Koerber v. Robert J. DeBry

2013 UT App 266
_________________________________________________________

THE UTAH COURT OF APPEALS

CLAUD R. KOERBER AND JEWEL K. SKOUSEN ,
Plaintiffs and Appellants,
v.
NANCY A. MISMASH AND ROBERT J. DE BRY & ASSOCIATES, PC,
Defendants and Appellees.

Per Curiam Decision
No. 20130567-CA
Filed November 7, 2013

Third District Court, West Jordan Department
The Honorable Andrew H. Stone
No. 110410430

Jay Morgan Philpot, Attorney for Appellants
Lynn P. Heward, Attorney for Appellee Robert J.
DeBry & Associates, PC

Before JUDGES STEPHEN L. ROTH , MICHELE M. CHRISTIANSEN , and
JUDITH M. BILLINGS.1

PER CURIAM:

¶1 Claud R. Koerber and Jewel K. Skousen (Tenants) appeal the
trial court’s order granting summary judgment in favor of Nancy
A. Mismash (Landlord) and its previously entered order granting
Robert J. DeBry & Associates, PC’s (DeBry) motion to dismiss. This
is before the court on DeBry’s motion for partial summary

1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
Koerber v. Robert J. DeBry

disposition, which requests summary affirmance of the order
dismissing the case as against DeBry, entered in October 2011.

¶2 Tenants asserted several causes of action against Landlord
and her employer, DeBry. Although the causes of action varied in
specifics, all were founded on the lease agreement and the disputes
arising therefrom. Tenants attempted to assert their claims against
DeBry, but only vaguely alleged what actions DeBry took to render
it a party to the complaint against Landlord. The trial court
dismissed the complaint against DeBry, determining that Tenants
had failed to state a claim against DeBry for which relief could be
granted.

¶3 Appellate courts review an order granting a motion to
dismiss for correctness. State v. Apotex Corp., 2012 UT 36, ¶ 16, 282
P.3d 66. “On appeal from a motion to dismiss, we review the facts
only as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” Id. ¶ 3. However,
“mere conclusory allegations in a pleading, unsupported by a
recitation of relevant surrounding facts, are insufficient to preclude
dismissal.” Kuhre v. Goodfellow, 2003 UT App 85, ¶ 21, 69 P.3d 286.
Additionally, the court need not accept legal conclusions or opinion
couched as facts. Commonwealth Prop. Advocates v. MERS, Inc., 2011
UT App 232, ¶ 16, 263 P.3d 397.

¶4 The allegations related to DeBry are insufficient to state a
claim against it as a party. Some of the allegations are legal
conclusions, such as the allegation that DeBry became a party to the
contract based on vaguely asserted acts. Other allegations are
merely conclusory and are unsupported by relevant surrounding
facts. The statements alleged to have been made by Landlord, even
if true, lack specifics to support a claim against DeBry. Tenants
attempt to show that Landlord was acting on behalf of DeBry, but
the allegations indicate the opposite—that DeBry was “assisting”
Landlord and helped enforce the terms of the agreement. There is
no factual allegation that DeBry had any direct role in the lease

201300567-CA 2 2013 UT App 266
Koerber v. Robert J. DeBry

agreement, the predicate to the complaint. Overall, the few
allegations regarding DeBry are either vague and conclusory or
amount to legal conclusions, and are accordingly insufficient to
preclude dismissal.

¶5 The trial court’s order dismissing the complaint against
DeBry is affirmed.2

2. This appeal will move forward on the trial court’s final order
granting summary judgment in favor of Landlord.

201300567-CA 3 2013 UT App 266