opinions/mds/naisbett.htm 18:20:31 GMT --> Naisbitt v. Fink. Filed April 22, 1999

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IN THE UTAH COURT OF APPEALS

----ooOoo----

Pam Naisbitt,
Plaintiff and Appellee,

v.

Patrick Fink,
Defendant, Third-party
Plaintiff, and Appellant,

v.

Steven Wheeler,
Third-party Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981094-CA

F I L E D
April 22, 1999


 
1999 UT App 129
-----

Second District, Ogden Department
The Honorable Parley R. Baldwin

Attorneys:
Patrick Fink, Richland, Washington, Appellant Pro Se
Brad C. Smith, Ogden, for Appellee Naisbitt
Frank M. Wells, Ogden, for Appellee Wheeler

-----

Before Judges Greenwood, Bench, and Davis.

GREENWOOD, Associate Presiding Judge:

Patrick Fink challenges several of the trial court findings; namely, its findings that: (1) the premises he leased from Patricia Naisbitt were habitable and conformed with the Utah Fit Premises Act (UFPA); (2) Fink, not Naisbitt, breached the lease agreement; (3) Fink was not constructively evicted; (4) Naisbitt did not accept any surrender of the premises; and (5) no improper conduct occurred during the court proceedings. We affirm.

To challenge a finding of fact, "'[a]n appellant must marshal the evidence in support of the findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be "against the clear weight of the evidence," thus making them "clearly erroneous."'" Utah Med. Prods. v. Searcy, 958 P.2d 228, 232 (Utah 1998) (quoting Valcarce v. Fitzgerald, 331 Utah Adv. Rep. 68, 70 (Utah 1997) (citations omitted)). Once an appellant has properly marshaled the evidence, we review that evidence in a light most favorable to the trial court's findings. See id. We employ "this deferential standard . . . because of [a trial court's] advantaged position to evaluate the evidence and determine the facts." Id. (citing Willey v. Willey, 951 P.2d 226, 230 (Utah 1997); Utah R. Civ. P. 52(a)).

Although we may afford pro se appellants some leeway in presenting their cases, we conclude Fink has failed to marshal the evidence even under a less stringent standard. He merely provides a compilation of favorable evidence and testimony and ignores other evidence, including his own testimony, damaging to his cause.

Nevertheless, Fink maintains he is not required to marshal the evidence because the trial court's findings are too inadequate to be meaningfully challenged. He does not, however, explain how the trial court's findings are inadequate, nor does he explain why it would be futile to attempt to marshal the evidence. We therefore find no merit in his argument.

Fink also argues he satisfied the marshaling requirement by including excerpts from the record in his Reply Brief addendum. This was necessary, Fink insists, because the number of pages required to marshal the evidence would have exceeded page limitations in Rule 24(g) of the Rules of Appellate Procedure. The Utah Supreme Court, however, has deemed such attempts to circumvent the page limitation insufficient to marshal the evidence. See Debry v. Cascade Enters., 879 P.2d 1353, 1360 n.3 (Utah 1994). "Worse yet, the addendum does not include a properly focused marshaling of the evidence supporting particular findings under attack, but rather is a comprehensive catalogue of all testimony in the record." A.K. & R. Whipple Plumbing and Heating v. Aspen Constr., No. 971580, slip op. at 8 (Utah Ct. App. March 18, 1999) (concluding party did not adequately marshal evidence by attaching evidence in addendum).
 

Because Fink has failed to adequately marshal the evidence supporting the trial court's findings, we assume the findings are supported by the evidence. Consequently, Fink's claims under the UFPA, and his claims regarding Naisbitt's failure to remove personal property from the premises, her failure to repair defects, breach of the lease, constructive eviction, the implied warranty of habitability, and improper conduct during the court proceedings all fail.

Accordingly, we also assume the trial court did not clearly err in finding Fink made no agreement with Naisbitt on October 20, 1995, to accept surrender of the premises and cancel the lease agreement.(1) Fink's attempt to marshal the evidence supporting the trial court's finding on this point was also deficient. Again, Fink simply quoted testimony supporting his argument that there was an agreement and ignored other evidence, such as relevant portions of the rental agent's testimony(2) and the fact that Naisbitt filed her original complaint the same day Fink left the property. Other issues raised by Fink have no merit or are harmless; therefore, we need not address them. SeeState v. Carter, 776 P.2d 886, 889 (Utah 1989).

Regarding attorney fees, we remand the issue to the trial court for a recalculation of the appropriate fees and costs awarded to Naisbitt. We do so based on the concession by Naisbitt that her attorney mistakenly provided the incorrect billing rate for a portion of the time spent on her case. We also direct the trial court to award attorney fees and costs to Naisbitt incurred on appeal because she substantially prevailed on most of the issues raised by Fink. See R & R Energies v. Mother Earth Indus., Inc., 936 P.2d 1068, 1081 (Utah 1997) (concluding award to prevailing party of reasonable attorney fees on appeal proper when that party entitled to fees below); James Constructors, Inc. v. Salt Lake City Corp., 888 P.2d 665, 674 (Utah Ct. App. 1994) (holding prevailing party entitled to attorney fees on appeal in dispute over contractual attorney fees provision). Wheeler requests that we reverse the trial court's refusal to award him attorney fees below. Because he failed to file a cross-appeal on this issue, however, we affirm the trial court's decision. See Wiese v. Wiese, 699 P.2d 700, 703 (Utah 1985) (declining to address request for attorney fees for party who did not file cross-appeal).

Affirmed in part, remanded for recalculation of attorney fees awarded to Naisbitt and calculation and award of fees and costs incurred by Naisbitt on appeal.
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge

-----

WE CONCUR:
 

______________________________
Russell W. Bench, Judge
 

______________________________
James Z. Davis, Judge

1. Finding of fact number 9 states:

Defendant announced that he would be moving on 20 October 1995 to Third Party Defendant [Plaintiff's real estate manager] in late September 1995. Third Party Defendant indicated that he would inform Plaintiff. No agreement, deal, or accommodation was made or accepted by Third Party Defendant, who merely acknowledged Defendant's announcement and informed him that he would convey the message to the Plaintiff. Defendant's suggestion to the contrary is not believable, particularly in light of testimony from other witnesses and the Plaintiff's subsequent action in filing this matter on 20 October 1995.
(Emphasis added.)

2. Fink claims that Naisbitt's rental agent "accepted" Fink's surrender for Naisbitt. On recross, Naisbitt's attorney asked the rental agent about that conversation:

Q: Do you recall reaching an agreement with Mr. Fink that he could vacate the premises?

A: This was more of a unilateral agreement based on Mr. Fink's --

Q: When you say a unilateral agreement --

A: Mr. Fink says I am moving out and I'll have the keys in here on this date.

Q: And you acknowledge that he told you that?

A: Yes, I do.

. . .

Q: [by the trial court] Well I want to pursue that. The discussion you had then with Ms. Naisbitt following your discussion apparently on September 26th. Was there a follow-up discussion with, with Mr. Fink that the terms that he had, as you described them, unilaterally given to you were acceptable?

A: I don't recall.

This testimony does not establish that Naisbitt's rental agent "accepted" Fink's surrender on behalf of Naisbitt, nor does it establish that an agreement existed between Naisbitt and Fink. The testimony only demonstrates that the rental agent could not recall whether Naisbitt ever accepted Fink's terms.

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opinions/mds/naisbett.htm 18:20:31 GMT -->