Tripp v. Zen Zone Homes

2026 UT App 69

THE UTAH COURT OF APPEALS

ZACHARY TRIPP,
Appellee,
v.
ZEN ZONE HOMES LLC,
Appellant.

Opinion
No. 20241175-CA
Filed April 30, 2026

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 230900697

Eric Boyd Vogeler, Chase A. Adams, and
R. Westin Garff, Attorneys for Appellant
Kevin B. Call, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

ORME, Judge:

¶1 Zen Zone Homes LLC (Zen Zone) challenges the district
court’s grant of summary judgment and award of attorney fees in
Zachary Tripp’s favor. Because none of the issues Zen Zone raises
are preserved for appeal, we affirm the district court’s rulings
without reaching their merits. And because Tripp is entitled to an
award of attorney fees reasonably incurred on appeal, we remand
the case to the district court to determine the amount of those fees.

BACKGROUND

¶2 Highly dissatisfied with the quality of the landscaping
project Zen Zone completed at his home, Tripp, through counsel,
sued Zen Zone for breach of contract and breach of warranty. The
Tripp v. Zen Zone Homes

complaint, which was filed in January 2023, alleged costs of “at
least $44,618.41 to repair the damage left behind by” Zen Zone.
The following month, Zen Zone’s managing principals, acting
without the representation of legal counsel, 1 timely filed a pro se
answer to the complaint. The district court then set the litigation
schedule. Tripp’s and Zen Zone’s initial disclosures were due in
March and April 2023, respectively; fact discovery was set to end
in October 2023; and expert discovery was set to be completed in
April 2024.

¶3 Thereafter, the litigation appears to have largely stalled.
There was no action in the suit until September 2023, when Tripp
served Zen Zone with his initial disclosures—some six months
past the deadline set by the district court. The date set for the close
of fact discovery then came and went without further action by
either party. In early March 2024, following several more months
of inactivity, the district court issued a notice of intent to dismiss
the case for lack of prosecution unless it received a written
statement within 20 days demonstrating good cause why the
matter should not be dismissed. The following week, Tripp
served Zen Zone with his expert witness disclosures. And a week
after that, Tripp filed an “Objection to Dismissal,” in which he
stated that he had filed his initial disclosures and his expert’s
report summary, and that he was waiting for expert discovery to
end the following month before acting further. The district court
took no action in response to the objection but also did not dismiss
the case.

¶4 The next activity in the case did not occur until September
2024, when Tripp moved for summary judgment. In his motion,
Tripp pointed to an attached declaration by his expert witness in
which the expert opined that Zen Zone failed to meet industry
standards when performing landscaping work on Tripp’s
property. The motion also included a declaration by Tripp stating

1. Corporate entities are not entitled to proceed pro se; they must
be represented by counsel. See Globe Contracting LLC v. Hour, 2025
UT App 98, ¶ 12 n.3, 575 P.3d 235.

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that the cost of repairing Zen Zone’s allegedly substandard work
was $44,618.41. Lastly, the motion noted that Zen Zone had “only
minimally engaged in the litigation process,” having filed just an
answer, and it highlighted that Zen Zone failed to provide initial
disclosures, designate expert witnesses, or otherwise participate
in discovery. Tripp argued that summary judgment was
appropriate because, pursuant to rule 26(d)(4) of the Utah Rules
of Civil Procedure, Zen Zone was precluded from presenting at
trial any evidence or witnesses that were not timely disclosed
during discovery and thus it could not present its case.

¶5 A little over a week later, Zen Zone, still unrepresented by
counsel, submitted a pro se filing that served the dual purpose of
opposing summary judgment and requesting a “new discovery
date.” The filing was poorly organized, with its various
arguments intermingled. It included a seemingly isolated
reference to rule 26(d)(4) that was immediately followed by a
statement that, to Zen Zone’s knowledge, it had “complied with
all requests received.” Zen Zone also stated that it did “not recall
missing the Discovery process” or “receiving Discovery from”
Tripp, and it requested an additional 30 days to conduct
discovery. Zen Zone denied Tripp’s assertion that it had not
meaningfully participated in the litigation, indicating that it had
filed an answer and “had numerous conversations with opposing
counsel.” Zen Zone also asserted that Tripp had “delayed this
case, on and off, for several years” and pointed to the court’s
earlier notice of intent to dismiss, stating that the course of the
litigation had “been confusing.” Zen Zone asserted that its request
to extend discovery was “reasonable . . . due to the circumstances
of extended time-lines and multiple attorneys for” Tripp. It
further argued that material disputes of fact existed and that it
“dispute[d] and rebut[ted] all claims made by [Tripp] and [his]
Expert Witness.”

¶6 Tripp filed a reply to Zen Zone’s opposition, arguing,
among other things, that the opposition was “insufficient” and
did not raise disputes of material fact because it failed to include
any supporting affidavits or other evidence. Tripp also argued

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that the request for an additional 30 days of discovery was
untimely because discovery had already closed several months
earlier. He also asserted that Zen Zone “slept on every single one
of its rights in this matter beyond the filing of an Answer, and
cannot reasonably complain about prejudice if [its] request for
more discovery is denied, especially since [Zen Zone] did not
participate in discovery in any fashion whatsoever during the
discovery period.” Notably, Tripp did not object to the pro se
nature of Zen Zone’s opposition. See supra note 1.

¶7 On October 24, 2024, in a two-sentence ruling, the district
court granted Tripp’s summary judgment motion “for all the
reasons set forth in the motion.” The court further noted that Zen
Zone’s “response to the motion was filed by a non attorney and
[Zen Zone] must be represented by an attorney.” On November
5, the court entered judgment in Tripp’s favor in the amount of
$44,618.41. The judgment stated that summary judgment had
previously been granted “for good cause stated and because [Zen
Zone] did not properly submit a response through an attorney.”
That same day, a notice of appearance of counsel on Zen Zone’s
behalf was filed. Zen Zone’s newly retained counsel filed a notice
of appeal three days later.

¶8 On December 3, 2024, Tripp filed a motion seeking attorney
fees pursuant to the governing contract. The court granted the
motion 10 days later, on December 13—four days short of Zen
Zone’s 14-day period to respond to the motion. See Utah R. Civ.
P. 7(d)(1). The court awarded Tripp $6,960 in attorney fees. Zen
Zone amended its notice of appeal to include the attorney fees
award but did not object to the award in the district court.

ISSUES AND STANDARD OF REVIEW

¶9 Zen Zone raises three issues on appeal. It argues that the
district court (1) erred in granting summary judgment because the
summary judgment motion and the expert witness’s evidence on
which it relied were both untimely, (2) violated due process by

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granting summary judgment without first allowing Zen Zone to
retain counsel, and (3) erred in granting Tripp’s motion for
attorney fees without first allowing Zen Zone to respond to the
motion. Ordinarily, we would review each of these issues for
correctness. See Penunuri v. Sundance Partners, Ltd., 2017 UT 54,
¶ 14, 423 P.3d 1150 (“Appellate courts review a district court’s
legal conclusions and ultimate grant or denial of summary
judgment for correctness[.]”) (quotation simplified); Salt Lake City
Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 47, 299 P.3d
990 (“Constitutional issues, including questions regarding due
process, are questions of law that we review for correctness.”)
(quotation simplified); In re G.C., 2025 UT App 182, ¶ 8, 583 P.3d
592 (“We review the application of our rules of civil procedure for
correctness.”) (quotation simplified), cert. denied, Apr. 14, 2026
(No. 20260048). But because none of these issues are preserved for
appeal, and because Zen Zone has not argued an exception to our
preservation rule, we have no occasion to reach the merits of these
arguments. See State v. Tolman, 2025 UT App 188, ¶ 15, 582 P.3d
1277, cert. denied, Apr. 7, 2026 (No. 20260210).

ANALYSIS

¶10 “Under our adversary system, the responsibility for
detecting error is on the party asserting it, not on the court.”
Patterson v. Patterson, 2011 UT 68, ¶ 16, 266 P.3d 828. Therefore,
appellate courts will not typically reach unpreserved issues
“absent a valid exception to preservation.” State v. Johnson, 2017
UT 76, ¶ 15, 416 P.3d 443. “An issue is preserved for appeal when
it has been presented to the district court in such a way that the
court has an opportunity to rule on it,” that is, when the issue was
“specifically raised by the party asserting error, in a timely
manner,” and “supported by evidence and relevant legal
authority.” Id. (quotation simplified). Also, we “view issues
narrowly and an issue is unpreserved when the appellant raises a
legal theory entirely distinct from the legal theory raised before
the district court.” State v. Winter, 2024 UT App 98, ¶ 12, 554 P.3d
355 (quotation simplified), cert. denied, 558 P.3d 88 (Utah 2024).

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¶11 Zen Zone asserts that all the issues it raised on appeal are
preserved. We disagree and address the preservation of each issue
in turn.

I. Motion for Summary Judgment

¶12 Zen Zone assails the district court’s grant of summary
judgment on two fronts. It argues that (A) summary judgment
was inappropriate because the motion for summary judgment
and the expert disclosures were both untimely and (B) the court
violated due process by disregarding Zen Zone’s pro se
opposition and not allowing it to cure its lack of counsel.

A. Timeliness

¶13 Zen Zone argues that Tripp filed the motion for summary
judgment several months past the procedural cutoff. Pursuant to
rule 56(b) of the Utah Rules of Civil Procedure, “[u]nless the court
orders otherwise, a party may file a motion for summary
judgment at any time no later than 28 days after the close of all
discovery.” And here, discovery closed, according to Zen Zone, in
October 2023, 2 but Tripp did not file his summary judgment
motion until nearly a year later, in September 2024. Similarly, Zen
Zone contends that Tripp failed to disclose his expert witness—
on whose opinion his summary judgment motion relied—within
14 days of the close of fact discovery, as required by rule
26(a)(4)(C) of the Utah Rules of Civil Procedure. But neither of
these issues was preserved below.

¶14 Zen Zone argues it “preserved the essence of its procedural
and substantive challenges” in its pro se opposition because it
generally opposed entry of summary judgment, asserted that
Tripp’s “supporting evidence [was] untimely, highlight[ed]

2. Although fact discovery did end in October 2023, Zen Zone
overlooks that expert discovery was not set to close until April
2024. Regardless, the summary judgment motion was filed well
over 28 days past either date.

20241175-CA 6 2026 UT App 69
Tripp v. Zen Zone Homes

disputes of fact, and explicitly request[ed] additional time to
conduct discovery.” More specifically, Zen Zone asserts it “put
the court on notice of the lateness of Tripp’s disclosures and
motion, and it invoked Rule 56(d)[ 3] by pleading for a chance to
gather and present evidence if the court felt more was needed.”

¶15 But as discussed above, to preserve an issue for appeal,
“the issue must be specifically raised by the party asserting error,
in a timely manner, and must be supported by evidence and
relevant legal authority.” State v. Johnson, 2017 UT 76, ¶ 15, 416
P.3d 443 (quotation simplified). Even if the district court
considered Zen Zone’s pro se opposition, see supra note 1; infra
¶ 18, it was insufficient to preserve the issues Zen Zone raises on
appeal. As an initial matter, Zen Zone’s opposition to summary
judgment was largely based on the existence of alleged disputes
of material fact. But the issues currently before us on appeal
constitute entirely new theories—as opposed to new arguments—
as to why summary judgment was entered in error. See id. ¶ 14
n.2. To be preserved, the district court must have been afforded
an opportunity to rule on those issues, which the district court in
this case was not. See id. ¶ 15; Winn v. McKinlay, 2025 UT App 16,
¶ 39, 565 P.3d 101 (“When it is clear that an appellant is raising an
entirely new legal theory on appeal, we may simply apply the
preservation rule and decline to address the newly raised issue.”).

¶16 Although the pro se opposition referenced the district
court’s prior notice of intent to dismiss for inaction and asserted
that Tripp had “delayed this case, on and off, for several years,”
this was insufficient to alert the court that the motion for summary
judgment itself was untimely: Zen Zone neither cited rule 56(b)
nor otherwise assailed the motion on timeliness grounds. The
same is true for Tripp’s alleged failure to timely disclose his expert

3. Rule 56(d)(2) of the Utah Rules of Civil Procedure provides that
“[i]f a nonmoving party shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may,” among other things, “allow time to
obtain affidavits or declarations or to take discovery.”

20241175-CA 7 2026 UT App 69
Tripp v. Zen Zone Homes

witness: the opposition did not cite rule 26(a)(4)(C) or otherwise
suggest that Tripp’s expert disclosures were in any way
improper. 4 Rather, the opposition’s focus was on excusing Zen
Zone’s own failure to provide its disclosures and requesting
additional time to conduct discovery. Accordingly, neither issue
was “specifically raised” nor “supported by evidence and
relevant legal authority,” and thus, neither issue was preserved
for appeal. Johnson, 2017 UT 76, ¶ 15 (quotation simplified).

¶17 Zen Zone alternatively argues, for the first time in its reply
brief, that “the preservation rule does not bar review of the trial
court’s errors.” Seemingly referencing the plain error and
exceptional circumstances exceptions to the preservation rule,
Zen Zone asserts that “the trial court’s errors were plain on the
face of the record” and that “failure to address [the errors] would
result in manifest injustice.” But because Zen Zone did not invoke
either exception in its opening brief, it has waived these

4. The opposition did cite rule 26(d)(4) of the Utah Rules of Civil
Procedure, which states that “[i]f a party fails to disclose or to
supplement timely a disclosure or response to discovery, that
party may not use the undisclosed witness, document, or material
at any hearing or trial unless the failure is harmless or the party
shows good cause for the failure.” But that seemingly isolated
citation was immediately followed by Zen Zone’s statement that,
to its knowledge, it had “complied with all requests received.”
Zen Zone also explained it did “not recall missing Discovery” or
“receiving Discovery from” Tripp, and it requested additional
time to conduct discovery. At best, Zen Zone’s mention of the rule
could be construed as responding to Tripp’s argument that
summary judgment was proper because Zen Zone was precluded
under rule 26(d)(4) from presenting its case. Nothing in the
opposition suggested that it was turning the tables on Tripp by
arguing that the same rule precluded him from likewise
presenting his own case at trial.

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Tripp v. Zen Zone Homes

arguments, and we do not address them further. 5 See R4
Constructors LLC v. InBalance Yoga Corp., 2020 UT App 169, ¶ 29,
480 P.3d 1075 (“[B]ecause [the appellant] did not ask this court to
consider the issue under an exception to the rule of preservation
until its reply brief, it waived our consideration of any such
argument.”).

B. Due Process

¶18 “Under settled principles, a corporation is not entitled to
self-representation because corporations are artificial entities that
are not allowed to represent themselves in court.” Globe
Contracting LLC v. Hour, 2025 UT App 98, ¶ 12 n.3, 575 P.3d 235
(quotation simplified). See CoBon Energy, LLC v. AGTC, Inc., 2011
UT App 330, ¶ 9 n.1, 264 P.3d 219 (“It has long been the law of this
jurisdiction that a corporate litigant must be represented in court
by a licensed attorney.”) (quotation simplified). Zen Zone argues
that the district court violated due process when it entered
summary judgment without first allowing Zen Zone to cure its
lack of counsel.

¶19 Zen Zone faults the court (and Tripp) for not alerting it to
the representation requirement, despite its previously having
filed a pro se answer and opposition to summary judgment. Zen
Zone contends that the court’s summary judgment ruling violated
due process because Zen Zone “was not afforded a meaningful
opportunity to respond through counsel” and “because the court
never indicated that its lack of counsel would result in an adverse
ruling.” Quoting the court’s summary judgment ruling, Zen Zone
further asserts that the court’s use of Zen Zone’s “lack of attorney
as a makeweight reason to ‘grant the motion for all the reasons set
forth in the motion’ was effectively a default judgment in

5. Waiver aside, the plain error exception is generally unavailable
in civil appeals. See Kelly v. Timber Lakes Prop. Owners Ass’n, 2022
UT App 23, ¶ 44, 507 P.3d 357.

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disguise—one granted sua sponte and in summary fashion.” But
once more, this issue was not preserved for appeal.

¶20 “Generally, the fact that a party is asserting constitutional
claims does not excuse [it] from complying with the preservation
rule.” Donjuan v. McDermott, 2011 UT 72, ¶ 21, 266 P.3d 839.
Taking Zen Zone’s “effective default judgment” argument at face
value, even in cases where the district court made a legal error, “a
defaulting party is not entitled to appeal from the default
judgment directly but must first seek redress through a rule 60(b)
motion and appeal from the denial of that motion.” Salazar v.
Chavez, 2012 UT App 177, ¶ 3 n.2, 282 P.3d 1033 (quotation
simplified). See Utah R. Civ. P. 60(b)(1), (6) (stating that “[o]n
motion and upon just terms, the court may relieve a party or its
legal representative from a judgment, order, or proceeding for,”
among other things, “mistake, inadvertence, surprise, or
excusable neglect” or “any other reason that justifies relief”); State
v. Sixteen Thousand Dollars U.S. Currency, 914 P.2d 1176, 1178 (Utah
Ct. App. 1996) (stating that in appeals challenging the entry of
default judgment, “the party asserting the error must first present
the issue to the trial court through the appropriate post-judgment
motion prior to seeking appellate review”). Here, even after
retaining counsel, Zen Zone did not attempt to alert the district
court to its alleged error by filing an appropriate post-judgment
motion. Instead, Zen Zone filed a notice of appeal three days after
the court’s entry of judgment in Tripp’s favor. Accordingly, Zen
Zone failed to preserve this issue for appeal.

¶21 Additionally, the rule that corporate entities must be
represented by counsel is procedural rather than jurisdictional.
See Globe Contracting, 2025 UT App 98, ¶ 12 & n.3 (noting that the
appellee’s initial failure to retain counsel was eventually cured);
CoBon Energy, 2011 UT App 330, ¶ 9 & n.1 (noting that the
corporate plaintiff’s pro se complaint violated the rule, but still
addressing the issue raised on appeal). Thus, because the rule
does not implicate subject matter jurisdiction, it cannot be used to
circumvent the preservation requirement. Cf. State v. Johnson, 2017
UT 76, ¶ 50, 416 P.3d 443 (“[I]t is always appropriate for an

20241175-CA 10 2026 UT App 69
Tripp v. Zen Zone Homes

appellate court to raise possible issues concerning subject matter
jurisdiction . . . , regardless of whether such issues were argued
on appeal or preserved in the trial court.”); Utah Down Syndrome
Found., Inc. v. Utah Down Syndrome Ass’n, 2012 UT 86, ¶ 7, 293 P.3d
241 (“A lack of jurisdiction can be raised at any time by either
party or by the court.”) (quotation simplified).

¶22 In sum, because “preservation . . . must prevail over legal
correctness,” Goldenwest Fed. Credit Union v. Kenworthy, 2017 UT
App 191, ¶ 16, 406 P.3d 253, we affirm the district court’s grant of
summary judgment in Tripp’s favor without reaching the merits
of any of the challenges Zen Zone raises on appeal.

II. Attorney Fees

¶23 Zen Zone challenges the district court’s award of attorney
fees in Tripp’s favor, arguing the award was entered prematurely.
Specifically, Zen Zone contends that pursuant to rule 7(d)(1) of
the Utah Rules of Civil Procedure, it had 14 days to respond to
Tripp’s motion for an award of fees, yet despite Zen Zone being
represented by counsel at that point, the district court granted the
motion a mere 10 days after it was filed.

¶24 Once more, this issue is not preserved. Zen Zone did not
invite the court to fix its error by bringing the error to the court’s
attention through an appropriate objection or post-judgment
motion, such as a rule 60(b) motion. Instead, Zen Zone’s only
action was to file an amended notice of appeal. And on appeal,
apart from a passing reference to “manifest injustice” in its reply
brief, see supra ¶ 17, Zen Zone has not argued that the exceptional
circumstances exception to the preservation rule applies to this
issue. See State v. Johnson, 2017 UT 76, ¶¶ 29, 37, 416 P.3d 443
(stating that the exceptional circumstances exception is applied
“to reach an unpreserved issue where a rare procedural anomaly
has either prevented an appellant from preserving an issue or
excuses a failure to do so” and following a case-by-case
consideration of other factors, including when not reaching the
unpreserved issue “would result in manifest injustice”)

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Tripp v. Zen Zone Homes

(quotation simplified). Therefore, we likewise have no occasion to
consider this issue further.

¶25 Lastly, Tripp seeks an award of attorney fees reasonably
incurred on appeal. “It is well established that a party entitled by
contract to attorney fees below and that prevails on appeal is
entitled to fees reasonably incurred on appeal.” Checkerprop Utah
199 East, LLC v. Butcher, 2024 UT App 124, ¶ 34, 572 P.3d 1121
(quotation simplified), cert. denied, 561 P.3d 691 (Utah 2024).
Accordingly, we grant Tripp’s request for attorney fees
reasonably incurred on appeal and remand this matter to the
district court to determine the appropriate amount of the award.

CONCLUSION

¶26 Because none of the issues Zen Zone raises on appeal are
preserved, we affirm the district court’s grant of summary
judgment and its award of attorney fees in Tripp’s favor without
reaching the merits of the issues raised by Zen Zone. We also
grant Tripp’s request for attorney fees reasonably incurred on
appeal, and we remand the case to the district court for a
determination of the amount of attorney fees Tripp reasonably
incurred on appeal.

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