Jacob v. Cross
283 P.3d 539
Utah Ct. App.
2012
Check Treatment

John D. JACOB and Aqua Resources Unlimited, LLC, Plaintiffs and Appellees, v. Jerrold L. CROSS and Juniper Ridge, LLC, Defendants and Appellant.

No. 20100992-CA

Court of Appeals of Utah.

July 12, 2012

2012 UT App 190

not, however, appeal the Division‘s decision in either the Thomas or Buchanan matters. By failing to appeal either of the land use decisions van Frank relies upon to assert that the Division restricted his architect‘s license and denied him a property right in his license, van Frank failed to exhaust his administrative remedies.

¶ 12 Van Frank argues that the land use case law, discussed above, should not be applied in this matter because it is not relevant to his property interest argument. Van Frank asserts that such case law is inapplicable here because he is not claiming that he is entitled to have a building permit approved. Rather, he is claiming that the Division‘s policy of processing permit applications arbitrarily restricts his architect‘s license, thereby infringing his property interest in the license and violating his due process rights. This assertion is without merit. The right to appeal to the board of appeals for a hearing based on a building permit denial includes an array of grievances from “[a]ny person adversely affected” by the denial “in accordance with the preceding sections.” See id. The preceding section 18.20.040 provides that the Division “may require the plans or other data to be prepared and designed by an engineer.” See id. § 18.20.040. Thus, the section is relevant to van Frank‘s argument about the Division‘s policy of processing building permit applications and issuing building permits. The issuance or denial of a building permit is a land use decision. Cf. . As such, land use case law is relevant to this matter.

¶ 13 Van Frank does not claim that his failure to exhaust administrative remedies in this case falls under an exception to the exhaustion requirement and should be excused. Consequently, we hold that van Frank‘s failure to exhaust his administrative remedies prevents him from seeking relief from the courts at this time. As such, we do not reach the merits of van Frank‘s arguments and affirm the district court‘s decision to dismiss van Frank‘s claims.

CONCLUSION

¶ 14 Van Frank‘s appeal is based on the Division‘s decision, in two instances, to deny van Frank‘s clients’ building permit applications, allegedly based on the Division‘s policy of processing permit applications in a manner that arbitrarily restricted van Frank‘s right as a licensed architect to perform professional engineering work incidental to the practice of architecture. By not appealing the Division‘s decisions to deny the building permits, van Frank failed to exhaust his administrative remedies. Accordingly, we do not reach the merits of van Frank‘s arguments. Instead, we affirm the district court‘s decision to dismiss van Frank‘s claims.

¶ 15 Affirmed.

¶ 16 WE CONCUR: CAROLYN B. MCHUGH, Presiding Judge, and MICHELE M. CHRISTIANSEN, Judge.

Jerrold L. Cross, Orem, Appellant Pro Se.

Bryce D. Panzer, Salt Lake City, for Appellees.

Before Judges DAVIS, THORNE, and CHRISTIANSEN.

DECISION

PER CURIAM:

¶ 1 Jerrold L. Cross appeals the judgment entered by the district court on November 8, 2010. The judgment was certified as final pursuant to rule 54(b) of the Utah Rules of Civil Procedure. Cross alleges various procedural errors with the November 8, 2010 damages hearing, as well as issues concerning the quality of the evidence presented at that hearing.

¶ 2 If an appellant fails to adequately brief an issue on appeal, the appellate court may decline to consider the argument. See ; . Rule 24 of the Utah Rules of Appellate Procedure, among other things, requires an appellant (1) to provide a citation to the record “showing that the issue was preserved in the trial court,” see Utah R.App. P. 24(a)(5)(A); (2) to provide a statement of relevant facts supported by citations to the record, see id. R. 24(a)(7); and (3) to provide an argument “with citations to authorities, statutes, and parts of the record relied on,” see id. R. 24(a)(9). Cross failed to comply with any of these requirements.

¶ 3 First, Cross fails to cite to where in the record the issues presented in the appeal were preserved for review. This is important because “[u]nder ordinary circumstances, we will not consider an issue brought for the first time on appeal unless the trial court committed plain error or exceptional circumstances exist.” See . Cross neither demonstrates that his issues were preserved for appeal nor argues that the district court committed plain error. Second, while Cross attached an addendum to his brief, and on occasion cites generally to that addendum, he fails to cite to the record as required by the rule, thereby leaving the responsibility of combing through the record to this court. Finally, Cross fails to provide any argument with citations to authorities or the parts of the record relied upon to support his arguments. Instead, Cross sets forth nine separate conclusory statements as his argument. He fails to provide any factual or legal basis to support these conclusory statements. As a result, the issues are inadequately briefed because he has completely shifted the burden of researching the record and applicable law to the court. See (“An issue is inadequately briefed when the overall analysis is so lacking as to shift the burden of research and analysis to the reviewing court.“).

¶ 4 The court acknowledges that Cross appeared pro se, and, as such, is entitled to “every consideration that may reasonably be indulged.” (internal quotation marks omitted). “However, ‘[a]s 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. . . .‘” (quoting ). Consequently, “[r]easonable considerations do not include . . . attempt[ing] to redress the ongoing consequences of the party‘s decision to function in a capacity for which he is not trained.” (quoting ). Here, Cross‘s brief simply provides too little information for the court to analyze the issues he presents for review.

¶ 5 Despite the inadequate briefing, Appellees acknowledge that after entry of the judgment, and during the course of the ongoing litigation against other parties, an error was found in the appraisal that supported the judgment against Cross. This error cannot be corrected based upon the record before the court because Cross failed to preserve any argument concerning the use of the appraisal, and any evidence concerning the error was discovered after entry of the judgment against Cross. Appellees and their counsel have represented to this court that “[w]hen the District Court resolves the balance of the case, [Appellees] intend to seek an amendment of the judgment against Cross to correct the error.” Accordingly, the judgment must be amended in accordance with Appellees’ representation. If the judgment is not amended, Cross should seek relief under rule 60(b) of the Utah Rules of Civil Procedure.

¶ 6 Affirmed.

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