Basin Auto Paint Specialist v. Ultimate Autobody

2018 UT App 72
THE UTAH COURT OF APPEALS
BASIN A UTO PAINT S PECIALISTS I NC .,
Appellee,
v.
U LTIMATE A UTOBODY AND A CCESSORIES LLC,
Appellant.
Per Curiam Opinion
No. 20170932-CA
Filed April 26, 2018
Eighth District Court, Roosevelt Department
The Honorable Samuel P. Chiara
No. 169000244
Daniel R. Sam and Daniel S. Sam, Attorneys for
Appellant
Keisuke Leonard Ushijima, Attorney for Appellee
Before JUDGES GREGORY K. O RME, K ATE A. TOOMEY , and DIANA
HAGEN .
PER CURIAM:
¶1 	Ultimate 	Autobody 	and 	Accessories 	LLC 	appeals 	the
district court’s order granting Basin Auto Paint Specialists, Inc.’s
motion for summary judgment and the district court’s denial of
its post-judgment motion seeking relief from the judgment. This
matter is before the court on Basin Auto’s motion for summary
affirmance and this court’s sua sponte motion for summary
reversal.
¶2 	As an initial matter, the district court erred in granting
Basin 	Auto’s 	motion 	for 	summary 	judgment 	without 	first
determining whether Basin Auto was entitled to judgment as a
matter of law. This court has previously concluded that “failure
to file an opposition to a summary judgment motion is not

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20170932-CA 	2 	2018 UT App 72
enough on its own to support a grant of summary judgment.”
Koerber v. Mismash, 2015 UT App 237, ¶ 23, 359 P.3d 701. Even if
no response to the motion is filed, “the moving party may be
granted summary judgment only if appropriate, that is, if he is
entitled to judgment as a matter of law.” Frisbee v. K & K Constr.
Co., 676 P.2d 387, 390 (Utah 1984) (quotation simplified). Here,
the 	district 	court’s 	order 	granting 	the 	summary 	judgment
motion stated: “No opposition to the Motion has been filed and
the time to do so has now passed. Plaintiff has submitted the
Motion 	for 	decision 	and 	no 	hearing 	has 	been 	requested.
Wherefore, Plaintiff’s Motion is Granted and Judgment shall
enter for the Plaintiff.” The order made no reference to whether
Basin Auto had actually met its burden of demonstrating that it
was entitled to judgment as a matter of law. Instead, the order
indicates that it was granted merely because Ultimate Autobody
had failed to timely respond. Accordingly, the district court
erred in granting summary judgment without first determining
whether summary judgment was appropriate.
¶3 	There is, however, a more fundamental problem with the
district court’s decision. Specifically, there existed procedural
irregularities in the response to Ultimate Autobody’s attorney’s
notice of withdrawal of counsel that resulted in a denial of
fundamental fairness. See Utah R. Civ. P. 59(a)(1) (stating that an
irregularity in a proceeding is grounds for granting a motion
under the rule); see also Jones v. Layton/Okland, 2009 UT 39, ¶ 17,
214 P.3d 859 (“Equitable inquiries defy distillation into any
formal legal test; instead, the question is always whether the
particular 	relief 	sought 	is 	justified 	under 	principles 	of
fundamental fairness in light of the particular facts.”). It is
undisputed 	that 	the 	notice 	to 	withdraw 	filed 	by 	Ultimate
Autobody’s attorney was improper because Basin Auto had filed
a motion for summary judgment a few days before. See Utah R.
Civ. P. 74(a) (stating that if a motion is pending, counsel must
seek leave of the court to withdraw). However, the manner in
which both Basin Auto and the district court responded to that

Basin Auto Paint Specialists v. Ultimate AutoBody
20170932-CA 	3 	2018 UT App 72
improper 	notice 	effectively 	deprived 	Ultimate 	Autobody 	of
proper notice of the proceedings and an opportunity to respond
to the motion for summary judgment.
¶4 	Despite Basin Auto’s current insistence that counsel’s
notice to withdraw was ineffective and of no legal effect, after it
received the notice of withdrawal of counsel, it did not treat the
notice as if it had no legal effect. Instead, Basin Auto removed
the attorney from its certificate of service and served Ultimate
Autobody directly with subsequent filings. If we were to accept
as true Basin Auto’s argument that the notice of withdrawal was
ineffective, 	Basin 	Auto’s 	subsequent 	service 	of 	its 	filings,
including the notice to submit, directly to Ultimate Autobody
instead of the attorney, was improper. See id. R. 5(b)(1) (stating
that if a party is represented by counsel, papers must be served
upon 	the 	attorney 	unless 	the 	court 	orders 	otherwise).
Conversely, if Basin Auto believed that the notice of withdrawal
was effective, as evidenced by its removal of counsel from its
certificate of service, it should have filed a notice to appear or
appoint, and no further proceedings should have taken place for
at least twenty-one days. See id. R. 74(c). Accordingly, after the
notice of withdrawal was filed one of two things should have
happened—Basin Auto should have either continued to serve
counsel or it should have filed a notice to appear or appoint.
Neither of these things occurred.1
¶5 	Unfortunately, Basin Auto’s mistake was compounded by
the removal of Ultimate Autobody and its counsel from the
court’s mailing list. If the notice to withdraw was ineffective due
1. This error was exacerbated by the fact that because Ultimate
Autobody is a limited liability company, it had no right to
appear pro se. It had to be represented by counsel. Accordingly,
even if it wanted to file something in response to the notice to
submit, it had no legal right to do so.

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20170932-CA 	4 	2018 UT App 72
to a pending motion, the court should not have removed counsel
from its service list. The confluence of these factors operated to
deprive Ultimate Autobody of proper notice concerning both the
status of 	its counsel’s attempt 	to withdraw as well 	as the
summary judgment proceedings.2
¶6 	Based on the unusual facts of this case—the lack of
appropriate notice coupled with the order granting summary
judgment being based on the lack of a response from Ultimate
Autobody—we conclude that the procedural irregularities in the
case 	deprived 	Ultimate 	Autobody 	of 	fundamental 	fairness.
Accordingly, we reverse the judgment of the district court and
remand for consideration of Basin Auto’s motion for summary
judgment after Ultimate Autobody has had an opportunity to
respond to the motion.
2. This entire situation could have been avoided if the district
court had simply informed counsel that because there was a
pending motion for summary judgment, his notice to withdraw
was ineffective and he would either have to file a motion to
withdraw or respond to the motion for summary judgment.