PROPERTIES v. STRAND

• Citation: 241 P.3d 375,2010 UT App 257
• Decision Date: 23 September 2010
• Docket Number: No. 20080838-CA.,20080838-CA.
• Parties: GOLDEN MEADOWS PROPERTIES, LC, aka Golden Meadows Properties, LLC, Plaintiff and Appellee, v. Michael STRAND and Cari Allen, Defendants and Appellants.
• Court: Court of Appeals of Utah

241 P.3d 375

2010 UT App 257

GOLDEN MEADOWS PROPERTIES, LC, aka Golden Meadows Properties, LLC, Plaintiff and Appellee,

v.Michael STRAND and Cari Allen, Defendants and Appellants.

No. 20080838-CA.

Court of Appeals of Utah.

Sept. 23, 2010.

COPYRIGHT MATERIAL OMITTED.

Michael W. Strand and Cari Allen, Centerville, Appellants pro se.

James C. Swindler, Salt Lake City, for Appellee.

Before Judges ORME, THORNE, and VOROS.

MEMORANDUM DECISION

VOROS, Judge:

¶ 1 Plaintiff Golden Meadows Properties, LC, brought an unlawful detainer action against Defendants Michael Strand and Cari Allen (collectively, Strand) to remove Strand from a residence in Bountiful, Utah (the Property). Strand responded with a counterclaim for quiet title, constructive trust, and adverse possession. The district court granted summary judgment to Golden Meadows. ¹

¶ 2 Strand challenges the district court's grant of summary judgment to Golden Meadows. He contends that the district court erred in denying his discovery motions and in striking fourteen affidavits. He alleges that had the discovery continued, or had the affidavits been admitted, he would have been able to show that a genuine issue of material fact existed as to the true ownership of the Property, thus precluding summary judgment. We affirm.

[1] ¶ 3 On some issues, Strand argues that because he is a pro se litigant, he should have been granted more leniency or given the opportunity to correct his errors. “[A] party who represents himself will be held to the same standard of knowledge and practice as any qualified member of the bar. Nevertheless, because of his lack of technical knowledge of law and procedure, [a pro se litigant] should be accorded every consideration that may reasonably be indulged.” State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (internal quotation marks omitted). Actually, Strand has displayed a technical knowledge of law and procedure that belies his nonlawyer status. He is a very experienced pro se litigant who has proven himself quite capable of navigating the intricacies of civil procedure. Moreover, our review of the record here indicates that Strand has been accorded every consideration that may reasonably be indulged. ²

[2] [3] ¶ 4 This case began as an unlawful detainer action. “The basis of a suit in unlawful detainer is unlawful possession.... [O]ne of the primary purposes of the unlawful detainer statute is to provide a speedy resolution on the issue of possession....” Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT 29, ¶ 23, 232 P.3d 999 (citation omitted). Resolution of this matter has been anything but speedy, however. The litigation has spanned three years and spawned twenty-one volumes of pleadings and transcripts. We commend the trial judge for his excellent work managing the flood of documents, motions, and arguments.

I. The District Court Did Not Abuse Its Discretion in Denying Strand's Discovery Motions.

¶ 5 As an initial matter, Strand argues that Golden Meadows lacks standing to bring this claim. In doing so, he attempts to raise various questions associated with the decades-long business affairs involving Strand, Neuman Petty individually, Nupetco, and Golden Meadows. He argues that “[t]here were fact questions as to the source of funds used in the transactions, for payment of the taxes and, whether [Golden Meadows] was an alter ego of Neuman Petty or its parent corporation, as would allow piercing of [the] corporate veil, precluding summary judgment.” He then argues that “[i]t was clearly improper for the Trial Court to deny [his] discovery motions seeking information about the source of funds used.” ³

¶ 6 Strand moved the district court to compel Golden Meadows to answer certain interrogatories, to suspend the scheduling order, and to stay the proceedings until the discovery issues were resolved. The district court denied Strand's motion to compel, concluding it “amount[ed] to an abuse of the discovery process,” and also denied Strand's motion to suspend the scheduling order. The district court's denial of Strand's motion to compel mooted Strand's motion to stay.

[4] ¶ 7 “We review the trial court's denial of the motion to compel under an abuse of discretion standard.” Pack v. Case, 2001 UT App 232, ¶ 16, 30 P.3d 436. Strand complains about the district court's actions but offers us no basis to reverse them. Rule 24 of the Utah Rules of Appellate Procedure provides that “[t]he argument shall contain the contentions and reasons of the appellant with respect to the issues presented.” Utah R.App. P. 24(a)(9). Strand's brief does not contain his contentions or reasons that the district court abused its discretion. Instead, he repeatedly speculates on what evidence might have emerged from further discovery. This speculation, without more, does not demonstrate that the district court abused its discretion in the context of this case. Accordingly, we affirm the district court's denial of Strand's motion to compel discovery. See State v. Green, 2005 UT 9, ¶ 11, 108 P.3d 710 (“A brief which does not fully identify, analyze, and cite its legal arguments may be disregarded or stricken by the court.” (internal quotation marks omitted)).

II. The District Court Did Not Abuse Its Discretion in Striking Strand's Affidavits.

[5] [6] ¶ 8 Strand resisted summary judgment by asserting that he held an equitable interest in the Property as beneficiary of either an express trust or a constructive trust. In support of this contention, Strand offered fourteen affidavits to the district court. The district court struck the affidavits ⁴ for a variety of reasons, including being untimely (in violation of the scheduling order), violating rule 702 of the Utah Rules of Evidence, lacking foundation, being irrelevant or conclusory, and containing hearsay. On appeal, Strand asks us to reverse the district court's ruling striking the affidavits. ⁵

A. The Affidavits of Strand and Allen and the Four February 28 Affidavits Stricken as Untimely

¶ 9 Golden Meadows filed its Motion for Summary Judgment on January 15, 2008, in compliance with an October 24, 2007 scheduling order. Strand's opposition was due on January 30, 2008. See Utah R. Civ. P. 7(c)(1). Instead of filing a memorandum in opposition, Strand filed a motion to enlarge time to respond, a motion to stay, and a motion to compel Golden Meadows to answer interrogatories to which it had objected. After a hearing on the matter, the district court ordered that “[Strand] shall file [his] papers in opposition to [Golden Meadows'] Motion for Summary Judgment not later than February 20, 2008.” On February 19, Golden Meadows' counsel told Strand that he (Golden Meadows' counsel) would not object to Strand's failure to file by the close of business on February 20 if the appropriate documents were delivered by midnight. When that did not happen, Golden Meadows' counsel told Strand that he would not object if the documents were delivered on February 21, and then that he would not object if the documents were delivered by 9:00 a.m. on February 22. Strand's and Allen's affidavits arrived at 10:00 a.m. on February 22. The last four affidavits, those of Daniel W. Jackson and Charles Dooley, and the supplemental affidavits of Strand and Allen, were not served until February 28.

¶ 10 Strand argues that his failure to comply with the scheduling order should be overlooked because Golden Meadows was not prejudiced by the receipt of the affidavits. He also argues that despite his noncompliance with the court's order, no rule of civil procedure bars the filing of untimely affidavits. For example, he notes that rule 7(c)(1) of the Utah Rules of Civil Procedure bars the filing of additional memoranda but does not prohibit filing additional affidavits. See Utah R. Civ. P. 7(c)(1).

[7] [8] ¶ 11 District judges “have broad discretion in managing the cases assigned to their courts.” Posner v. Equity Title Ins. Agency, 2009 UT App 347, ¶ 23, 222 P.3d 775, cert. denied, 230 P.3d 127 (Utah 2010). Rule 16(d) of the Utah Rules of Civil Procedure allows a district court to impose various sanctions if “a party ... fails to obey a scheduling or pretrial order.” Utah R. Civ. P. 16(d). Among the permitted sanctions are “prohibit [ing] the disobedient party from ... introducing designated matters in evidence,” “strik[ing] pleadings or parts thereof,” and “dismiss[ing] the action or proceeding or any part thereof.” Id. R. 37(b)(2)(B)-(C). We review the imposition of sanctions only for an abuse of discretion. See Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 16, 215 P.3d 933.

[9] ¶ 12 There are, of course, outer limits to a district court's discretion in such matters. See, e.g., Welsh v. Hospital Corp. of Utah, 2010 UT App 171, ¶ 19, 235 P.3d 791 (“[T]he trial court's discretion, while expansive, is not unlimited.” (citation omitted)). Here, however, Strand has not made the showing required to establish that the district court exceeded those limits.

B. The Affidavits Stricken as Irrelevant, Conclusory, or Lacking Foundation (Including Lois Strand Williams's)

[10] [11] ¶ 13 Strand contends that the district court erred in striking several affidavits, or portions thereof, as irrelevant or lacking foundation. Affidavits supporting or opposing summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Utah R. Civ. P. 56(e). Accordingly, affidavits containing allegations that “are not based on personal knowledge, lack foundation, are conclusory, and contain hearsay” may be stricken. Murdock v. Springville Mun. Corp., 1999 UT 39, ¶ 27, 982 P.2d 65. Similarly, “[a]ffidavits reflecting an affiant's unsubstantiated conclusions and opinions are inadmissible.” Cabaness v. Thomas, 2010 UT 23, ¶ 33, 232 P.3d 486. “A district court's refusal to consider evidence or to exclude...