2013 UT App 48

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

J AY J ENSEN ; E LEANOR J ENSEN ; C HARLES W ARD ; K ARMA W ARD ;

L AYNE B ARNES ; AND G AS B USTERS

, LLC,

Plaintiffs and Appellants,

v.

S KYPARK L ANDOWNERS A SSOCIATION

,

Defendant and Appellee.

Per Curiam Decision

No. 20110756

‐ CA

Filed February 22, 2013

Second District, Farmington Department

The Honorable Thomas L. Kay

No. 080700167

Jerrald D. Conder, Attorney for Appellant

Donald J. Winder and John W. Holt, Attorneys for Appellee

Before J UDGES O RME

, T HORNE

, and R OTH

.

PER CURIAM:

¶1 Plaintiffs (collectively Jensen) appeal the entry of judgment

in favor of Skypark Landowners Association (Skypark). Specifi

‐ cally, they challenge the trial court’s grant of summary judgment

in favor of Skypark, the denial of Jensen’s motion for partial

summary judgment, and the award of attorney fees incurred in the

action. We affirm.

¶2 Jensen asserts that the trial court erred in granting summary

judgment in favor of Skypark because there were genuine issues of

material fact. We review a grant of summary judgment forJensen v. Skypark Landowners

20110756

‐ CA 2013 UT App 48 2 correctness. See Eldridge v. Farnsworth

, 2007 UT App 243, ¶ 18, 166

P.3d 639. A motion for summary judgment must be supported with

specific material facts as to which the moving party contends no

genuine issue exists, and each fact must be supported with a

citation to relevant materials. See Utah R. Civ. P. 7(c)(3)(A). For

each fact that is controverted, the party opposing the motion must

explain the grounds for dispute and support such dispute with

citations to relevant materials. See id. R. 7(c)(3)(B). “Each fact set

forth in the moving party’s memorandum is deemed admitted for

the purpose of summary judgment unless controverted by the

responding party.” Id. R. 7(c)(3)(A). Additionally, summary

judgment is not precluded whenever some fact may be disputed,

but “only when a material fact is genuinely controverted.” Heglar

Ranch, Inc. v. Stillman

, 619 P.2d 1390, 1391 (Utah 1980).

¶3 The trial court determined that Jensen did not raise an issue

of material fact sufficient to preclude summary judgment. We

agree. In response to Skypark’s motion, Jensen filed an opposition

that did not controvert most of the facts asserted. Accordingly,

those facts were deemed admitted. Additionally, the facts that were

specifically listed were largely not controverted, but rather were

explicitly admitted. For example, one of the specifically listed facts

provided, “Plaintiffs do not dispute that Articles of Incorporation

of [Skypark] were filed on November 10, 1998 but dispute the

validity of said Articles as legally creating the Property Owners

Association contemplated and as set forth in the 1979 Declara

‐

tions.” Despite the extra verbiage, the actual fact asserted by

Skypark is admitted.

¶4 Furthermore, after review of the proceedings, it is apparent

that the “dispute” asserted in response was not an issue properly

before the trial court in the summary judgment posture. Skypark

moved for summary judgment seeking dismissal of the claims

asserted in the amended complaint. Those were the only claims

before the court for disposition. The matter of whether Skypark

was a valid organization formed under the governing 1979

Declarations was not a claim in the amended complaint but wasJensen v. Skypark Landowners

1. In the response to Skypark’s summary judgment motion, Jensen

acknowledged that the 1979 Declarations were valid and

enforceable. The complaint was premised on an assertion that the

declarations were not valid. When that point was conceded, Jensen

tried a new tack, challenging instead the organization of Skypark.

2. The main thrust of Jensen’s response to the motion for summary

judgment was in fact an assertion of a new claim that although the

1979 Declarations governing the development were valid, Skypark

was not properly incorporated under those declarations and, thus,

it could not assess landowners for maintenance fees. Jensen also

filed a motion to amend the complaint to include the claim that

Skypark was not the proper entity formed under the Declarations,

understanding that the claim was not then at issue. The trial court

denied the motion to amend. Jensen has not challenged the denial

of the motion to amend. As a result, the issue of Skypark’s validity

as an organization is not within the scope of this appeal.

3. Jensen argues that the amounts of the assessments owed were

sufficiently disputed. However, for two plaintiffs’ assessments, the

response asserted new claims that were not sufficient to create an

issue of fact. On a motion for new trial, the other plaintiff obtained

an evidentiary hearing to challenge the amount because the

disputed fact was supported by documents showing some

(continued...)

20110756

‐ CA 2013 UT App 48 3 raised for the first time in response to the summary judgment

motion. 1 Accordingly, the issue was not relevant to the matters on

summary judgment and thus did not raise any material factual

dispute regarding the claims before the trial court. 2 See Eldridge

,

2007 UT App 243, ¶ 33. The trial court correctly declined to

consider claims raised for the first time in response to a summary

judgment motion. See, e.g., id. ¶ 40. Many of the other facts listed as

disputed depend on similar challenges to the validity of Skypark

and, therefore, also fail to establish a material issue of fact. Overall,

Jensen did not raise an issue of fact sufficient to preclude summary

judgment. 3Jensen v. Skypark Landowners

3. (...continued)

payments made. Thus, relief on that narrow issue was granted and

that particular defect cured.

4. Jensen asserts that the arguments raised in the motion for

summary judgment had not been determined by the court.

However, the arguments pertained to no pending claims because

(continued...)

20110756

‐ CA 2013 UT App 48 4 ¶5 On appeal, Jensen argues that the motion for summary

judgment did not comply with rule 56 of the Utah Rules of Civil

Procedure. However, Jensen did not raise any technical deficiency

in response to the motion but asserted the argument for the first

time in a motion for new trial. After hearing, the trial court denied

the motion with one narrow exception, permitting Jay and Eleanor

Jensen to challenge the amount of the assessment on their property.

The denial of the motion for new trial has not been challenged on

appeal. As a result, the issues raised therein are not within the

scope of this appeal, and we do not address them. In sum, the trial

court did not err in determining that no material issue of fact was

established and that Skypark was entitled to judgment as a matter

of law.

¶6 Next, Jensen argues that the trial court erred in denying a

motion for partial summary judgment on three wrongful lien

claims after the entry of summary judgment dismissing the

remaining causes of action. After permitting yet another hearing on

the matter, the trial court clarified that all claims including the

wrongful lien claims were fully disposed of when the court entered

its order in January 2011 granting summary judgment in Skypark’s

favor. Although Jensen asserts that the January order was not

sufficiently clear, the order and the attached bench ruling establish

that no claim survived Skypark’s motion for summary judgment.

Skypark’s motion sought the dismissal of all claims and the motion

was granted without reservation. Accordingly, the trial court did

not err in denying Jensen’s later motion for summary judgment

because there was no claim pending for further consideration. 4Jensen v. Skypark Landowners

4. (...continued)

the entire complaint had been dismissed. Furthermore, to the

extent that Jensen now argues that the January 2011 order granting

summary judgment was vague and ambiguous, those arguments

are waived because there was no objection to the form of order. See

438 Main St. v. Easy Heat, Inc.

, 2004 UT 72, ¶ 51, 99 P.3d 801.

5. To the extent Jensen has raised other arguments, we have

determined them to be without merit and do not address them

further. See State v. Carter

, 776 P.2d 886, 888 (Utah 1989).

20110756

‐ CA 2013 UT App 48 5 ¶7 Finally, Jensen argues that the trial court erred in awarding

attorney fees. Jensen acknowledges that there is a contractual basis

for awarding fees but asserts that the fee provision applies only to

fees incurred in lien foreclosure actions. Jensen’s conclusory

assertion that attorney fees may be assessed only for lien foreclo

‐

sure is not sufficient to persuade this court that attorney fees are

not contractually allowed in this case. Jensen undertakes no

analysis of the whole of the provision to show that attorney fees are

limited to such a narrow circumstance, particularly in light of

language that appears to permit suits in law or equity to enforce

payment of liens. In appeals, the burden of persuasion falls

squarely on an appellant, in this case Jensen. See State v. Robison

,

2006 UT 65, ¶ 21, 147 P.3d 448. Jensen has not carried this burden.

Accordingly, we affirm the trial court’s award of attorney fees in

favor of Skypark.

¶8 Affirmed. 5