Deutsche Bank National Trust Company v. York

2016 UT App 216

THE UTAH COURT OF APPEALS

DEUTSCHE BANK NATIONAL TRUST COMPANY,
Appellee,
v.
WILLIAM M. YORK,
Appellant.

Memorandum Decision
No. 20141083-CA
Filed October 27, 2016

Fourth District Court, Fillmore Department
The Honorable M. James Brady
No. 120700011

Marshall M. Thompson, Attorney for Appellant
Brad G. DeHaan and Nadia D. Adams, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Memorandum Decision, in
which JUDGES STEPHEN L. ROTH and KATE A. TOOMEY concurred.

POHLMAN, Judge:

¶1 Defendant William M. York appeals the trial court’s
judgment for unlawful detainer in favor of Deutsche Bank
National Trust Company, as Trustee for Ameriquest Mortgage
Securities Inc., Asset-Backed Pass-Through Certificates, Series
2004-R8 (Deutsche Bank). York asserts that, during the
proceedings below, he should have been allowed to raise
affirmative defenses challenging Deutsche Bank’s title to the
subject property and establishing irregularities in the foreclosure
process. York also asserts that the trial court erred by failing to
meaningfully consider his request for sanctions under rule 26 of
the Utah Rules of Civil Procedure. We affirm.
Deutsche Bank National Trust Company v. York

¶2 In 2004 York obtained a loan from Ameriquest Mortgage
Company, and he executed a deed of trust on certain real
property (the Trust Deed) as security for that loan. Thereafter,
York was late in making his payments and deemed to be in
default. As a result, the subject property was sold at a trustee’s
sale, at which Deutsche Bank was the successful bidder. When
York failed to vacate the property after being served with a
notice to quit, Deutsche Bank sued York for unlawful detainer in
the action giving rise to this appeal.

¶3 York responded by suing Ameriquest, Deutsche Bank,
and several other entities in federal court, alleging ‚predatory
lending practices,‛ ‚criminal acts,‛ and violations of ‚his
constitutional rights to his property and due process,‛ based on
‚schemes and patterns of fraud related‛ to his mortgage and the
foreclosure process. The federal court dismissed York’s claims
against Deutsche Bank with prejudice, concluding that York
failed to allege any viable claims against Deutsche Bank and that
allowing York an opportunity to amend his complaint would be
futile.

¶4 In the meantime, acting pro se, York responded in the
state court unlawful detainer action. York filed a ‚Counter
Claim‛—‚Civil Complaint‛ raising the same allegations and
claims he had filed in federal court. York also filed an answer,
which twice referenced his counterclaims, stating that specific
allegations were ‚denie*d+ . . . (see Defendant’s counter claim in
this action).‛ In addition, York pleaded a single affirmative
defense, asserting that ‚Plaintiff fails to allege a cause of action
for which relief may be granted.‛

¶5 The trial court dismissed York’s counterclaims against
Deutsche Bank without reaching the merits, concluding that
York’s claims were ‚identical‛ to the claims brought in federal
court; failed to meet the minimum pleading standards of Utah
Rule of Civil Procedure 8(a); sought civil damages based upon

20141083-CA 2 2016 UT App 216
Deutsche Bank National Trust Company v. York

criminal statutes that do not provide a private right of action;
and, as they relate to fraud, failed to meet the heightened
pleading requirements of Utah Rule of Civil Procedure 9(b). The
trial court later dismissed York’s counterclaims as to the
remaining defendants. York submitted an amended
counterclaim, but it was stricken because, among other things,
York did not obtain leave of court and the pleading contained no
new factual allegations or causes of action not addressed by the
federal court.

¶6 Despite the generally expedited nature of unlawful
detainer actions, eight months passed between the time
Deutsche Bank filed suit and the date set for an evidentiary
hearing on the complaint. Deutsche Bank attributed the delay to
the federal court proceedings, having elected not to ‚move
forward with [the state] proceeding because if there would have
been any merit*+ found to Mr. York’s complaint in *federal]
district court, [Deutsche Bank] would have had to go back and
redo the foreclosure process.‛

¶7 But, on the date set for hearing in November 2012, the
trial court first addressed York’s motion to postpone the hearing.
York asserted that he needed more time to complete discovery
and that Deutsche Bank had neither served initial disclosures
within the fourteen-day period prescribed in rule 26 of the Utah
Rules of Civil Procedure nor timely provided him with the
documents it intended to use at the hearing. After questioning
both parties, the trial court noted that ‚despite *Deutsche Bank’s+
best efforts‛ to timely provide all documents seven days before
the hearing, York may not have had ‚an opportunity to review
those and be prepared for today.‛ Deutsche Bank then offered to
move forward solely with the documents attached to its
complaint. But York sought to go ‚beyond‛ those documents,
contending that ‚*b+ecause of the lengthy counter-complaint and
all the issues of fraud and deceit and some criminal action, [he]

20141083-CA 3 2016 UT App 216
Deutsche Bank National Trust Company v. York

need[ed] to have more time to discover what these people ha[d]
done.‛

¶8 The trial court ruled that the documents attached to
Deutsche Bank’s complaint constituted its initial disclosures;
York had had ample time to conduct discovery but ‚*n+o efforts
ha*d+ been made‛; and while due process applied, the rules of
civil procedure on which York relied ‚do not necessarily‛
govern eviction actions, which are ‚typically expedited.‛ The
court then presented Deutsche Bank with a choice: proceed with
the hearing based solely on the documents attached to the
complaint or postpone the hearing three weeks. Deutsche Bank
elected to postpone the hearing. When asked if there was any
reason he could not have the hearing on the subsequent date,
York responded, ‚I don’t think I have a problem with that, your
Honor.‛ The trial court then postponed the hearing until mid-
December with instructions that each side provide all documents
to the other within five days.

¶9 The day before the rescheduled hearing, York filed
several motions including a ‚Motion to Vacate Order Striking
*York’s+ Amended Counter-Claim,‛ a ‚Motion to Vacate Order
of Dismissal of *York’s+ Counter Claim-Civil Complaint Against
the Remainder of the Counterclaim Complaint Parties,‛ and a
‚Rule 26, 37, 41 Motion.‛ The last motion asserted, among other
things, that Deutsche Bank’s ‚claim of ownership‛ was false.

¶10 Before proceeding with the rescheduled hearing, the trial
court first noted that it would need to address York’s motions,
but only after Deutsche Bank had an opportunity to respond.
The court ruled that the motions were ‚untimely in terms of
being presented for a ruling today‛ and would be considered
later, and that the court would move forward with that day’s
evidentiary hearing on the complaint.

¶11 York then brought up a concern he had raised in the prior
hearing and reiterated in his ‚Rule 26, 37, 41 Motion‛—that

20141083-CA 4 2016 UT App 216
Deutsche Bank National Trust Company v. York

Deutsche Bank had not timely provided initial disclosures as
rule 26 of the Utah Rules of Civil Procedure requires. York did
not dispute that he had received those disclosures after the last
hearing, but nevertheless claimed that Deutsche Bank should not
be allowed to use any information not supplied within the
fourteen-day time limit.

¶12 In response, the trial court initially misspoke, commenting
that it had not addressed the issue previously. After being
reminded of its prior ruling, however, the court reiterated that
the rules of civil procedure on which York relied did not
necessarily apply in expedited proceedings for unlawful
detainer. In addition, the trial court noted that York had not
timely brought the issue to the court’s attention, because he had
not filed a motion to compel or for sanctions during the nine
months the case had been pending. The trial court also observed
that, prior to the hearing, York had at least two weeks ‚to receive
information adequate to prepare himself for most eviction
actions.‛

¶13 In determining whether the case should proceed ‚without
certain evidence‛ or whether York should be given more time to
prepare, the court questioned York as to any efforts he had made
after receiving Deutsche Bank’s documents. The court concluded
that York had spent the prior weeks focusing on the issue of
property ownership and whether Deutsche Bank had valid title
thereto. York had not, however, undertaken efforts related to the
‚narrow‛ issues of that day’s hearing. The trial court then ruled
that the hearing would proceed without the exclusion of
Deutsche Bank’s witnesses or documents.

¶14 Throughout its discussion, the trial court consistently
reminded York that the underlying validity of Deutsche Bank’s
title and any improprieties or irregularities in the foreclosure
process were ‚immaterial‛ to the matters at issue on that day.
While those issues had been alleged in York’s counterclaims, the

20141083-CA 5 2016 UT App 216
Deutsche Bank National Trust Company v. York

counterclaims had been dismissed; and if York sought to raise
those issues in ‚some other way,‛ he had ‚those rights,‛ but
those issues were outside the scope of the December hearing.

¶15 During the hearing, the trial court allowed York some
leeway to cross-examine Deutsche Bank’s witnesses about, for
example, the documents presented as well as the purpose and
effect of the trustee’s sale. But the trial court sometimes limited
York’s questioning, reminding him that the court was not
addressing the validity of Deutsche Bank’s title. At no time,
however, did York specify what evidence he would have
presented or which questions he would have asked had he not
been constrained during his cross-examinations of Deutsche
Bank’s witnesses.

¶16 After Deutsche Bank presented its case, the trial court
asked if York had any motions or wished to call witnesses. York
responded that he had ‚*o+nly the general objection that . . . none
of these documents should have been allowed.‛ York then asked
to admit two documents ‚identifying what the banks did
wrong‛ and ‚the problem with fraudulent mortgage
documents,‛ and those documents were admitted. York did not
attempt to introduce any other evidence at the hearing.

¶17 The trial court indicated that it would consider York’s
motions before ruling on the evidence that had been presented.
The trial court later denied York’s motions and issued findings
of fact and conclusions of law, determining that York had
unlawfully detained the property. The trial court issued its final
judgment in October 2014, awarding damages to Deutsche Bank
and requiring York to vacate the property. York then filed a
‚Motion to Vacate the Court*’+s Findings and Orders and to
Grant Summary Judgment,‛ again asserting flaws in Deutsche
Bank’s title to the subject property and the underlying
foreclosure process. York’s motion was denied.

20141083-CA 6 2016 UT App 216
Deutsche Bank National Trust Company v. York

¶18 On appeal, York asserts that the trial court improperly
precluded him from raising affirmative defenses challenging
Deutsche Bank’s title to the property and establishing
irregularities in the foreclosure process. York also asserts that the
trial court erred by failing to meaningfully consider his request
for sanctions under rule 26 of the Utah Rules of Civil Procedure. 1
York does not challenge the dismissal of his counterclaims or the
denials of his motions.

¶19 Turning to whether York was improperly barred from
asserting affirmative defenses, York raises two concerns: (1) that
the trial court prohibited him from fully cross-examining
Deutsche Bank’s witnesses with regard to property ownership,
validity of title, and the foreclosure process, and (2) that he was
prohibited from introducing evidence on those same issues.
Generally, a trial court’s decision to exclude evidence is
reviewed for abuse of discretion, but a decision to exclude
evidence based solely on a legal conclusion is reviewed for
correctness. Utah Dep’t of Transp. v. Walker Dev. P’ship, 2014 UT
App 30, ¶ 11, 320 P.3d 50; see also Lawrence v. MountainStar
Healthcare, 2014 UT App 40, ¶ 17, 320 P.3d 1037 (‚*T+he proper

1. York also suggests that barring a defendant from challenging
property ownership in the context of an unlawful detainer claim
violates article XXII, section 1, of the Utah Constitution. To the
extent York asserts a constitutional violation, we do not address
it. This argument was raised for the first time on appeal, and
York does not allege plain error or exceptional circumstances.
See Jacob v. Bezzant, 2009 UT 37, ¶ 35, 212 P.3d 535 (declining to
address an alleged violation of ‚the Utah Constitution because
the argument was raised for the first time on appeal and there
are no exceptional circumstances that allow us to review it‛). We
note, however, that this claim rests on a defective premise—i.e.,
that York was prohibited from challenging ownership in the
unlawful detainer action. Infra ¶¶ 21–25.

20141083-CA 7 2016 UT App 216
Deutsche Bank National Trust Company v. York

scope of cross-examination is within the sound discretion of the
trial court and should not be disturbed absent a showing of
abuse.‛ (citation and internal quotation marks omitted)); cf. State
v. Ashby, 2015 UT App 169, ¶ 17, 357 P.3d 554 (‚When reviewing
a trial court’s decision to limit cross-examination, we review the
legal rule applied for correctness and the application of the rule
to the facts of the case for an abuse of discretion.‛ (citation and
internal quotation marks omitted)).

¶20 An appellant challenging the exclusion of evidence ‚bears
the burden of showing the harmfulness of the error.‛ Gallegos ex
rel. Rynes v. Dick Simon Trucking, Inc., 2004 UT App 322, ¶ 21, 110
P.3d 710; accord Lawrence, 2014 UT App 40, ¶ 34. Here, the
‚insuperable obstacle to *appellant’s+ contention is that *he+ did
not make any offer of proof as to what evidence would be
adduced, nor the purpose it would serve.‛ See Bradford v. Alvey
& Sons, 621 P.2d 1240, 1243 (Utah 1980). ‚A party may claim
error in a ruling to . . . exclude evidence only if . . . [the] party
informs the court of its substance by an offer of proof, unless the
substance was apparent from the context.‛ Utah R. Evid.
103(a)(2). By making that offer of proof, a party creates the
record necessary for review, enabling an appellate court to
determine if error occurred and if the error was harmful.

¶21 York did not create such a record. Prior to the evidentiary
hearing, York made vague statements that ‚if a foreclosure was
not legally done, that would *a+ffect an eviction proceeding,‛
and that he was ‚trying to find out who is the real party in
interest, who is the owner of this thing.‛ But York did not
describe with any more detail the evidence he intended to
introduce at the hearing. On appeal, York is equally vague. York
argues that ‚a defendant in an unlawful detainer action *may+
assert the affirmative defense that the purported owner does not
actually own the property in question,‛ but York does not
indicate what evidence he was prepared to present in that regard
or when he specifically was barred from presenting it. Indeed,

20141083-CA 8 2016 UT App 216
Deutsche Bank National Trust Company v. York

York asked to admit only two exhibits during the hearing, both
of which were accepted into evidence.

¶22 Nor does York identify any questions he sought to ask but
was precluded from raising during cross-examination, much less
point to follow-up objections and offers of proof bearing on his
alleged affirmative defenses. ‚*T+o preserve this issue on appeal,
appellant had to make an offer of proof on the record as to what
evidence he intended to adduce by his questions or to propound
further questions more explicitly pertinent to the issue.‛ Hill v.
Hartog, 658 P.2d 1206, 1209 (Utah 1983) (citations omitted). Thus
even assuming that the trial court erred in excluding evidence
regarding property ownership, validity of title, and the
foreclosure process, we have no basis for concluding that those
exclusions were harmful. See Lawrence, 2014 UT App 40, ¶¶ 34–
35 (concluding that appellant had failed to show prejudice from
the trial court’s erroneous exclusion of evidence). 2 The record
does not indicate what evidence—if any—York otherwise might
have presented in support of those claims.3

2. We likewise reject York’s argument that prejudice should be
presumed because ‚there is no record to show how strong or
weak the evidence may have been.‛ As noted above, York could
have created the requisite record, and bore the burden of doing
so, but did not and thus failed to preserve the issue for appeal.

3. York, who is represented by counsel on appeal, has not sought
an exception to this rule on the basis that he was acting pro se
during the proceedings below. Even had he made this request,
however, it would not alter the outcome. ‚As 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,‛
but ‚because of his lack of technical knowledge of law and
procedure [a layman acting as his own attorney] should be
accorded every consideration that may reasonably be indulged.‛
(continued<)

20141083-CA 9 2016 UT App 216
Deutsche Bank National Trust Company v. York

¶23 In addition, York erroneously assumes that because the
trial court limited the scope of the evidentiary hearing, York was
barred from addressing property ownership, validity of title,
and the foreclosure process at any time during the proceedings
below. In an unlawful detainer action, a court ‚‘must resolve all
claims relating to possession’‛ whether those claims are raised as
affirmative defenses or as counterclaims. Utah First Fed. Credit
Union v. Dudley, 2012 UT App 164, ¶ 18 n.8, 280 P.3d 462
(quoting Bichler v. DEI Sys., Inc., 2009 UT 63, ¶ 32, 220 P.3d 1203).
Accordingly, ‚in an unlawful detainer action with multiple
claims or counterclaims, a rule 54(b) entry of final judgment
resolving the issue of possession is proper when it includes all
claims and counterclaims that are necessary to determine lawful
possession of the property.‛ Bichler, 2009 UT 63, ¶ 30. Assuming
without deciding that York’s claims related to ‚possession‛ and
thus required resolution prior to final judgment under rule 54(b)
or otherwise, that is precisely what occurred in this case.

¶24 York raised issues of property ownership, validity of title,
and the foreclosure process in his counterclaims and pre-hearing

(<continued)
Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983) (alteration in
original) (citation and internal quotation marks omitted). Here,
every such consideration has been afforded. During the
evidentiary hearing, for example, York was allowed to admit the
two exhibits even though he offered them for the first time
during his closing argument. Now on appeal, and represented
by counsel, York still does not identify any evidence he was
prepared to present but precluded from offering at the hearing,
nor does he identify any questions he sought to ask during cross-
examination or the evidence he sought to elicit via that
questioning. Thus, no amount of reasonable indulgence would
support a conclusion of prejudicial error with regard to York’s
evidentiary challenges.

20141083-CA 10 2016 UT App 216
Deutsche Bank National Trust Company v. York

motion, which were dismissed or denied before final judgment
was entered. And when York filed a post-judgment motion
again asserting Deutsche Bank had failed to prove, among other
things, the validity of its title to the subject property, his motion
was considered and dismissed.

¶25 York does not challenge any of these instances in which
ownership, validity of title, or the foreclosure process were
raised and dismissed during the proceedings below. We
therefore cannot fault the trial court for refusing to take evidence
at the hearing on issues other than Deutsche Bank’s prima facie
case of unlawful detainer.4 Cf. Maxfield v. Herbert, 2012 UT 44,
¶ 21 & n.6, 284 P.3d 647 (recognizing courts’ broad discretion to
order and structure election hearings based on general principles
of civil procedure, and concluding that a court ‚*s+urely‛ would
‚not *be+ required to accept and consider evidence‛ on a matter
shown to be irrelevant due to the prior resolution of a defensive
motion). Accordingly, we reject York’s claim that he was
erroneously barred from raising affirmative defenses to the
unlawful detainer claim.5

4. As the trial court indicated, York remained free to raise his
issues at the appropriate time, in an appropriate way: ‚If you
want to raise that question *of ownership+, you’ve filed your
motion. I’ll rule on that at another time. If you want to raise it
some other way, you have those rights, but today I’m only
dealing with who has the right to possess the property . . . .‛

5. Given our disposition of this issue, we need not decide
whether York could have raised his affirmative defenses, despite
not pleading them in his answer other than by reference to his
counterclaims, which were dismissed. See Utah Dep’t of Transp. v.
Walker Dev. P’ship, 2014 UT App 30, ¶ 21, 320 P.3d 50 (‚The
assertion of unpleaded claims in briefing and argument before
the district court and on appeal cannot remedy the failure to
(continued<)

20141083-CA 11 2016 UT App 216
Deutsche Bank National Trust Company v. York

¶26 Finally, York asserts that the trial court failed to
meaningfully consider his request for sanctions under rule 26 of
the Utah Rules of Civil Procedure. ‚We review a trial court’s
denial of discovery sanctions under an abuse of discretion
standard,‛ Hull v. Wilcock, 2012 UT App 223, ¶ 36, 285 P.3d 815
(citation and internal quotation marks omitted), but no abuse of
discretion has been shown here. According to York, he asserted
that Deutsche Bank failed to timely provide initial disclosures
and other documents, but the trial court labeled his objection
untimely and did not otherwise address it. The record, however,
is to the contrary.

¶27 At the November 2012 hearing, York first raised his
concerns about a lack of initial disclosures and untimely receipt
of documents. After questioning both parties, the trial court
concluded that the documents attached to Deutsche Bank’s
complaint constituted its initial disclosures; the procedural
timelines on which York relied did not necessarily apply in
eviction actions, which typically are expedited; despite Deutsche
Bank’s efforts to timely provide all documents seven days before
the hearing, York may not have had adequate opportunity to
review them; and York had ample time to conduct discovery but
made no such efforts.

¶28 While Deutsche Bank offered to move forward solely with
the documents attached to its complaint, York requested more
documents and more time. When the trial court allowed
Deutsche Bank either to proceed based solely on its initial
disclosures or to postpone the hearing, Deutsche Bank elected

(<continued)
include them in an appropriate pleading.‛ (ellipsis, citation, and
internal quotation marks omitted)). We also do not decide what
effect, if any, York’s asserted defenses would have had on the
unlawful detainer action, had they been successfully established.

20141083-CA 12 2016 UT App 216
Deutsche Bank National Trust Company v. York

the latter, consistent with York’s preference. When asked if there
was any reason York could not have the hearing on the
subsequent date, York did not object.

¶29 During the December hearing, when York again asserted
that Deutsche Bank had not timely provided initial disclosures,
the trial court again addressed York’s objection noting, among
other things, that York had not previously filed a motion to
compel or for sanctions; the procedural timelines on which York
relied did not necessarily apply; and York had had at least two
weeks to prepare since the last hearing. The court also concluded
that, since receiving Deutsche Bank’s documents, York had not
undertaken discovery efforts related to the issues to be
addressed during that day’s hearing. The trial court then ruled
that the hearing would proceed without the exclusion of
Deutsche Bank’s witnesses or documents.

¶30 Thus, York’s assertion that the trial court failed to address
his request for discovery sanctions as anything other than
untimely is plainly incorrect. Because York does not address the
trial court’s substantive disposition of the discovery issues,
much less show that the court’s approach exceeded its
discretion, we reject his claim of error.

¶31 Accordingly, we affirm.6

6. Because the judgment is affirmed, we deny York’s request for
costs incurred on appeal. See Utah R. App. P. 34(a).

20141083-CA 13 2016 UT App 216