Jensen v. Skypark Landowners Association , 728 Utah Adv. Rep. 33 ( 2013 )

2013 UT App 48_________________________________________________________
THE UTAH COURT OF APPEALS
JAY JENSEN; ELEANOR JENSEN; CHARLES WARD; KARMA WARD;
LAYNE BARNES; AND GAS BUSTERS, LLC,
Plaintiffs and Appellants,
v.
SKYPARK LANDOWNERS ASSOCIATION,
Defendant and Appellee.
Per Curiam Decision
No. 20110756‐CA
Filed February 22, 2013
Second District, Farmington Department
The Honorable Thomas L. Kay
No. 080700167
Jerrald D. Conder, Attorney for Appellant
Donald J. Winder and John W. Holt, Attorneys for Appellee
Before JUDGES ORME, THORNE, and ROTH.
PER CURIAM:
¶1 Plaintiffs (collectively Jensen) appeal the entry of judgment
in favor of Skypark Landowners Association (Skypark). Specifi‐
cally, they challenge the trial court’s grant of summary judgment
in favor of Skypark, the denial of Jensen’s motion for partial
summary judgment, and the award of attorney fees incurred in the
action. We affirm.
¶2 Jensen asserts that the trial court erred in granting summary
judgment in favor of Skypark because there were genuine issues of
material fact. We review a grant of summary judgment for
Jensen v. Skypark Landowners
correctness. See Eldridge v. Farnsworth, 2007 UT App 243, ¶ 18, 166
P.3d 639. A motion for summary judgment must be supported with
specific material facts as to which the moving party contends no
genuine issue exists, and each fact must be supported with a
citation to relevant materials. See Utah R. Civ. P. 7(c)(3)(A). For
each fact that is controverted, the party opposing the motion must
explain the grounds for dispute and support such dispute with
citations to relevant materials. See id. R. 7(c)(3)(B). “Each fact set
forth in the moving party’s memorandum is deemed admitted for
the purpose of summary judgment unless controverted by the
responding party.” Id. R. 7(c)(3)(A). Additionally, summary
judgment is not precluded whenever some fact may be disputed,
but “only when a material fact is genuinely controverted.” Heglar
Ranch, Inc. v. Stillman, 619 P.2d 1390, 1391 (Utah 1980).
¶3 The trial court determined that Jensen did not raise an issue
of material fact sufficient to preclude summary judgment. We
agree. In response to Skypark’s motion, Jensen filed an opposition
that did not controvert most of the facts asserted. Accordingly,
those facts were deemed admitted. Additionally, the facts that were
specifically listed were largely not controverted, but rather were
explicitly admitted. For example, one of the specifically listed facts
provided, “Plaintiffs do not dispute that Articles of Incorporation
of [Skypark] were filed on November 10, 1998 but dispute the
validity of said Articles as legally creating the Property Owners
Association contemplated and as set forth in the 1979 Declara‐
tions.” Despite the extra verbiage, the actual fact asserted by
Skypark is admitted.
¶4 Furthermore, after review of the proceedings, it is apparent
that the “dispute” asserted in response was not an issue properly
before the trial court in the summary judgment posture. Skypark
moved for summary judgment seeking dismissal of the claims
asserted in the amended complaint. Those were the only claims
before the court for disposition. The matter of whether Skypark
was a valid organization formed under the governing 1979
Declarations was not a claim in the amended complaint but was
20110756‐CA 2 2013 UT App 48Jensen v. Skypark Landowners
raised for the first time in response to the summary judgment
motion.1 Accordingly, the issue was not relevant to the matters on
summary judgment and thus did not raise any material factual
dispute regarding the claims before the trial court.2 See Eldridge,
2007 UT App 243, ¶ 33. The trial court correctly declined to
consider claims raised for the first time in response to a summary
judgment motion. See, e.g., id. ¶ 40. Many of the other facts listed as
disputed depend on similar challenges to the validity of Skypark
and, therefore, also fail to establish a material issue of fact. Overall,
Jensen did not raise an issue of fact sufficient to preclude summary
judgment.3
1. In the response to Skypark’s summary judgment motion, Jensen
acknowledged that the 1979 Declarations were valid and
enforceable. The complaint was premised on an assertion that the
declarations were not valid. When that point was conceded, Jensen
tried a new tack, challenging instead the organization of Skypark.
2. The main thrust of Jensen’s response to the motion for summary
judgment was in fact an assertion of a new claim that although the
1979 Declarations governing the development were valid, Skypark
was not properly incorporated under those declarations and, thus,
it could not assess landowners for maintenance fees. Jensen also
filed a motion to amend the complaint to include the claim that
Skypark was not the proper entity formed under the Declarations,
understanding that the claim was not then at issue. The trial court
denied the motion to amend. Jensen has not challenged the denial
of the motion to amend. As a result, the issue of Skypark’s validity
as an organization is not within the scope of this appeal.
3. Jensen argues that the amounts of the assessments owed were
sufficiently disputed. However, for two plaintiffs’ assessments, the
response asserted new claims that were not sufficient to create an
issue of fact. On a motion for new trial, the other plaintiff obtained
an evidentiary hearing to challenge the amount because the
disputed fact was supported by documents showing some
(continued...)
20110756‐CA 3 2013 UT App 48Jensen v. Skypark Landowners
¶5 On appeal, Jensen argues that the motion for summary
judgment did not comply with rule 56 of the Utah Rules of Civil
Procedure. However, Jensen did not raise any technical deficiency
in response to the motion but asserted the argument for the first
time in a motion for new trial. After hearing, the trial court denied
the motion with one narrow exception, permitting Jay and Eleanor
Jensen to challenge the amount of the assessment on their property.
The denial of the motion for new trial has not been challenged on
appeal. As a result, the issues raised therein are not within the
scope of this appeal, and we do not address them. In sum, the trial
court did not err in determining that no material issue of fact was
established and that Skypark was entitled to judgment as a matter
of law.
¶6 Next, Jensen argues that the trial court erred in denying a
motion for partial summary judgment on three wrongful lien
claims after the entry of summary judgment dismissing the
remaining causes of action. After permitting yet another hearing on
the matter, the trial court clarified that all claims including the
wrongful lien claims were fully disposed of when the court entered
its order in January 2011 granting summary judgment in Skypark’s
favor. Although Jensen asserts that the January order was not
sufficiently clear, the order and the attached bench ruling establish
that no claim survived Skypark’s motion for summary judgment.
Skypark’s motion sought the dismissal of all claims and the motion
was granted without reservation. Accordingly, the trial court did
not err in denying Jensen’s later motion for summary judgment
because there was no claim pending for further consideration.4
3. (...continued)
payments made. Thus, relief on that narrow issue was granted and
that particular defect cured.
4. Jensen asserts that the arguments raised in the motion for
summary judgment had not been determined by the court.
However, the arguments pertained to no pending claims because
(continued...)
20110756‐CA 4 2013 UT App 48Jensen v. Skypark Landowners
¶7 Finally, Jensen argues that the trial court erred in awarding
attorney fees. Jensen acknowledges that there is a contractual basis
for awarding fees but asserts that the fee provision applies only to
fees incurred in lien foreclosure actions. Jensen’s conclusory
assertion that attorney fees may be assessed only for lien foreclo‐
sure is not sufficient to persuade this court that attorney fees are
not contractually allowed in this case. Jensen undertakes no
analysis of the whole of the provision to show that attorney fees are
limited to such a narrow circumstance, particularly in light of
language that appears to permit suits in law or equity to enforce
payment of liens. In appeals, the burden of persuasion falls
squarely on an appellant, in this case Jensen. See State v. Robison,
2006 UT 65, ¶ 21, 147 P.3d 448. Jensen has not carried this burden.
Accordingly, we affirm the trial court’s award of attorney fees in
favor of Skypark.
¶8 Affirmed.5
4. (...continued)
the entire complaint had been dismissed. Furthermore, to the
extent that Jensen now argues that the January 2011 order granting
summary judgment was vague and ambiguous, those arguments
are waived because there was no objection to the form of order. See
438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801.
5. To the extent Jensen has raised other arguments, we have
determined them to be without merit and do not address them
further. See State v. Carter, 776 P.2d 886, 888 (Utah 1989).
20110756‐CA 5 2013 UT App 48