Interstate Income Properties, Inc. v. La Jolla Loans, Inc.

THORNE, Judge,

(dissenting):

1 24 I respectfully dissent from the majority's decision to remand this case to the trial court for entry of additional facts and conclusions of law to clarify the basis for its decision. Based on the procedural posture of this case, I believe that La Jolla waived its arguments by failing to preserve its objections to the adequacy of the findings and by proceeding as if the trial court's findings and conclusions of law were sufficient to support the trial court's ruling that La Jolla's trust deeds are null and void, and are wrongful liens pursuant to Utah Code section 838-9-L. As a result, remand is inappropriate.

11 25 In this case, the trial court ruled from the bench after an evidentiary hearing on Plaintiffs' petition to nullify La Jolla's trust deed as a wrongful lien and requested Plaintiffs' attorney to draft the order. The entirety of the trial court's ruling is as follows:

All right. I have determined that [La Jolla's trust deeds] should be declared void ab initio. Property should be-the property should be released from these liens. Pursuant to the statute, I do not think I have any alternative but to award costs and fees. However, I do decline to award the statute that-the penalty that's provided by statute. I think that knowledge or reason to know is not quite the situation here and so I don't-I don't think that that's applicable many [sic].

After the court announced its ruling, neither party requested that the court clarify the basis for its decision. Instead, Plaintiffs' attorney drafted and submitted a proposed order providing fifteen findings not specifically articulated in the trial court's ruling quoted above, but presumably taken from the evidence presented at the evidentiary hearing, in support of the trial court's granting Plaintiffs' petition to nullify the wrongful lien. Counsel for La Jolla also participated in the drafting of the order, reviewing and suggesting some changes to the proposed order, which the trial court signed on September 29, 2009.1 Given these cireumstances, I conclude that this is not a typical "approved as to form" scenario. The parties in drafting the proposed order did not clarify the basis for the court's ruling and instead took it upon themselves to provide a basis for the ruling. By doing so, La Jolla failed to preserve its challenge for appeal.

126 Not only did La Jolla fail to alert the trial court of its failure to make adequate findings to support the September 29, 2009 ruling granting Plaintiffs' petition to nullify the wrongful lien, La Jolla also proceeded to stipulate to a result based on the findings made in that order. The parties stipulated, in part, as follows:

Based upon the [September 29, 2009] Order constituting the law of the case, the parties acknowledge that the Court would rule, upon proper motion being brought by [Interstate], that [Interstate is] entitled to relief on [its] First and Second Causes of Action, quieting title to Pad "A" in BRB-5, declaring that the Interstate-Carlsbad Quit Claim Deed was void and of no force or effect, and declaring that the Deeds of Trust were null and void ab initio solely to the extent that they created or purported to create an encumbrance of lien upon Pad "A." Accordingly, the parties stipulate that, subject to the terms of this Stipulation, the Court may enter such an order.

In so stipulating, La Jolla again failed to inform the trial court that it believed further *1081findings and conclusions of law were necessary to clarify the basis for its decision. By failing to challenge the detail, or adequacy of the findings with the trial court, La Jolla waived the arguments that are the basis of this appeal. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 56, 99 P.3d 801; see also id. 1 51 ("[Iln order to preserve an issue for appeall[,] 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. This requirement puts the trial judge on notice of the asserted error and allows for correction at that time in the course of the proceeding." (alterations in original) (citation and internal quotation marks omitted)).

27 Although the majority may be correct that our ability to remand is not proscribed by La Jolla's failure to preserve its objection to the adequacy of the trial court's findings, see suwpro 120, I do not believe there is an appropriate reason to remand. The trial court's findings in this case can be fairly described as " 'adequately supported by the evidence but nevertheless insufficiently detailed to disclose the steps by which the judge reached ... her conclusions." See In re K.F., 2009 UT 4, ¶ 62, 201 P.3d 985 (quoting 438 Main St., 2004 UT 72, ¶ 54, 99 P.3d 801). Our supreme court has stated, that in such a situation, "A trial judge does not have the chance to address the adequacy of the findings themselves, unless that issue is brought before him or her," id., and "[JJudi-cial economy would be disserved if we permitted a challenge to the adequacy of the detail in the findings to be heard for the first time on appeal," id. ¶ 63. Additionally, the supreme court noted that there are several reasons weighing against a remand when the challenging party fails to preserve an adequacy of the findings argument, as is the case here. "Not only is an error in the detail in the findings easy for a trial judge to correct, but it is an error that is best corrected when the judge's findings are fresh in the judge's mind," id., and that "it is a waste of judicial resources for an appellate court to entertain such a challenge when the only likely remedy is merely a remand to the trial court for more detailed findings," id.

28 Because La Jolla did not first provide the trial court with the opportunity to correct the error, I would decline to offer the remedy of remand or reach La Jolla's challenge to the trial court's findings of fact. See id. 11 63-64 (declining to remand the case or reach mother's claim that the findings were inadequately detailed because she failed to preserve it). As a result, I would affirm the trial court's ruling.

. Plaintiffs' attorney submitted the proposed order, which the trial court signed while La Jolla was reviewing the order. After La Jolla reviewed the order, it suggested some changes to the proposed order. Plaintiffs made the changes and submitted a revised order, which the court signed. Once the parties learned that the trial court had signed both the original and the revised proposed order, they filed a stipulated motion to set aside the original proposed order regarding Plaintiffs' petition to nullify wrongful lien. The trial court granted said request and entered an order stating that the revised order, the September 29, 2009 order, was the controlling order regarding Plaintiffs' petition for wrongful lien.