Hawkeye Security Ins. v. Levin

Hawkeye Security Insurance,
Plaintiff and Appellee,

v.

Ralph Levin,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990135-CA

F I L E D
June 24, 1999
  1999 UT App 212 -----

Fourth District, Provo Department
The Honorable Gary D. Stott

Attorneys:
Ralph Levin, Pleasant Grove, Appellant Pro se
Steven B. Smith, Salt Lake City, for Appellee

-----

Before Judges Wilkins, Davis, and Orme.

PER CURIAM:

Appellant Ralph Levin appeals from a judgment awarding damages incurred by appellee Hawkeye Security Insurance in its defense of prior litigation.

On appeal, Levin challenges the sufficiency of the evidence to support the trial court's findings, claims the trial court erred in not allowing a letter written by him into evidence, and claims he should not be required to pay appellee's attorney fees based upon his failure to recall his conversation with Curry. Levin declined to order a trial transcript.

Rule 11(e)(2) of the Utah Rules of Appellate Procedure requires an appellant urging "that a finding or conclusion is unsupported by or is contrary to the evidence" to "include in the record a transcript of all evidence relevant to such a finding or conclusion." In the absence of a transcript, this court is unable to determine whether the trial court's findings were based upon sufficient evidence and will presume the correctness of the disposition made in the trial court. SeeHorton v. Gem State Mutual, 794 P.2d 847, 849 (Utah Ct. App. 1990). As a result of the failure to provide a transcript, Levin has failed to sustain his burden to marshal the evidence supporting the challenged findings and demonstrate that they are against the clear weight of the evidence and, thus, "clearly erroneous." Id. Levin's general challenge to the findings and judgment is without merit.

Levin contends mere failure to recall the conversation with Curry is an insufficient basis on which to find him liable for costs and attorney fees incurred by Hawkeye in the earlier litigation. However, the trial court's findings express the trial court's disbelief in "the testimony that the vehicle remained undiscovered, unmolested, and in an unknown location for almost two years following its disappearance, and was not discovered until just after the conclusion of the trial at which Levin claimed the right to compensation." The trial court disbelieved Levin's version of the facts and found the failure to advise anyone of the conversation with Curry to be intentional, reckless and in bad faith. "[I]t is the trial court's role to assess witness credibility, given its advantanged position to observe testimony first hand, and normally, we will not second guess the trial court's findings in this regard." Promax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. App. 1997).

Levin also argues the trial court erroneously refused to admit a lengthy letter attached to his response. Levin testified at the trial. The letter is unsworn hearsay evidence not admissible under any exception to the hearsay rule. Levin has identified no basis on which the trial court could have admitted the letter. Accordingly, we conclude the trial court did not err in excluding it.

The judgment is affirmed.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Gregory K. Orme, Judge