Winegar v. Springville City

2014 UT App 9
_________________________________________________________
THE UTAH COURT OF APPEALS
WADE S. WINEGAR AND SANDRA WINEGAR,
Plaintiffs and Appellants,
v.
SPRINGVILLE CITY,
Defendant and Appellee.
Opinion
No. 20120898-CA
Filed January 16, 2014
Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 070401317
Todd S. Winegar and Wade S. Winegar, Attorneys
for Appellants
Dennis C. Ferguson and Timothy J. Bywater, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
CAROLYN B. MCHUGH and MICHELE M. CHRISTIANSEN concurred.
ROTH, Judge:
¶1 Wade S. Winegar and Sandra Winegar appeal from the
district court’s grant of summary judgment to Springville City
(the City). The Winegars contend that summary judgment was
improper because the City failed to demonstrate that the
Winegars’ lawsuit was untimely under the Utah Governmental
Immunity Act. We vacate the entry of summary judgment and
remand to the district court.

Winegar v. Springville City
20120898-CA 2 2014 UT App 9
BACKGROUND1
¶2 The Winegars owned a vacant wooded parcel along
Hobble Creek in Springville, Utah. In May 2005, the City decided
that it needed to clear obstructions from the Hobble Creek
streambed. Without the Winegars’ knowledge or consent, the
City bulldozed approximately 100 trees on the Winegars’
property to create a path to the creek. Some of the trees may
have been growing on a maintenance easement accessible by the
City, but many were on the Winegars’ private property. The City
left in place the debris created by the bulldozing.
¶3 On January 27, 2006, the Winegars filed a notice of claim
for damages with the Springville City Clerk. The clerk
forwarded the notice to the City Attorney, who began
communicating with the Winegars in an effort to resolve their
claim.
¶4 The Winegars received a letter, dated March 20, 2006,
from an entity named Utah Risk Management Mutual
Association (URMMA). The letter read,
Our investigation into the claim you have made
against Springville City for damage to your
landscaping and property . . . is now complete.
Our investigation indicates that Springville City
would not be held legally liable for any
damages you may have sustained. The City has
an easement on the property which allows [it]
to enter the creek bed. [It] also ha[s] authority to
take measures to clean out and maintain the
1. In reviewing a grant of summary judgment, we recite the facts
and reasonable inferences that may be drawn from them in the
light most favorable to the nonmoving party. Orvis v. Johnson,
2008 UT 2, ¶ 6, 177 P.3d 600.

Winegar v. Springville City
20120898-CA 3 2014 UT App 9
creek bed to prevent flooding that might
damage other property downstream.
Because the City would not be held liable, we
must respectfully decline to make any
voluntary payments on this claim.
The letter was signed by a ‚claims adjuster‛ and copied the City
Attorney. It did not explain what URMMA is or its relationship
with the City. The City maintains that URMMA is the City’s
insurance carrier. The Winegars claim they were not aware that
URMMA was the City’s insurer or that the letter amounted to a
denial of their notice of claim for damages.
¶5 On April 9, 2006, Mr. Winegar sent a letter to the City
Attorney, purporting to follow up on a telephone conversation
from the previous week. According to the letter, the City
Attorney had advised the Winegars that they needed to file an
amended notice of claim against the specific employees who
bulldozed their property, and the letter requested that the City
provide the employees’ names. URMMA responded to the
Winegars’ letter on April 20, 2006:
Your letter dated April 9, 2006, addressed to
[the City Attorney], has been referred to us for a
response[.]
Your claim was denied on March 20, 2006. We
are not prepared to continue negotiations with
you by providing the information you have
requested in your letter. If you cho[o]se not to
accept our denial and if you cho[o]se to move
this claim to the next step, your attorney can
gather this information through the discovery
process of the court syste[m].
¶6 On April 24, 2006, Mr. Winegar sent a letter to URMMA
and the City Attorney, in which he acknowledged that URMMA

Winegar v. Springville City
20120898-CA 4 2014 UT App 9
had ‚outright deni*ed+ . . . the claim.‛ He nevertheless stated his
understanding that he needed to include the employees’ names
on the notice of claim and indicated that, by means of his letter,
he was ‚amend*ing the] claim to include not only Springville
City but all the unidentified employees who participated in any
aspect of the work done at the above listed property,
participated in the decision-making to do such work or carried
trees or timber off the property.‛ Mr. Winegar requested that the
City Attorney or URMMA notify him ‚*i+f you believe I must
follow a different process to amend my claim.‛ No response
from the City or URMMA is identified in the record.
¶7 One year later, on April 24, 2007, the Winegars filed a
complaint against the City in the Fourth District Court. After a
period of delay while the parties attempted to resolve their
dispute and conduct discovery, the City filed a motion for
summary judgment on April 15, 2011. The City alleged the
following as undisputed facts: (1) the Winegars filed a notice of
claim on January 27, 2006; (2) ‚*o+n March 20, 2006, Springville
City denied *the Winegars’+ claim by letter‛; and (3) the
Winegars filed a complaint in the Fourth Judicial District Court
on April 24, 2007. According to the City, the Winegars’ April 24,
2007 complaint was untimely because the Governmental
Immunity Act of Utah (the Act) requires a ‚claimant . . . [to]
begin [a civil] action within one year after the denial of the
claim,‛ which occurred on March 20, 2006, see Utah Code Ann.
§ 63G-7-403(2) (LexisNexis 2011).2 The City attached a copy of
the notice of claim and the March 20 letter from URMMA to its
motion but did not provide any affidavit or other evidence to
support its statement that the City denied the claim.
2. The Act was renumbered in 2008, but the pertinent
subsections are identical to the versions in effect from 2005 to
2007. Accordingly, we cite the current version for the
convenience of the reader.

Winegar v. Springville City
20120898-CA 5 2014 UT App 9
¶8 The Winegars contested the second statement of
undisputed fact, arguing that the March 20 letter was not a
denial, the letter was not written by the City, and the City had
not established that URMMA was its insurer. Therefore, they
argued, their claim was never denied and their complaint was
timely because it was filed within one year of the expiration of
the deemed-denied period, which occurred on April 28, 2006. See
generally id. § 63G-7-403(1)(b), (2) (explaining that if a claim is not
denied within the denial period, the claimant shall begin action
‚within one year after the denial period specified in *the Act+ has
expired‛). 3 On May 26, 2011, the City filed a reply memorandum
3. The notice of claim was filed on January 27, 2006, and
according to the Act, if the City failed to approve or deny the
claim, the Winegars’ claim was deemed denied after sixty days,
or on March 29, 2006, see Utah Code Ann. § 63G-7-403(1)(b)
(LexisNexis 2011) (‚A claim is considered to be denied if, at the
end of the 60-day period, the governmental entity or its
insurance carrier has failed to approve or deny the claim.‛).
The Winegars filed their notice of claim on a form they
received from the City, which incorrectly stated, ‚UNDER
STATE LAW, THE CITY HAS 90 DAYS IN WHICH TO
RESPOND TO A CLAIM. IF THE CITY DOES NOT RESPOND
WITHIN 90 DAYS, THE CLAIM IS DEEMED DENIED.‛ The
City’s form had apparently not been updated after the Act’s
amendment in July 2004 to shorten the deemed-denied period
from ninety to sixty days, id. § 63-30-14 (Michie 1997) (stating
that a claim is ‚deemed to have been denied‛ after ninety days);
id. § 63-30d-403(1)(b) & effective date (LexisNexis 2004) (current
version at id. § 63G-7-403(1)(b) (LexisNexis 2011)) (stating that
effective July 1, 2004, a ‚claim is considered denied if, at the end
of the 60-day period,‛ the claim has been neither approved nor
denied).
The Winegars assert that the City is bound by its
representation that the denial period was ninety days, which
would allow them until April 28, 2006, to file their claim. This
argument depends upon a determination that there was not a
denial prior to April 28, 2006, i.e., that URMMA’s March 20 letter
(continued...)

Winegar v. Springville City
20120898-CA 6 2014 UT App 9
and a notice to submit its summary judgment motion for
decision. The reply memorandum purported to amend the
second statement of undisputed fact to read, ‚On March 20,
2006, City, through its insurer, the Utah Risk Management
Mutual Association (‘URMMA’), denied *the Winegars’+ Notice
of Claim.‛ Again, the City did not submit an affidavit or other
evidence to support its allegation that URMMA was its insurer.
¶9 On June 6, 2011, the Winegars filed a motion to either
strike the reply because it included new factual allegations or, in
the alternative, to allow the Winegars an opportunity to respond
to the new matters raised in the reply memorandum prior to
entry of a decision on the City’s summary judgment motion. See
Utah R. Civ. P. 7(c)(1) (explaining that a reply memorandum
‚shall be limited to rebuttal of matters raised in the
memorandum in opposition‛). The next day, June 7, the district
court granted summary judgment to the City on the basis that
the court lacked subject matter jurisdiction under the Act due to
the Winegars having failed to file the complaint within one year
of the denial of their claim through the URMMA letter dated
March 20, 2006. The court did not address the Winegars’ motion
to strike or respond to the City’s reply. The court dismissed the
case with prejudice. The Winegars now appeal.
did not amount to a lawful denial. See Utah Code Ann. § 63-30-
14 (Michie 1997) (explaining that a claim is deemed denied if the
City fails to approve or deny the claim within the prescribed
time period); id. § 63-30d-403(1)(b) (LexisNexis 2004) (same); id.
§ 63G-7-403(1)(b) (LexisNexis 2011) (same). We do not reach the
issues implicated in this claim because we vacate the summary
judgment on another basis and leave the matter to be addressed
as appropriate in the district court.

Winegar v. Springville City
20120898-CA 7 2014 UT App 9
ISSUES AND STANDARD OF REVIEW
¶10 The Winegars contend that because the City failed to
establish that it was entitled to judgment as a matter of law in its
opening memorandum, the district court erred in granting
summary judgment. The Winegars also argue that they were
deprived of the opportunity to contest a material fact set forth
only in the City’s reply memorandum—that URMMA was the
City’s insurer—because the court failed to grant (or possibly
even to consider) the Winegars’ motion for leave to respond to
the City’s reply.4
¶11 Summary judgment is appropriate only when ‚there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.‛ Id. R. 56(c). We review
the grant of summary judgment for correctness, as a question of
law, giving no deference to the district court’s legal conclusions.
Basic Research, LLC v. Admiral Ins. Co., 2013 UT 6, ¶ 5, 297 P.3d
578.
ANALYSIS
¶12 ‚The Utah Supreme Court has been very explicit in its
pronouncements that a plaintiff must strictly comply with the
Act’s requirements‛ in order to maintain an action against a
governmental entity. Suazo v. Salt Lake City Corp., 2007 UT App
282, ¶ 6, 168 P.3d 340 (citing Wheeler v. McPherson, 2002 UT 16,
¶ 13, 40 P.3d 632). The Act requires that ‚*a+ny person having a
claim against a governmental entity, or against its employee for
an act . . . occurring during the performance of the employee’s
4. The Winegars also advance a number of equitable estoppel-
based arguments for precluding the City from seeking dismissal
of the Winegars’ complaint. We do not reach those claims
because we resolve the Winegars’ challenge to the propriety of
the process surrounding the summary judgment motion by
vacating the grant of judgment.

Winegar v. Springville City
20120898-CA 8 2014 UT App 9
duties, . . . file a written notice of claim with the entity before
maintaining an action.‛ Utah Code Ann. § 63G-7-401(2)
(LexisNexis 2011). The notice of claim must be filed ‚within one
year after the claim arises.‛ Id. § 63G-7-402. The City does not
dispute that the Winegars filed a timely notice of claim on
January 27, 2006, for damages to their property stemming from
the City’s activities in connection with removal of the
obstruction in Hobble Creek in May 2005. Rather, the issue on
which summary judgment turned was whether the Winegars
had timely filed their complaint after their claim was denied.
¶13 The Act provides that ‚*w+ithin 60 days of the filing of a
notice of claim, the governmental entity or its insurance carrier
shall inform the claimant in writing that the claim has either
been approved or denied.‛ Id. § 63G-7-403(1)(a). ‚A claim is
considered to be denied if, at the end of the 60-day period, the
governmental entity or its insurance carrier has failed to approve
or deny the claim.‛ Id. § 63G-7-403(1)(b). Then, ‚*t+he claimant
shall begin the action [in the district court] within one year after
the denial of the claim or within one year after the denial period
. . . has expired.‛ Id. § 63G-7-403(2)(b). On March 20, 2006—fifty-
two days after the filing of the notice of claim—URMMA wrote
the Winegars that it ‚must respectfully decline to make any
voluntary payments on [the+ claim.‛ The issue presented to us
on appeal is whether the City established as a matter of law that
the March 20 letter denied the Winegars’ claim so as to entitle
the City to judgment on the basis that the complaint, filed in
April 2007, was untimely. We agree with the Winegars that the
City did not.
¶14 On April 15, 2011, the City filed a motion for summary
judgment in which it asserted that the district court did not have
jurisdiction to hear the case because the Winegars’ complaint
‚was not filed within a year from Springville City’s denial of
their notice of claim, making it untimely‛ and thereby depriving
the district court of subject matter jurisdiction, see Wheeler, 2002
UT 16, ¶ 16 (upholding the dismissal of a complaint for lack of
jurisdiction where the plaintiffs failed to strictly comply with the
Act). The City’s initial memorandum sets out just three facts, the

Winegar v. Springville City
20120898-CA 9 2014 UT App 9
last two of which are essential to the district court’s summary
judgment ruling that the Winegars’ complaint was untimely: (2)
‚On March 20, 2006, Springville City denied *the Winegars’+
claim by letter‛ (Fact Number 2) and (3) the Winegars filed their
complaint in the Fourth Judicial District Court on April 24, 2007.
In support of these facts, the City attached to its memorandum
the January 27 notice of claim and the March 20 letter from
URMMA.
¶15 The Winegars disputed only the City’s representation as
to when it had denied their claim and did so on two grounds.
First, the Winegars disputed that the March 20 letter was
actually a denial of their claim because the letter did not
explicitly say the claim was denied but rather stated that
URMMA ‚must respectfully decline to make any voluntary
payments on [the+ claim.‛ Second, they asserted that URMMA,
not the City, wrote the March 20 letter and the letter did not
identify URMMA as the City’s insurer. The Winegars further
contend that the City did not explain that discrepancy in Fact
Number 2, where the City simply alleged that it had ‚denied the
claim by letter,‛ which was attached with no affidavit and no
explanation of who URMMA was—‚A claims adjusting
company? An agent of Springville’s insurer? Springville’s
insurer itself?‛ Thus, the Winegars argued that even if the letter
amounted to a denial of their claim, the City had failed to
establish that either the City or its insurer sent the March 20
letter, as the Act required, see Utah Code Ann. § 63G-7-403(1)
(providing that only the governmental entity or its insurance
carrier may approve or deny a claim).
¶16 The City filed a reply memorandum on May 26, 2011. In
it, the City responded to this criticism most directly by
amending Fact Number 2 to assert that ‚*o+n March 20, 2006,
City, through its insurer, the Utah Risk Management Mutual
Association (‘URMMA’), denied *the Winegars’+ Notice of
Claim.‛ (Emphasis added.) Again, the City failed to provide an

Winegar v. Springville City
20120898-CA 10 2014 UT App 9
affidavit or other evidence to support its statement.5 That same
day, the City submitted its summary judgment motion for
decision.
¶17 On June 6, the Winegars filed a motion to strike the City’s
reply or, in the alternative, for the court’s leave to respond to the
reply. The Winegars asserted that the inclusion of new
information in the City’s reply to counter the Winegars’ denial of
Fact Number 2 undermined the notions of ‚procedural fairness,‛
which required the City to include all facts necessary to make
out its summary judgment claim in the opening motion so that
the Winegars could have an opportunity to respond. The next
day, the district court granted summary judgment, without
ruling on the Winegars’ motion to strike or respond and with no
indication whether the court had even become aware of the
motion before its ruling.
¶18 The Winegars contend that the district court erred in
granting summary judgment because (1) the City failed to prove
that it was entitled to judgment as a matter of law and (2) the
court failed to rule upon the Winegars’ motion to strike or
5. The City also added three facts intended to demonstrate that
the Winegars knew both that URMMA was the City’s insurer
and that their claim had been denied. The three additional facts
referenced correspondence between the Winegars and URMMA
in April 2006, in which URMMA explicitly stated that the claim
had been denied (the April 20 letter) and the Winegars
acknowledged the denial of their claim (the April 24 letter). The
City attached copies of those letters as exhibits to the reply
memorandum. The City highlighted the fact that in both the
March 20 letter and the follow-up April 20 letter, URMMA
‚identified *the Winegars’+ claim *and+ . . . indicated their claim
had been investigated and it was determined the City was not
liable.‛ Again, the City did not support these facts by affidavit or
other evidence, and because this new information was presented
only in the reply memorandum, the Winegars did not have an
opportunity to respond to it.

Winegar v. Springville City
20120898-CA 11 2014 UT App 9
respond. First, the Winegars assert that Fact Number 2 failed to
establish that the Winegars’ claim had actually been denied by
the City or its insurance carrier so as to begin the one-year
period for commencing legal action in the district court. After
the Winegars pointed this out in their opposition, the City
attempted to remedy the flaw by amending Fact Number 2 in
the reply but did so without submitting evidence to support its
assertion. Second, the Winegars assert that it was improper for
the court to consider the amended Fact Number 2 when it
conveyed new information that could not be disputed by the
Winegars in the ordinary course of the summary judgment
pleadings permitted by rule 7 of the Utah Rules of Civil
Procedure without leave of court. Overarching the argument
that the grant of summary judgment was improper is a claim
that the City’s narrow basis for seeking summary judgment—
that the City denied the Winegars’ claim in the March 20 letter—
caused the Winegars not to assert several estoppel claims that
would have been pertinent had the City’s motion not been so
narrowly focused.
¶19 A party seeking summary judgment must file a motion,
along with a supporting memorandum and any affidavits or
other evidence, that demonstrates 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). ‚The motion,
memoranda and affidavits shall be in accordance with Rule 7‛ of
the Utah Rules of Civil Procedure. Id. While rule 7 provides that
‚*a+ party may attach as exhibits to a memorandum relevant
portions of documents cited in the memorandum, such as
affidavits or discovery materials,‛ id. R. 7(c)(3)(D), it does not
change rule 56’s requirement that a summary judgment motion
be supported by admissible evidence, id. R. 56(c); see also
Sunridge Dev. Corp. v. RB&G Eng’g, Inc., 2013 UT App 146, ¶ 17,
305 P.3d 171 (‚*I+nadmissible evidence cannot be considered in
ruling on a motion for summary judgment.‛ (alteration in
original) (citation and internal quotation marks omitted)). The
nonmoving party may then file a memorandum in opposition in
which he ‚provide*s+ an explanation of the grounds for any

Winegar v. Springville City
20120898-CA 12 2014 UT App 9
dispute, supported by citation to relevant materials.‛ Utah R.
Civ. P. 7(c)(1), (3)(B). Then, the moving party may file a reply
memorandum, but that reply ‚shall be limited to rebuttal of
matters raised in the memorandum in opposition.‛ Id. R. 7(c)(1).
‚No other memoranda will be considered without leave of
court.‛ Id.
¶20 The City’s initial statement of undisputed facts alleges
that ‚Springville City‛ denied the Winegars’ claim by letter on
March 20, 2006. This statement is called into question, at least on
its face, by the attached March 20 letter, which is on URMMA
letterhead and signed only by a ‚claims adjuster.‛ And while the
letter itself refers to ‚the claim you have made against
Springville City,‛ it does not contain any information that
supports a reasonable evidentiary inference that although the
City said it denied the claim, the City actually meant that it
complied with the statutory denial requirements by having its
insurer deny the claim. While one might reach the conclusion
that URMMA was the City’s insurer by a series of logical steps—
e.g., the City asserts that it denied the claim; under Utah law, the
City could only deny the claim itself or through its insurer; the
City itself did not write the March 20 letter; therefore, URMMA
must be the City’s insurer—those steps require assumptions not
supported by actual evidence and the conclusion they lead to is
necessarily speculative. See State v. Cristobal, 2010 UT App 228,
¶ 16, 238 P.3d 1096 (‚A reasonable inference is a conclusion
reached by considering other facts and deducting a logical
consequence from them,‛ while speculation is ‚the act or
practice of theorizing about matters over which there is no
certain knowledge.‛ (citation and internal quotation marks
omitted)). In considering whether an inference may reasonably
be drawn, a ‚reviewing court will stretch the evidentiary fabric
as far it will go. But this does not mean [we] can take a
speculative leap across a remaining gap . . . .‛ State v. Pullman,
2013 UT App 168, ¶ 14, 306 P.3d 827 (citation and internal
quotation marks omitted). For the City to establish that it had
denied the claim on March 20 in accordance with the Act, it must
have introduced evidence establishing that URMMA was its
insurer at the time, and the letter itself does not accomplish that.

Winegar v. Springville City
20120898-CA 13 2014 UT App 9
¶21 The City acknowledged this problem in its reply
memorandum supporting its motion for summary judgment by
purporting to amend the original Fact Number 2 to read, ‚On
March 20, 2006, City, through its insurer, the Utah Risk
Management Mutual Association (‘URMMA’), denied [the
Winegars’+ Notice of Claim.‛ (Emphasis added.) This is
insufficient. A reply memorandum is ‚limited to rebuttal of
matters raised in the memorandum in opposition.‛ Utah R. Civ.
P. 7(c)(1). ‚Where a party first raises an issue in his reply
memorandum, it is not properly before the trial court‛ unless the
party has received leave of the court to raise a new issue. Soriano
v. Graul, 2008 UT App 188, ¶ 12, 186 P.3d 960 (citations and
internal quotation marks omitted). Moreover, even if the City’s
amendment of Fact Number 2 could be construed as ‚rebuttal of
matters raised in the *Winegars’+ . . . opposition,‛ see Utah R.
Civ. P. 7(c)(1), the amendment of Fact Number 2 alone does not
demonstrate that the City is entitled to summary judgment as a
matter of law, see id. R. 56(c). To prevail on summary judgment,
the moving party must produce some factual evidence to
demonstrate that there is no genuine issue of material fact. See
Orvis v. Johnson, 2008 UT 2, ¶¶ 16, 18, 177 P.3d 600 (‚Utah law
. . . requires a [summary judgment] movant to affirmatively
provide factual evidence establishing that there is no genuine
issue of material fact. . . . [The movant] 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.‛ (quoting Utah R. Civ. P. 56(c))). The City’s fact
statement is not adequately supported. It amounts to a bare
allegation, the truth and sufficiency of which have been called
into question by the Winegars’ opposition. Without a supporting
affidavit or some other evidence establishing that the City’s
insurer was, in fact, URMMA, the City has failed to demonstrate
that it is entitled to judgment as a matter of law.
¶22 Furthermore, the City’s attempt to add a crucial fact
demonstrating its entitlement to summary judgment in the reply
memorandum deprived the Winegars of an opportunity to fully
challenge the summary judgment motion, either by contesting

Winegar v. Springville City
20120898-CA 14 2014 UT App 9
the new statement of undisputed facts or by raising other
defenses, such as the estoppel defenses they raise on appeal. The
Winegars took appropriate action under rule 7 by filing a motion
for leave to file a response, but the district court did not resolve
that motion prior to granting summary judgment. Indeed, it is
not apparent from the record whether the court even saw the
Winegars’ motion, as it was filed the day before the grant of
summary judgment and was not yet ripe for the district court to
resolve. See Utah R. Civ. P. 7(c)(1) (allowing the other party ten
days to file an opposition to a motion); id. R. 7(d) (providing for
submission to the district court for decision after briefing is
complete). We therefore conclude that the Winegars were
prejudiced by the lack of an opportunity to respond to the City’s
reply memorandum.
¶23 Accordingly, we vacate the grant of summary judgment
and remand for further proceedings. Because of the nature of
our decision, we do not reach any of the other issues the
Winegars raised regarding the district court’s decision.
¶24 The City requested its attorney fees on appeal pursuant to
rule 33 of the Utah Rules of Appellate Procedure. Rule 33 allows
the appellate courts to ‚award just damages, which may include
. . . reasonable attorney fees, to the prevailing party‛ when a civil
‚appeal . . . is either frivolous or for delay.‛ Utah R. App. P.
33(a). The City is not the prevailing party, nor is the Winegars’
appeal frivolous or for delay. We therefore deny the City’s
request for attorney fees.
CONCLUSION
¶25 We vacate the grant of summary judgment in favor of the
City and remand the case to the district court. The City’s request
for rule 33 attorney fees is denied.