2015 UT App 69

_________________________________________________________

THE UTAH COURT OF APPEALS

AARONW. ZUNDEL, ZACHARY D. TAFT, AND STEVEN L. STOOKEY,

Plaintiffs, Appellants, and Cross-appellees,

v.

SCHAFER D. MAGANA; LEGACY TOWING, INC.; LEGACY TOWING

HOLDINGS, LLC; DAN MAGANA; ASAP TOWING; AND ASAP

TOWING RECOVERY,

Defendants, Appellees, and Cross-appellants.

Opinion

No. 20130210-CA

Filed March 26, 2015

Third District Court, Salt Lake Department

The Honorable Paul G. Maughan

No. 120902064

H. Dennis Piercey, Attorney for Appellants

Heather L. Thuet and Nathan R. White, Attorneys

for Appellees

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in

which JUDGES GREGORY K. ORME and JOHN A. PEARCE concurred.

CHRISTIANSEN, Judge:

¶1 Plaintiffs Aaron W. Zundel, Zachary D. Taft, and Steven L.

Stookey appeal from the district court’s order granting summary

judgment to Defendants Schafer D. Magana; Legacy Towing, Inc.;

Legacy Towing Holdings, LLC; Dan Magana; ASAP Towing; and

ASAP Towing Recovery (collectively, Legacy) and denying

Plaintiffs’ motion for summary judgment. Legacy cross-appeals

from the district court’s denial of its motion requesting attorney

fees. We affirm in part, reverse in part, and remand for further

proceedings consistent with this opinion.
Zundel v. Magana

BACKGROUND

¶2 Legacy is authorized to tow the vehicles of those who park

in the lot of, but who are not customers of, businesses located at the

33rd Street Station shopping complex in South Salt Lake City. On 1

the evening of March 16, 2012, Legacy towed Plaintiffs’ vehicles

from the 33rd Street Station parking lot after Plaintiffs allegedly

parked in the lot but did not frequent any of the businesses at the

complex. Before allowing Plaintiffs to retrieve their towed vehicles,

Legacy charged Plaintiffs numerous fees, including a towing fee, a

storage fee, an administrative fee, and a fuel-surcharge fee. Legacy

also charged two of the Plaintiffs an after-hours fee for retrieval of

their vehicles outside Legacy’s normal business hours.

¶3 Plaintiffs brought suit against Legacy, alleging that its

towing of their vehicles and the fees charged for the return of their

vehicles amounted to deceptive or unconscionable acts or practices

under the Utah Consumer Sales Practices Act (UCSPA). Plaintiffs

also alleged that Legacy violated the federal Fair Debt Collection

Practices Act (FDCPA) and that Legacy’s refusal to return Plaintiff

Zundel’s vehicle without payment of the required fees constituted

conversion. Legacy subsequently filed a motion for summary

judgment, and Plaintiffs filed a cross-motion for summary

judgment. The district court, without holding a hearing on the

motions, granted Legacy’s motion and denied Plaintiffs’ motion.

After the district court issued its ruling, Plaintiffs moved for

reconsideration and Legacy filed a motion requesting attorney fees

1. 33rd Street Station is located on the southeast corner of 3300

South and State Street in South Salt Lake City. There are a few fastfood restaurants contained within 33rd Street Station, and the

parking lot is limited for the use of those customers who frequent

those businesses. Across 3300 South to the north is a large movie

theater with limited parking, and directly to the south of 33rd

Street Station is a restaurant whose customers are not allowed to

use 33rd Street Station’s parking lot.

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pursuant to the attorney-fee provisions of the UCSPA and the

FDCPA. The district court denied both motions. Plaintiffs appeal

from the district court’s summary judgment rulings. Legacy crossappeals from the district court’s order denying its request for

attorney fees.

ISSUES AND STANDARDS OF REVIEW 

¶4 Plaintiffs argue that the district court erred by granting

summary judgment to Legacy, because the court noted the

existence of a disputed factual issue that Plaintiffs contend is

material. Plaintiffs assert that this error was exacerbated by the

court’s refusal to hold a hearing on the summary judgment

motions pursuant to rule 7(e) of the Utah Rules of Civil Procedure.

We review a district court’s “grant or denial of summary judgment

for correctness.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600

(citation and internal quotation marks omitted). The question of

whether the court erred in granting summary judgment without a

hearing is governed by rule 7 of the Utah Rules of Civil Procedure.

See Price v. Armour, 949 P.2d 1251, 1254 (Utah 1997). “To the extent

this issue requires us to interpret rules of civil procedure, it

‘presents a question of law which we review for correctness.’”

Harris v. IES Assocs., Inc., 2003 UT App 112, ¶ 25, 69 P.3d 297

(quoting Nunley v. Westates Casing Servs., Inc., 1999 UT 100, ¶ 42,

989 P.2d 1077). We therefore review the district court’s decision not

to hold a hearing for correctness. Price, 949 P.2d at 1254; Harris,

2003 UT App 112, ¶ 25.

¶5 Plaintiffs also challenge the district court’s determination

that Legacy’s charging and collection of the after-hours fees,

administrative fees, and fuel-surcharge fees did not constitute

UCSPA and FDCPA violations. However, because we reverse the

district court’s order granting Legacy’s motion for summary

judgment and because a hearing on summary judgment may

illuminate issues that affect the district court’s analysis of these

claims, we do not reach the merits of this argument.

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¶6 Finally, in its cross-appeal, Legacy argues that the district

court abused its discretion by denying its request for an award of

attorney fees under the UCSPA and the FDCPA. Both statutes

provide that a court “may award” attorney fees only if the court

makes certain findings. See Utah Code Ann. § 13-11-19(5)

(LexisNexis 2009); 15 U.S.C. § 1692k(a)(3) (2012). We review for

correctness the district court’s determination that the “legal

prerequisites for awarding attorney fees” were not met. Still

Standing Stable, LLC v. Allen, 2005 UT 46, ¶ 8, 122 P.3d 556. The

question of whether an action was brought in bad faith is a

question of fact, and we review the district court’s finding for clear

error. Id.

ANALYSIS

I. The District Court Erred by Not Holding a Hearing on the

Parties’ Summary Judgment Motions.

A. The Existence of a Potential Material Factual Issue

¶7 “Summary judgment is appropriate ‘if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show 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.’” Orvis v. Johnson, 2008 UT 2, ¶ 13,

177 P.3d 600 (quoting Utah R. Civ. P. 56(c)). In its order granting

Legacy’s motion for summary judgment and denying Plaintiffs’

motion for summary judgment, the district court stated that it is

“undisputed that all three plaintiffs parked their vehicles at 33rd

Street Station, but were not customers of 33rd Street Station.”

However, the court included a footnote to that statement in which

the court recognized “[t]here is an issue about whether parking

signs adequately informed individuals about which businesses

comprised 33rd Street Station.” The parties’ motions and

supporting affidavits confirm the existence of this factual issue.

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¶8 In its memorandum in support of its motion for summary

judgment, Legacy stated that it was undisputed that the “parking

stalls in 33rd Street Station are for customers of 33rd Street

Station.” To support this factual assertion, Legacy attached to its

memorandum the sworn declaration of Schafer Magana, president

of Legacy Towing, Inc., indicating that the parking stalls at the 33rd

Street Stationparking lot are reserved exclusively for the customers

of that shopping complex. Legacy also quoted in its memorandum

the exact language used on the numerous signs posted at the 33rd

Street Station parking lot on the night Legacy towed Plaintiffs’

vehicles. Legacy attached photographs of those signs that clearly

read:

33RD St. Station PARKING ONLY

Violators will be TOWED at owners expense.

TOWING ENFORCED by Legacy Towing, Inc.

¶9 In their collective memorandum opposing Legacy’s motion

for summary judgment and supporting their collective motion for

summary judgment, Plaintiffs responded to Legacy’s factual

assertions regarding the sign by stating that “it was unclear from

the signs and the surrounding area which businesses comprise

‘33rd Street Station.’” This factual issue is potentially material to

Legacy’s motion for summary judgment on Plaintiffs’ second cause

of action—Plaintiffs’ claim that Legacy’s conduct in placing

ambiguous signage “insufficient to warn customers what areas of

the parking lot service which surrounding buildings” was

unconscionable.2

2. In its motion for summary judgment, Legacy addressed

Plaintiffs’ claim that the fees Legacy charged violated the UCSPA

but did not address the other claims alleged in Plaintiffs’ second

cause of action. Thus, this factual issue was not material to the legal

arguments Legacy actually made in its motion for summary

judgment, but it may be material to Plaintiffs’ claim that Legacy

acted unconscionably.

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¶10 Each of the Plaintiffs attached to the summary judgment

memorandum sworn declarations supporting the response to

Legacy’s motion for summary judgment, stating that “the signage

posted did not explain which businesses were part of the complex.”

“[I]t only takes one sworn statement under oath to dispute the

averments on the other side of the controversy and create an issue

of fact.” Draper City v. Estate of Bernardo, 888 P.2d 1097, 1101 (Utah

1995) (citation and internal quotation marks omitted); accord

Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶ 32, 116 P.3d 323. The

district court observed that there was a genuine factual issue as to

whether the signage at the 33rd Street Station adequately notified

individuals parking therewhichbusinesses inthis busy commercial

area comprised that shopping complex. Yet “the mere existence of

issues of fact does not preclude summary judgment. The issues of

fact must be material to the applicable rule of law.” Norton v.

Blackham, 669 P.2d 857, 859 (Utah 1983). Thus, our inquiry would

normally turn to the question of whether the factual issue

concerning the adequacy of the signage was material to the

governing law in this case. However, for the reasons discussed

below, we are unable to reach this step of the analysis.

¶11 After recognizing that “[t]here is an issue about whether

parking signs adequately informed individuals about which

businesses comprised 33rd Street Station,” the district court stated

that “the plaintiffs acknowledge that this dispute is not material.”

However, the court provided no additional explanation or analysis

as to the materiality of the signage issue. Rather, it appears the

court based its materiality determination entirely upon assertions

made by Plaintiffs in their summary judgment memorandum.

¶12 While it is true that Plaintiffs asserted in their summary

judgment memorandum that the signage issue was not material,

they argue that their concession was in reference to their own

motion for summary judgment and not Legacy’s motion. “In

context,” argue Plaintiffs, “the district court should have

understood [Plaintiffs’] argument to be that those material facts

presented by [Legacy], though disputed, were not material to

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[Plaintiffs’] motion for summary judgment because [Plaintiffs]

contended that, even were the tow reasonable, they still were

entitled to prevail due to the towing companies charging an illegal

amount, valid tow or not.”Plaintiffsmaintain that the signage issue

was indeed material to Legacy’s motion for summary judgment

because that issue was directly related to the “claimed justification

for the tow” and whether Legacy acted unconscionably in placing

ambiguous signs in the lot in violation of the UCSPA.

¶13 Plaintiffs’ position is consistent with this court’s explanation

that summary judgment “cross-motions may be viewed as

involving a contention by each movant that no genuine issue of fact

exists under the theory it advances, but not as a concession that no

dispute remains under the theory advanced by its adversary.”

Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah Ct. App.

1989). “In effect, each cross-movant implicitly contends that it is

entitled to judgment as a matter of law, but that if the court

determines otherwise, factual disputes exist which preclude

judgment as a matter of law in favor of the other side.” Id.

Similarly, the Utah Supreme Court has explained that a district

court “must recognize that a party’s claim that there are no issues

of fact relates to that party’s theory of the case and should not be

construed as support for the adversary’s argument or motion.”

Newman v. White Water Whirlpool, 2008 UT 79, ¶ 15, 197 P.3d 654

(citation and internal quotation marks omitted). 

¶14 Legacy argues that Plaintiffs bore the responsibility of

clearly setting forth which facts they claimed to be material to each

party’s motion for summary judgment and of showing that there

was a genuine factual issue for trial. Legacy contends that a “court

is not supposed to rewrite a party’s responses to statements of facts

or make out a better argument on that party’s behalf than the party

itself made.” Legacy’s argument on this point is not without some 3

3. Legacy also argues that Plaintiffs’ “representations that the facts

regarding the signage were ‘not material’ . . . constitute invited

(continued...)

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force; however, Plaintiffs are correct in their contention that the

district court should not have relied on their purported concession

as to materiality in ruling on summary judgment, as discussed

3. (...continued)

error.” We disagree. The invited error doctrine “arises from the

principle that a party cannot take advantage of an error committed

at trial when that party led the trial court into committing the

error.” Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366 (citation and

internal quotation marks omitted). “By precluding appellate

review, the doctrine furthers this principle by discouraging parties

from intentionally misleading the trial court so as to preserve a

hidden ground for reversal on appeal.” Id. (citation and internal

quotation marks omitted). The invited-error doctrine encourages

counsel to “actively participate in all proceedings and to raise any

possible error at the time of its occurrence” so as to “fortif[y] our

long-established policy that the trial court should have the first

opportunity to address a claim of error.” Id. (alteration added)

(citation and internal quotation marks omitted). 

The record clearly indicates that Plaintiffs both actively

participated, or at least sought to actively participate, in all

proceedings and sought to bring the existence of the error to the

district court’s attention at the time of its occurrence. First,

consistent with our holding in this opinion, it is likely that the

apparent misunderstanding that led to the court’s error could have

been avoided had the court held a hearing as contemplated by our

rules as discussed below. Second, upon receiving the district

court’s order denying their motion for summary judgment and

granting summary judgment to Legacy, Plaintiffs discovered the

claimederror committed by the district court and attempted to give

the court the “first opportunity to address [the] claim of error” by

filing a motion for reconsideration pursuant to rules 52 and 59 of

the Utah Rules of Civil Procedure. See id. (citation and internal

quotation marks omitted). Plaintiffs specifically addressed the

materiality of the signage issue in this motion. Accordingly,

Plaintiffsdid not lead the district court into committing the claimed

error and the doctrine of invited error does not apply.

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below. See infra ¶¶ 17–18. Moreover, it is likely that much of the

confusion surrounding whether the signage dispute was material

could have been avoided had the district court held a hearing after

receiving the parties’ motions for summary judgment, especially

where Plaintiffs expressly requested a hearing.

B. Rule 7 and the District Court’s Denial of Plaintiffs’ Request

for a Hearing

¶15 Rule 7 of the Utah Rules of Civil Procedure instructs that the

“court shall grant a request for a hearing on a motion under Rule 56

or a motion that would dispose of the action or any claim or

defense in the action unless the court finds that the motion or

opposition to the motion is frivolous or the issue has been

authoritatively decided.” Utah R. Civ. P. (7)(e) (emphasis added).

Thus, the district court is required to hold a hearing on a summary

judgment motion unless it determines that the motion or

opposition is frivolous or that the issues have been authoritatively

decided. See Price v. Armour, 949 P.2d 1251, 1255 (Utah 1997)

(explaining that the near-identical language of a predecessor rule

under the Utah Code of Judicial Administration “clearly required

that the [district] court grant [a party’s] request for a hearing unless

either of the two exceptions applied”). However, if we determine

that the district court’s failure to hold a hearing was error, “[f]or

such error to compel reversal of the [district] court’s substantive

ruling, . . . it must have been prejudicial. If the error was harmless,

that is, if the error was sufficiently inconsequential that there is no

reasonable likelihood that it affected the outcome of the case, then

a reversal is not in order.” Id.

¶16 In its order, the court recognized that Plaintiffs had

“requested a hearing on their [m]otion.” Notwithstanding that

request, the court ruled on the summary judgment motions

without a hearing because the court determined that “the material

facts in this case [were] undisputed and the parties’ written

submissions [had] adequately apprisedthe court of their respective

legal positions.” Nothing in this statement indicates that the court

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found the issues raised by the parties to be frivolous. Indeed, in

rejecting Legacy’s claim for attorney fees, the court stated that it

could not “find based on the record before it that [Plaintiffs’] action

was without basis or brought in bad faith or for improper

purposes.” Nor does the court’s statement explain whether it

considered the issues in this case to have been “authoritatively

decided.” Though one might infer from the court’s analysis of

Plaintiffs’ claims that the court considered some of those issues to

have been authoritatively decided, the court did not clearly find

that the factual issue concerning the adequacy of the signage and

whether this issue was material, to have been authoritatively

decided. The court’s only analysis of this issue is contained in a

footnote in the court’s order, and the court’s determination

apparently relied entirely upon one party’s purported concession

that the issue was not material. Likewise, nothing in the court’s

order denying Plaintiffs’ request for reconsideration indicates that

the court had specificallyconsidered the signage issue and whether

that issue was material to have been authoritatively decided.

¶17 Upon identifying the signage issue, the court should have

made an independent determination as to whether that factual

issue was material. As our supreme court has instructed, “[t]he

[district] court is obligated to ascertain whether either party’s

request for judgment as a matter of law should be granted.”

Newman, 2008 UT 79, ¶ 15 (alteration in original) (citation and

internal quotation marks omitted). “In other words, simply because

a party claims there are no disputed factual issues,”—or, as a

corollary, a party’s concession that a factual issue is not

material—“does not relieve the [district] court of its obligation to

determine whether the issue is actually proper for summary

judgment.” Id. Had the court held a hearing, the parties may have

helped the court better understand their positions on all key issues,

such as whether the signage issue was material, along with the

supporting facts and legal authority for those positions. A hearing

would have also aided the court and the parties by allowing both

parties to hear and respond to the arguments of the opposing side.

Thus, in a case like this, where the district court was presented with

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multiple claims and competing motions for summary judgment, a

hearing could have assisted the court in understanding the parties’

arguments and avoiding the type of misunderstanding apparent

here. And given our identification of a potentially material factual

issue above, see supra ¶¶ 10–14, there is a reasonable likelihood that

a hearing would have affected the district court’s resolution of the

parties’ summary judgment motions.

¶18 Therefore, even though the question of whether summary

judgment was ultimately appropriate presents a question of law,

which we review for correctness, Orvis v. Johnson, 2008 UT 2, ¶ 6,

177 P.3d 600, we are currently not in the best position to determine

whether the signage issue was material. We simply do not have the

benefit of the parties’ complete arguments or the court’s response

to those arguments. Under these circumstances, we must conclude

that there is a “reasonable likelihood” that the district court’s

failure to hold a hearing “affected the outcome of [this] case.” See

Price, 949 P.2d at 1255. We therefore reverse the district court’s

summary judgment ruling and remand with instructions to hold a

hearing or to enterfindings demonstrating that all issues raised by

the parties have been authoritatively decided under Utah law,

consistent with rule 7(e). If, upon holding such a hearing or

entering appropriate findings,the district court determines that the

signage issue is material, the court must allow this case to proceed

to trial. See Orvis, 2008 UT 2, ¶ 6. Because any action the court takes

on remand may alter the context in which Plaintiffs’ other claims

have been presented to us on appeal, we decline to address those

claims.

II. The District Court Did Not Abuse its Discretion by Denying

Legacy’s Request for Attorney Fees.

¶19 After the district court entered its summary judgment

ruling, Legacy filed a motion requesting that the court award it

attorney fees. Legacy argued before the district court and on appeal

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that it is entitled to receive its attorney fees under both the UCSPA

and the FDCPA.4

¶20 The UCSPA provides that the district court “may award”

reasonable attorney fees to the defendant in a UCSPA claim if “the

consumer complaining of the act or practice that violates this

chapter has brought or maintained an action he knew to be

groundless.” Utah Code Ann. § 13-11-19(5) (LexisNexis 2009).

Similarly, the FDCPA provides that “[o]n a finding by the court

that an action under this section was brought in bad faith and for

the purpose of harassment, the court may award to the defendant

attorney’s fees reasonable in relation to the work expended and

costs.” 15 U.S.C. § 1692k(a)(3) (2012).

¶21 In denying Legacy’s request, the district court concluded

that even though it had ruled against Plaintiffs on their UCSPA and

FDCPA claims, the court could not “find based on the record

before it that their action was without basis or brought in bad faith

or for improper purposes.” “When challenging a district court’s

findings of fact, the challenging party must show that the evidence,

viewed in a light most favorable to the [district] court, is legally

insufficient to support the contested finding.” Blum v. Dahl, 2012

UT App 198, ¶ 5, 283 P.3d 963 (alteration in original) (citation and

internal quotation marks omitted).Legacy has not done so. Instead,

4. Our reversal of the district court’s summary judgment ruling

would also require us to vacate the district court’s ruling on

attorney fees if Legacy’s request were based on its status as the

prevailing party. See John Holmes Constr., Inc. v. R.A. McKell

Excavating, Inc., 2005 UT 83, ¶ 17, 131 P.3d 199. However, because

Legacy’s request is grounded in the theory that Plaintiffs’ claims

were brought in bad faith at their inception, the district court’s

summary judgment ruling does not affect that determination and

we may review the district court’s attorney-fees decision without

first remanding for the district court to reconsider the parties’

motions for summary judgment. The district court is free to

reconcile this issue in light of any further proceedings.

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Legacy merely identifies the evidence it believes demonstrates bad

faith on the part of Plaintiffs and Plaintiffs’ knowledge that their

claims were groundless, and asserts that the district court should

have found in Legacy’s favor. Legacy does not undertake to

demonstrate a lack of evidentiary support for the district court’s

findings and Legacy has thereby failed to show that the district

court clearly erred in this respect. We therefore conclude that the

district court did not err in denying Legacy’s request for attorney

fees. 

CONCLUSION

¶22 We reverse the district court’s order granting Legacy’s

motion for summary judgment and denying Plaintiffs’ motion for

summary judgment. We remand this case to the district court so

that the court may determine whether to hold a hearing and

thereby determine whether the factual issue concerning the

adequacy of the signage at the 33rd Street Station on the night that

Legacy towed Plaintiffs’ vehicles is material to the applicable law

governing this case. Should the court determine that the signage

issue is material, the court must then allow this case to proceed, as

appropriate, and reevaluate any other claims or issues possibly

affected by that determination. We affirm the district court’s denial

of Legacy’s motion requesting attorney fees.

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