Opinion
Case No. 20080311-CA.
Filed February 20, 2009. Not For Official Publication
Appeal from the Third District, Salt Lake Department, 070913318 The Honorable Joseph C. Fratto Jr.
Jihad Al-Ali, Salt Lake City, Appellant.
Pro Se James H. Deans, Salt Lake City, for Appellee.
Before Judges Bench, Davis, and McHugh.
MEMORANDUM DECISION
Jihad Al-Ali appeals from the district court's February 29, 2008 judgment, which resulted in the district court concluding that Countrywide Home Loans properly foreclosed on certain property formerly owned by Al-Ali and awarding Countrywide damages for unlawful detainer. We affirm.
"As an appellate court, our `power of review is strictly 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; see also Call v. City of W. 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, this court presumes the regularity of the proceedings below. See State v. Jones, 657 P.2d 1263, 1267 (Utah 1982). Because Al-Ali did not provide us with a copy of the trial transcript, we must presume the regularity of that proceeding. As a result, this court cannot review the following claims because they arose out of, or during the course of, the conduct at trial: (1) there was insufficient evidence to support the district court's findings; (2) Countrywide's attorneys acted unprofessionally; (3) Al-Ali was denied due process due to irregularities in the trial proceeding; and (4) Judge Fratto was biased and abused his discretion during the course of trial.
Al-Ali does raise one additional issue that occurred prior to trial. Specifically, Al-Ali alleges that Countrywide failed to cooperate and disclose critical documents during the course of discovery. In reviewing the record, it appears that Al-Ali served Countrywide with a pleading that could be considered a request for documents on or about January 30, 2008, only six days before trial. Countrywide immediately objected to the request, asserting that the request was both untimely and irrelevant. Al-Ali never filed a motion to compel the production of the requested documents. The only mention of any discovery issue in the pleadings appears in Al-Ali's motion to continue the trial, which Al-Ali filed with the court on January 31, 2008. In the motion, Al-Ali asked for the trial to be delayed for, among other reasons, so he could obtain the documents he had requested from Countrywide. The district court denied the motion to continue the trial.
Raising the discovery issue in the context of the motion to continue the trial was insufficient to preserve it for appeal. See State v. Briggs, 2006 UT App 448, ¶ 4, 147 P.3d 969 (stating that claimed errors must be brought to the attention of the district court to give the court an opportunity to correct any error). Specifically, the only ruling Al-Ali sought was whether the trial should be continued. He did not seek a ruling on whether he was entitled to the documents. On appeal, Al-Ali raises the issue of whether he was entitled to the documents, not whether the trial should have been continued. Accordingly, because Al-Ali fails to establish that he raised this issue before the trial court in such a manner as to allow the court to rule on the issue, he fails to demonstrate that the issue is preserved for review. See Holman v. Callister, Duncan Nebeker, 905 P.2d 895, 899 (Utah Ct.App. 1995) (stating that a litigant's failure to raise an issue with the district court fails to preserve the claim for appeal).
In his "Petition for Extraordinary Relief," which we construed to be part of his reply brief, Al-Ali raises numerous issues concerning the misconduct of Countrywide's attorneys and the district court. To the extent they are merely explanations of conduct raised in the opening brief, these issues are resolved for the reasons explained above. To the extent that they could be considered as new, additional issues, these issues cannot be raised for the first time in the reply brief. See Coleman v. Stevens, 2000 UT 98, ¶ 9, 17 P.3d 1122 (stating that appellate courts will not consider issues raised for the first time in a reply brief). The same reasoning also applies to Al-Ali's actual reply brief.
Therefore, because Al-Ali has failed to provide this court with a transcript of the trial and because he failed to preserve his other issues for review, we must affirm.