Beauty Lab and Laser v. Jelosek

2023 UT App 139

THE UTAH COURT OF APPEALS

BEAUTY LAB AND LASER, LLC,
Appellee,
v.
RACHELLE JELOSEK,
Appellant.

Opinion
No. 20210719-CA
Filed November 16, 2023

Third District Court, Salt Lake Department
The Honorable Heather Brereton
No. 200900176

Austin B. Egan, Attorney for Appellant
Casey Jones and Scarlet R. Smith,
Attorneys for Appellee

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

LUTHY, Judge:

¶1 Beauty Lab and Laser, LLC (Beauty Lab) “provides a
variety of cosmetic, laser, and skincare services, including Botox
and lip injections.” Rachelle Jelosek is a board-certified family
nurse practitioner who worked for a time as Beauty Lab’s medical
director. Jelosek placed orders for injection products from a
company called Allergan. Some orders were for products for
Beauty Lab, and some were for products for Jelosek’s
independent use at an offsite salon (the Salon). When Jelosek
stopped working for Beauty Lab, there were four unpaid Allergan
invoices (the Invoices) for products that had been shipped to the
Salon. Beauty Lab said the Invoices were for products ordered for
Jelosek’s independent use. Jelosek disagreed and refused to pay
Beauty Lab and Laser v. Jelosek

the Invoices. Beauty Lab then paid the Invoices and sued Jelosek
for breach of contract.

¶2 The parties filed cross-motions for summary judgment and
submitted various declarations and other evidence in support of
their motions. Based on the parties’ submissions, the district court
determined that there was no genuine dispute that the parties had
a valid oral contract that Beauty Lab would pay for products
ordered for its use and that Jelosek would pay for products
ordered for her use. The court further determined that there was
no genuine dispute that Jelosek had breached the contract because
Beauty Lab produced evidence that the products at issue in the
Invoices were retained by Jelosek for her use and Jelosek failed to
rebut that evidence. The court therefore granted summary
judgment in favor of Beauty Lab, and Jelosek now appeals. We
agree that the parties contracted to each pay for the products
intended for their own respective uses and that there is no
genuine dispute that the products associated with the Invoices
were retained by Jelosek for her independent use. We therefore
affirm.

BACKGROUND

¶3 Jelosek began working for Beauty Lab in April 2017 as its
medical director. Shortly thereafter, Beauty Lab and Jelosek
signed an “Independent Contractor Agreement,” which
described Jelosek’s duties as “perform[ing] cosmetic injection
beautification services, techniques and procedures on [Beauty
Lab] clientele as needed [and] review[ing] client charts and [the]
performance of other [Beauty Lab] staff.” The Independent
Contractor Agreement said that “[f]or all services rendered by
[Jelosek] under this agreement,” Jelosek would receive “20% of
injections sales, and complimentary skincare and laser services.”

¶4 In addition to her work for Beauty Lab, Jelosek performed
injections for her own clients at the Salon. Jelosek therefore

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ordered injection products from Allergan both for Beauty Lab and
for her independent use. She ordered the products through a
“joint account” with Beauty Lab. As Jelosek explained, “Beauty
Lab did not and could not have its own account with Allergan and
needed to have a joint account with . . . Jelosek because . . . Jelosek
had the medical license credentials.” Some of the Allergan
products Jelosek ordered were shipped to Beauty Lab, and some
were shipped to the Salon.

¶5 In September 2019, Jelosek informed Beauty Lab that she
had accepted a position elsewhere. When Jelosek left Beauty Lab,
the Invoices reflected an outstanding balance of $26,662 for
products that had been shipped to the Salon. Allergan refused to
fill future orders for Beauty Lab until the Invoices were paid, and
Jelosek was unwilling to pay them. So, Beauty Lab paid the
balance and sued Jelosek for breach of contract.

¶6 In its complaint, Beauty Lab alleged that it and Jelosek had
“entered into an agreement whereby they agreed[,] among other
things, that Jelosek would pay for the injection products ordered
from Allergan for injection services that Jelosek performed
outside of Beauty Lab’s office.” Jelosek admitted that allegation in
her answer, but she denied Beauty Lab’s further allegation that
she had “breached the agreement by not paying” for the Invoices. 1

1. Beauty Lab also alleged conversion and, in the alternative,
unjust enrichment. Jelosek alleged a counterclaim of wrongful
termination. Because we affirm the grant of summary judgment
in Beauty Lab’s favor on its breach of contract claim, we do not
address its alternative claim for unjust enrichment. See generally
United States Fid. & Guar. Co. v. United States Sports Specialty Ass’n,
2012 UT 3, ¶ 11, 270 P.3d 464 (“A claim of unjust enrichment
cannot arise where there is an express contract governing the
subject matter of a dispute.” (cleaned up)). We also do not address
(continued…)

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¶7 Beauty Lab subsequently filed a motion for summary
judgment. In support of its motion, Beauty Lab submitted a
declaration from one of its co-owners (Co-owner), in which Co-
owner stated that “[Jelosek] would pay for the invoices reflecting
Allergan products that she ordered to perform her own
independent services” and that “Allergan products . . . shipped to
[the Salon] were meant only for Jelosek and were to be used for
her own independent clients.” Co-owner similarly declared that
“Beauty Lab would pay for the invoices reflecting Allergan
products that were shipped to Beauty Lab’s offices.” Beauty Lab
also submitted the following deposition testimony from Jelosek
regarding how Jelosek knew which Allergan products she was to
pay for:

Q: How would we be able to know which invoices
Beauty Lab paid for and which ones you paid for?

A: The only way that I would know is if I was given
the information from [Co-owner], because I didn’t
have access to that end of the financial information.
I had access to one account that was my ship-to
account, but I didn’t have access to the financial
account.

Q: Did you receive copies of . . . invoices from
Allergan?

A: Not until they were sent [to me from Beauty Lab
during this litigation]. That was the first time I’ve
ever seen any . . . invoices.

Q: So how would you know how much to pay?

Beauty Lab’s conversion claim or Jelosek’s wrongful termination
counterclaim, which were dismissed below, because they are not
within the scope of this appeal.

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A: I would log onto . . . the Allergan system, and
[Co-owner] would tell me what I needed to pay.

Relying on the foregoing evidence, Beauty Lab argued that “it is
undisputed that Jelosek was obligated to pay [the Invoices]”
because the products associated with the Invoices were
“shipp[ed] to [the Salon].”

¶8 Jelosek responded to Beauty Lab’s motion and attached her
own declaration in which she stated, “I paid invoices for products
that I knew to be used for my personal business.” But she declared
that not all Allergan products shipped to the Salon were for her
personal business. Specifically, Jelosek declared that “[s]ome of
the product that Allergan shipped to [the Salon] was payment
from Beauty Lab in exchange for [her] services” and that “[s]ome
of the product that Allergan shipped to [the Salon] was ordered
by Beauty Lab to be specifically delivered to [the Salon] so it
would receive additional discounts and/or rebates.” Jelosek
further asserted that “[t]here is no evidence to show that the
product [associated with the Invoices] was for [her] personal
clients,” and she argued that Beauty Lab’s motion should
therefore be denied.

¶9 Beauty Lab replied and did not dispute for purposes of its
motion that sometimes it gave Allergan products to Jelosek as
compensation or that sometimes it had Allergan products
intended for its use shipped to the Salon. But Beauty Lab
submitted another declaration from Co-owner, in which Co-
owner declared that Beauty Lab did not order, pick up, or use any
of the products associated with the Invoices and that “Beauty Lab
did not pay [Jelosek] in product pertaining to [the Invoices].”
Beauty Lab then argued that it was entitled to summary judgment
because (1) Jelosek had admitted to an oral agreement under
which she would pay “for products that [she] knew to be used for
[her] personal business”; (2) even if Beauty Lab sometimes had
Allergan products intended for its use shipped to the Salon and

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sometimes ordered Allergan products that it gave to Jelosek as
compensation, Beauty Lab had produced evidence (in the form of
Co-owner’s declaration) that neither of those things was true with
regard to the products associated with the Invoices; and
(3) Jelosek had failed to produce evidence to contradict Co-
owner’s declarations regarding the products associated with the
Invoices.

¶10 Jelosek subsequently filed her own motion for summary
judgment, relying in part on arguments similar to those in her
opposition to Beauty Lab’s motion. She also submitted an
additional declaration from herself as well as declarations from
the owner and a receptionist of the Salon. These declared that
Beauty Lab sometimes had Allergan products intended for its use
shipped to the Salon for pickup by a Beauty Lab employee. Jelosek
also declared, again, that Beauty Lab sometimes “directed
Allergan to deliver product to [the Salon] as payment for [her]
services.” However, none of the declarations Jelosek submitted
said anything about the specific products associated with the
Invoices.

¶11 The district court held a hearing on the cross-motions for
summary judgment. At the conclusion of the hearing, the court
ruled that it was “clear” from the pleadings, declarations, and
deposition testimony that the parties had agreed that “Jelosek
would pay for products that she retained.” When it memorialized
that ruling in a written order, the court stated that there was no
dispute regarding the existence of a valid oral agreement “that
Jelosek would pay for products she used for her independent
injection services,” meaning that she would pay for products she
“use[d] or intend[ed] to use.”

¶12 The district court acknowledged that Jelosek had produced
evidence that “products were on occasion delivered to [the Salon]
and then picked up by Beauty Lab.” But the court noted that
“nowhere” did “Jelosek or any of the other employees of [the

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Salon] state that the [products] that are at issue [in the Invoices]
. . . were picked up and used by Beauty Lab.” The court said “the
only fact before” it on this point was Co-owner’s declaration “that
[Beauty Lab] did not receive that product” and did not intend that
product as compensation for Jelosek’s services. Thus, the court
concluded that there was no genuine dispute that Jelosek had
received and retained the specific products associated with the
Invoices, and it indicated that whether Jelosek had actually used
those products was immaterial. Accordingly, the court concluded
that “there is no genuine issue of material fact with respect to
Beauty Lab’s claim for breach of contract.” The court granted
Beauty Lab’s motion and denied Jelosek’s motion. Jelosek now
appeals.

ISSUE AND STANDARD OF REVIEW

¶13 Jelosek argues that the district court erroneously granted
summary judgment in favor of Beauty Lab. 2 “We review the
summary judgment decision de novo.” Salo v. Tyler, 2018 UT 7,
¶ 19, 417 P.3d 581. A “court shall grant summary judgment 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); see, e.g., Webster v. Sill, 675
P.2d 1170, 1172 (Utah 1983).

ANALYSIS

¶14 Jelosek first asserts that the district court erred in
concluding that there was no genuine dispute regarding the
existence of a valid oral contract under which Jelosek agreed to
pay for Allergan products that she retained. We, however, agree
with the district court that the parties had a valid oral agreement

2. Jelosek does not contest the denial of her summary judgment
motion.

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Beauty Lab and Laser v. Jelosek

under which Jelosek was obligated to pay for Allergan products
that she retained. 3

¶15 In her answer to Beauty Lab’s complaint, Jelosek admitted
that “Beauty Lab and Jelosek entered into an agreement whereby
they agreed[,] among other things, that Jelosek would pay for the
injection products ordered from Allergan for injection services
that Jelosek performed outside of Beauty Lab’s office.” “An
admission of fact in a pleading is a judicial admission and is
normally conclusive on the party making it.” Stephenson v. Elison,
2017 UT App 149, ¶ 40, 405 P.3d 733 (cleaned up). “The effect of a
judicial admission is that once it has been made, the party cannot
present any evidence that contradicts that statement.” Luna v.
Luna, 2020 UT 63, ¶ 27, 474 P.3d 966. While “the rule on binding
judicial admissions is not absolute” and a district court has
discretion to “relieve a party from the consequences of a judicial
admission,” Dale K. Barker Co. PC CPA Profit Sharing Plan v.

3. Beauty Lab asserts that “Jelosek’s argument that a meeting of
the minds and specific terms were lacking to create a contract [is]
unpreserved.” We disagree. The district court ruled that Jelosek
had a valid oral contract with Beauty Lab under which she would
pay for Allergan products that she retained and that, as a matter
of law, she breached that contract. Clearly, the issue of the
existence of a valid oral contract under which Jelosek had agreed
to pay for Allergan products she retained was presented to the
court so as to give it an opportunity to rule on the issue, even if
some of Jelosek’s finer points on the issue are made for the first
time on appeal. See Fort Pierce Indus. Park Phases II, III & IV Owners
Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218 (determining
that “the district court’s decision to take up [a] question
conclusively overcame any objection that the issue was not
preserved for appeal”); Donjuan v. McDermott, 2011 UT 72, ¶ 20,
266 P.3d 839 (“The purpose of the preservation requirement is to
put the district court on notice of an issue and provide it with an
opportunity to rule on it.”).

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Turner, 2021 UT App 119, ¶ 36, 500 P.3d 940 (cleaned up), cert.
denied, 509 P.3d 768 (Utah 2022), Jelosek never asked the district
court to relieve her of this admission. And indeed, she has
affirmed this admission on appeal. Accordingly, this admission is
conclusive on Jelosek. 4

¶16 Notwithstanding this admission, Jelosek argues that the
parties’ agreement required her to pay only for products that she
actually used, not for products that she merely retained. She
contends that there is a “crucial distinction” between the
allegation that she agreed to “pay for the injection products
ordered from Allergan for injection services that [she] performed

4. We recognize that “[o]nly factual allegations, not opinions or
legal conclusions, may be deemed judicial admissions,” 1600
Barberry Lane 8 LLC v. Cottonwood Residential O.P. LP, 2021 UT 15,
¶ 36, 493 P.3d 580, and that we have repeatedly indicated that “the
existence of a contract is a legal determination,” e.g., Uhrhahn
Constr. & Design, Inc. v. Hopkins, 2008 UT App 41, ¶ 11, 179 P.3d
808. We have also explained, however, that “[t]he issue of whether
a contract exists may present both questions of law and fact,
depending on the nature of the claims raised.” Cal Wadsworth
Constr. v. City of St. George, 865 P.2d 1373, 1375 (Utah Ct. App.
1993), aff’d, 898 P.2d 1372 (Utah 1995). Here, the sole contested
issue regarding the existence of a contract between the parties is
whether they reached a meeting of the minds as to who was
responsible for which Allergan products ordered through their
joint Allergan account, including products that had not yet been
injected into clients. And “whether the parties had a meeting of
the minds sufficient to create a binding contract is an issue of
fact.” LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 13, 221 P.3d
867 (cleaned up). Accordingly, we take Jelosek’s admission to an
agreement under which she “would pay for the injection products
ordered from Allergan for injection services that Jelosek
performed outside of Beauty Lab’s office” to be a binding judicial
admission of fact establishing a meeting of the minds on this issue.

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outside of Beauty Lab’s office” and the district court’s
determination that she agreed to “pay for products that she
retained.” (Emphasis added.) “Simply ‘retaining product,’” she
says, “and using that product for injection services . . . are two
different concepts.” Although not exactly clear, her argument
appears to be that because the admitted allegation uses the past
tense “performed,” it must be referring to injections already
completed. But Jelosek’s argument does not hold up to scrutiny
because the language of the admitted allegation is susceptible of
only one reasonable interpretation: that Jelosek agreed to pay for
Allergan products that she retained and, thus, intended to use. 5

¶17 Again, the admitted allegation states that Jelosek agreed to
pay “for the injection products ordered . . . for injection services
that Jelosek performed outside of Beauty Lab’s office.” If the
admitted allegation meant that Jelosek agreed to pay only for
products she had already used, the past participle “performed”
would be accompanied by “had,” and the allegation would say
that Jelosek agreed to pay for products ordered “for injection
services that Jelosek had performed outside of Beauty Lab’s office.”
See The Past Perfect, Cambridge Dictionary, https://dictionary.ca
mbridge.org/dictionary/english/past-perfect [https://perma.cc/X6
4S-EXBD] (explaining that the grammatical form used to indicate
that one action in the past “had already finished when another
action happened” is called “the past perfect” and “is made with

5. Jelosek does not dispute that she continued to perform injection
services at the Salon after ending her employment with Beauty
Lab, and there is no evidence of a purpose for her to retain
Allergan products other than to use them at the Salon. The only
reasonable inference from these undisputed facts is that if Jelosek
retained Allergan products, then she intended to use them at the
Salon. We therefore see no distinction between the district court’s
oral ruling that Jelosek agreed to pay for products she “retained”
and its written ruling that she agreed to pay for products she
“intend[ed] to use.”

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‘had’ and a past participle”). It was not so constructed and, thus,
instead plainly meant that Jelosek agreed to pay for products
ordered for the independent injection services she occasionally
performed, regardless of whether those products had already been
used.

¶18 Because this key term of the parties’ agreement is
memorialized in an after-the-fact admission rather than in a
contemporaneous writing, we note that the undisputed extrinsic
evidence confirms that the parties understood the terms of the
admitted allegation to have its plain and ordinary meaning. See
generally TEG-Paradigm Env’t, Inc. v. United States, 465 F.3d 1329,
1338 (Fed. Cir. 2006) (“Although extrinsic evidence may not be
used to interpret an unambiguous contract provision, we have
looked to it to confirm that the parties intended for the term to
have its plain and ordinary meaning.”); Fox v. Paine, No. 3187-
VCL, 2009 WL 147813, at *5 (Del. Ch. Jan. 22, 2009) (“The court
may . . . consult extrinsic evidence secondarily to confirm the
conclusion that the contract language is unambiguous,
evidencing the shared intent of the parties at the time . . . they
entered the contract.” (cleaned up)), aff’d, 981 A.2d 1172 (Del.
2009); In re Estate of Schuhmann, 308 A.2d 375, 379 (N.J. Super. Ct.
App. Div. 1973) (“[T]he extrinsic evidence which does appear . . .
confirms the unambiguous nature of the instrument . . . .”).

¶19 Specifically, Jelosek testified that “[t]he only way” she
knew which products she was to pay for was “if [she] was given
the information from [Co-owner]” and that “[Co-owner] would
tell [her] what [she] needed to pay.” Of course, if the trigger for
Jelosek’s obligation to pay had been her completed performance
of outside injections, then Jelosek, not Beauty Lab, would have
been the party in possession of the information needed to
determine what Jelosek owed. Instead, Beauty Lab, which had
access to all invoices and uniquely knew which of them
represented products it intended to use, was the party in a
position to identify, by eliminating the products intended for its

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use, which invoices were for products that had been shipped to
the Salon and retained by Jelosek. Thus, the parties’ undisputed
course of conduct as testified to by Jelosek confirms the plain
meaning of the admitted allegation and refutes the contention that
Jelosek agreed to pay only for products she actually used.

¶20 Because the plain language of the admitted allegation
indicates that Jelosek agreed to pay for Allergan products that she
retained and, thus, intended to use, and because the undisputed
extrinsic evidence confirms that unambiguous meaning, we
affirm the district court’s ruling that the parties had an
enforceable oral contract under which Jelosek agreed to pay for
Allergan products that she retained.

¶21 Finally, we address Jelosek’s assertion that the “reasonable
inference” from the declarations she submitted “is that not all of
the Allergan products shipped to [the Salon] . . . were intended
for [her] use” because the declarations indicate that sometimes
Beauty Lab had Allergan products intended for its use delivered
to the Salon and picked up by a Beauty Lab employee. While
Jelosek is correct that the declarations she submitted suggest that
not all Allergan products shipped to the Salon were retained by
her or intended for her use, this point does not help her avoid
summary judgment. That is because Beauty Lab provided
evidence—in the form of Co-owner’s declaration—that the
specific products associated with the Invoices were not among
those ordered for Beauty Lab’s use or picked up from the Salon
by a Beauty Lab employee, and Jelosek produced no evidence to
the contrary. See Webster v. Sill, 675 P.2d 1170, 1172 (Utah 1983)
(“The mere assertion that an issue of fact exists without a proper
evidentiary foundation to support that assertion is insufficient to
preclude the granting of a summary judgment motion.”). The
same is true of Jelosek’s assertion that Beauty Lab sometimes
compensated her with products; Co-owner declared that the
products at issue in the Invoices were not intended by Beauty Lab
as compensation for Jelosek’s services, and Jelosek provided no

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evidence to the contrary, so this argument also does not overcome
summary judgment. See id. Because there is no material dispute
that the specific products associated with the Invoices were
retained by Jelosek, 6 who refused to pay for them, the court’s
conclusion that there is no genuine issue of material fact as to
whether Jelosek breached the parties’ contract is proper, and
Beauty Lab was entitled to judgment as a matter of law.

CONCLUSION

¶22 We agree with the district court that Jelosek had a valid
oral contract with Beauty Lab that Jelosek would pay for Allergan
products that she retained for her independent use. We also agree
that there is no genuine dispute that the products associated with
the Invoices were received and retained by Jelosek for her
independent use. Jelosek was obligated to pay the Invoices, and
she did not. Accordingly, we affirm the court’s grant of summary
judgment to Beauty Lab for breach of contract.

6. Jelosek argues that because “Beauty Lab did not provide any
declaration testimony from anyone who actually observed that
product in [the Invoices] . . . [was] ‘retained’ by Jelosek,” “Beauty
Lab failed to meet its burden of showing Jelosek ‘retained’ the
product.” However, the undisputed facts are that the products
associated with the Invoices were delivered to the Salon; Jelosek
knew they had been delivered to the Salon; and, although she
submitted two declarations of her own, Jelosek never averred that
the products did not remain at the Salon. The only reasonable
inference to be drawn from these facts is that Jelosek retained the
products. See generally Heslop v. Bear River Mutual Ins. Co., 2017 UT
5, ¶ 22, 390 P.3d 314 (differentiating between “a reasonable
inference and speculation” for purposes of summary judgment).

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