D & L SUPPLY v. Saurini, 775 P.2d 420 (Utah 1989). · Go Syfert
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D & L SUPPLY v. Saurini, 775 P.2d 420 (Utah 1989). Cases Citing This Book View Copy Cite
33 citation events (7 in the last 25 years) across 2 distinct courts.
Strongest positive: Shiozawa v. Duke (utahctapp, 2015-02-20)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 23 distinct citers.
cited Cited as authority (rule) Shiozawa v. Duke
Utah Ct. App. · 2015 · confidence medium
Accordingly, "inadmissible evidence cannot be considered in ruling on a motion for summary judgment." D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989).
cited Cited as authority (rule) In Re the Complaint Against Smith
Utah · 1996 · confidence medium
See Thayne v. Beneficial Utah, Inc., 874 P.2d 120, 124 (Utah 1994); D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989); Town of Alta v. Ben Hame Corp., 836 P.2d *175 797, 804 (Utah.Ct.App.1992).
discussed Cited as authority (rule) Harline v. Barker
Utah · 1996 · confidence medium
The next question we address, also common to both appeals, is whether both trial courts erred in considering the bankruptcy court’s January 24th ruling regarding the motion to clarify its original order denying Harline’s bankruptcy discharge. “[I]nadmis- *441 sible evidence cannot be considered in ruling on a motion for summary judgment.” D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989).
examined Cited as authority (rule) Litster v. Utah Valley Community College (4×) also: Cited "see"
Utah Ct. App. · 1994 · confidence medium
However, Utah case law has uniformly required that a party who sees deficiencies in a Rule 56 affidavit move to strike the affidavit or object to it in some equivalent way; otherwise, any objection is waived and the averments of the affidavit are properly before the court. 1 See, e.g., D & L Supply v. Sawrini, 775 P.2d 420, 421 (Utah 1989); Hobelman Motors, Inc. v. Allred, 685 P.2d 544, 546 (Utah 1984); Franklin Fin. v. New Empire Dev.
discussed Cited as authority (rule) GNS PARTNERSHIP v. Fullmer
Utah Ct. App. · 1994 · confidence medium
This rule provides that on a motion for summary judgment, “[supporting and opposing affidavits 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). “[I]nadmissible evidence cannot be considered in ruling on a motion for summary judgment,” D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989), so an affidavit which does not meet the requirements of rule 56(e) may be subject to a motion to strike.
discussed Cited as authority (rule) Hansen v. Mountain Fuel Supply Co. (2×)
Utah · 1993 · confidence medium
D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989).
cited Cited as authority (rule) Loosli v. Kennecott Copper Corp.
Utah Ct. App. · 1993 · confidence medium
D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989) (quoting Themy v. Seagull Enters., Inc., 595 P.2d 526, 528-29 (Utah 1979)).
cited Cited as authority (rule) Gramlich v. Munsey
Utah · 1992 · confidence medium
D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989).
cited Cited as authority (rule) Malone v. Parker
Utah · 1992 · confidence medium
D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989) (citing Themy v. Seagull Enters., Inc., 595 P.2d 526, 528-29 (Utah 1979)); Brower v. Brown, 744 P.2d 1337, 1338 (Utah 1987).
discussed Cited as authority (rule) Perkins v. Great-West Life Assurance Co.
Utah Ct. App. · 1991 · confidence medium
The appellate court considers the evidence in the light most favorable to the losing party and affirms “ ‘only where it appears that there is no genuine issue as to any material issues of fact, or where, even according to the facts as contended by the losing party, the moving party is entitled to judgment as a matter of law.’ ” D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989) (quoting Themy v. Seagull Enter., Inc., 595 P.2d 526, 528-29 (Utah 1979)).
cited Cited as authority (rule) Hunt v. ESI Engineering, Inc.
Utah Ct. App. · 1991 · confidence medium
D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989) (citing Themy v. Seagull Entertainment Inc., 595 P.2d 526, 528-29 (Utah 1979)).
cited Cited as authority (rule) Ehlers & Ehlers Architects v. Carbon County
Utah Ct. App. · 1991 · confidence medium
D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989) (quoting Themy v. Seagull Enter., Inc., 595 P.2d 526, 528-29 (Utah 1979)).
discussed Cited as authority (rule) Sandy City v. Salt Lake County
Utah Ct. App. · 1990 · confidence medium
The relevant portion of rule 56(e) states that “[supporting and opposing affidavits 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.” Inadmissible evidence cannot be considered in ruling on a motion for summary judgment, D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989); Creekview Apartments v. State Farm Ins.
discussed Cited as authority (rule) Beehive Brick Co. v. Robinson Brick Co. (2×)
Utah Ct. App. · 1989 · confidence medium
Summary judgment is supposed to be the device by which a defendant can say to the trial court, "even according to the facts as contended by plaintiff, I am entitled to judgment as a matter of law." See D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989).
discussed Cited as authority (rule) MacHan Hampshire Properties, Inc. v. Western Real Estate & Development Co. (2×)
Utah Ct. App. · 1989 · confidence medium
D & L Supply v. Saurini, 775 P.2d 420, 421 (1989) (quoting Themy v. Seagull Enters., Inc., 595 P.2d 526, 528-29 (Utah 1979)).
discussed Cited "see" McKelvey v. Hamilton
Utah Ct. App. · 2009 · signal: see · confidence high
See D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989). © 117 Second, McKelvey‘ argues that the district court erred in concluding, as a matter of law, that the parties entered into an enforceable partial settlement agreement and further abused its discretion by enfore-ing the agreement, which resulted in the dismissal of all her remaining claims.
cited Cited "see" Pinetree Associates v. Ephraim City
Utah · 2003 · signal: see · confidence high
See D & L Supply v. Saurini, 775 P.2d 420 (Utah 1989); Pentecost v. Harward, 699 P.2d 696, 699 (Utah 1985); Fox v. Allstate Ins.
discussed Cited "see" Thayne v. Beneficial Utah, Inc.
Utah · 1994 · signal: see · confidence high
In reviewing the trial court’s entry of summary judgment, “we consider the evidence in the light most favorable to the losing party, and affirm only where it appears there is no genuine dispute as to any material issues of fact.” Themy v. Seagull Enters., Inc., 595 P.2d 526, 528-29 (Utah 1979) (footnote omitted); see D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989).
cited Cited "see" Van Der Stappen v. Van Der Stappen
Utah Ct. App. · 1991 · signal: see · confidence high
See D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989); Gadd v. Olson, 685 P.2d 1041, 1045 (Utah 1984). 7 .
discussed Cited "see" Redevelopment Agency of Salt Lake City v. Daskalas
Utah Ct. App. · 1989 · signal: see · confidence high
See D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989) (adverse party must set forth specific facts in an affidavit or otherwise to raise any issue of fact); Creekview Apartments v. State Farm Ins.
discussed Cited "see, e.g." Pinder v. State (2×)
Utah · 2015 · signal: see, e.g. · confidence medium
See, e.g., D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989) (holding that "[iJt is true that inadmissible evidence cannot 'be considered in ruling on a motion for summary judgment," but rejecting an argument that summary Judgment evidence contained hearsay because the party "failed to object at the trial court"); see also id. (collecting cases), 15 .
discussed Cited "see, e.g." Pinder v. State (2×)
Utah · 2015 · signal: see, e.g. · confidence medium
See, e.g., D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989) (holding that “[i]t is true that inadmissible evidence cannot be considered in ruling on a motion for summary judgment,” but re- jecting an argument that summary judgment evidence contained hearsay because the party “failed to object at the trial court”); see also id. (collecting cases). 15 The grounds for a charge of perjury by Welch at the time of trial were extensive: (1) that a fellow inmate testified that Welch told him that Welch was getting out of jail soon because he was going to testify against a “guy” facin…
cited Cited "see, e.g." Deschamps v. Pulley
Utah Ct. App. · 1989 · signal: see also · confidence medium
See also D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989).
D & L SUPPLY, Plaintiff and Appellee,
v.
John SAURINI, Defendant and Appellant
860261.
Utah Supreme Court.
Jun 8, 1989.
775 P.2d 420
William J. Cayias, Salt Lake City, for appellant., Robert L. Moody, Provo, and Diane Hensley-Martin, Englewood, for appellee.
Zimmerman, Hall, Howe, Stewart, Durham.
Cited by 28 opinions  |  Published
ZIMMERMAN, Justice:

John Saurini appeals from the trial court’s grant of summary judgment in favor of D & L Supply for money owed on an open account. Saurini asserts that the court did not have personal jurisdiction over him and that in fixing the amount owed D & L, the trial court relied on inadmissible hearsay evidence. We affirm.

The facts are straightforward. D & L, a Utah corporation, filed an action against Saurini for sums due D & L for goods sold to a Colorado corporation owned in part by Saurini. D & L alleged in its complaint that Saurini agreed to be personally liable for orders he made on behalf of the corporation. D & L sought judgment for the amount of the unpaid invoices, interest, attorney fees, and court costs for a totai of $218,329.90. Saurini filed an answer, asserting that he was not personally responsible for the unpaid bills and that the court had no jurisdiction over him.

D & L filed a motion for summary judgment supported by the affidavit of Jack Leftwich, D & L’s president. Leftwich asserted facts that supported the court’s personal jurisdiction over Saurini, the allegation that Saurini had agreed to be liable for the unpaid debts, and the claim that $140,-319.11 plus interest was due. D & L also filed a statement of undisputed facts, as required by court rule 2.8. R. Practice—[*421] Dist. and Cir.Ct. 2.8. This statement elaborated on the factual assertions in the complaint and the Leftwich affidavit. Saurini did not file an opposition to the motion. The trial court granted summary judgment for D & L for the full $140,319.11, plus interest and costs.

Summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Utah R.Civ.P. 56(c). In reviewing a grant of summary judgment,

we consider the evidence in the light most favorable to the losing party, and affirm only where it appears there is no genuine dispute as to any material issues of fact, or where, even according to the facts as contended by the losing party, the moving party is entitled to judgment as a matter of law.

Themy v. Seagull Enter., Inc., 595 P.2d 526, 528-29 (Utah 1979) (footnotes omitted).

Saurini raises two points. First, although he filed no opposition to D & L’s summary judgment motion, he argues that a genuine issue of material fact exists as to the trial court’s jurisdiction because of facts alleged in the original pleadings, i.e., D & L’s complaint and Saurini’s contradictory answer. Rule 56(e) expressly rejects Saurini’s premise. When a motion for summary judgment is filed and supported by an affidavit, the party opposing the motion has an affirmative duty to respond with affidavits or other materials allowed by rule 56(e).

[A]n adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Utah R.Civ.P. 56(e); see Hall v. Fitzgerald, 671 P.2d 224, 226-27 (Utah 1983); Thornock v. Cook, 604 P.2d 934, 936 (Utah 1979). Saurini relies on Pentecost v. Harward, 699 P.2d 696 (Utah 1985), for the proposition that a verified pleading is equivalent to an affidavit for the purposes of summary judgment. However, he overlooks the fact that his answer was not verified.

Saurini next contends that some of the averments of the Leftwich affidavit essential to the court’s determination of the amount due to D & L were inadmissible hearsay. He notes that if an affidavit is offered in support of a motion for summary judgment, it “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).

It is true that inadmissible evidence cannot be considered in ruling on a motion for summary judgment. Norton v. Blackham, 669 P.2d 857, 859 (Utah 1983). It is also true that there are evidentiary problems on the face of the Leftwich affidavit and in the recitation of supposedly uncontested facts in D & L’s memorandum of points and authorities submitted in support of the motion. Saurini, however, waived these errors when he failed to object at the trial court. See Hobelman Motors, Inc. v. Allred, 685 P.2d 544, 546 (Utah 1984) (affidavit in opposition to motion for summary judgment not properly notarized, but objection waived where not timely made); Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1044 (Utah 1983) (even if affidavits in support of summary judgment were defective, party opposing summary judgment motion failed to move to strike and was deemed to have waived his opposition to evidentiary defects).

The summary judgment is affirmed.

HALL, C.J., HOWE, Associate C.J., and STEWART and DURHAM, JJ., concur.