Opinion
Case No. 20050028-CA.
Filed September 9, 2005. (Not For Official Publication).
Appeal from the Third District, Sandy Department, 040400923 The Honorable Royal I. Hansen
Paula M. Olsen, Salt Lake City, Appellant Pro Se.
R. Bradley Neff and Tefton J. Smith, Sandy, for Appellee.
Before Judges Billings, Bench, and McHugh.
MEMORANDUM DECISION
Paula M. Olsen appeals from a ruling and order denying Olsen's motion to dismiss and granting Wells Fargo Bank Nevada, N.A.'s (Wells Fargo) motion for summary judgment. We affirm.
Wells Fargo filed an action against Olsen for the collection of unpaid funds pursuant to a credit card agreement (agreement). Olsen filed a motion to dismiss on the basis that the district court did not have subject matter jurisdiction over the action. Wells Fargo subsequently filed a motion for summary judgment on the basis that the agreement was entered into by the parties, Olsen owed certain funds under the agreement, and Wells Fargo was entitled to repayment of those funds under the terms of the agreement. On November 30, 2004, the district court signed a ruling and order denying Olsen's motion to dismiss and granting Wells Fargo's motion based upon the undisputed facts.
On appeal, Olsen raises various arguments in her brief, including: (1) Wells Fargo committed an ultra vires act when it loaned Olsen the monies in question; (2) such credit was loaned at an unlawfully usurious rate; and (3) Wells Fargo committed various acts of "scienter." Olsen provides no factual or legal basis for these arguments. In addition, Olsen sets forth no argument as to why the district court erred when it denied Olsen's motion to dismiss. As such, the only question for this court to determine is whether the district court properly granted Wells Fargo's motion for summary judgment.
After Olsen's brief was filed, Wells Fargo filed an untimely motion for summary disposition on the basis that the grounds for review were too insubstantial to merit further consideration by this court. Such a motion is to be filed "within 10 days after the docketing statement . . . is served." Utah R. App. P. 10(a)(2)(A). This court may suspend the requirements of rule 10 where a suspension would be in the interest of expediting a decision. See Utah R. App. P. 2; Bailey v. Adams, 798 P.2d 1142, 1143 (Utah Ct.App. 1990) (per curiam). We have determined that allowing Wells Fargo's motion after briefing has begun would not expedite this decision. However, because Wells Fargo's motion and memorandum in support are responsive to certain arguments made by Olsen and because the issues identified by Wells Fargo are dispositive, we will construe the memorandum in support of Wells Fargo's motion as its brief on appeal.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). In support of its motion for summary judgment, Wells Fargo filed an affidavit establishing that the parties entered into a credit card agreement, that Olsen owed Wells Fargo $6,952.14 pursuant to the terms of the agreement, and that this balance remained unpaid. Olsen did not file an affidavit disputing these averments and presented no evidence creating a genuine issue of fact.
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the pleadings, but the response, by affidavits or as otherwise . . . must set forth specific facts showing that there is a genuine issue for trial." Utah R. Civ. P. 56(e). "Summary judgment, if appropriate, shall be entered against a party failing to file such a response." Id.
Wells Fargo established that it was entitled to the sums it requested from the district court. Olsen set forth no evidence in opposition. Therefore, the district court properly granted summary judgment. See id.
Accordingly, the ruling and order of the district court is affirmed.
Judith M. Billings, Presiding Judge, Russell W. Bench, Associate Presiding Judge, Carolyn B. McHugh, Judge.