Schwarz v. Salt Lake Tribune

Schwarz v. Salt Lake Tribune

IN THE UTAH COURT OF APPEALS
 

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Barbara Schwarz,

Plaintiff and Appellant,

v.

The Salt Lake Tribune, Media News Group,
Publisher William Dean Singleton, Chief Editor Nancy Conway,
Interim Editor Bill Long, Editorial Page Editor Vern Anderson,
Managing Editor Tim Fitzpatrick, Reporter Christopher Smith,
Photo Editor Lori Post, and Photographer Rick Egan,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20041124-CA
 

F I L E D
(April 21, 2005)
 

2005 UT App 189

 

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Third District, Salt Lake Department

The Honorable Glenn K. Iwasaki

Attorneys: Barbara Schwarz, Salt Lake City, Appellant Pro Se

Michael Patrick O'Brien, Salt Lake City, for Appellees

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Before Judges Billings, Bench, and Jackson.

PER CURIAM:

    Barbara Schwarz appeals from the Order and Judgment Regarding Attorney Fees, entered on December 20, 2004, pursuant to a temporary remand from this court, pursuant to our order of September 17, 2004.(1)

    The order of September 17, 2004, denied the following motions: (1) Motion of Protest by Appellant Barbara Schwarz to Violation of Court and Information Rules in Regard of Transcript Filed; (2) Motion to Protest Wrongfully Transcribed Transcript; (3) Motion to Ignore Transcript; and (4) Motion to Sanction Court Reporter and Defendants' Attorneys. The court denied the motions and granted a request for an award of damages under rule 33 of the Utah Rules of Appellate Procedure, on the basis "that Appellant['s] motions, addressed in this order, are frivolous, being without basis in law or fact." The order "awarded damages consisting of Appellees' costs in defending against the motions, which are the subject of this order, and attorney fees incurred in defending against these motions." Finally, the court "temporarily remanded [the case] to the trial court for purposes of determining the amount of costs and damages to be paid by Appellant."

    On November 30, 2004, this court denied Schwarz's objections to the September 17, 2004 order. On January 4, 2005, this court denied Schwarz's motion for relief from judgment challenging the same September 17, 2004 order.

    Schwarz moves to strike the motion for summary disposition filed by the Salt Lake Tribune, its owner, publisher, and named employees (collectively Salt Lake Tribune), claiming that the Salt Lake Tribune violated appellate rules by filing the motion before a record index has been prepared and her brief has been filed. This assertion is without merit. Rule 10 of the Utah Rules of Appellate Procedure allows a motion for summary disposition to be filed within ten days after a docketing statement is served. See Utah R. App. P. 10(a). The Salt Lake Tribune's motion was timely under rule 10, and the motion to strike is denied.

    Schwarz continues to challenge the merits of this court's order of September 17, 2004, which imposed sanctions for filing frivolous motions. To the extent that Schwarz continues to challenge the merits of this court's previous orders or contends that the district court erred in failing to revisit the same issues on remand, the appeal is without merit. The assertion that the district court judge should have been required to recuse in the proceedings on the temporary remand was not raised in a timely motion filed during the proceedings on remand, and is not considered for the first time on appeal. See Shire Dev. v. Frontier Invs., 799 P.2d 221, 224 (Utah Ct. App. 1990) ("As we have reiterated many times, we will not consider an issue raised on appeal for the first time.").

    The limited issue before the district court on remand was the factual determination of the amount of damages, including attorney fees reasonably incurred by the Salt Lake Tribune in responding to Schwarz's motions. There were no legal issues to be resolved by the district court; therefore, citation to case law was not necessary. The district court found that the 3.8 hours spent in responding to the motions was neither unreasonable nor excessive and that the hourly rate of $215 per hour was "reasonable and consistent with those rates charged by other lawyers in Salt Lake City, Utah with comparable experience." Schwarz argues that the fee amount was a "fabrication," which is a claim based upon her own assessment of the work provided by counsel for the Salt Lake Tribune. She provided no transcript of the hearing on remand.

    In challenging the factual findings of the district court, an appellant must demonstrate that those findings are clearly erroneous. See Utah R. Civ. P. 52(a) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous."). It is well settled that in order to challenge the factual findings of the trial court, an appellant "must marshal all relevant evidence . . . which tends to support the findings and demonstrate why the findings are clearly erroneous." West Valley v. Majestic Inv. Co., 818 P.2d 1311, 1313 (Utah Ct. App. 1991) (Emphasis in original). Schwarz has failed to demonstrate that the factual findings on the remand are clearly erroneous.

    We grant the motion for summary disposition and affirm the district court's Order and Judgment Regarding Attorney Fees.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Russell W. Bench,

Associate Presiding Judge

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Norman H. Jackson, Judge

1. This order and resulting remand took place in the underlying appeal in Case No. 20030981-CA.