Turley v. Childs

2022 UT App 85

THE UTAH COURT OF APPEALS

STEVE TURLEY,
Appellee,
v.
TRUDY J. CHILDS AND RORY J. CHILDS,
Appellants.

Opinion
No. 20210390-CA
Filed July 8, 2022

Fourth District Court, Provo Department
The Honorable Christine S. Johnson
The Honorable Robert C. Lunnen
No. 190401185

Barry N. Johnson, Daniel K. Brough, and Ryan M.
Merriman, Attorneys for Appellants
Craig Carlile and Brent D. Wride,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

HARRIS, Judge:

¶1 More than a decade ago, Trudy and Rory Childs (the
Childs Parties) agreed to provide Steve Turley an option to
purchase certain real property. In the years since then, Turley has
filed two lawsuits aimed at compelling the Childs Parties to
recognize his exercise of that option and to complete the
conveyance. The district court in the second lawsuit entered
summary judgment in Turley’s favor, and the Childs Parties now
appeal. We affirm.
Turley v. Childs

BACKGROUND 1

¶2 Since at least 2008, the Childs Parties have owned
approximately 2,600 acres of real property (the Property) located
in the Diamond Fork area of Spanish Fork Canyon, in Utah
County, Utah. In 2008, the Childs Parties conveyed to Turley an
option to purchase the Property. Later that year, Turley sought to
exercise that option, but the Childs Parties refused to sell. Turley
then filed suit (the First Lawsuit) against the Childs Parties,
seeking an order compelling them to convey the Property. After
some six years of litigation, with both sides represented by
counsel, the case proceeded to trial in December 2014. But during
the trial, the parties informed the court that they had reached an
agreement to settle the case (the Agreement). The parties set forth
the terms of the Agreement in an unsigned handwritten
memorandum, and the parties also recited, in open court, the
particulars of the Agreement for the record.

¶3 Under the terms of the Agreement, as recited by Turley’s
attorney on the record, the Childs Parties were to market the
Property generally for eight months, and would “grant to [Turley]
a right of first refusal to purchase” the entire Property; that right
of first refusal was to exist for the entirety of the eight-month
marketing period. During that period, the Childs Parties were to
“give [Turley] 60 days notice of any bona fide offer,” and it was
“understood that if an offer came in on the last day of the eight-

1. Ordinarily, when reviewing a grant of summary judgment, we
view “the facts in a light most favorable to the losing party
below.” Goodnow v. Sullivan, 2002 UT 21, ¶ 7, 44 P.3d 704
(quotation simplified). In this case, however, Turley’s summary
judgment motion was not timely opposed, and (as discussed
below) the district court treated all facts contained in the motion
as admitted. See Utah R. Civ. P. 56(a)(4). We therefore recite the
facts as framed by Turley’s motion, but—as discussed below, infra
Part II.A—we still consider inferences that might be drawn from
those admitted facts in a light favorable to the Childs Parties.

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month period [the parties] would still have 60 days to effectuate”
a closing. “At the end of eight months if the [P]roperty ha[d] not
been sold or [was] not under contract to be sold,” Turley could
“purchase [the Property] . . . at an appraised amount.” If the
parties did not “agree on the appraisal that [came] forward,” then
each side would “identify an appraiser” and “[t]hose two
appraisers [would] then identify a third appraiser” whose
valuation would serve as “the appraised value” that Turley
would “pay in order to purchase [the Property].” The appraisal
was to “comply with the federal standards, which are commonly
referred to as yellow book standards.”

¶4 After Turley’s attorney finished reciting the terms of the
Agreement, the Childs Parties’ attorney confirmed that “that is
our agreement.” The court then asked both Trudy and Rory
Childs if that was “the agreement as [they] underst[ood] it,” and
they each replied in the affirmative. The parties then stated their
intent to “formalize” the Agreement and, at a later date, “provide
to the court a notice of dismissal” of the lawsuit.

¶5 The parties, however, were never able to “formalize” the
Agreement to their mutual satisfaction. Over the next couple of
years, they exchanged various draft documents, but were unable
to agree on the terms of a formal settlement document. At one
point, the court issued a notice asking the parties to show cause
why their dormant First Lawsuit should not be dismissed, and the
parties responded with a joint statement, signed by counsel for
both sides, stating that they were working on a formal document
but “there exists a dispute about a couple of terms that the parties
are trying to resolve,” and expressed their belief that the last
remaining issues would be resolved within thirty days. But the
parties’ optimism was misplaced, and eventually Turley filed a
motion to enforce the Agreement. In response, the Childs Parties
filed a document asserting, among other things, that they would
be “happy to sign a printed copy of the [trial] transcript together
with [the unsigned handwritten memorandum] as the final
agreement.” A few months later, the parties agreed to dismiss the

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First Lawsuit with prejudice, even though no formal settlement
document had been signed.

¶6 In the meantime, the Childs Parties had moved forward
with marketing the Property. No third-party buyer made an offer
on the Property, so each side selected an appraiser, and those two
appraisers selected a third appraiser (Appraiser 1). But the Childs
Parties objected to Appraiser 1, and he was unable to complete his
work. Later, however, the parties agreed to have a different
appraiser (Appraiser 2) perform an appraisal of the Property, but
he also discontinued his efforts, apparently due to the Childs
Parties’ refusal to sign an engagement letter for his services.
Finally, Turley re-engaged Appraiser 1—the appraiser selected by
the two sides’ chosen appraisers—and asked him to complete an
appraisal on the Property. After completing his work, Appraiser 1
issued a lengthy report in which he concluded that the Property’s
value was $1.618 million. Within a week of the issuance of
Appraiser 1’s report, Turley tendered $1.618 million to the Childs
Parties via cashier’s check.

¶7 During this time, Turley filed a second motion to enforce
the Agreement, and did so under the auspices of the dismissed
First Lawsuit. The Childs Parties filed no opposition to Turley’s
motion and the court therefore granted it, but the Childs Parties
objected to the form of the order granting Turley’s motion. The
court scheduled a “status conference” for May 14, 2018, to discuss
the situation. Four days before the scheduled hearing, on May 10,
the Childs Parties filed a bankruptcy petition, an act that required
the court to postpone the hearing. 2 The Childs Parties dismissed

2. A bankruptcy petition operates as an automatic stay of most
litigation involving the debtor, including all collection and
enforcement proceedings. See 11 U.S.C. § 362(a), (b). After that
point, litigation involving the debtor may continue only with
permission of the bankruptcy court. See id. § 362(d), (f) (stating
that the bankruptcy court “shall grant relief from the stay” under
certain circumstances).

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their bankruptcy petition in June 2018, and the court rescheduled
the hearing for August 13, 2018. But the day before that hearing,
on August 12, Trudy Childs filed a bankruptcy petition, an act
that required the court to again postpone consideration of the
matter. The second bankruptcy petition was dismissed in
December 2018.

¶8 At that point, Turley filed a second lawsuit (the instant
lawsuit, referred to herein as “the Second Lawsuit”) to seek
enforcement of the Agreement. In particular, Turley brought
claims for declaratory judgment that the Agreement was valid
and enforceable and for specific performance under the
Agreement. The attorney who had previously represented the
Childs Parties in the First Lawsuit did not enter an appearance on
their behalf in the Second Lawsuit, but he did apparently assist
them in filing a pro se answer to Turley’s complaint. As the case
progressed, the Childs Parties, now proceeding pro se, did not
submit initial disclosures or conduct any discovery, and after the
discovery deadline passed, Turley filed a motion for summary
judgment and for sanctions.

¶9 Turley’s motion—which encompassed some 513 pages and
included twenty-five exhibits, including affidavits, deposition
transcripts, court documents from the First Lawsuit, and
Appraiser 1’s full report—was filed on August 18, 2020. In the
motion, Turley argued that the Agreement was “a binding,
enforceable contract as read into the court record” at the trial in
2014. Specifically, Turley asserted that the Childs Parties had
agreed that what was read into the record accurately reflected
their agreement, that it was common for oral agreements to later
be formalized, and that any lack of later memorialization did not
“preclude the enforcement or finality of [the Agreement] . . . so
long as the terms [were] sufficiently definite as to be capable of
being enforced.” Turley also pointed out that the Childs Parties
had earlier stated that they were “happy to sign a printed copy of
the [t]rial transcript together with [the unsigned handwritten
memorandum] as the final agreement.”

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¶10 And Turley asserted that he had performed pursuant to the
Agreement. No buyer had offered to purchase the Property
during the eight-month marketing period, and therefore Turley’s
right to purchase the Property for an appraised value was
triggered. Thereafter, each side had designated an appraiser, and
those two appraisers selected Appraiser 1 to value the Property.
Appraiser 1’s valuation was delayed due to the Childs Parties’
objection, but he eventually completed an appraisal of the
Property, valuing it at $1.618 million. And Turley tendered that
amount to the Childs Parties.

¶11 In the part of his motion addressing sanctions, Turley also
asserted that the Childs Parties had not complied with their
obligations during discovery, specifically pointing out that they
had not submitted initial disclosures and had failed to attend their
duly noticed depositions. Although Turley sought sanctions
pursuant to both rule 26 and rule 37 of the Utah Rules of Civil
Procedure, Turley had not—before filing the motion—filed any
statement of discovery issues bringing to the court’s attention any
of the Childs Parties’ alleged discovery violations. 3

3. As the district court correctly recognized, rule 37 sanctions are
not available for certain discovery violations unless the
complaining party first files a statement of discovery issues and
obtains a court order commanding compliance, and can
demonstrate that the other party failed to comply with the order.
See Utah R. Civ. P. 37(b) (stating that the court “may impose
appropriate sanctions for the failure to follow its orders”); see also
Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 49, 476 P.3d
542. But the situation may be different if the specific discovery
failure at issue is a party’s failure to attend a duly noticed
deposition. See Utah R. Civ. P. 37(d) (authorizing a party to “file a
motion for sanctions” if another party “fails to appear” at a duly
noticed deposition, and stating that “[t]he failure to appear may
not be excused on the ground that the discovery sought is
(continued…)

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¶12 The Childs Parties did not timely oppose Turley’s motion;
instead, on September 1, 2020—just days before their opposition
memorandum would have been due—Trudy Childs filed yet
another bankruptcy petition. On October 15, however, the
bankruptcy case was dismissed, apparently due to Trudy Childs’s
failure to complete the required pre-filing credit counseling
briefing prior to filing.

¶13 Two weeks later, on October 30—after the court had
scheduled a hearing for November 3 to consider the pending
motions—a new attorney entered an appearance on behalf of the
Childs Parties and filed a belated memorandum in opposition to
Turley’s motion, as well as a motion of their own asking the court
to reset the case deadlines, including discovery deadlines and the
deadline for responding to Turley’s motion. At the November 3
hearing, the court continued the oral argument in light of
“recent[ly] filed documents,” and reset the hearing for December
4. In the interim period, Turley filed a lengthy reply
memorandum in support of his motion, in the event the court
allowed the Childs Parties to file their belated memorandum.

¶14 Following oral argument, the district court took the matter
under advisement, and later issued a written decision. In that
ruling, the court denied the Childs Parties’ motion to reschedule
the case deadlines, concluding that the Childs Parties had not
demonstrated excusable neglect for their failure to conduct
discovery or timely respond to Turley’s motion. In particular, the
court found that the Childs Parties had acted in bad faith in
connection with their repeated bankruptcy filings, and
determined that the Childs Parties had not shown any good
reason for their delay. The court therefore refused to consider the
Childs Parties’ belated opposition memorandum, thereby

objectionable unless the party failing to appear has filed a
statement of discovery issues”). We need not delve deeper into
these issues in this case, and leave further exploration of these
rules for future cases in which the issue is squarely presented.

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rendering Turley’s motion unopposed. Then, applying the now
undisputed facts from Turley’s unopposed motion, the court
concluded that there were no genuine issues of material fact that
precluded summary judgment in favor of Turley, and that Turley
was entitled to judgment as a matter of law. The court therefore
granted Turley’s motion for summary judgment, specifically
declaring the Agreement to be valid and issuing an order for
specific performance of its terms.

ISSUES AND STANDARDS OF REVIEW

¶15 The Childs Parties now appeal, raising two issues that
require our attention. 4 First, they argue that the district court
abused its discretion by refusing to grant their motion to reset the
case deadlines and allow them leave to file a belated
memorandum in opposition to Turley’s motion for summary
judgment. A decision to grant or deny a motion for extension of
time is discretionary, and “we will not reverse the court’s decision
absent an erroneous conclusion of law or where there is no

4. The Childs Parties also raise a challenge to the district court’s
ruling regarding sanctions. Although the court rejected Turley’s
request for sanctions pursuant to rule 37(d) of the Utah Rules of
Civil Procedure on the basis that Turley had not filed a statement
of discovery issues, the court granted Turley’s request—
grounded in rule 26(d)(4) of the Utah Rules of Civil Procedure—
to forbid the Childs Parties from presenting any undisclosed
evidence at trial. The Childs Parties challenge the court’s order of
exclusion, asserting that the order went too far in that it prevented
the Childs Parties from “relying even upon documents, witnesses,
and information that Turley himself disclosed.” We need not
consider this challenge, however, because—as discussed below—
we affirm the court’s entry of summary judgment in Turley’s
favor. When a case ends at the summary judgment stage, it is not
necessary to delve into the propriety of evidentiary orders that
would have governed the eventual trial.

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evidentiary basis for the court’s ruling.” Freight Tec Mgmt. Group
Inc. v. Chemex Inc., 2021 UT App 92, ¶ 18, 499 P.3d 894 (quotation
simplified); see also R4 Constructors LLC v. InBalance Yoga Corp.,
2020 UT App 169, ¶ 7, 480 P.3d 1075 (“We review a court’s
decision on extending . . . time . . . for an abuse of discretion,
reversing only if there is no reasonable basis for the district court’s
decision.” (quotation simplified)).

¶16 Second, the Childs Parties assert that the district court
erred by granting Turley’s unopposed motion for summary
judgment. In cases involving summary judgment motions that are
timely opposed, “we review a district court’s grant of summary
judgment for correctness and afford no deference to the court’s
legal conclusions.” Freight Tec, 2021 UT App 92, ¶ 19 (quotation
simplified). Where the motion stands unopposed, the matter is
more complicated, and we discuss a district court’s duties in this
situation, as well as our standard for reviewing a court’s exercise
of those duties, more fully below in Part II.A.

ANALYSIS

I

¶17 The Childs Parties first argue that the district court abused
its discretion when it denied their motion to reset the case
deadlines. They complain, in particular, about the court’s decision
to refuse to consider their belated memorandum in opposition to
Turley’s summary judgment motion. The court denied the Childs
Parties’ motion based on its determination that they had not
shown excusable neglect. While that determination was perhaps
not the only permissible one under the circumstances, we discern
no abuse of discretion in the court’s decision.

¶18 The Childs Parties’ motion was grounded in rule 6(b)(1)(B)
of the Utah Rules of Civil Procedure, which permits a court to
extend case deadlines “if the party failed to act because of
excusable neglect.” Our supreme court has described “excusable

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neglect” as “an admittedly neglectful delay that is nevertheless
excused by special circumstances.” See Reisbeck v. HCA Health
Services of Utah, Inc., 2000 UT 48, ¶ 13, 2 P.3d 447 (quotation
simplified). Utah appellate courts have listed four factors that
are often considered when examining a party’s claim that it
missed a deadline due to excusable neglect: “(1) whether [the
moving party] acted in good faith; (2) the danger of prejudice
to the non-moving party; (3) the reason for [the moving party’s]
delay; and (4) the length of the delay and its potential impact
on judicial proceedings.” Stoddard v. Smith, 2001 UT 47, ¶ 24, 27
P.3d 546. But this list of factors is not intended to be exclusive
or exhaustive. See West v. Grand County, 942 P.2d 337, 340–41
(Utah 1997) (stating that the four factors are “relevant to a
determination of excusable neglect,” but that they are ”not
dispositive”); see also Jones v. Layton/Okland, 2009 UT 39, ¶ 18, 214
P.3d 859 (stating that “there is no specific legal test for excusable
neglect,” and that “no one factor or set of factors [is] necessarily
dispositive”). Indeed, “the question of whether [a party’s]
conduct is excusable is an equitable one, and such a determination
should take into account all relevant circumstances surrounding
the party’s neglect.” West, 942 P.2d at 340; see also Jones, 2009 UT
39, ¶ 25 (stating that, in making an excusable neglect
determination, “the district court is free to consider all relevant
factors and give each factor the weight that it determines it
deserves”). “[T]he ultimate goal of the excusable neglect inquiry”
is to determine “whether the moving party has been sufficiently
diligent that the consequences of its neglect may be equitably
excused.” Jones, 2009 UT 39, ¶ 20.

¶19 In this case, the district court considered all four of the
factors enumerated above, and concluded that two of them—
prejudice and the length of the delay—weighed only slightly, if at
all, against the Childs Parties. The court concluded that only
“modest prejudice” and a short delay had resulted from the
Childs Parties’ lack of diligence. After all, Turley had been able to
file a provisional reply memorandum responding to the Childs
Parties’ belated opposition brief.

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¶20 But the court concluded that the other two factors—
whether the Childs Parties acted in good faith, and the reason for
their delay—weighed heavily in favor of denying the Childs
Parties’ motion. With regard to the “good faith” factor, the court
found that not only had the Childs Parties failed to exhibit good
faith, they had acted in affirmative bad faith. Most relevant to the
court’s analysis was the Childs Parties’ demonstrated “pattern” of
making bankruptcy filings on the eve of important court hearings,
and then dismissing those filings later before they reached a
conclusion. The court acknowledged that the Childs Parties
“dispute[d] the inference that their bankruptcy filings were made
in bad faith,” but noted that they “offer[ed] little in the way of any
other explanation.”

¶21 With regard to the reason for their delay, the Childs
Parties’ only offered excuse was that they were proceeding pro se,
but the court noted that they were savvy enough to figure out how
to file strategically timed bankruptcy petitions on their own.
Indeed, as the court saw it, the Childs Parties’ “professed
misunderstanding [was] undermined by their experience in filing
petitions for bankruptcy, and the suspect timing of those prior
filings.” The court also noted that pro se defendants, even though
they are “entitled to every consideration that may reasonably be
indulged,” are expected to comply with the same rules as other
litigants. See Allen v. Friel, 2008 UT 56, ¶ 11, 194 P.3d 903 (also
stating that pro se litigants are “held to the same standard of
knowledge and practice as any qualified member of the bar”
(quotation simplified)). In the end, the court concluded that “the
simplest explanation for the delay in this case is bad faith on the
part of” the Childs Parties. The court also found that the Childs
Parties’ “excuses simply lack credibility,” and that their
bankruptcy filings were “a tactic” that they employed, “with
some success,” to strategically delay judicial proceedings.

¶22 In discussing these two factors, the court determined
that the Childs Parties had “demonstrated no diligence” at all
in responding to the motion, instead making a conscious choice

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to rely on Trudy Childs’s bankruptcy petition to stay the
proceedings. Our supreme court has noted that, “while a
party need not be perfectly diligent in order to obtain relief” due
to excusable neglect, “some diligence is necessary,” and that a
grant of “relief on the ground of excusable neglect where a
party has exercised no diligence at all . . . subverts the purpose of
the excusable neglect inquiry.” See Jones, 2009 UT 39, ¶ 23. And
we have affirmed the denial of a motion claiming excusable
neglect where a party made a “conscious choice” not to file a
timely pleading. See Somer v. Somer, 2020 UT App 93, ¶ 23, 467
P.3d 924.

¶23 Thus, although two of the four factors did not cut sharply
in favor of either party, the other two weighed heavily in favor of
denying the Childs Parties’ motion. The court appropriately
examined “all relevant circumstances surrounding the [parties’]
neglect,” see West, 942 P.2d at 340, and ultimately determined that
the Childs Parties had not “been sufficiently diligent that the
consequences of [their] neglect may be equitably excused,” see
Jones, 2009 UT 39, ¶ 20. Under the circumstances presented here,
we discern no abuse of discretion in the court’s analysis, and on
that basis reject the Childs Parties’ challenge to the court’s denial
of their motion to extend deadlines.

II

¶24 Our determination that the district court did not abuse its
discretion in denying the Childs Parties’ motion to extend timing
deadlines means that the court did not err by treating Turley’s
summary judgment motion as unopposed. Nevertheless, the
Childs Parties challenge the court’s decision to grant Turley’s
unopposed motion. We begin our analysis with a general
discussion of the scope of a district court’s duties when
considering an unopposed summary judgment motion, and the
scope of our duties in reviewing a court’s grant of such a motion.
We then consider whether the district court acted appropriately
under the circumstances of this case.

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A

¶25 In many situations, a district court has discretion to grant a
motion merely because the nonmovant fails to oppose it. See 56
Am. Jur. 2d Motions, Rules, & Orders § 28 (2022) (stating that courts
“may construe” a party’s “failure to respond” to a motion “as
nonopposition” or as “an admission that the motion was
meritorious,” and that a party’s failure to respond to a motion can
be taken as an indication that the “party has waived any
objection” to the motion). But in some contexts, courts are not
permitted to grant a motion on the sole basis that the motion
stands unopposed. The summary judgment context falls within
this category. See Tronson v. Eagar, 2019 UT App 212, ¶ 17, 457 P.3d
407 (stating that “summary judgment may not be entered against
the nonmoving party merely by virtue of a failure to oppose” the
motion (quotation simplified)).

¶26 Under our rules of civil procedure, summary judgment
may be granted “if the moving party shows that there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a).
When a nonmovant fails to respond to a summary judgment
motion, “[e]ach material fact set forth in the motion . . . is deemed
admitted for the purposes of the motion.” Id. R. 56(a)(4). In that
situation, courts must accept as true all of the facts set forth and
supported in the movant’s papers, and in this way courts “depart
from [their] usual [summary judgment] posture of construing all
facts in favor of the non-moving party.” See Smith ex rel. Smith v.
Severn, 129 F.3d 419, 425 (7th Cir. 1997) (quotation simplified).
Indeed, courts “refuse to consider any facts contradicting” the
admitted facts set forth and supported in the movant’s papers. See
id. Nevertheless, courts in this situation must still view “all
reasonable inferences drawn” from those admitted facts “in the
light most favorable to the non-moving party.” Id.

¶27 But even in cases in which a summary judgment motion
stands unopposed, a nonmovant’s failure to respond to the

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motion does not, by itself, entitle the movant to relief; indeed, the
applicable rule makes clear that a district court may grant a
summary judgment motion only “if the motion and supporting
materials—including the facts considered undisputed—show
that the moving party is entitled to” judgment as a matter of law.
See Utah R. Civ. P. 56(e)(3); see also Tronson, 2019 UT App 212, ¶ 17.
Thus, even where a summary judgment motion stands
unopposed, a district court is still obligated to examine the filed
motion, and must still “determine whether the moving party’s
pleadings, discovery, and affidavits demonstrate its entitlement
to judgment as a matter of law.” Tronson, 2019 UT App 212, ¶ 17
(quotation simplified); see also Gardiner v. Anderson, 2018 UT App
167, ¶ 8 n.5, 436 P.3d 237 (“Even in situations where a motion for
summary judgment is unopposed, the moving party bears the
burden of showing that it is entitled to summary judgment as a
matter of law by demonstrating it is entitled to the remedy it seeks
either under a contract or law.”). And “[w]here 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.” Orvis v. Johnson, 2008 UT 2, ¶ 10,
177 P.3d 600; see also id. ¶¶ 18–19 (discussing the different
summary judgment burdens parties carry, depending on whether
the movant or the nonmovant bears the burden of proof at trial).

¶28 A district court’s inquiry in the context of an unopposed
summary judgment motion is not intended to be particularly
searching. Certainly, a district court must review the moving
papers, and may not grant the motion without conducting such a
review simply because the motion is unopposed. But if, after
reviewing the unopposed motion, it appears to the court that the
movant has connected the relevant dots—that is, that the moving
papers recite supported facts which, taken as true, appear to
entitle the movant to relief under applicable law—then the motion
should be granted. See Tronson, 2019 UT App 212, ¶¶ 20–21
(noting that the movant’s motion included “sworn affidavits” as
well as copies of the relevant contracts, and concluding that “[a]ny
judge reviewing the unopposed motion and its seven exhibits

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would have been satisfied that [the movant] was entitled to
judgment as a matter of law”). On the other hand, if after review
of the moving papers it is not apparent to the court that the
movant is entitled to judgment as a matter of law, the motion
should be denied, despite its unopposed status. See, e.g., Smith v.
Kirkland, 2017 UT App 16, ¶¶ 14–31, 392 P.3d 847 (reversing a
district court’s grant of an unopposed summary judgment motion
where the motion was supported only by inadmissible evidence
and where “the deficiencies of the [motion] . . . were apparent on
its face”); Pepperwood Homeowners Ass’n v. Mitchell, 2015 UT App
137, ¶ 7, 351 P.3d 844 (reversing a district court’s grant of an
unopposed summary judgment motion where the movant failed
to attach or include a copy of the operative contract, and therefore
had “failed to produce evidence of an underlying contract or
covenant that would entitle it to judgment as a matter of law”).

¶29 In Tronson, we stated that “a nonmovant who fails to
oppose a summary judgment motion has thereby failed to
preserve any objection to the district court’s entry of summary
judgment against it, and that, on appeal, any challenge to the
district court’s entry of an unopposed summary judgment motion
would be reviewed only for plain error.” 2019 UT App 212, ¶ 18.
But since Tronson, we have determined that plain error review is
unavailable in most civil cases. See Kelly v. Timber Lakes Prop.
Owners Ass’n, 2022 UT App 23, ¶ 44, 507 P.3d 357 (holding that
“plain error review is not available in ordinary civil cases unless
expressly authorized by rule”). We must therefore reconsider how
and under what standard we review appellate challenges to a
district court’s grant of an unopposed summary judgment
motion. We conclude that we must review for correctness the
question of whether the movant’s papers, on their face, indicate
that the movant is entitled to judgment as a matter of law. That is,
we must satisfy ourselves—just as district courts must—that the
requirements of rule 56 are met on the face of the moving papers.
But absent extraordinary circumstances, that is the end of our
inquiry, and any defenses or counter-arguments that the
nonmovant might have raised in a never-filed opposition

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Turley v. Childs

memorandum are unpreserved and cannot be raised or
considered on appeal.

¶30 A nonmovant is therefore entitled to challenge, on appeal,
whether the district court correctly determined, after examination
of the movant’s papers, that the movant’s “motion and
supporting materials—including the facts considered
undisputed—show that the moving party is entitled to” judgment
as a matter of law. See Utah R. Civ. P. 56(e)(3). And a district
court’s determination as to whether a movant is entitled to
judgment as a matter of law is always reviewed for correctness.
See Freight Tec Mgmt. Group Inc. v. Chemex Inc., 2021 UT App 92,
¶ 19, 499 P.3d 894. We see no reason to depart from this
established standard of review merely because the motion in
question went unopposed.

¶31 But in this context, our review is limited—as the district
court’s examination was—to consideration of what appears on the
face of the movant’s motion and accompanying papers. Our
inquiry is exactly the same as the district court’s: does it appear,
from the unopposed facts set forth in the motion and from the
exhibits and attachments to the motion (as contained in the
appellate record), that the movant is entitled to judgment as a
matter of law? In other words, if the unopposed facts are true—as
must be assumed—does the law as applied to those facts entitle
the movant to prevail? We will affirm if we can answer that
question in the affirmative.

¶32 One thing we will not do—absent extraordinary
circumstances—is consider a nonmovant’s defenses, counter-
arguments, or legal theories that could have been raised in a
never-filed memorandum in opposition to the motion. Neither the
district court nor this court is an advocate for either side, and
neither is obligated to scour the record to come up with
arguments or theories that the nonmoving party had an
opportunity to raise but did not. Such theories were, by definition,
not presented to the district court and are therefore not preserved

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Turley v. Childs

for appellate review. As noted, prior to Kelly we allowed parties
to raise “any challenge” to a district court’s entry of an unopposed
summary judgment motion on appeal, but reviewed such
challenges under the plain error standard. See Tronson, 2019 UT
App 212, ¶ 18. But plain error review is no longer available in
most civil cases. See Kelly, 2022 UT App 23, ¶ 44. There are only
three exceptions to our preservation requirements: “plain error,
ineffective assistance of counsel, and exceptional circumstances.”
See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443. The first two of
those exceptions are now not ordinarily available to civil litigants,
leaving “exceptional circumstances” as the sole available
exception to our preservation requirements. Thus, absent a
showing by an appellant that exceptional circumstances compel
examination of unpreserved legal theories that could have been
raised in opposition to a summary judgment motion, such
theories may not be raised or considered on appeal.

B

¶33 With these principles in mind, we turn to the Childs
Parties’ specific challenges to the district court’s entry of summary
judgment in favor of Turley. We note at the outset that Turley
sought summary judgment on claims for which he bore the
burden of proof at trial: claims for declaratory judgment that the
Agreement was valid and enforceable, and for an order
commanding the Childs Parties to specifically perform
thereunder. Thus, to obtain summary judgment, Turley was
required to “establish each element of his claim in order to show
that he is entitled to judgment as a matter of law,” and to do so
Turley needed to “provide the court with facts that demonstrate
both that [he] is entitled to judgment as a matter of law and that
there are no material issues of fact that would require resolution
at trial.” See Orvis v. Johnson, 2008 UT 2, ¶¶ 10, 19, 177 P.3d 600.
Accordingly, just as the district court did, we must examine
Turley’s moving papers and determine whether, on the face of
those papers and in light of those standards, Turley appears
entitled to summary judgment.

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Turley v. Childs

¶34 As noted above, Turley’s motion is lengthy and well-
supported. It comprises over 500 pages of the appellate record.
The motion itself is twenty-six pages long, and comes
accompanied by twenty-five exhibits, some of which also include
a number of attachments. Among the exhibits and attachments
are both the unsigned handwritten memorandum and the
transcript of the trial proceedings at which the parties recited the
terms of the Agreement. The attachments also include
Appraiser 1’s full report as well as sworn affidavits from Turley
and several other witnesses setting forth and supporting the
relevant facts: that the Childs Parties marketed the Property for
eight months and received no offers; that Appraiser 1—after being
selected by the two appraisers chosen by the parties—valued the
Property at $1.618 million; and that Turley tendered that amount
by cashier’s check to the Childs Parties. We have reviewed the
motion and its attachments, and we agree with the district court
that the motion, on its face, contains enough information, analysis,
and admissible supporting evidence to satisfy Turley’s summary
judgment burden on his claims for declaratory judgment and
specific performance.

¶35 The Childs Parties resist this conclusion on three grounds,
none of which we find persuasive. First, they assert that the
Agreement is not complete or definite enough to be enforceable,
and that the parties—by informing the court that they intended to
formalize the Agreement—“did not intend to be bound until their
preliminary agreement was reduced to writing.” We disagree,
because under the unopposed facts set forth in Turley’s motion,
the Agreement was not intended to be preliminary, and it is
definite enough to be enforceable.

¶36 “Settlement agreements are governed by the rules applied
to general contract actions,” and “a contract may be enforced even
though some contract terms may be missing or left open to be
agreed upon.” Patterson v. Knight, 2017 UT App 22, ¶ 6, 391 P.3d
1075 (quotation simplified). In particular, it is common for parties
to reach an enforceable oral agreement and still want to

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memorialize it more formally in writing; in such a situation, the
oral agreement is not unenforceable simply because the parties
envisioned a more formal writing being signed later. See Badger v.
MacGillivray, 2016 UT App 109, ¶ 2, 374 P.3d 1053 (per curiam)
(“If a written agreement is intended to memorialize an oral
contract, a subsequent failure to execute the written document
does not nullify the oral contract.” (quotation simplified)). What
matters is whether the oral agreement, as articulated and
understood, is sufficiently definite to be enforceable. See Park Prop.
Mgmt. LLC v. G6 Hosp. Franchising LLC, 2022 UT App 75, ¶ 24
(stating that settlement agreements are enforceable “even though
some contract terms may be missing or left open to be agreed
upon, so long as the essential terms are not so uncertain that there
would be no basis for deciding whether the agreement had been
kept or broken” (quotation simplified)); see also Patterson, 2017 UT
App 22, ¶ 6 (stating that only when the “essential terms” of an
oral settlement agreement “are so uncertain that there is no basis
for deciding whether the agreement has been kept or broken” will
we conclude that “there is no contract”).

¶37 In this case, the summary judgment papers indicate that
the Agreement—as expressed in the handwritten memorandum
and in the trial transcript—was intended to be binding, despite
the parties’ intention to more formally memorialize it. The parties
did not use words like “preliminary” or “contingent” in
describing the Agreement. In the moment, both sides appeared to
believe that the Agreement was binding, with the Childs Parties’
attorney confirming to the court that the recited terms constituted
“our agreement.” Notably, the Childs Parties later stated, in a
court filing, that they would be “happy to sign a printed copy of
the [trial] transcript together with [the unsigned handwritten
memorandum] as the final agreement.” (Emphasis added.)
Moreover, the parties thereafter acted as though the Agreement
was in force, by marketing the Property and choosing appraisers.

¶38 And the Agreement, as set forth in the handwritten
memorandum and as described by the parties in the trial

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transcript, is sufficiently definite to be enforceable. Under that
Agreement, the Childs Parties were to market the Property
generally for eight months, and would “grant to [Turley] a right
of first refusal to purchase” the entire Property; that right of first
refusal was to exist for the entirety of the eight-month marketing
period. During that period, the Childs Parties were to “give
[Turley] 60 days notice of any bona fide offer,” and it was
“understood that if an offer came in on the last day of the eight-
month period [the parties] would still have 60 days to effectuate”
a closing. “At the end of eight months if the [P]roperty ha[d] not
been sold or [was] not under contract to be sold,” Turley could
“purchase [the Property] . . . at an appraised amount.” If the
parties did not “agree on the appraisal that [came] forward,” then
each side would “identify an appraiser” and “[t]hose two
appraisers [would] then identify a third appraiser” whose
valuation would serve as “the appraised value” that Turley
would “pay in order to purchase [the Property].” The appraisal
was to “comply with the federal standards, which are commonly
referred to as yellow book standards.”

¶39 We agree with the district court’s assessment of the
Agreement. The court determined that the Agreement “includes
the necessary basic terms, including the identification of the
parties” to the Agreement, “identification of the Property at
issue,” the “formulation of a sale price, and a general timeline for
arriving at a final sale of the Property.” While a more formal
memorialization of this Agreement might have been more specific
or included additional related items, we agree with the district
court that the Agreement—as described in Turley’s unopposed
motion—contained the necessary basic terms and was sufficiently
definite to be enforceable. 5 See Patterson, 2017 UT App 22, ¶ 8.

5. In arguing to the contrary, the Childs Parties rely heavily on
Lebrecht v. Deep Blue Pools & Spas Inc., 2016 UT App 110, 374 P.3d
1064. But that case is distinguishable from this one. First, the
(continued…)

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Turley v. Childs

¶40 Second, the Childs Parties assert that Turley did not
present evidence sufficient to demonstrate that he exercised his
option in a timely manner. While the Agreement contained
certain time limits that were to apply in the event that Turley
opted to match an offer made by a third party during the
marketing period, the Agreement did not set forth particular time
limits that would govern if no third-party offer was made and if
the parties ended up having to obtain an appraisal. Both parties
agree that a “reasonable time” limitation should be implied. See
Coulter & Smith, Ltd. v. Russell, 966 P.2d 852, 858 (Utah 1998)
(holding that in Utah “the settled rule is that if a contract fails to
specify a time of performance the law implies that it shall be done
within a reasonable time under the circumstances”). The Childs
Parties assert that Turley’s motion did not provide sufficient
evidence that Turley acted within a reasonable time. We disagree.

¶41 Turley’s motion recites that no third-party offer was
received during the marketing period, and that thereafter both
sides selected appraisers as specified by the Agreement. The facts
as recited by Turley do discuss some delays in the process after
that, but—as described by Turley—those delays were the fault of
the Childs Parties due to their objection to Appraiser 1 and their
refusal to sign an engagement letter agreeing to pay Appraiser 2.
In the end, Turley asserts, with evidentiary support, that he
tendered the appraised amount within one week of receiving
Appraiser 1’s report. These facts, when deemed undisputed (as

“Term Sheet” at issue in Lebrecht was not intended to be binding,
with one side having expressly reserved the right to “review it
with legal counsel” before committing to its terms. Id. ¶ 19. As
discussed above, the summary judgment papers indicate that the
Agreement in this case was intended to be binding. Second, the
“Term Sheet” in Lebrecht was less definite than the Agreement
here. “It consist[ed] of several bullet-point terms and phrases that,
without the assistance of extrinsic evidence, [were] vague or
unclear,” and it lacked basic identifying information, “including
for which party each term applie[d].” Id. ¶ 15.

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Turley v. Childs

they must be given the Childs Parties’ failure to oppose the
motion), are sufficient to demonstrate that Turley acted within a
reasonable time frame.

¶42 Any arguments to the contrary are precisely the sort of
thing that needed to have been raised in a timely opposition to
Turley’s motion. If the Childs Parties wished to take issue with
the reasonableness of Turley’s timing, they needed to oppose
Turley’s motion by arguing that the timing was, in fact, not
reasonable or by providing affidavits or other evidentiary support
tending to show that Turley had been dilatory and that any delays
were not their fault. See id. (stating that “what is a reasonable time
under the circumstances . . . is a factual determination”). But
because Turley’s motion went unopposed, we accept the
undisputed facts as recited in his motion. See Utah R. Civ. P.
56(a)(4). In this situation, neither the district court nor this court is
under any obligation to scour the record to look for evidence to
contradict Turley’s contentions. And though Turley’s motion
never specifically recited that he exercised his option in a timely
fashion, he did assert that he had done “all that was required of
him under the terms of the Agreement,” a contention which
necessarily includes the timely exercise of his option. We must
take that fact as true for purposes of our analysis, and there is no
reasonable inference that we could draw from that fact that would
be of assistance to the Childs Parties. Any theory to the contrary
falls squarely within the category of arguments that are waived
upon failure to respond to a motion for summary judgment.

¶43 Finally, the Childs Parties assert that Turley did not present
evidence demonstrating that Appraiser 1’s report met federal
“yellow book” standards. The Childs Parties correctly note that
this was a specific term of the Agreement, as recited to the court
during trial in the First Lawsuit. But under the circumstances
presented here, the Childs Parties’ contention that this term was
not complied with also falls within the category of things that are
waived by not opposing a summary judgment motion. As noted,
Turley asserted that he had done “all that was required of him

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under the terms of the Agreement,” a contention that would
include providing a proper appraisal. And more specifically,
within Appraiser 1’s report—which is more than 100 pages long—
he certified that his analysis was “in conformity with the
requirements of the Code of Professional Ethics and Standards,”
that his report was prepared in conformity with uniform
standards, and that he was certified and licensed to perform the
appraisal by the State of Utah. This was sufficient: given these
assertions, Turley was not obligated to expressly state, in his
moving papers, that the appraisal report satisfied “yellow book”
standards. If the Childs Parties believed that some aspect of
Appraiser 1’s work did not meet those standards, they had an
opportunity to point that out, and to support any such contention
with evidence, in an opposition memorandum. 6 They did not
avail themselves of that opportunity. That contention is now
waived, and will not be considered for the first time on appeal.

¶44 In short, we perceive no error in the district court’s analysis
of Turley’s unopposed summary judgment motion. As far as we
can tell, the court carefully examined that motion; indeed, it
engaged in a five-page analysis of whether the undisputed facts
set forth in Turley’s motion, viewed in light of applicable law,
entitled him to summary judgment. We have engaged in the same
examination, and we reach the same conclusion.

CONCLUSION

¶45 The district court did not abuse its discretion by denying
the Childs Parties’ motion to extend the case deadlines, and
therefore the district court did not act inappropriately in treating
Turley’s summary judgment motion as unopposed. And the court
did not err in determining that Turley’s unopposed motion, along

6. Even on appeal, the Childs Parties do not actually identify any
aspect of Appraiser 1’s report that was noncompliant with
“yellow book” standards.

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with its voluminous attachments, demonstrated that Turley was
entitled to judgment as a matter of law.

¶46 Affirmed.

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