Opinion
Case No. 20010269-CA.
Filed June 6, 2002. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable William A. Thorne Jr.
Gary H. Weight, Provo, for Appellants.
F. Mark Hansen, Salt Lake City, for Appellee.
Before Judges Jackson, Greenwood, and Orme.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).
The trial court adopted, inter alia, the following statement by Plaintiff as its own finding: "Defendants have . . . oppos[ed] summary judgment with an affidavit they knew was not made on personal knowledge in violation of Rule 56(e)." On appeal, Defendants have not marshaled the evidence supporting this finding and then shown why the evidence so marshaled is legally insufficient to support the finding.See State v. Gamblin, 2000 UT 44, ¶ 17 n. 2, 1 P.3d 1108. We therefore conclude that the trial court did not exceed its discretion in striking Barker's affidavit on behalf of Deseret Crest Development. See Utah R. Civ. P. 56(e); GNS Partnership v. Fullmer, 873 P.2d 1157, 1164 (Utah Ct.App. 1994).
Defendants contend that the trial court made only a "vague incorporation by reference of language from appellee's supporting memorandum," and that this "is insufficient to establish that the trial court relied on Rule 56 in striking the affidavits." On the contrary, the court explicitly stated: "For the reasons set forth in BMC West's supporting memoranda, incorporated here by reference as the Court's findings of fact and conclusions of law, the Court grants BMC's motion[.]" Rule 56 was specifically relied on in BMC West's memorandum referred to by the court.
With respect to the other rule 37 sanctions imposed by the trial court, the following finding, incorporated from Plaintiff's memorandum and not effectively challenged on appeal, amply supports the sanctions imposed: "Defendants have clearly demonstrated a disregard for the rules of court, and an intent to delay, hinder and obstruct[.]" See Morton v. Continental Baking Co., 938 P.2d 271, 274 (Utah 1997) (holding imposition of rule 37 sanctions is within trial court's discretion when evidence supports finding that sanctioned party has engaged in "`persistent dilatory tactics frustrating the judicial process'") (quoting W.W. W.B. Gardner, Inc. v. Park West Village, Inc., 568 P.2d 734, 738 (Utah 1977)).
Defendants contend that disputed issues of fact remain, precluding summary judgment. Defendants fail, however, to identify any portion of an affidavit, deposition, or answers to interrogatories, which has not been properly stricken, that disputes Plaintiff's factual contentions. Thus, we conclude the trial court's grant of summary judgment was also proper. See Utah R. Civ. P. 56(c).
Because Defendants took no action below under Rule 56(f) of the Utah Rules of Civil Procedure, they waived their opportunity to argue on appeal that summary judgment should not have been granted because Ben Magelsen has yet to be deposed.
Accordingly, we affirm and remand only for a determination and award of the reasonable attorney fees and costs incurred by BMC West on appeal.See Management Servs. Corp. v. Development Assocs., 617 P.2d 406, 409 (Utah 1980).
WE CONCUR: Norman H. Jackson, Presiding Judge, and Pamela T. Greenwood, Judge.