Johnson v. Payson City Corporation , 2012 UT App 112 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
John Johnson, ) MEMORANDUM DECISION
)
Plaintiff and Appellant, ) Case No. 20110284‐CA
)
v. ) FILED
) (April 12, 2012)
Payson City Corporation, )
) 2012 UT App 112Defendant and Appellee. )
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Fourth District, Provo Department, 080402550
The Honorable David N. Mortensen
Attorneys: Aaron P. Dodd, Provo, for Appellant
Jody K. Burnett and George A. Hunt, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges McHugh, Voros, and Davis.
VOROS, Associate Presiding Judge:
¶1 John Johnson sued Payson City Corporation for $59,214, money he claimed as
reimbursement for the cost of installing utility infrastructure—manholes, sewer, and
pressure irrigation—on three building lots. Payson City moved for summary judgment
on the ground that Ray Hiatt and Noel Hiatt, and not Johnson, had installed the
infrastructure. The trial court entered summary judgment in favor of Payson City and
Johnson appeals. We affirm.1
¶2 Summary judgment is appropriate where the case presents no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. See Utah
R. Civ. P. 56(c). “An appellate court reviews a trial court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness and views the facts and
all reasonable inferences drawn therefrom in the light most favorable to the nonmoving
party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation
marks omitted).
¶3 Where, as here, the nonmoving party will bear the burden of proof at trial, the
movant “may satisfy its burden on summary judgment by showing, by reference to ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any,’ that there is no genuine issue of material fact.” Id. ¶ 18 (quoting
Utah R. Civ. P. 56(c)). Upon such a showing, “the burden then shifts to the nonmoving
party, who ‘may not rest upon the mere allegations or denials of the pleadings,’ but
‘must set forth specific facts showing that there is a genuine issue for trial.’” Id.
(emphasis omitted) (quoting Utah R. Civ. P. 56(e)). However, “[t]he object of this
provision is not to replace conclusory allegations of the complaint or answer with
conclusory allegations of an affidavit.” Lujan v. National Wildlife Federation, 497 U.S. 871,
888 (1990). Rather, “‘specific facts are required to show whether there is a genuine issue
for trial. The allegations of a pleading or factual conclusions of an affidavit are
insufficient to raise a genuine issue of fact.’” Overstock.com, Inc. v. SmartBargains, Inc.,
2008 UT 55, ¶ 12, 192 P.3d 858 (quoting Reagan Outdoor Adver., Inc. v. Lundgren, 692 P.2d
776, 779 (Utah 1984)).
¶4 Johnson and Payson City entered into a reimbursement agreement providing
that the City would reimburse Johnson up to $59,214 in consideration for his installation
of specified utility infrastructure. The recitals of the agreement state that “the entire
cost of that installation will be borne by developer,” and the terms of the agreement
twice specify that the reimbursement is for infrastructure “paid for by developer.”
Johnson acknowledges that he did not install the infrastructure and that Ray Hiatt and
1
We have determined that “the decisional process would not be significantly
aided by oral argument.” Utah R. App. P. 29(a)(3).
20110284‐CA 2
Noel Hiatt did. But he claims that he in effect paid them for the work by selling the
subject property to Ray Hiatt at a discount. Accordingly, the alleged discounted sale is
the centerpiece of Johnson’s claim. Yet the record and the briefs only vaguely allude to
this crucial sale.
¶5 On appeal Johnson asserts that “the record shows that [he] paid for the
infrastructure and the costs for installing the infrastructure when the Property was
sold.” Johnson’s claim that he paid Ray Hiatt by discounting the sale price of the
property rests on the following averment in Johnson’s affidavit: “Once Lana [Johnson]
and I sold the property to Carrie Woods, Ray Hiatt’s costs and expenses were included
in the amount of the final sale.”2
¶6 Johnson appears to be referring to two transactions—one from Lana Johnson to
Carrie Woods, and a “final sale,” presumably from Carrie Woods to Ray Hiatt.
However, Johnson reveals few specifics of the sale to Woods, and no specifics of the
“final sale,” including the date, the seller, the buyer, the sale price, the amount of the
purported discount, or any documentation. The record shows that Lana Johnson
conveyed her interest in the property to Carrie Woods in 1997, and Rex and Donna
Waldron conveyed their interest to Ray Hiatt. Noel Hiatt did vaguely state in his
deposition that Carrie and Fred Woods “gave it all to Ray Hiatt in 2000,” but again, this
conclusion is unsupported by any specifics. Even assuming for purposes of summary
judgment that the Johnsons sold their interest at a discount to Woods, Johnson cites
nothing in the record showing how that discount made its way into Ray Hiatt’s pocket.
Accordingly, even viewed in the light most favorable to Johnson, the record facts fall
short of describing any transfer of value from Johnson to Ray Hiatt. Without proof that
Johnson somehow compensated Ray Hiatt for the infrastructure work that the Hiatts
performed, Johnson cannot show that he is entitled to reimbursement from Payson City
2
Lana Johnson is Johnson’s ex‐wife. The property was titled in her name.
However, Johnson claims to have held a beneficial interest in the property. Because we
resolve the appeal on other grounds, we need not address Payson City’s
counterargument that Johnson held no interest in the property and thus could not have
paid Ray Hiatt through the sale.
20110284‐CA 3
under the reimbursement agreement.3 We thus conclude that Johnson has not “set forth
specific facts showing that there is a genuine issue for trial.” Utah R. Civ. P. 56(e).
¶7 Affirmed.
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
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¶8 WE CONCUR:
____________________________________
Carolyn B. McHugh,
Presiding Judge
____________________________________
James Z. Davis, Judge
3
Nor can Johnson show that he is entitled to reimbursement under Payson City
Ordinance 07‐05‐95, which states that the cost “shall be borne by the applicant” and
calculates the reimbursement based in part on “the applicant’s share of the actual cost”
of the infrastructure. See Payson City, Ut., Ordinance 07‐05‐95 (July 5, 1995).
20110284‐CA 4