1. The Honorable Judith M. Billings, Senior Judge, sat by special

assignment as authorized by law. See generally Utah Code Jud.

Admin. R. 11-201(6).

2013 UT App 264

_________________________________________________________

THE UTAH COURT OF APPEALS

A HEALTHY CHOICE,

Plaintiff and Appellant,

v.

MICHELLE BROWN, KELLY BROWN, AND KELSEY BROWN

Defendants and Appellees.

Per Curiam Decision

No. 20120647-CA

Filed November 7, 2013

Second District Court, Farmington Department

The Honorable David M. Connors

No. 100700291

M. Dirk Eastmond and Terry R. Spencer, Attorneys

for Appellant

J. Preston Stieff, Attorney for Appellees

Before JUDGES STEPHEN L. ROTH, MICHELE M. CHRISTIANSEN, and

JUDITH M. BILLINGS.

1

PER CURIAM:

¶1 A Healthy Choice (Healthy Choice) appeals the trial court’s

order granting summary judgment in favor of Michelle, Kelly, and

Kelsey Brown and dismissing the action. We affirm.

¶2 Months after the close of discovery in this matter, the

Browns moved to dismiss the case based on Healthy Choice’s
A Healthy Choice v. Brown

20120647-CA 2 2013 UT App 264

failure to provide any factual support for its claim of intentional

interference with economic relations alleged in its complaint. At a

hearing on the motion to dismiss, the trial court considered matters

outside of the pleadings and therefore noted that the motion would

proceed as a summary judgment motion. See Utah R. Civ. P. 12(b)

(stating that a motion to dismiss shall be treated as a motion for

summary judgment if matters beyond the pleadings are

considered). The Browns had previously submitted affidavits

denying the primary allegation of the complaint that they had

reported false information to the Consumer Protection Agency. The

trial court gave Healthy Choice additional time to present evidence

to establish a dispute of material fact that might defeat the

summary judgment motion.

¶3 Healthy Choice provided two affidavits in an attempt to

support its claim. The trial court determined that the affidavits

failed to create a dispute of material fact and that, regardless, they

were untimely based on the closure of discovery. Accordingly, the

trial court granted the summary judgment motion.

¶4 Summary judgment may be granted only when there is no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Id. R.56(c). An appellate court reviews

a grant of a motion for summary judgment for correctness. See Ross

v. Epic Eng’g, PC, 2013 UT App 136, ¶ 13, 307 P.3d 576. When a

defendant moves for summary judgment on an issue on which the

plaintiff will have the burden of proof at trial, a defendant may

meet its burden by showing, with reference to discovery materials

and affidavits, if any, that there is no genuine issue of material fact.

Id. When a defendant makes such a showing, the burden shifts to

the plaintiff, who may not rest upon the mere allegations of the

complaint, but must set forth specific facts showing there is a

genuine issue for trial. Id. Affidavits in support of or in opposition

to a motion for summary judgment “shall be made on personal

knowledge, [and] shall set forth such facts as would be admissible

in evidence.” Utah R. Civ. P. 56(e).
A Healthy Choice v. Brown

2. Because the trial court did not err in granting summary

judgment, we do not address the other issues raised in Healthy

Choice’s brief. See State v. Carter, 776 P.2d 886, 888 (Utah 1989).

20120647-CA 3 2013 UT App 264

¶5 In this case, even if the trial court had not struck the

affidavits provided by Healthy Choice as untimely, the affidavits

failed to establish any specific material fact that would preclude

summary judgment. The complaint alleged, upon information and

belief, that the Browns had provided information to the Consumer

Protection Agency which caused an administrative action to be

pursued against Healthy Choice. Faced with affidavits specifically

denying that allegation, Healthy Choice was required to provide

some evidence based on personal knowledge that the Browns had

in fact provided that information. At the motion hearing, counsel

represented that such evidence could be obtained in the form of an

affidavit from an employee of the Consumer Protection Agency.

However, no affidavit from the Consumer Protection Agency was

presented. Rather, the affidavits submitted by Healthy Choice were

from a part-owner of Healthy Choice and one of its employees.

Nothing in those affidavits supported the allegation that the

Browns provided information to the Consumer Protection Agency.

Most of the allegations in the affidavit of Healthy Choice’s

employee related to a divorce action and were not relevant to the

allegations or cause of action in the complaint. Accordingly, there

was no genuine issue of material fact established regarding

whether the Browns provided information to the Consumer

Protection Agency.

¶6 With no genuine issue of fact demonstrated and no factual

basis for Healthy Choice’s claim of intentional interference with

economic relations established, the Browns were entitled to

judgment as a matter of law.2

¶7 Affirmed.