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.
20140850-CA 4 2016 UT App 17
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
20140850-CA 5 2016 UT App 17
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.
20140850-CA 9 2016 UT App 17
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 . . . .‛).
20140850-CA 10 2016 UT App 17