Herndon v. Stewart

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Herndon v. Stewart, Case No. 20010469-CA, Filed October 18, 2001, 2001 UT App 303 IN THE UTAH COURT OF APPEALS


Estate of Frankie Herndon,
Plaintiff and Appellant,


Kyle and Cindy Stewart,
Defendants and Appellees.

(Not For Official Publication)

Case No. 20010469-CA

October 18, 2001 2001 UT App 303 -----

Sixth District, Panguitch Department
The Honorable K.L. McIff

Don Herndon, San Diego, California, Appellant Pro Se
Jared R. Casper, Provo, for Appellees -----

Before Judges Greenwood, Jackson, and Bench.


This matter is before the court on appellees' motion for summary disposition pursuant to Rule 10(a)(2) of the Utah Rules of Appellate Procedure. Appellees urge this court to affirm the order and judgment below on the basis that the grounds for review are so insubstantial as not to merit further consideration by the appellate court. See Utah R. App. P. 10(a)(2). We agree.

Appellant's main argument on appeal is that the trial judge "abused [his] power and violated Frankie Herndon's civil rights due to the color of her skin." Frankie Herndon was deceased by the time of trial and never appeared before the trial court. Furthermore, neither the trial court nor appellees ever had any contact whatsoever with Ms. Herndon, and therefore, were unaware of "the color of her skin." More importantly, this issue was not preserved for appeal. Rule 24 of the Utah Rules of Appellate Procedure requires appellant's brief to contain "citation to the record showing that the issue was preserved in the trial court." Utah R. App. P. 24(a)(5)(A). Appellant has failed to comply with this requirement in his attempt to raise issues not presented to the trial court below. Therefore, the argument was not preserved for appeal.

We grant appellees' motion for summary disposition and affirm the order and judgment entered by the trial court.

Pamela T. Greenwood,
Presiding Judge

Norman H. Jackson,
Associate Presiding Judge

Russell W. Bench, Judge