Ockey v. White

IN THE UTAH COURT OF APPEALS

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J. Scott Ockey,

Plaintiff and Appellee,

v.

Christena White,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20021073-CA
 

F I L E D
(January 23, 2004)
 

2004 UT App 11

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Third District, Salt Lake Department

The Honorable Stephen L. Henriod

Attorneys: Christena White, Salt Lake City, Appellant Pro Se

Jeremy M. Hoffman, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Jackson.

BENCH, Associate Presiding Judge:

Appellee Ockey urges us to disregard Appellant White's brief for failing to comply with rule 24 of the Utah Rules of Appellate Procedure. See Utah R. App. P. 24(a). Our supreme court has "cautioned that 'because of his lack of technical knowledge of law and procedure [a layman acting as his own attorney] should be accorded every consideration that may reasonably be indulged.'" Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983) (alteration in original) (citation omitted). We therefore are lenient with White, as a pro se litigant. "Individuals have a right to represent themselves without being compelled to seek professional assistance. Where they are largely strangers to the legal system, courts are understandably loath to sanction them for a procedural misstep here or there." Lundahl v. Quinn, 2003 UT 11,¶4, 67 P.3d 1000.

The trial court based its grant of summary judgment in favor of Ockey, in part, on the incorrect conclusion that White had not filed a motion to dismiss. Included in her October 26, 2001 filing, which was captioned "Answer and Counterclaim," White claimed that the action should be dismissed for lack of personal jurisdiction, without requiring further response. See Utah R. Civ. P. 12(b). The trial court never ruled on her motion to dismiss.

Ockey filed a motion for summary judgment on July 11, 2002--nearly nine months after White filed her motion to dismiss. Two weeks later, White filed another motion to dismiss along with a motion requesting more time to respond to Ockey's motion for summary judgment. After being granted a thirty-day extension, White filed her objection to Ockey's motion for summary judgment, drawing the court's attention to her initial motion to dismiss filed in October 2001. White also claimed that there were "genuine issues as to a number of material facts," but she was presently "unable to present affidavit facts, testimony and admissible-worthy evidence essential to justify her opposition." In an accompanying affidavit, White sought "time to obtain affidavits, evidence and continue with discovery."

At the end of September 2002, Ockey requested that the court rule on a number of motions including his motion for summary judgment and White's motion to dismiss. The court granted Ockey's motion for summary judgment, ruling that: "No motion to dismiss has been filed as defendant [White] claims. Defendant has had adequate [sic] to respond to the motion for summary judgment, and she has failed to do so in any meaningful way, including her failure to controvert any of plaintiff's [statement] of facts." The record, however, reflects otherwise. As allowed under rule 12(b) of the Utah Rules of Civil Procedure, White's answer included a motion to dismiss based upon insufficiency of process and insufficiency of service of process. See Utah R. Civ. P. 12(b)(4), (5).

From October 2001 to July 2002, White did not conduct discovery because she was waiting for the court to rule on her motion to dismiss--a jurisdictional issue. Realizing, after the court granted Ockey's motion for summary judgment, that the court would not be addressing her motion to dismiss, White filed a motion to reconsider the court's grant of summary judgment. She cited Salt Lake City v. James Constructors, Inc., 761 P.2d 42, 45 (Utah Ct. App. 1988), which recognized a trial court's ability to reconsider an earlier grant of summary judgment, particularly when material facts are introduced in the motion for reconsideration. White's accompanying memorandum and affidavits arguably present such factual issues.

We agree with White that the trial court should have first decided her motion to dismiss before ruling on Ockey's motion for summary judgment. We therefore reverse and remand for the trial
court to consider White's motion to dismiss and, if necessary, to resolve the issue of summary judgment.

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Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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James Z. Davis, Judge

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Norman H. Jackson, Judge