Statements of Material Fact: Increasing Effectiveness and Avoiding Pitfalls
| Publication year | 2008 |
| Pages | 42 |
| Citation | Vol. 21 No. 5 Pg. 42 |
Vol. 21, No. 5, 42. Statements of Material Fact: Increasing Effectiveness and Avoiding Pitfalls
Vol. 21, No. 5
September/October 2008
Utah Rule of Civil Procedure 7, is a precise rule with clear consequences for noncompliance. However, the current practice with respect to rule 7 is anything but clear or precise. From a trial court's perspective there are two explanations for this lack of clarity: Utah attorneys have become adept at avoiding the intention of the rule and Utah appellate decisions have not been clear about the discretion a trial court has to deem facts admitted for a failure to comply with the rule. This article seeks to clarify the purpose of rule 7, to outline the appellate confusion about its application and to present at least one judge's view of how the rule should operate.
THE REQUIREMENTS OF RULE 7
Rule 7 requires a memorandum supporting a motion for summary judgment to set forth facts the movant claims are undisputed in separate numbered paragraphs with references to the record. See Utah r. Civ. P. 7(c)(3)(A). An opposition memorandum must include a verbatim restatement of any disputed facts with an explanation of the dispute, supported by citations to the record. See Utah r. Civ. P. 7(c)(3)(B). If parties do not controvert facts in this fashion, rule 7 makes clear that they are deemed admitted for purposes of summary judgment. See Utah r. Civ. P. 7(c)(3)(A).
Rule 7's procedural requirements were formerly in Utah Rule of Judicial Administration 4-501(2)(A) and (B). Rule 4-501 was repealed November 1, 2003, and the procedures for summary judgment were moved to rule 7. The Rules of Judicial Administration were intended to make Utah's judicial system more efficient and transparent. See Chief Justice Gorden R. Hall, Utah Code of JUd. admin., Oct. 1988, (v). Rule 4-501(2)(B), which is now rule 7(c)(3)(B), created a precise means for trial judges and reviewing courts to decide whether genuine issues of material fact precluded summary judgment. In 2001 the rule was substantially amended and the "verbatim restatement" requirement became a part of the rule. Amendment Notes, Utah r. JUd. admin. 4-501 (2002). Both versions of the rule established a bright-line: controvert the facts appropriately or they will be deemed admitted.
UTAH APPELLATE COURTS ON THE CONSEQUENCES OF A FAILURE TO COMPLY WITH RULE 7
Rule 7 clearly sets forth the consequences of a failure to controvert facts with citations to the record, yet certain decisions from Utah's appellate courts have made a trial court's discretion to admit those facts far less clear. Trial courts traditionally had discretion to deem such uncontroverted facts admitted, but after the Utah Supreme Court's decision in Salt Lake County v. Metro West Ready Mix, Inc. (Metro West), 2004 UT 23, 89 P.3d 155, the extent of that discretion was questioned. The Utah Court of Appeals has questioned the meaning of the Metro West decision and expanded it through several cases addressing the consequences of a party's failure to comply with rule 4-501 or rule 7.
Utah Trial Courts Traditionally Had Discretion to Deem Facts Admitted
Before Metro West, Utah's trial courts clearly had discretion to deem facts admitted for noncompliance with rule 4-501. Both of Utah's appellate courts affirmed the trial court's decision to deem facts admitted and grant summary judgment for failure to comply with 4-501. See Fennell v. Green, 2003 UT App 291, ¶ 8, 77 P.3d 339 (citing Lovendahl v. Jordan School District, 2002 UT 130, 63 P.3d 705). The Utah Court of Appeals upheld the rule and its requirements:
[A] trial court may exercise its discretion to require compliance with the Rules of Judicial Administration, particularly rule 4-501, without impairing a party's substantive rights. In this case, we do not believe the court abused its discretion in requiring compliance with rule 4-501 and thus ruling that the facts, as stated in Defendants' motions and supporting memoranda, were deemed admitted.
How Metro West Changed a Trial Court's Discretion to Deem Facts Admitted for Non-Compliance with Rule 7.
A footnote in Metro West arguably limited a trial court's discretion to require compliance with the rule or deem facts admitted. In Metro West the trial court granted summary judgment and the Utah Court of Appeals affirmed. 2002 UT App 257, ¶ 17, 53 P.3d 499. The Utah Supreme Court then reversed the summary judgment. Metro West, 2004 UT 23, ¶ 28. In a footnote, Justice Durrant found:
Metro West asserts that the County's failure to set forth in its opposing memorandum `a statement of facts it claims are in dispute as [required by] rule 4-501(2)(B) of the Utah Code of Judicial...
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