NAC v. Murray City Corp.

National Advertising Company v. Murray City Corporation. Filed June 24, 1999 IN THE UTAH COURT OF APPEALS
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National Advertising Company, a Delaware corporation,
Plaintiff and Appellee,

v.

Murray City Corporation, a Utah municipality; and Gene V. Crawford
and Sherry T. Crawford dba Val-Dev, L.L.C.,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 980238-CA

F I L E D
June 24, 1999
  1999 UT App 202 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Randy B. Hart, Murray, and Donald L. Dalton, Salt Lake City, for Appellants
R. Stephen Marshall and Steve K. Gordon, Salt Lake City, for Appellee

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Before Judges Wilkins, Billings, and Davis.

DAVIS, Judge:

The Crawfords' had an existing property interest in the conditional sign permit. As such, "it should not be destroyed nor disrupted arbitrarily, not without following fundamental standards of due process of law to guard against capricious or oppressive administrative action." Anderson v. Utah County Board of County Commissioners, 589 P.2d 1214, 1216 (Utah 1979); accordCelebrity Club Inc. v. Utah Liquor Control Comm'n, 657 P.2d 1293, 1297 (Utah 1982).

Since the Crawfords were deprived of whatever property interest they had when, in the original summary judgment the trial court ruled that the Crawfords' permit was null and void, the principal question in this case is whether the court had jurisdiction over them at the time summary judgment was entered. Whether the Crawfords were served with process is a question of fact. See Carnes v. Carnes, 668 P.2d 555, 557 (Utah 1983). "The invalidity or absence of service of process can be shown by clear and convincing evidence. However, to preclude the granting of summary judgment in the present case, [Crawfords] need[] only to show that there is a genuine issue of material fact as to whether [they were] served." Id.; see also Utah R. Civ. P. 56(c).

There is no record evidence indicating that the Crawfords were ever served with a summons and a copy of the initial complaint. Moreover, the Tooms affidavit and the Tanner affidavit are in direct conflict with one another; Tooms claims to have properly served the Crawfords, while Tanner asserts that he was never properly served. Lastly, National Advertising Company's (NAC) memorandum in support of its last Motion for Summary Judgment actually states that although the Crawfords knew about this action, "technically, they had not been served with any process." The record before us provides ample evidence of a genuine issue of material fact, thus the trial court's granting of NAC's motion for summary judgment was in error.(1) See id.

In response to the summary judgment, the Crawfords filed a Motion to Reconsider, together with other motions, which the trial court summarily denied. Thus, the trial court did not revisit its original grant of summary judgment to NAC, which was legal error to the extent it affected the Crawfords. Similarly, the trial court's final order did not address the merits of the original summary judgment that was essentially entered for the purpose of cleaning up loose ends. In sum, the trial court's final order did not consider the merits of the parties' arguments any more than its prior orders did.(2)

Because the record does not reflect that the trial court's rulings fully and fairly considered the merits of the Crawfords' arguments below, we vacate the trial court's grants of summary judgment to NAC and remand to the trial court for a full and fair determination of the Crawfords' claims.
 
 
 

______________________________
James Z. Davis, Judge

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WE CONCUR:
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge

1. In addition, Murray City stated in its memorandum in opposition to NAC's first motion for summary judgment: Summary judgment is improper at this stage of the case at bar because (1) [The Crawfords] have not yet appeared and responded to [NAC's] complaint and Murray City's Counterclaim for Interpleader as the real party of interest in this lawsuit, and (2) discovery has not begun much less been completed to determine exactly which facts are in dispute in this lawsuit. 2. We are not ruling that a grant of summary judgment in this case is improper; only that it was inappropriate in the context of the proceedings below, where the trial court's rulings give little indiction that the Crawfords' claims were given proper attention.