Call v. City of West Jordan

• Decision Date: 07 March 1990
• Docket Number: No. 880047-CA,880047-CA
• Citation: 788 P.2d 1049
• Parties: John CALL and Clark Jenkins, Plaintiffs and Appellants, v. CITY OF WEST JORDAN, Defendant and Respondent.
• Court: Utah Court of Appeals

Page 1049

788 P.2d 1049

John CALL and Clark Jenkins, Plaintiffs and Appellants, v. CITY OF WEST JORDAN, Defendant and Respondent.

No. 880047-CA.

Court of Appeals of Utah.

March 7, 1990.

Rehearing Denied March 22, 1990.

Dale F. Gardiner and Robert J. DeBry, Salt Lake City, for plaintiffs and appellants.

Steven G. Homer, West Jordan, for defendant and respondent.

Before GARFF, GREENWOOD and ORME, JJ.

GARFF, Judge:

Appellants John Call and Clark Jenkins appeal the trial court's ruling denying their motions for: (1) entry of judgment on their 42 U.S.C. § 1983 (1981) civil rights claim, (2) attorney's fees, (3) joinder of other subdividers as parties plaintiff, and (4) costs. We affirm.

In 1977, appellants owned land outside respondent City of West Jordan's (the City's) limits. They voluntarily applied for annexation, and then successfully applied for approval to develop a subdivision. At this time, the City had an ordinance which required subdividers to dedicate seven percent of the proposed subdivision land to the City or to pay the equivalent of the land value in cash. This land or cash was to be used by the City for flood control and/or park and recreational facilities. On May 2, 1977, pursuant to this ordinance, appellant Jenkins paid $16,576, approximately seven percent of the value of his land, to the City under protest. The City Council then approved appellants' subdivision.

Appellants sued the City on February 7, 1978, challenging the validity of the ordinance, requesting a refund of their money, and demanding class action certification. After the trial court upheld the validity of the ordinance, appellants appealed. In Call v. West Jordan, 606 P.2d 217 (Utah 1979) (Call I ), the Utah Supreme Court upheld the facial constitutionality of the ordinance and remanded the case for further proceedings in accordance with the opinion. Appellants applied for rehearing before the supreme court. The supreme court granted rehearing and found, in Call v. West Jordan, 614 P.2d 1257 (Utah 1980) (Call II ), that although the ordinance was not unconstitutional on its face, it may have been unconstitutionally applied to appellants.

It remanded the case to enable appellants to present evidence before the trial court showing that the dedication required of them by the ordinance had no reasonable relationship to the City's needs for flood control or recreation facilities created by appellants' subdivision.

Upon remand, the trial court allowed appellants to amend their complaint. In their amended complaint, appellants requested relief under 42 U.S.C. § 1983, ¹ alleging that their constitutional rights had been violated under several theories, including their due process rights to notice and hearing. The trial court denied appellants' renewed demand for class action certification and dismissed appellants' case. Appellants again appealed to the supreme court, which, in Call v. West Jordan, 727 P.2d 180 (Utah 1986) (Call III ), ruled that appellants' pleadings had been appropriately amended upon remand; the City, rather than appellants, had the burden of proving compliance with notice and hearing requirements set forth in Utah Code Ann. § 10-9-25 (1986); ² the City had failed to carry this burden of proof; and the ordinance was, accordingly, void ab initio. The supreme court disallowed appellants' requested class action status, stating that "[i]n the history of this lawsuit, plaintiffs requested class action certification on three different occasions from three different trial judges. All three denied their requests." Call III, 727 P.2d at 183. The supreme court then remanded the case to the trial court for judgment consistent with the opinion.

Previously, on April 6, 1978 and July 30, 1980, appellants had served interrogatories on the City, seeking information as to the identities of other subdividers and the amounts they had paid to the City under the ordinance. The City responded, stating that the answers sought could be obtained from the City's business records, and gave appellants access to the records. Appellants, apparently confused by the records, hired a CPA to examine them. The trial court then, at appellants' request, appointed a master to examine the records to determine who had paid what to the City, and what the City had done with the money. The court specified that appellants were to pay the master's fee. The record contains no evidence as to the CPA's or master's findings or the amounts of their fees.

On October 2, 1987, following remand, appellants moved to join additional plaintiffs, the other subdividers whom they had previously attempted to represent through means of class action certification. Appellants also moved for entry of judgment on their section 1983 civil rights claim, for attorney's fees, and for the reimbursement of the CPA's and master's fees.

On November 5, 1987, the trial court entered a written order and judgment denying appellants' motion for entry of judgment on the civil rights claim, ordering the parties to assume their own attorney's fees, and awarding appellants judgment against the City in the amount of $16,576, and interest in the amount of $14,415.14. On November 24, 1987, the trial court ordered the City to pay to appellants costs of $34, but ordered that appellants bear the master's and CPA's fees. Although appellants excepted to the trial court's failure to explain the basis upon which it had denied their request for attorney's fees, they did not object to the trial court's failure to make any specific findings as to the civil rights claim, nor did they propose any findings to the trial court as to the civil rights Appellants allege that the trial court erred in refusing to: (1) try the issue and enter judgment in favor of appellants on the civil rights claim, (2) award appellants attorney's fees, (3) reimburse appellants for their costs incurred in conducting the CPA audit and the master's investigation, and (4) join the other subdividers as parties plaintiff. The City alleges that appellants have lodged a frivolous appeal.

claim. Appellants filed this appeal with the supreme court, which was subsequently transferred to this court.

We emphasize that, on appeal, the parties have provided us with an extremely sketchy, incomplete record, which does not include any trial transcripts relevant to these issues.

I. CIVIL RIGHTS CLAIM

Appellants argue that the trial court erred in dismissing their civil rights claim under 42 U.S.C. § 1983 because the Utah Supreme Court, in Call III, found that the City did not comply with notice and hearing requirements in enacting the ordinance in question. They maintain that they were denied due process of law, so, consequently, have a valid cause of action under section 1983.

It is well established that this court will not consider an issue on appeal "[w]hen there is no indication in the record on appeal that the trial court reached or ruled on an issue." Broberg v. Hess, 782 P.2d 198, 201 (Utah Ct.App.1989); see also State v. One 1979 Pontiac Trans Am, 771 P.2d 682, 684 (Utah Ct.App.1989). On appeal, the appellant has the burden of marshalling all the evidence supporting the trial court's findings and then demonstrating that all the evidence, when viewed most favorably to the trial court's judgment, is insufficient. Marchant v. Park City, 771 P.2d 677, 682 (Utah Ct.App.1989). Thus, the appellant has the burden of providing the reviewing court with an adequate record on appeal to prove his allegations. See Broberg, 782 P.2d at 201. As the supreme court, in State v. Linden, 761 P.2d 1386, 1388 (Utah 1988) (quoting State v. Wulffenstein, 657 P.2d 289, 293 (Utah 1982)), stated:

When a defendant predicates error to this Court, he has the duty and responsibility of supporting such allegation by an adequate record. Absent that record, defendant's assignment of error stands as a unilateral allegation which the review [sic] court has no power to determine. This Court simply cannot rule on a question which depends for its existence upon alleged facts unsupported by the record.

Although the trial court ruled against appellants' civil rights claim, the record does not contain the court's rationale nor does it show that appellants argued the issue or presented any evidence pertaining to it. Appellants have fallen far short of the requirement that they marshal the facts supporting the trial court's ruling and then demonstrate that the evidence is insufficient to support it. In fact, they have not even supported their allegations that they have a claim under section 1983 with any evidence whatsoever on the record. The only evidence they cite is the supreme court's holding in Call III. ³

Section 1983 requires two allegations to state a cause of action: "First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); see also 42 U.S.C. § 1983. The supreme court held that the City's ordinance had not been adopted according to statutory requirements because the City had failed to properly give notice or to hold a public hearing, thus depriving appellants of a statutory right. Call III, 727 P.2d at 183. However, the court did not address the issue in terms of constitutionality, and made no ruling as to whether or not the ordinance was adopted under the color of state law. Therefore, Call III is Although "pleadings are generously interpreted, if they are not supported by any factual showing or by the submission of legal authority, they are not presented [to the trial court] for decision." James v. Preston, 746 P.2d 799, 801 (Utah Ct.App.1987). We have no evidence from this totally inadequate record that the civil rights theory was specifically litigated or that sufficient evidence was introduced to support it. See Broberg, ...