Worthen v. Walter

----ooOoo----

John E. Worthen,
Plaintiff and Appellant,

v.

Robert W. Walter; Berliner Zissler Walter & Gallegos;
Seaboard Surety Company;
American Securities Transfer & Trust, Inc.;
and John Does 1 through 3,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991061-CA

F I L E D
April 19, 2001 2001 UT App 134 -----

Third District, Salt Lake Department
The Honorable Homer F. Wilkinson

Attorneys:
Darwin Overson and Mark Flores, Salt Lake City, for Appellant
Mark A. Larsen, Salt Lake City, for Appellees

-----

Before Judges Greenwood, Bench, and Orme.

BENCH, Judge:

In its order dismissing Appellant's complaint, the trial court stated that the four-year statute of limitations governing oral contracts bars Appellant's claim. The general rule is that the statute of limitations begins to run "when the last event necessary to complete the cause of action occurs." Sevy v. Sec. Title Co., 902 P.2d 629, 634 (Utah 1995). However, the discovery rule is an exception to the general rule and permits a tolling of the limitation period "'"until the discovery of facts forming the basis for the cause of action."'" Id. (citations omitted).

If, as Appellees contend, the discovery rule does not apply in this case, then the statute of limitations started to run in 1992, and Appellant's 1999 claim is clearly barred. If, as Appellant argues, the discovery rule does apply, Appellant's claim is still barred. Appellant acknowledged both in his brief
and at oral argument that his agent first learned of the adverse claim to Certificate no. 115 late in the Fall of 1994. Therefore, Appellant's claim, filed on February 16, 1999, was not timely.

Appellant also argues that his claim is allowable under Utah Code Ann. § 78-12-23 (1997), because a written contract exists. "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346. The trial court's order does not rule on nor reference whether a written contract is at issue. Our review of the record shows that the only time Appellant brought this issue to the trial court's attention was in his Motion to Reconsider, which he withdrew before the trial court had the opportunity to rule on it. The "facts" in the pleadings Appellant references as evidence that a written contract exists are not sufficiently concrete nor self-evident as to give the trial court notice that a written agreement was at issue. Therefore, the six-year statute of limitations governing written contracts is not applicable in this case.

Our conclusion that the trial court properly determined that Appellant's claim was not timely filed is dispositive of this appeal. Therefore, we need not address Appellant's other arguments.

Appellees have requested attorney fees and costs on appeal pursuant to Rule 33 of the Utah Rules of Appellate Procedure. In light of our ruling on the statute of limitations, we award Appellees their attorney fees and costs incurred on appeal. The trial court's order is affirmed, and the case is remanded to the trial court for a determination of the amount of such fees and costs awardable.
 
 
 

______________________________
Russell W. Bench, Judge -----

I CONCUR:
 
 

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

ORME, Judge (concurring in part and dissenting in part):

I concur in the court's decision on the merits of the appeal, but dissent from the award of attorney fees. This appeal is without merit, for the reasons ably set forth in the lead decision, but I do not believe it is frivolous and thus would not award attorney fees to appellee. The complaint was filed pro se, and I believe appellate counsel was entitled to challenge the trial court's implicit ruling that the facts alleged in the complaint, under the liberal rules of construction that apply to notice pleading, were not consistent with an alternative claim pursuant to a written contract. Moreover, I believe any doubt in this regard should be resolved against appellees, since the genesis of this dispute is appellee Walter's baseless assertion of ownership to stock shares he had long since sold to appellant.
 
 

______________________________
Gregory K. Orme, Judge