Opinion
Case No. 20090398-CA.
Filed March 18, 2010. Not For Official Publication
Appeal from the Third District, Salt Lake Department, 080903840 The Honorable Kate A. Toomey.
Harry F. Suniville Jr., Draper, Appellant Pro Se.
Richard C. Terry, Christopher G. Jessop, and Douglas A. Oviatt, Salt Lake City, for Appellee.
Before Judges McHugh, Orme, and Voros.
MEMORANDUM DECISION
Harry F. Suniville, Jr., appeals the district court's order granting summary judgment in favor of Jordan Credit Union (Jordan). We affirm.
Suniville asserts that the district court erred by determining that no genuine issue of material fact precluded summary judgment. When reviewing whether the district court properly granted summary judgment, this court must determine whether there was a genuine issue of material fact, and if not, whether the prevailing party was entitled to judgment as a matter of law. See Thornock v. Cook, 604 P.2d 934, 936 (Utah 1979). In opposing summary judgment, a party may not rest upon mere allegations or denials in his or her pleadings, but must set forth specific, admissible facts demonstrating a genuine issue warranting trial. See Superior Receivable Servs. v. Pett, 2008 UT App 225, ¶ 10, 191 P.3d 31. Evidence submitted in opposition to summary judgment may not be considered by the district court if the proposed evidence is based on unsubstantiated opinion.See id. ¶ 9.
The district court determined that Suniville failed to set forth admissible evidence demonstrating that a genuine issue of material fact precluded summary judgment. The record indicates that Suniville's submissions were based on unsubstantiated opinions or were irrelevant to the legal issues before the court. Suniville asserts that he never missed a car payment. Thus, he argues, he could not have defaulted under the terms of the Retail Installment Contract and Security Agreement (the Contract). However, the Contract required Suniville to keep the vehicle in his possession and in good condition and repair. The record indicates that the Utah State Tax Commission notified Jordan that Suniville's vehicle had been impounded. Because the vehicle was no longer held in accordance with the terms of the Contract, the district court properly determined that Jordan was entitled to repossess and sell the vehicle as set forth in the Contract.
Suniville next asserts that the district court erred by determining that he failed to raise a genuine issue of material fact with regard to: (1) whether the vehicle was sold in a commercially reasonable manner, and (2) the vehicle's condition at the time of sale. A district court's determination that a vehicle was sold in a commercially reasonable manner "is a conclusion of law, not a factual finding." Chrysler Dodge Country, U.S.A., Inc., v. Curley, 782 P.2d 536, 538 (Utah Ct. App. 1989). This court has determined that the sale of a repossessed vehicle is commercially reasonable if: (1) the lender does not engage in self-dealing; (2) the debtor is given notice of the sale; and (3) the lender advertises the sale of the vehicle and obtains an appropriate price.See id. at 539-42.
The record indicates that Jordan did not engage in self-dealing. Rather, Jordan advertised the vehicle and attempted to sell it at an auto auction. Jordan did not receive any offers to purchase the vehicle due to its condition. The record also supports the district court's determination that Suniville received adequate notice of repossession and sale of the vehicle. Finally, the record indicates that Suniville's submissions were insufficient to rebut Jordan's admissible evidence that the vehicle required significant repairs. Given the record, we cannot say that the district court erred by determining that the vehicle was sold in a commercially reasonable manner and that Jordan was entitled to judgment as a matter of law.
Suniville also asserts that the district court failed to consider his memoranda opposing summary judgment because the court determined that they were untimely. However, the record indicates that the court substantively considered Suniville's submissions and determined that they failed to raise a genuine issue of material fact.
Suniville next asserts that the district court erred by denying his request for appointed counsel. In the alternative, Suniville asserts that the district court erred by denying his request to stay the proceeding for one year, until he was released from prison. An incarcerated litigant, like other litigants, has no right to appointed counsel in civil matters. See State v. Young, 853 P.2d 327, 354 (Utah 1993). Thus, the district court did not err by denying Suniville's request for court-appointed counsel. Likewise, it is within the district court's discretion to stay proceedings. See Lewis v. Moultree, 627 P.2d 94, 96 (Utah 1981). Suniville fails to demonstrate that the district court abused its discretion in staying the proceeding.
The Contract expressly provides for fees and costs to be paid to the prevailing party. Jordan is entitled to reasonable attorney fees and costs incurred on appeal. See Cottonwood Mall Co. v. Sine, 830 P.2d 266,269 (Utah 1992). Accordingly, we affirm the district court's order granting summary judgment, award Jordan reasonable attorney fees on appeal, and remand this matter to the district court for a determination of reasonable attorney fees and costs on appeal.
To the extent that Suniville has raised other issues not specifically addressed above, we determine that such issues lack merit, and we decline to address them further. See State v. Carter, 888 P.2d 629, 648 (Utah 1994).
______________________________ Carolyn B. McHugh, Associate Presiding Judge
______________________________ Gregory K. Orme, Judge
______________________________ J. Frederic Voros Jr., Judge