Commonwealth Property Advocates v. U.S. Bank

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).
2013 UT App 300
_________________________________________________________
THE UTAH COURT OF APPEALS
COMMONWEALTH PROPERTY ADVOCATES, LLC,
Plaintiff and Appellant,
v.
U.S. BANK NATIONAL ASSOCIATION,
Defendant and Appellee.
Memorandum Decision
No. 20111003-CA
Filed December 27, 2013
Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 100404022
E. Craig Smay, Attorney for Appellant
George W. Pratt and Jessica P. Wilde,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGE STEPHEN L. ROTH and SENIOR JUDGE
RUSSELL W. BENCH concurred.1
ORME, Judge:
¶1 Commonwealth Property Advocates, LLC appeals the
district court’s order granting summary judgment to U.S. Bank
National Association. We affirm.
¶2 This case was originally assigned to a district court judge
who recused himself. The case was then mistakenly reassigned to

Commonwealth Property v. U.S. Bank
2. Judge Barlow treated U.S. Bank’s motion for judgment on the
pleadings as one for summary judgment because she considered
matters outside the pleadings. See generally Utah R. Civ. P. 12(c)
(“If, on a motion for judgment on the pleadings, matters outside
the pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment[.]”). Neither
party challenges this characterization on appeal.
Additionally, we note that rule 12(c) also provides that once
evidence outside the pleadings is presented and not excluded, “all
parties shall be given reasonable opportunity to present all material
made pertinent to such a motion by Rule 56.” Id. It does not appear
that the district court complied with this portion of rule 12(c).
However, nothing in the record indicates that Commonwealth
asked for such an opportunity, and Commonwealth likewise failed
to raise this issue on appeal. We therefore do not address it further.
See Hebertson v. Willowcreek Plaza, 923 P.2d 1389, 1391 n.2 (Utah
1996).
20111003-CA 2 2013 UT App 300
both Judge Charlene Barlow and Judge Terry Christiansen. U.S.
Bank sought speedy resolution of the matter by filing a motion for
judgment on the pleadings. Judge Christiansen requested
supplemental briefing, heard oral argument, and took the matter
under advisement, unaware that Judge Barlow was also
considering the case. Meanwhile, Judge Barlow entered a ruling on
U.S. Bank’s motion without hearing argument and granted
summary judgment against Commonwealth. Judge Christiansen2
then learned of Judge Barlow’s ruling and recused himself, noting,
“Since the case has been dismissed and this Court’s decision would
have had the same result as Judge Barlow’s decision, the Court
recuses itself from any further proceedings in this case.” Judge
Christiansen also ordered “the clerk of the court to correct the
docket to reflect that the case was reassigned to the Honorable
Charlene Barlow.”
¶3 Commonwealth protests the result of this aberrational
sequence of events because “the deciding judge had no

Commonwealth Property v. U.S. Bank
3. Even if Commonwealth had adequately briefed this issue, we
would likely conclude that the procedural deviations were merely
harmless error. See generally Utah R. Civ. P. 61 (“The court at every
stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties.”). This is especially true in light of Judge Christiansen’s
statement that his “decision would have had the same result as
Judge Barlow’s decision.”
20111003-CA 3 2013 UT App 300
[supplemental] memoranda, and the judgment was rubber-
stamped without any evidence any judge considered the
memoranda.” However, Commonwealth does not provide any
additional analysis or legal authority to support its contention that
the procedural irregularity is fatal to the summary judgment, and
this failure constitutes inadequate briefing. See Utah R. App. P.
24(a)(9) (stating that briefs must contain reasoned analysis based
upon relevant legal authority). See also Schefski ex rel. Coleman v.
Stevens, 2000 UT 98, ¶ 7, 17 P.3d 1122 (discussing what constitutes
inadequate briefing and noting that the court will not address
arguments that are not adequately briefed). As a result, we do not
further address Commonwealth’s criticism of the procedural
irregularities below.3
¶4 Turning to the issue that we conclude is dispositive, Judge
Barlow determined that Commonwealth did not have standing to
bring this lawsuit, because it was not a party to the promissory
note or deed of trust, and thus had no basis on which to challenge
the claimed missteps in the foreclosure process. Commonwealth
did not challenge this ruling in its opening brief. In arguing for
summary affirmance in its brief, U.S. Bank contended that
Commonwealth’s failure to raise the issue on appeal meant that the
issue had been waived. Commonwealth then assailed Judge
Barlow’s standing determination in its reply brief. “It is well settled
that ‘issues raised by an appellant in the reply brief that were not
presented in the opening brief are considered waived and will not
be considered by the appellate court.’” Allen v. Friel, 2008 UT 56,

Commonwealth Property v. U.S. Bank
4. At oral argument, counsel for Commonwealth offered a different
rationale for not challenging Judge Barlow’s ruling, namely that
standing was not addressed initially because Commonwealth’s
standing seemed so obvious as to not require explanation.
5. The opening brief caption reads: “Trial Court and Judge: Appeal
from the Third District Court, Salt Lake County, Case No.
100404022, Judge Charlene Barlow.” Simultaneously with making
its reply brief argument that it was not appealing from Judge
Barlow’s decision and thus had no occasion to challenge her
standing determination, Commonwealth changed the caption on
its reply brief to read: “Trial Court and Judge: Appeal from the
Third District Court, Salt Lake County, Case No. 100404022, Judge
Terry Christiansen.”
20111003-CA 4 2013 UT App 300
¶ 8, 194 P.3d 903 (quoting Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d
540).
¶5 In its reply brief, Commonwealth claimed that it did not
challenge Judge Barlow’s ruling based on lack of standing in its
opening brief because its appeal was taken from Judge
Christiansen’s ruling, not Judge Barlow’s. Such an appeal would4
appear to be futile, however, because Judge Christiansen never
entered a final appealable order but bowed out of the case,
deferred to Judge Barlow, and endorsed her decision. In any event,
Commonwealth’s characterization in its reply brief appears to have
been something of an afterthought, as its opening brief contains a
front-cover caption unambiguously indicating that its appeal was
taken from Judge Barlow’s decision.5
¶6 Because it is clear that Commonwealth was appealing Judge
Barlow’s ruling—and, all things considered, appropriately so—but
failed to challenge the primary basis for her decision in its opening
brief, we will not consider the belatedly raised arguments
concerning the validity of the district court’s determination that
Commonwealth lacked standing. See id. ¶¶ 4, 8. Accordingly, we

Commonwealth Property v. U.S. Bank
6. This case is significantly different from the situation when an
appellant’s standing to appeal is challenged in an appellee’s brief
and the appellant then addresses the alleged lack of standing in a
reply brief. See, e.g., Kemp v. Wells Fargo Bank, NA, 2013 UT App 88,
¶¶ 7–8, 301 P.3d 23 (indicating that appellate standing can be
addressed for the first time in the reply brief). Here, U.S. Bank
correctly argues that Commonwealth waived any challenge to the
district court’s standing determination—not that Commonwealth
lacks standing to appeal.
20111003-CA 5 2013 UT App 300
affirm the district court’s grant of summary judgment in favor of
U.S. Bank.6