Evans v. Huber , 2016 Utah App. LEXIS 10 ( 2016 )


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    2016 UT App 17
    THE UTAH COURT OF APPEALS
    SCOTT EVANS,
    Appellant,
    v.
    PAUL HUBER AND DRILLING RESOURCES, LLC,
    Appellees.
    Memorandum Decision
    No. 20140850-CA
    Filed January 22, 2016
    Fifth District Court, St. George Department
    The Honorable G. Michael Westfall
    No. 100502995
    Kyle W. Jones, Attorney for Appellant
    Curtis M. Jensen and Jonathan P. Wentz, Attorneys
    for Appellees
    JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
    which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
    concurred.
    TOOMEY, Judge:
    ¶1     Scott Evans appeals from the district court’s order
    granting summary judgment in favor of Paul Huber and Drilling
    Resources, LLC (collectively, Defendants). We affirm.
    ¶2   Drilling Resources was a Utah limited liability company,
    and Evans and Huber were its only two members.1 Sometime
    1. ‚In reviewing a district court’s grant of summary judgment,
    we view ‘the facts and all reasonable inferences drawn therefrom
    in the light most favorable to the nonmoving party’ and recite
    the facts accordingly.‛ Ockey v. Club Jam, 
    2014 UT App 126
    , ¶ 2
    (continued…)
    Evans v. Huber
    around June 2008, Evans and Huber agreed to dissolve the
    company, and to cease conducting any further business and to
    perform an accounting. Additionally, they agreed to deposit
    $50,000 into an escrow account to be held pending the
    accounting and the resolution of all issues related to wrapping
    up the company.
    ¶3     In April 2010, Evans filed this lawsuit. He requested
    inspection of records in order to perform an accounting and
    alleged breach of contract, breach of the covenant of good faith
    and fair dealing, breach of fiduciary duty, unjust enrichment,
    and gross negligence. All these claims centered around Evans’s
    allegation that he did not receive the amount of money that he
    should have received from the dissolution of Drilling Resources.
    In terms of relief, Evans sought a judgment for ‚not less than
    $50,000‛ and attorney fees. In his initial disclosures, Evans
    named two certified public accountants as witnesses having
    discoverable information that could support his claims.
    ¶4     After the time for expert discovery had closed,
    Defendants moved for summary judgment, arguing that there
    was ‚no dispute as to any material fact regarding the
    distribution of [Drilling Resources’+ remaining capital‛ and that
    Evans had ‚failed to prove any damages.‛ In support of the
    motion, Defendants attached a declaration and report from
    Rodney Savage, a certified public accountant who performed an
    accounting of Drilling Resources’ activities from January 1, 2006,
    to    September     30, 2013.     Savage’s report       provided
    recommendations for the distribution of the company’s
    remaining funds upon dissolution.
    (…continued)
    n.2, 
    328 P.3d 880
     (quoting Orvis v. Johnson, 
    2008 UT 2
    , ¶ 6, 
    177 P.3d 600
    ).
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    Evans v. Huber
    ¶5     Evans opposed the motion. In his memorandum in
    opposition to summary judgment, Evans admitted some facts
    but disputed other facts regarding Savage’s report, asserting
    ‚there are many problems with the alleged report as stated.‛
    Although Evans’s opposition memorandum did not cite any
    depositions or discovery materials, Evans asserted that at trial he
    would ‚be able to prove damages by the named and disclosed
    witnesses and [would] be able to question and refute the
    statements of *Savage+.‛ But at no point did Evans provide an
    expert report or a rebuttal expert to controvert Savage’s report.
    ¶6     The district court granted summary judgment in favor of
    Defendants, reasoning that Evans ‚had not properly
    controverted Defendants’ Statement of Facts pursuant to Rule 7
    of the Utah Rules of Civil Procedure‛ and that those facts
    therefore were deemed admitted. The court then determined
    that Defendants were entitled to judgment as a matter of law.
    The court’s order also authorized the dissolution of Drilling
    Resources and expressly adopted the recommendations of
    Savage’s report for the distribution of the remaining company
    capital, which included a $19,547.41 payment from the escrow
    account to Evans as final distribution. Evans then filed a notice
    of appeal.
    ¶7     Evans also filed a motion for new trial pursuant to rule
    59(a) of the Utah Rules of Civil Procedure and for amendment of
    judgment pursuant to rule 52(b). The court denied Evans’s
    motions.
    I. Summary Judgment
    ¶8    Evans contends the district court erred in granting
    summary judgment to Defendants, arguing disputed issues of
    material fact precluded summary judgment on his claims for
    breach of contract, breach of the covenant of good faith and fair
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    Evans v. Huber
    dealing, breach of fiduciary duty, unjust enrichment, and gross
    negligence.2 According to Evans, ‚admissions and affidavits
    show numerous factual issues that should be determined by the
    trier of fact.‛ We disagree.
    ¶9     ‚An appellate court reviews a trial court’s legal
    conclusions and ultimate grant or denial of summary judgment
    for correctness, and views 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).
    ¶10 Rule 56 of the Utah Rules of Civil Procedure provides that
    summary judgment is appropriate if the moving party shows
    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) (2014).3
    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
    pleadings, depositions, answers to interrogatories,
    and admissions on file, together with the affidavits,
    if any,‛ that there is no genuine issue of material
    fact.
    2. Evans’s complaint also stated a claim for inspection of records
    under Utah Code sections 48-2c-114 and 48-2c-115. Because
    Evans does not argue on appeal that the district court erred with
    regard to that claim, we do not consider it.
    3. Because the relevant rules of the Utah Rules of Civil Procedure
    have been amended since the filings in this case, we cite the
    version of the rules in effect when Defendants moved for
    summary judgment.
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    Evans v. Huber
    Orvis, 
    2008 UT 2
    , ¶ 18 (quoting Utah R. Civ. P. 56(c) (2008)).
    ‚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) (2008)). Thus, in accordance with rule 7 of the
    Utah Rules of Civil Procedure, the nonmoving party’s
    memorandum opposing summary judgment shall provide, ‚*f+or
    each of the moving party’s facts that is controverted,‛ ‚an
    explanation of the grounds for any dispute, supported by
    citation to relevant materials, such as affidavits or discovery
    materials.‛ Utah R. Civ. P. 7(c)(3)(B) (2014). If a nonmoving party
    does not controvert each fact set forth in the moving party’s
    memorandum, each uncontroverted fact ‚is deemed admitted
    for the purpose of summary judgment.‛ 
    Id.
     R. 7(c)(3)(A).
    ¶11 In support of their motion for summary judgment,
    Defendants argued that Evans could not prove any damages and
    was ‚unable to controvert *Savage’s+ findings and
    recommendations or establish any damages or other necessary
    elements of his causes of action.‛ Evans was required to show
    damages to prove each of his claims for breach of fiduciary duty,
    breach of contract, and gross negligence. See, e.g., Orlando
    Millenia, LC v. United Title Servs. of Utah, Inc., 
    2015 UT 55
    , ¶¶ 31,
    51, 
    355 P.3d 965
    ; Callister v. Snowbird Corp., 
    2014 UT App 243
    ,
    ¶¶ 11, 16, 
    337 P.3d 1044
    ; Portfolio Recovery Assocs., LLC v.
    Migliore, 
    2013 UT App 255
    , ¶ 11, 
    314 P.3d 1069
    . Moreover, to
    recover on his claim for unjust enrichment, Evans was required
    to show that Defendants inequitably retained some benefit. See
    Desert Miriah, Inc. v. B & L Auto, Inc., 
    2000 UT 83
    , ¶ 13, 
    12 P.3d 580
    . Similarly, to recover on his claim for breach of the covenant
    of good faith and fair dealing, Evans had to show that
    Defendants did something that destroyed or injured his right to
    receive the fruits of the agreement to dissolve Drilling Resources.
    See St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 
    811 P.2d 194
    , 199
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    Evans v. Huber
    (Utah 1991). In other words, it is undisputed that all of Evans’s
    contested claims on appeal either required him to demonstrate
    damages as an element of the substantive claim or required him
    to seek recovery in the form of monetary relief.
    ¶12 Although, at ‚the pleading stage, general factual
    allegations of injury resulting from the defendant’s conduct may
    suffice,‛ by the ‚summary judgment stage of litigation, more is
    required.‛ Stevens-Henager Coll. v. Eagle Gate Coll., 
    2011 UT App 37
    , ¶¶ 24–25, 
    248 P.3d 1025
    . ‚*I+n the face of a well-supported
    motion for summary judgment purporting to demonstrate that
    plaintiff suffered no damages as a matter of law,‛ the plaintiff is
    required to offer evidence of damages in opposing summary
    judgment. See Advanced Forming Techs., LLC v. Permacast, LLC,
    
    2015 UT App 7
    , ¶ 11, 
    342 P.3d 808
    . Thus, the plaintiff cannot
    merely rest on the allegations in the complaint; he ‚‘must set
    forth by affidavit or other evidence specific facts, which for the
    purposes of the summary judgment motion will be taken as
    true.’‛ See Stevens-Henager, 
    2011 UT App 37
    , ¶ 25 (quoting Brown
    v. Division of Water Rights, 
    2010 UT 14
    , ¶ 14, 
    228 P.3d 747
    ).
    Accordingly, once Defendants moved for summary judgment on
    the ground that Evans did not show damages and supported
    their motion with Savage’s report as evidence of an accounting
    of Drilling Resources’ finances, Evans was required to explain
    the grounds for any dispute and refute by affidavit or other
    evidence the facts set forth in Defendants’ motion. Utah R. Civ.
    P. 7(c)(3)(B) (2014). He did not do so.
    ¶13 Instead of offering evidence to support an error in the
    accounting or to support the proper amount of money owed,
    Evans’s opposition to summary judgment merely rested on
    allegations in his complaint. For instance, Evans asserted that
    ‚*i+t is clear*+ at least the $50,000.00 is still being held‛ by
    Defendants and that ‚*t+here is evidence that the damages are at
    least $65,000.00.‛ Although he asserted there was evidence
    showing more than $65,000.00 in damages, Evans offered
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    Evans v. Huber
    nothing to support his conclusion—he failed to provide any
    witness affidavits or any other discovery materials to prove
    either the fact that damages exist or the amount of those
    damages.
    ¶14 Indeed, except for Evans’s own affidavit, the only
    evidence before the court was Savage’s declaration and report.
    But, beyond offering a series of rhetorical questions and stating
    his general disagreement with Savage’s report, Evans failed to
    refute the facts set forth in Defendants’ motion and did not
    provide or cite any evidentiary support for the alleged defects in
    Savage’s report. See 
    id.
     Rather, Evans argued that he would ‚be
    able to question and refute the statements‛ of Savage’s report at
    trial. Specifically, he claimed that the two certified public
    accountants listed as witnesses in his initial disclosures would
    ‚be used to establish *his+ claims as well as the quality, weight
    and information‛ of Savage’s report. By not attaching affidavits
    from these witnesses to his opposition to summary judgment,
    Evans’s assertion about their anticipated testimony fell short of
    explaining ‚the grounds for any dispute, supported by . . .
    affidavits or discovery materials.‛ See 
    id.
     Additionally, because
    discovery had closed, Evans could no longer designate witnesses
    to counter the accounting offered by Defendants.
    ¶15 Evans suggests on appeal that his own affidavit, filed long
    before Savage’s report, was sufficient to demonstrate a genuine
    issue of material fact. But Evans’s affidavit, generally averring
    that Huber received and transferred funds without
    authorization, does not explain how Savage erroneously
    analyzed such transfers. As a consequence, Evans’s averments
    do not specifically contradict Savage’s evaluation of Drilling
    Resources’ finances and the figures that Savage’s accounting
    produced.
    ¶16 In short, without offering any witness testimony to
    controvert the accounting vouched for by Defendants’ expert,
    Evans was stuck with that accounting. Stated another way,
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    Evans v. Huber
    because Evans did not specifically controvert Savage’s figures,
    the district court did not err in deeming those figures to be
    admitted facts for the purposes of summary judgment. We must
    therefore accept the accounting offered by Defendants as true—
    which demonstrates that Evans has no damages, as a matter of
    law, beyond the payout he has coming. Accordingly, we
    conclude that the district court did not err in granting summary
    judgment to Defendants. See Stevens-Henager, 
    2011 UT App 37
    ,
    ¶ 35 (affirming summary judgment on the ground that the
    plaintiff failed to provide evidence that could establish its
    damages).
    II. Amendment of the Pleadings
    ¶17 Next, Evans appears to contend that the district court
    erred in not allowing him to amend his pleadings pursuant to
    rule 15 of the Utah Rules of Civil Procedure. But Evans failed to
    preserve this issue.
    ¶18 ‚In order to have an issue reviewed on appeal, the
    challenging party must point to record evidence to show that
    [he] preserved the issue in the trial court.‛ Williams v. Bench, 
    2008 UT App 306
    , ¶ 31, 
    193 P.3d 640
     (citing Utah R. App. P.
    24(a)(5)(A)). Further, the challenging party must demonstrate
    that the issue was raised timely and was supported by relevant
    legal authority and evidence. 
    Id.
    ¶19 Evans’s opening brief does not contain a citation to the
    record showing that the issue was preserved in the district court.
    See Utah R. App. P. 24(a)(5)(A). And although Evans claims in
    his reply brief that he requested permission to amend or
    supplement his pleadings at the hearing on Defendants’ motion
    for summary judgment, the hearing transcript does not support
    this claim. Moreover, the record does not indicate that Evans
    specifically raised the issue of amending the pleadings before
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    Evans v. Huber
    judgment.4 Because of Evans’s failure to preserve his request for
    leave to amend the pleadings, we do not address this argument
    on appeal.
    III. Motion for New Trial
    ¶20 Finally, Evans appears to contend that the district court
    erred in denying his motion for new trial and for amendment of
    judgment. We conclude that we do not have jurisdiction to
    review the merits of Evans’s argument.
    ¶21 Generally, a notice of appeal must be filed ‚within 30
    days after the date of entry of the judgment or order appealed
    from.‛ Utah R. App. P. 4(a). If a party files a notice of appeal
    after the entry of judgment, but before entry of an order
    disposing of a motion for a new trial or motion to amend the
    judgment, the notice of appeal ‚is effective to appeal only from
    the underlying judgment.‛ 
    Id.
     R. 4(b)(2). In such case, to appeal
    from the postjudgment order disposing of those motions, ‚a
    party must file . . . an amended notice of appeal.‛ 
    Id.
    ¶22 Here, Evans filed a notice of appeal after the district court
    entered summary judgment but before the district court ruled on
    his motion filed pursuant to rule 52(a) and rule 59 of the Utah
    Rules of Civil Procedure. But Evans did not file a new or an
    amended notice of appeal after the court issued its order
    disposing of his post-trial motion. Accordingly, pursuant to rule
    4(b)(2) of the Utah Rules of Appellate Procedure, Evans’s notice
    of appeal ‚is effective to appeal only from the underlying
    judgment.‛ Thus, without an amended notice of appeal, we lack
    4. Evans also suggests in his reply brief that his post-trial motion
    preserved his argument regarding amending the pleadings. This
    claim is also unsupported by the record. And in any event, we
    lack jurisdiction to review arguments raised in Evans’s post-trial
    motion. See infra ¶ 20.
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    Evans v. Huber
    jurisdiction to consider his arguments related to his motion for a
    new trial. See State v. Mackin, 
    2012 UT App 199
    , ¶ 7, 
    283 P.3d 997
    (concluding that this court lacked jurisdiction over an appeal of
    the denial of a rule 59 motion where the appellant did not file a
    new or an amended notice of appeal from the district court’s
    denial of his rule 59 motion).
    CONCLUSION
    ¶23 In sum, because Evans did not properly controvert any
    facts under rule 7 and rule 56 of the Utah Rules of Civil
    Procedure, the district court did not err in granting summary
    judgment to Defendants. We also conclude that Evans did not
    preserve his argument regarding amending the pleadings and
    that we lack jurisdiction to review the district court’s denial of
    Evans’s post-trial motion. Furthermore, we grant Defendants’
    request for costs incurred on appeal. See Utah R. App. P. 34(a)
    (‚*I+f a judgment or order is affirmed, costs shall be taxed against
    appellant . . . .‛).
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