Stevens v. Laverkin City

Decision Date10 April 2008
Docket NumberNo. 20070031-CA.,20070031-CA.
Citation2008 UT App 129,183 P.3d 1059
PartiesRobert C. STEVENS dba Keystone Repair, individually, Plaintiff and Appellant, v. LaVERKIN CITY, a municipal corporation and political subdivision of the State of Utah, Defendant and Appellee.
CourtUtah Court of Appeals

Shawn T. Farris and Chad J. Utley, St. George, for Appellant.

Bryan J. Pattison and Heath H. Snow, St. George, for Appellee.

Before GREENWOOD, P.J., THORNE, Associate P.J., and BENCH, J.


BENCH, Judge:

¶ 1 Robert C. Stevens appeals the trial court's grant of summary judgment in favor of LaVerkin City (the City), which resulted in the dismissal of his inverse condemnation claim, and the trial court's denial of his motion to set aside the judgment. Stevens claims that, despite his failure to timely respond to the City's motion, the trial court erred in granting summary judgment in favor of the City because there were genuine issues of material fact evident on the face of the City's motion and in the record itself and because summary judgment was not appropriate as a matter of law. Stevens also asserts that summary judgment should be reversed because the trial court's order failed to include a brief statement of the grounds underlying the ruling, as required by rule 52(a) of the Utah Rules of Civil Procedure. Additionally, Stevens claims that the trial court abused its discretion by denying his motion to set aside the judgment. In the alternative, Stevens argues that the judgment should be set aside because his attorney's failure to file a memorandum in opposition to the City's motion for summary judgment constituted gross negligence. We affirm.


¶ 2 In late 1998 or early 1999, Stevens purchased property located at 95 South State Street in the City (the 95 South State Street Property). Stevens purchased this property with the intent to operate a business involving the acquisition, repair, and sale of damaged vehicles, as well as the repair of damaged vehicles owned by others. Stevens requested preliminary approval from the LaVerkin City Council (the City Council) for an auto body shop and a used car dealership on this property. The City Council granted preliminary approval of the projected business and issued Stevens a conditional use permit and a business license for an auto body repair shop. Shortly after receiving the City Council's approval in early 2000, Stevens commenced business operations as Keystone Repair.

¶ 3 Two years later, Stevens purchased additional property in the City, located at 160 South State Street (the 160 South State Street Property). Like the 95 South State Street Property, this property was zoned as general commercial. Stevens obtained informal verbal approval from city officials to store vehicles at the 160 South State Street Property that would eventually be processed for repair at the 95 South State Street Property.

¶ 4 Stevens then formally requested a conditional use permit to use the front portion of the 160 South State Street Property as a used car lot for vehicles he refurbished at the 95 South State Street Property. The City Council granted a six-month conditional use permit that limited Stevens to having no more than twenty refurbished cars on the lot. The City Council later granted a second six-month conditional use permit for the continued use of the 160 South State Street Property as a used car lot and imposed several additional conditions.

¶ 5 In October 2004, the City held a joint meeting with the City Council and the LaVerkin City Planning Commission (the Planning Commission) primarily to address concerns regarding the vehicles parked on and around the two properties. The concerns centered on the expanding number of vehicles on the properties and related safety issues, as well as whether the use of property to store and refurbish wrecked vehicles was authorized under Stevens's previous conditional use permit. At the conclusion of the meeting, the City Council resolved to make Stevens's continued operation of his business conditional on his satisfaction of several requirements related to usage of his property and parking of both damaged and refurbished vehicles.

¶ 6 Two months later, the City Council held a hearing to consider the status of the conditional use permit issued to Stevens in 2000 for the 95 South State Street Property. At the conclusion of the hearing, the City Council determined not to revoke the conditional use permit, but to modify it by converting it to a temporary, six-month permit with additional conditions. The City issued the modified conditional use permit in January 2005.

¶ 7 At some point, the City began contemplating work on 100 South Street, including widening the road. Since such work might have reduced the distance between the street and Stevens's buildings and made the buildings noncompliant with zoning requirements, the entire 95 South State Street Property would have needed to be condemned. In light of these zoning issues and the ongoing concerns regarding parking, appearance, and public safety with respect to the property, the City Council entered into negotiations with Stevens for the purchase of the 95 South State Street Property. These negotiations concluded in late December 2005.

¶ 8 In the meantime, the City Council held two hearings regarding the renewal of Stevens's temporary conditional use permits for both of the properties. In June 2005, the City Council determined that Stevens had failed to comply with the conditions associated with his permit for the 160 South State Street Property and voted not to renew the permit. The City Council later determined that Stevens remained in noncompliance with the modified conditional use permit on the 95 South State Street Property and voted not to renew that permit either. Notwithstanding the revocation of the conditional use permits, Stevens continued to conduct business operations from both properties.

¶ 9 Stevens attended all the hearings held by the City Council to review his requests for conditional use permits, to evaluate suggested modifications to the permits, or to consider the revocation or nonrenewal thereof. The only meeting relevant to his permits that Stevens did not attend was the City Council and the Planning Commission's joint meeting in October 2004. Stevens claims that he was not given notice of the meeting or the intended discussion at the meeting of his business activities. Despite his attendance at all the other relevant hearings, Stevens never appealed the nonrenewal of his conditional use permits to the LaVerkin City Board of Adjustment. Likewise, Stevens never appealed the City Council's modification of his conditional use permit on the 95 South State Street Property.

¶ 10 The City sent a final offer to purchase the 95 South State Street Property, which offer expired on January 4, 2006. Stevens did not accept the offer by the deadline. In a letter dated January 5, 2006, the LaVerkin City Manager notified Stevens that the City intended not to renew Stevens's business license for his automobile repair and salvage business located at 95 South State Street. The letter stated that the action would be formally taken by the City Council at its January 18, 2006 meeting. Stevens and his counsel attended that meeting and were given the opportunity to present evidence and argument in support of Stevens's position that his business license should not be revoked. At the conclusion of the hearing, however, the City Council voted not to renew Stevens's business license.

¶ 11 That same day, Stevens filed a verified complaint against the City alleging a single cause of action: inverse condemnation. In his complaint, Stevens alleged that the City had attempted, by threatening civil and criminal prosecution and by refusing to renew his conditional use permits and business license, to coerce Stevens into selling his real property. Specifically, Stevens alleged that the City's revocation or refusal to renew his business license constituted a taking of property. The only constitutional provision referenced in the complaint was Article I, Section 22 of the Utah Constitution.

¶ 12 The City filed a motion for summary judgment, arguing that Stevens's inverse condemnation claim failed because Stevens had not exhausted his administrative remedies and because the undisputed facts indicated that no taking of property had occurred as a matter of law. In this motion, the City repeated the factual findings made by the trial court in the court's prior memorandum decision following the parties' dueling motions for a preliminary injunction.1 Rather than citing the record directly in its motion, the City referenced the trial court's memorandum decision, which cited depositions and other documents in the record.

¶ 13 The City's motion for summary judgment was received at the law offices of Ascione, Heideman, & McKay, LLC (AHM) on October 30, 2006. Around this same time, AHM commenced an expansion of its law office to a newly-acquired space on an upper floor of its building. Due to delays in the delivery of furniture and equipment necessary to complete the move, AHM counsel working on Stevens's case, Robert Avery, and other staff worked either from home or temporary desks within the law office. Additionally, Avery had recently hired a new assistant. For reasons that were not specified, Avery did not actually see a copy of the City's motion for summary judgment until the morning of November 20, 2006.

¶ 14 Realizing that the deadline had passed for filing a memorandum in opposition to the summary judgment motion, Avery attempted to procure an extension from the City's counsel. The City's counsel responded that the City had already filed a request to submit the motion for decision. Upon receiving the City's request to submit, the trial court entered summary judgment in the City's favor. The order stated only that the judgment was "[b]ased on Defendant City of LaVerkin's Motion for Summary...

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13 cases
  • Veur v. Groove Entm't Techs., 20160153-CA
    • United States
    • Utah Court of Appeals
    • 9 Agosto 2018
    ...also reluctant to affirm dismissal on this ground when it was not a ground on which Groove moved for summary judgment. Cf. Stevens v. LaVerkin City , 2008 UT App 129, ¶¶ 29–32, 183 P.3d 1059 (declining to reach an issue raised on appeal because the appellant did not raise it below until his......
  • Thayer v. Wash. Cnty. Sch. Dist.
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    ...relocation at a planning commission meeting, and shortly thereafter “confirmed its approval” in a letter to the applicant), Stevens v. LaVerkin City, 2008 UT App 129, ¶ 3, 183 P.3d 1059 (indicating that individual “obtained informal verbal approval from city officials” to store vehicles on ......
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    • United States
    • Utah Court of Appeals
    • 16 Agosto 2012
    ...reply memorandum, it [is] not properly before the trial court and we will not consider it for the first time on appeal.’ ” Stevens v. LaVerkin City, 2008 UT App 129, ¶ 31, 183 P.3d 1059 (alterations in original) (quoting State v. Phathammavong, 860 P.2d 1001, 1004 (Utah Ct.App.1993)). 7. To......
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    ...that "a reply memorandum ... shall be limited to rebuttal of matters raised in the memorandum of opposition"); Stevens v. LaVerkin City, 2008 UT App 129, 183 P.3d 1059. 3. We also note that Defendant approved the jury instructions as presented at trial and, thus, is barred from claiming err......
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1 books & journal articles
  • Utah Standards of Appellate Review - Third Edition
    • United States
    • Utah State Bar Utah Bar Journal No. 23-6, December 2010
    • Invalid date
    ...trial court adequately supported its decision to grant the...summary judgment motion.'" Stevens v. LaVerkin City, 2008 UT App 129, ¶ 16, 183 P.3d 1059 (omission in original) (quoting Gabriel v. Salt Lake City Corp., 2001 UT App 277, ¶ 8, 34 P.3d 234). (29) Rule 54 - Judgments; Costs Whether......

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