IN THE UTAH COURT OF APPEALS

‐‐‐‐ ooOoo

‐‐‐‐

Elmer Bowen,

Plaintiff and Appellant,

v.

Kenneth Hart, Clara Hart,

and Kenneth E. & Clara Watts

Hart Family Living Trust,

Defendants and Appellees. )

)

)

)

)

)

)

)

)

)

) PER CURIAM DECISION

Case No. 20110447

‐ CA

F I L E D

(December 13, 2012)

2012 UT App 351

‐‐‐‐‐

Fourth District, Fillmore Department, 100700010

The Honorable James M. Brady

Attorneys: James K. Slavens, Fillmore, for Appellant

James W. Jensen, Cedar City, for Appellees

‐‐‐‐‐

Before Judges Davis, McHugh, and Voros.

¶1 Elmer Bowen appeals from the trial court’s order granting declaratory judgment

but dismissing his claims for unjust enrichment. We affirm.

¶2 Bowen first argues that additional findings should be included in the declaratory

judgment to address issues not presented at trial. Although he asserts that the matter

was preserved in the trial court, it is not properly before this court for two reasons.

First, Bowen acknowledges that the final order entered on April 21, 2012, accuratelyreflected the trial court’s ruling. He did not timely object to that order. The form of

order, therefore, is not appropriately challenged on appeal.

¶3 Second, Bowen’s motion to amend the findings under rule 59 of the Utah Rules

of Civil Procedure did not preserve the issue of whether additional findings should be

made because the disposition of that motion is not before this court on appeal. See Utah

R. App. P. 4(b)(2). Under rule 4(b)(2), a notice of appeal filed after the entry of

judgment but before the disposition of a rule 59 motion is effective only as to the

underlying judgment. See id. To bring the disposition of the rule 59 motion within the

scope of the appeal, a new or amended notice of appeal must be filed after the entry of

the order resolving the motion. See id. The entry of the order denying Bowen’s rule 59

motion made the notice of appeal filed on May 17, 2011, effective and perfected

jurisdiction over the appeal of the April 21, 2011 judgment. However, no new or

amended notice of appeal was filed after the denial of the rule 59 motion. Accordingly,

any issue regarding that motion is not within the scope of this appeal. See id.

¶4 Bowen also argues that the trial court erred in declining to consider the motion

filed on May 9, 2011, under rule 60(b) of the Utah Rules of Civil Procedure. Bowen

sought to set aside the April 21 judgment based on his allegation that the proposed

order was not served on him and was thus erroneously entered. The trial court

properly declined to consider the motion under rule 60(b) because the motion failed to

specify the grounds for relief and relief requested within the scope of that rule. Even if

this court would consider a mere recitation of the listed grounds for relief in rule 60(b)

without any argument or application to the facts at hand to be sufficient to raise an

issue, any error in declining to consider the motion under rule 60(b) was harmless. The

trial court found that the proposed order was properly served on Bowen, contrary to

Bowen’s assertion. Accordingly, there is no factual support for the motion and the

motion, even if considered under rule 60(b), would have failed.

¶5 Bowen also challenges the trial court’s conclusion that Kenneth and Clara Hart

were not unjustly enriched by the heavy equipment work Bowen performed on their

property. He asserts that there is insufficient evidence to support the trial court’s

decision and that the trial court erred in applying elements of unjust enrichment. We

disagree.

20110447

‐ CA 2¶6 “[R]ecovery under an unjust enrichment theory is available only when ‘no

enforceable written or oral contract exists.’” Wood v. Utah Farm Bureau Ins. Co.

, 2001 UT

App 35, ¶ 10, 19 P.3d 392 (quoting Bailey

‐ Allen v. Kurzet

, 876 P.2d 421, 425 (Utah Ct.

App. 1994)). Bowen does not challenge the trial court’s finding that there was no

separate agreement between the parties regarding the heavy equipment work. Rather,

he asserts that he is entitled to recovery under unjust enrichment because there was no

independent agreement for the heavy equipment work performed. He fails to

acknowledge, however, that the trial court found that the work was performed within

the scope of the original agreement to clean up and maintain the property in exchange

for living there indefinitely rent free.

¶7 The parties stipulated at trial that an agreement was made permitting Bowen to

live in the apartment for the rest of his life without paying rent if he maintained and

cleaned up the property. Accordingly, there was an enforceable oral agreement.

Because the trial court found that the heavy equipment work was within the scope of

that agreement, unjust enrichment does not apply. See id.

¶8 Furthermore, there is sufficient record evidence to support the trial court’s

determination that the work was within the scope of the agreement. Kenneth Hart

testified that the heavy equipment work was expressly discussed as part of the initial

agreement for living on the property. He stated that Bowen offered to do the work as

part of the agreement. Hart also testified that he had a bid for the cleanup of the

buildings and pads, but he declined the bid after the agreement with Bowen was

reached. Furthermore, he stated that he would not have let Bowen do the work if he

thought that he would have to pay for it. The equipment that Bowen used was not the

optimal equipment for the work, so if Hart was going to hire someone to do the

cleanup, he would have hired someone with more appropriate equipment to make

quick work of the job. In sum, Hart’s testimony is sufficient to support the trial court’s

conclusion. Although there was competing evidence from Bowen, it is the trial court’s

province to weigh evidence and make any credibility determinations required. See

Rawlings v. Rawlings

, 2010 UT 52, ¶ 45, 240 P.3d 754.

¶9 Bowen also asserts that “the trial court’s factual findings were insufficient to

support its conclusion” that Kenneth Hart was entitled to retain a fifty

‐ percent interest

20110447

‐ CA 3in the backhoe. This argument fails for two reasons. First, to the extent it is a challenge

to the level of detail in the court’s findings, it is unpreserved. See 438 Main St. v. Easy

Heat

, 2004 UT 72, ¶ 51, 99 P.3d 801. Second, to the extent it is a challenge to the

sufficiency of the evidence supporting the trial court’s determination, Bowen fails to

marshal the evidence. See id. ¶ 69.

¶10 Bowen argues that the trial court failed to identify the terms and conditions of

the parties’ agreement regarding the transfer of the backhoe. This issue is not preserved

for appeal. To preserve an issue for appeal, the matter must be presented to the trial

court in such a manner that the trial court has the opportunity to rule on the issue. See

id. ¶ 51. As noted above, there was no timely objection to the form of the order. As a

result, the trial court was not given the opportunity to address whether additional detail

or terms should have been included in the order. Accordingly, this is not properly

before this court on appeal.

¶11 Bowen has also failed to marshal the evidence in support of the trial court’s

determination that the bill of sale evidenced a completed transaction. When

challenging the sufficiency of the evidence, an appellant must marshal the evidence in

support of the findings contested and show that, despite the evidence, the “findings are

so lacking in support as to be against the clear weight of the evidence.” Id. ¶ 69. Here,

Bowen argues his own facts or the lack of facts in an effort to overcome the trial court’s

findings. He does not, however, present the supporting evidence and show that it is

insufficient.

¶12 It is undisputed that Bowen transferred a fifty

‐ percent interest in the backhoe to

Kenneth Hart in 2007, as evidenced by a bill of sale. Other evidence supporting that the

transaction was complete at that time includes Hart’s testimony that he paid the recited

ten dollars, that the transaction made sense in a context of Bowen attempting to put his

affairs in order, and that there was no promissory note or discussion of other payment.

There was no executory language in the bill of sale. Rather, the plain language of the

document reflected consideration paid and a final transaction. Accordingly, based on

the record evidence and Bowen’s failure to marshal such evidence and show that it was

insufficient, Bowen has not established that the trial court erred in finding that the

20110447

‐ CA 4transfer of the interest in the backhoe was complete and that Hart was entitled to retain

the fifty

‐ percent interest conveyed. 1

¶13 Affirmed. 2

____________________________________ James Z. Davis, Judge

____________________________________ Carolyn B. McHugh, Judge

____________________________________ J. Frederic Voros Jr., Judge

1 In addition, because the transaction was complete on its terms and evidenced a

contracted sale, unjust enrichment does not apply. See Wood v. Utah Farm Bureau Ins.

Co.

, 2001 UT App 35, ¶ 10, 19 P.3d 392.

2 The Harts’ request for attorney fees under rule 33 of the Utah Rules of Appellate

Procedure is denied.

20110447

‐ CA 5