[{"_1":2,"_88":-5,"_89":-5},"loaderData",{"_3":4,"_26":27},"root",{"_5":6,"_17":10,"_18":19,"_20":21,"_22":10,"_23":-5,"_24":-5,"_25":10},"user",{"_7":8,"_9":10,"_11":10,"_12":-5,"_13":-5,"_14":15,"_16":-5},"roles",[],"isAuthenticated",false,"isPremium","planName","subscriptionStatus","featureFlags",{},"insightsBudget","isDevelopmentHost","userPreferences",{},"recaptchaSiteKey","6LcvOJcUAAAAAHsB-gPGfGktcRlKpH7OTIU_dMTD","isImpersonating","impersonation","affiliateStatus","isFreedomPortal","routes/v2/article/layout",{"_28":29,"_30":31},"notFound",true,"relatedArticles",[32,76],{"_33":34,"_35":36,"_37":38,"_39":40,"_41":42,"_43":44,"_45":46,"_47":48,"_49":50,"_51":52,"_53":54,"_55":56,"_57":58,"_59":60,"_61":62,"_63":64,"_65":66,"_67":68,"_69":70,"_71":72,"_73":74,"_75":74},"mediaId",6539127,"mediaKeyId","3743439-b354d45a2ac30d5064f953cb4b281289","parentId",3743439,"title","Appeals court hears dispute over shareholder payments, sanctions and excluded declarations in Cook Martin Polson case","audioSeconds",3483,"startMs",3698000,"endMs",7181000,"viewUrl","/Search/View?dp=1&key=3743439-b354d45a2ac30d5064f953cb4b281289&start=3698&end=7181","thumbnailUrl","https://assets.pipeline.soar.com/3743439-b354d45a2ac30d5064f953cb4b281289/thumbnail_3698000.jpg","articleUrl","/articles/6539127/Utah/Appeals-court-hears-dispute-over-shareholder-payments-sanctions-and-excluded-declarations-in-Cook-Martin-Polson-case","mediaUrl","https://secure.pipeline.soar.com/6539127-b3a64a39aa4f62e4fb552f82c73a8a17/orig.mp4?Expires=1773538212&Signature=BchBZcIDryzKiJn0Z~Jnz~Cq1sBlZ1l5agcmYTmT42ox5GEuAu~pq73vowvgiwZ3~D1kzf6r1ITzy3UQigLjErOJUIGy6dEksitnGGKFN2xPMXBsyJHzHMnNtAQg90KOeNIfYPFqZCfVfpvpLdo3sqmdxEuSlEnKYTT2NAh55LovPLimBF8haGwLBZ1WUBdsIBCEMDXOXRTmOb8Xl76ih48OFAw9shNgqoODUoBWdds-ldmIoGWNUl~gG4lIKjzITOAdWAJ03mEsntjhV2UHQ1zkQL7F~IUsEvDPvtPohYC-5pvvsg6xA7O5qRoDSoyG~qvGm-rp1lOa-XG3CPCI7A__&Key-Pair-Id=KUT5TJCACFTXG","author","Utah Court of Appeals","date","2025-06-04T16:46:14Z","article","The Utah Court of Appeals heard oral argument in Cook Martin Polson v. Smith (Case No. 20230024) on whether the trial court properly excluded declarations and struck counterclaims as sanctions, and on competing interpretations of the shareholder and employment agreements that affect whether a shareholder was owed salary and distribution payments.

Appellate counsel for the party identified as Dan Smith argued the district court abused its discretion by excluding multiple declarations and by striking counterclaims against individual shareholders who had not themselves moved for sanctions. The appellant said the excluded declarations would create disputed issues of fact about earlier breaches, compensation practice and whether salaries and other benefits were treated as part of \"distributions\" under the shareholders agreement. The appellant asked the court to vacate the sanctions and either reinstate the claims or remand for reconsideration with the declarations considered.

Opposing counsel defended the sanctions, saying Smith repeatedly refused to comply with discovery obligations and that noncompliance — not merely the content of declarations — justified exclusion. Responding counsel also argued the shareholder agreement distinguishes salary from distributions and called the course-of-performance evidence relied on by the appellant either absent from the record or legally insufficient to rewrite plain contractual language.

A significant factual and contractual issue before the panel was the interpretation of two contract provisions. The employment agreement (as described at argument) provides an annual cash compensation figure of $62,400 and a separate $1,500 monthly payment (about $18,000 a year) for compliance with a noncompete. Appellant counsel said course-of-performance evidence shows that CMP historically paid shareholders and related benefits on a pro rata basis; counsel argued that evidence creates triable factual issues that preclude summary judgment on the contract claims.

The government-side advocate for CMP and company counsel said the plain text and the parties' corporate practice supported treating salaries and distributions as distinct categories. That counsel told the panel \"salary and distributions are terms of art\" and urged deference to the trial court's sanctions order.

The panel also discussed whether the shareholders' repurchase option was triggered and, if so, how the operative date for determining the relevant client list should be fixed. Counsel disagreed about whether the operative date is the termination notice in July or a December notice of the company's exercise of an option, a discrepancy that could affect whether clients were counted as company clients at the relevant time.

The court heard argument on several procedural and remedial questions: whether the appellate court could reverse sanctions and remand, whether excluded declarations would create disputed facts sufficient to vacate summary judgment, and whether striking claims against shareholders who did not move for sanctions was permissible. The panel did not rule from the bench; it took the matters under advisement and said it would issue a written opinion.","mediaType","Video","parentTitle","20230024 Poulson v. Smith audio file","oneSentenceSummary","In Case No. 20230024 the Utah Court of Appeals heard argument over whether the trial court properly excluded party declarations and struck counterclaims as sanctions, and whether the shareholder agreement required pro rata distributions that include salary.","taxTitle","Utah Court of Appeals Live Stream, Utah Appellate Court, Utah Judicial Branch, Utah","taxId",76036,"location","Utah","headline","","shortSummary",{"_33":77,"_35":36,"_37":38,"_39":78,"_41":79,"_43":80,"_45":81,"_47":82,"_49":83,"_51":84,"_53":85,"_55":56,"_57":58,"_59":86,"_61":62,"_63":64,"_65":87,"_67":68,"_69":70,"_71":72,"_73":74,"_75":74},6539131,"Appeals court hears dispute over condo snow pile that led to Andrews' fall",3199,491000,3690000,"/Search/View?dp=1&key=3743439-b354d45a2ac30d5064f953cb4b281289&start=491&end=3690","https://assets.pipeline.soar.com/3743439-b354d45a2ac30d5064f953cb4b281289/thumbnail_491000.jpg","/articles/6539131/Utah/Appeals-court-hears-dispute-over-condo-snow-pile-that-led-to-Andrews-fall","https://secure.pipeline.soar.com/6539131-aacb205adfe513fe0fc70619134e0711/orig.mp4?Expires=1773538212&Signature=KINVs1tMrTv-~5mdhj5mENLdOuJO96BHQft5uMjtJqyQps1JJyi3KMpMTifr22j5oK6mRI-FZCtuynXMPClIAkDiYuC31diQEcqeLOGD7mnuVFkUeJre31Y7Fb47ZX7g4q1Senr~gUAqI5j5e4pr4UHN81oSncOdeXSCyjgfF6kIaBQJJbNp~f-DjFIeVVRMS6SgO6eTWULRCDMvaMAAZdegBASQciHLfyE5w82PHqgBJvfHhIiAybhEqwZPCKctHmWOdg1WdlSZzt3-ZPUQhrrRbu9j4Am5hw5DNQcBeGU0ER764ud4~5cjtN5~82DQF-MlPhBAk31qVEY-hnkUvw__&Key-Pair-Id=KUT5TJCACFTXG","At oral argument before the Utah Court of Appeals, attorneys for Kathy Andrews and Stony Brook Condominium Association disputed whether a pile of snow and underlying ice created by neighbor William Thomason was an \"open and obvious\" hazard and whether summary judgment was proper in Andrews' slip-and-fall appeal (Case No. 20240581).

The issue matters because the court's answer will affect whether the open-and-obvious danger doctrine or ordinary negligence principles govern claims that arise when a person slips on a human-made accumulation of snow or ice on a sidewalk. If the condition is open and obvious and not the subject of a special duty, a possessor of land can avoid liability; if factual disputes remain about dangerousness or foreseeability, the case typically belongs to a jury.

Ryan Schreiber, counsel for appellant Kathy Andrews, told the panel there were \"really straightforward facts\" that the plaintiff fell on a pile of snow and that the pile existed and was created by Thomason. Schreiber argued that while the snow might have been visible, the ice beneath it was not, and that unresolved factual issues remained about whether the condition was dangerous and whether reasonable people could differ about whether a possessor should have anticipated that a pedestrian might still encounter it despite an obvious path nearby. Schreiber cited case law he said called for fact-bound inquiry rather than a judge taking the issue away from a jury.

Counsel for Stony Brook, Ryan Poole, advanced multiple alternative grounds for affirming the summary judgment. Poole argued the plaintiff was not an invitee to the condominium common area in the sense that would create a higher duty, asserted the condition was temporary and not the possessor's responsibility, and emphasized record evidence he described as unrebutted — including an expert opinion that lighting was sufficient, admissions by Andrews that she saw the pile and could have gone around it, and that the pile had been present for hours — all of which, he said, supported the judge's decision. Poole also urged that causation was not proved because the plaintiff could not say whether she fell on snow or on ice beneath it.

Scarlett Smith, counsel for William Thomason, responded to questions about whether the defendant's act of displacing snow onto the sidewalk should be treated as an affirmative act (misfeasance) rather than an omission. Smith said the factual record supports treatment as an affirmative act and argued that Utah law permits application of an open-and-obvious defense where the negligence claim rests on creating a dangerous condition on the land.

Throughout the argument the panel pressed briefings and distinctions between duty and breach. One judge framed the central inquiry this way: \"should a landlord or the possessor expect that or anticipate that they might become distracted and encounter it anyway or might fail to protect themselves against it despite its openness and obviousness?\" The court also asked whether open-and-obvious principles developed in premises-liability cases apply more broadly to ordinary negligence claims when the theory is that an actor created a hazard on land.

Counsel and several justices referenced Utah decisions including Hale, Coburn, Downham and other cases as they debated whether the analysis is a fact-bound duty question or essentially a breach inquiry that could sometimes be resolved on summary judgment if facts are undisputed. Lighting (the fall occurred around 8:15 p.m., according to the record), the duration the pile sat on the sidewalk (counsel referred to about eight hours), and contemporaneous admissions by the plaintiff were all argued as key record points.

The court did not rule from the bench. The panel asked for supplemental briefing on at least one issue — whether the open-and-obvious doctrine can apply outside the possessor-of-land/premises-liability context — and took the matter under advisement.","At oral argument in Case No. 20240581, the Utah Court of Appeals heard competing views over whether a pile of snow and underlying ice created by a neighbor was an \"open and obvious\" hazard and whether the district court erred in granting summary judgment for the defendants.","actionData","errors"]

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Appeals court hears dispute over shareholder payments, sanctions and excluded declarations in Cook Martin Polson case

Appeals court hears dispute over condo snow pile that led to Andrews' fall