Brown v. Glover, et al

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Catherine Brown,
Plaintiff and Appellant,

v.

Chris Glover dba Chick-Fil-A of Fashion Place;
and Hahn Property Management Corporation,
a California corporation dba Hahn Company,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971694-CA

F I L E D
April 1, 1999
  1999 UT App 108 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
George T. Waddoups and Nancy A. Mismash, West Valley City, for Appellant
John R. Lund and Scott K. Wilson, Salt Lake City, for Appellees

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Before Judges Wilkins, Greenwood, and Orme.

WILKINS, Presiding Judge:

Plaintiff appeals from a grant of summary judgment to defendants. Plaintiff argues that the trial court erred as a matter of law in granting summary judgment; the trial court prematurely granted defendants' motion for summary judgment; and the trial court erroneously denied plaintiff's Rule 56(f) motion to continue. We affirm.

A. Summary Judgment

Plaintiff argues that the trial court erroneously granted summary judgment to defendants as a matter of law because Schnuphase v. Storehouse Markets, 918 P.2d 476 (Utah 1996) is not controlling here. However, plaintiff's initial brief fails to substantively examine this issue and provides only superficial citation to authority. Because of this deficiency, we decline to address this issue. See State v. Thomas, 361 Utah Adv. Rep. 3, 4 (Utah 1999) (refusing to address issue when brief omitted substantive analysis and provided only "superficial citation to authority and cursory legal analysis"). We note that while plaintiff's reply brief more thoroughly addresses this issue, we do not examine issues raised or argued for the first time in a reply brief. See Sorenson v. Kennecott-Utah Copper Corp., 873 P.2d 1141, 1143 n.2 (Utah Ct. App. 1994) (refusing to address issue argued only in reply brief because opponent had no opportunity to respond).

B. Discovery

In granting defendants' motion for summary judgment, the trial court ruled that plaintiff's pending motion to continue trial and vacate the scheduling order (under Rule 40(b)) and motion to compel (under Rule 37(a)) were moot. See Utah R. Civ. P. 40(b), 37(a). While plaintiff does not contest the "mootness" ruling, she argues that the court's grant of summary judgment was premature and thus erroneous because, as reflected by these outstanding motions, she had not completed discovery. We disagree.

"Generally, summary judgment should not be granted if discovery is incomplete since information sought in discovery may create genuine issues of material fact sufficient to defeat the motion." Downtown Athletic Club v. Horman, 740 P.2d 275, 278 (Utah Ct. App. 1987). Moreover, "[s]ummary judgment should not be granted if the nonmoving party has not had the opportunity to discover information essential to its opposition." Wilson v. Wal-Mart Stores, Inc., No. 97-2024, 1997 U.S. App. LEXIS 17055, at *5 (10th Cir. July 9, 1997).

We are not convinced that the trial court prematurely granted summary judgment in this case. The record reflects that the discovery plaintiff requested "could have been done well before the summary judgment motion was filed." Moreover, plaintiff has not demonstrated that the information she sought through additional discovery was material to the grounds for defendants' summary judgment motion. See American Towers Owners Ass'n, Inc. v. CCI Mechanical, Inc., 930 P.2d 1182, 1195 (Utah 1996) (affirming trial court's denial of motion to continue where facts plaintiff sought were not legally relevant to resolution of issues); Callioux v. Progressive Ins. Co., 745 P.2d 838, 841 (Utah Ct. App. 1987) (movant must "explain how the continuance will aid his opposition to summary judgment[,]" and additional discovery requested must be "material and of a substantial nature"). As such, we hold that the trial court did not abuse its discretion in granting summary judgment in light of the pending discovery motions.

C. Rule 56(f) Motion to Continue

Plaintiff also challenges the trial court's denial of her motion to continue pursuant to Utah R. Civ. P. 56(f). Rule 56(f) provides:

[s]hould it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot . . . present . . . facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Utah R. Civ. P. 56(f) (emphasis added). We review the trial court's denial of a Rule 56(f) motion for an abuse of discretion and "will not reverse unless the decision exceeds the limits of reasonability." Crossland Sav. v. Hatch, 877 P.2d 1241, 1243 (Utah 1994) (citations omitted). While a trial court should liberally grant Rule 56(f) motions, a court need not do so when the motion is "dilatory or lacking in merit." Id.

We cannot conclude that the trial court abused its discretion in denying plaintiff's Rule 56(f) motion. The trial court determined that the plaintiff's motion lacked merit in that the discovery plaintiff sought was not material to defendants' summary judgment motion, and was dilatory in that plaintiff had had sufficient time to and complete initiate discovery. See, e.g., Crossland, 877 P.2d at 1243-44 (emphasizing trial court's discretion in ruling on rule 56(f) motion). Because plaintiff has not demonstrated that the trial court exceeded the bounds of its permitted range of discretion, we affirm the trial court's ruling on this motion, and therefore affirm the trial court's grant of summary judgment.

Affirmed.
 

______________________________
Michael J. Wilkins,
Presiding Judge

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I CONCUR:
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge

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I CONCUR, EXCEPT THAT AS TO SECTION A, I CONCUR ONLY IN THE RESULT:
 

______________________________
Gregory K. Orme, Judge