Berg v. Berg

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

David Berg, ) MEMORANDUM DECISION
)
Plaintiff and Appellant, ) Case No. 20110231‐CA
)
v. ) FILED
) (May 17, 2012)
Amie Berg, )
) 2012 UT App 142
Defendant and Appellee. )

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Third District, Salt Lake Department, 090903175
The Honorable John Paul Kennedy

Attorneys: Kelly Ann Booth, Salt Lake City, for Appellant
Amie Berg, Sandy, Appellee Pro Se

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Before Judges Voros, Orme, and Christiansen.

VOROS, Associate Presiding Judge:

¶1 Plaintiff David Berg appeals the trial court’s entry of judgment ordering him to
pay Defendant Amie Berg $7,127. We affirm.1

¶2 David evicted his son and daughter‐in‐law, Roger and Amie Berg, from a house
he owned, and filed an unlawful detainer action against the two.2 He sought damages
allegedly caused by the couple’s use of the house and furnishings. The trial court ruled

1
We have determined that “the decisional process would not be significantly
aided by oral argument.” Utah R. App. P. 29(a)(3).
2
The court granted summary judgment against Roger, and he is not a party to
this appeal.
that Amie had unlawfully detained the premises and taken some furnishings, for which
she was liable to David. However, the court also awarded Amie damages against
David in the amount of her marital interest in certain furnishings and an Infiniti SUV,
which the court ruled David had unlawfully taken from her and sold. In reaching this
ruling, the court treated the issue of Amie’s ownership in the personal property as if it
had been raised in the pleadings and treated the defenses presented in Amie’s answer
as a counterclaim. The final order of the court offset Amie’s interest in the SUV and
certain furnishings against the damages she owed David, resulting in a net award of
$7,127 in favor of Amie.

¶3 David advances three contentions on appeal. First, he contends that the trial
court erred by amending the pleadings to conform to the evidence presented at trial
relating to personal property. Next, David contends that the trial court abused its
discretion by amending, sua sponte, Amie’s answer after trial to include a counterclaim.
Finally, David contends that res judicata barred Amie from litigating the matter of her
interest in the property.

¶4 Rule 15(b) of the Utah Rules of Civil Procedure provides, “When issues not
raised by the pleading are tried by express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the pleadings.” Utah R. Civ. P.
15(b). If an issue is fully tried and the opposing party had “a fair opportunity to
defend,” a court may decide the issue and “deem the pleadings amended even if the
issue was not originally pleaded.” Guss v. Cheryl, Inc., 2010 UT App 249, ¶ 10, 240 P.3d
1142 (citation and internal quotation marks omitted). A trial court’s application of rule
15(b) is a legal question that we review for correctness. Keller v. Southwood N. Med.
Pavilion, Inc., 959 P.2d 102, 105 (Utah 1998). “However, because the trial court’s
determination of whether the issues were tried with all parties’ implied consent is
highly fact intensive, we grant the trial court a fairly broad measure of discretion in
making that determination under a given set of facts.” Id. (internal quotation marks
omitted).

¶5 David argues that he did not impliedly consent to try the issue of Amie’s
ownership of the personal property because he objected to the evidence introduced at
trial. “Implied consent to try an issue ‘may be found where one party raises an issue
material to the other party’s case or where evidence is introduced without objection,
[and] where it appear[s] that the parties understood the evidence [is] to be aimed at the
unpleaded issue.’” Hill v. Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929 (second and
third alterations in original) (quoting Colman v. Colman, 743 P.2d 782, 785 (Utah Ct. App.
1987)). Application of rule 15(b) is not appropriate when an issue is “tried

20110231‐CA 2
inadvertently.” See Lee v. Sanders, 2002 UT App 281, ¶ 7, 55 P.3d 1127 (citation and
internal quotation marks omitted).

¶6 David has not demonstrated that the issue was tried without his express or
implied consent. Although neither party’s pleading expressly addressed any personal
property, much of the trial focused on the furnishings and SUV. David presented
extensive evidence in his case‐in‐chief relating to his ownership and Amie’s use of the
furnishings. He challenged Amie’s evidence of ownership of the furnishings, but never
on the ground that the issue was outside the pleadings. The trial court also heard
extensive testimony concerning the SUV. David argues on appeal that he specifically
objected to this evidence as irrelevant to his unlawful detainer action. However,
David’s objections related to a motorcycle and a boat, not the SUV. Indeed, David
himself testified and introduced evidence regarding the SUV. “Because the issue was
tried, it must be treated as if it were properly raised in the pleadings.” Armed Forces Ins.
Exch. v. Harrison, 2003 UT 14, ¶ 24, 70 P.3d 35.3

¶7 Next, David contends that even if the pleadings are conformed to the evidence at
trial, the court abused its discretion in amending Amie’s answer to include a
counterclaim. A trial court’s “decision to redesignate an affirmative defense as a
counterclaim is discretionary,” and “we review the court’s ruling only for an abuse of
that discretion.” Berkshires, LLC v. Sykes, 2005 UT App 536, ¶ 17, 127 P.3d 1243. “An
appellate court will not find abuse of discretion absent an erroneous conclusion of law
or where there is no evidentiary basis for the trial court’s ruling.” Askew v. Hardman,
918 P.2d 469, 472 (Utah 1996).

¶8 In her answer, filed pro se,4 Amie claimed damages from David for conspiring
with his son Roger to interfere with her possession and enjoyment of the premises:

3
David also argues that rule 15(b) requires a motion to invoke the provision.
David cites no case law supporting this argument, and it is inconsistent with the plain
language of the rule and our precedent. See Utah R. Civ. P. 15(b); Fisher v. Davidhizar,
2011 UT App 270, ¶ 9, 263 P.3d 440 (“‘The parties’ failure to move to amend the
pleadings to conform to the evidence does not affect the fact that those issues were in
fact tried by the consent of the parties and were therefore properly before the court.’”
(quoting Clark v. Second Circuit Court, 741 P.2d 956, 957 (Utah 1987)).
4
Amie was unrepresented when she filed her answer and at trial.

20110231‐CA 3
17. The Defendants have an equitable interest in the subject
property.

18. Plaintiff is tort[i]ously conspiring with his son Defendant
Roger Berg to interfere with Defendant’s right to use,
possess and enjoy the premises. No de facto effort has been
made to evict his son from the property. For this, Defendant
is entitled to money damages from Plaintiff.[5]

Rule 8(c) of the Utah Rules of Civil Procedure provides that “[i]f a party mistakenly
designates . . . a counterclaim as a defense, the court, on terms, may treat the pleadings
as if the . . . counterclaim had been properly designated.” Utah R. Civ. P. 8(c). We have
previously identified several factors that may be useful in reviewing a trial court’s
decision to redesignate a defense as a counterclaim. These include whether
redesignation “would foist an unanticipated issue on the other party,” whether the
other party would have “sufficient notice and opportunity to address the issue,” and
whether “the defense as argued or articulated in the pleadings sufficiently states a claim
for relief and a demand for judgment as required by rule 8(a).” Berkshires, 2005 UT App
536, ¶ 18.

¶9 Treating Amie’s pleading as a counterclaim did not foist an unanticipated issue
on David. Her pleading was sufficient to give notice that she was making a claim
against him; indeed, it included an express demand for money damages. It also gave
notice of the nature and basis of the claim; in it, she claimed an equitable interest in “the
subject property.” As demonstrated by David’s motion for summary judgment and the
evidence presented in his case‐in‐chief, he understood “the subject property” to include
the furnishings on the premises. Nor is it unreasonable to conclude that David could
have anticipated a damage award respecting the SUV, given Amie’s testimony at trial
that David had used proceeds from the sale of the SUV to pay for the furnishings at
issue. Moreover, the trial proceedings demonstrate that David took the opportunity to

5
Although David quoted this portion of Amie’s answer, he did not include
Amie’s answer as an addendum to his brief. Nor did he include a copy of the order
from which he appeals. “The Utah Rules of Appellate Procedure specifically require
appellants to include, in an addendum to their briefs, ‘those portions of the record on
appeal that are of central importance to the determination of the appeal.’” Brigham
Young Univ. v. Tremco Consultants, Inc., 2005 UT 19, ¶ 40, 110 P.3d 678 (quoting Utah R.
App. P. 24(a)(11)(C)).

20110231‐CA 4
explore Amie’s claim in detail, even introducing exhibits relating to his possession of
the SUV and his payment for the repair of damages to the SUV allegedly caused by
Amie.

¶10 When read in light of the evidence presented at trial, Amie’s claim was also
adequately, if minimally, pleaded. Rule 8(a) of the Utah Rules of Civil Procedure
requires that a claim for relief contain “a short and plain statement of the claim showing
that the pleader is entitled to relief” and “a demand for judgment for the relief to which
he deems himself entitled.” Utah R. Civ. P. 8(a). “Utah’s notice pleading requirements
are liberal and all that is required is that the pleadings be sufficient to give fair notice of
the nature and basis of the claim asserted and a general indication of the type of
litigation involved.” Gudmundson v. Del Ozone, 2010 UT 33, ¶ 40, 232 P.3d 1059. Here,
the pleading did give a general indication of the type of litigation involved. Although
imprecise, the pleading, read in conjunction with the trial testimony, indicated a claim
for conversion. See generally Jones v. Salt Lake City Corp., 2003 UT App 355, ¶ 9, 78 P.3d
988 (“‘A conversion is an act of wilful interference with a chattel, done without lawful
justification by which the person entitled thereto is deprived of its use and possession.’”
(quoting Fibro Trust, Inc. v. Brahman Fin., Inc., 1999 UT 13, ¶ 20, 974 P.2d 288)). And, as
noted, the pleading demanded money damages.

¶11 In view of the foregoing, we cannot conclude that the trial court abused its
discretion in treating Amie’s affirmative defense as a counterclaim. See Berkshires, 2005
UT App 536, ¶ 19.6

¶12 Finally, David contends that res judicata barred Amie from litigating the matter
of her interest in the property. This issue was not properly preserved for appeal. “In
order to preserve an issue for appeal, the issue must be presented to the trial court in
such a way that the trial court has an opportunity to rule on that issue.” 438 Main St. v.
Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (brackets, citation, and internal quotation

6
David also argues that the court erred by entering judgment on a theory or claim
not raised in Amie’s pleadings. Although David identifies this as a separate issue on
appeal, he does not cite any case law supporting this argument, he devotes only one
paragraph to this issue, and he does not discuss how this issue is distinct from his other
arguments on appeal. Therefore, this argument is inadequately briefed and we do not
consider it further. See State v. Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770 (“Utah courts
routinely decline to consider inadequately briefed arguments.” (citation and internal
quotation marks omitted)).

20110231‐CA 5
marks omitted). “For a trial court to be afforded an opportunity to correct the error (1)
the issue must be raised in a timely fashion, (2) the issue must be specifically raised, and
(3) the challenging party must introduce supporting evidence or relevant legal
authority.” Id. (brackets, citation, and internal quotation marks omitted).

¶13 David has not cited any relevant portion of the record where this issue was
preserved. See Utah R. App. P. 24(a)(5) (requiring an appellant to demonstrate
preservation by citing to the record or to present grounds for reviewing unpreserved
issues). Our review of the record indicates that David referred to prior litigation while
cross‐examining Amie, but that he never placed the specifics of this litigation before the
trial court or sought a ruling based on the doctrine of res judicata. Indeed, the record
contains no specifics of the prior litigation—such as the parties involved, the issues
litigated, and whether a final judgment was entered—necessary to conduct an adequate
res judicata analysis at trial or on appeal. We therefore do not address it.

¶14 Affirmed.

____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge

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¶15 WE CONCUR:

____________________________________
Gregory K. Orme, Judge

____________________________________
Michele M. Christiansen, Judge

20110231‐CA 6