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 
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20130832-CA 2 2015 UT App 137

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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20130832-CA 3 2015 UT App 137

¶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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20130832-CA 4 2015 UT App 137

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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20130832-CA 5 2015 UT App 137

¶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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20130832-CA 6 2015 UT App 137

court. Pratt v. Nelson, 2007 UT 41, ¶ 16, 164 P.3d 366. It is a wellsettled 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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20130832-CA 7 2015 UT App 137

¶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 privateattorney-general doctrine. An award of fees under the privateattorney-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 privateattorney-general doctrine.4

 

4. It is also unclear whether a claim for fees under the privateattorney-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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20130832-CA 8 2015 UT App 137

¶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.