Orvis v. Johnson

2008 UT 2
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Jayson Orvis, 	No. 20061094
Plaintiff and Respondent,
v.
F I L E D
Jamis M. Johnson,
Defendant and Petitioner. 	January 15, 2008
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Third District, Salt Lake
The Honorable Timothy R. Hanson
No. 010907449
Attorneys: 	Peggy A. Tomsic, Eric K. Schnibbe, Brandon G. Myers,
Salt Lake City, for plaintiff
Jamis M. Johnson, Salt Lake City, pro se, defendant
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On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1 	We granted certiorari on two questions: (1) whether the
court of appeals correctly construed and applied the respective
procedural burdens borne by opposing parties on summary judgment,
and (2) whether the court of appeals correctly applied the
summary judgment standard in this case. 	We conclude that the
court of appeals misconstrued the initial procedural burden
required on summary judgment. 	Because Jayson Orvis did not meet
this initial burden, we also conclude that the court of appeals
erred in affirming the trial court’s grant of summary judgment.
BACKGROUND
¶2 	Several years ago, the petitioner, Jamis Johnson, was
sued by the Small Business Administration (the “SBA”) on a matter
unrelated to the present litigation. 	The SBA entered a judgment
against Johnson for $260,000, and in post judgment proceedings he
was deposed in an attempt to identify his assets for the purpose
of satisfying the judgment. 	During that deposition, Johnson was
asked whether he “ha[d] any interest in any partnerships” or

No. 20061094 	2
“[a]ny interest in any limited liability companies.” 	He answered
both questions in the negative. 	The SBA was unable to collect
the judgment, and eventually assigned it to a third party, which
in turn assigned it to the respondent, Jayson Orvis.
¶3 	In 2001, Johnson, claiming to have had a partnership
with Orvis, demanded an accounting from the latter. 	Orvis
responded by filing this suit seeking a declaratory judgment that
he did not have a partnership obligation to Johnson as a
consequence of Johnson’s prior sworn testimony denying such a
partnership existed. 	Johnson, in turn, filed a counterclaim
against Orvis for an accounting based on the alleged partnership.
Orvis then filed a motion for summary judgment on the basis that
Johnson, because of his prior testimony at the SBA proceeding,
should be judicially estopped from asserting any partnership
interest with Orvis.
¶4 	The trial court granted summary judgment for Orvis,
agreeing that Johnson was judicially estopped from asserting a
partnership interest with Orvis because of his prior inconsistent
testimony. 	Based upon this ruling, the trial court also entered
a declaratory judgment that Johnson had no partnership or
interest in any of Orvis’ businesses, and dismissed with
prejudice Johnson’s counterclaim against Orvis.
¶5 	Johnson appealed the trial court’s grant of summary
judgment to the court of appeals, arguing that judicial estoppel
did not apply and that summary judgment was therefore
inappropriate. 	The court of appeals affirmed the trial court’s
decision, holding that Orvis had met his summary judgment burden
by “present[ing] sufficient evidence that no partnership interest
existed because Johnson, in sworn testimony in a prior judicial
proceeding, declared that he had no such interest.” 	Orvis v.
Johnson, 2006 UT App 394, ¶ 16, 146 P.3d 886. 	We granted
certiorari review of that decision on two questions: (1) whether
the court of appeals correctly construed and applied the
respective procedural burdens borne by opposing parties on
summary judgment, and (2) whether the court of appeals correctly
applied the summary judgment standard in this case.
STANDARD OF REVIEW
¶6 	On certiorari review, we review the court of appeals’
decision for correctness. 	Massey v. Griffiths, 2007 UT 10, ¶ 8,
152 P.3d 312. 	The review focuses on whether the court of appeals
correctly reviewed the trial court’s decision--in this case, to
grant summary judgment to Orvis--under the appropriate standard
of review. 	Id. 	An appellate court reviews a trial court’s
“legal conclusions and ultimate grant or denial of summary

3 	No. 20061094
judgment” for correctness, id., and views “the facts and all
reasonable inferences drawn therefrom in the light most favorable
to the nonmoving party.” 	Higgins v. Salt Lake County, 855 P.2d
231, 233 (Utah 1993).
ANALYSIS
¶7 	The court of appeals held that Orvis’ motion for
summary judgment was sufficient to satisfy his initial procedural
burden, citing language from our decision in Waddoups v.
Amalgamated Sugar Co., 2002 UT 69, 54 P.3d 1054. 	Orvis, 2006 UT
App 394, ¶ 16. 	We said in Waddoups that “[o]nce the moving party
challenges an element of the nonmoving party’s case on the basis
that no genuine issue of material fact exists, the burden then
shifts to the nonmoving party to present evidence that is
sufficient to establish a genuine issue of material fact.”
Waddoups, 2002 UT 69, ¶ 31. 	Waddoups, however, is properly
distinguishable.
¶8 	The key distinction between Waddoups and the present
case is which party would have borne the burden of proof at trial
on the relevant issue. 	In Waddoups, the moving party on summary
judgment was challenging the plaintiffs’ case by claiming that
the plaintiffs did not have sufficient evidence to support their
claim. 	We held that the plaintiff, who would have borne the
burden of proof on the relevant issue at trial, upon such a
challenge must provide affirmative evidence sufficient to
establish a genuine issue of material fact. 	Id. ¶¶ 31, 33-34.
¶9 	In the present case, however, Orvis was not seeking to
challenge Johnson’s case by claiming that Johnson lacked evidence
to support his assertions of a partnership--rather, Orvis sought
to establish, via judicial estoppel, that Johnson should be
prevented from presenting evidence that a partnership existed.
It is thus Orvis who, at trial, would have the burden of proof on
the relevant issue: whether the necessary facts exist to support
application of judicial estoppel. 	The burden of proof was on the
nonmoving party in Waddoups. 	In the present case it is Orvis,
the moving party, who bears the burden. 	As a result, Orvis also
had the obligation to establish the essential facts necessary to
support his claim in order to justify judgment in his favor.
¶10 	A summary judgment movant must show both that there is
no material issue of fact and that the movant is entitled to
judgment as a matter of law. 	Utah R. Civ. P. 56(c). 	Where the
moving party would bear the burden of proof at trial, the movant
must establish each element of his claim in order to show that he
is entitled to judgment as a matter of law. 	In order to meet his
initial burden on summary judgment, therefore, Orvis must present

1 Our cases have also mentioned another issue relating to
judicial estoppel, which the court of appeals has explicitly
required as a fifth element: bad faith. 	See Salt Lake City v.
Silver Fork Pipeline Corp., 913 P.2d 731, 734 (Utah 1995) (noting
that the purpose of judicial estoppel is not served “where there
is no evidence that the party against whom judicial estoppel is
sought knowingly misrepresented any facts in the prior proceeding
and where the party seeking to invoke judicial estoppel had equal
or better access to the relevant facts”); Orvis v. Johnson, 2006
UT App 394, ¶ 15, 146 P.3d 886 (“More recently, this court
identified a fifth requirement for a party seeking to invoke the
judicial estoppel doctrine--the party against whom judicial
estoppel is sought must have exhibited bad faith.”).
2 In Tracy Loan, for example, this court expressly declined
to follow the more lenient doctrines of judicial estoppel
endorsed by Tennessee and Wyoming state courts. 	See Tracy Loan &
Trust Co. v. Openshaw Inv. Co., 132 P.2d 388, 391 (Utah 1942)
(“To apply the Tennessee doctrine in this case might result in
laying down a rule which would operate to injure innocent parties
and creditors.”). 	Curiously, in making his judicial estoppel
(continued...)
No. 20061094 	4
evidence sufficient to establish that judicial estoppel is
appropriate under the facts of the case, and that no material
issues of fact remain. 	The burden on summary judgment then
shifts to the nonmoving party to identify contested material
facts, or legal flaws in the application of judicial estoppel.
¶11 	The elements of judicial estoppel are: (1) the prior
and subsequent litigation involve the same parties or their
privies; (2) the prior and subsequent litigation involve the same
subject matter; (3) the prior position was “successfully
maintained”; and (4) the party seeking judicial estoppel has
relied upon the prior testimony “and changed his position by
reason of it.” 1 	Tracy Loan & Trust Co. v. Openshaw Inv. Co., 132
P.2d 388, 390 (Utah 1942).
¶12 	In his memorandum supporting his motion for summary
judgment, the only facts asserted by Orvis to support his
judicial estoppel theory are two partial quotations from the
record of the SBA proceeding. 	Orvis provided no evidence to show
that the elements of judicial estoppel had been satisfied; in
fact, Orvis did not even allege that those elements had been met.
Instead, Orvis sought to establish judicial estoppel through an
alternative theory--which is, simply, that a party may not take
inconsistent positions in prior and subsequent litigation. 	In
some other jurisdictions that might be enough. 2 	Under our law,

2
(...continued)
argument Orvis relied on Tennessee and Wyoming state law.
3 See, e.g., Nebeker v. State Tax Comm’n, 2001 UT 74, ¶ 26,
34 P.3d 180 (citing the four elements of judicial estoppel, and
holding that the prior testimony was not, in fact, inconsistent);
Salt Lake City v. Silver Fork Pipeline Corp., 2000 UT 3,
¶ 33 n.15, 5 P.3d 1206 (holding that judicial estoppel was
inapplicable because certain elements had not been proven);
Stevensen v. Goodson, 924 P.2d 339, 352-53 (Utah 1996) (declining
to apply judicial estoppel because the prior position had not
been “successfully maintained”).
4 As to the fairness of failing to apply judicial estoppel
where there has been a prior inconsistent statement in a judicial
proceeding, we find Tracy Loan instructive:
[E]ven when estoppel cannot be invoked, such
prior testimony when properly produced
constitutes evidence which the trial court or
the jury should consider in determining what
are the facts, and to pass on the credibility
of the witness. 	Ordinarily when a person
contradicts his prior testimony because it
appears to be to his advantage to do so, the
veracity of such witness may become so
questionable that it may require strong and
convincing corroborative evidence to induce a
court or jury to believe his subsequent
declarations. 	Nevertheless, if the court
finds that notwithstanding such maze of
conflicting and unreliable testimony, there
is other competent, material and relevant
evidence unimpeached, which establishes the
contention of such person who either
testifies falsely or recklessly, he may still
be entitled to prevail as a matter of law.
Tracy Loan, 132 P.2d at 392.
5 	No. 20061094
however, judicial estoppel only applies when all elements are
met. 3 	More is required than a mere showing of an inconsistent
statement at a prior judicial proceeding.4 	Because Orvis did not
offer the necessary evidence to show that all of the elements of
judicial estoppel were met, he failed to meet his initial
procedural burden on summary judgment. 	The court of appeals
therefore erred in holding to the contrary.
¶13 	Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,

5 Compare Shaw Res. Ltd. v. Pruitt, Gushee & Bachtell, P.C.,
2006 UT App 313, ¶ 22, 142 P.3d 560 (citing Waddoups for the
proposition that the moving party satisfies its summary judgment
burden by “challeng[ing] an element of the nonmoving party’s case
on the basis that no genuine issue of material fact exists”), and
Orvis v. Johnson, 2006 UT App 394, ¶ 16 & n.7 (again citing
Waddoups, but denying adoption of the lower federal burden for
summary judgment), with Shaw, 2006 UT App 313, ¶¶ 61-67 (Bench,
J., dissenting) (arguing that the majority opinion adopts the
lower federal burden for summary judgment in contravention of
explicit Utah precedent), and Orvis v. Johnson, 2006 UT App 394,
¶¶ 26-27 (Bench, J., concurring) (reciting his arguments from
Shaw but ultimately concurring, “albeit reluctantly,” based on
the doctrine of stare decisis).
No. 20061094 	6
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” 	Utah R. Civ. P.
56(c). 	Orvis’ motion for summary judgment failed to establish
the necessary elements of judicial estoppel, and thus did not
show that he was entitled to judgment as a matter of law.
Summary judgment in his favor was therefore inappropriate.
¶14 	We admit that our cases may have generated confusion as
to the respective procedural burdens of parties on summary
judgment, specifically where the movant is challenging whether
the nonmoving party has sufficient evidence to prove the
nonmoving party’s claims at trial. 5 	The case before us differs
in that Orvis as the movant was relying on the merits of his own
claim, not a failure in the claim of the nonmoving party.
Relying on his own claim carries with it the burden of
establishing a factual basis for judgment. 	However, when the
moving party seeks to defeat the nonmoving party on the nonmoving
party’s claim, the procedural burdens shift. 	In order to resolve
any confusion, we address the issue here.
¶15 	The root of this confusion lies in Celotex Corp. v.
Catrett, 477 U.S. 317 (1986). 	In Celotex, the Court held that a
party seeking summary judgment did not always need to adduce
factual evidence by affidavit in order to meet their initial
procedural burden. 	See Celotex, 477 U.S. at 323. 	Rather, the
Court held, it is enough for a party who would not bear the
burden of proof at trial to “identify[] those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ that
it believes demonstrate the absence of a genuine issue of
material fact.” 	Id. (quoting Fed. R. Civ. P. 56(c)). 	The burden
then shifts to the nonmoving party to show, by “rebuttal

6 See, e.g., Wilkinson v. Union Pac. R.R. Co., 975 P.2d 464,
465 (Utah 1998) (“Because Union Pacific has offered no affidavits
disputing Wilkinson’s allegations, it has not met its burden of
showing that there are no material issues of fact.”); Lamb v.
B & B Amusements Corp., 869 P.2d 926, 928-29 (Utah 1993) (“As the
moving party, Curtis [Industries, a defendant-movant] had the
affirmative burden of establishing that there were no material
issues of fact as to its liability.”).
7 	No. 20061094
affidavits, or other specified kinds of materials,” that there is
a genuine issue of material fact. 	Id. at 324.
¶16 	While this has been the law in the federal courts for
over two decades now, it is not Utah law. 	In fact, in Harline v.
Barker, 912 P.2d 433 (Utah 1996), this court expressly declined
to adopt the reasoning of the Celotex decision, and held that
“[u]nless the moving party meets its initial burden to present
evidence establishing that no genuine issue of material fact
exists, ‘the party opposing the motion is under no obligation to
demonstrate that there is a genuine issue for trial.’” 	Harline,
912 P.2d at 445 & n.13 (quoting K & T, Inc. v. Koroulis, 888 P.2d
623, 628 (Utah 1994)) (emphasis added). 	Utah law does not allow
a summary judgment movant to merely point out a lack of evidence
in the nonmoving party’s case, but instead requires a movant to
affirmatively provide factual evidence establishing that there is
no genuine issue of material fact. 6
¶17 	The current confusion seems to have arisen from
language in our decision in Waddoups. 	In Waddoups, we held that:
The moving party has the burden of presenting
evidence to demonstrate that no genuine issue
of material facts exists and that judgment as
a matter of law is proper. 	However, once the
moving party challenges an element of the
nonmoving party’s case on the basis that no
genuine issue of material fact exists, the
burden then shifts to the nonmoving party to
present evidence that is sufficient to
establish a genuine issue of material fact.
Waddoups, 2002 UT 69, ¶ 31 (citations omitted). 	This statement
has been interpreted to mean that a movant can satisfy her burden
on summary judgment by “challeng[ing] an element of the nonmoving
party’s case”--in effect, by pointing out that the nonmoving

7 This interpretation is bolstered by reference to the
defendants’ brief in Waddoups, where the defendants argue that the
plaintiffs’ claim “is groundless because they do not identify,
let alone substantiate, any conduct by [defendants]” to support
the claim.
No. 20061094 	8
party lacks sufficient evidence to support his claim.7 	See Shaw
Res. Ltd. v. Pruitt, Gushee & Bachtell, P.C., 2006 UT App 313, ¶
22, 142 P.3d 560; Orvis v. Johnson, 2006 UT App 394, ¶ 16. 	This
interpretation overlooks the movant’s affirmative obligation to
first demonstrate that there exists no genuine issue of material
fact.
¶18 	A summary judgment movant, on an issue where the
nonmoving party will bear the burden of proof at trial, may
satisfy its burden on summary judgment by showing, by reference
to “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,” that
there is no genuine issue of material fact. 	Utah R. Civ. P.
56(c). 	Upon such a showing, whether or not supported by
additional affirmative factual evidence, the burden then shifts
to the nonmoving party, who “may not rest upon the mere
allegations or denials of the pleadings,” but “must set forth
specific facts showing that there is a genuine issue for trial.”
Id. (e). 	This is the correct application of Harline, and any
subsequent cases applying Harline differently are incorrect.
¶19 	Of course, this standard only applies to summary
judgment based upon issues where the nonmoving party bears the
burden of proof at trial. 	If the moving party would bear the
burden of proof on the relevant issue, either because the moving
party is the plaintiff, or, as in the present case, where summary
judgment is sought on an alternative theory such as judicial
estoppel, then the movant has an affirmative duty to provide the
court with facts that demonstrate both that the party is entitled
to judgment as a matter of law and that there are no material
issues of fact that would require resolution at trial.
CONCLUSION
¶20 	Orvis did not meet his initial burden on summary
judgment because he did not present the trial court with evidence
necessary to support his claim of judicial estoppel.
¶21 	Reversed and remanded for proceedings consistent with
this opinion.
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9 	No. 20061094
¶22 	Chief Justice Durham, Justice Durrant, and Justice
Nehring concur in Associate Chief Justice Wilkins’ opinion.
¶23 	Having disqualified herself, Justice Parrish does not
participate herein.