2019 UT App 44
THE UTAH COURT OF APPEALS
WINDSOR MOBILE ESTATES, LLC; HENRY BERRY; AND AFFORDABLE
CONCEPTS, LLC,
Appellees,
v.
DONNIE SWEAZEY,
Appellant.
Opinion
No. 20170983-CA
Filed March 28, 2019
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 140400967
Brian W. Steffensen, Attorney for Appellant
L. Miles Lebaron and Tyler J. Jensen, Attorneys for
Appellee Windsor Mobile Estates, LLC
Mark A. Woodbury, Attorney for Appellees Henry
Berry and Affordable Concepts, LLC
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
ORME, Judge:
¶1 Donnie Sweazey appeals the dismissal of his claims for
failure to prosecute. We affirm.
¶2 On January 27, 2014, Windsor Mobile Estates, LLC, filed a
complaint for unlawful detainer against Scott Wilson for failure
to pay rent on a lot in its mobile home park. At the time, Wilson
did not reside in the mobile home on the lot in question. Rather,
Michelle Southard and Michael Oyler owned and resided in the
mobile home. Wilson never filed an answer to Windsor’s
Windsor Mobile Estates v. Sweazey
complaint, and the district court entered an order of restitution
on February 7, 2014, ordering any occupants off the premises.
¶3 On February 21, 2014, Appellant Donnie Sweazey sought
to intervene as a defendant, claiming to be the rightful owner of
the mobile home, and he was granted leave to do so. The court
then ordered a stay of execution until ownership of the mobile
home could be determined and directed that the mobile home
remain on the lot until further notice.
¶4 On April 30, 2014, Sweazey filed what he titled a
thirdparty complaint, alleging that he had purchased the home
from Southard and Oyler for $9,000 on February 10, 2014, by
putting down all of $20 as a deposit, with $8,980 of the purchase
price still owing. In his third-party complaint, Sweazey named
as third-party defendants Appellee Henry Berry and his
company, Affordable Concepts, LLC (collectively, Berry). He
also asserted claims against Windsor, Oyler, and Southard.
Answering the third-party complaint, Berry claimed he
purchased the home from Oyler after Oyler represented to him
that he had discussed selling the home to Sweazey but that no
deal had been finalized.
¶5 Early on in the case, in April 2014, the district court stated
that an evidentiary hearing was required to determine
ownership of the mobile home. However, none of the parties
requested an evidentiary hearing on the matter. Sweazey claims
to have asked for a hearing and points to various filings, but
there is no record of him filing a request to submit any relevant
motion for decision, as required by rule 7(g) of the Utah Rules of
Civil Procedure. Without such a request the court will ordinarily
not take action on its own initiative. Seven months later, in
December 2014, the court reiterated the need for an evidentiary
hearing, but again no party properly moved the court to hold
one—or so the court concluded, noting also that “[w]hatever
claim is made that something was filed is eviscerated by the fact
20170983-CA 2 2019 UT App 44
Windsor Mobile Estates v. Sweazey
that even if a motion was filed, no Request to Submit was ever
filed concerning that motion.”
¶6 In his third-party complaint, Sweazey sought damages for
an alleged breach of contract by Southard and Oyler,
interference with contractual relations and defamation by Berry,
and conspiracy and conversion by Berry and Windsor.
Sweazey’s attempt to bring claims against Berry and Windsor by
using a third-party complaint was not proper, even though
Sweazey saw the need to bring additional parties into the action.
This mistake—the misuse of a third-party action—is a common
one, and we take this opportunity to remind practitioners of the
quite limited proper usage of third-party complaints.
¶7 Under rule 14(a) of the Utah Rules of Civil Procedure, a
third-party complaint is used by a defendant to “bring in [a]
third party” “who is or may be liable to him for all or part of the
plaintiff’s claim against him.” Utah R. Civ. P. 14(a). Thus, “[a]
third-party claim may be asserted under Rule 14(a)[ ] only when
the third party’s liability is in some way dependent on the
outcome of the main claim or when the third party is secondarily
liable to the defending party.” 6 Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 1446, at 413–15 (3d ed. 2018).
“The secondary or derivative liability notion is central,” and thus
a third-party complaint is the proper means for asserting claims
against parties not named in the original complaint on such
rationales as “indemnity, subrogation, [or] contribution.” Id. at
415–21. “The crucial characteristic of a Rule 14 claim is that [the]
defendant is attempting to transfer to the third-party defendant
the liability asserted against defendant by the original plaintiff.”
Id. at 431–32.
¶8 Sweazey was attempting no such thing. He was asserting
ownership of the mobile home. As against Oyler, Southard, and
Berry, he did not claim that any liability imposed on him by
Windsor should be passed on to them. Instead, he asserted
20170983-CA 3 2019 UT App 44
Windsor Mobile Estates v. Sweazey
independent claims against them—claims that were not
dependent on any liability he might have to Windsor. And of
course Windsor asserted no such claims against Sweazey, having
not even named him in its complaint.
¶9 If a defendant wishes to bring a claim against the original
plaintiff, as Sweazey did here, then the defendant must file a
counterclaim under rule 13, not a third-party complaint. See
Utah R. Civ. P. 13. See also 6 Wright & Miller, Federal Practice
& Procedure § 1446, at 443 (“[T]he technically proper method for
asserting a claim against someone who already is a party is to
use the counterclaim or crossclaim provisions of Rule 13.”).
Because Sweazey intervened as a defendant and did not attempt
to bring in a third-party who would be liable to him if and only
if he was liable to Windsor, he should have filed a counterclaim
under rule 13 instead of filing a third-party complaint. See Utah
R. Civ. P. 13. Southard, Oyler, and Berry could then have been
named as additional parties to the counterclaim. See Utah R. Civ.
P. 13(f). See also 6 Wright & Miller, Federal Practice & Procedure
§ 1446, at 443 (explaining that “when defendant’s claim is
against the original plaintiff and a nonparty,” the proper
procedure is to file the counterclaim and “move under Rule
13([f]) to bring in the third person as an additional party to the”
counterclaim).
¶10 Be all of that as it may, in August 2014, and again in June
2015, instead of seeking an evidentiary hearing, Sweazey filed
motions for partial summary judgment. The court denied the
first motion and never reached the second, as Sweazey again
failed to file a request to submit. Many other motions were filed
by all parties to the lawsuit between February 2014 and October
2016. A recitation of the long and convoluted history of this case,
including the many filings the parties submitted during this
time, is unnecessary. Suffice it to say that while counsel for both
Windsor and Sweazey were able to file numerous motions,
including those attempting to disqualify each other’s counsel, no
20170983-CA 4 2019 UT App 44
Windsor Mobile Estates v. Sweazey
party ever managed to properly move the court under the rule
for an evidentiary hearing and follow the motion up with a
request that it be submitted for decision. Ultimately, according to
the district court, the case did not move along efficiently as the
parties were contentious, uncivil, and failed to follow the rules of
civil procedure. The district court later noted that no party
“ha[d] behaved properly nor diligently nor professionally” and
that “[t]his matter could have and should have been easily
resolved years ago, whether by mediation or proper legal
procedures.”
¶11 Between October 2016 and May 2017, nothing significant
was accomplished by any party. In June 2017, both Windsor and
Berry moved the court, pursuant to rule 41 of the Utah Rules of
Civil Procedure, to dismiss Sweazey’s third-party complaint for
failure to prosecute. Having determined that the five factors
established by case law for analyzing rule 41 motions had been
satisfied, the court granted the motion. See PDC Consulting, Inc.
v. Porter, 2008 UT App 372, ¶ 6, 196 P.3d 626 (discussing the
factors appellate courts consider when analyzing whether a
dismissal of a case for failure to prosecute was appropriate:
“(1) the conduct of both parties; (2) the opportunity each party
has had to move the case forward; (3) what each party has done
to move the case forward; (4) the amount of difficulty or
prejudice that may have been caused to the other side; and
(5) most important, whether injustice may result from the
dismissal”) (quotation simplified). Sweazey then moved to alter
or amend the district court’s order under rule 59 of the Utah
Rules of Civil Procedure, which motion the court denied.
¶12 Despite dismissing Sweazey’s so-called third-party
complaint, the court granted Sweazey possession of the mobile
home and permitted him to remove it from Windsor’s lot. The
court allowed this because Berry had “filed no claims and [was]
entitled to no relief” and because Windsor and Berry “indicated
Sweazey could have the mobile home and take it away.”
20170983-CA 5 2019 UT App 44
Windsor Mobile Estates v. Sweazey
¶13 Sweazey raises four issues on appeal. First, despite having
ultimately obtained possession of the mobile home, he contends
that the district court’s initial order “freezing” the mobile home
until the court could determine its ownership is void because the
court lacked jurisdiction. 1 Second, Sweazey argues that the court
erred in denying his summary judgment motion because there
was no genuine dispute as to any material fact. Third, Sweazey
challenges the district court’s grant of Appellees’ rule 41 motions
to dismiss for failure to prosecute. Finally, Sweazey contends
that the district court erred in denying his rule 59 motion to alter
or amend.
¶14 We decline to address these arguments on the merits, and
thus forgo our usual recitation of the applicable standards of
review, as Sweazey has failed to adequately brief the issues and
thus “has not met [his] burden of persuasion on appeal.” See Salt
Lake County v. Butler, Crockett & Walsh Dev. Corp., 2013 UT App
30, ¶ 37 n.5, 297 P.3d 38. The Utah Rules of Appellate Procedure
are “easy to understand” and clearly specify how parties are to
prepare their briefs. State v. Green, 2004 UT 76, ¶ 11, 99 P.3d 820.
Parties who fail to follow these rules run the risk of appellate
courts “declin[ing] to reach the merits of an issue” because their
briefing “is so lacking as to shift the burden of research and
argument to the reviewing court.” P.H. v. Sandy City, 2012 UT
App 210, ¶ 3, 283 P.3d 1079 (per curiam) (quotation simplified).
Accord State v. Thomas, 961 P.2d 299, 304–05 (Utah 1998).
¶15 Sweazey failed to comply with the provisions of rule 24 of
the Utah Rules of Appellate Procedure. Specifically, Sweazey’s
briefing fails to present his legal arguments “with reasoned
analysis supported by citations to legal authority.” Utah R. App.
P. 24(a)(8). Instead, Sweazey has presented conclusory
1. It is unclear whether he is referring to subject matter, in rem,
or personal jurisdiction.
20170983-CA 6 2019 UT App 44
Windsor Mobile Estates v. Sweazey
statements and demanded relief without providing a single legal
citation in support of his arguments as to why we should reverse
the district court’s rulings. In fact, in the entirety of Sweazey’s
briefing, he cites only seven cases, five of which appear on a
single page and deal only with the applicable standards of
review. 2 Sweazey’s remaining two citations are in his reply
brief—lifted wholesale from Berry’s brief—and provide no
support for Sweazey’s arguments. As our Supreme Court has
noted, appellate courts are “not a depository in which the
2. Even in this Sweazey states the incorrect standard of review
for a district court’s ruling on a rule 41 motion for failure to
prosecute. Sweazey cites Glew v. Ohio Savings Bank, 2007 UT 56,
181 P.3d 791, for the proposition that appellate review of rule 41
motions involves “mixed question[s] of law and fact,” id. ¶ 19,
where appellate courts review questions of law for correctness
and set aside a district court’s factual findings only if they are
clearly erroneous, id. ¶ 22. However, Glew does not address
failure to prosecute. Rather, it discusses a district court’s
application of the equitable doctrines of estoppel and apparent
authority. See id. ¶¶ 18–19. Our case law is clear that the proper
standard of review for a district court’s ruling on a claimed
failure to prosecute is for “an abuse of discretion and a
likelihood that an injustice occurred.” PDC Consulting, Inc. v.
Porter, 2008 UT App 372, ¶ 5, 196 P.3d 626 (quotation simplified).
See also Department of Social Services v. Romero, 609 P.2d 1323, 1324
(Utah 1980) (“The general rule is that whether an action should
be dismissed for failure to diligently prosecute it rests largely
within the discretion of the trial court; and [appellate courts] will
not interfere therewith unless it clearly appears that [it] has
abused [its] discretion and that there is a likelihood that an
injustice has been wrought.”); Hartford Leasing Corp. v. State, 888
P.2d 694, 697 (Utah Ct. App. 1994) (same); Charlie Brown Constr.
Co. v. Leisure Sports, Inc., 740 P.2d 1368, 1370 (Utah Ct. App. 1987)
(same).
20170983-CA 7 2019 UT App 44
Windsor Mobile Estates v. Sweazey
appealing party may dump the burden of argument and
research,” which is exactly what Sweazey has done here. Green,
2004 UT 76, ¶ 13 (quotation simplified).
¶16 “It is well established that a reviewing court will not
address arguments that are not adequately briefed.” Thomas, 961
P.2d at 304. Thus, we decline to address Sweazey’s arguments on
the merits as he has wholly failed to carry his burden of
persuasion on appeal. See Butler, 2013 UT App 30, ¶ 37 n.5.
¶17 Affirmed.
20170983-CA 8 2019 UT App 44