Mojo Syndicate, Inc. v. Fredrickson
2013 UT App 6
| Utah Ct. App. | 2013Background
- Mojo Plaintiffs appeal a grant of summary judgment and an award of attorney fees to Fredrickson Defendants.
- The court has jurisdiction over the appeal despite objections from the Fredrickson Defendants; Rule 59 motion stayed the appeal period and was timely after entry on August 30, 2011.
- District court struck Mojo Plaintiffs’ first Rule 7(c)(3)(B) compliance, and their second response similarly failed to comply, leading to deemed undisputed facts.
- Material undisputed facts include: execution of an Asset Purchase Agreement for the bar’s assets, a Closing Memorandum credit of $40,000, termination of the bar lease, and relinquishment of the liquor license; the central disputed claim concerns partnership continuation not supported by the Agreement.
- Mojo Plaintiffs argued discovery was blocked and that oral modification might exist, but the court found discovery was not unduly delayed and the motion was not premature.
- The court ultimately affirmed summary judgment and awarded attorney fees and costs to Fredrickson Defendants, remanding for appellate costs and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to hear the appeal under Rule 59 | Mojo argues timing impeded; rule 59 tolls appeal. | Rule 59 motion timing not proper to toll appeal; no jurisdiction. | Appeal timely; jurisdiction proper. |
| Adequacy of Rule 7(c)(3)(B) opposition | Second response substantially complied with rule 7. | Second response failed to meet rule 7 requirements. | District court did not err in striking noncompliant opposition and deeming facts undisputed. |
| Propriety of summary judgment on undisputed facts | Disputed facts could exist via discovery; some terms unclear. | Agreement and conduct show sale of bar assets; no genuine disputes. | Summary judgment proper based on undisputed facts and contractual terms. |
| Attorney fees and costs award preservation | Fees may include tort claims and should be examined. | Only reasonableness of fees challenged; tort claim issue not preserved. | Affirmed award of attorney fees and costs on appeal; remanded for costs on appeal. |
Key Cases Cited
- Moon Lake Electric Association v. Ultrasystems Western Constructors, Inc., 767 P.2d 125 (Utah Ct. App. 1988) (tolls appeal when a timely Rule 59 motion is used to challenge a summary judgment)
- Jennings Inv., LLC v. Dixie Riding Club, Inc., 2009 UT App 119 (Utah Ct. App. 2009) (noncompliant Rule 7 response insufficient to create a genuine issue of material fact)
- Management Servs. Corp. v. Development Assoc., 617 P.2d 406 (Utah 1980) (contractual fees include on-appeal as well as at trial)