Case Information
*1 Before J UDGES O RME T HORNE R OTH .
PER CURIAM:
¶1 Plaintiffs (collectively Jensen) appeal entry judgment favor Landowners Association (Skypark). Specifi cally, they court’s grant favor Skypark, denial partial judgment, award attorney fees incurred action. We affirm. granting favor genuine issues of fact. We review grant v.
correctness. See Eldridge v. Farnsworth App 243, 18, 166 P.3d A summary judgment must be supported with specific material facts as which moving party contends no genuine exists, each fact must be supported with a citation relevant materials. See Utah R. Civ. P. 7(c)(3)(A). For each fact is controverted, party opposing must explain grounds dispute support such dispute with citations relevant materials. id. R. 7(c)(3)(B). “Each fact set forth moving party’s memorandum is deemed admitted purpose summary unless controverted responding party.” Id. R. 7(c)(3)(A). Additionally, is precluded whenever some fact may be disputed, but “only when material fact is genuinely controverted.” Heglar Ranch, Inc. Stillman P.2d 1390, (Utah 1980). ¶3 The court an issue fact preclude judgment. We agree. response motion, filed an opposition controvert most facts asserted. Accordingly, facts were deemed admitted. Additionally, facts were specifically listed were largely controverted, but rather were explicitly admitted. For example, one specifically listed facts provided, “Plaintiffs dispute Articles Incorporation [Skypark] were filed November but dispute validity said Articles as legally creating Property Owners Association contemplated set forth Declara tions.” Despite extra verbiage, actual asserted by is admitted. Furthermore, after review proceedings, it apparent “dispute” asserted properly before posture. Skypark moved seeking dismissal claims amended complaint. Those only claims before disposition. matter whether Skypark valid organization formed under governing Declarations amended was raised for the first time response to the motion. the issue was not relevant to the matters on thus not raise any material factual dispute regarding claims before the trial court. Eldridge App ¶ 33. The correctly declined to consider claims for first time response to a summary motion. See, e.g., id. 40. Many of other facts listed as disputed depend on similar challenges to validity of Skypark and, therefore, also fail to establish a issue fact. Overall, not an issue fact sufficient to preclude summary judgment.
1. response to Skypark’s motion, Jensen acknowledged Declarations were valid and enforceable. The complaint was premised an assertion the declarations were not valid. When point was conceded, Jensen tried a new tack, challenging instead organization Skypark. The main thrust response to motion was fact an assertion a new claim although the Declarations governing development were valid, Skypark was properly incorporated under declarations and, thus, it could assess landowners maintenance fees. also filed motion amend to include claim that proper entity formed under Declarations, understanding then at issue. court denied motion amend. challenged denial amend. As result, validity an organization within scope appeal. amounts assessments owed were sufficiently disputed. However, two plaintiffs’ assessments, new claims create an fact. On new trial, other plaintiff obtained evidentiary hearing amount disputed supported documents showing some
(continued...) *4 Jensen ¶5 On appeal, Jensen argues that the motion for judgment did not comply with rule the Utah Rules of Civil Procedure. However, any technical deficiency in motion the argument for the first time in motion for new trial. After hearing, trial court denied motion with one narrow exception, permitting Jay and Eleanor amount assessment on their property. denial motion for new trial been challenged on appeal. As result, issues raised therein are within the scope appeal, and we address them. sum, trial court err determining that no was established that was entitled judgment matter law. ¶6 Next, trial court denying a motion partial summary on three wrongful lien claims after entry summary dismissing remaining causes action. After permitting yet another hearing on matter, court clarified all claims including wrongful lien claims fully disposed when entered its order January granting summary Skypark’s favor. Although asserts January order was not sufficiently clear, order attached bench ruling establish no claim survived Skypark’s motion judgment. motion sought dismissal all claims motion granted without reservation. did err denying later no pending further consideration. (...continued) payments made. Thus, relief narrow granted and particular defect cured. arguments had been court. However, arguments pertained no pending claims because
(continued...) *5 Jensen v. Finally, Jensen argues that awarding
attorney fees. acknowledges that there is contractual basis
awarding fees fee provision applies only to
fees incurred lien foreclosure actions. conclusory
assertion attorney fees may be assessed only lien foreclo sure to persuade this attorney fees are
contractually allowed this case. undertakes no
analysis whole provision to show attorney fees are
limited to such narrow circumstance, particularly light of
language appears permit suits law or equity enforce
payment liens. appeals, burden persuasion falls
squarely appellant, this case Jensen.
See State v. Robison
¶8 Affirmed.
(...continued) entire had been dismissed. Furthermore, extent now January 2011 order granting vague ambiguous, arguments are waived no objection form order. See Main St. v. Easy Heat, Inc. 72, 51, P.3d 801. To extent other arguments, we have them be without merit address them further. State Carter P.2d (Utah 1989).