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IN THE UTAH COURT OF APPEALS
----ooOoo----

Express Recovery Services, ) MEMORANDUM DECISION
Inc., ) (Not For Official Publication)

)

Case No. 20090156-CA

Plaintiff and Appellee, )

)

v. )

F I L E D
) (April 9, 2009)
Lisa Hester, )
)

2009 UT App 94
Defendant and Appellant. )

Fourth District, Orem Department, 080201296
The Honorable John C. Backlund

Attorneys: C. David Hester, Lehi, for Appellant
Samuel S. McHenry, Murray, for Appellee

Before Judges Greenwood, Orme, and Davis.

PER CURIAM:

Lisa Hester appeals the trial court's entry of summary
judgment against her and the subsequent denial of her motion for
a new trial. This is before the court on Hester's motion for
summary reversal due to manifest error. We reverse and remand.

A summary judgment motion "shall be in accordance with
[r]ule 7 [of the Utah Rules of Civil Procedure]." Utah R. Civ.

P. 56(c). Under rule 7, a party opposing summary judgment must
file its response within ten days after the service of the
motion. See id. R. 7(c)(1). Rule 6 of the Utah Rules of Civil
Procedure provides for computation of time periods prescribed or
allowed under the rules. See id. R. 6. Pursuant to rule 6,
"[w]hen the period of time prescribed or allowed, without
reference to any additional time provided under subsection (e),
is less than 11 days, intermediate Saturdays, Sundays, and legal
holidays shall be excluded in the computation." Id. R. 6(a).
Rule 6(e) provides that three days shall be added to the time
period as computed in subsection (a) when service is done by
mail. See id. R. 6(e).

Express Recovery Services, Inc.'s motion for summary
judgment was served by mail on September 4, 2008. Ten days from

that date, excluding intermediate Saturdays and Sundays, was
September 18. Adding three days for mailing, the due date for
Hester's response to the motion would have been September 21.
However, September 21 was a Sunday, making Monday, September 22
the operative due date for the response. See id. R. 6(a)
(providing that when the last day of a period falls on a
Saturday, Sunday, or holiday, the period runs until the end of
the following business day). Hester's response in opposition to
the motion for summary judgment was filed on September 22 and was
therefore timely under the rules. Accordingly, the response
should have been considered.

The trial court granted summary judgment based on the
representations in Express Recovery Services, Inc.'s premature
notice to submit that there was no opposition to the motion.
There is no other rationale apparent in the record. Accordingly,
because Hester's response was timely, the trial court erred in
granting the motion for summary judgment.

We reverse and remand for consideration of the motion for
summary judgment on the merits.1

Pamela T. Greenwood,
Presiding Judge

Gregory K. Orme, Judge

James Z. Davis, Judge

1Hester's request for attorney fees on appeal is denied.

20090156-CA 2

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Utah Law