Wohnoutka v. Kelley

2014 UT App 154
_________________________________________________________
THE UTAH COURT OF APPEALS
ROBERT WOHNOUTKA,
Plaintiff and Appellant,
v.
SONIA KELLEY,
Defendant and Appellee.
Memorandum Decision
No. 20130248-CA
Filed July 3, 2014
Second District Court, Farmington Department
The Honorable John R. Morris
No. 080700432
P. Corper James, Attorney for Appellant
Sara Pfrommer and Kathleen McConkie, Attorneys
for Appellee
JUDGE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE
RUSSELL W. BENCH concurred.1
PEARCE, Judge:
¶1 Robert Wohnoutka appeals from the district court’s
dismissal of the lawsuit he filed against his former domestic
partner’s sister, Sonia Kelley. Wohnoutka claimed that Kelley
had orally agreed to repay half of the money Wohnoutka paid
from 2001 to 2007 toward the care and support of Kelley’s
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).

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20130248-CA 2 2014 UT App 154
mother. On the basis of the alleged loan, he argued that Kelley
owed him more than $108,000. To demonstrate that an oral
contract existed, Wohnoutka introduced evidence of the parties’
prior courses of dealing, correspondence between the parties,
and Kelley’s tax returns in which Kelley had claimed her mother
as a dependent.2 After a bench trial, the district court found that
the terms of the purported offer were unclear and that there was
insufficient evidence of acceptance. Consequently, the court
ruled that Wohnoutka had not carried his burden of proving the
existence of a contract, and it dismissed the case. Wohnoutka
appeals. In the absence of a written memorialization of the
district court’s reasoning, we review the court’s oral findings
and ruling.
¶2 On appeal, Wohnoutka first contends that Kelley should
be estopped from arguing that no contract existed. Specifically,
he asserts that by claiming her mother as a dependent on her tax
returns, Kelley took the legal position that she was providing
more than half of her mother’s support.3 Wohnoutka argues that,
under the doctrine of quasi-estoppel, Kelley should not be
allowed to claim that she did not borrow funds from Wohnoutka
to pay for her mother’s care and support. ‚‘The doctrine of
quasi-estoppel precludes a party from asserting, to another’s
disadvantage, a right inconsistent with a position [it has]
2. Wohnoutka had prepared and filed Kelley’s tax returns on her
behalf for the relevant years.
3. The Internal Revenue Service publishes a guide to exemptions
and deductions that provides, ‚Generally, you must provide
more than half of a person’s total support during the calendar
year to meet the support test.‛ Internal Revenue Service, U.S.
Dep’t of the Treasury, Pub. No. 501, Exemptions, Standard
Deduction, and Filing Information 11 (2001). The guide further
provides, ‚The year you provide the support is the year you pay
for it, even if you do so with borrowed money that you repay in
a later year.‛ Id. at 13.

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20130248-CA 3 2014 UT App 154
previously taken.’‛ In re R.B.F.S., 2012 UT App 132, ¶ 31, 278
P.3d 143 (alteration in original) (quoting Bott v. J.F. Shea Co., 299
F.3d 508, 512 (5th Cir. 2002)). Wohnoutka’s quasi-estoppel
contention is unpreserved.
¶3 ‚The preservation requirement is based on the premise
that, ‘in the interest of orderly procedure, the trial court ought to
be given an opportunity to address a claimed error and, if
appropriate, correct it.’‛ Brady v. Park, 2013 UT App 97, ¶ 38, 302
P.3d 1220 (quoting State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346).
Furthermore, the preservation requirement ‚prevents a party
from avoiding [an] issue at trial for strategic reasons only to raise
the issue on appeal if the strategy fails.‛ Tschaggeny v. Milbank
Ins. Co., 2007 UT 37, ¶ 20, 163 P.3d 615. Consequently, ‚*i+ssues
that are not raised at trial are usually deemed waived.‛ 438 Main
St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. The
preservation requirement thus ensures that both the issue on
appeal and the evidence necessary to decide it have been
presented to the trial court, which ‚having personally observed
the quality of the evidence, the tenor of the proceedings, and the
demeanor of the parties, is in a better position to perceive the
subtleties at issue than [an appellate court] looking only at the
cold record.‛ See State v. Calliham, 2002 UT 86, ¶ 23, 55 P.3d 573;
see also Doug Jessop Constr., Inc. v. Anderton, 2008 UT App 348,
¶ 15, 195 P.3d 493 (‚A trial judge is in the best position to derive
a sense of the proceeding as a whole, something an appellate
court cannot hope to garner from a cold record.‛ (ellipsis,
citation, and internal quotation marks omitted)).
¶4 To this end, an appellant’s brief must contain ‚citation to
the record showing that the issue was preserved in the trial
court‛ or ‚a statement of grounds for seeking review of an issue
not preserved in the trial court.‛ Utah R. App. P. 24(a)(5)
(emphases added). An issue is preserved for appeal only if it was
‚‘presented to the trial court in such a way that the trial court
[had] an opportunity to rule on *it+.’‛ 438 Main St., 2004 UT 72,
¶ 51 (quoting Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT
48, ¶ 14, 48 P.3d 968). Therefore, a statement of preservation is

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generally inadequate when it cites only the facts underlying the
claim and does not cite a part of the record showing that the
claim itself was presented to the trial court. See Utah R. App. P.
24(a)(5)(A).
¶5 On appeal, Wohnoutka cites several points in the record
where he presented evidence that ‚Kelley knew Wohnoutka was
preparing her tax returns,‛ ‚Kelley knew she claimed [her
mother] as a dependent on her tax returns,‛ and ‚Kelley knew
she was not paying any portion of *her mother’s+ support and
knew that Wohnoutka was paying for that support.‛ But our
examination of the record Wohnoutka cites reveals that
Wohnoutka introduced all of that evidence to support his claim
that an oral contract existed. Wohnoutka does not identify any
point at which he presented the district court with the argument
he raises on appeal—that Kelley’s implicit averments in her tax
returns legally preclude her from asserting that no contract
existed. He has therefore failed to provide ‚citation to the record
showing that the issue was preserved in the trial court.‛ Utah R.
App. P. 24(a)(5)(A).
¶6 Furthermore, it does not appear that Wohnoutka could
have provided those record citations. An appellate court should
not be asked to scour the record to save an appeal by remedying
the deficiencies of an appellant’s brief. Cf. Vandermeide v. Young,
2013 UT App 31, ¶ 33, 296 P.3d 787. We have nonetheless
reviewed the record designated on appeal and have found no
indication that Wohnoutka ever raised a quasi-estoppel
argument in the district court. Indeed, it appears that
Wohnoutka did not object when Kelley presented the exact
defense he now claims she should be estopped from asserting.
¶7 In his opposition to Kelley’s motion for judgment on the
pleadings, Wohnoutka explained that ‚*t+he fact that Kelley
claimed her mother as a dependent on her tax return . . . is
evidence that she understood she agreed to pay Wohnoutka
back.‛ At trial, Wohnoutka consistently argued that the tax
returns were evidence that an oral loan agreement existed. He

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did not argue that the tax returns had the independent legal
effect of estopping her from denying the existence of the
agreement. Wohnoutka’s closing argument did not mention
quasi-estoppel by name or effect; rather, he discussed the
evidence he had presented and argued that ‚*a+ll of the evidence
before the Court indicates that there was an agreement to pay
the support.‛ He then asked the district court to rule, based on
‚the evidence that’s been presented today*,+ that . . . there is an
oral contract, and that the oral contract was agreed upon, and
that the defendant failed to pay.‛ Before issuing its oral ruling,
the district court recounted the eight categories of evidence
Wohnoutka had presented and concluded that Wohnoutka had
not carried his burden of showing that a contract existed.
Significantly, the district court did not make any findings
regarding quasi-estoppel or the legal effect of the tax returns,
and Wohnoutka did not object to the sufficiency of the district
court’s findings. Additionally, the transcript indices show that
neither ‚quasi-estoppel‛ nor any variant of the word ‚estoppel‛
was spoken at trial. The prefix ‚quasi-‚ is also absent from the
indices.
¶8 In sum, it appears Wohnoutka never argued at trial that
Kelley’s tax returns estopped her from denying the existence of
an oral contract. Rather, he claimed that the content of the tax
returns evidenced an oral agreement to accept and repay a loan.
On appeal, Wohnoutka takes the evidence introduced in support
of his preserved but unsuccessful contract claim and reweaves
the constituent evidentiary threads into a new legal theory.
Because Wohnoutka did not present this new legal theory of
quasi-estoppel to the district court in such a way that the district
court had an opportunity to rule on it, the issue is unpreserved
for appeal. 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99
P.3d 801 (holding that preservation of a legal claim requires that
the claim itself be presented to the trial court).
¶9 Wohnoutka next contends that ‚the trial court erred in
finding that there was no implied in law agreement under which
Kelley would repay Wohnoutka for half of the support.‛ The

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district court made no such finding, likely because Wohnoutka
did not present a contract implied in law argument to the district
court. This contention is therefore also unpreserved. See 438
Main St., 2004 UT 72, ¶ 51.
¶10 To demonstrate preservation of this issue, Wohnoutka
offers record citations showing that he introduced evidence that
‚Kelley knew Wohnoutka paid for *her mother’s+ support‛;
‚Kelley claimed *her mother+ as a dependent obligating her to
pay half of her support‛; and ‚Kelley received the benefit of
claiming [her mother] as a dependent.‛ But he does not identify
any point at which he argued to the district court that this gave
rise to a contract implied in law. See Utah R. App. P. 24(a)(5)
(requiring an appellant claiming preservation to provide
‚citation to the record showing that the issue was preserved in
the trial court‛).
¶11 Although we are under no obligation to do so, see supra
¶ 6, we have engaged in an ultimately fruitless attempt to locate
such an argument in the record before us. Wohnoutka does not
appear to have argued below that a contract implied in law
existed. His complaint does not contain the phrase ‚implied in
law.‛ The section of his trial brief titled ‚Issues to be Tried‛
enumerates only two claims:
1. Whether or not there existed an oral contract
between the parties, whether all of the elements of
contract existed, and the nature of the contract.
2. Whether or not Defendant’s transfer of her home
to her son for $10.00 constituted a fraudulent
transfer.
At trial, neither Wohnoutka nor Kelley discussed contracts
implied in law. The word ‚impliedly‛ appears only a single time
in the transcript indices, during Kelley’s closing argument, and
the word ‚implied‛ does not appear at all. As noted above,
Wohnoutka’s closing argument centered on the alleged oral
contract and specifically asked the court to find that an oral

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contract existed. Wohnoutka did not object to the sufficiency of
the district court’s findings, which never mentioned a contract
implied in law and addressed only whether a contract had been
formed.
¶12 We note, however, that Wohnoutka’s amended complaint
alleged a cause of action for unjust enrichment. A cause of action
for unjust enrichment is generally equivalent to a
contract-implied-in-law claim. See Davies v. Olson, 746 P.2d 264,
268–69 (Utah Ct. App. 1987) (decrying the lack of ‚analytical
precision‛ in quantum meruit rulings and clarifying that a
‚[c]ontract implied in law [is] also known as quasi-contract or
unjust enrichment‛). Wohnoutka’s unjust enrichment claim did
not survive to trial. The district court granted Kelley’s motion for
summary judgment on the unjust enrichment cause of action,
and Wohnoutka does not appeal that decision.
¶13 We see nothing in the record before us indicating that
Wohnoutka presented the district court with the
contract-implied-in-law argument he advances on appeal. We
therefore conclude that this contention is unpreserved and not
properly before us.
¶14 Affirmed.