Professional Brokers v. Nordstrom

Professional Brokers v. Nordstrom

IN THE UTAH COURT OF APPEALS

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Professional Brokers, L.L.P., a Utah limited liability partnership,

Plaintiff and Appellant,

v.

Nordstrom, Inc., a Washington corporation; and Broderick Group, Inc., a Washington corporation,

Defendants and Appellees.

MEMORANDUM DECISION (Not For Official Publication)
 

Case No. 20020851-CA
 

F I L E D
(October 2, 2003)
 

2003 UT App 328

 

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Second District, Ogden Department
The Honorable Parley R. Baldwin

Attorneys: Geri C. Kelley, Lynn P. Heward, and Robert J. Debry, Salt Lake City, for Appellant

Michael R. Carlston, R. Brent Stephens, and Heather S. White, Salt Lake City, for Appellees

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Before Judges Jackson, Bench, and Greenwood.

JACKSON, Presiding Judge:

Appellant Professional Brokers, L.L.P. (Professional Brokers) appeals the district court's grant of summary judgment to Appellee Nordstrom, Inc. (Nordstrom). We affirm.

We review a grant of summary judgment for correctness as a matter of law, granting no deference to the district court. See Nyman v. Anchor Dev., L.L.C., 2003 UT 27,¶7, 73 P.3d 357. "A trial court may properly grant summary judgment when there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Id. (quotations and citations omitted).

Professional Brokers's complaint alleged it was entitled to a real estate commission because it "procured the Ogden City Redevelopment Agency to enter into a tax credit exchange for the subject property." The district court ruled that the tax credits, if any, did not make the transaction an exchange, and Professional Brokers has not appealed from that ruling.

Rather, Professional Brokers argues on appeal that the transfer of title to the City of Ogden (the City) constitutes an "exchange" because of the ongoing obligations regarding the property that the City agreed to assume upon the transfer of title.

Professional Brokers may not argue this theory for the first time on appeal: "In Utah, matters not raised in the pleadings nor put in issue at the trial may not be raised for the first time on appeal. . . . Theories or issues which are not apparent or reasonably discernible from the pleadings, affidavits and exhibits will not be considered." James v. Preston, 746 P.2d 799, 801 (Utah Ct. App. 1987).(1)

Accordingly, we conclude "that [Professional Brokers does not] have a valid claim for relief based on [breach of contract]," Skanchy v. Calcados Ortope SA, 952 P.2d 1071, 1077 (Utah 1998), because the district court properly denied its original claim and its new claim on appeal was not preserved. Thus, Nordstrom "is entitled to a judgment as a matter of law." Nyman, 2003 UT 27 at ¶7 (quotations and citations omitted).

Affirmed.

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Norman H. Jackson,

Presiding Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Pamela T. Greenwood, Judge

1. Professional Brokers argues the new theory of exchange was in fact "reasonably discernible from the" record, James v. Preston, 746 P.2d 799, 801 (Utah Ct. App. 1987), because counsel for Professional Brokers read portions of the Nordstrom-Ogden City Assignment and Assumption Agreement, which outlined the ongoing obligations the City would assume. Merely reading the agreement, however, without offering legal analysis and argument, is insufficient to show that the new theory was properly presented for the district court's consideration, and there is no ruling to review.