Tebbs Family Partnership v. Rex

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Tebbs Family Partnership,
Plaintiff and Appellee,

v.

Douglas L. Rex,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990681-CA

F I L E D
March 15, 2001 2001 UT App 88 -----

Third District, Salt Lake Department
The Honorable Sandra Peuler

Attorneys:
Michael F. Jones, Salt Lake City, for Appellant
Douglas T. Hall, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Orme.

BILLINGS, Judge:

Defendant/Appellant Douglas L. Rex (Rex) first argues that the trial court erred in granting summary judgment in favor of Plaintiff/Appellee Tebbs Family Partnership (TFP). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c).

The evidence before the trial court on TFP's motion for summary judgment included the two promissory notes, which Rex, in his answer to the complaint, admitted to executing pursuant to the terms stated in the notes; the affidavit of a general partner of TFP, John Tebbs (Tebbs), which set forth personal knowledge of the notes and Rex's default thereunder; and ledger sheets which detail the transaction history of the two notes, including how the amounts which form the basis of TFP's action were calculated.

Rex did not come forward with any facts to refute the notes and affidavit proffered by TFP, even though he was given, pursuant to his request, an additional sixty days to conduct discovery. Rex's sole argument to defeat summary judgment was that there were disputed issues of material fact with respect to how the balances owed were calculated.(1) However, when a proponent comes forward with facts in support of a motion for summary judgment, the defendant has the burden of setting forth specific facts showing that there is a genuine issue of material fact. See Thorncock v. Cook, 604 P.2d 934, 936 (Utah 1979). Rex's general objections to how the balances were calculated does not meet this burden.

Rex further argues that there were disputed issues of material fact raised in his subsequent motion for a new trial. "Issues not raised in the trial court in timely fashion are deemed waived, precluding [the appellate court] from considering their merits on appeal." Hart, 945 P.2d at 130 (citation and internal quotation omitted) (alteration in original). These "new facts" were not raised before the trial court during the initial summary judgment proceeding and therefore are deemed waived for purposes of determining whether the trial court was correct in granting summary judgment. In sum, we conclude there was no genuine issue of material fact and therefore, the trial court was correct in granting summary judgment for TFP.

Rex next argues that the trial court erred in not granting his motion for a new trial under Rule 59(a)(1) and (6) of the Utah Rules of Civil Procedure. We review a ruling on a motion for a new trial for abuse of discretion. See Child v. Gonda, 972 P.2d 425, 429 (Utah 1998) (citations omitted).

Under Rule 59(a)(1), a new trial may be granted if there is an irregularity in the proceedings which prevents a party from receiving a fair trial. See Utah R. Civ. P. 59(a)(1). There is little case law in Utah on what constitutes an "irregularity" sufficient to warrant a new trial. Other jurisdictions have defined "irregularity" in connection with a motion for a new trial as "the want of adherence to some prescribed rule or mode of proceeding." Babb v. City of Wichita, 241 P.2d 755, 759 (Kan. 1952); Bohn v. Eichhorst, 181 N.W.2d 771, 776 (N.D. 1970) (citation omitted). In Bohn, the North Dakota Supreme Court emphasized that an irregularity sufficient to warrant a new trial is one due to the failure of the court itself, rather than a failure on the part of one of the parties to the action. See id. (stating "defendant's predicament [is] caused by what [] defendant failed to do and not by what the court failed to do"). Rex asserts that TFP concealed material facts from the trial court and such concealment constitutes an irregularity in the proceedings sufficient to warrant the granting of a new trial. Rex asserts that these concealed facts give rise to a dispute as to whether payments were ever due from Rex under the notes.

The trial court held that Rex's claims were not irregularities contemplated by Rule 59(a)(1), but rather factual disputes that Rex had adequate opportunity to present to the trial court when TFP filed its claims against him. We agree. Rex admitted to the existence of the promissory notes and his obligations thereunder in his answer to the complaint. We cannot say that his subsequent denial of the same is such an irregularity that it prevented him from receiving a fair trial.(2)

Rex further claims that TFP's counsel's misstatement to the court before the granting of summary judgment that Rex had conducted no discovery was an irregularity requiring reversal of the summary judgment. In his affidavit, in response to TFP's motion for summary judgment, Mr. Mitchell simultaneously served interrogatories and requests for production of documents to determine the amount owing on the notes. The ledger sheets TFP submitted with its reply memorandum in support of its motion for summary judgment were in answer to Rex's outstanding discovery request. Thus, while TFP's statement that Rex had conducted no discovery in its second notice to submit for decision is a misstatement, we see no prejudice and cannot say that it is the type of irregularity that prevented Rex from receiving a fair trial. Thus, we conclude the trial court did not abuse its discretion in denying Rex's motion for a new trial under Rule 59(a)(1).

Under Rule 59(a)(6), a new trial may be granted if the evidence is insufficient to justify the verdict or other decision. See Utah R. Civ. P. 59(a)(6). Rex argues that the evidence introduced by TFP was insufficient to support summary judgment. Rex asserts that TFP did not make an accounting as to how the balances on the two notes were calculated and that the Tebbs affidavit was inadmissible evidence.

"Where the trial court has denied a motion for a new trial [under Utah R. Civ. P. 59(a)(6)], its decision will be sustained on appeal if there was an evidentiary basis for the [trial court's] decision." Child, 972 P.2d at 433 (citation and quotation omitted). There is substantial evidence in the record to support the trial court's decision. As previously stated, before the trial court on summary judgment were the two promissory notes, the Tebbs affidavit, and the ledger sheets. This evidence is not so "completely lacking or [] so slight and unconvincing as to make the [decision] plainly unreasonable and unjust." Id. (citations and quotation omitted). Thus, we conclude the trial court did not err in denying Rex's motion for a new trial under Rule 59(a)(6).

Rex next argues that the trial court erred in denying his motion for relief from summary judgment under Rule 60(b)(1) and (6) of the Utah Rules of Civil Procedure. We review a trial court's denial of a motion for relief from judgment for abuse of discretion. See Larsen v. Collina, 684 P.2d 52, 54 (Utah 1984). Under Rule 60(b)(1), the trial court may relieve a party from a final judgment for excusable neglect. See Utah R. Civ. P. 60(b)(1).

Rex argues that his prior counsel's withdrawal in the midst of ongoing discovery and a pending motion for summary judgment constitutes excusable neglect because the trial court did not approve of the motion to withdraw, thereby violating Rule 4-506(1) of the Utah Code of Judicial Administration. Mr. Mitchell filed notice of withdrawal on September 28, 1998. TFP submitted a notice to appoint new counsel or appear pro se to Rex on October 6, 1998. The trial court granted summary judgment on January 4, 1999, nearly four months after Mr. Mitchell's withdrawal. Thus, while there was a technical violation of Rule 4-506(1), we cannot say that, in this instance, the same amounted to either excusable neglect under Rule 60(b)(1) or an irregularity in the proceedings under Rule 59(a)(1).

Rex asserts that his prior counsel's failure to file a counter-affidavit stating that the money due under the notes was not in fact due, Rex's failure to retain replacement counsel after Mr. Mitchell withdrew, but before entry of summary judgment against him, and Mitchell's alleged failure to adequately explain the consequences of the motion for summary judgment before withdrawing, constitutes excusable neglect. However, Rex cites no case law in support of his argument.

While these incidents might have constituted neglect on the part of prior counsel, Rex fails to adequately explain how they give rise to "excusable neglect" under Rule 60(b)(1). See, e.g., Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 913 (7th Cir. 1989) (stating, "attorney errors such as preoccupation with other matters, irresponsibility of counsel, tactical decisions and misreading of procedural rules" do not rise to level of "excusable neglect"). This is particularly true in light of the fact that a review of the record reveals that Rex received notice to appoint counsel after Mr. Mitchell withdrew.(3)

Rex finally argues that the trial court abused its discretion in denying his motion to file a counterclaim and third-party complaint under Rules 13(e) and 14(a) of the Utah Rules of Civil Procedure. Rule 13(e) provides that "[w]hen a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment." Utah R. Civ. P. 13(e). The trial court denied Rex's motion under Rule 13(e), finding that "[Rex's] actual claims are in the nature of either compulsory or permissive counterclaim issues that are clearly time barred." Rex points to nothing in the record, cites no legal authority, and advances no clear argument that "justice requires" leave to set up the counterclaim by amendment under Rule 13(e).(4)

Accordingly, we affirm.
 
 

______________________________
Judith M. Billings, Judge -----

I CONCUR:
 
 

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

I CONCUR ONLY IN THE RESULT:
 

______________________________
Gregory K. Orme, Judge

1. Additionally, and for the first time on appeal, Rex challenges the sufficiency of the Tebbs' affidavit. "To preserve a substantive issue for appeal, a party must first raise the issue before the trial court." Hart v. Salt Lake County Comm'n, 945 P.2d 125, 129 (Utah Ct. App. 1997). Rex did not do so, therefore we decline to address the merits of this argument on appeal.

2. Rex further argues that a new trial is warranted because TFP committed fraud upon the trial court, and as such, there is an irregularity in the proceedings which prevented Rex from receiving a fair trial. However, Rex advances this issue for the first time on appeal, and we will therefore not address the merits of the same. See Hart, 945 P.2d at 129.

3. Rex also claims there are two other "cases of excusable neglect not raised below." Again, because these claims are raised for the first time on appeal, we will not reach the merits of the same. See Hart, 945 P.2d at 129. Rex further claims that he should be relieved from the operation of the summary judgment under Rule 60(b)(6). We conclude his claims under Rule 60(b)(6) are without merit and therefore do not address them on appeal. See State v. Carter, 776 P.2d 886, 888 (Utah 1989).

4. Rex further argues that the trial court abused its discretion in denying him leave to file a third-party complaint under Rule 14(a), simply because he was "plainly entitled to leave" under the same. "Briefs must contain reasoned analysis based upon relevant legal authority." Smith v. Smith, 1999 UT App 370,¶8, 995 P.2d 14 (citing Utah R. App. P. 24(a)(9)), cert. denied, 4 P.3d 1289 (Utah 2000). "An issue is inadequately briefed when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court." Id. (citation and quotation omitted). Rex's argument under Rule 14(a) contains only a citation to the rule and the bald statement set forth above. We therefore will not address the merits of Rex's Rule 14(a) argument.