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Mower v. Moyer

Court of Appeals of Utah

October 13, 2017

Gregory Mower, Appellant,
v.
Michael Moyer and Thrive Wholesale Growers Inc., Appellees.

         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]

         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 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 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 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 ...


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