Koerber v. Mismash, 359 P.3d 701

Background

In Aug. 2010 Koerber and Skousen (Tenants) leased a house from Nancy Mismash (Landlord); disputes arose over unpaid utilities, uncompleted repairs, mold, and other alleged breaches.
Tenants sent a July 9, 2011 letter asserting offsets against rent for unpaid utilities and repairs; Landlord posted a notice to quit three days later and filed an unlawful detainer action as a counterclaim after Tenants sued under the Fit Premises Act.
At an immediate-occupancy hearing the court allowed Tenants to remain only if they posted bond and deposited $2,000 monthly with the court; Tenants later vacated, stopped deposits, and the case stalled.
Landlord moved for summary judgment in May 2012; Tenants disputed service and did not file a written opposition but attempted to present evidence orally at the hearing. The district court granted summary judgment to Landlord and entered a large money judgment including trebled rents and fees.
On appeal the Utah Court of Appeals affirmed summary judgment except it found the unlawful detainer summons defective (typed endorsement rather than handwritten), vacated portions of the judgment tied to the unlawful detainer statute, and remanded for amendment of the judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether SJ was improper because Tenants were not properly served and were pro se	Tenants: they were not served by email as required and mail address was incorrect; as pro se litigants they should have reasonable indulgence	Landlord: motion was served (mail and email), Tenants had notice and opportunity to respond	Court: No clear error in finding Tenants had notice; denial of indulgence for pro se status affirmed
Whether failure to file written opposition alone can justify SJ under Utah R. Civ. P. 7/56	Tenants: court must review the whole record and cannot grant SJ solely for lack of opposition	Landlord: rule 7 deems moving party facts admitted absent controversion; Landlord entitled to judgment as matter of law	Court: Lack of opposition permitted reliance on moving facts; Tenants failed to identify a genuine material fact; SJ proper
Whether the unlawful detainer summons was validly endorsed (personal jurisdiction/authority under unlawful detainer statute)	Tenants: summons endorsement was typed, not handwritten, so UD statute not invoked and relief void	Landlord: Tenants waived jurisdictional defects by appearing and defending	Court: Appearance waived general personal jurisdiction defense but not insufficiency of process; handwritten endorsement requirement not met; portions of judgment under UD statute vacated and remanded
Whether Tenants were denied due process and whether district court abused discretion denying reconsideration (Rule 54(b))	Tenants: delayed hearings, summary immediate-occupancy hearing, bond and utility orders deprived them of statutory protections and a fair hearing; sought reconsideration	Landlord: procedures were fair; Tenants had opportunity to be heard and failed to respond; reconsideration not warranted	Court: Tenants had opportunity but failed to respond; no reversible due process remedy shown; denial of reconsideration not an abuse of discretion

Key Cases Cited

Bodell Constr. Co. v. Robbins, 215 P.3d 933 (Utah 2009) (standard of review for summary judgment)
ProMax Dev. Corp. v. Mattson, 943 P.2d 247 (Utah Ct. App. 1997) (factual findings reviewed for clear error)
Parkside Salt Lake Corp. v. Insure-Rite, Inc., 37 P.3d 1202 (Utah Ct. App. 2001) (summons endorsement must be handwritten; strict compliance required)
Frisbee v. K&K Constr. Co., 676 P.2d 387 (Utah 1984) (moving party must be entitled to judgment as matter of law when opponent files no opposition)
McLaughlin v. Schenk, 299 P.3d 1139 (Utah 2013) (standards for reconsideration under Rule 54(b))
Fowler v. Seiter, 838 P.2d 675 (Utah Ct. App. 1992) (insufficiency of process defense and its timing)
State v. Robison, 147 P.3d 448 (Utah 2006) (appellate review limited to the record on appeal)