April 11, 2013, Utah Court of Appeal Case Summaries

April 11, 2013

Utah Court of Appeals Cases

Discover Bank v. Kendall, 2013 UT App 87, No. 20120498-CA (April 11, 2013)

TOPIC: Rule 36 Requests to Admit

The Court reverses the district court’s ruling granting Discover Bank Summary Judgment on its collection action.  The Court holds that prior to filing its Motion for Summary Judgment, Discover Bank admitted, by failing to respond to Kendall’s requests to admit, that Kendall had paid it in full and that Kendall had fulfilled all of his contractual obligations.  Accordingly, the facts stated in Discover Bank’s motion for summary judgment were not undisputed; indeed, they were admittedly different than presented.  The Court remands with direction to enter summary judgment for Kendall.

Judge Christiansen,

Discover Bank does not deny that it was over two months late in responding to Kendall’s requests for admissions. Discover Bank also never requested an extension of time to serve its responses, and it never objected to the form of Kendall’s requests as was permitted under the rule. See Utah R. Civ. P. 36(b)(2)–(3). Consequently, on January 4, 2012, twenty‐eight days after Kendall served his requests, the matters in Kendall’s “admissions [were] automatically established as true.” See Kotter, 2009 UT App 60, ¶ 16.

At ¶ 6.

Here, . . . Discover Bank never filed a motion to withdraw or amend the admissions pursuant to rule 36. Accordingly, the matters in Kendall’s requests for admissions are conclusively established as true. See Utah R. Civ. P. 36(c). We reiterate this point because Discover Bank’s brief glosses over the fact that it never filed such a motion and instead argues that the district court did not abuse its discretion granting its summary judgment based on the two‐step process set forth in Langeland. See generally 952 P.2d at 1060–61 ; see also Utah R. Civ. P. 36(c). Discover Bank alternatively argues that its “fully briefed motion for summary judgment was, in substance, a motion to withdraw the admission in issue because the motion ‘clearly outlined the parties’ respective positions.’” (Quoting Brunetti v. Mascaro, 854 P.2d 555, 558 (Utah Ct. App. 1993), abrogated on other grounds by Gillett v. Price, 2006 UT 24, ¶ 8, 135 P.3d 861.) Discover Bank’s argument is not persuasive.

At ¶ 10.

Here, Discover Bank never raised any argument below even remotely supporting a reason to withdraw or amend the admissions. In its opposition to Kendall’s motion for summary judgment, Discover Bank responded with three curt sentences: “[Kendall]’s Motion is moot. [Discover Bank] has sent its discovery responses to counsel for [Kendall] on this date. Therefore, there is no relief for the Court to grant and the Motion should be dismissed.” And, in its own motion for summary judgment, Discover Bank merely argued its own evidence. Discover Bank’s first attempt to withdraw the admissions is now, in response to Kendall’s appeal.

At ¶ 13.

Thus, we determine that none of Discover Bank’s actions in the proceedings below constituted a request for the withdrawal or amendment of the admissions. “Requests for admission must be taken seriously, and answers or objections must be served promptly. The penalty for delay or abuse is intentionally harsh, and parties who fail to comply with the procedural requirements of rule 36 should not lightly escape the consequences of the rule.” Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1061 (Utah 1998). Because the matters in Kendall’s admissions were conclusively established as true, the district court erred in granting summary judgment in favor of Discover Bank.

At ¶ 14.

We agree with the district court’s refusal to consider Kendall’s motion for summary judgment at the time it considered Discover Bank’s motion for summary judgment because Kendall’s motion was not properly submitted for decision under rule 7(d). And we agree that, at the time, Kendall’s notice of appeal mooted his pending motion for summary judgment, though he ultimately did submit his motion for decision prior to filing his notice of appeal. As a result, Kendall has not preserved for appeal any challenge to the district court’s ruling on his own motion for summary judgment. See Capital One Bank, NA v. Wall, 2012 UT App 167, ¶ 3, 282 P.3d 1019 (per curiam). However, on remand, Kendall’s motion for summary judgment is no longer moot based on our conclusion that the district court erred in granting Discover Bank’s motion for summary judgment. Accordingly, we remand with specific instruction to the district court to grant Kendall’s motion for summary judgment.

At ¶ 15.

Kemp v. Wells Fargo Bank, 2013 UT App. 88, No. 20120099‐CA (April 11, 2013)

TOPIC: Appellant’s burden to show it has standing

Judge Voros,

[W]hen a party’s standing to appeal is challenged, that party carries the burden to show that he has standing to invoke the court’s jurisdiction:

“On appeal, a party whose standing is challenged must show that he or she had standing under the traditional test in the original proceeding before the district court. In addition, an appellant generally must show both that he or she was a party or privy to the action below and that he or she is aggrieved by that court’s judgment.”

Chen v. Stewart, 2005 UT 68, ¶ 50, 123 P.3d 416 (quoting Society of Prof’l Journalists, Utah Chapter v. Bullock, 743 P.2d 1166, 1171 (Utah 1987)); see also Brown, 2010 UT 14, ¶ 14 (stating that the party invoking jurisdiction bears the burden of establishing standing); State v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448 (“It falls squarely upon an appellant to surmount the filing, briefing, and persuasion burdens associated with an appeal.”).

We express no opinion as to whether Kemp in fact has standing. But by remaining silent in the face of a plausible challenge to his standing, Kemp has failed to carry his burden of establishing that he has standing to invoke our jurisdiction to address the merits of his appeal. Consequently, we dismiss the appeal.

At ¶¶ 8-9.

Myrberg v. Snelgrove, 2013 UT App 89, No. 20120275-CA (April 11, 2013)

Topic: Res Judicata

The causes of action asserts in Myrberg's second suit against the same defendant could have been included in the first suit; accordingly, claim preclusion applies.

Per Curiam,

The doctrine of res judicata has two distinct branches: claim preclusion and issue preclusion. See Mack v. Division of Sec., 2009 UT 47, ¶ 29, 221 P.3d 194. Claim preclusion results in a cause of action being barred and “is premised on the principle that a controversy should be adjudicated only once.” Id. (citation and internal quotation marks omitted). The determination whether a claim is precluded is based upon a three- part test.

First, both cases must involve the same parties or their privies. Second, the claim that is alleged to be barred must have been presented in the first suit or be one that could and should have been raised in the first action. Third, the first suit must have resulted in a final judgment on the merits.

Snyder v. Murray City, 2003 UT 13, ¶ 34, 73 P.3d 325. “Whether resjudicata, and more specifically claim preclusion, ‘bars an action presents a question of law’ that we review for correctness.” Mack, 2009 UT 47, ¶ 26 (quoting Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 17, 16 P.3d 1214).

At ¶ 2.

Mack v. Division of Securities, 2009 UT 47, 221 P.3d 194, supports the application of the claim preclusion branch of res judicata to this case. In Mack, the supreme court stated,

Claims or causes of action are the same as those brought or that could have been brought in the first action if they arise from the same operative facts, or in other words from the same transaction. See Restatement (Second) of Judgments § 24 (1982). Previously we have held that two causes of action are the same if they rest on the same “state of facts,” and the evidence “necessary to sustain the two causes of action” is of the same kind or character. Shaer v. State, 657 P.2d 1337, 1340 (Utah 1983). More recently, however, we have moved toward the transactional theory of claim preclusion espoused by the Restatement (Second).

Id. ¶ 30. The supreme court acknowledged that “[w]hile in some cases we have still suggested that the evidence needed to sustain the claims must be the same, this requirement was not dispositive for these cases.” Id. Discussing Macris, the supreme court noted that while it found there that claims in two cases brought by Macris were based on different facts, “[c]ritical to [the court’s] holding was the circumstance that the two claims arose out of different transactions.” Id. Accordingly, the supreme court concluded that “if a party raises claims based on the same operative facts or the same transaction, it may be precluded if the other elements of claim preclusion are met.” Id.

At ¶ 6.

In the first action, Myrberg brought claims against the Snelgroves for trespass, property damage, and infliction of emotional distress arising from a property dispute. After the parties reached a settlement agreement in the first action, Myrberg accused the Snelgroves of failing to comply with the settlement agreement, filing multiple motions seeking to enforce the settlement and to find the Snelgroves in contempt of court orders. After multiple hearings, discovery, depositions, and testimony at evidentiary hearings, the district court entered a judgment in which it concluded that the Snelgroves had not failed to comply with the settlement and were not in contempt. Myrberg did not appeal.

Myrberg filed the second action, claiming that the Snelgroves breached the settlement agreement and a subsequent oral agreement, caused damages by the same alleged trespass, caused emotional distress, and fraudulently entered into the settlement agreement and subsequent oral agreement. The Snelgroves persuasively argued that Myrberg’s claims were the same claims that were or could have been pursued in the first action. Characterizing the claims as fraud claims did not change the essential character of allegations that were asserted in multiple hearings regarding the Snelgrove’s compliance with the settlement agreement and the efforts to achieve a workable drainage system. Myrberg either raised or could have raised these claims in the first action.

Because the claims made in the second action and the first action arose from the same operative facts and the same transaction, and Myrberg’s claims that the Snelgroves failed to comply with the settlement and court orders were raised or could have been raised in the first action, the district court did not err in dismissing the second action brought against the Snelgroves based upon the claim preclusion branch of res judicata.

At ¶¶ 7-9.

State v. Stevens, 2013 UT App 90, No. 20120373‐CA (April 11, 2013)

TOPIC: Sufficiency of Probable Cause Affidavits in Child Pornography Cases

Per Curiam,

Stevens initially argues that the affidavit for a search warrant was deficient because it failed to comply with Utah Code section 76-10-1212 by not attaching the material that was believed to be pornographic to the affidavit for review by the magistrate. . . . In State v. Moore, we analyzed the operative language of Utah Code section 76-10-1212(1) and concluded that “[t]here is no requirement . . . that the alleged pornographic material always be attached to the affidavit in support of the search warrant. . . . The material need not be attached if the affidavit allows the magistrate an opportunity to focus searchingly on the question of obscenity.” Id. (citation and internal quotation marks omitted). Thus, the only question is whether the affidavit’s description of the material is sufficiently detailed to support a finding of probable cause. See id.

At ¶ 3.

The Court reviews the probable cause affidavit and finds that it supported probable cause.

At ¶ 4.

The Court declines to address Stevens’ second argument that the search warrant was not executed within the allotted time period because it was inadequately briefed.

At ¶ 5.