2016 UT App 216

THE UTAH COURT OF APPEALS

DEUTSCHE BANK NATIONAL TRUST COMPANY,

Appellee,

v.

WILLIAM M. YORK,

Appellant.

Memorandum Decision

No. 20141083-CA

Filed October 27, 2016

Fourth District Court, Fillmore Department

The Honorable M. James Brady

No. 120700011

Marshall M. Thompson, Attorney for Appellant

Brad G. DeHaan and Nadia D. Adams, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Memorandum Decision, in 

which JUDGES STEPHEN L. ROTH and KATE A. TOOMEY concurred.

POHLMAN, Judge:

¶1 Defendant William M. York appeals the trial court’s 

judgment for unlawful detainer in favor of Deutsche Bank 

National Trust Company, as Trustee for Ameriquest Mortgage 

Securities Inc., Asset-Backed Pass-Through Certificates, Series 

2004-R8 (Deutsche Bank). York asserts that, during the 

proceedings below, he should have been allowed to raise 

affirmative defenses challenging Deutsche Bank’s title to the 

subject property and establishing irregularities in the foreclosure 

process. York also asserts that the trial court erred by failing to 

meaningfully consider his request for sanctions under rule 26 of 

the Utah Rules of Civil Procedure. We affirm.
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¶2 In 2004 York obtained a loan from Ameriquest Mortgage 

Company, and he executed a deed of trust on certain real 

property (the Trust Deed) as security for that loan. Thereafter, 

York was late in making his payments and deemed to be in 

default. As a result, the subject property was sold at a trustee’s 

sale, at which Deutsche Bank was the successful bidder. When 

York failed to vacate the property after being served with a 

notice to quit, Deutsche Bank sued York for unlawful detainer in 

the action giving rise to this appeal.

¶3 York responded by suing Ameriquest, Deutsche Bank, 

and several other entities in federal court, alleging ‚predatory 

lending practices,‛ ‚criminal acts,‛ and violations of ‚his 

constitutional rights to his property and due process,‛ based on 

‚schemes and patterns of fraud related‛ to his mortgage and the 

foreclosure process. The federal court dismissed York’s claims 

against Deutsche Bank with prejudice, concluding that York 

failed to allege any viable claims against Deutsche Bank and that 

allowing York an opportunity to amend his complaint would be 

futile.

¶4 In the meantime, acting pro se, York responded in the 

state court unlawful detainer action. York filed a ‚Counter 

Claim‛—‚Civil Complaint‛ raising the same allegations and 

claims he had filed in federal court. York also filed an answer, 

which twice referenced his counterclaims, stating that specific 

allegations were ‚denie*d+ . . . (see Defendant’s counter claim in 

this action).‛ In addition, York pleaded a single affirmative 

defense, asserting that ‚Plaintiff fails to allege a cause of action 

for which relief may be granted.‛

¶5 The trial court dismissed York’s counterclaims against 

Deutsche Bank without reaching the merits, concluding that 

York’s claims were ‚identical‛ to the claims brought in federal 

court; failed to meet the minimum pleading standards of Utah

Rule of Civil Procedure 8(a); sought civil damages based upon 
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20141083-CA 3 2016 UT App 216

criminal statutes that do not provide a private right of action; 

and, as they relate to fraud, failed to meet the heightened 

pleading requirements of Utah Rule of Civil Procedure 9(b). The 

trial court later dismissed York’s counterclaims as to the 

remaining defendants. York submitted an amended 

counterclaim, but it was stricken because, among other things, 

York did not obtain leave of court and the pleading contained no 

new factual allegations or causes of action not addressed by the 

federal court.

¶6 Despite the generally expedited nature of unlawful 

detainer actions, eight months passed between the time 

Deutsche Bank filed suit and the date set for an evidentiary 

hearing on the complaint. Deutsche Bank attributed the delay to 

the federal court proceedings, having elected not to ‚move 

forward with [the state] proceeding because if there would have 

been any merit*+ found to Mr. York’s complaint in *federal] 

district court, [Deutsche Bank] would have had to go back and 

redo the foreclosure process.‛

¶7 But, on the date set for hearing in November 2012, the 

trial court first addressed York’s motion to postpone the hearing. 

York asserted that he needed more time to complete discovery 

and that Deutsche Bank had neither served initial disclosures 

within the fourteen-day period prescribed in rule 26 of the Utah 

Rules of Civil Procedure nor timely provided him with the 

documents it intended to use at the hearing. After questioning 

both parties, the trial court noted that ‚despite *Deutsche Bank’s+ 

best efforts‛ to timely provide all documents seven days before 

the hearing, York may not have had ‚an opportunity to review 

those and be prepared for today.‛ Deutsche Bank then offered to 

move forward solely with the documents attached to its 

complaint. But York sought to go ‚beyond‛ those documents, 

contending that ‚*b+ecause of the lengthy counter-complaint and 

all the issues of fraud and deceit and some criminal action, [he]
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20141083-CA 4 2016 UT App 216

need[ed] to have more time to discover what these people ha[d]

done.‛

¶8 The trial court ruled that the documents attached to 

Deutsche Bank’s complaint constituted its initial disclosures; 

York had had ample time to conduct discovery but ‚*n+o efforts 

ha*d+ been made‛; and while due process applied, the rules of 

civil procedure on which York relied ‚do not necessarily‛ 

govern eviction actions, which are ‚typically expedited.‛ The 

court then presented Deutsche Bank with a choice: proceed with 

the hearing based solely on the documents attached to the 

complaint or postpone the hearing three weeks. Deutsche Bank 

elected to postpone the hearing. When asked if there was any 

reason he could not have the hearing on the subsequent date, 

York responded, ‚I don’t think I have a problem with that, your 

Honor.‛ The trial court then postponed the hearing until midDecember with instructions that each side provide all documents 

to the other within five days.

¶9 The day before the rescheduled hearing, York filed 

several motions including a ‚Motion to Vacate Order Striking 

*York’s+ Amended Counter-Claim,‛ a ‚Motion to Vacate Order 

of Dismissal of *York’s+ Counter Claim-Civil Complaint Against 

the Remainder of the Counterclaim Complaint Parties,‛ and a 

‚Rule 26, 37, 41 Motion.‛ The last motion asserted, among other 

things, that Deutsche Bank’s ‚claim of ownership‛ was false.

¶10 Before proceeding with the rescheduled hearing, the trial 

court first noted that it would need to address York’s motions, 

but only after Deutsche Bank had an opportunity to respond. 

The court ruled that the motions were ‚untimely in terms of 

being presented for a ruling today‛ and would be considered 

later, and that the court would move forward with that day’s 

evidentiary hearing on the complaint.

¶11 York then brought up a concern he had raised in the prior 

hearing and reiterated in his ‚Rule 26, 37, 41 Motion‛—that 
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20141083-CA 5 2016 UT App 216

Deutsche Bank had not timely provided initial disclosures as 

rule 26 of the Utah Rules of Civil Procedure requires. York did 

not dispute that he had received those disclosures after the last 

hearing, but nevertheless claimed that Deutsche Bank should not

be allowed to use any information not supplied within the 

fourteen-day time limit.

¶12 In response, the trial court initially misspoke, commenting 

that it had not addressed the issue previously. After being 

reminded of its prior ruling, however, the court reiterated that 

the rules of civil procedure on which York relied did not 

necessarily apply in expedited proceedings for unlawful 

detainer. In addition, the trial court noted that York had not 

timely brought the issue to the court’s attention, because he had

not filed a motion to compel or for sanctions during the nine 

months the case had been pending. The trial court also observed 

that, prior to the hearing, York had at least two weeks ‚to receive 

information adequate to prepare himself for most eviction 

actions.‛

¶13 In determining whether the case should proceed ‚without 

certain evidence‛ or whether York should be given more time to 

prepare, the court questioned York as to any efforts he had made 

after receiving Deutsche Bank’s documents. The court concluded 

that York had spent the prior weeks focusing on the issue of 

property ownership and whether Deutsche Bank had valid title 

thereto. York had not, however, undertaken efforts related to the 

‚narrow‛ issues of that day’s hearing. The trial court then ruled 

that the hearing would proceed without the exclusion of 

Deutsche Bank’s witnesses or documents.

¶14 Throughout its discussion, the trial court consistently 

reminded York that the underlying validity of Deutsche Bank’s 

title and any improprieties or irregularities in the foreclosure 

process were ‚immaterial‛ to the matters at issue on that day. 

While those issues had been alleged in York’s counterclaims, the 
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20141083-CA 6 2016 UT App 216

counterclaims had been dismissed; and if York sought to raise 

those issues in ‚some other way,‛ he had ‚those rights,‛ but 

those issues were outside the scope of the December hearing.

¶15 During the hearing, the trial court allowed York some 

leeway to cross-examine Deutsche Bank’s witnesses about, for 

example, the documents presented as well as the purpose and 

effect of the trustee’s sale. But the trial court sometimes limited 

York’s questioning, reminding him that the court was not 

addressing the validity of Deutsche Bank’s title. At no time, 

however, did York specify what evidence he would have 

presented or which questions he would have asked had he not 

been constrained during his cross-examinations of Deutsche 

Bank’s witnesses.

¶16 After Deutsche Bank presented its case, the trial court 

asked if York had any motions or wished to call witnesses. York 

responded that he had ‚*o+nly the general objection that . . . none 

of these documents should have been allowed.‛ York then asked 

to admit two documents ‚identifying what the banks did 

wrong‛ and ‚the problem with fraudulent mortgage 

documents,‛ and those documents were admitted. York did not 

attempt to introduce any other evidence at the hearing.

¶17 The trial court indicated that it would consider York’s 

motions before ruling on the evidence that had been presented. 

The trial court later denied York’s motions and issued findings 

of fact and conclusions of law, determining that York had 

unlawfully detained the property. The trial court issued its final 

judgment in October 2014, awarding damages to Deutsche Bank 

and requiring York to vacate the property. York then filed a 

‚Motion to Vacate the Court*’+s Findings and Orders and to 

Grant Summary Judgment,‛ again asserting flaws in Deutsche 

Bank’s title to the subject property and the underlying 

foreclosure process. York’s motion was denied.
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20141083-CA 7 2016 UT App 216

¶18 On appeal, York asserts that the trial court improperly 

precluded him from raising affirmative defenses challenging 

Deutsche Bank’s title to the property and establishing 

irregularities in the foreclosure process. York also asserts that the 

trial court erred by failing to meaningfully consider his request 

for sanctions under rule 26 of the Utah Rules of Civil Procedure.1

York does not challenge the dismissal of his counterclaims or the 

denials of his motions.

¶19 Turning to whether York was improperly barred from 

asserting affirmative defenses, York raises two concerns: (1) that 

the trial court prohibited him from fully cross-examining 

Deutsche Bank’s witnesses with regard to property ownership, 

validity of title, and the foreclosure process, and (2) that he was 

prohibited from introducing evidence on those same issues. 

Generally, a trial court’s decision to exclude evidence is 

reviewed for abuse of discretion, but a decision to exclude 

evidence based solely on a legal conclusion is reviewed for 

correctness. Utah Dep’t of Transp. v. Walker Dev. P’ship, 2014 UT 

App 30, ¶ 11, 320 P.3d 50; see also Lawrence v. MountainStar 

Healthcare, 2014 UT App 40, ¶ 17, 320 P.3d 1037 (‚*T+he proper 

 

1. York also suggests that barring a defendant from challenging 

property ownership in the context of an unlawful detainer claim 

violates article XXII, section 1, of the Utah Constitution. To the 

extent York asserts a constitutional violation, we do not address 

it. This argument was raised for the first time on appeal, and 

York does not allege plain error or exceptional circumstances. 

See Jacob v. Bezzant, 2009 UT 37, ¶ 35, 212 P.3d 535 (declining to 

address an alleged violation of ‚the Utah Constitution because 

the argument was raised for the first time on appeal and there 

are no exceptional circumstances that allow us to review it‛). We 

note, however, that this claim rests on a defective premise—i.e., 

that York was prohibited from challenging ownership in the 

unlawful detainer action. Infra ¶¶ 21–25.
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20141083-CA 8 2016 UT App 216

scope of cross-examination is within the sound discretion of the 

trial court and should not be disturbed absent a showing of 

abuse.‛ (citation and internal quotation marks omitted)); cf. State 

v. Ashby, 2015 UT App 169, ¶ 17, 357 P.3d 554 (‚When reviewing 

a trial court’s decision to limit cross-examination, we review the 

legal rule applied for correctness and the application of the rule 

to the facts of the case for an abuse of discretion.‛ (citation and 

internal quotation marks omitted)).

¶20 An appellant challenging the exclusion of evidence ‚bears 

the burden of showing the harmfulness of the error.‛ Gallegos ex 

rel. Rynes v. Dick Simon Trucking, Inc., 2004 UT App 322, ¶ 21, 110 

P.3d 710; accord Lawrence, 2014 UT App 40, ¶ 34. Here, the 

‚insuperable obstacle to *appellant’s+ contention is that *he+ did 

not make any offer of proof as to what evidence would be 

adduced, nor the purpose it would serve.‛ See Bradford v. Alvey 

& Sons, 621 P.2d 1240, 1243 (Utah 1980). ‚A party may claim 

error in a ruling to . . . exclude evidence only if . . . [the] party 

informs the court of its substance by an offer of proof, unless the 

substance was apparent from the context.‛ Utah R. Evid. 

103(a)(2). By making that offer of proof, a party creates the 

record necessary for review, enabling an appellate court to 

determine if error occurred and if the error was harmful.

¶21 York did not create such a record. Prior to the evidentiary 

hearing, York made vague statements that ‚if a foreclosure was 

not legally done, that would *a+ffect an eviction proceeding,‛ 

and that he was ‚trying to find out who is the real party in 

interest, who is the owner of this thing.‛ But York did not 

describe with any more detail the evidence he intended to 

introduce at the hearing. On appeal, York is equally vague. York 

argues that ‚a defendant in an unlawful detainer action *may+ 

assert the affirmative defense that the purported owner does not 

actually own the property in question,‛ but York does not 

indicate what evidence he was prepared to present in that regard 

or when he specifically was barred from presenting it. Indeed, 
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20141083-CA 9 2016 UT App 216

York asked to admit only two exhibits during the hearing, both 

of which were accepted into evidence.

¶22 Nor does York identify any questions he sought to ask but 

was precluded from raising during cross-examination, much less 

point to follow-up objections and offers of proof bearing on his 

alleged affirmative defenses. ‚*T+o preserve this issue on appeal, 

appellant had to make an offer of proof on the record as to what 

evidence he intended to adduce by his questions or to propound 

further questions more explicitly pertinent to the issue.‛ Hill v. 

Hartog, 658 P.2d 1206, 1209 (Utah 1983) (citations omitted). Thus 

even assuming that the trial court erred in excluding evidence 

regarding property ownership, validity of title, and the 

foreclosure process, we have no basis for concluding that those 

exclusions were harmful. See Lawrence, 2014 UT App 40, ¶¶ 34–

35 (concluding that appellant had failed to show prejudice from 

the trial court’s erroneous exclusion of evidence).2 The record 

does not indicate what evidence—if any—York otherwise might 

have presented in support of those claims.3

 

2. We likewise reject York’s argument that prejudice should be 

presumed because ‚there is no record to show how strong or 

weak the evidence may have been.‛ As noted above, York could 

have created the requisite record, and bore the burden of doing 

so, but did not and thus failed to preserve the issue for appeal.

3. York, who is represented by counsel on appeal, has not sought 

an exception to this rule on the basis that he was acting pro se 

during the proceedings below. Even had he made this request, 

however, it would not alter the outcome. ‚As a general rule, a 

party who represents himself will be held to the same standard 

of knowledge and practice as any qualified member of the bar,‛ 

but ‚because of his lack of technical knowledge of law and 

procedure [a layman acting as his own attorney] should be 

accorded every consideration that may reasonably be indulged.‛ 

(continued<)
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20141083-CA 10 2016 UT App 216

¶23 In addition, York erroneously assumes that because the 

trial court limited the scope of the evidentiary hearing, York was 

barred from addressing property ownership, validity of title, 

and the foreclosure process at any time during the proceedings 

below. In an unlawful detainer action, a court ‚‘must resolve all 

claims relating to possession’‛ whether those claims are raised as 

affirmative defenses or as counterclaims. Utah First Fed. Credit 

Union v. Dudley, 2012 UT App 164, ¶ 18 n.8, 280 P.3d 462 

(quoting Bichler v. DEI Sys., Inc., 2009 UT 63, ¶ 32, 220 P.3d 1203). 

Accordingly, ‚in an unlawful detainer action with multiple 

claims or counterclaims, a rule 54(b) entry of final judgment 

resolving the issue of possession is proper when it includes all 

claims and counterclaims that are necessary to determine lawful 

possession of the property.‛ Bichler, 2009 UT 63, ¶ 30. Assuming 

without deciding that York’s claims related to ‚possession‛ and 

thus required resolution prior to final judgment under rule 54(b) 

or otherwise, that is precisely what occurred in this case.

¶24 York raised issues of property ownership, validity of title, 

and the foreclosure process in his counterclaims and pre-hearing 

 

(<continued)

Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983) (alteration in 

original) (citation and internal quotation marks omitted). Here, 

every such consideration has been afforded. During the 

evidentiary hearing, for example, York was allowed to admit the 

two exhibits even though he offered them for the first time 

during his closing argument. Now on appeal, and represented 

by counsel, York still does not identify any evidence he was 

prepared to present but precluded from offering at the hearing,

nor does he identify any questions he sought to ask during crossexamination or the evidence he sought to elicit via that 

questioning. Thus, no amount of reasonable indulgence would 

support a conclusion of prejudicial error with regard to York’s 

evidentiary challenges.
Deutsche Bank National Trust Company v. York

20141083-CA 11 2016 UT App 216

motion, which were dismissed or denied before final judgment 

was entered. And when York filed a post-judgment motion 

again asserting Deutsche Bank had failed to prove, among other 

things, the validity of its title to the subject property, his motion 

was considered and dismissed. 

¶25 York does not challenge any of these instances in which 

ownership, validity of title, or the foreclosure process were 

raised and dismissed during the proceedings below. We 

therefore cannot fault the trial court for refusing to take evidence 

at the hearing on issues other than Deutsche Bank’s prima facie 

case of unlawful detainer.4 Cf. Maxfield v. Herbert, 2012 UT 44, 

¶ 21 & n.6, 284 P.3d 647 (recognizing courts’ broad discretion to 

order and structure election hearings based on general principles 

of civil procedure, and concluding that a court ‚*s+urely‛ would 

‚not *be+ required to accept and consider evidence‛ on a matter 

shown to be irrelevant due to the prior resolution of a defensive 

motion). Accordingly, we reject York’s claim that he was 

erroneously barred from raising affirmative defenses to the 

unlawful detainer claim.5

 

4. As the trial court indicated, York remained free to raise his 

issues at the appropriate time, in an appropriate way: ‚If you 

want to raise that question *of ownership+, you’ve filed your 

motion. I’ll rule on that at another time. If you want to raise it 

some other way, you have those rights, but today I’m only 

dealing with who has the right to possess the property . . . .‛

5. Given our disposition of this issue, we need not decide 

whether York could have raised his affirmative defenses, despite 

not pleading them in his answer other than by reference to his 

counterclaims, which were dismissed. See Utah Dep’t of Transp. v. 

Walker Dev. P’ship, 2014 UT App 30, ¶ 21, 320 P.3d 50 (‚The 

assertion of unpleaded claims in briefing and argument before 

the district court and on appeal cannot remedy the failure to 

(continued<)
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20141083-CA 12 2016 UT App 216

¶26 Finally, York asserts that the trial court failed to 

meaningfully consider his request for sanctions under rule 26 of 

the Utah Rules of Civil Procedure. ‚We review a trial court’s 

denial of discovery sanctions under an abuse of discretion 

standard,‛ Hull v. Wilcock, 2012 UT App 223, ¶ 36, 285 P.3d 815 

(citation and internal quotation marks omitted), but no abuse of 

discretion has been shown here. According to York, he asserted 

that Deutsche Bank failed to timely provide initial disclosures 

and other documents, but the trial court labeled his objection 

untimely and did not otherwise address it. The record, however, 

is to the contrary.

¶27 At the November 2012 hearing, York first raised his 

concerns about a lack of initial disclosures and untimely receipt 

of documents. After questioning both parties, the trial court 

concluded that the documents attached to Deutsche Bank’s 

complaint constituted its initial disclosures; the procedural 

timelines on which York relied did not necessarily apply in 

eviction actions, which typically are expedited; despite Deutsche 

Bank’s efforts to timely provide all documents seven days before 

the hearing, York may not have had adequate opportunity to 

review them; and York had ample time to conduct discovery but 

made no such efforts.

¶28 While Deutsche Bank offered to move forward solely with 

the documents attached to its complaint, York requested more 

documents and more time. When the trial court allowed 

Deutsche Bank either to proceed based solely on its initial 

disclosures or to postpone the hearing, Deutsche Bank elected 

 

(<continued)

include them in an appropriate pleading.‛ (ellipsis, citation, and 

internal quotation marks omitted)). We also do not decide what 

effect, if any, York’s asserted defenses would have had on the 

unlawful detainer action, had they been successfully established. 
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20141083-CA 13 2016 UT App 216

the latter, consistent with York’s preference. When asked if there 

was any reason York could not have the hearing on the 

subsequent date, York did not object.

¶29 During the December hearing, when York again asserted 

that Deutsche Bank had not timely provided initial disclosures, 

the trial court again addressed York’s objection noting, among 

other things, that York had not previously filed a motion to 

compel or for sanctions; the procedural timelines on which York 

relied did not necessarily apply; and York had had at least two 

weeks to prepare since the last hearing. The court also concluded 

that, since receiving Deutsche Bank’s documents, York had not 

undertaken discovery efforts related to the issues to be 

addressed during that day’s hearing. The trial court then ruled 

that the hearing would proceed without the exclusion of 

Deutsche Bank’s witnesses or documents.

¶30 Thus, York’s assertion that the trial court failed to address 

his request for discovery sanctions as anything other than 

untimely is plainly incorrect. Because York does not address the 

trial court’s substantive disposition of the discovery issues, 

much less show that the court’s approach exceeded its 

discretion, we reject his claim of error.

¶31 Accordingly, we affirm.6

 

6. Because the judgment is affirmed, we deny York’s request for 

costs incurred on appeal. See Utah R. App. P. 34(a).