Brown v. Perkins and Miller

Brown v. Perkins and Miller

IN THE UTAH COURT OF APPEALS

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Stephan Brown and Cheryl Brown,

Plaintiffs and Appellees,

v.

Mark Perkins and Julia Sue White-Perkins,

Defendants,

and

Richard Miller,

Intervener and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030398-CA
 

F I L E D
(July 15, 2004)
 

2004 UT App 244

 

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Fifth District, St. George Department

The Honorable James L. Shumate

Attorneys: Richard Miller, Las Vegas, Nevada, Appellant Pro Se

Bruce C. Jenkins and Jeffery C. Peatross, St. George, for Appellees

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Before Judges Bench, Greenwood, and Jackson.

GREENWOOD, Judge:

Pro se appellant, Richard Miller, appeals the trial court's decision regarding ownership of certain pieces of personal property. We affirm.

Appellees, the Browns, first argue that this court should reject Miller's appeal because his briefs did not conform to Utah Rule of Appellate Procedure 24(a). While recognizing that Miller is a pro se appellant, and accorded some consideration for his unfamiliarity with the law, see Lundahl v. Quinn, 2003 UT 11,¶3, 67 P.3d 1000, it is nevertheless evident that Miller's briefs are not in compliance with rule 24(a). This deficiency could provide a basis for rejecting Miller's appeal; however, we have reviewed the record and found no merit to Miller's arguments.

Miller repeatedly argues that the trial court erred by ignoring a written contract between him and White-Perkins providing that all furniture in Miller's home belonged to Miller. The issue before the trial court was not whether White-Perkins had a right to take the property from Miller's home, but rather, whether certain pieces of property, found in the home the Browns leased to White-Perkins, were the same as those taken from Miller's home. It was uncontested that certain property was stolen from Miller, and if sufficiently identified would be returned to Miller. Therefore, the contract between Miller and White-Perkins was not material to the trial court's attempt to identify the stolen pieces.

Next, Miller contends that the trial court failed to address the ownership status of a set of bar stools included on Miller's list of stolen items. However, Miller acknowledges that the bar stools were not numbered along with the other items considered by the court. Miller also admits that, at the hearing, he was aware that he had the opportunity to raise the question of the bar stools, but chose not to do so because he wanted "to be respectful to the proceedings." By not raising the issue before the trial court, Miller waived his right to challenge on appeal the trial court's failure to address the bar stools. See Treff v. Hinckley, 2001 UT 50,¶15, 26 P.3d 212 (noting that arguments not raised in trial court were waived on appeal).

Finally, Miller argues that the trial court erred in awarding certain pieces of furniture to the Browns. When challenging a trial court's findings of fact, "'[a]n appellant must marshal the evidence in support of the findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be "against the clear weight of the evidence," thus making them "clearly erroneous."'" ELM, Inc. v. M.T. Enters., 968 P.2d 861, 865 (Utah Ct. App. 1998) (alteration in original) (citations omitted). Miller has failed to marshal the evidence supporting the trial court's findings on ownership of the property, and has likewise failed to show why these findings are clearly erroneous. If a party "'fails to marshal the evidence, the appellate court assumes that the record supports the findings of the trial court.'" Id. at 866 (citation omitted). Because Miller has not marshaled the evidence, and has not shown how the trial court's findings were not supported by the evidence, Miller's sufficiency of the evidence challenge fails.(1)

Thus, for the reasons stated above, we affirm the trial court's decision.

______________________________

Pamela T. Greenwood, Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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Norman H. Jackson, Judge

1. We note that at the April 4, 2003 hearing, the trial court explained the process it would follow at the April 8, 2003 hearing for determining ownership of the property. Miller attended the April 4 hearing, and agreed to the process as outlined by the trial court. He cannot now challenge the procedure used by the trial court for determining ownership.