Fisher v. Davidhizar
263 P.3d 440
Utah Ct. App.2011Background
- Fisher and Coder owned OMC; Davidhizar contributed $100,000 in 2001 to finance two tables and later claimed a partnership interest.
- OMC disputed Davidhizar's partnership claim; a February 2002 meeting addressed interests in the tables.
- Davidhizar signed a settlement (Agreement) transferring OMC and assets to him in exchange for assuming debt and obligations, yet breached the Agreement nine days later.
- Davidhizar later formed a new company using an OMC table and OMC sued for breach of contract.
- Davidhizar asserted negligent misrepresentation and fraud as a defense and counterclaims; multiple summary judgment motions followed.
- Before trial, the court granted an in limine order dismissing fraud claims for lack of particularity, and later denied amendments; bench trial for damages occurred, resulting in a damages judgment against Davidhizar; both parties appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 15(b) applicability to fraud claims | Davidhizar’s fraud claims were litigated despite pleading deficiencies. | OMC did not object earlier; claims were not properly pled. | Rule 15(b) applied; fraud claims treated as pleaded; reversal of dismissal. |
| Summary judgment on fraud claims | Sufficient evidence to show fraud by clear and convincing standard. | Evidence conflicts; not appropriate for summary judgment. | Trial court correctly denied summary judgment; issues of fact remained. |
| Court's handling of opposition memorandum | Memorandum should be considered despite timing. | Discretionary to strike or accept late filing. | Court did not abuse discretion in considering the memorandum. |
| Opinion vs. fact/credibility weighing at summary judgment | Undisputed facts show fraud by clear and convincing evidence. | Summary judgment must avoid weighing credibility. | Conflict in evidence cannot be weighed at summary judgment; genuine issues remained. |
Key Cases Cited
- Ward v. Intermountain Farmers Ass'n, 907 P.2d 264 (Utah 1995) (rule 15(b) applies to fraud claims adjudicated at summary judgment stage)
- Armed Forces Ins. Exch. v. Harrison, 70 P.3d 35 (Utah 2003) (treating issues raised by the pleadings when suit proceeds)
- IHC Health Servs., Inc. v. D & K Mgmt., Inc., 196 P.3d 588 (Utah 2008) (court cannot weigh conflicting evidence on summary judgment)
- Orvis v. Johnson, 177 P.3d 600 (Utah 2008) (summary judgment standard and burden on movant)
- Giusti v. Sterling Wentworth Corp., 201 P.3d 966 (Utah 2009) (fraud claims must be proven by clear and convincing evidence)