Smith v. Osguthorpe

Smith v. Osguthorpe

 IN THE UTAH COURT OF APPEALS

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Enoch Richard Smith, as personal representative of the Estate of Enoch Smith Jr.,

Plaintiff and Appellee,

v.

D.A. Osguthorpe, an individual; and D.A. Osguthorpe Family Partnership,

Defendants and Appellants.

 MEMORANDUM DECISION
(Not For Official Publication)

 Case No. 20030795-CA

 F I L E D
(January 13, 2005)
 

2005 UT App 11

 

 

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Third District, Salt Lake Department

The Honorable Glenn K. Iwasaki

Attorneys: David W. Scofield, Salt Lake City, for Appellants

Hardin A. Whitney and Robert G. Wing, Salt Lake City, for Appellee

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Before Judges Billings, Jackson, and Thorne.

THORNE, Judge:

    Appellants D.A. Osguthorpe and the D.A. Osguthorpe Family Partnership (the Osguthorpes) appeal the trial court's order, issued pursuant to our remand instructions. See Smith v. Osguthorpe, 2002 UT App 361,¶¶45-46, 58 P.3d 854. We affirm.

    On appeal, the Osguthorpes argue that summary judgment was improper because an integration dispute created an issue of material fact; that the damage award--or more specifically the identity of the party responsible to pay the damages--is not supported by the evidence; and that the escrow account, funded by an amount garnished from the Osguthorpes, was voided as a result of our remand order. Although there may have been merit to some of the Osguthorpes' arguments--we voice no opinion on this subject--we decline to entertain them and instead affirm the trial court's order.

    In our previous decision in this matter, we addressed a number of arguments and generally affirmed the trial court's treatment of the case. However, after concluding that we could not determine "from the record whether the district court considered the [Osguthorpes'] offered parol evidence to determine as a threshold matter whether the lease and the amendments are an integrated agreement," we remanded the case, instructing the trial court to determine whether it had considered the proffered parol evidence in concluding that the lease and amendments constituted an integrated agreement. Id. at ¶45 ("We therefore remand for the court to consider the parol evidence or to make clear that it considered the parol evidence in ruling that the lease and the amendments are integrated." (emphasis added)); see also id. at ¶46 ("On remand the district court should make clear it considered the parol evidence in ruling the lease and the amendments are integrated or it should take evidence to determine if the lease and the amendments are integrated." (emphasis added)). Thus, but for the absence of a trial court finding that it had examined the proffered extrinsic evidence prior to determining that the lease was an integrated document, our opinion was a general affirmance.

    "The party in whose favor a judgment was rendered has a clear right to have the judgment enforced." D'Aston v. Aston, 844 P.2d 345, 349 (Utah Ct. App. 1992). "'When there has been an adjudication, it becomes res judicata as to those issues which were either tried and determined, or upon all issues which the party had a fair opportunity to present and have determined in the other proceeding.'" Id. at 350 (quoting Throckmorton v. Throckmorton, 767 P.2d 121, 123 (Utah Ct. App. 1988)). Moreover, "[a]s a general proposition, a judgment is final for purposes of res judicata until it is reversed on appeal, modified, or set aside in the court of rendition." Id. at 351. "Even when a judgment is ultimately reversed on appeal, . . . the reversal does not necessarily operate as an adjudication by the appellate court of any question other than those which were, in terms, discussed and decided by the appellate court." Id. "'[A]ny portion of a judgment not appealed from continues in effect, regardless of the reversal of other parts of the judgment.'" Id. at 352 (quoting Calistro v. Spokane Valley Irrigation Dist. Number 10, 472 P.2d 539, 540 (Wash. 1970)). Finally, these rules exist because "[t]he judicial system's interest in finality and in efficient administration dictates that, absent extraordinary circumstances, litigants should not be permitted to relitigate issues they had a fair opportunity to contest." Id. at 352 n.8 (quotations and citation omitted). Consequently, once we have decided the merits of a case on appeal, under the law of the case doctrine, we will not consider issues that arose prior to, and that could have been raised as issues in, the first appeal. See id.; cf. Hawley v. Green, 860 P.2d 1, 8 (Idaho Ct. App. 1993); Jundt v. Jurassic Res. Dev., 677 N.W.2d 209, 213 (N.D. 2004).

    The Osguthorpes' failure to raise their present issues during the previous appeal precludes them from arguing them now. See Jundt, 677 N.W.2d at 212-13 ("'[T]he law of the case encompasses not only those issues decided on the first appeal, but also those issues decided by the trial court prior to the first appeal which were not presented for review at the first appeal.'" (quoting Tom Beuchler Constr., Inc. v. City of Williston, 413 N.W.2d 336, 339 (N.D. 1987)). Moreover, in failing to attack the trial court's findings following our remand order, the Osguthorpes have waived the opportunity. See, e.g., Crookston v. Fire Ins. Exch., 817 P.2d 789, 799-800 (Utah 1991). Consequently, we affirm the trial court's determination that it had examined the extrinsic evidence,(1) as well as its order releasing the escrowed funds to Smith.

    Affirmed.

______________________________

William A. Thorne Jr., Judge

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WE CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Norman H. Jackson, Judge

1. Upon reviewing the record in this case, the trial court determined that "it is clear parole [sic] evidence was considered in the rulings rendered in this matter. Indeed, in making its various decisions, the Court considered the Affidavits of D.A. Osguthorpe, Stephen Osguthorpe, and Blaise Carrig. Moreover, the Court heard parole [sic] evidence during oral argument, prior to rendering its decision."