Mojo Syndicate, Inc. v. Fredrickson ( 2013 )

2013 UT App 6_________________________________________________________
THE UTAH COURT OF APPEALS
MOJO SYNDICATE, INC. AND A BAR NAMED SUE LLC,
Plaintiffs and Appellants,
v.
JOHN FREDRICKSON AND 3928 LLC,
Defendants and Appellees.
Per Curiam Decision
No. 20110995‐CA
Filed January 10, 2013
Third District, Salt Lake Department
The Honorable Sandra N. Peuler
No. 100904277
Denver C. Snuffer Jr., Daniel B. Garriott, and
Tahnee L. Hamilton, Attorneys for Appellants
J. Ryan Mitchell and Andrew V. Collins,
Attorneys for Appellees
Before JUDGES ORME, DAVIS, and THORNE.
PER CURIAM:
¶1 Mojo Syndicate, Inc. and A Bar Named Sue LLC (the Mojo
Plaintiffs) appeal the grant of summary judgment and the award
of attorney fees to John Fredrickson and 3928 LLC (the Fredrickson
Defendants). We affirm.
¶2 Contrary to the claim of the Fredrickson Defendants, we
conclude that we have jurisdiction over this appeal. The order
denying the Mojo Plaintiffs’ postjudgment motion filed under rule
59 of the Utah Rules of Civil Procedure was entered in the district
Mojo Syndicate v. Fredrickson
court docket on August 30, 2011, making the notice of appeal
timely because it was filed within thirty days of that entry. The rule
59 motion operated to stay the time for appeal because a rule 59
motion may be used to challenge a summary judgment. See Moon
Lake Elec. Ass’n v. Ultrasystems W. Constructors, Inc., 767 P.2d 125,
128 (Utah Ct. App. 1988) (stating that a motion for a new trial filed
after summary judgment is procedurally appropriate and tolls the
time for appeal).
¶3 Through new counsel on appeal, the Mojo Plaintiffs contend
that the summary judgment should be reversed on equitable
grounds because their retained counsel in the underlying civil case
rendered inadequate representation. However, there is no constitu‐
tional right to effective representation in a civil case and no basis
for reversing a judgment based upon an alleged failure to comply
with standards of the legal profession.
¶4 The district court’s grant of summary judgment relied in
part on the Mojo Plaintiffs’ failure to comply with rule 7(c)(3)(B) of
the Utah Rules of Civil Procedure, which requires “that opposition
to a motion for summary judgment must include a verbatim
restatement of each of the moving party’s facts that is controverted
with an explanation of the grounds for any dispute, supported by
citations to relevant materials.” Jennings Inv.,LC v. Dixie Riding
Club, Inc., 2009 UT App 119, ¶ 21, 208 P.3d 1077. The district court
struck the Mojo Plaintiffs’ first response because it failed to comply
with rule 7, and that court required the Mojo Plaintiffs to file a
complying response. Nevertheless, the Mojo Plaintiffs’ second
response also failed to comply with rule 7. The Mojo Plaintiffs
argue that their second response substantially complied with the
rule’s requirements because the body of the memorandum was
adequate to demonstrate that they disputed the factual averments
made in the Fredrickson Defendants’ motion for summary
judgment. We disagree. The Fredrickson Defendants are correct
that the second response did little more than state a disagreement
with the motion for summary judgment and pose a series of
rhetorical questions without the requisite citations. “A district court
20110995‐CA 2 2013 UT App 6Mojo Syndicate v. Fredrickson
is not obliged to comb the record to determine whether a genuine
issue as to any material fact exists to prevent summary judgment.”
Id. ¶ 26. Accordingly, the district court did not err in striking the
nonresponsive memorandum and deeming the facts asserted by
the Fredrickson Defendants to be undisputed. See id. ¶ 28 (conclud‐
ing that the district court did not abuse its discretion in determin‐
ing that a party did not properly contest the alleged facts in a
summary judgment motion).
¶5 Failure to satisfy the requirements of rule 7 does not alone
justify a grant of summary judgment. See id. ¶ 29. The district court
in this case also based the summary judgment upon its determina‐
tion that the Mojo Plaintiffs did not demonstrate a genuine dispute
of material facts that should prevent summary judgment. It was
undisputed that the parties executed the Asset Purchase Agree‐
ment (Agreement) for the purchase of the assets of A Bar Named
Sue by 3928 LLC; that the Mojo Plaintiffs subsequently executed a
Closing Memorandum by which they agreed to the dollar‐for‐
dollar credit of $40,000 against the purchase price to represent
amounts the Fredrickson Defendants paid on obligations of the bar;
that the Mojo Plaintiffs executed a document to terminate the lease
of the bar’s premises; and that the Mojo Plaintiffs relinquished the
liquor license. The Mojo Plaintiffs’ central claim that John
Fredrickson led Mark Peterson and Judith Peterson to believe that
Mark Peterson would continue as a partner in the bar is clearly
inconsistent with the terms of the Agreement. Although the Mojo
Plaintiffs speculate that further discovery might have established
a basis for a subsequent oral modification of the Agreement, this
claim is contrary to their own deposition testimony that no further
discussions took place after the Agreement was executed. The
district court correctly concluded that the Agreement executed by
the parties contemplated a sale of the bar and all of its assets. Judith
Peterson’s belated self‐serving assertion that she owned the assets
personally and therefore the Agreement was ineffective to transfer
them is controverted by the terms of the Agreement she executed.
20110995‐CA 3 2013 UT App 6Mojo Syndicate v. Fredrickson
¶6 The Mojo Plaintiffs also assert that they were prevented
from discovering disputed facts because they were denied an
adequate opportunity for discovery. The claim lacks merit. Shortly
after the Mojo Plaintiffs filed their complaint, the Fredrickson
Defendants initiated discovery and took the depositions of Mojo
Syndicate’s principals, Mark Peterson and Judith Peterson.
Although the Mojo Plaintiffs scheduled John Fredrickson’s
deposition, they cancelled the deposition and sought to reschedule
it only after the Fredrickson Defendants filed a motion for sum‐
mary judgment. The Mojo Plaintiffs filed a motion for further
discovery on the eve of the scheduled hearing on summary
judgment, and the district court correctly denied the motion as
untimely. Under the circumstances, the Mojo Plaintiffs were not
denied the opportunity for discovery, and the summary judgment
motion was not premature.
¶7 Finally, the Mojo Plaintiffs argue that the district court erred
in awarding attorney fees and costs under the Agreement because
some of the claims were tort claims. This claim was not presented
to the district court and therefore it was not preserved for appeal
and will not be considered on appeal. In the district court, the Mojo
Plaintiffs challenged only the reasonableness of the claimed
attorney fees. The district court required a supplemental affidavit
from counsel for the Fredrickson Defendants and made a slight
downward adjustment in the award. The Mojo Plaintiffs have not
undertaken the analysis necessary to demonstrate that the district
court’s findings were erroneous. Accordingly, we affirm the award
of attorney fees and costs.
¶8 We affirm the judgment of the district court and award the
Fredrickson Defendants their attorney fees and costs reasonably
incurred on appeal. See Management Servs. Corp. v. Development
Assoc., 617 P.2d 406, 409 (Utah 1980) (adopting the rule that a
provision for an award of attorney fees in a contract includes
attorney fees incurred by the prevailing party on appeal as well as
at trial). We remand to the district court for entry of an award of
the costs and attorney fees reasonably incurred on appeal.
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20110995‐CA 4 2013 UT App 6