Mower v. Moyer

2017 UT App 188

THE UTAH COURT OF APPEALS

GREGORY MOWER,
Appellant,
v.
MICHAEL MOYER AND THRIVE WHOLESALE GROWERS INC.,
Appellees.

Opinion
No. 20150782-CA
Filed October 13, 2017

Fourth District Court, Spanish Fork Department
The Honorable M. James Brady
No. 130300106

Benjamin A. Kearns, Attorney for Appellant
Peter C. Schofield, Adam D. Wahlquist, and Jacob A.
Green, Attorneys for Appellees

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
JILL M. POHLMAN and RYAN M. HARRIS concurred.

TOOMEY, Judge:

¶1 Gregory Mower appeals the district court’s order granting
summary judgment in favor of the defendants, Michael Moyer
and Thrive Wholesale Growers, Inc. (collectively, Thrive), on all
of Mower’s claims against Thrive. Mower argues the district
court erred in granting summary judgment based on his failure
to comply with rule 7 of the Utah Rules of Civil Procedure. We
affirm. 1

1. Mower also argues summary judgment was inappropriate
because there were genuine issues of material fact. Because we
conclude it was appropriate to grant summary judgment on
(continued…)
Mower v. Moyer

BACKGROUND

¶2 This case stems from an oral contract involving the
transportation, storage, and sale of trees. In September 2013,
Mower and Tree Supply, LLC, an entity Mower formed for the
purpose of performing the contract, filed an amended complaint
against Thrive, alleging, among other things, breach of contract
and unjust enrichment. 2 In May 2015, counsel for Mower and
Tree Supply withdrew at Mower’s request. Mower proceeded as
a pro se plaintiff, but Tree Supply never retained new counsel.
Because Tree Supply failed to retain new counsel, Thrive moved
to dismiss Tree Supply’s claims. The district court granted the
motion and dismissed Tree Supply’s claims with prejudice. 3

¶3 Shortly after Tree Supply was dismissed, Thrive moved
for summary judgment on all of Mower’s claims. 4 In the

(…continued)
rule 7 grounds alone, we do not address Mower’s arguments on
the merits of the case.

2. Moyer and a business partner formed Thrive Wholesale
Growers, Inc. after the contract was formed, leading Mower to
include it as a defendant in the complaint.

3. “It has long been the law of this jurisdiction that a corporate
litigant must be represented in court by a licensed attorney.”
Tracy-Burke Assocs. v. Department of Emp. Sec., 699 P.2d 687, 688
(Utah 1985) (per curiam). Mower does not challenge Tree
Supply’s dismissal on appeal.

4. Although Tree Supply was dismissed from the case, Thrive
listed Tree Supply on the caption of its motion for summary
judgment. It appears none of the parties noticed the mistake, and
Tree Supply has been listed on all captions including the parties’
briefs. Because of this mistake and because Tree Supply’s
(continued…)

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Mower v. Moyer

supporting memorandum, Thrive used Mower’s own deposition
to establish a number of undisputed material facts, including
that the parties to the contract were Tree Supply and Oregon
Acres (Moyer’s employer at the time), rather than Mower or
Moyer personally. Accordingly, Thrive argued that “[a]ny
breach of contract claim arising out of the [contract] belongs
solely to Tree Supply” and that, “just as Mower cannot sue on
Tree Supply’s contract, Moyer and Thrive cannot be sued on
Oregon Acres’ contract.” Thrive argued Mower’s unjust
enrichment claim should also be dismissed because it was
undisputed that Tree Supply entered into an express contract
with Oregon Acres, and “‘a prerequisite for recovery on an
unjust enrichment theory is the absence of an enforceable
contract.’” (Quoting Ashby v. Ashby, 2010 UT 7, ¶ 14, 227 P.3d
246.)

¶4 Acting pro se, Mower filed an opposing memorandum,
accompanied by his own affidavit. Mower included only one
reference to his affidavit in his memorandum, stating, “[A]s
outlined in my affidavit included with this brief, Tree Supply,
LLC was formed AFTER the events that are the basis for my
complaint occurred.” In his memorandum, Mower did not
number or restate verbatim the material facts that he believed
were in dispute, as required by rule 7 of the Utah Rules of Civil
Procedure. And although Mower disputed that the contract was
between Tree Supply and Oregon Acres, he did not cite any
materials to support that contention, notwithstanding rule 7’s
requirement that he do so. Despite attempting to refute that
Oregon Acres, rather than Thrive, was a party to the contract,
Mower stated that Thrive had not “presented any evidence to
support [its] claim that the contract was between Tree Supply

(…continued)
dismissal is not at issue on appeal, we have omitted Tree Supply
from the caption of this opinion.

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Mower v. Moyer

and Oregon Acres, other than my deposition testimony that I
thought Mr. Moyer was acting as president of Oregon Acres.”
(Emphasis added.) Mower also asserted, “My deposition
testimony that I thought Mr. Moyer was acting on behalf of
Oregon Acres when he entered into the contract with me is my
belief but that does not make it true.” Finally, concerning the
unjust enrichment claim, Mower stated, “Given that [Thrive]
admit[s] there was an express contract, . . . there is no need for
the unjust enrichment claim.”

¶5 In reply, Thrive argued that because Mower did not
comply with rule 7, each of the facts should be deemed admitted
for purposes of summary judgment. Thrive acknowledged
Mower’s status as a pro se litigant but cited authority that such
litigants are “‘held to the same standard of knowledge and
practice as any qualified member of the bar.’” (Quoting Fuller v.
Springville City, 2015 UT App 177, ¶ 20, 355 P.3d 1063.) Thrive
argued that, if all of the facts listed in the opening memorandum
were deemed admitted, Mower’s breach of contract claim must
be dismissed because Mower “cannot satisfy the most essential
element [of a contract claim]—the existence of a contract
between him and either of the Thrive defendants.” Thrive also
argued the unjust enrichment claim must be dismissed because
the parties did not dispute that “there was an express contract
governing the sale of the trees.”

¶6 The district court granted Thrive’s motion, “dismiss[ing]
with prejudice each of [Mower’s] claims against the Thrive
Defendants for the reasons stated in Thrive Defendant[s’] initial
and reply memoranda, and [Mower’s] failure to comply with the
applicable rules.” (Emphasis omitted.) Mower appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 Mower argues the district court erred in granting
summary judgment based on his failure to comply with rule 7 of

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the Utah Rules of Civil Procedure because he substantially
complied with the rule, and, as a pro se litigant, the court should
have granted him leniency. He further argues Thrive was not
entitled to summary judgment as a matter of law because none
of the facts presented in Thrive’s motion for summary judgment
showed that there was a meeting of the minds as to the parties’
obligations under the contract. Finally, he argues there are
genuine disputes of material fact that preclude summary
judgment on the unjust enrichment claim.

¶8 Summary judgment is proper where there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Utah R. Civ. P. 56(a). “We review a
district court’s grant of summary judgment for correctness,
affording no deference to the district court.” Bluffdale City v.
Smith, 2007 UT App 25, ¶ 5, 156 P.3d 175. “However, the trial
court has discretion in requiring compliance with rule 7 of the
Utah Rules of Civil Procedure.” Id. (brackets, citation, and
internal quotation marks omitted). Finally, we review a district
court’s decision not to grant a pro se litigant leniency for an
abuse of discretion. Golden Meadows Props., LC v. Strand, 2010 UT
App 257, ¶ 18, 241 P.3d 375.

ANALYSIS

¶9 Mower contends the district court erred by granting
Thrive’s motion for summary judgment after determining that
he had failed to comply with rule 7 of the Utah Rules of Civil
Procedure. He first asserts the court “abused its discretion in
deeming [Thrive’s] stated facts uncontroverted because [he]
substantially complied with Rule 7 and his violations amounted
to harmless error.” Second, he asserts that, because he was not
represented by counsel, he was entitled to leniency in complying
with rule 7. Third, he argues that, even if Thrive’s stated facts
were deemed admitted, Thrive was not entitled to summary
judgment as a matter of law, because the facts did not

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demonstrate there was a meeting of the minds to form the
contract. Finally, he asserts that, even after deeming Thrive’s
stated facts admitted, there are genuine disputes of material fact
that preclude summary judgment on the unjust enrichment
claim.

I. Compliance with Rule 7

¶10 Mower concedes he did not strictly comply with rule 7
but asserts he substantially complied with it by “disput[ing] the
relevant facts relied on by [Thrive] in the body of his
memorandum with citations to at least some of the relevant
evidence.” Accordingly, he argues, his failure to strictly comply
with rule 7 was harmless.

¶11 We apply the prior version of rule 7, which was repealed
and reenacted in November 2015, because Thrive filed its motion
for summary judgment prior to the enactment. Former rule 7
provided that “[e]ach fact set forth in the moving party’s
memorandum is deemed admitted for the purpose of summary
judgment unless controverted by the responding party.” Utah R.
Civ. P. 7(c)(3)(A) (2015). Rule 7 further explained how a non-
moving party may properly dispute a stated fact:

A memorandum opposing a motion for summary
judgment shall contain a verbatim restatement of
each of the moving party’s facts that is
controverted, and may contain a separate
statement of additional facts in dispute. For each of
the moving party’s facts that is controverted, the
opposing party shall provide an explanation of the
grounds for any dispute, supported by citation to
relevant materials, such as affidavits or discovery
materials.

Id. R. 7(c)(3)(B).

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¶12 In Salt Lake County v. Metro West Ready Mix, Inc., 2004 UT
23, 89 P.3d 155, our supreme court explained that a party’s
failure to “set forth disputed facts listed in numbered sentences
in a separate section” in its opposing memorandum was
harmless error because “the disputed facts were clearly provided
in the body of the memorandum with applicable record
references.” Id. ¶ 23 n.4. Mower argues that, under Metro West,
any deficiencies in his opposing memorandum were harmless.
We disagree.

¶13 Although Mower disputed in the body of his
memorandum that Tree Supply and Oregon Acres were the
parties to the contract, the only evidence he cited to support this
claim was his own affidavit, which he produced after being
served with Thrive’s motion and which contradicted his earlier
deposition testimony.

¶14 The circumstances here are nearly identical to those in
Bluffdale City v. Smith, 2007 UT App 25, 156 P.3d 175. There, the
non-moving party, Smith, filed an opposing memorandum
without “a verbatim restatement of [Bluffdale City’s] stated
facts, noting which fact or portion was disputed, and did not cite
to any relevant materials.” Id. ¶ 3. Smith did, however, dispute
several facts in the body of his memorandum and attached his
own affidavit in support. Id. ¶¶ 2–3. Nevertheless, the district
court determined that Smith did not comply with rule 7 and
therefore deemed Bluffdale City’s facts admitted and granted its
motion for summary judgment. Id. ¶ 3. On appeal, Smith argued
he substantially complied with rule 7 and “maintain[ed] that
[his] affidavit [was] sufficient to raise genuine issues of material
fact to defeat summary judgment.” Id. ¶ 6. We disagreed and
distinguished the case from Metro West, stating that Smith
“failed to provide the specific disputed facts together with
applicable record references in the body of [his] opposing
memorandum.” Id. ¶ 10.

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Mower v. Moyer

¶15 Like Smith, Mower failed in his opposition to provide the
specific disputed facts together with record references and
merely attached his own affidavit in support of his contentions.
Thus, the deficiencies in Mower’s opposing memorandum were
not harmless, and the district court was within its discretion to
deem Thrive’s facts admitted. 5

5. Due to the brevity of the district court’s order granting
Thrive’s motion for summary judgment, Mower argues that it
“is unclear as to whether the trial court was granting summary
judgment as some sort of sanction for [his] failure to comply
with Rule 7 or because the court felt that summary judgment
was warranted as a natural result of having [Thrive’s] statement
of facts deemed admitted.” Neither prior iterations of the Utah
Rules of Civil Procedure nor our current rules allow a district
court to grant summary judgment as a sanction on the sole basis
of a non-moving party’s failure to properly dispute stated facts
in a moving party’s motion. See Utah R. Civ. P. 56(e) (“If a
party . . . fails to properly address another party’s assertion of
fact . . . the court may: (1) give an opportunity to properly
support or address the fact; (2) consider the fact undisputed for
purposes of the motion; (3) grant summary judgment if the
motion and supporting materials—including the facts
considered undisputed—show that the moving party is entitled to
it; or (4) issue any other appropriate order.” (emphasis added));
id. R. 7(c)(3)(A) (2015) (“Each fact set forth in the moving party’s
memorandum is deemed admitted for the purpose of summary
judgment unless controverted by the responding party.”). Any
confusion about whether a district court may sanction the non-
moving party appears to stem from a footnote in Anderson
Development Co. v. Tobias, 2005 UT 36, 116 P.3d 323, in which our
supreme court stated, in dictum, that after deeming a moving
party’s stated facts admitted, “the district court could have
granted [the moving party’s] motion for summary judgment on
the basis of” the non-moving party’s failure to properly dispute
(continued…)

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Mower v. Moyer

II. Pro Se Leniency

¶16 Mower contends the district court “abused its discretion
in deeming [Thrive’s] stated facts uncontroverted because [he]
was entitled to leniency as an unrepresented party.” Specifically,
he argues his opposing memorandum alerted the court “to
disputed factual issues underpinning [Thrive’s] arguments,” and
therefore his memorandum provided the court a “sufficient basis
to rule on the merits of his arguments.”

¶17 “[A]s a general rule, a party who represents himself will
be held to the same standard of knowledge and practice as any
qualified member of the bar.” Allen v. Friel, 2008 UT 56, ¶ 11, 194
P.3d 903 (citation and internal quotation marks omitted). Pro se
litigants are, however, “entitled to every consideration that may
reasonably be indulged.” Id. (citation and internal quotation
marks omitted). Reasonable indulgence “is meant to assign to
judges the responsibility of informing a self-represented litigant
of matters such as the date of trial, his right to a trial by jury, and
his right to require any previously retained counsel to provide
him the case file and other documents whose preparation had
been covered by prior representation.” Id. “Reasonable
considerations do not include the need to interrupt proceedings
to translate legal terms, explain legal rules, or otherwise attempt
to redress the ongoing consequences of the party’s decision to
function in a capacity for which he is not trained.” Id.

(…continued)
the moving party’s stated facts. Id. ¶ 21 n.3. But this statement
necessarily implies that after deeming the moving party’s facts
admitted, the moving party was entitled to judgment as a matter
of law. Our rules of civil procedure resolve any concerns about
this question. Where a district court deems the moving party’s
stated facts admitted, the court may not grant the motion unless
the moving party is entitled to summary judgment as a matter of
law. Utah R. Civ. P. 56(a), (e).

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Mower v. Moyer

¶18 We emphasize that, to prevail on this issue, Mower must
demonstrate that the district court abused its discretion in not
granting him leniency. Mower has not done so. The cases he
cites in support of his argument are inapposite. Some address
our own discretion in granting a pro se appellant leniency in
complying with appellate preservation and briefing
requirements. See Bell v. Bell, 2013 UT App 248, ¶ 24, 312 P.3d
951 (granting leniency to a pro se appellant in spite of her
deficiencies in preservation); Midland Funding, LLC v. Pipkin,
2012 UT App 185, ¶ 3, 283 P.3d 541 (“We accord [appellant]
several indulgences, overlooking inadequate briefing and
marshaling concerns to reach the merits of his appeal.”). And
another addresses an instance where a criminal defendant “was
misled by the trial court and the City and consequently . . . was
unfairly deprived of a jury trial.” Orem City v. Bovo, 2003 UT App
286, ¶¶ 12–13, 76 P.3d 1170. Moreover, here, the key fact the
court deemed admitted—that Oregon Acres, not Thrive, was the
party to the contract—could not be disputed by Mower’s
affidavit, as Mower had already testified in his deposition that
he believed Oregon Acres was the party with which he
contracted. See Webster v. Sill, 675 P.2d 1170, 1172–73 (Utah 1983)
(“[W]hen a party takes a clear position in a deposition, that is not
modified on cross-examination, he may not thereafter raise an
issue of fact by his own affidavit which contradicts his
deposition, unless he can provide an explanation of the
discrepancy.”). Thus, no degree of leniency with regard to the
requirements of rule 7 could have prevented that fact from being
deemed admitted.

¶19 Accordingly, Mower has not demonstrated that the
district court abused its discretion in denying Mower leniency.

III. Judgment as a Matter of Law

¶20 Mower argues that, “even if [Thrive’s] stated facts were
deemed admitted, [Thrive was] not entitled to judgment as a

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matter of law,” because none of Thrive’s facts show there was a
meeting of the minds. We disagree.

¶21 Once Thrive’s facts were deemed admitted, it became an
undisputed fact that Tree Supply and Oregon Acres, not Mower
and Thrive, were the parties to the contract. And because it was
undisputed that there was a contract, a meeting of the minds
necessarily occurred, thus entitling Thrive to judgment as a
matter of law on the breach of contract claim.

IV. Mower’s Unjust Enrichment Claim

¶22 In his memorandum in opposition to summary judgment,
Mower conceded that, “[g]iven that [Thrive] admit[s] there was
an express contract, . . . there is no need for the unjust
enrichment claim.” Notwithstanding this concession, he argues
on appeal that the district court erred in granting summary
judgment because, even after deeming Thrive’s stated facts
admitted, there are genuine disputes of material fact that
preclude summary judgment on the unjust enrichment claim.

¶23 We take no position on whether the court erred in
granting summary judgment on the unjust enrichment claim
because, even if we were to assume that an error occurred, the
doctrine of invited error precludes us from reviewing the issue.
See Pratt v. Nelson, 2007 UT 41, ¶¶ 16–18, 164 P.3d 366. The
invited error doctrine is triggered where counsel—or a pro se
litigant—“either by statement or act, affirmatively represent[s] to
the [trial] court that he or she had no objection to the
[proceedings].” Id. ¶ 16 (second and third alterations in original)
(citation and internal quotation marks omitted); see also State v.
Cooper, 2011 UT App 234, ¶¶ 11–12, 261 P.3d 653 (concluding
that the invited error doctrine applies to pro se litigants). We
conclude that Mower’s concession in his opposing
memorandum—that “there is no need for the unjust enrichment
claim”—was an affirmative representation that he did not object

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Mower v. Moyer

to the district court granting summary judgment against him on
the unjust enrichment claim.

CONCLUSION

¶24 We conclude the district court did not err in granting
Thrive’s motion for summary judgment.

¶25 Affirmed.

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