Portfolio Recovery Associates, LLC v. Migliore

2013 UT App 255_________________________________________________________
THE UTAH COURT OF APPEALS
PORTFOLIO RECOVERY ASSOCIATES, LLC,
Plaintiff and Appellee,
v.
CHARLES W. MIGLIORE,
Defendant and Appellant.
Memorandum Decision
No. 20120700‐CA
Filed October 24, 2013
Third District Court, Tooele Department
The Honorable Robert W. Adkins
No. 100301459
Ronald Ady, Attorney for Appellant
Christopher J. Rogers, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGE JAMES Z. DAVIS concurred. JUDGE
GREGORY K. ORME concurred in the result.
CHRISTIANSEN, Judge:
¶1 Charles W. Migliore appeals the district court’s grant of
summary judgment to Portfolio Recovery Associates, LLC (PRA)
and the district court’s denial of his motion to amend that
judgment. We affirm.
¶2 In July 2010, PRA filed a complaint alleging breach of
contract against Migliore for failure to pay on a credit account (the
Account) that PRA had purchased from Wells Fargo Bank.
Approximately one year later, PRA moved for summary judgment
on its claim, supporting its motion with affidavits and other
documents. Migliore moved to strike two of PRA’s affidavits, and
the district court denied the motion. Thereafter, Migliore submitted
Portfolio Recovery Associates, LLC v. Migliore
a memorandum opposing PRA’s motion for summary judgment,
and PRA successfully moved to strike all of the exhibits attached
to Migliore’s memorandum as inadmissible hearsay. As a result,
Migliore’s opposition memorandum to PRA’s summary judgment
motion was unsupported by any admissible evidence or affidavits
to controvert PRA’s factual allegations.
¶3 On November 3, 2011, the district court granted PRA’s
motion for summary judgment, concluding that PRA had
presented evidence sufficient to establish that it was entitled to
judgment as a matter of law on its of breach of contract claim and
that Migliore had failed to submit any contrary evidence to raise a
genuine issue of material fact for trial. Migliore filed a rule 59
motion to amend the district court’s grant of summary judgment.
The district court conducted a hearing on the rule 59 motion,
ultimately denying Migliore’s motion and affirming its prior order.
The district court entered final judgment on June 5, 2012, and
Migliore timely filed his notice of appeal.
¶4 Migliore’s principal argument on appeal is that the district
court abused its discretion in denying his motion to strike and
subsequently receiving and considering the two affidavits and the
attached exhibits in ruling on PRA’s motion for summary
judgment. We review a district court’s decision on a motion to
strike affidavits submitted in support of or in opposition to a
motion for summary judgment for an abuse of discretion. See
Murdock v. Springville Mun. Corp., 1999 UT 39, ¶ 25, 982 P.2d 65; see
also A Good Brick Mason, Inc. v. Spectrum Dev. Corp., 2010 UT App
145U, para. 2 (mem.) (“The district court is granted broad
discretion to decide motions to strike summary judgment
affidavits.”). “An abuse of discretion may be demonstrated by
showing that the district court relied on an erroneous conclusion of
law or that there was no evidentiary basis for the trial court’s
ruling.” Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66,
¶ 32, 221 P.3d 256 (citation and internal quotation marks omitted).
20120700‐CA 2 2013 UT App 255Portfolio Recovery Associates, LLC v. Migliore
¶5 Migliore first argues that the affidavit of David Sage, a
representative of PRA, is inadmissible because the affidavit does
not provide a factual foundation for the averments made therein,
so that a “trier of fact could not independently assess whether
Sage’s conclusory assertions were well‐founded in fact.” Affidavits
supporting a motion for summary judgment “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). However, “weighing credibility and assigning
weight to conflicting evidence is not part of the district court’s role
in determining summary judgment.” Martin v. Lauder, 2010 UT
App 216, ¶ 14, 239 P.3d 519. Absent an indication that the
averments are obviously outside the personal knowledge of the
affiant or otherwise inadmissible, the district court may properly
accept the affidavit at face value. See A Good Brick Mason, 2010 UT
App 145U, para. 3; see also id. (“[O]ur role is not to cross‐examine
the affidavit by conjecture; rather, we take it at face value . . . .”
(alteration and omission in original) (citation and internal
quotation marks omitted)). Thus, the district court did not abuse its
discretion in accepting the Sage affidavit’s averments that Sage was
a custodian of records for PRA and, by virtue of that position, had
knowledge of PRA’s business records processes and personal
knowledge regarding the Account. Cf. Utah R. Evid. 602 (“Evidence
to prove personal knowledge may consist of the witness’s own
testimony.”).
¶6 Migliore next argues that Sage’s averment that “[the
Account] was sold and/or assigned to [PRA] by Wells Fargo Bank”
is inadmissible because the assignment document is not attached
to the affidavit. See Utah R. Civ. P. 56(e) (“Sworn or certified copies
of all papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith.”). However, the district court
determined that Sage had personal knowledge that the Account
had been assigned to PRA by Wells Fargo Bank based on his
knowledge, memory, and review of PRA’s records. See Superior
Receivable Servs. v. Pett, 2008 UT App 225, ¶ 10, 191 P.3d 31. If
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documents are to be introduced through an affidavit, sworn copies
of such documents must be attached to the affidavit. See Utah R.
Civ. P. 56(e). But it does not follow, and rule 56(e) does not on its
face require, that all averments in an affidavit be supported by
documentation. Id. Rather, an affiant may attest to facts within his
personal knowledge notwithstanding that documentary evidence
may exist to independently show the same facts. Cf. Weststar
Exploration Co. v. Cochrane Res., Inc., 2008 UT App 169U, paras. 7–8
(concluding that affidavit testimony that the plaintiff’s predecessor‐
in‐interest had been assigned an ownership interest in a pipeline,
unsupported by any documents evidencing the assignment, was
sufficient to raise an issue of material fact and preclude summary
judgment against the plaintiff). Accordingly, the district court did
not abuse its discretion in accepting Sage’s averment that the
Account had been assigned to PRA by Wells Fargo Bank.
¶7 Migliore also challenges the admission of a bill of sale and
affidavit regarding the sale of accounts attached to the Sage
affidavit. Migliore asserts that these documents are inadmissible
hearsay because the Sage affidavit does not provide a proper
foundation to admit the documents under the business records
exception to the rule against hearsay.1 See Utah R. Evid. 803(6). The
district court determined that the Sage affidavit included sufficient
foundation to admit the documents as business records. This
determination was within the district court’s discretion. As
discussed above, the district court was entitled to take the
1
Migliore also argues that the affidavit regarding the sale
of accounts is insufficient under rule 56(e) of the Utah Rules of
Civil Procedure and rule 803(6) of the Utah Rules of Evidence to
provide foundation for admission of any business records.
However, no business records were attached to the affidavit and
it does not appear that PRA introduced the affidavit as a rule
56(e) affidavit. And the district court received the affidavit
regarding the sale of accounts as one of the business records
attached to the Sage affidavit, not as a rule 56(e) affidavit.
20120700‐CA 4 2013 UT App 255Portfolio Recovery Associates, LLC v. Migliore
averments in the Sage affidavit regarding Sage’s qualifications as
a records custodian at face value. Sage attested that he was an
authorized representative and custodian of records for PRA and
that he was familiar with the manner and method by which PRA
maintained its books and records—specifically the manner and
method by which it maintained its records of assigned debts. This
is a sufficient evidentiary basis for the district court’s determination
that an adequate foundation existed to receive the attached
documents as business records. See Superior Receivable Servs., 2008
UT App 225, ¶ 10 & n.2. The district court therefore did not abuse
its discretion in denying Migliore’s motion to strike the Sage
affidavit and the exhibits thereto.
¶8 Migliore next argues that the affidavit of Miriam Olguin and
the documents attached thereto are inadmissible. First, Migliore
asserts that the affidavit did not provide an adequate foundation
to establish Olguin as a records custodian for Wells Fargo Bank. In
her affidavit, Olguin attests that she is the custodian of records for
the attached documents and certifies the authenticity of the
documents in compliance with the requirements of the business
records exception, see Utah R. Evid. 803(6). For the same reasons
discussed above, we conclude that the district court did not abuse
its discretion in accepting these averments and in determining that
the Olguin affidavit provided sufficient foundation to admit the
attached documents. See supra ¶¶ 5–7.
¶9 Migliore also argues that the Olguin affidavit is inadmissible
because Wells Fargo Bank reserved the right to designate another
custodian of records in the event that an appearance was required.
Migliore argues that the affidavit is equivalent to direct testimony
by Olguin and that the affidavit is therefore inadmissible unless
Olguin herself can be cross‐examined. However, our supreme court
has observed that, unlike a deponent, an affiant is not subject to
cross‐examination. Webster v. Sill, 675 P.2d 1170, 1172 (Utah 1983).
Migliore asserts that our decision should be governed by cases
which hold that an affidavit may be struck if the affiant later
invokes her Fifth Amendment privilege at a deposition or trial in
20120700‐CA 5 2013 UT App 255Portfolio Recovery Associates, LLC v. Migliore
order to shield the affidavit testimony from scrutiny. See, e.g.,
United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir. 1990)
(concluding that the district court properly struck an affidavit after
the affiant invoked his Fifth Amendment privilege at his
deposition). However, Migliore has never attempted to depose
Olguin or any other representative of Wells Fargo Bank in order to
test the foundational averments made by Olguin in her declaration.
See Utah R. Civ. P. 56(e) (“The court may permit affidavits to be
supplemented or opposed by depositions . . . .”). Migliore has also
not shown, or even suggested, that another Wells Fargo Bank
representative would not have been able to establish the necessary
foundation to admit the supporting documents. See Utah R. Evid.
803(6)(D) (requiring that all conditions of the business records
exception be “shown by the testimony of the custodian or another
qualified witness”). We conclude that Migliore has identified no
legal principle that requires the exclusion of an affidavit under
these circumstances, and thus Migliore has failed to demonstrate
that the district court abused its discretion in receiving the Olguin
affidavit and supporting documents.
¶10 Migliore next argues that the district court erred in granting
summary judgment to PRA because PRA’s motion for summary
judgment and supporting evidence did not establish the elements
of its breach of contract claim. We review a district court’s grant of
summary judgment for correctness. Orvis v. Johnson, 2008 UT 2, ¶ 6,
177 P.3d 600. Summary judgment is appropriate 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.” See Utah R. Civ. P. 56(c). “[A]n
adverse party may not rest upon the mere allegations or denials of
the pleadings, but the response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial.” Id. R. 56(e). Where the
nonmoving party fails to file responsive affidavits or other
evidentiary material allowed by rule 56(e), we accept as
undisputed the facts presented by the movant. Scott v. Majors, 1999
20120700‐CA 6 2013 UT App 255Portfolio Recovery Associates, LLC v. Migliore
UT App 139, ¶ 17, 980 P.2d 214. However, in evaluating whether
PRA is entitled to judgment as a matter of law, we view “the facts
and all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.” See Orvis, 2008 UT 2, ¶ 6
(citation and internal quotation marks omitted). And because PRA
would bear the burden of proof on its claims at trial, it “must
establish each element of [its] claim in order to show that [it] is
entitled to judgment as a matter of law.” See id. ¶ 10.
¶11 PRA’s complaint asserts a breach of contract claim based on
the assignment of the Account to PRA by Wells Fargo Bank. “The
elements of a prima facie case for breach of contract are (1) a
contract, (2) performance by the party seeking recovery, (3) breach
of the contract by the other party, and (4) damages.” Bair v. Axiom
Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d 388. Because Migliore failed
to file responsive affidavits or other admissible evidence, the facts
are undisputed.
¶12 The account statements attached to the Olguin affidavit
establish the existence of a credit account with Wells Fargo Bank,
identified by the same number as the Account. In the more than
100 pages of the record containing Wells Fargo Bank account
statements spanning over four‐and‐one‐half years, Migliore’s name
is the only name on the Account. PRA has submitted affidavits
from retailers establishing that Migliore used the Account for
purchases, which were paid by Wells Fargo Bank and reflected on
the Account. The account statements show that as of the time Wells
Fargo Bank closed the Account, the Account had exceeded its
credit limit, had an outstanding balance of $22,807.56, and was
more than $4,000 in arrears. Finally, the Sage affidavit establishes
that Wells Fargo Bank assigned the Account to PRA.
¶13 Even viewing the undisputed facts in the light most
favorable to Migliore, we conclude that PRA has established a
prima facie claim for breach of contract against Migliore. Contrary
to Migliore’s assertions, the undisputed facts demonstrate the
existence of a credit account in Migliore’s name, with a balance
20120700‐CA 7 2013 UT App 255Portfolio Recovery Associates, LLC v. Migliore
owing and in default, which has been assigned to PRA. While
Migliore argues that he may merely be an authorized user of the
Account, rather than the cardholder, both the district court and this
court are constrained to draw reasonable inferences from the
evidence. See Orvis, 2008 UT 2, ¶ 6. There is no evidence in the
record before us from which we could infer that there was another
cardholder to whom the Account was issued who merely
authorized Migliore’s use. Accordingly, we conclude that PRA was
entitled to judgment as a matter of law.2
¶14 Because Migliore failed to introduce any admissible
evidence to raise a genuine issue of material fact, and because PRA
was entitled to judgment as a matter of law, the district court did
not err in granting summary judgment to PRA.3
2
We note that Migliore argued below that a credit contract
is unenforceable under Utah’s statute of frauds without evidence
of a written contract between the parties. However, he has
abandoned this argument on appeal.
3
Migliore also argues that the district court could not have
properly entered summary judgment for PRA on the basis of
Migliore’s failure to respond to a set of requests for admission
that were largely duplicative of earlier requests Migliore had
denied. See Utah R. Civ. P. 36(b)(1) (explaining that any request
for admission not responded to is deemed admitted). Migliore
argues that the these duplicative requests were moot and could
not operate as admissions. The district court did not, however,
rely upon these admissions in granting summary judgment to
PRA, but instead relied on the evidence submitted by PRA in
support of its summary judgment motion. Because this challenge
does not address the basis of the district court’s ruling, we reject
it. See Golden Meadows Props., LC v. Strand, 2010 UT App 257,
¶ 17, 241 P.3d 375.
20120700‐CA 8 2013 UT App 255Portfolio Recovery Associates, LLC v. Migliore
¶15 Migliore also asserts that the district court abused its
discretion in denying his motion to extend time to file reply
memoranda in support of his motion to strike the Sage and Olguin
affidavits. Migliore argues that the district court used the wrong
standard in evaluating his motion to extend time under rule 6(b) of
the Utah Rules of Civil Procedure and thereby abused its
discretion. However, even if we determined that the district court
used the wrong standard, “we will not reverse a judgment merely
because there may have been error; reversal occurs only if the error
is such that there is a reasonable likelihood that, in its absence,
there would have been a result more favorable to the complaining
party.” Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107, ¶ 50, 37
P.3d 1130 (citation and internal quotation marks omitted). Thus, to
merit reversal, Migliore would need to demonstrate that there is a
reasonable likelihood that he would have obtained a more
favorable result on his motion to strike the Sage and Olguin
affidavits if the district court had granted the time extension for
Migliore to file reply memoranda. However, Migliore’s reply
memoranda were attached as exhibits to his rule 59 motion to
amend the district court’s entry of summary judgment. As a result,
the district court had Migliore’s reply memoranda before it when
it ruled on the rule 59 motion and again rejected Migliore’s
challenges to the admissibility of the Sage and Olguin affidavits.
Accordingly, there is no likelihood that Migliore would have
obtained a more favorable result if the district court had granted
his request for a time extension to file the memoranda in the first
instance. Therefore, any abuse of discretion by the district court in
denying that request would be harmless and would not merit
reversal. See State v. Otterson, 2008 UT App 139, ¶¶ 16, 26, 184 P.3d
604.
¶16 Last, Migliore challenges the district court’s denial of his
rule 59 motion to amend the grant of summary judgment to PRA.
Whether to grant a rule 59 motion for a new trial or to amend a
judgment is within the discretion of the district court, “and that
decision will be reversed only if the judge has abused that
discretion by acting unreasonably.” A.K. & R. Whipple Plumbing &
20120700‐CA 9 2013 UT App 255Portfolio Recovery Associates, LLC v. Migliore
Heating v. Aspen Constr., 1999 UT App 87, ¶ 10, 977 P.2d 518(citation and internal quotation marks omitted). Migliore argues
that the district court abused its discretion in denying his rule 59
motion because PRA had not produced evidence of an assignment
of the Account from Wells Fargo Bank to PRA. Migliore’s argument
is premised on his claim that the Sage affidavit was inadmissible.
Because we have already concluded that the district court did not
abuse its discretion in receiving the Sage and Olguin affidavits and
their supporting documents, see supra ¶¶ 7, 9, the district court had
a reasonable basis to deny Migliore’s rule 59 motion. See Johnson v.
Montoya, 2013 UT App 199, ¶ 19, 308 P.3d 566.
¶17 PRA has requested attorney fees on the basis that “[w]hen
a party who received attorney fees below prevails on appeal, the
party is also entitled to fees reasonably incurred on appeal.” See
Dantine v. Shores, 2011 UT App 392, ¶ 7, 266 P.3d 188 (per curiam).
Because PRA was awarded attorney fees below and has prevailed
on appeal, PRA is entitled to an award of attorney fees and costs
reasonably incurred on appeal. See id.; Utah R. App. P. 34.
¶18 PRA has also requested augmentation of its award of
attorney fees and costs, arguing that Migliore’s appeal is without
merit and was pursued solely for delay. See Utah R. App. P. 33(a)
(providing for an award of “just damages” to the prevailing party
where an appeal is frivolous or taken for delay). “The sanction for
filing a frivolous appeal applies only in egregious cases with no
reasonable legal or factual basis.” Cooke v. Cooke, 2001 UT App 110,
¶ 14, 22 P.3d 1249 (citation and internal quotation marks omitted).
“An appeal brought for delay is one marked by dilatory conduct or
conduct designed to mislead the court and which benefits only the
appellant.” O’Brien v. Rush, 744 P.2d 306, 310 (Utah Ct. App. 1987).
PRA has merely asserted that Migliore’s appeal was without merit
and prosecuted solely for delay and has not attempted to show that
this is an egregious case or one marked by dilatory or misleading
conduct. Accordingly, PRA has failed to demonstrate that it is
entitled to costs or fees under rule 33, and PRA’s request for
augmentation of its attorney fee and costs award is denied.
20120700‐CA 10 2013 UT App 255Portfolio Recovery Associates, LLC v. Migliore
¶19 The district court did not abuse its discretion in receiving the
Sage and Olguin affidavits into evidence and did not err in
granting summary judgment to PRA on the undisputed facts.
Furthermore, the district court did not abuse its discretion in
denying Migliore’s rule 59 motion, and any error in denying
Migliore’s motion for an extension of time was harmless. We affirm
and remand to the district court for a determination of PRA’s
attorney fees and costs on appeal.
20120700‐CA 11 2013 UT App 255