Pepperwood Homeowners Ass'n v. Mitchell

2015 UT App 137

THE UTAH COURT OF APPEALS

PEPPERWOOD HOMEOWNERS ASSOCIATION,
Plaintiff and Appellee,
v.
PAULA A. MITCHELL,
Defendant and Appellant.

Memorandum Decision
No. 20130832-CA
Filed May 29, 2015

Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 120410385

Douglas R. Short, Attorney for Appellant
Kirk A. Cullimore and Derek J. Barclay, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES JAMES Z. DAVIS and
J. FREDERIC VOROS JR. concurred.

CHRISTIANSEN, Judge:

¶1 Paula A. Mitchell owns real property located within the
boundaries of the Pepperwood Homeowners Association.
Pepperwood filed a complaint in district court, alleging that
Mitchell’s property was subject to a declaration of covenants,
conditions, and restrictions that allowed Pepperwood to levy
assessments against Mitchell and other property owners for
certain expenses related to Pepperwood’s operations (the
Declaration). Pepperwood alleged that Mitchell had failed to pay
the assessments levied against her property, and it sought
recovery of the amounts due. Mitchell denied the allegations
contained in the complaint in nearly all respects, notably
denying the allegations that her property was subject to the
Pepperwood Homeowners Ass’n v. Mitchell

Declaration and that the Declaration obligated her to pay the
assessments.

¶2 Pepperwood moved for summary judgment, asserting
that ‚[a]s an owner of a property subject to the Declaration,
[Mitchell] is required to pay all assessments levied by
*Pepperwood+.‛ In support of its motion, Pepperwood attached
a ledger showing the amounts Pepperwood claimed were due
and an affidavit from one of its agents averring that the ledger
was accurate and that Mitchell had ‚failed to pay the
assessments in a timely fashion.‛ Pepperwood also attached a
copy of a lien it had recorded against Mitchell’s property.1
Pepperwood did not attach a copy of the Declaration to its
summary judgment motion or its complaint.

¶3 Mitchell did not respond to Pepperwood’s motion for
summary judgment within the time allowed, and Pepperwood
submitted its motion to the district court for decision without a
hearing. The district court granted Pepperwood’s motion,
stating,

Plaintiff[’s] motion for summary judgment is
granted on the basis the Defendant failed to
respond. There are no material issues of disputed
facts. Plaintiff to prepare the order.

Pepperwood prepared an order and judgment including both
the amount it claimed Mitchell owed under the Declaration and
an award of attorney fees. The district court signed the order the
same day. Mitchell appeals.

1. Pepperwood’s complaint did not seek to foreclose the lien
against Mitchell’s property but sought only payment of the
amounts alleged due under the Declaration.

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¶4 On appeal, Mitchell alleges a host of errors in the
proceedings below. However, the first of these issues is
dispositive, and we therefore do not reach the remainder of
Mitchell’s claims. Because we conclude that the district court
incorrectly granted summary judgment to Pepperwood, we
reverse the district court’s summary judgment and vacate the
award of attorney fees to Pepperwood.

¶5 ‚Summary judgment is appropriate only where there are
no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.‛ Basic Research, LLC v.
Admiral Ins. Co., 2013 UT 6, ¶ 5, 297 P.3d 578. ‚We review the
trial court’s summary judgment for correctness, considering only
whether the trial court correctly applied the law and correctly
concluded that no disputed issues of material fact existed.‛
Hermansen v. Tasulis, 2002 UT 52, ¶ 10, 48 P.3d 235.

¶6 Failure to oppose a motion for summary judgment can
have severe consequences for a nonmoving party, as the
nonmoving party’s failure to controvert the facts properly set
forth in the moving party’s memorandum will result in the
district court deeming those facts admitted for the purpose of
summary judgment. Utah R. Civ. P. 7(c)(3)(A). However,
summary judgment may not be entered against the nonmoving
party merely by virtue of a failure to oppose; the rules of civil
procedure allow entry of summary judgment against a defaulted
party only ‚if appropriate.‛ Id. R. 56(e). Thus, while the
nonmoving party’s failure to oppose a motion for summary
judgment will often result in a determination that there are no
factual issues precluding a grant of summary judgment, the
district court must still determine whether the moving party’s
pleadings, discovery, and affidavits demonstrate its entitlement
to judgment as a matter of law. Id. R. 56(c); Basic Research, 2013
UT 6, ¶ 5.

¶7 Mitchell claims that the district court erred in granting
summary judgment to Pepperwood ‚on the basis *that Mitchell]
failed to respond.‛ Mitchell argues that summary judgment was

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Pepperwood Homeowners Ass’n v. Mitchell

improper because Pepperwood failed to produce evidence of an
underlying contract or covenant that would entitle it to
judgment as a matter of law.

¶8 ‚Where the moving party would bear the burden of proof
at trial, the movant must establish each element of his claim in
order to show that he is entitled to judgment as a matter of law.‛
Orvis v. Johnson, 2008 UT 2, ¶ 10, 177 P.3d 600. Before
considering whether the nonmoving party has met its burden to
place a factual issue in dispute, the court ‚must be satisfied that
the moving party has met its burden of proving that . . . [it] is
entitled to judgment as a matter of law.‛ See Connor v. Union Pac.
R.R. Co., 972 P.2d 414, 417 (Utah 1998). If ‚the moving party fails
to properly support its motion for summary judgment, the
nonmoving party is permitted to ‘rest on the allegations in *its+
pleadings.’‛ Advanced Forming Techs., LLC v. Permacast, LLC, 2015
UT App 7, ¶ 9, 342 P.3d 808 (alteration in original) (quoting
Parrish v. Layton City Corp., 542 P.2d 1086, 1087 (Utah 1975)).2

¶9 Pepperwood’s allegations in its complaint demonstrate
that the covenants in the Declaration form the basis of
Pepperwood’s claim against Mitchell. Pepperwood alleged that
Mitchell’s property was subject to the Declaration and that the
Declaration authorized Pepperwood to levy assessments against
Mitchell’s property. Mitchell denied these allegations in her
answer. In the face of Mitchell’s denials, Pepperwood needed to
establish its claim with admissible evidence that Mitchell was
obligated by virtue of the Declaration to pay the claimed
amounts. See Orvis, 2008 UT 2, ¶ 10.

2. We note that, while the nonmoving party is not required to
come forward with documentary evidence when the moving
party has failed to adequately demonstrate its entitlement to
judgment as a matter of law, an erroneous grant of summary
judgment is much more likely to be avoided if the nonmoving
party files an opposition alerting the district court to the
deficiencies in the moving party’s filings.

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Pepperwood Homeowners Ass’n v. Mitchell

¶10 We agree with Mitchell that Pepperwood failed to
introduce evidence sufficient to establish the basis of its claim.
Pepperwood’s motion for summary judgment acknowledged
that Mitchell denied that her property was subject to the
assessments, but Pepperwood did not provide the district court
with a copy of the Declaration or any other evidence that
Mitchell’s property was subject to the Declaration in a way that
would require her to pay the assessments.3 Thus, on the record
before this court, there is no evidence of an instrument
obligating Mitchell to pay the assessments. Because Pepperwood
failed to properly support its motion for summary judgment,
Mitchell was permitted to ‚rest on the *denials+ in *her+
pleadings.‛ See Advanced Forming, 2015 UT App 7, ¶ 9 (citation
and internal quotation marks omitted). Pepperwood’s motion
for summary judgment therefore failed to demonstrate its
entitlement to judgment as a matter of law, and the district
court’s grant of summary judgment was in error. See Orvis, 2008
UT 2, ¶ 10.

¶11 Pepperwood argues that, by failing to oppose its motion
for summary judgment, Mitchell failed to preserve this issue for
appellate review. Pepperwood therefore contends that we
should not reverse the district court’s order on this basis.
Generally, we will not consider an issue unless it has been
preserved for appeal by first presenting the issue to the district
court in such a way that the district court has the opportunity to
rule upon it. Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828.
Mitchell concedes that ‚*m+any of the issues were not raised
below‛ but argues that the district court plainly erred by
granting summary judgment under these circumstances. Under
plain-error review, ‚we may reverse the lower court on an issue
not properly preserved for appeal‛ if the appellant demonstrates
that a prejudicial error should have been obvious to the district

3. Pepperwood’s motion for summary judgment incorrectly
stated that Mitchell did not dispute in her answer that her
property was subject to the Declaration itself.

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Pepperwood Homeowners Ass’n v. Mitchell

court. Pratt v. Nelson, 2007 UT 41, ¶ 16, 164 P.3d 366. It is a well-
settled rule that a moving party must demonstrate its legal
entitlement to a judgment before summary judgment may be
granted. It is plain on the face of Pepperwood’s motion and
supporting memorandum that Pepperwood failed to support its
claim with evidence that the Declaration obligated Mitchell to
pay the assessments. It should therefore have been obvious to
the district court that, by failing to produce the instrument that
formed the basis of its claim, Pepperwood failed to demonstrate
its entitlement to a judgment on that claim as a matter of law. Id.
Thus, even assuming without deciding that Mitchell’s argument
is unpreserved because she failed to oppose Pepperwood’s
motion for summary judgment, we nevertheless conclude that
the facts of this case merit reversal.

¶12 Mitchell argues that she is entitled to an award of her
attorney fees incurred on appeal because Pepperwood asserted a
right to fees under the Declaration and she should therefore be
entitled to fees either under the Declaration’s fee provision or by
operation of Utah’s reciprocal-attorney-fees statute. As a general
rule, a prevailing party is entitled to an award of attorney fees
‚only if authorized by statute or by contract.‛ Dahl v. Dahl, 2015
UT 23, ¶ 168, 345 P.3d 566 (citation and internal quotation marks
omitted).

¶13 ‚A party is entitled to reciprocal fee-shifting by statute
‘when the provisions’ of a contract would have entitled at least
one party to recover its fees had that party prevailed ‘in a civil
action based upon’ the contract.‛ Hooban v. Unicity Int'l, Inc.,
2012 UT 40, ¶ 32, 285 P.3d 766 (quoting Utah Code Ann.
§ 78B-5-826 (LexisNexis 2012) (reciprocal-attorney-fees statute)).
And Utah appellate courts have ‚interpreted attorney fee
statutes broadly so as to award attorney fees on appeal where a
statute initially authorizes them.‛ Valcarce v. Fitzgerald, 961 P.2d
305, 319 (Utah 1998) (citation and internal quotation marks
omitted).

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¶14 Mitchell’s request for attorney fees is therefore dependent
on a determination that the Declaration entitles a prevailing
party to recover its fees. However, as discussed above, the
Declaration is not in the record on appeal. And Mitchell has not
otherwise shown that the provisions of the Declaration would
entitle her to an award of fees below or on appeal. We therefore
conclude that Mitchell has failed to demonstrate her entitlement
to an award of attorney fees incurred on appeal, and we deny
that request.

¶15 Mitchell also requests an award of fees under the private-
attorney-general doctrine. An award of fees under the private-
attorney-general doctrine is appropriate ‚only when the
vindication of a strong or societally important public policy
takes place and the necessary costs in doing so transcend the
individual plaintiff’s pecuniary interests to an extent requiring
subsidization.‛ Carrier v. Salt Lake County, 2004 UT 98, ¶ 42, 104
P.3d 1208 (citation and internal quotation marks omitted).
Mitchell asserts that this standard is satisfied by her ‚bringing to
light through this appeal the systematic violation of thousands
of debtors’ rights at the trial court level by *Pepperwood’s+
counsel (and other collection attorneys taking the same unlawful
tactics), often with the blessing of indifferent trial courts.‛ There
is nothing in the record to support this claim. While Mitchell did
identify an error in the proceedings below, it does not appear
that Mitchell has vindicated any rights other than her own. We
therefore deny her request for attorney fees under the private-
attorney-general doctrine.4

4. It is also unclear whether a claim for fees under the private-
attorney-general doctrine may be asserted for the first time on
appeal. See Carrier v. Salt Lake County, 2004 UT 98, ¶ 43, 104 P.3d
1208 (refusing to consider a request for attorney fees under the
private-attorney-general doctrine because the prevailing party
‚failed to preserve the issue by raising it before the district
court‛). However, because we conclude that Mitchell’s request
(continued…)

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Pepperwood Homeowners Ass’n v. Mitchell

¶16 Pepperwood failed to introduce evidence sufficient to
demonstrate its entitlement to summary judgment. The district
court therefore plainly erred in granting Pepperwood’s motion
for summary judgment. We reverse the district court’s grant of
summary judgment, vacate its award of attorney fees to
Pepperwood, and remand for further proceedings consistent
with this decision.

(…continued)
for attorney fees on this basis is without merit, we need not
decide whether her failure to raise this issue below precludes
consideration of this doctrine on appeal.

20130832-CA 8 2015 UT App 137