Turpin v. Kirkland

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Turpin v. Kirkland, Case No. 20000534-CA, Filed March 8, 2001 IN THE UTAH COURT OF APPEALS

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Kylean Turpin,
Plaintiff and Appellee,

v.

Rashauna Kirkland,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000534-CA

F I L E D
March 8, 2001 2001 UT App 78 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
Rashauna Kirkland, Pocatello, Idaho, Appellant Pro Se
Thomas A. Duffin and Daniel O. Duffin, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Davis.

PER CURIAM:

This case is before the court on a sua sponte motion for summary disposition.

Appellant Rashauna Kirkland claims that (1) appellee Kylean Turpin failed to provide discovery; (2) the trial court did not allow Kirkland to present evidence of damages; and (3) the findings of fact, conclusions of law, and judgment are contrary to evidence supporting Kirkland's version of the accident. The record does not support the claim that Turpin failed to provide discovery. In addition, the record does not reflect that Kirkland made any objection or a motion to compel in the trial court; therefore, the discovery issue is not preserved for appeal. Kirkland's claim that the trial court erred by refusing to allow her to present evidence of damage to her vehicle is without merit. She did not file a timely counterclaim, and her motion to file one shortly before trial was correctly denied as untimely. Evidence of Kirkland's damages was not relevant to any issue raised in Turpin's complaint and was properly excluded.

The remaining issues are an effort to reargue evidence considered and rejected by the trial court. An appellate court does not retry the case, but reviews the issues based on the trial court record. The trial court found that Kirkland failed to yield the right-of-way to Turpin, who did not enter the intersection on a red light and was clear to proceed through the intersection. The court further found Kirkland's negligence in making a sudden left-hand turn into the path of Turpin's vehicle was the sole and proximate cause of the collision. Based on the findings, the court concluded that "the testimony of [Kirkland] that she was stopped at the time of the collision is not borne out by the facts and circumstances . . . [Kirkland] moved into the path of [Turpin's] vehicle and failed to yield the right-of-way." The court further concluded that Kirkland's "failure to yield the right-of-way constituted negligence and that negligence was the sole and proximate cause of the accident and the damages suffered by [Turpin]."

Rule 11(e)(2) of the Utah Rules of Appellate Procedure requires an appellant urging "that a finding or conclusion is unsupported by or is contrary to the evidence" to "include in the record a transcript of all evidence relevant to such a finding or conclusion." Kirkland did not request a transcript. In the absence of a transcript, this court is unable to determine whether the trial court's findings were based upon sufficient evidence and will presume the correctness of the disposition in the trial court. See Horton v. Gem State Mut., 794 P.2d 847, 849 (Utah Ct. App. 1990). Accordingly, we presume that the findings and conclusion are supported by the evidence presented in the trial court.

We affirm the judgment.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

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Russell W. Bench, Judge
 
 
 
 

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James Z. Davis, Judge