the notes memorialize a prior oral agreement and serve as security

for that antecedent debt.

The Court has also correctly found that the money given to Atlas was legally sufficient

consideration to support Sleater’s personal promise to pay. As set forth in the facts above, it is

not disputed that the money given to Atlas was bargained for and given in exchange for a

promise. S.J. Opp. at 5; see also Decision at 20. And since Utah law does not require that

consideration flow directly to the promisor, the money given to Atlas can constitute valid

consideration as to Sleater personally. Decision at 20. Additionally, because Sleater executed

the guarantees contemporaneously with the execution of the notes, the consideration given to

Atlas is sufficient to support Sleater’s personal guarantees as well. Id.

III. Conclusion

Sleater wants a second bite at the apple; however, as noted above, Rule 59(e) motions

cannot be used for that purpose. MacArthur, 405 F.Supp.2d at 1305-06. Sleater is simply

disagreeing with the Court’s Decision and improperly using his Motion to Amend as a means to

recapitulate his prior arguments. Whitmer, 2006 WL 288326, *1. Sleater has shown neither a

change in the applicable law that would affect the outcome of the case nor a “manifest error of

law.” Jennings, 394 F.3d at 854. In fact, the Court’s Decision was entirely correct and properly

applied the applicable law to the undisputed facts of this case.

For the foregoing reasons, the Court should deny Sleater’s Motion to Amend.

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DATED this 30th day of April, 2009.

/s/ Gary E. Jubber

Gary E. Jubber
Douglas J. Payne
Clint R. Hansen
FABIAN & CLENDENIN
a Professional Corporation
Attorneys for Gary E. Jubber, Chapter 7 Trustee

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CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of April, 2009, I caused a true and correct copy of

the foregoing MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO ALTER

AND AMEND, to be mailed, first-class postage prepaid, to:

Ronald S. George
218 W. Paxton Ave.
Salt Lake City, UT 84101

/s/ Gary E. Jubber

ND: 4845-5566-4643, v. 3