Sunridge Development Corp. v. RB & G Engineering, Inc. ( 2013 )

2013 UT App 146_________________________________________________________
THE UTAH COURT OF APPEALS
SUNRIDGE DEVELOPMENT CORPORATION AND SUNRIDGE
ENTERPRISES, LLC,
Plaintiffs, Appellant, and Cross‐appellee,
v.
RB&G ENGINEERING, INC.,
Defendant, Appellee, and Cross‐appellant.
Opinion
No. 20111049‐CA
Filed June 13, 2013
Fourth District, American Fork Department
The Honorable Christine S. Johnson
No. 070100134
Stephen Quesenberry and Jessica Griffin Anderson,
Attorneys for Appellant and Cross‐appellee
Craig C. Coburn, Lincoln Harris, and
Zachary E. Peterson, Attorneys for Appellee and
Cross‐appellant
JUDGE J. FREDERIC VOROS JR. authored this Opinion,
in which JUDGE WILLIAM A. THORNE JR. concurred. JUDGE
CAROLYN B. MCHUGH concurred in the result.
VOROS, Judge:
¶1 Sunridge Enterprises, LLC, appeals the trial court’s entry of
summary judgment in favor of RB&G Engineering, Inc. (RB&G).
We affirm.1
1. We are puzzled by the continued involvement of Sunridge
Development Corporation as a party in this case. All claims
asserted by Sunridge Development were dismissed by 2006, and
the only claim that Sunridge Development appealed was rejected
(continued...)
Sunridge Development v. RB&G Engineering
BACKGROUND
¶2 Sunridge Enterprises and Sunridge Development
Corporation sued RB&G for breach of contract and negligence. The
facts of the underlying suit are set out in previous decisions issued
by this court and our supreme court. See Sunridge Dev. Corp. v.
RB&G Eng’g, Inc., 2008 UT App 29, 177 P.3d 644, rev’d, 2010 UT 6,
230 P.3d 1000. On remand from the supreme court, the trial court
ruled that Sunridge Development had assigned all interest in the
underlying contract with RB&G to Sunridge Enterprises. RB&G
then moved for summary judgment on the ground that Sunridge
Enterprises could not prove damages. By the time the court
decided the motion, the sole remaining claim was a claim by
Sunridge Enterprises for lost profits from fourteen additional
housing units that it was allegedly unable to build due to RB&G’s
failure to correctly identify fault lines. The trial court granted
summary judgment in favor of RB&G and dismissed the case.
Sunridge Enterprises appeals the dismissal of its claim, and RB&G
cross‐appeals the trial court’s ruling regarding the assignment.
ISSUES AND STANDARDS OF REVIEW
¶3 First, Sunridge Enterprises contends that the trial court
should have reopened discovery because Sunridge Enterprises did
not have an opportunity to conduct full discovery on its claims.
This contention involves a challenge to the trial court’s discovery
ruling and its underlying factual findings regarding the extent to
which discovery had been conducted. We review a trial court’s
1. (...continued)
by the supreme court in 2010. See Sunridge Dev. Corp. v. RB&G
Eng’g, Inc., 2010 UT 6, ¶¶ 26–30 & n.8, 230 P.3d 1000. In the present
appeal, the notice of appeal lists Sunridge Development as an
appellant along with Sunridge Enterprises. However, Sunridge
Development does not challenge any trial court ruling directed to
it. Therefore, even if Sunridge Development were properly before
us as a party, it has abandoned any appeal.
20111049‐CA 2 2013 UT App 146Sunridge Development v. RB&G Engineering
factual findings for clear error, State v. Pinder, 2005 UT 15, ¶ 20, 114
P.3d 551 (citing Utah R. Civ. P. 52(a)), and we review its ultimate
denial of a request for additional time to conduct discovery for an
abuse of discretion, Reperex, Inc. v. May’s Custom Tile, Inc., 2012 UT
App 287, ¶ 11, 292 P.3d 694.
¶4 Second, Sunridge Enterprises contends that genuine issues
of material fact preclude granting summary judgment in favor of
RB&G. On appeal, we “review[] a trial court’s legal conclusions
and ultimate grant or denial of summary judgment for correctness
and view[] the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party.” Orvis v.
Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal
quotation marks omitted).2
ANALYSIS
I. Request To Reopen Discovery
¶5 Sunridge Enterprises contends that the trial court should
have allowed it additional time to conduct discovery on the issue
of damages after the supreme court remanded the case. The trial
2. Regarding RB&G’s cross‐appeal, RB&G does not seek to alter the
trial court’s final judgment dismissing the case. “Appellees need to
cross‐appeal only when they wish to attack a judgment of a trial
court for the purpose of enlarging their own rights or lessening the
rights of their opponent. If they wish to uphold the trial court’s
ruling on grounds that were raised but rejected below, a
cross‐appeal is not necessary.” Nova Casualty Co. v. Able Constr.,
Inc., 1999 UT 69, ¶ 7, 983 P.2d 575 (citation and internal quotation
marks omitted). Because RB&G prevailed below and would have
prevailed even if the trial court had ruled that no assignment had
taken place, RB&G’s cross‐appeal is more accurately characterized
as an argument to affirm on alternate grounds. Given our
resolution of this appeal, we need not address RB&G’s argument.
20111049‐CA 3 2013 UT App 146Sunridge Development v. RB&G Engineering
court rejected this request, stating, “[Sunridge] Enterprises is
incorrect in its assertion that discovery has not been permitted on
its claim for the lost units. . . . [Sunridge] Enterprises enjoyed a full
opportunity to participate in discovery, and to produce any
admissible evidence in order to advance its claim of damages for
the lost units.”3
¶6 Sunridge Enterprises challenges the trial court’s finding that
it had the opportunity to fully conduct discovery on its claim for
damages for the lost units. Sunridge Enterprises states that
discovery was not closed until “the judge’s ruling, closing
discovery in [February] 2006,” five months after Sunridge
Enterprises had been dismissed. Sunridge Enterprises argues that
the resulting denial of its request was an abuse of discretion
because the nature of the litigation had changed due to the
intervening trial court and appellate court decisions in this case.
Therefore, Sunridge Enterprises argues, it should now be given an
opportunity to complete discovery pertinent to its newly revived
claim.
¶7 We disagree with Sunridge Enterprises’ characterization of
the record. Discovery appears to have been completed on January
11, 2005. On January 13, 2005, Sunridge Enterprises certified its
readiness for trial and requested a trial date. Rather than
proceeding to trial, however, Sunridge Enterprises and Sunridge
Development stipulated to RB&G’s request to extend the deadline
to file dispositive motions. While Sunridge Enterprises was
dismissed as a party on summary judgment in September 2005, a
portion of Sunridge Development’s claims survived summary
judgment at that time. However, we agree with the trial court that
3. We agree with Sunridge Enterprises that the trial court’s
characterization of its ruling as based on law of the case was inapt.
Rather than applying law of the case, the court merely enforced
long‐past procedural deadlines. In any event, the court’s possible
mischaracterization of its rationale does not constitute an abuse of
discretion in this case.
20111049‐CA 4 2013 UT App 146Sunridge Development v. RB&G Engineering
the record in this case “does not reflect ongoing discovery after
[Sunridge] Enterprises was dismissed.” Sunridge Enterprises’
reference to a 2006 ruling closing discovery is also inaccurate. In
February 2006, Sunridge Development and RB&G simply stated to
the court that discovery was in fact complete. Sunridge Enterprises
has thus failed to demonstrate clear error in the trial court’s finding
that it had “a full opportunity to participate in discovery” relating
to its claim for lost profits.
¶8 The trial court acted within its discretion in denying
Sunridge Enterprises’ request for additional discovery. Sunridge
Enterprises certified its readiness for trial after discovery was
complete and well before it was initially dismissed on summary
judgment. If Sunridge Enterprises had proceeded to trial in 2005 as
it certified it was ready to do, it would have been required to prove
its damages at that time because proof of the amount of damages
is a crucial element of any breach of contract claim, see Bair v. Axiom
Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d 388. The 2005 dismissal and
its subsequent reversal on appeal do not alter the situation.
Sunridge Enterprises asserted a breach of contract claim jointly
with Sunridge Development, both entities certified their readiness
for trial, the trial court dismissed Sunridge Enterprises, the
supreme court reversed, and Sunridge Enterprises has reasserted
the claim on remand. Sunridge Enterprises has identified no
distinction between the breach of contract claim that it originally
asserted and the claim before the trial court on remand.
¶9 Furthermore, Sunridge Enterprises has not adequately
explained why additional discovery was needed; all evidence of
damages would be within the control of Sunridge Enterprises, not
RB&G. Indeed, counsel for Sunridge Enterprises stated in oral
argument that it sought a discovery extension for the purpose of
supplementing its discovery responses to RB&G. We see no abuse
of discretion in the trial court’s denial of a request for additional
discovery to obtain evidence in the exclusive control of the
20111049‐CA 5 2013 UT App 146Sunridge Development v. RB&G Engineering
requesting party when the request was made six years after
discovery was complete and that party certified readiness for trial.4
II. Summary Judgment
¶10 Sunridge Enterprises’ next contention on appeal is that the
trial court erred by entering summary judgment in favor of RB&G.
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Utah R. Civ. P. 56(c).
¶11 “A summary judgment movant, on an issue where the
nonmoving party will bear the burden of proof at trial, may satisfy
its burden on summary judgment by showing, by reference to ‘the
4. Although we cannot be certain due to the lack of a transcript in
the record on appeal, it appears that Sunridge Enterprises did not
style its oral request for additional discovery as a rule 56(f) motion.
See generally Utah R. Civ. P. 56(f). “Rule 56(f) of the Utah Rules of
Civil Procedure provides that a party opposing summary judgment
may submit an affidavit stating the reasons why he is presently
unable to present evidentiary affidavits essential to support his
opposition to summary judgment.” Downtown Athletic Club v.
Horman, 740 P.2d 275, 278 (Utah Ct. App. 1987). The trial court did
not mention rule 56(f), nor has either party addressed the rule on
appeal. However, Sunridge Enterprises’ request was in substance
a rule 56(f) motion to continue summary judgment for the
purposes of conducting further discovery. Yet Sunridge Enterprises
failed to meet the requirements of rule 56(f) because it did not
“submit an affidavit stating the reasons why [it was] presently
unable to present evidentiary affidavits essential to support [its]
opposition to summary judgment.” See id.; see also Utah R. Civ. P.
56(f). Therefore, regardless of how we characterize Sunridge
Enterprises’ motion for additional discovery, we see no abuse of
discretion in the trial court’s denial of it.
20111049‐CA 6 2013 UT App 146Sunridge Development v. RB&G Engineering
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ that there is no genuine
issue of material fact.” Orvis v. Johnson, 2008 UT 2, ¶ 18, 177 P.3d
600 (quoting Utah R. Civ. P. 56(c)). “Upon such a showing, whether
or not supported by additional affirmative factual evidence, the
burden then shifts to the nonmoving party, who ‘may not rest upon
the mere allegations or denials of the pleadings,’ but ‘must set forth
specific facts showing that there is a genuine issue for trial.’” Id.(quoting Utah R. Civ. P. 56(e)). “The allegations of a pleading or
factual conclusions of an affidavit are insufficient to raise a genuine
issue of fact.” Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55,
¶ 12, 192 P.3d 858 (citation and internal quotation marks omitted).
¶12 Furthermore, “[s]upporting and opposing affidavits shall be
made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.” Utah
R. Civ. P. 56(e). “A plaintiff’s failure to present evidence that, if
believed by the trier of fact, would establish any one of the
[elements] of the prima facie case justifies a grant of summary
judgment to the defendant.” Stevens‐Henager College v. Eagle Gate
College, 2011 UT App 37, ¶ 14, 248 P.3d 1025 (alteration in original)
(citation and internal quotation marks omitted).
¶13 Sunridge Enterprises claims that the trial court erred by
ruling that it had not provided sufficient evidence to create a
genuine issue of material fact as to the amount of damages. To
succeed on a breach of contract claim, “[a] plaintiff is required to
prove both the fact of damages and the amount of damages.” Id.
¶ 16. To prove the amount of damages, the plaintiff must produce
“evidence that rises above speculation and provides a reasonable,
even though not necessarily precise, estimate of damages.”
TruGreen Cos. v. Mower Bros., Inc., 2008 UT 81, ¶ 15, 199 P.3d 929(citation and internal quotation marks omitted). “[M]ere
conclusions and conjecture” will not suffice. Stevens‐Henager
College, 2011 UT App 37, ¶ 29. Rather, the plaintiff must provide
“supporting evidence” from which the factfinder may derive a
20111049‐CA 7 2013 UT App 146Sunridge Development v. RB&G Engineering
reasonable estimate of the amount of damages. See Sawyers v. FMA
Leasing Co., 722 P.2d 773, 774 (Utah 1986) (per curiam); Stevens‐
Henager College, 2011 UT App 37, ¶ 28.
¶14 When the alleged damages include lost profits, the plaintiff
must prove net loss. See Stevens‐Henager College, 2011 UT App
37, ¶¶ 26–28; see also Atkin Wright & Miles v. Mountain States Tel. &
Tel. Co., 709 P.2d 330, 336 (Utah 1985). “Net profits are determined
by computing the difference between the gross profits and the
expenses that would be incurred in acquiring such profits.”
Sawyers, 722 P.2d at 774. Therefore, “[r]easonable certainty requires
more than a mere estimate of net profits. In addition to proof of
gross profits, there must generally be supporting evidence of
overhead expenses, or other costs of producing income from which
a net figure can be derived.” Id.
¶15 In the present case, Sunridge Enterprises argues that it
would have been able to build and sell fourteen additional housing
units had RB&G correctly identified certain fault lines. Sunridge
Enterprises identifies five documents that it says provide evidence
of damages sufficient to survive summary judgment. First, its
response to RB&G’s interrogatories states, “Sunridge has estimated
losses based on the actual lots that were lost, [and] the profit on
units not built based on actual contract and sales prices for the
specific units that would have been built . . . .” Second, its
supplemental initial disclosure calculates the number of lost units
then concludes that it has “an actual loss on [its] books from that
project in the amount of $1,388,482.73.” Third, a sample closing
statement shows the sales price Sunridge Enterprises received from
the sale of a comparable unit. Fourth, Stephen Stewart, the
principal of Sunridge Enterprises, identified in his deposition the
loss per unit as $75,570 and the total loss as roughly $1,057,000.
Finally, Stewart produced an affidavit concluding that the total loss
was $1,057,983.41.
¶16 RB&G argues that this evidence is insufficient to survive
summary judgment. We agree. The facts Sunridge Enterprises
20111049‐CA 8 2013 UT App 146Sunridge Development v. RB&G Engineering
points to are insufficient to create a genuine issue of material fact
because they do not include any admissible evidence as to net loss,
see Bowers v. Call, 2011 UT App 143, ¶ 2, 257 P.3d 433; Stevens‐
Henager College, 2011 UT App 37, ¶¶ 26–28, and the supporting
evidence is insufficient to “permit the trier of fact to determine with
reasonable certainty the amount of lost net profits,” Sawyers, 722
P.2d at 774; see also TruGreen, 2008 UT 81, ¶ 15.
¶17 “[I]nadmissible evidence cannot be considered in ruling on
a motion for summary judgment.” See D & L Supply v. Saurini, 775
P.2d 420, 421 (Utah 1989). Thus, “[i]f a motion for summary
judgment is supported by affidavit, or other admissible evidence,
the nonmoving party must submit admissible evidence and
demonstrate that there is a genuine issue of material fact
precluding summary judgment.” Bowers, 2011 UT App 143, ¶ 2
(emphasis added).
¶18 One document Sunridge Enterprises relied on below was a
Cost/Loss Analysis prepared by Stewart and four other
individuals. The Cost/Loss Analysis listed the building cost for four
representative buildings, the sales price for the units in those
buildings, an average unit cost, an average unit sales price, and,
using the averages, a per‐unit loss and total loss for the fourteen
unbuilt units. The Cost/Loss Analysis was presented as a summary
of voluminous documentary evidence under Utah Rule of Evidence
1006. However, the trial court ruled that the Cost/Loss Analysis
was inadmissible because it did not meet the requirements of rule
1006.
¶19 Rule 1006 is an exception to rule 1002, the best evidence rule.
See International Harvester Credit Corp. v. Pioneer Tractor &
Implement, Inc., 626 P.2d 418, 422 (Utah 1981).5 The best evidence
5. International Harvester Credit Corp. v. Pioneer Tractor & Implement,
Inc., 626 P.2d 418 (Utah 1981), and other cases cited herein,
analyzed rule 70, a prior but substantively similar version of rule
(continued...)
20111049‐CA 9 2013 UT App 146Sunridge Development v. RB&G Engineering
rule states, “An original writing, recording, or photograph is
required in order to prove its content, except as otherwise provided
in these rules . . . .” Utah R. Evid. 1002. Rule 1006 allows a litigant
to “use a summary, chart, or calculation to prove the content of
voluminous writings, recordings, or photographs that cannot be
conveniently examined in court.” Id. R. 1006. The rule further
requires the proponent to “make the originals or duplicates
available for examination or copying, or both, by other parties at a
reasonable time or place. And the court may order the proponent
to produce them in court.” Id.
¶20 To admit a summary under rule 1006, the underlying
records must be “‘so numerous, complex or cumbersome that they
cannot be conveniently examined by the fact trier, or . . . it would
materially aid the court and the parties in analyzing such
material.’” In addition, “‘the records must be available for
examination by the opposing parties, and the witnesses subject to
cross‐examination concerning such evidence.’” Gull Labs., Inc. v.
Louis A. Roser Co., 589 P.2d 756, 758 (Utah 1978) (quoting Sprague v.
Boyles Bros. Drilling Co., 294 P.2d 689, 694 (Utah 1956)); see also Utah
R. Evid. 1006; Trolley Square Assocs. v. Nielson, 886 P.2d 61, 67 (Utah
Ct. App. 1994). Furthermore, a summary “cannot be used as a
cover for bringing inadmissible hearsay evidence into the
courtroom.” International Harvester, 626 P.2d at 422. Thus, the
proponent of a summary must also show that the underlying
records are admissible, which typically requires a showing that the
records qualify under the business records exception to the hearsay
rule. See id.; Trolley Square Assocs., 886 P.2d at 67. See generally Utah
R. Evid. 803(6). Finally, to make the required showings, the
proponent of a summary must provide a competent witness to
establish the necessary foundation for the summary and the
5. (...continued)
1006. As this court has noted before, cases applying the prior rule
remain relevant. See Trolley Square Assocs. v. Nielson, 886 P.2d 61, 67
n.6 (Utah Ct. App. 1994).
20111049‐CA 10 2013 UT App 146Sunridge Development v. RB&G Engineering
underlying records. See International Harvester, 626 P.2d at 422; Gull
Labs., 589 P.2d at 758 & n.8; Trolley Square Assocs., 886 P.2d at 67.
¶21 The trial court found that Sunridge Enterprises failed to
make available the records underlying the Cost/Loss Analysis.
Sunridge Enterprises provided supporting documentation of the
gross revenue figures on the summary, consisting “solely of closing
statements and related documentation.” But the court ruled that
“the costs detailed on [the Cost/Loss Analysis] are without support
of any kind. The records themselves have not been produced.”
(Emphasis added.) Sunridge Enterprises does not challenge this
ruling on appeal. Therefore, the Cost/Loss Analysis is inadmissible,
and Sunridge Enterprises may not rely on it to show that a genuine
issue of material fact exists. See Bowers v. Call, 2011 UT App 143,
¶ 2, 257 P.3d 433.
¶22 Sunridge Enterprises argues, however, that the trial court
focused so much on the Cost/Loss Analysis in its summary
judgment ruling that it overlooked other admissible evidence of
damages. Sunridge Enterprises argues that even if the Cost/Loss
Analysis is inadmissible, Stewart provided information regarding
the lost profits from the fourteen units in his deposition and
affidavit. RB&G responds that Stewart’s deposition and affidavit
may not be used to circumvent the requirements of rule 1006.
¶23 Although a summary under rule 1006 “should be reduced
to writing,” International Harvester, 626 P.2d at 422, a witness with
independent firsthand knowledge of facts may testify even if those
facts also appear in an inadmissible writing, recording, or
photograph, see 2 Kenneth S. Broun et al., McCormick on Evidence
§ 234 at 135, 138 (7th ed. 2013); see also Shurtleff v. Jay Tuft & Co., 622
P.2d 1168, 1174 (Utah 1980) (noting that even though a summary
was properly excluded at trial, the witness who prepared the
summary was allowed to testify as to the facts reflected in the
summary and use the exhibit to refresh her memory). But if the
witness’s testimony “depends upon the writing, not firsthand
knowledge acquired separate[ly] from the writing,” the testimony is
inadmissible. R. Collin Mangrum & Dee Benson, Mangrum &
20111049‐CA 11 2013 UT App 146Sunridge Development v. RB&G Engineering
Benson on Utah Evidence 842–43 (2012–2013 ed.) (emphasis added);
see also Utah R. Evid. 602 (“A witness may testify to a matter only
if evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter.”); id. R. 1002 (“An
original writing, recording, or photograph is required in order to
prove its content, except as otherwise provided in these rules
. . . .”).
¶24 If a witness lacks independent personal knowledge of a fact,
allowing that witness to “read in material contained in exhibits that
had been previously denied admission” would “circumvent[] the
very rule of law provided in Rule [1002].” Intermountain Farmers
Ass’n v. Fitzgerald, 574 P.2d 1162, 1165–66 (Utah 1978) (holding that
defendant should not have been allowed to read from general
revenue records and other evidence previously ruled inadmissible);
cf. Stephans v. State, 262 P.3d 727, 731–33 (Nev. 2011) (holding that
a witness could not testify to the value of a stolen item because the
witness “[did] not appear to have any knowledge of value apart
from [viewing] the price tag”). “In sum, any witness with
knowledge of facts that exist independent of the contents of a
writing, recording, or photograph may testify without raising an
issue under Rule 1002. . . . But where the witness has knowledge
only of the contents of such an item, testimony may be excluded
under Rule 1002.” 31 Charles Alan Wright et al., Federal Practice and
Procedure: Evidence § 7184 & n.45 at 391–92 (1st ed. 2000) (discussing
the substantially similar federal equivalent to Utah Rule of
Evidence 1002).
¶25 We question whether Stewart had personal knowledge of
the net loss independent of the inadmissible summary. In his
deposition, Stewart identified the loss per unit as $75,570 and the
total loss as roughly $1,057,000. However, Stewart identified these
figures using the Cost/Loss Analysis. Stewart stated in his
deposition that he participated in the preparation of the Cost/Loss
Analysis in some unspecified way along with four other
individuals. Stewart’s involvement in the preparation of the
summary may have given him personal knowledge sufficient to lay
foundation for the underlying business records and the summary.
20111049‐CA 12 2013 UT App 146Sunridge Development v. RB&G Engineering
But it appears that Stewart merely testified based on the contents
of the inadmissible summary, and not based on his independent
knowledge of the facts reflected in the summary. Allowing
Sunridge Enterprises to raise a genuine issue of material fact
through such testimony would circumvent the requirements of
rules 1002 and 1006 by placing the contents of the summary before
the court through other means. See Utah R. Evid. 1002; id. R. 1006;
Intermountain Farmers, 574 P.2d at 1165.
¶26 However, even if Stewart’s conclusions as to lost income are
accepted, Stewart’s deposition testimony is insufficient to create a
genuine issue of material fact, because Stewart provides no basis
for calculating net loss. See Stevens‐Henager College, 2011 UT App
37, ¶¶ 26–29. The fact that the number Stewart identified in his
deposition reflects net loss can only be gleaned by reference to the
inadmissible Cost/Loss Analysis, not from the deposition testimony
alone. Stewart discusses costs in general terms but never provides
any figures, either for the total cost of building the additional units
or for building an average unit. Nor does Sunridge Enterprises cite
any passage where he states that the figures he identified as lost
income took costs into account, let alone explain what those costs
might have included. Rather, the testimony simply provides an
unsubstantiated and unexplained conclusion as to lost income. See
id. ¶ 29. Stewart’s deposition testimony thus fails to provide any
“supporting evidence of overhead expenses, or other costs of
producing income from which a net figure can be derived.” See
Sawyers v. FMA Leasing Co., 722 P.2d 773, 774 (Utah 1986) (per
curiam). Without such information, Sunridge Enterprises has not
“provided sufficient information for the jury to . . . calculate the
amount of damages” without speculation. See Stevens‐Henager
College, 2011 UT App 37, ¶ 28.
¶27 The evidence presented in Stewart’s affidavit fails to
demonstrate a genuine issue of material fact for similar reasons.
Stewart’s affidavit avers, among other things, that the total loss
from Sunridge Enterprises’ not being able to build the fourteen
20111049‐CA 13 2013 UT App 146Sunridge Development v. RB&G Engineering
units was $1,057,983.41. Although the affidavit recites that it is
made on personal knowledge, nothing suggests that Stewart had
personal knowledge of this figure separate from the inadmissible
summary. The figure provided in the affidavit matches to the penny
the figure provided in the Cost/Loss Analysis, and no information
is provided in the affidavit to suggest that Stewart has personal
knowledge independent of the summary of how that net figure
was derived or of the facts necessary to calculate it. The affidavit
must set forth “such facts as would be admissible in evidence.”
Utah R. Civ. P. 56(e). It cannot be used to place before the court
inadmissible evidence from the Cost/Loss Analysis about which
Stewart has demonstrated no independent personal knowledge. See
id.; Intermountain Farmers, 574 P.2d at 1165; Bowers v. Call, 2011 UT
App 143, ¶ 2, 257 P.3d 433.6
¶28 But even if the figure were admissible, the affidavit provides
a total loss figure without stating whether the figure represents net
loss or gross loss. See Stevens‐Henager College, 2011 UT App
37, ¶¶ 26–29. Again, this information can only be gained by
consulting the inadmissible summary. Furthermore, the affidavit
offers no explanation for how the conclusion as to total loss was
derived. “An affidavit that merely reflects the affiant’s
unsubstantiated opinions and conclusions is insufficient to create
a genuine issue of fact.” Overstock.com, Inc. v. SmartBargains, Inc.,
6. Although RB&G did not move to strike the affidavit below, it did
argue to the trial court that the deposition and affidavit testimony
of damages were inadmissible on the ground that the testimony
“was merely a restatement and explanation of the summary” based
solely on Stewart’s observation of the underlying records and the
summary itself. See Howick v. Bank of Salt Lake, 498 P.2d 352, 353–54
(Utah 1972) (“An affidavit that does not measure up to the
standards of [Utah Rule of Civil Procedure] 56(e) is subject to a
motion to strike; and formal defects are waived in the absence of
such a motion or other objection.” (emphasis added) (citation and
internal quotation marks omitted)). Thus, on appeal RB&G may
properly challenge the affidavit on this basis.
20111049‐CA 14 2013 UT App 146Sunridge Development v. RB&G Engineering
2008 UT 55, ¶ 16, 192 P.3d 858 (citation and internal quotation
marks omitted); see also id. ¶ 12 (noting that because “specific facts
are required to show whether there is a genuine issue for trial,” the
“factual conclusions of an affidavit are insufficient to raise a genuine
issue of fact” (emphasis added) (citation and internal quotation
marks omitted)). At the summary judgment stage, “mere
conclusions and conjecture” are insufficient to establish a prima
facie case as to the amount of damages. See Stevens‐Henager College,
2011 UT App 37, ¶ 29.
¶29 The other evidence identified by Sunridge Enterprises is
relevant but insufficient to show a genuine issue of material fact.
For example, its response to interrogatories presents a theory of
damages and makes allegations that go to “the fact of damages.”
See id. ¶ 16. The supplemental initial disclosure provides a basis for
calculating the number of lost units. The sample closing statement
provides a comparative estimate of gross revenue. Each of these
factors is a necessary component of Sunridge Enterprises’ damages
calculation. But Sunridge Enterprises has failed to provide any
supporting evidence of one crucial factor—costs. Without this
evidence, no fact finder could “determine with reasonable certainty
the amount of lost net profits.” Sawyers, 722 P.2d at 774; see also
TruGreen Cos. v. Mower Bros., Inc., 2008 UT 81, ¶ 15, 199 P.3d 929.
¶30 In sum, the deposition and affidavit testimony appear to be
an attempt to place before the court an inadmissible summary. In
any event, the deposition and affidavit provide, at best,
unsubstantiated conclusions as to the lost profits. Sunridge
Enterprises provided no admissible evidence from which a fact
finder could conclude with reasonable certainty that the figures
represented net loss. Nor did it provide any supporting evidence
of costs from which a fact finder could estimate its net loss. Thus,
Sunridge Enterprises has failed to demonstrate that genuine issues
of material fact exist that would preclude summary judgment in
favor of RB&G.
20111049‐CA 15 2013 UT App 146Sunridge Development v. RB&G Engineering
CONCLUSION
¶31 Sunridge Enterprises has not shown that the trial court erred
in finding that Sunridge Enterprises had a full opportunity to
conduct discovery. The trial court acted within its discretion in
denying Sunridge Enterprises’ request for additional discovery.
Sunridge Enterprises has also failed to show that it produced
sufficient admissible evidence of the amount of alleged damages to
survive summary judgment.
¶32 Affirmed.
20111049‐CA 16 2013 UT App 146