A Healthy Choice v. Brown

2013 UT App 264
_________________________________________________________

THE UTAH COURT OF APPEALS

A HEALTHY CHOICE,
Plaintiff and Appellant,
v.
MICHELLE BROWN , KELLY BROWN , AND KELSEY BROWN
Defendants and Appellees.

Per Curiam Decision
No. 20120647-CA
Filed November 7, 2013

Second District Court, Farmington Department
The Honorable David M. Connors
No. 100700291

M. Dirk Eastmond and Terry R. Spencer, Attorneys
for Appellant
J. Preston Stieff, Attorney for Appellees

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

PER CURIAM:

¶1 A Healthy Choice (Healthy Choice) appeals the trial court’s
order granting summary judgment in favor of Michelle, Kelly, and
Kelsey Brown and dismissing the action. We affirm.

¶2 Months after the close of discovery in this matter, the
Browns moved to dismiss the case based on Healthy Choice’s

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).
A Healthy Choice v. Brown

failure to provide any factual support for its claim of intentional
interference with economic relations alleged in its complaint. At a
hearing on the motion to dismiss, the trial court considered matters
outside of the pleadings and therefore noted that the motion would
proceed as a summary judgment motion. See Utah R. Civ. P. 12(b)
(stating that a motion to dismiss shall be treated as a motion for
summary judgment if matters beyond the pleadings are
considered). The Browns had previously submitted affidavits
denying the primary allegation of the complaint that they had
reported false information to the Consumer Protection Agency. The
trial court gave Healthy Choice additional time to present evidence
to establish a dispute of material fact that might defeat the
summary judgment motion.

¶3 Healthy Choice provided two affidavits in an attempt to
support its claim. The trial court determined that the affidavits
failed to create a dispute of material fact and that, regardless, they
were untimely based on the closure of discovery. Accordingly, the
trial court granted the summary judgment motion.

¶4 Summary judgment may be granted only when there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Id. R.56(c). An appellate court reviews
a grant of a motion for summary judgment for correctness. See Ross
v. Epic Eng’g, PC, 2013 UT App 136, ¶ 13, 307 P.3d 576. When a
defendant moves for summary judgment on an issue on which the
plaintiff will have the burden of proof at trial, a defendant may
meet its burden by showing, with reference to discovery materials
and affidavits, if any, that there is no genuine issue of material fact.
Id. When a defendant makes such a showing, the burden shifts to
the plaintiff, who may not rest upon the mere allegations of the
complaint, but must set forth specific facts showing there is a
genuine issue for trial. Id. Affidavits in support of or in opposition
to a motion for summary judgment “shall be made on personal
knowledge, [and] shall set forth such facts as would be admissible
in evidence.” Utah R. Civ. P. 56(e).

20120647-CA 2 2013 UT App 264
A Healthy Choice v. Brown

¶5 In this case, even if the trial court had not struck the
affidavits provided by Healthy Choice as untimely, the affidavits
failed to establish any specific material fact that would preclude
summary judgment. The complaint alleged, upon information and
belief, that the Browns had provided information to the Consumer
Protection Agency which caused an administrative action to be
pursued against Healthy Choice. Faced with affidavits specifically
denying that allegation, Healthy Choice was required to provide
some evidence based on personal knowledge that the Browns had
in fact provided that information. At the motion hearing, counsel
represented that such evidence could be obtained in the form of an
affidavit from an employee of the Consumer Protection Agency.
However, no affidavit from the Consumer Protection Agency was
presented. Rather, the affidavits submitted by Healthy Choice were
from a part-owner of Healthy Choice and one of its employees.
Nothing in those affidavits supported the allegation that the
Browns provided information to the Consumer Protection Agency.
Most of the allegations in the affidavit of Healthy Choice’s
employee related to a divorce action and were not relevant to the
allegations or cause of action in the complaint. Accordingly, there
was no genuine issue of material fact established regarding
whether the Browns provided information to the Consumer
Protection Agency.

¶6 With no genuine issue of fact demonstrated and no factual
basis for Healthy Choice’s claim of intentional interference with
economic relations established, the Browns were entitled to
judgment as a matter of law.2

¶7 Affirmed.

2. Because the trial court did not err in granting summary
judgment, we do not address the other issues raised in Healthy
Choice’s brief. See State v. Carter, 776 P.2d 886, 888 (Utah 1989).

20120647-CA 3 2013 UT App 264