Niculescu v. Chrysler Credit

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Adrian Niculescu,
Plaintiff and Appellant,

v.

Chrysler Credit Corporation,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010406-CA

F I L E D
May 9, 2002 2002 UT App 154 -----

Third District, Salt Lake Department
The Honorable Anne Stirba

Attorneys:
Mark A. Besendorfer, Midvale, for Appellant
Gary R. Howe and P. Bryan Fishburn, Salt Lake City, for Appellee

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Before Judges Jackson, Orme, and Thorne.

JACKSON, Presiding Judge:

Adrian Niculescu appeals the trial court's judgment for Chrysler Credit Corporation (Credit) and the court's discovery and post-trial orders. He challenges the court's refusal to impose sanctions for failure to respond to discovery requests and the court's factual finding that Credit did not act intentionally or with malice.(1) We affirm.

Niculescu argues that the "court clearly erred in denying the motion for sanctions." His argument identifies two requests for admissions, dated May 28, 1999,(2) and January 27, 2000 (the Second Request), and argues that they should have been deemed admitted.

Niculescu bases his argument on Credit's failure to answer the Second Request within thirty days. See Utah R. Civ. P. 36(a)
(1). Credit answered this request for admissions on February 28, 2000, thirty-two days after it was served. Because Niculescu mailed the Second Request for admissions, Rule 6(e) of the Utah Rules of Civil Procedure allowed an additional three days for Credit to respond. Credit filed its response to the Second Request within the thirty-three days to which it was entitled. Thus, Credit timely responded, and the trial court correctly refused to impose sanctions. Accordingly, we reject Niculescu's challenge to the trial court's ruling on the Second Request.

Niculescu also argues that he "established that the actions of [Credit] were intentional and malicious." This argument challenges a factual finding. See Promax Dev. Corp. v. Mattson, 943 P.2d 247, 260 (Utah Ct. App. 1997). "On appeal from a bench trial, 'findings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.'" Spears v. Reynolds, 2002 UT 24,¶2, 443 Utah Adv. Rep. 13 (quoting Utah R. Civ. P. 52(a)).

At trial, Credit presented evidence that its actions were entirely within its normal business operating procedures, that no one at Credit had any grudge or vendetta against Niculescu, and that Credit attempted to help Niculescu reestablish his credit. After considering the evidence presented by both parties, the trial court found, inter alia, the following: (1) Credit, "[i]n the normal course of its business," reported to credit agencies that the vehicle had been voluntarily surrendered; (2) "Credit's report of a voluntary surrender was not the product of malice or ill will"; (3) "There is no evidence that . . . Credit reported a voluntary surrender or repossession with an intent to harm" Niculescu; (4) Credit "did not report erroneous credit information with an intention to harm Mr. Niculescu or his credit"; and (5) "Credit followed normal and regular procedure in obtaining possession of the van following [Niculescu's] default, giving [Niculescu] notice of sale, and in notifying him of the deficiency that remained after the sale of the van." After reviewing the evidence in the record, we conclude that these findings are supported by the evidence and that the trial court's conclusions of law are correct.

We affirm.
 
 

______________________________
Norman H. Jackson,
Presiding Judge -----

WE CONCUR:
 
 
 

______________________________
Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. Niculescu also attempts to challenge the dismissal of his causes of action based on negligent damage to credit and the denial of his motion for relief from the judgment and objections to the order. These arguments are not adequately briefed and thus we will not address their merits. See Utah R. App. P. 24(a)(9) ("The argument shall contain the contentions and reasons of the appellant with respect to the issues presented, including the grounds for reviewing any issue not preserved in the trial court, with citations to authorities, statutes, and parts of the record relied on."); Water & Energy Sys. Tech., Inc. v. Keil, 2002 UT 32,¶20, 443 Utah Adv. Rep. 34 ("'[I]t is well established that a reviewing court will not address arguments that are not adequately briefed.'" (Quoting State v. Thomas, 961 P.2d 299, 304 (Utah 1998).)).

2. The May 28, 1999 request for admissions was never answered, and counsel conceded at oral argument that they were deemed admitted. However, Niculescu did not enter these admissions into evidence; thus, the trial court could not consider them. See Massey v. Haupt, 632 P.2d 824, 826 (Utah 1981) (stating that "although we have recognized that matters admitted pursuant to Rule 36 are deemed conclusively established, that fact does not relieve the party who wishes to rely on those admissions from the necessity of introducing them into evidence" (footnote omitted)).