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Top Seven (7) Mistakes Made in Answering a Lawsuit/Complaint and Dealing with a Motion for Summary Judgment in Utah
(Examples are given below each number)
NOTE: The following is general information, and YOU NEED AN EXPERIENCED ATTORNEY TO GUIDE YOU. Do not assume you can simply read this list and know what you are doing.
#1: FAILING TO DISCUSS THE MATTER WITH AN ATTORNEY.
Shawn gets sued by Carol. While helping Tony, a customer at Shawn’s auto-repair shop, Shawn gets “served” a copy of a complaint/lawsuit. He wraps up his business with Tony, then sits down to read the lawsuit, which contains twenty (20) allegations. He then laughs out loud and says, “What a joke!” He then says to Eddie, one of his mechanics, “Check this out! Carol is suing me for $15,000 because she claims we ruined the engine on her old 1978 Mercedes that had 294,0000 miles on it when we worked on it back in 2009.”
Shawn scribbles off an answer, and sends his employee, Eddie, to file it with the court, which Eddie does. Shawn’s answer essentially says that although he did work on Carol’s car back in 2009, and is the person named in the lawsuit, the work done on the car was superb, and makes it clear that when a car has that many miles on it, the engine’s useful life is just about over.
He figures the judge will “just throw out the case when he reads the answer.” Shawn is very pleased with himself, but has no idea a tidal wave is about to hit him.
He should have taken the lawsuit directly to a civil attorney.
#2: FAILING TO UNDERSTAND WHAT AN AFFIRMATIVE DEFENSE IS (IF THEY ARE NOT “TIMELY RAISED,” THEY ARE WAIVED!).
The law allows Shawn to “state an affirmative defense.” That means that Shawn is allowed to essentially say this: “Hey, I am not saying Carol is right, but let’s assume hypothetically she is. None of what Carol’s saying should even matter now because the time to sue me has passed.” In other words, it’s always a good idea to see if you can get a case dismissed without having to fight over the facts.
But, Shawn did not know that in Utah an affirmative defense (such as the statute of limitations) must be in his answer. Further, it must 1) contain a short and plain statement of such; and 2) it must also include a demand for relief (such as saying the case should be dismissed).
The Utah law says, “A party must set forth affirmatively in a responsive pleading (such as an answer to a complaint) accord and satisfaction, arbitration and award, assumption of risk, comparative fault, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.” Utah R. Civ. P. 8
#3: FAILURE TO KNOW WHEN TO FILE A MOTION FOR SUMMARY JUDGMENT.
There are various ways Shawn could try to get Carol’s case dismissed (such as asserting the affirmative defense that the related statute of limitations has passed). But let’s assume Carol is also claiming she had not driven the car since Shawn repaired it back in 2009, and just now discovered the work was shoddy. Further, she’s also claiming Shawn did not do the work he told her she had done (in other words, he flat out lied to her); thus, she was defrauded by Shawn, and only discovered the fraud a month or so ago.
Because Shawn asserts “the work done on the car was superb,” but Carol asserts no work was done at all, Shawn may want to file a motion for summary judgment right out of the shoot. In other words, he can file a motion that cites to “sworn statements” by his mechanic, Eddie, that Eddie did in fact repair the Mercedes, and that after the repair was made, Eddie drove the car quite some distance to make sure the car was running properly.” Once Shawn files that motion with the “sworn declaration” by Eddie, Carol will have to refute what Eddie swore to with her own sworn declaration. It will not be enough for Carol to simply repond by saying, “I think Shawn and Eddie are lying.” In other words, Carol must present some sort of credible person (such as another skilled mechanic) that can say they personally looked at the car’s engine, and that it does not appear to them that the work Shawn and Eddie claim they did was done. If Carol cannot refute Shawn’s sworn facts with her own credible sworn facts, Shawn will win.
Under Utah law, when a person gets sued, he “may move for summary judgment at any time.” By doing such, Shawn can force Carol to essentially give him all kinds of evidence because whatever Shawn properly lays before the court, Carol must dispute. And that may make further discovery unnecessary, which could save Shawn a ton of time and money. Few defendants take advantage of this maneuver. Remember, because Shawn can file the motion for summary judgment “at any time,” he can even file it before he files an answer to the complaint.
#4: FAILURE TO INCLUDE A LIST OF FACTS THAT CITE TO SWORN STATEMENTS BY THOSE WITH PERONAL KNOWLEDGE WITH YOUR MOTION FOR SUMMARY JUDGMENT (OR WITH YOUR ANSWER TO ONE).
Shawn must make a list of facts for the judge. And every factual “averment” he makes must cite to a sworn statement by somebody who has personal knowledge of it (otherwise the statement may be deemed “incompetent,” and thus, stricken). Shawn’s statement of facts should only include FACTS. He cannot merely allege that “Carol is a liar.” The Utah rules also allow citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or showing that the materials cited do not establish the absence or presence of a genuine dispute (sorry to be technical there, but it’s how the rule lays it out).
Once Shawn does that, Carol must file a memorandum opposing Shawn’s motion, and this is KEY: Carol’s opposition memorandum must include a verbatim restatement of each of Shawn’s facts that is disputed with an explanation of the grounds for the dispute supported by citing to materials in the record or by sworn statements (affidavits, declarations) of her own witnesses (which may include herself). Carol’s memorandum may contain a separate statement of additional materials facts in dispute, but that must be separately stated in numbered paragraphs and similarly supported by matter on file with the court already, or by new, sworn statements.
#5: FAILURE TO PROPERLY OPPOSE “DISPUTED FACTS.”
Shawn and Carol must be very careful to properly oppose every disputed fact (especially the material ones). That’s because every material fact in either Shawn’s motion or in Carol’s opposition memorandum that’s not disputed WILL BE DEEMED ADMITTED the purposes of the motion. Carol cannot simply cite to the complaint she filed. She must cite to sworn statements from those with personal knowledge of the matter, or to things that Shawn has placed before the court (“the record”). Carol cannot cite to unsworn statements by herself (like her allegations in her own unsworn complaint that’s on file with the court).
If Shawn or Carol states something as a “fact” that is not supported the other person should object that that fact is not supported by admissible evidence. In other words, Shawn or Carol must object and tell the court that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. Remember: an affidavit or declaration used to support or oppose a motion 1) must be made on personal knowledge, and 2) must set out facts that would be admissible in evidence, and 3) must show that the affiant or declarant is competent (has personal knowledge) to testify on the matters stated.
#6: FAILURE TO PROPERLY ADMIT UNDISPUTED FACTS.
The judge can hammer Shawn or Carol if they dispute a fact they know to be true just to win on the motion for summary judgment. The court need consider only the cited materials, but it may consider other materials in the record. The law says that if the judge decides either Shawn or Carol has submitted an affidavit or declaration “in bad faith” or “solely for delay,” the court may order the person that filed such to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. The court may also hold an offending party or attorney in contempt or order other appropriate sanctions. So, take this very seriously!
#7: FAILURE TO TELL THE COURT THE MOTION FOR SUMMARY JUDGMENT MAY BE PREMATURE.
Assume Carol reads Shawn’s declarations, and feels they are not true, but needs to do more research, she can tell the judge “the facts are unavailable” to her at that point in the litigation. Carol should show that by affidavit or declaration. Once she does that that (explaining for specified reasons, she cannot yet present facts essential to justify her opposition to Shawn’s motion), the court may 1) wait to consider Shawn’s motion or temporarily deny it; allow Carol time to obtain affidavits or declarations or to take discovery; or issue any other appropriate order.
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