Opinion
Case No. 20080017-CA.
Filed April 9, 2009. Not For Official Publication
Appeal from the Fourth District, Provo Department, 040401255 The Honorable Steven L. Hansen.
Ronald Ady, Salt Lake City, for Appellant.
Leslie Van Frank and Bradley M. Strassberg, Salt Lake City, for Appellees.
Before Judges Thorne, Davis, and McHugh.
MEMORANDUM DECISION
Victor Plastering, Inc. (Victor) appeals from the district court's grant of summary judgment in favor of Citibank Federal Savings Bank and CitiMortgage, Inc. (collectively, Citibank). The district court entered summary judgment pursuant to Utah Code section 38-1-11(3),see Utah Code Ann. § 38-1-11(3) (Supp. 2008), concluding that Victor's mechanics' lien was void as against Citibank because Victor had failed to record a notice of lis pendens and Citibank had not received timely actual notice of the commencement of Victor's action. We affirm.
CitiMortgage is the successor in interest to Direct Mortgage Corporation, which was originally named in Victor's amended complaint.
Victor first argues that Citibank failed to assert an interest in the subject property and therefore lacked standing to contest Victor's mechanics' lien. Generally, standing issues present questions of law that we review for correctness. See Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶¶ 13-15, 148 P.3d 960. However, we have already
specifically considered and rejected Victor's standing argument inVictor Plastering, Inc. v. Swanson Building Materials, Inc. (Victor I), 2008 UT App 474, 200 P.3d 657, an earlier appeal arising out of this same litigation.
In Victor I, appellee Swanson's only interest in the subject property was Swanson's own mechanics' lien, which had expired and was void as a matter of law. See id. ¶ 2. Although Swanson did not allege an interest in the property, we held that Swanson's inclusion in the suit by Victor was sufficient to provide standing to raise substantive defenses to Victor's claim:
[R]egardless of Swanson's litigation position, Victor's amended complaint alleges that Swanson does have "some claim of right, title, or interest to the [subject] property." Victor's claim against Swanson seeks to establish that Victor's lien is superior to Swanson's alleged interest and, at this point, also seeks attorney fees against Swanson. This is enough to give Swanson a personal stake in the outcome of the litigation such that Swanson has standing to defend itself against Victor's claim.
Id. ¶ 10 (second alteration in original).
Here, Victor also alleges that Citibank has "some claim of right, title, or interest" in the property and seeks attorney fees. And, unlike the appellee in Victor I, Citibank has claimed an interest in the property in both its answer and its summary judgment pleadings. Accordingly, Citibank has "a personal stake in the outcome of the litigation" and has standing to raise the substantive defenses available to it. See id.
Second, Victor argues that the affidavits of Citibank officers Wayne Flynn and Jim Beech, filed in support of Citibank's motion for summary judgment, were defective. Victor alleges that the affidavits are conclusory and do not serve as competent evidence that Citibank lacked notice of Victor's action. Both affidavits state that "[n]either Affiant nor any other officer or agent of [Citibank] had actual knowledge of the existence of the above-captioned litigation prior to [June 2006]." Victor raises various complaints about the competency of these affidavits, including an alleged lack of foundation for each affiant's personal knowledge and an assertion that the affidavits' disclaimers of actual knowledge represent legal conclusions rather than statements of known fact.
Victor waived any objection to the competency of the affidavits when it failed to oppose Citibank's motion for summary judgment or file a timely motion to strike the affidavits. Citibank's summary judgment memorandum contained a statement of undisputed facts in compliance with the requirements of rule 7(c)(3)(A) of the Utah Rules of Civil Procedure, see Utah R. Civ. P. 7(c)(3)(A). The statement of undisputed facts asserted, inter alia, that "[a]t no time prior to June 6, 2006, did Citibank . . . have actual knowledge of the lawsuit pending in this matter." And, Victor failed to file an opposition memorandum controverting Citibank's undisputed facts as required by rule 7(c)(3)(B). See id. R. 7(c)(3)(B). Accordingly, Citibank's undisputed facts, including its lack of notice, were deemed admitted by operation of rule. See id. R. 7(c)(3)(A) ("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.").
Further, on a motion for summary judgment, if the opposing party fails to move to strike the defective affidavits, the party "is deemed to have waived [its] opposition to whatever evidentiary defects may exist."Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1044 (Utah 1983). In the instant case, Victor filed a motion to strike the affidavits, but that motion was not timely. Citibank filed its motion for summary judgment on November 17, 2006, and a notice to submit for decision on December 13, 2006. Victor's motion to strike Citibank's affidavits was not filed until January 16, 2007, the same day the district court issued its memorandum decision granting summary judgment and long after Citibank's statement of undisputed facts had been deemed admitted due to Victor's failure to controvert it. Under these circumstances, we will not disturb the district court's summary judgment ruling because of the alleged evidentiary defects asserted by Victor. Cf. Utah R. Evid. 103(a)(1) (requiring "a timely objection or motion to strike" before error may be predicated upon a trial court's admission of evidence).
Finally, Victor argues that Citibank failed to meet its burden of production for summary judgment. Victor's position in this regard relies on its arguments that Citibank lacks standing to challenge Victor's lien and that Citibank's summary judgment affidavits are defective. Having previously rejected both of these arguments, we also reject Victor's argument that Citibank failed to meet its burden of production.Cf. Victor I, 2008 UT App 474, ¶ 12, 200 P.3d 657 (rejecting Victor's argument that appellee had failed to meet burden of production due to lack of standing). Here, Citibank had standing to raise the lis pendens defense provided by Utah Code section 38-1-11(3), and Citibank's unopposed motion for summary judgment was supported by affidavits
that, on their face, established Citibank's lack of actual notice. Accordingly, Citibank met its burden of production, and the district court appropriately entered summary judgment in Citibank's favor.
For the reasons expressed herein, and more fully in Victor I, we affirm the district court's entry of summary judgment in favor of Citibank and remand this matter for a determination and award of Citibank's reasonable attorney fees incurred on appeal. See generally Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998) ("[W]hen a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal." (internal quotation marks omitted)).
WE CONCUR: James Z. Davis, Judge, Carolyn B. McHugh, Judge