Nielsen v. Petersen

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Nielsen v. Petersen, Case No. 20000259-CA, Filed July 6, 2001 IN THE UTAH COURT OF APPEALS


F. Stanley Nielsen,
Plaintiff and Appellant,


Reed L. Petersen Investment Company, a Utah partnership;
and Curtis Petersen, Ethel Petersen, Robert Petersen, Dixie Jackson,
Mayme Petersen, Betty Russell, Louise Harbinson,
Lavern H. Petersen, and Percy E. Petersen, general partners,
Defendants and Appellee.

(Not For Official Publication)

Case No. 20000259-CA

July 6, 2001 2001 UT App 214 -----

Second District, Ogden Department
The Honorable Parley R. Baldwin

Daniel L. Hawkley, Boise, Idaho, and Robert L. Froerer, Ogden, for Appellant
David J. Knowlton, Ogden, for Appellee


Before Judges Greenwood, Jackson, and Orme.

ORME, Judge:

The first three issues identified by appellant are premised on the trial court's alleged violations of Canon 3(B)(8) of the Code of Judicial Conduct. However, appellant fails in his brief to show that any argument based on Canon 3(B)(8) "was preserved [for appeal] in the trial court" or to provide us with "a statement of grounds for seeking review of an issue not preserved in the trial court." Utah R. App. P. 24(a)(5). Our own review of the record likewise shows no preservation of Canon 3(B)(8) arguments for our review, and we are thus precluded from addressing those issues. See Hart v. Salt Lake County Comm'n, 945 P.2d 125, 129 (Utah Ct. App.) ("To preserve a substantive issue for appeal, a party must first raise the issue before the trial court."), cert. denied, 953 P.2d 449 (Utah 1997).

While appellant's brief is not a model of clarity, his other issues seem to be largely procedural in nature and focus on the text of Rules 12 and 56, Utah Rules of Civil Procedure, and the interplay between Rule 12(b) and Rule 56(e). However, appellant comes to his pristine view of the rules rather late. As the trial court aptly observed, both sides "filed many other motions and pleadings with the court, many of which contravene established rules of procedure." Significantly, appellant readily acknowledged below that "[d]efendant advanced this litigation to the summary judgment stage when he brought his Rule 12(b)(6) motion to dismiss" given that defendant presented "matters outside the pleading[s]." Against this background, we are not willing to disturb the judgment based solely on procedural flaws. See Utah R. Civ. P. 61.

Turning to the merits of appellant's final contentions, because he claimed under an option agreement to which appellee was not a party, the onus was on appellant to come forward with something that would at least create a factual question about whether appellee was nevertheless somehow bound by the option agreement. All that appellant identified in his affidavit was a letter sent by appellant to appellee. Appellant wholly fails in his brief to demonstrate legal error on the trial court's part in concluding such a letter is insufficient, as a matter of law, to raise a material issue about whether appellee was bound by the option.

The malicious prosecution claim, also dismissed by the trial court, received only passing mention in appellant's brief. The trial court's ruling on that issue appears regular on its face, and appellant has wholly failed to persuade us there is prejudicial legal error in connection with that part of the court's judgment. See, e.g., Burns v. Summerhays, 927 P.2d 197, 198-200 (Utah Ct. App. 1996).


Gregory K. Orme, Judge -----


Pamela T. Greenwood,
Presiding Judge

Norman H. Jackson,
Associate Presiding Judge

1. While the appeal is without merit, we are unable to conclude it was frivolous or otherwise sanctionable under Utah R. App. P. 33, given the procedural peculiarities which typified the proceedings below. Accordingly, we decline to award damages under Rule 33.