Pipkin v. Haugen

IN THE UTAH COURT OF APPEALS

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Kerry Pipkin,
Plaintiff and Appellant,

v.

Randy Haugen; Kip Cashmore; Quick Cash, LLC; USA Cash Stores; USA Cash Services; QC Instant Cash; RKT Holding Company; and Does 1-10, inclusive,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20011028-CA
 

F I L E D
(June 26, 2003)
 

2003 UT App 216

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Second District, Ogden Department

The Honorable Roger S. Dutson

Attorneys: Denver C. Snuffer Jr., Sandy, and Etan E. Rosen, Sacramento, California, for Appellant

Thomas R. Karrenberg and James H. Tily, Salt Lake City, for Appellees

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Before Judges Bench, Davis, and Greenwood.

GREENWOOD, Judge:

A party opposing summary judgment "'must set forth specific facts showing that there is a genuine issue for trial.'" Peterson v. Coca-Cola USA, 2002 UT 42,¶20, 48 P.3d 941 (quoting Thornock v. Cook, 604 P.2d 934, 936 (Utah 1979)). Plaintiff Kerry Pipkin, has failed to present "specific facts" supporting his allegations that Defendants Randy Haugen and Kip Cashmore made false statements for the purpose of establishing fraud or negligent misrepresentation. In response to Defendants' Motion for Summary Judgment, Pipkin provided only his own affidavit and his counsel's "declaration," which offer nothing more than "unsupported allegations." Id. (upholding trial court's grant of summary judgment where opposing party "offered nothing more than unsupported allegations").

Attempting to provide facts to support his allegations of Defendants' misstatements, Pipkin's affidavit alleges that he "received information" that Haughen and Cashmore had signed signature cards to continue the Quick Cash business, "learned" that Haughen and Cashmore were partners, and obtained documents establishing co-ownership. However, other than his self-serving affidavit, Pipkin produces no affidavits, depositions, documents, or interrogatories supporting his allegations. See Utah R. Civ. P. 56(c) (outlining documents admissible in opposing summary judgment motion). "Although upon summary judgment the court must view all facts and inferences in favor of the nonmoving party, it may not assume facts for which no evidence is offered." Coca-Cola, 2002 UT 42 at ¶20. Summary judgment was not improper because Pipkin's affidavit, standing alone, does not provide facts that are supported by admissible evidence.

The "declaration" of Pipkin's counsel similarly does not establish a material fact for the purpose of summary judgment because it is not in the form required by rule 56(c) of the Utah Rules of Civil Procedure. Rule 56(c) states that summary judgment may be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Id. Here, Pipkin's counsel's "declaration" is not in the form of an affidavit. Additionally, the "facts" he argues are established by his declaration are not based on his personal knowledge. See Utah R. Civ. P. 56(e) (stating "opposing affidavits shall be made on personal knowledge"). Rather, the declaration is a summary of documents counsel obtained and inferences by counsel regarding proof of Haugen's business relationship with Quick Cash.

Not only is the declaration inadmissible because it is not in the form required by rules 56(c) and 56(e), the attached documents are also inadmissible because they are hearsay. See Utah R. Civ. P. 56(e) (stating "opposing affidavits . . . shall set forth such facts as would be admissible in evidence"). The first document appears to be a copy of a minute entry from a California court in which a different plaintiff sued U.S.A. Cash Stores, Inc. The document does nothing to support Pipkin's assertion that Haugen maintained a partnership with Cashmore, nor is it a finding of fact by the California court or a disposition of the case. Additionally, the documents submitted with the declaration were not authenticated, as required by rule 901(a) of the Utah Rules of Evidence. Thus, they are inadmissible and cannot be used to establish facts for the purpose of summary judgment. See Utah R. Civ. P. 56(e).

Because Pipkin failed to set forth facts establishing a genuine issue as to any misstatement by either Haugen or Cashmore, he cannot succeed in his opposition to summary judgment. Moreover, Pipkin also failed to provide evidence that creates an issue of material fact as to injury. See Robinson v. Tripco Inv., Inc., 2000 UT App 200,¶12, 21 P.3d 219 (stating the elements of fraud include "injury and damage"). Pipkin is an experienced businessman who received $375,000 for the sale of a company in which he had been actively involved for several years, and did so with the assistance of counsel. Even if we determined that Pipkin's allegations of fraud or misrepresentation survive the motion for summary judgment, he failed to provide evidence establishing that reliance on those allegations caused him injury.(1) Establishing injury is a necessary element of fraud and negligent misrepresentation; therefore, because Pipkin failed to establish a question of fact as to his injury, summary judgment was appropriate.

Lastly, Pipkin's brief appears to include an appeal of the trial court's grant of summary judgment as to his claim of intentional interference with economic relations. However, while outlining evidence he believes establishes that Haugen and Cashmore were deceitful in the sale of Quick Cash, Pipkin does nothing to establish the facts necessary to prove intentional interference with economic relations.(2) "[A] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research." State v. Vargas, 2001 UT 5,¶42, 20 P.3d 271 (alteration in original) (quotations and citations omitted). Rule 24(a)(9) of the Utah Rules of Appellate Procedure requires Pipkin to include the "contentions and reasons" he is appealing the issue. Id. Aside from his statement that he pleaded with great specificity the claim of intentional interference with economic relations, Pipkin does nothing to show how either Cashmore or Haugen intentionally interfered with his business relations and did so with an improper purpose. See Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 304 (Utah 1982). Because Pipkin failed to provide facts and arguments relating to intentional interference with economic relations, we refuse to address the issue.

Affirmed.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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Russell W. Bench, Judge

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James Z. Davis, Judge

1. Pipkin alleges that Quick Cash may have been worth 1 to 1.2 million dollars at the time he sold the company to Cashmore. However, there is nothing in the record establishing Quick Cash's value at the time of the sale. Therefore, there was no evidence before the trial court establishing that Pipkin was injured when he sold his share of Quick Cash for $375,000.

2. To establish intentional interference of economic relations, Pipkin must prove "(1) that the defendant intentionally interfered with the plaintiff's existing or potential economic relations, (2) for an improper purpose or by improper means, (3) causing injury to the plaintiff." Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 304 (Utah 1982).