What happens when an appellee fails to address merits arguments on appeal? Musselman v. Keele Explained

In Musselman v. Keele, the Utah Court of Appeals addressed two important procedural issues: the standard for granting unopposed summary judgment motions and the consequences when an appellee fails to address substantive arguments on appeal.

Background and Facts

Attorney Kamron Keele represented a husband in a Utah divorce case while seeking admission to the Illinois Bar. David Musselman, a non-attorney mediator, assisted the unrepresented wife by advising her that Keele’s conduct was unethical and recommending she file a bar complaint. The resulting complaint delayed Keele’s Illinois bar admission by six months. Keele sued Musselman for tortious interference and fraudulent misrepresentation, claiming $450,000 in lost income from his inability to secure employment in Chicago.

After the parties stipulated that Musselman advised the wife to file the bar complaint, the district court granted Keele’s unopposed motion for partial summary judgment and later awarded $166,041.11 in damages after a bench trial.

Key Legal Issues

The court addressed whether it had jurisdiction to review the partial summary judgment order and whether the district court properly granted summary judgment despite Musselman’s failure to respond. On appeal, Keele argued the court lacked jurisdiction because Musselman failed to timely appeal the partial summary judgment order, while completely ignoring Musselman’s substantive challenges to the underlying claims.

Court’s Analysis and Holding

The court held it had jurisdiction because partial summary judgment orders that reserve issues for trial are not final appealable orders. Musselman properly appealed after final judgment was entered following the damages trial.

More significantly, the court applied a “plausible basis for reversal” standard after Keele failed to address Musselman’s merits arguments. The court found Musselman presented plausible challenges to each element of both claims, including whether he intended to interfere with Keele’s economic relations, whether his conduct constituted improper means, and whether Keele could establish causation or standing for fraudulent misrepresentation.

Practice Implications

This decision reinforces that courts cannot grant unopposed summary judgment motions without ensuring the movant has established entitlement to judgment as a matter of law. Even when facts are deemed admitted due to non-response, courts must still view reasonable inferences in the light most favorable to the non-moving party.

The case also demonstrates the significant risk appellees face when they fail to address substantive arguments. By focusing exclusively on jurisdictional challenges while ignoring merits arguments, appellees subject themselves to the lower “plausible basis for reversal” standard, making it much easier for appellants to prevail.