Capital One Bank v. Roberts

1. The Robertses appeal multiple issues; however, the majority of
issues apply only to Kathy Roberts because Jimmy Roberts’s status
as a party arose solely from a joint counterclaim he filed with
Kathy Roberts that was dismissed before trial for failing to pay a
filing fee.
2014 UT App 120
_________________________________________________________
THE UTAH COURT OF APPEALS
CAPITAL ONE BANK (USA), N.A.,
Plaintiff, Counterclaim Defendant, and Appellee,
v.
KATHY ROBERTS AND JIMMY ROBERTS,
Defendant, Counterclaim Plaintiffs, and Appellants.
Per Curiam Decision
No. 20130153-CA
Filed May 30, 2014
Second District Court, Ogden Department
The Honorable W. Brent West
No. 120901513
Kathy Roberts and Jimmy Roberts, Appellants Pro Se
Christopher J. Rogers, Attorney for Appellee
Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and
JOHN A. PEARCE.
PER CURIAM:
¶1 Kathy and Jimmy Roberts appeal from the judgment entered
in favor of Capital One Bank (USA), N.A. We affirm.1
¶2 The Robertses raise numerous issues that cannot be
reviewed by this court due to the Robertses’ failure to provide this
court with an official transcript of either the pre-trial conference or

Capital One Bank (USA), N.A. v. Roberts
2. In lieu of requesting an official transcript of the proceedings, the
Robertses prepared their own transcript of the proceedings. Capital
One moved to deny the Robertses’ submission of those transcripts
for inclusion in the record because the Robertses had not filed a
financial declaration to demonstrate that they were unable to afford
an official transcript. See Utah R. App. P. 11(g) (stating that a party
to an appeal may prepare a statement of evidence if there was no
report of the evidence at trial, “or if the transcript is unavailable, or
if the appellant is impecunious and unable to afford a transcript”).
The district court granted the motion. Despite being put on notice
that their self-prepared transcript could only be used if they could
demonstrate that they could not afford to pay for a transcript, the
Robertses never submitted the necessary documentation to allow
the district court to make a finding on indigence.
20130153-CA 2 2014 UT App 120
the trial. “As an appellate court, our ‘power of review is strictly2
limited to the record presented on appeal.’ . . . ‘Parties claiming
error below and seeking appellate review have the duty and
responsibility to support their allegations with an adequate
record.’” Gorostieta v. Parkinson, 2000 UT 99, ¶ 16, 17 P.3d 1110
(citations omitted); see also State v. Wulffenstein, 657 P.2d 289, 293
(Utah 1982) (stating that absent an adequate record on appeal an
appellant’s “assignment of error stands as a unilateral allegation
which the reviewing court has no power to determine”); Call v. City
of West Jordan, 788 P.2d 1049, 1052 (Utah Ct. App. 1990) (stating that
“the appellant has the burden of providing the reviewing court
with an adequate record on appeal to prove his allegations”).
Accordingly, if an appellant seeks review of rulings, findings, and
conclusions made during the course of trial or as a result of a trial,
the appellant must include a transcript of the proceeding in the
record on appeal. In the absence of the transcript on appeal, the
reviewing court presumes the regularity of the proceedings below.
See State v. Jones, 657 P.2d 1263, 1267 (Utah 1982).
¶3 Because the Robertses did not provide a copy of the pre-trial
or trial transcripts, we presume the regularity of those proceedings.
As a result, this court cannot review the claims of error relating to

Capital One Bank (USA), N.A. v. Roberts
3. The Robertses further acknowledge in their brief that the postal
service automatically forwarded any mail sent to their home
address to their P.O. Box.
20130153-CA 3 2014 UT App 120
testimony and evidence elicited during trial. This includes the
issues relating to the use of evidence obtained from a subpoena,
use of a deposition transcript during trial, challenges to the
examination of Kathy Roberts, and all issues relating to the
sufficiency of the evidence.
¶4 Further, we cannot review the Robertses’ claims that they
were not timely receiving pleadings, notices, and orders because
they were being sent to their home address, not their P.O. Box, by
both Capital One and the district court. The Robertses assert that
these claims were preserved at the beginning of the trial. However,
the Robertses have failed to provide us with a transcript of that
proceeding. Accordingly, the record on appeal does not
demonstrate that the issues were preserved. However, even if the
issues had been preserved, the Robertses would not be entitled to
relief because they never put Capital One or the district court on
notice of their preferred mailing address, nor did they complain
about the mailing address until trial. See State v. Maese, 2010 UT
App 106, ¶ 13, 236 P.3d 155 (“[I]n order to preserve an issue for
appeal 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.”
(citation and internal quotation marks omitted)).3
¶5 The Robertses contend that the district court erred in
dismissing their counterclaim and that the district court had a
conflict of interest because it originally allowed the Robertses to file
a counterclaim then later dismissed it due to their failure to pay the
appropriate fee. However, these issues too are unpreserved. There
is no pleading in the record objecting to the dismissal of the
counterclaim. If the Robertses ever objected to the dismissal or
raised the conflict of interest issue, it was at trial, and they have not
supplied this court with a transcript of the trial.

Capital One Bank (USA), N.A. v. Roberts
20130153-CA 4 2014 UT App 120
¶6 Finally, the Robertses argue that the district court erred in
denying their request for a waiver of bond and denying their
request to use a self-prepared transcript instead of obtaining an
official transcript. However, both of these arguments are
inadequately briefed because the Robertses include no analysis of
the issues presented and fail to address the district court’s
reasoning in denying these requests. See Smith v. Smith, 1999 UT
App 370, ¶ 8, 995 P.2d 14 (“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.”). Accordingly, they have
failed to carry their burden of demonstrating that the district court
erred on this point.
¶7 Affirmed.