Bonneville Billing v. Heath

----ooOoo----

Bonneville Billing & Collection,
Plaintiff and Appellee,

v.

LaRae Heath,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990416-CA

F I L E D
November 9, 2000
  2000 UT App 313 -----

Eighth District, Vernal Department
The Honorable A. Lynn Payne

Attorneys:
LaRae Heath, Vernal, Appellant Pro Se
Ted K. Godfrey, Ogden, for Appellee

-----

Before Judges Greenwood, Davis, and Thorne.

PER CURIAM:

Appellant LaRae Heath appeals a judgment enforcing a Service Line Application and Agreement and assessing damages, legal costs and attorney fees.

Utah Code Ann. § 78-12-23(2) (1996) establishes a six year statute of limitations for an action brought "upon any contract, obligation, or liability founded upon an instrument in writing." Whether a statute of limitations has expired is a question of law which we review for correctness. See Kessimakis v. Kessimakis, 1999 UT App 130,¶8, 977 P.2d 1226. The trial court correctly ruled that the complaint filed on November 17, 1997 was timely.

Heath's claim that the contract was not properly accepted by Mountain Fuel and did not become binding is raised for the first time on appeal and will not be considered on that basis. See State v. Amoroso, 1999 UT App 60,¶7, 975 P.2d 505 ("As a general rule, appellate courts will not consider an issue raised for the first time on appeal.").

Heath's remaining claims are construed as arguments that the findings of fact are not supported by sufficient evidence. Findings of fact entered following a bench trial shall not be set aside unless they are "clearly erroneous." Utah R. Civ. P. 52(a). Findings are "clearly erroneous" only if "they are against the clear weight of evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made." Monroc, Inc. v. Sidwell, 770 P.2d 1022, 1023 (Utah Ct. App. 1989). To successfully challenge the findings, an appellant must "marshal all relevant evidence presented at trial which tends to support the findings and then demonstrate that the evidence is legally insufficient to support the findings even viewing it in the light most favorable to the court below." Reid v. Mutual of Omaha Ins., Inc., 776 P.2d 896, 899 (Utah 1989). Heath provided a transcript, but has not undertaken the marshaling requirement. The evidence at trial supports the findings that Heath signed the contract, Mountain Fuel installed the service line, and Heath did not receive gas service at the Milford property within two years, making her liable to pay for the installation costs as set forth in the contract. The evidence also supported the award of attorney fees and costs.

We affirm the judgment.
 
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

______________________________
William A. Thorne, Jr., Judge