January 9, 2014 Utah Court of Appeals Case Summaries

Only one of the six decisions published on January 9, 2014, did not address matters of criminal or family law.

Velasquez v. Harman–Mont & Theda, 2014 UT App 6, No. 20120858-CA (January 9, 2014)

ISSUE: Waiver of an Affirmative Defenses; advisory opinion not ripe for appellate review.

Judge McHugh,

         Because Mont & Theda first raised a defense based on the Travel Reduction Act in its motion for summary judgment, Plaintiffs moved to strike the summary judgment motion. The district court granted the motion to strike both because the Travel Reduction Act was an affirmative defense that had not been pleaded and thus was not properly joined, and because Mont & Theda had waived the defense by not putting Plaintiffs on notice of it until after the close of discovery. Because Mont & Theda does not challenge either of these grounds, we affirm the district court’s decision striking Mont & Theda’s motion for summary judgment. See Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903 . . . .

At ¶ 12.

The Travel Reduction Act was not before the district court because Mont & Theda had not pleaded it as an affirmative defense. “[Mont & Theda’s] assertion of [its] unpleaded claims in briefing and argument before the district court and on appeal cannot remedy the failure to include them in an appropriate pleading.” See Barton Woods Homeowners Ass'n v. Stewart, 2012 UT App 129, ¶ 11, 278 P.3d 615; see also Holmes Dev., LLC v. Cook, 2002 UT 38, ¶ 31, 48 P.3d 895 (“A plaintiff cannot amend the complaint by raising novel claims or theories for recovery in a memorandum in opposition to a motion to dismiss or for summary judgment, because such amendment fails to satisfy Utah’s pleading requirements.” (citations omitted)). . . .

At ¶ 14.

         We agree with Plaintiffs that the district court merely hypothesized what it would do in response to possible future actions of the parties that may or may not occur. As a result, these issues are not ripe for appellate review. See Carter v. Lehi City, 2012 UT 2, ¶ 93, 269 P.3d 141 (explaining that hypothetical statutory issues are “unripe for adjudication” (citation and internal quotation marks omitted)). The Utah Supreme Court has identified three important functions served by the ripeness doctrine: (1) “block[ing] the court from rendering advisory opinions on matters that may not impact the parties”; (2) “requiring a clear factual record prior to adjudication” and thereby “facilitat[ing] informed decisions that fit the circumstances of individual cases”; and (3) “prevent[ing] the court from intruding on legislative functions by unnecessarily ruling on sensitive constitutional questions.” Id. (citations omitted). Here, all three of these functions are implicated.

At ¶ 15.

Until the district court actually rules on the applicability of the Act, any guidance from this court would be an impermissible advisory opinion.

At ¶ 16.

As discussed, it is uncertain at this juncture whether the district court will permit Mont & Theda to amend its answers to add a defense based on the Travel Reduction Act. And if the district court denies such a motion, there is no guarantee that it will do so on the basis that the Act is inapplicable—as opposed to extending its waiver analysis to the resolution of that question. See Kelly v. Hard Money Funding, Inc., 2004 UT App 44, ¶ 26, 87 P.3d 734. Accordingly, this issue is not within the scope of our judicial power. . . .

At ¶ 21.