Smith, et al v. Tyler et al

----ooOoo---- Penn Harris Smith, Mary Anne Smith, and E.P.S. Development,

Plaintiffs and Appellants,

v.

Richard H. Tyler, Ina W. Tyler, and Russell J. Limb,

Defendants and Appellees. )
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) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971176-CA

F I L E D
(January 14, 1999)

1999 UT App 008

----- Fifth District, St. George Department
The Honorable J. Philip Eves

Attorneys:
Gary W. Pendleton, St. George, for Appellants Smith
Ronald W. Truman and Nathan K. Fisher, St. George, for Appellees Tyler
Ronald G. Russell and Brett J. Swanson, Salt Lake City, for Appellee Limb

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Before Judges Wilkins, Billings, and Jackson.

JACKSON, Judge:
Appellants (the Smiths) challenge the trial court's grant of summary judgment to the Tylers and Limb, the trial court's dismissal of the Smiths' remaining claims for failure to prosecute, and the trial court's refusal to set aside the order of dismissal. We affirm.

The Smiths argue the trial court's grant of summary judgment was in error because the Smiths had an unforeclosed equity of redemption in the subject properties. "[A] challenge to a summary judgment presents for review only conclusions of law because, by definition, cases decided on summary judgment do not resolve factual disputes." Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1111 (Utah 1991). "In reviewing a grant of summary judgment, we accord no deference to the trial court's conclusions of law and review them for correctness." Drysdale v. Ford Motor Co., 947 P.2d 678, 680 (Utah 1997).

We affirm as to Limb because Limb was a bona fide purchaser of the subject properties, and thus took free of any claim by the Smiths. See Utah Code Ann. § 57-3-103 (Supp. 1998) (stating unrecorded conveyance is "void as against any subsequent purchaser of the same property" when subsequent purchaser "purchased the property in good faith and for valuable consideration" and his or her conveyance is recorded first); Blodgett v. Martsch, 590 P.2d 298, 303 (Utah 1978) (stating bona fide purchaser is "one who takes without actual or constructive knowledge of facts sufficient to put him on notice of the complainant's equity"). The record shows that Limb bought the property in good faith and for valuable consideration, that he had neither actual nor constructive knowledge of the Smiths' claimed interest, and that Limb's warranty deed was recorded after the bankruptcy trustee's notice of abandonment.

We also affirm as to the Tylers. First, the Smiths are judicially estopped from claiming an equity of redemption because they took the position, in a bankruptcy proceeding, that they had no interest in the subject properties (and that the properties rightfully belonged to the Tylers). See Stevensen v. Goodson, 924 P.2d 339, 352 (Utah 1996) (stating "judicial estoppel prevents a party from seeking judicial relief by uttering statements inconsistent with its own sworn statement in a prior judicial proceeding"). Second, the Smiths' claimed equitable mortgages were abrogated by agreements entered into between the Smiths and the Tylers, in which the Smiths agreed to relinquish any interest they had in the subject properties.

The Smiths also argue the trial court erred when it dismissed their second cause of action (that is, the breach of contract claim regarding the August 19, 1991 agreement). The Smiths' brief contains only bald assertions of fact and makes no mention of pertinent legal authority. "While failure to cite to pertinent authority may not always render an issue inadequately briefed, it does so when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court." State v. Thomas, 961 P.2d 299, 305 (Utah 1998). Because the Smiths failed to brief this issue adequately, we decline to address it. See id.

The Smiths also challenge the trial court's dismissal of their third cause of action (the restitution claim regarding unspecified water rights). "In reviewing a trial court's decision to dismiss for failure to prosecute, we accord the trial court broad discretion and do not disturb its decision absent an abuse of discretion and a likelihood that an injustice has occurred." Hartford Leasing Corp. v. State, 888 P.2d 694, 697 (Utah Ct. App. 1994). Our review of the record reveals no abuse of discretion, and we thus affirm the trial court.

Finally, the Smiths assert that the trial court erred when it denied their motion to set aside the court's order dismissing their third cause of action. This contention is made only in the heading of the argument, and the Smiths fail to analyze this issue. Because the issue was not adequately briefed on appeal, we decline to address it. See State v. Thomas, 961 P.2d 299, 305 (Utah 1998).
Affirmed.
 

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Norman H. Jackson, Judge

----- WE CONCUR:
 

_____________________________
Michael J. Wilkins, Presiding Judge
 

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Judith M. Billings, Judge