Harrison v. Dreitzler

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Thomas D. Harrison,
Plaintiff and Appellant,

v.

Ron Dreitzler; and
Werner's Mercedes Repair, Inc.,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990659-CA

F I L E D
July 28, 2000

2000 UT App 228 -----

Third District, Salt Lake Department
The Honorable Tyrone Medley

Attorneys:
Robert B. Hansen, Salt Lake City, for Appellant
Phillip W. Dyer and Kevin C. Timken, Salt Lake City, for Appellees

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Before Judges Greenwood, Jackson, and Davis.

GREENWOOD, Presiding Judge:

The trial court determined that defendants were entitled to summary judgment because "[p]laintiff's claim alleging an oral agreement to indemnify is barred by the statute of frauds." The trial court concluded that section 25-5-4(1) and (2) of the Utah Code applied to the issue and required any contract for indemnification to be in writing.(1) Plaintiff argues the trial court erred in granting summary judgment, raising several different theories.

At the heart of plaintiff's allegations, however, is the assertion that he took out a flooring loan at his bank on behalf of defendants who had agreed to pay back the loan once the 1987 Mercedes was sold. In challenging the trial court's grant of summary judgment, plaintiff has not attacked the trial court's legal conclusion that the statute of frauds bars any such oral indemnification agreement. Because plaintiff has failed to articulate this issue on appeal and has presented no legal authority or argument to demonstrate how the trial court erred in its conclusions, we are unable to reach this argument. See Utah R. App. P. 24(a)(9); see generally Smith v. Smith, 1999 UT App 370,¶8, 995 P.2d 14 (holding appellant's brief must raise issue and present "reasoned analysis based upon relevant legal authority").

Plaintiff claims the trial court's grant of summary judgment deprived him of due process, arguing that defendants' failure to file an entire deposition with the trial court caused the trial court to consider only one page of deposition testimony out of context. Notwithstanding the dubious nature of this argument, plaintiff did not raise this claim at the trial court nor has he provided any citations to the record to show how the issue was preserved for appellate review. Therefore, we decline to address this argument since it was not preserved below. See State v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996), cert. denied, 931 P.2d 146 (Utah 1997).

Defendants requested attorney fees under Rule 24 of the Utah Rules of Appellate Procedure. We do not believe this appeal warrants the imposition of attorney fees against plaintiff, and therefore we decline to award them.

The basic issue in this case is whether an oral agreement existed between the parties requiring defendants to pay back the loan at plaintiff's bank. The trial court concluded that the statute of frauds required any such agreement to be in writing to be enforceable. On appeal, plaintiff has not presented any analysis nor even argued the trial court's conclusion was in error.

Accordingly, we affirm.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

I CONCUR:
 
 
 
 
 

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

I CONCUR IN THE RESULT:
 
 
 
 

______________________________
James Z. Davis, Judge

1. Section 25-5-4(1) requires a written agreement for "every agreement that by its terms is not to be performed within one year from the making of the agreement." Utah Code Ann. § 25-5-4(1) (1998). Similarly, section 25-5-4(2) requires a written agreement for "every promise to answer for the debt, default, or miscarriage of another." Id. § 25-5-4(2).