NAC v. Murray City

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NAC v. Murray City Case No. 20000850-CA

IN THE UTAH COURT OF APPEALS

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National Advertising Company, a Delaware corporation,
Plaintiff and Appellant,

v.

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

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000850-CA

F I L E D
(December 6, 2001)

2001 UT App 376

 

 

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

Attorneys: 
Donald L. Dalton, Salt Lake City, for Appellant
Steve K. Gordon, R. Stephen Marshall, and Frank M. Nakamura, Salt Lake City, for Appellees

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Before Judges Davis, Orme, and Thorne.

THORNE, Judge:

Appellant National Advertising Company (NAC) argues the trial court erred by granting Gene and Sherry Crawford's (Crawfords) Motion for Summary Judgment on the Issue of Service of Process. "Summary judgment should be granted only if there has been a showing 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." Brockbank v. Brockbank, 2001 UT App 251,&10, 32 P.3d 990 (internal quotations and citations omitted). Further, "[i]n reviewing the district court's grant of summary judgment, we review the court's legal decisions for correctness, giving no deference, and review the facts and inferences therefrom in the light most favorable to the nonmoving party." Id. (internal quotations and citations omitted).

Here, reviewing the facts in the light most favorable to NAC, we find a number of disputed facts that preclude summary judgment. See id. First, Cindy Braddy's affidavit indicates that, while a Murray City law clerk, she spoke with Martin Tanner's assistant "Sue" and that their conversation "was to the effect that Mr. Tanner had accepted service on behalf of the Crawfords."

Second, Ms. Braddy indicated that she spoke with Mr. Tanner about a letter she had sent to him, dated November 7th, regarding acceptance of service on behalf of the Crawfords and a response to an NAC motion for summary judgment. Ms. Braddy indicated in her affidavit that she believed, based upon her conversation with Mr. Tanner, that

Mr. Tanner understood my statement . . . that it was necessary for him to file a response on behalf of his clients to the motion for summary judgment filed by National Advertising Company. At no time did Mr. Tanner tell me that [he] had not accepted or would not accept service for the Crawfords of Murray City's Counterclaim for Interpleader on behalf of the Crawfords or that he did not intend to file a response to National Advertising's motion for summary judgment.

Finally, in a letter from Mr. Tanner purportedly sent to Ms. Braddy concerning the Crawfords' service of process, Mr. Tanner stated:

We frequently accept service on behalf of our clients and our paralegal Sue Armitage no doubt expected that would be appropriate in this case. However, our clients have not authorized us to accept service and so we are unable to do so. I believe Ms. Armitage's representation was that we would be pleased to accept service upon authorization from our clients. If you came away from your phone conversation with her with a different impression, I apologize.

Looking at the facts in a light most favorable to NAC, we must assume that Ms. Braddy believed that Ms. Armitage, under the direction of Mr. Tanner, agreed to accept service of process on behalf of the Crawfords. See Brockbank, 2001 UT App 251 at &10. Moreover, Tanner's letter indicates that he was aware that Ms. Armitage may have accepted service on behalf of the Crawfords. Further, Ms. Braddy claims to have never received Mr. Tanner's letter; as such, Ms. Braddy would have had no reason to believe that, based upon her prior conversation with Mr. Tanner, service of process upon the Crawfords had not been effectuated. Accordingly, we reverse the trial court's decision granting summary judgment because issues of material fact exist regarding service of process.

NAC next argues the trial court erred by granting the Crawfords' Second Motion for Summary Judgment on the Counterclaim filed by Defendants Gene V. Crawford and Sherry T. Crawford. In light of our decision concerning the Crawfords' summary judgment motion relating to service of process, we decline to reach the merits of NAC's claim. The issue of whether service of process was effectuated should be resolved before an appeal on this claim is considered. Should the trial court find that service of process was not effectuated upon the Crawfords, NAC's claim necessarily fails.

Accordingly, we reverse the trial court's decision granting summary judgment regarding the issue of service of process and remand for proceedings consistent with our decision.

 

 

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William A. Thorne, Jr., Judge

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WE CONCUR:

 

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James Z. Davis, Judge

 

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Gregory K. Orme, Judge