Koerber v. Mismash ( 2015 )

2015 UT App 237_________________________________________________________
THE UTAH COURT OF APPEALS
CLAUD R. KOERBER AND JEWEL K. SKOUSEN,
Plaintiffs and Appellants,
v.
NANCY A. MISMASH,
Defendant and Appellee.
Amended Opinion 1
No. 20130567-CA
Filed September 17, 2015
Third District Court, West Jordan Department
The Honorable Barry G. Lawrence 2
The Honorable Andrew H. Stone
No. 110410430
J. Morgan Philpot, Attorney for Appellants
Sean N. Egan, Attorney for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.
ROTH, Judge:
¶1 Claud R. Koerber and Jewel K. Skousen (Tenants) appeal
from several orders and rulings of the district court related to
1. This Amended Opinion replaces the Opinion in Case No.
20130567-CA issued on June 18, 2015. In response to Appellants'
petition for rehearing, revisions were made to paragraph 34 and
footnote 5.
2. The Honorable Andrew H. Stone presided over the motion for
summary judgment. The Honorable Barry G. Lawrence presided
over the motion for reconsideration.
Koerber v. Mismash
their dispute with Nancy A. Mismash (Landlord). We affirm in
part, vacate in part, and remand the matter to the district court.
BACKGROUND
¶2 Tenants and Landlord entered into a rental agreement for
a house in August 2010. Tenants agreed to pay $2,000 per month
in rent, pay for all of their utilities directly, and abide by certain
conditions such as abstaining from making any repairs or
alterations to the premises. Landlord agreed to replace the
kitchen sink, repaint portions of the house, clean the carpets, and
replace a countertop.
¶3 Within a year, conflicts arose between the parties. Tenants
claimed that Landlord had maintained the utilities in her own
name (requiring Tenants to pay Landlord rather than the utility
companies directly), none of the promised maintenance and
repairs had been completed, mold in their front living room had
not been dealt with, window treatments and new door locks
allegedly agreed to outside the terms of the written lease had not
been provided, and Landlord had failed to provide
reimbursement for a new water heater. Tenants sent Landlord a
letter on July 9, 2011, detailing their complaints. It was
accompanied by a “Notice of Recalculation.” In their letter,
Tenants told Landlord that once the utilities were properly
transferred into Tenants’ names, they would owe the utility
companies substantial back payments and late fees because of
Landlord’s failure to pay the utilities on time. Accordingly, they
explained that “the only just solution” was to have payments
made above the rental amount credited toward future rent. By
Tenants’ calculations, based on this offset claim, they would not
owe Landlord any additional rent money until September 2011.
Tenants also stated that if Landlord failed to make the repairs
within the specified time they would make the promised
repairs themselves and deduct the cost from their future rent
obligation.
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¶4 Three days later, Landlord posted a notice entitled
“Notice to Quit” on Tenants’ front door. The notice to quit
informed Tenants that rent and utility payments for that month,
July, were overdue and that if they did not pay within three days
eviction proceedings would “immediately be instituted.” On
July 18, Tenants filed a complaint against Landlord, claiming,
among other things, violations of the Utah Fit Premises Act.
They also obtained a temporary restraining order enjoining
Landlord from attempting non-judicial eviction efforts. The next
day, Landlord served Tenants with a summons in a separate
unlawful detainer action she had just filed with the district court.
The district court consolidated the two cases, designating
Landlord’s unlawful detainer complaint as a counterclaim. An
immediate occupancy hearing was set for August 9 on the
unlawful detainer claim.
¶5 In the meantime, Landlord served Tenants with another
notice to quit on August 1 and filed an amended counterclaim
on August 5. The amended counterclaim added a claim for
breach of contract to her previous unlawful detainer claim.
Landlord alleged that Tenants had breached the rental
agreement by failing to notify Landlord of a new baby that was
an occupant in the home; violating the rental agreement’s pet
policy; and making alterations to the home, such as installing
pipes for salt water fish tanks, removing bedroom and closet
doors without permission, removing a cabinet and countertop,
and hanging flat screen televisions in excess of twenty pounds
on the walls.
¶6 At the immediate occupancy hearing, the district court
determined that Tenants could remain in possession of the home
if they posted a $4,000 occupancy bond, deposited $2,000 with
the court by the first of each month, and brought the utilities
current. Tenants paid the bond and remained in the home for a
short while.
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¶7 Over the next several months, Koerber became ill, Tenants
stopped paying the $2,000 deposit to the court and vacated the
property, and the case stalled. In April 2012, the district court
issued a notice of its intent to dismiss the case for failure to
prosecute. In response, Landlord filed a motion for summary
judgment on May 8, 2012. The next day, Tenants filed their own
response to the district court’s notice, asserting that they had not
moved forward on the case because they believed the court had
granted a previous extension of time “on all pending deadlines”
in the case. Tenants therefore asserted that they were not
required to take any action on their case until Landlord
circulated an order from the immediate occupancy hearing,
which they claimed Landlord had not yet done. Tenants argued,
however, that Landlord’s counterclaim should be dismissed
because she had not been granted any kind of extension and yet
had taken “no action from September 29, 2011 through May 8,
2012” on her counterclaim. Tenants also argued that Landlord’s
motion for summary judgment should be stricken because
Landlord had not served the motion by email as the court had
previously ordered the parties to do with all filings and because,
in her motion for summary judgment, she had stated no “good
cause” as to why her claim should not be dismissed pursuant to
the district court’s April notice.
¶8 About a month later, on June 6, Landlord filed a motion
for entry of default judgment against Tenants on her unlawful
detainer claim. She stated that her motion for summary
judgment had been served by mail on May 8 and its
accompanying memorandum by email that same day. Landlord
stated that when the motion sent by mail had been returned to
her as undeliverable on May 17, she mailed the motion again
that same day to a different address and service had been
completed. She contended that Tenants’ response to her
summary judgment motion was due no later than June 4 and
that no such response had been filed. Accordingly, Landlord
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asserted that “briefing on this matter is complete” and submitted
her summary judgment motion for decision.
¶9 On June 18, Tenants filed a motion to strike Landlord’s
notice to submit and requested a hearing. Tenants argued that
they had still not been properly served with Landlord’s motion
because it had not been sent by email, as the court had required
the parties to do, and that they had not received the summary
judgment documents Landlord purported to have sent by mail.
The court declined to hear Tenants’ motion to strike, and the
summary judgment motion was subsequently set for hearing.
Tenants never filed a written response to Landlord’s motion for
summary judgment. At the hearing on the summary judgment
motion on July 16, the district court granted Landlord’s motion
for summary judgment, dismissing all of Tenants’ claims and
granting judgment on Landlord’s counterclaim. The court
articulated two bases for this decision in its written order:
(1) Tenants were served with Landlord’s summary judgment
motion “but chose not to file an Opposition,” and (2) Tenants’
“evidentiary submissions at oral argument did not comply with
[rule 7(c)(3)(A) of the Utah Rules of Civil Procedure] and did not
raise a genuine issue of material fact sufficient to defeat
summary judgment.”
¶10 Before the final judgment was entered, Tenants filed a
motion for relief under rule 54(b) of the Utah Rules of Civil
Procedure, requesting that the district court reconsider its grant
of summary judgment in Landlord’s favor. In its order denying
this motion, the district court first explained that Tenants’ rule
54(b) motion for reconsideration was improper. Second, the
court stated that, in any event, Tenants had been “treated fairly.”
The court explained that it had determined that Tenants’
previous assertions that they had not been properly served with
the motion for summary judgment were “belied by the record.”
The district court explained that, as a result, Tenants were
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required to file a response and because they chose not to do so, a
ruling in Landlord’s favor “was not manifestly unjust.”
¶11 The district court ultimately entered a judgment for
$63,710.14 in favor of Landlord that included lost and trebled
rent and late fees as well as attorney fees. Tenants appeal.
ISSUES AND STANDARDS OF REVIEW
¶12 Tenants contend that the court erred in granting summary
judgment in favor of Landlord. “We review a district court’s
decision to grant summary judgment for correctness, granting no
deference to the district court’s conclusions, and we view the
facts and all reasonable inferences in the light most favorable to
the nonmoving party.” Bodell Constr. Co. v. Robbins, 2009 UT 52,
¶ 16, 215 P.3d 933. As part of their claim, Tenants argue that the
district court erred in finding that they were on notice regarding
their opportunity to file a response to Landlord’s motion for
summary judgment. A district court’s findings of fact are
reviewed for clear error and we “revers[e] only where the
finding is against the clear weight of the evidence, or if we
otherwise reach a firm conviction that a mistake has been made.”
ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. App.
1997).
¶13 Tenants also argue that the district court’s authority to
consider Landlord’s unlawful detainer action was never invoked
because the summons originally served on them was not
properly endorsed in compliance with Utah Code section 78B-6-
807. “[W]hether service of process was proper is a jurisdictional
issue, . . . [and] the standard of review is a correction-of-error
standard[.]” Parkside Salt Lake Corp. v. Insure-Rite, Inc., 2001 UT
App 347, ¶ 16, 37 P.3d 1202 (alterations and omission in original)
(citation and internal quotation marks omitted).
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¶14 Tenants next argue that their due process rights were
violated at various points in the proceedings. “‘Constitutional
issues, including questions regarding due process, are questions
of law that we review for correctness.’” Osburn v. Bott, 2011 UT
App 138, ¶ 4, 257 P.3d 1028 (quoting Chen v. Stewart, 2004 UT 82,
¶ 25, 100 P.3d 1177).
¶15 Finally, Tenants contend that the district court abused its
discretion in denying their motion for reconsideration brought
under rule 54(b). We review a district court’s decision to deny a
motion to reconsider a summary judgment decision for an abuse
of discretion. U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303,
¶ 57, 990 P.2d 945.
ANALYSIS
I. Summary Judgment
¶16 Tenants make two arguments related to the district
court’s grant of summary judgment. First, Tenants contend that
the district court erred in granting summary judgment on
the grounds that they did not file an opposition and because the
evidence they presented did not comply with rule 7 of the Utah
Rules of Civil Procedure. Second, Tenants contend that the
jurisdiction of the district court over the unlawful detainer
claim—one of the claims disposed of in the motion for summary
judgment—was never properly invoked due to defective service
of the summons. We affirm the district court’s decision to grant
summary judgment in all respects except as to the unlawful
detainer claim. We vacate the judgment as it relates to the
unlawful detainer claim.
A. Grant of Summary Judgment in Favor of Landlord
¶17 Tenants argue that the district court erred in granting
summary judgment in favor of Landlord. The district court
articulated two bases for its grant of summary judgment:
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(1) Tenants “chose not to file an Opposition” to Landlord’s
motion for summary judgment, and (2) Tenants’ “evidentiary
submissions at oral argument did not comply with [rule
7(c)(3)(A) of the Utah Rules of Civil Procedure] and did not raise
a genuine issue of material fact sufficient to defeat summary
judgment.” Tenants argue the district court erred on both
grounds. We disagree.
¶18 First, Tenants argue they were never properly served with
Landlord’s motion for summary judgment and, therefore,
“judgment on [the] motion [was] premature and procedurally
improper.” Tenants contend that the district court had
previously ordered both parties to serve any future filings both
by mail and email. In their motion to strike Landlord’s notice to
submit, Tenants stated they had not received service of the
motion for summary judgment by email and the mailed version
was addressed to them in care of someone with whom they had
no association. Tenants argue that even if they were properly
served, they should have been given “reasonable indulgence” in
their failure to file a response to Landlord’s summary judgment
motion because they were pro se litigants at that point in the
proceedings. They contend that because of their pro se status,
their motion to strike Landlord’s notice to submit should have
been deemed responsive. And even if not responsive, the district
court should not have granted summary judgment as it did,
because they “sincerely believed they had not been served
properly, filed a motion [to strike] to make that argument, and
expected, if they lost their motion, to be given time to file an
opposition.” We are not persuaded that the court erred in
granting summary judgment in Landlord’s favor on this basis.
¶19 The district court concluded that Tenants’ claim that they
had not been served was “belied by the record.” The court noted
that the motion for summary judgment had been mailed to the
same address Tenants had used in a filing of their own around
the same time. The court further determined that, contrary to
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Tenants’ prior assertions, Landlord had served the motion and
memorandum by email and, while Landlord had apparently
emailed the motion and supporting memorandum without the
attached exhibits, those exhibits had been included in Landlord’s
mail service. In addition, the district court noted that Tenants
acknowledged awareness of Landlord’s summary judgment
memorandum in a response they filed to the district court’s
notice of its intent to dismiss the proceedings as well as in their
motion to strike. The court accordingly found “that by at least
May 9, 2012, [Tenants] were well aware of the motion.” The
court concluded that “[u]nder these circumstances, [Tenants]
plainly had notice of the motion for summary judgment, had the
opportunity to respond to it, yet chose not to.”
¶20 The district court’s conclusion that Tenants were properly
served and were on notice of Landlord’s motion for summary
judgment—and therefore their opportunity to file a written
response—appears to be based on factual determinations that
the court was in a position to make. We will not disturb a court’s
factual findings absent clear error, and, though there was
conflicting evidence on the issue, the district court’s ability to
resolve the conflict as it did was within its discretion. See ProMax
Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. App. 1997).
And because Tenants were aware of both the existence of the
summary judgment motion and the action they were expected to
take, we are not persuaded by Tenants’ argument that they
should have been granted an extension because of their status as
pro se litigants. Accordingly, we find no error in the district
court’s findings related to Tenants’ failure to file an opposition.
¶21 Next, Tenants argue that the district court erred in
determining that they had failed to raise a genuine issue of
material fact in response to the summary judgment motion. With
no opposition filed by Tenants, the district court determined that
“the facts stated in support of [Landlord’s] motion were deemed
admitted.” The district court’s determination was based on
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rule 7 of the Utah Rules of Civil Procedure, which states that
“[e]ach fact set forth in the moving party’s memorandum is
deemed admitted for the purpose of summary judgment
unless controverted by the responding party.” Utah R. Civ. P.
7(c)(3)(A). Having determined that Tenants had not responded
to Landlord’s motion for summary judgment, and with only the
facts in Landlord’s motion before it, the court concluded that
Tenants had not “raise[d] a genuine issue of material fact
sufficient to defeat summary judgment.” See id. R. 56(c) (stating
that summary judgment “shall be rendered if . . . there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law”).
¶22 Tenants concede that “in most cases,” failure to file an
opposition to a motion for summary judgment “would be fatal.”
However, they contend that “[f]ailure to file an opposing
memorandum, by itself, is not a legally sufficient basis upon
which a district court may grant summary judgment”; rather, a
district court is required to look beyond the admissions and
denials of the parties and “take an affirmative role in considering
the entire record.” Tenants point to rule 56 of the Utah
Rules of Civil Procedure, which states that summary judgment
will be granted “if 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.” Id. Tenants contend that had the district
court reviewed the pleadings in their case, it would have
identified numerous “factual controversies regarding each cause
of action in Tenants’ complaint.”
¶23 Tenants are correct that a failure to file an opposition to a
summary judgment motion is not enough on its own to support
a grant of summary judgment. “Where the party opposed to the
motion submits no documents in opposition, the moving party
may be granted summary judgment only if appropriate, that is,
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if he is entitled to judgment as a matter of law.” Frisbee v. K&K
Constr. Co., 676 P.2d 387, 390 (Utah 1984) (citation and internal
quotation marks omitted). Thus, “[w]here the moving affidavit
shows on its face that there is a material issue of fact, summary
judgment may not be entered, even if responsive affidavits are
not filed.” Id. In Frisbee, the Utah Supreme Court determined
that the moving party’s affidavit in support of summary
judgment “presented conclusions with no supporting facts and
show[ed] unresolved issues of fact.” Id. Accordingly, the
supreme court concluded that the district court erred in granting
summary judgment as a matter of law. Id. at 390–91.
¶24 In this case, however, Tenants have failed to identify any
instance “[w]here the [Landlord’s] moving affidavit shows on its
face that there is a material issue of fact” that would preclude
summary judgment. See id. at 390. Tenants have only claimed
generally that factual controversies existed but have not pointed
us to any specific material fact question that was “unresolved”
or any legal conclusion of the district court that was
unaccompanied by supporting facts. See id. Thus, they have
provided no basis for calling into question the district court’s
conclusion that Landlord was entitled to summary judgment “as
a matter of law.” See Utah R. Civ. P. 56(c); see also State v. Robison,
2006 UT 65, ¶ 21, 147 P.3d 448 (“An appellant must do the heavy
lifting because the law otherwise presumes that all was well
below.”). Accordingly, Tenants have failed to meet their burden
of demonstrating error in the district court’s decision to grant
summary judgment on this basis. See Cross v. Olsen, 2013 UT
App 135, ¶ 19, 303 P.3d 1030 (explaining that the appellant had
failed to meet the burden to show error in the district court’s
grant of summary judgment); see also Polyglycoat Corp. v.
Holcomb, 591 P.2d 449, 450–51 (Utah 1979) (“On appeal, it is
appellant’s burden to convince [the appellate court] that the trial
court exceeded its authority.”).
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¶25 Finally, Tenants contend that the district court erred in
considering the facts set forth in Landlord’s motion for summary
judgment without also taking into account the allegedly
contradictory facts that Tenants attempted to present orally at
the summary judgment hearing. In its order, the district court
refused to consider Tenants’ proffered evidence because the
evidence failed to comply with rule 7’s requirement that such
fact statements be submitted in a written memorandum. See
Utah R. Civ. P. 7(c)(3)(A). To justify reversal of a summary
judgment, a party must show that an alleged error is “substantial
and prejudicial in the sense that there is a reasonable likelihood
that in its absence there would have been a different result.”
Scudder v. Kennecott Copper Corp., 886 P.2d 48, 50 (Utah 1994).
Here, Tenants have failed to provide a transcript of the summary
judgment hearing, leaving us with only their assertions of what
they purport to have offered as evidence to the district court. 3
Thus, even if we disagreed with the district court’s legal
determination that only written factual submissions were
acceptable under rule 7 (a question we need not decide given
the posture of this case), we have no ability to review any of the
evidence they contend the district court ought to have
considered or to analyze how that evidence might have altered
the district court’s determination that Landlord was entitled to
summary judgment.
3. Tenants have provided us with materials they claim are
transcribed excerpts from the hearing. But these hand-selected
and uncertified transcriptions are not part of the record, and we
are not permitted to review them. See State v. Pliego, 1999 UT 8,
¶ 7, 974 P.2d 279 (“An appellate court’s review is . . . limited to
the evidence contained in the record on appeal.” (omission in
original) (citation and internal quotation marks omitted)).
20130567-CA 12 2015 UT App 237Koerber v. Mismash
¶26 In summary, we conclude that the district court did not
err in determining that Tenants failed to respond to Landlord’s
motion for summary judgment and in declining to grant them an
extension of time to file a written response. As a result, Tenants
have failed to persuade us that the district court erred in
accepting as undisputed the facts set forth in Landlord’s motion
for summary judgment. Further, Tenants have failed to
demonstrate that those facts were insufficient to support the
court’s grant of summary judgment in Landlord’s favor. Finally,
in the absence of an official transcript of the summary judgment
hearing, we are unable to consider Tenants’ claim that the
district court improperly rejected the evidence they orally
proffered at the hearing on the motion for summary judgment.
Accordingly, we affirm, except as we discuss in Part I.B., the
district court’s grant of summary judgment.
B. Authority of the District Court Related to the Unlawful
Detainer Action
¶27 Tenants also argue that the summons originally served on
them in connection with Landlord’s unlawful detainer action did
not strictly comply with the requirements of the unlawful
detainer statute, because a critical portion of the summons was
typed rather than handwritten. Accordingly, they argue the
district court never obtained personal jurisdiction over Tenants
with respect to Landlord’s unlawful detainer claim and that any
ruling related to Landlord’s claim is therefore void. While we
conclude that Tenants waived any argument related to general
personal jurisdiction, we conclude that the summons was
sufficiently defective to deprive the district court of the authority
to grant relief on the unlawful detainer claim.
¶28 “A judge, court clerk, or plaintiff’s counsel shall endorse
on the summons the number of days within which the defendant
is required to appear and defend the action . . . .” Utah Code
Ann. § 78B-6-807(3) (LexisNexis 2012). In Parkside Salt Lake Corp.
v. Insure-Rite, Inc., 2001 UT App 347, 37 P.3d 1202, this court
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determined that a valid endorsement requires that the number of
days for response to the summons be handwritten and that a
summons must strictly comply with this requirement. Id. ¶¶ 21–
22. In that case, we were presented with a summons where “the
time to answer was wholly type-written.” Id. ¶ 23. Endorsement,
we concluded, necessitated “a writing on the summons in the
judge’s own hand.” Id. ¶ 22. We noted that while “[s]trict
adherence to this requirement may seem somewhat silly, . . . [i]t
is not the prerogative of courts . . . to ignore legislative
mandates.” Id. ¶ 22 n.6. Accordingly, we determined that
because “‘the number of days within which the defendant is
required to appear and defend the action’” was not handwritten,
the summons in that case was defective and should have been
quashed. Id. ¶¶ 18, 23 (quoting Utah Code Ann. § 78-36-8
(Michie 1996)).
¶29 In this case, the summons suffered from a similar defect.
It contained the following typed text: “You are hereby
summoned and required to serve on [Landlord’s] Attorney . . .
an answer to the Complaint which is served upon you with this
summons within three (3) days after service of this
Summons . . . .” Because the number of days for Tenants’
response to the unlawful detainer complaint was typed rather
than handwritten, the summons failed to strictly comply with
the endorsement requirement established by the Utah
Legislature. See Utah Code Ann. § 78B-6-807(3) (LexisNexis
2012); Parkside, 2001 UT App 347, ¶¶ 21–22. 4 Accordingly, the
4. We recognize that the statute has been amended since our
decision in Parkside Salt Lake Corp. v. Insure-Rite, Inc., 2001 UT
App 347, 37 P.3d 1202. The current version allows “[a] judge,
court clerk, or plaintiff’s counsel” to make the endorsement, see
Utah Code Ann. § 78B-6-807(3) (LexisNexis 2012), where the
prior version only permitted “[t]he court” to do so, see
(continued...)
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unlawful detainer statute was not properly invoked and the
district court did not have authority to consider the unlawful
detainer claim.
¶30 Landlord argues that the defective summons should be
overlooked and the court’s ruling on the unlawful detainer
action should stand because Tenants waived any jurisdictional
defense by appearing and defending against the unlawful
detainer claim. See Parkside, 2001 UT App 347, ¶ 25 n.7 (“[A]
defendant may, by appearing and defending, waive a court’s
lack of personal jurisdiction over the defendant.”). While we
agree that by appearing and defending Tenants waived any
claim related to the court’s exercise of personal jurisdiction, their
appearance did not waive the claim that the defective summons
stripped the court of the authority to proceed under the
unlawful detainer statute. As we noted in Fowler v. Seiter, 838
P.2d 675 (Utah Ct. App. 1992), “failure to comply with [the
endorsement] requirement by necessity gives rise to an
insufficiency of process defense.” Id. at 678. And this defense can
(…continued)
id. § 78-36-8 (Michie 1996). The rest of the statutory language has
remained consistent, however. The prior version required that
“[t]he court shall indorse on the summons the number of days
within which the defendant is required to appear and defend the
action,” see id., and the current version requires that “[a] judge,
court clerk, or plaintiff’s counsel shall endorse on the summons
the number of days within which the defendant is required to
appear and defend the action,” see id. § 78B-6-807(3)
(LexisNexis2012). Thus, we conclude that the only change of
substance was to expand the categories of persons authorized to
make the endorsement, leaving the content requirement
unmodified. Accordingly, Parkside’s holding is unaffected by the
amendment.
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be properly raised in a response “by motion or answer” to the
original summons. See id. The sufficiency of process in serving a
summons is so critical that a plaintiff’s failure to strictly comply
with a summons’s endorsement requirements will render the
summons “fatally defective” when the defendant “timely raise[s]
an insufficiency of process defense by motion or in his answer.”
Id. (citation and internal quotation marks omitted). We conclude
that Tenants timely raised an insufficiency of process defense
when they asserted the defect in the summons in their oral
argument at their first appearance in the district court and
repeatedly attempted to raise the issue again in written motions
as the proceedings unfolded. Accordingly, we conclude that the
endorsement defect in the summons was “fatal” to its
effectiveness. See id. And because the summons was defective,
the district court’s authority under the unlawful detainer claim
was never invoked. As a result, while Tenants’ appearance gave
the court general personal jurisdiction to grant relief against
them for breach of contract, those aspects of the final judgment
that implicate remedies available only under the unlawful
detainer statute are of no effect. See Parkside, 2001 UT App 347,
¶ 25. We therefore vacate any aspects of the final judgment that
depend on the unlawful detainer statute for their validity. 5 We
remand to the district court to amend the judgment accordingly. 6
5. The aspect of the judgment that appears to us most obviously
tied to the unlawful detainer statute is the court’s award of treble
damages. However, the district court is in the best position to
determine what, if any, of the other aspects of the judgment or
the proceedings below were a result of Landlord’s unlawful
detainer action. And there may well be other issues that need to
be resolved. For example, in their conclusion paragraph, Tenants
request that the bonds they posted with the court be returned. It
is unclear from the record before us what bonds, if any, are
currently held by the trial court as a result of the unlawful
(continued...)
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II. Due Process
¶31 Tenants contend that they were denied due process in
several respects during the course of proceedings. Tenants argue
that under the Utah Fit Premises Act and Utah law governing
unlawful detainer claims, (1) their own motion to dismiss and
challenges to the court’s jurisdiction should have been heard
much sooner than they were, and in any event, the court
prematurely considered Landlord’s unlawful detainer claim; (2)
the immediate occupancy hearing was conducted in an
improperly summary fashion and resulted in the erroneous
imposition of a possession bond; and (3) the court’s
“mishandling” of their claims, all of which stemmed from the
Utah Fit Premises Act, prevented them from ever being heard on
their “fair housing claims.” Tenants contend that these errors
violated their right to due process and justify a reversal of the
final judgment and a remand of the entire proceedings to the
district court so that the claims Tenants brought under the Utah
Fit Premises Act can be heard prior to Landlord’s unlawful
detainer claims. In essence, they argue that they are entitled to
restart the case from the beginning. We are not persuaded. 7
(…continued)
detainer proceeding. Accordingly, on remand, the trial court
should consider whether bonds are being held under the
authority of the unlawful detainer action and return them to
Tenants if appropriate.
6. Tenants also argue that the unlawful detainer action should be
dismissed because of legal deficiencies in Landlord’s August 1
notice to quit. Because we have resolved the unlawful detainer
issue on other grounds, we need not reach that argument.
7. We have already concluded that the district court’s
consideration of the unlawful detainer action was improper and
(continued...)
20130567-CA 17 2015 UT App 237Koerber v. Mismash
¶32 Tenants argue that the district court erred in waiting more
than two months to hear their motions to dismiss because they
were entitled to have their claim “expedite[d]” under Utah Code
section 78B-6-810. Tenants also contend that the district court
conducted the immediate occupancy hearing on Landlord’s
unlawful detainer claim prematurely because they were not
given the full amount of time permitted under section 78B-6-810
to respond. And Tenants argue that when the hearing occurred,
the district court did not provide them a full evidentiary hearing
as required by statute but instead conducted the occupancy
hearing in a “summary fashion.” Tenants argue that these errors
deprived them of “legislatively created protections” and
“alternative remedies” that would have allowed them to remain
in the residence, and unfairly subjected them to eviction
proceedings. Tenants also argue that both the possession bond
and the order to bring the utilities current that resulted from the
immediate occupancy hearing were violations of their right to
due process.
¶33 While we are sympathetic to Tenants’ concerns that the
district court’s failure to expedite consideration of their claims
and imposition of a bond placed them under “pressure of
forcible eviction,” Tenants have failed to point us to any
authority supporting their contention that such errors warrant
vacating the remaining breach-of-contract aspects of the
judgment or voiding all of the proceedings and requiring the
district court to begin the entire process anew. Even if Tenants
are correct that the district court committed error in waiting as
(…continued)
accordingly vacated the portion of the judgment against Tenants
related to this claim. Thus, we review the instant claims only as
they relate to the portion of the judgment stemming from
Landlord’s breach of contract claims.
20130567-CA 18 2015 UT App 237Koerber v. Mismash
long as it did to hear their motions to dismiss and their fit
premises claims against Landlord, and even if this error
amounted to a violation of due process, an issue we do not
decide, Tenants have failed to provide any legal authority that
supports their contention that vacating the entire judgment and
winding the litigation clock back to the beginning is an
appropriate (or even available) remedy. Tenants are no longer in
the home, and they cannot reasonably be restored to the rental
property. Tenants have therefore failed to show how the court’s
failure to expedite consideration of their claims or the court’s
imposition of a possession bond and its order that Tenants bring
the utilities current warrants voiding the proceedings in this case
and beginning again. As for the timing of the immediate
occupancy hearing, that hearing was part of the unlawful
detainer action. See Utah Code Ann. § 78B-6-810(2) (LexisNexis
2012). We have already vacated any portion of the judgment
related to unlawful detainer and, as previously noted, we are not
persuaded that the alleged error also warrants vacating the
unrelated portions of the judgment linked to Landlord’s breach
of contract claim.
¶34 Tenants next argue that the “court’s mishandling” of their
claims under the Utah Fit Premises Act violated their rights to
due process by “frustrat[ing]” the public policy interests of Utah
law and by preventing Tenants from ever being heard on these
claims. 8 We conclude, however, that Tenants were not denied
the opportunity to be heard, because each of the claims in their
complaint against Landlord was at issue in the motion for
summary judgment. As we have already concluded above,
8. Tenants have not specifically identified on appeal the claims
they are referring to beyond explaining that they raised seven
claims in their complaint against Landlord, all stemming from
the Utah Fit Premises Act.
20130567-CA 19 2015 UT App 237Koerber v. Mismash
Tenants had the opportunity to be heard on these claims, but by
neglecting to file a response to Landlord’s motion for summary
judgment, they failed to take full advantage of it.
¶35 Accordingly, we decline Tenants’ invitations to void the
judgment and remand the proceedings for reconsideration by
the district court.
III. Rule 54(b) Motion
¶36 Tenants argue that the district court abused its discretion
in denying their motion for reconsideration filed under rule
54(b) of the Utah Rules of Civil Procedure. Rule 54(b) provides
that an “order or other form of decision is subject to revision at
any time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties.” A district court’s
choice to reconsider a prior summary judgment decision is
entirely discretionary. U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT
App 303, ¶ 57, 990 P.2d 945. Indeed, as the Utah Supreme Court
stated in McLaughlin v. Schenk, 2013 UT 20, 299 P.3d 1139, a
district court is only required to reassess a prior ruling “(1) when
there has been an intervening change of authority; (2) when new
evidence has become available; or (3) when the court is
convinced that its prior decision was clearly erroneous and
would work a manifest injustice.” Id. ¶ 24 (citation and internal
quotation marks omitted).
¶37 Following the court’s entry of summary judgment in
favor of Landlord, but prior to entry of the final judgment,
Tenants filed a motion requesting that the district court
reconsider several of its past orders and rulings. Tenants
requested that the court revisit their arguments related to the
defective summons and notices to quit stemming from
Landlord’s unlawful detainer action, “dismiss [Landlord’s]
counterclaim and vacate all its prior order[s] in this case because
of the . . . due process violations suffered by [Tenants],” and
grant them relief from the entry of summary judgment in favor
20130567-CA 20 2015 UT App 237Koerber v. Mismash
of Landlord. The district court denied the motion. The court
stated that Tenants were not entitled to relief under rule 54(b)
because the court’s summary judgment order “resolved all
claims of all parties.” While it may be arguable that, contrary to
the district court’s impression, a rule 54(b) motion for
reconsideration was still a possibility because a final written
judgment had not yet been entered, see Utah R. Civ. P. 54(b)
(stating that an “order or other form of decision is subject to
revision at any time before the entry of judgment”), we do not
further consider the district court’s impression because the
district court went on to address much of the substance of
Tenants’ motion: “[T]he Court takes this opportunity to review
the procedure that was used in this case to ensure that [Tenants]
were treated fairly.” The district court then explained the
reasons for its decision to grant summary judgment in favor of
Landlord—the record supported a finding that Tenants had
notice of Landlord’s motion for summary judgment and
had failed to respond. The court ultimately concluded that “it
was not manifestly unjust” to grant summary judgment in favor
of Landlord. The court then noted that Tenants’ claims regarding
due process were “arguments [that] could have and should have
been raised by [Tenants] in opposition to [Landlord’s] motion for
summary judgment.” The court determined that those claims
could not properly be considered in a motion for
reconsideration.
¶38 Further, to the extent the court did not address the merits
of the issues raised in their request for reconsideration, we
conclude that Tenants have failed to show that the district court
was required to consider or reconsider their claims under any of
the three circumstances set forth in McLaughlin. We have already
decided that the district court did not err in granting Landlord’s
motion for summary judgment, so we affirm the court’s
conclusion on reconsideration that “it was not manifestly unjust”
to have done so. See McLaughlin, 2013 UT 20, ¶ 24. In addition,
Tenants offered no “new evidence” nor cited any “change of
20130567-CA 21 2015 UT App 237Koerber v. Mismash
authority” that would require the district court to reevaluate or
assess any of the other claims Tenants raised in their motion. See
id. (citation and internal quotation marks omitted). We therefore
conclude that, while the district court had the discretion to hear
their motion, the court acted within its discretion in denying
Tenants’ motion to reconsider.
CONCLUSION
¶39 We determine that Tenants have failed to meet their
burden in showing that the district court erred in granting
summary judgment in favor of Landlord, except as related to the
unlawful detainer action. We conclude that Landlord’s summons
related to her unlawful detainer action was not properly
endorsed and that the district court’s authority under the
unlawful detainer statute was never invoked. We therefore
vacate any aspects of the final judgment that depend on the
unlawful detainer statute for their validity, and we remand to
the district court to amend the judgment accordingly. We further
conclude that in regard to their claims of violations of due
process, Tenants were not denied the opportunity to be heard
because they failed to respond to Landlord’s motion for
summary judgment and have failed to identify on appeal any
proper remedy for the errors they assert. Finally, we conclude
that the district court did not abuse its discretion in denying
Tenants’ motion to reconsider. Accordingly, the district court’s
final judgment is affirmed in all respects except for those aspects
of the final judgment that depend on the unlawful detainer
statute for their validity.
20130567-CA 22 2015 UT App 237