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This matter was previously stayed in order to allow the district court to resolve

Defendants’ motion for relief under rule 60(b) of the Utah Rules of Civil Procedure.

IN THE UTAH COURT OF APPEALS

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Monavie, LLC,

Plaintiff and Appellee,

v.

Spencer Iverson and Floyd Williams,

Defendants and Appellants.

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PER CURIAM DECISION

Case No. 20110522‐CA

F I L E D

(May 10, 2012)

   2012 UT App 141

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Third District, Salt Lake Department, 110904113

The Honorable Tyrone E. Medley

Attorneys: Spencer Iverson, Atlanta, Georgia, Appellant Pro Se

Floyd Williams, Atlanta, Georgia, Appellant Pro Se

Graden P. Jackson and William B. Ingram, Salt Lake City, for Appellee

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Before Judges Orme, Thorne, and Roth.

¶1 Defendants Spencer Iverson and Floyd Williams appeal the district court’s June

22, 2011 order granting Monavie, LLC’s motion for summary judgment and motion to

dismiss their counterclaims.  This matter is before the court on Monavie’s motion for

summary disposition on the basis that the grounds for review are so insubstantial as not

to merit further proceedings and consideration by the court.1
20110552‐CA 2

¶2 The sole issue raised by Defendants in their docketing statement was whether

the district court erred in granting Monavie’s motion for summary judgment when

there remained disputed issues of material fact.  When a summary judgment motion is

properly supported under the rules, “an adverse party may not rest upon the mere

allegations or denials of the pleadings, but the response . . . must set forth specific facts

showing that there is a genuine issue for trial.”  Utah R. Civ. P. 56(e).  Further, “[e]ach

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).

If a party fails to respond to the motion, then judgment “shall be entered against a

party,” if appropriate.  Id. R. 56(e).  Thus, the party opposing the motion bears the

burden of establishing a factual dispute to overcome summary judgment.  Because

Defendants did not file a timely response to the motion for summary judgment, the

asserted facts were deemed admitted and are the operative facts of the case.  See id.

R. 7(c)(3)(A).

¶3 Furthermore, Defendants failed to preserve any argument that the district court

should have reconsidered its ruling after Defendants filed their untimely opposition to

the motion.  See State v. Nelson‐Waggoner, 2004 UT 29, ¶ 16, 94 P.3d 186 (“Under

ordinary circumstances, we will not consider an issue brought for the first time on

appeal unless the trial court committed plain error or exceptional circumstances exist.”).

Specifically, Defendants did not file a motion with the district court to accept their

untimely opposition memorandum, nor did they object to the proposed order

submitted by Monavie.  Thus, Defendants failed to preserve any arguments that the

district court should have considered the material set forth in their opposition to the

motion for summary judgment.

¶4 Finally, Defendants argue that they did raise these arguments with the district

court in a motion for relief from judgment under rule 60 of the Utah Rules of Civil

Procedure.  However, any issues dealing with the district court’s decision on

Defendants’ rule 60(b) motion are not properly before this court.  A ruling on a rule

60(b) motion culminates in a separate, appealable order, and thus, may not be combined

with a direct appeal of the judgment.  See Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950,
20110552‐CA 3

970 (Utah Ct. App. 1989).  Therefore, any issues relating to the district court’s ruling on

Defendants’ rule 60(b) motion must be raised in a separate appeal.

¶5 Accordingly, we affirm.

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge

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Stephen L. Roth, Judge