Johnson v. GOLD'S GYM

2009 UT App 76, 206 P.3d 302, 2009 WL 706660
CourtCourt of Appeals of Utah
DecidedMarch 19, 2009
Docket20070946-CA
StatusPublished
Cited by4 cases

This text of 2009 UT App 76 (Johnson v. GOLD'S GYM) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. GOLD'S GYM, 2009 UT App 76, 206 P.3d 302, 2009 WL 706660 (Utah Ct. App. 2009).

Opinion

206 P.3d 302 (2009)
2009 UT App 76

Nelda P. JOHNSON, Plaintiff and Appellant,
v.
GOLD'S GYM and Peay Investment Company, Defendants and Appellees.

No. 20070946-CA.

Court of Appeals of Utah.

March 19, 2009.

*304 S. Austin Johnson, Orem, for Appellant.

Scott T. Evans and Heather L. Thuet, Salt Lake City, for Appellees.

Before Judges BENCH, DAVIS, and McHUGH.

OPINION

McHUGH, Judge:

¶ 1 Nelda P. Johnson appeals the trial court's order granting Gold's Gym and Peay Investment Company's (collectively, Appellees) motion for summary judgment, the trial court's order striking Johnson's expert witnesses, and the trial court's denial of Johnson's motion to reconsider. Additionally, Johnson argues that the Fourth Judicial District Court in American Fork, Utah, was an improper venue to decide the motion for summary judgment. Finally, Johnson challenges the trial court's jurisdiction to enter a decision on the motion to reconsider and Appellees' motion to strike Johnson's photographs. We affirm.

BACKGROUND[1]

¶ 2 Johnson joined Gold's Gym, a membership-required exercise facility, in Provo, Utah, on July 7, 2004. As part of the gym enrollment process, Johnson signed an Assumption of Risk and Risk of Accident liability waiver.

¶ 3 On or about July 11, 2004,[2] Johnson was leaving the Gold's Gym facility at 9:30 p.m. when she tripped and fell on broken asphalt in the parking lot, injuring her right knee. Johnson sought medical attention at Orem Community Hospital and eventually had surgery to repair her knee.

¶ 4 Johnson filed suit against Appellees in the Fourth Judicial District Court in Provo, Utah, alleging that Appellees were negligent *305 in maintaining the parking lot and seeking $125,000 in damages.[3] After the case had been pending approximately two years, Appellees moved for summary judgment. While that motion was pending, Appellees filed a separate motion to strike Johnson's expert witnesses. The original district judge also discovered a conflict of interest and transferred the case to a district judge located in American Fork, Utah. The new judge granted Appellees' motion to strike Johnson's expert witnesses and later granted Appellees' motion for summary judgment.

¶ 5 Johnson then filed a motion to reconsider, challenging the decision to grant summary judgment and also claiming that the transfer from the trial court in Provo to the one in American Fork violated the venue requirements set forth in the Utah Code, see Utah Code Ann. § 78-13-10 (2002) (current version as amended at Utah Code Ann. § 78B-3-310 (2008)). The trial court executed its final Order and Judgment on October 18, 2007, without directly ruling on Johnson's motion to reconsider. Despite that final order in their favor, Appellees filed a memorandum in opposition to Johnson's motion for reconsideration and a motion to strike the photographs attached as exhibits to it. On November 16, 2007, Johnson filed her notice of appeal. Two weeks later, the trial court denied Johnson's motion for reconsideration, rejected Johnson's venue challenge,[4] and granted Appellees' motion to strike the photographs.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Johnson contends that American Fork was not the proper venue to decide her motion for summary judgment. We review the trial court's statutory interpretation for correctness, affording it no deference. See West Valley City v. Hoskins, 2002 UT App 223, ¶ 6, 51 P.3d 52. "However, before any review can be undertaken the issue must be preserved in the proceedings below." Desert Power, LP v. Public Serv. Comm'n, 2007 UT App 374, ¶ 12, 173 P.3d 218 (internal quotation marks omitted).

¶ 7 Johnson further claims that the trial court lacked jurisdiction to decide her motion for reconsideration or Appellees' motion to strike Johnson's photographs because she had previously filed a notice of appeal. "[W]hether the trial court had jurisdiction to hear and rule on [these] motion[s] [is a] matter[] of law that we review for correctness without deference to the trial court's rulings." State v. Lovell, 2005 UT 31, ¶ 13, 114 P.3d 575.

¶ 8 Johnson also appeals the trial court's decision to strike her expert witnesses as a sanction for her failure to comply with rule 26(a)(3) of the Utah Rules of Civil Procedure. See generally Utah R. Civ. P. 26(a)(3) (detailing disclosure requirements); id. R. 37(f) (allowing exclusion of expert testimony as a sanction for failure to comply with disclosures required by rule 26(a)). We review a trial court's discovery rulings for an abuse of discretion. See Pete v. Youngblood, 2006 UT App 303, ¶ 7, 141 P.3d 629 ("We review the trial court's imposition of sanctions for failure to comply with [rule 26], including the exclusion of testimony, for an abuse of discretion.").

¶ 9 Johnson next argues that summary judgment was inappropriate because there is a genuine dispute of material fact about whether Appellees breached their duty to maintain the parking lot. She further contends that the Risk of Accident and Assumption of Risk liability waiver does not release Appellees from that duty.[5] Summary judgment is proper only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). The grant of summary judgment is a question of *306 law, and we review the trial court's determination of legal issues for correctness, affording no deference to the trial court. See Forsberg v. Bovis Lend Lease, Inc., 2008 UT App 146, ¶ 7, 184 P.3d 610, cert. denied, 199 P.3d 367 (Utah 2008).

¶ 10 Finally, Johnson argues that the trial court improperly denied her motion to reconsider. "[P]ostjudgment motions to reconsider are not recognized anywhere in either the Utah Rules of Appellate Procedure or the Utah Rules of Civil Procedure." Gillett v. Price, 2006 UT 24, ¶ 6, 135 P.3d 861 (citing Ron Shepherd Ins. v. Shields, 882 P.2d 650, 653 n. 4 (Utah 1994)). Therefore, "[a] trial court's decision to grant or deny a motion to reconsider summary judgment is within the discretion of the trial court, and we will not disturb its ruling absent an abuse of discretion." Timm v. Dewsnup, 921 P.2d 1381, 1386 (Utah 1996) (emphasis omitted); accord Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 16, 163 P.3d 615.

ANALYSIS

I. Venue/Jurisdiction

¶ 11 Johnson claims that American Fork was not the proper venue to decide Appellees' motion for summary judgment. We disagree. In Utah, "an action shall be tried in the county in which ... the cause of action arises." Utah Code Ann. § 78-13-7 (2002) (current version as amended at Utah Code Ann. § 78B-3-307 (2008)). American Fork and Provo are both located in Utah County, the location of Johnson's accident.

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Cite This Page — Counsel Stack

Bluebook (online)
2009 UT App 76, 206 P.3d 302, 2009 WL 706660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-golds-gym-utahctapp-2009.