author: GREENWOOD, Judge.

text:
    2003 UT App 158
    STATE of Utah, Plaintiff and Appellee, v. Frank Lyle DOMINGUEZ, Defendant and Appellant.
    No. 20010649-CA.
    Court of Appeals of Utah.
    May 22, 2003.
    Rehearing Denied July 8, 2003.

      Randall W. Richards, Public Defenders Association, Ogden, for Appellant.
    Mark L. Shurtleff, Attorney Generals Office, and Karen A. Klueznik, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges JACKSON, GREENWOOD, and THORNE.
   OPINION

GREENWOOD, Judge.

T1 A jury convicted Frank Lyle Dominguez (Defendant) of murder, a first degree felony under Utah Code Ann. § 76-5-208 (1999). Defendant appeals, claiming numerous errors at trial. We affirm.

BACKGROUND

T2 On October 15, 2000, Waleed Elalaw-nah was found dead in his store, the Boulevard Market in Ogden. After being arrested by Ogden City Police officers on an unrelated outstanding warrant, Defendant confessed to killing Mr. Elalawnah and was charged with the murder.

T3 On the day of the murder, a birthday party that began the previous day was underway at the house of Defendant's grandmother, Ricarla Dominguez. Defendant was at the party, although testimony at trial differed as to the specific time he was there. During the party, Defendant's father and grandfather got into a fight, prompting Defendant's grandmother to call the police. Defendant and others testified that Defendant hid when the police arrived because he was in violation of his parole. Additionally, there was testimony that Defendant was bragging at the party about killing a man.

T4 Four days later, on October 19, police were called to an apartment to investigate complaints of drug use. Defendant was in the apartment, and initially gave the police a false name. He eventually told the officers his real name and was then arrested on an outstanding warrant, unrelated to the Boulevard Market murder. On the way to the police station, Defendant told the officer that he had some information about the Boulevard Market murder that he would exchange for not being charged.

15 At the Ogden City Police Department, Defendant spoke first to Officer Kevin Mann, and later to Officer Shane Minor; both officers had investigated the Boulevard Market murder. Officer Mann testified that Defendant offered information about the murder because "he didn't want to go back to pris- » on." During their conversation, Defendant related several versions of the murder, naming two different women as the assailant. Later in the day, after Officer Mann was called away on other business, Defendant confessed to Officer Minor that he shot the store owner.

T6 Later that evening, after Defendant signed a document stating that he had received his Miranda warnings and was willing to talk, a formal written statement was taken. Defendant then agreed to go with several officers to the Boulevard Market and walk them through the seene of the murder. Despite the fact that all evidence of the murder had been removed, Defendant correctly identified the murder location and described the manner in which the victim was shot.

T7 At the pretrial conference, the State requested clarification on two evidentiary items. First, because Defendant's confessions were made after his arrest on an outstanding warrant, the State asked the court whether information that Defendant was a parolee would be allowed. Second, because the State intended to present evidence of an incident at the prison (the prison incident), the State asked the court whether it would be permitted to lay foundation for the prison incident. Foundation included the fact that Defendant was an inmate when the prison incident took place.

8 Counsel for Defendant responded that he opposed the evidence about Defendant's parolee status, "but we recognize the context in which they want it presented to the jury." Regarding evidence about the prison incident, defense counsel stated, "My position as defense counsel is that [the evidence] is perhaps more prejudicial than probative."

T9 The trial court stated that the prison incident "comes in in the context in which it was made. No one has to go into the reasons as to why he's being housed there." The trial court also stated that an explanation of Defendant's parole status was unnecessary, but discussions that took place after Defendant was arrested for a parole violation could be introduced. If Defendant made statements about being on parole, then those statements would be admissible.

10 After a five day jury trial, Defendant was convicted on all counts and was later sentenced to six years to life. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

T11 Defendant first argues that the trial court's pretrial ruling was error because it allowed the admission of prejudicial testimony in violation of Utah Rule of Evidence 404(b). This court reviews admission of pri- or crimes evidence for abuse of discretion.

See State v. Decorso, 1999 UT 57,% 18, 998 P.2d 837.

112 Defendant next argues that the State elicited testimony beyond the seope of the pretrial ruling. Because he did not object to the testimony at trial, Defendant argues plain error. To establish plain error, Defendant must show: "G) [aln error exists; (i) the error should have been obvious to the trial court; and (i) the error is harmfal, ie., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant. . .." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1998). Each of these requirements must be met to establish plain error. See id. at 1209.

113 Next, Defendant claims the trial court erred when it admitted a witness's statement through a detective, after the witness was declared to be unavailable based on her refusal to testify. Defendant did not specifically object to the testimony. This court has held, "the grounds for [an] objection must be distinctly and specifically stated." State v. Winward, 941 P.2d 627, 633 (Utah Ct.App.1997) (quotations and citation omitted). Because Defendant did not specifically preserve this claim for appeal, he must show plain error.

14 Defendant also argues the trial court improperly denied his motion for a mistrial. "The decision to grant or deny a mistrial ... rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion." State v. Calliham, 2002 UT 86,1 42, 55 P.8d 573.

Finally, Defendant argues that this court should reverse the jury verdict based on cumulative error. "Under the cumulative error doctrine, we will reverse only if the cumulative effect of the several errors undermines our confidence ... that a fair trial was had." State v. Colwell, 2000 UT 8,% 44, 994 P.2d 177 (quotations and citations omitted).

ANALYSIS

I. Pretrial Ruling and Evidence Admitted

1 16 Defendant argues that the trial court's pretrial ruling concerning admission of evidence was error. The trial court ruled that limited evidence of Defendant's parole status and the prison incident was admissible. Specifically, the State was not to elicit testimony about Defendant's status as a parolee, despite the fact that Defendant came into police custody on an outstanding warrant. The trial court stated, "It isn't necessary to explain that he's on parole. You just explain the discussion that occurred and who was present and what the people were there for." Further, in presenting evidence of the prison incident, the State could not elicit testimony about the reasons Defendant was in prison, but the context for the incident was admissible. Defendant also contends evidence was admitted that violated the trial court's pretrial ruling.

A. Pretrial Ruling

117 Defendant maintains that the ruling was an abuse of discretion because it allowed the State to elicit prejudicial testimony from several witnesses concerning Defendant's prior bad acts, in violation of rule 404(b) of the Utah Rules of Evidence. In response, the State argues that Defendant did not properly preserve this issue for appeal because he failed to object at trial on the same rule 404(b) grounds urged at the pretrial proceeding.

{18 Contrary to the State's argument, Defendant was not required to object during trial to evidence offered in accordance with the court's pretrial ruling. Utah Rule of Evidence 103 states, "Onee the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." Utah R. Evid. 103(2); see State v. Sounders, 1999 UT 59,1% 18-19, 992 P.2d 951 (holding because defendant objected to court's pretrial ruling he was not required to make further objection at trial to preserve issue for appeal); State v. Johnson, 748 P.2d 1069, 1071 (Utah 1987) (noting defendant not required to object or renew motion to suppress at trial where trial judge is same judge who ruled on pretrial motion).

19 "[In order to preserve a claim or an objection for appellate review, the defendant must raise a timely or contemporaneous claim or objection." State v. Cram, 2002 UT 37, ¶ 9, 46 P.3d 230. Although Defendant's objections could have been clearer, they were raised during the pretrial hearing and provided the trial court with an opportunity to address the objections. See id. at 10. Therefore, Defendant was not required to object at trial to preserve the issues for appeal because the pretrial hearing was held on the record, Defendant timely objected, the judge made a definitive ruling on the motion, and the same judge presided at trial.

¶ 20 Defendant argues the pretrial ruling was an abuse of discretion because the trial court failed to determine: (1) whether the evidence was offered "for a proper, nonchar-acter purpose under 404(b), (2) whether [the] evidence meets the requirements of rule 402, and (8) whether [the] evidence meets the requirements of rule 408." State v. Decorso, 1999 UT 57, ¶ 20, 993 P.2d 887. Generally, evidence of prior crimes is prohibited "unless such evidence is probative of an issue other than eriminal propensity or character and is not unduly prejudicial." State v. Saunders, 1999 UT 59, ¶15, 992 P.2d 951. This is based on the principle that "[the admission of evidence of prior crimes may have such a powerful tendency to mislead the finder of fact as to subvert the constitutional principle that a defendant may be convicted only if guilty beyond a reasonable doubt of a specific crime charged." Id.

121 The first consideration is whether the evidence was admitted for a proper, noncharacter purpose under rule 404(b). See Utah R. Evid. 404(b); Decorso, 1999 UT 57 at 121, 998 P.2d 837. In this case, the trial court's ruling limited testimony to that necessary as context for admissible evidence. The testimony about Defendant's parole status was admitted as context for Defendant being in police custody, and through statements made by Defendant. Evidence that Defendant was in prison was admitted as context for Defendant's threat to a prison guard that he would kill him "like he killed that other motherf* * * * *." This limited testimony was not admitted "only to show the defendant's propensity to commit crime," id. at T 24, but rather for a proper, noncharacter purpose.

122 Next, the evidence is considered under rule 402, which excludes all evidence that is not relevant. See Utah R. Evid. 402. The evidence at issue relates to confessions or statements Defendant made about killing someone. Accordingly, the evidence clearly "tends to prove some fact that is material to the crime charged." Decorso, 1999 UT 57 at "1 22, 993 P.2d 887.

23 Finally, the evidence must be considered under rule 403, which requires that the probative value of the evidence must not be "substantially outweighed by the danger of unfair prejudice." Utah R. Evid. 408. The trial court's limitation on this evidence reasonably assured it was more probative than prejudicial. Therefore, we find the trial court's pretrial ruling was not an abuse of discretion.

B. Evidence Admitted Beyond Scope of Pretrial Ruling

1 24 Defendant also appears to argue that some of the testimony at trial exceeded the seope of the pretrial ruling. The State maintains that even if evidence beyond the seope of the ruling was allowed, Defendant failed to object during trial.

1 25 Acknowledging that he did not object during trial, Defendant argues plain error. To establish plain error, Defendant must show: "() [aln error exists; (i) the error should have been obvious to the trial court; and (ii) the error is harmful, ie., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant. ..." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1998). Each of these requirements must be met in order to establish plain error. See id. at 1209.

126 "Excessive exploration by the government, of the cireumstances and details of prior eriminal conduct, may be so prejudicial as to amount to plain error." United States v. Roenigk, 810 F.2d 809, 814 (8th Cir.1987). In Roenigk, the defendant argued that despite the pretrial ruling limiting the government's testimony to allegations in the indictment, specific evidence of another conviction was improperly admitted on at least five occasions. See id. The court noted, "The problem with excessive references to the details of prior eriminal conduct is that the jury is likely to infer that the defendant is more likely to have committed the offense for which he is being tried than if he had previously led a blameless life." Id. at 815. The court held that the trial court committed reversible error because "overly prejudicial and irrelevant evidence" beyond the indictment was admitted. Id. at 816. In this case, we review the record as a whole to determine if evidence admitted beyond the seope of the pretrial ruling amounts to plain error. See id. at 816 n. 8 (stating "our holding is based on our careful review of the record as a whole, and not any single incident of allegedly prejudicial testimony").

i. Evidence of Defendant's Status as a Parolee

127 Defendant argues that the State elicited evidence about his parolee status that exceeded the seope of the pretrial ruling. In response, the State maintains it adhered to the ruling and presented no evidence of Defendant's parolee status violating the ruling in its case-in-chief, An analysis of the record reveals the following: the State called Officer Jason Thomas of the Ogden City Police Department. On direct examination, the prosecutor inquired whether Defendant was arrested "for false information? Was there anything else?" Officer Thomas responded, "I believe he had a warrant." The State then called Officer Kevin Mann, also of the Ogden City Police Department. The prosecutor asked, "What kind of a deal was [Defendant] looking for?"" Officer Mann responded, "He told me that he didn't want to go back to prison." Next, the State called Officer Shane Minor, an investigator for the Ogden City Police Department at the time of the murder. On direct examination Officer Minor testified that Defendant told him, "I'm on the run. I don't want to go back to prison right now."

128 All of the above testimony is within the parameters of the pretrial order. The limited allusions to Defendant's parole status were necessary as context for Defendant's statements to the police. The testimony with the most potential for prejudice was actually elicited by Defendant. The defense called Defendant's father, and asked whether Defendant left the house during the two-day party. On cross-examination by the State, the witness was asked the same question. The witness testified that Defendant hid during the party, that he knew Defendant was wanted for parole violations, and that Defendant had absconded. However, this testimony cannot be attributed to the State as it was within the seope of Defendant's direct examination; therefore the testimony was not beyond the seope of the ruling.

1 29 Because this testimony was permitted under the pretrial ruling, there was no error. Therefore, the first prong of the plain error test is not met. See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1998) (stating that defendant must first show an error exists). Accordingly, Defendant's argument fails.

ii. The Prison Incident

180 Defendant also argues that the State "flooded the jury with extraneous and damaging information" when it presented evidence of the prison incident. Again, Defendant must demonstrate plain error. Under the pretrial ruling, the trial court stated that context for the prison incident could come in, but "[nlo one has to go into the reasons as to why he's being housed there." A review of the record reveals the following testimony about the prison incident.

{31 Doug Cook of the Utah State Prison was called by the State and testified that he is the housing lieutenant for the Uintah One maximum security facility. He described the prison incident: "[Wle were basically, at the request of mental health, asked to remove inmate's Dominguez's clothes to ensure against him having anything that he could harm himself or others with. In the process of cutting Mr. Dominguez's clothes off he made comments to me.... He says, Cook, some day I'll get my hands on you and kill you like I did that other motherf* * * * *,"

132 Cook testified on redirect that Defendant "indicated he was homicidal." The State maintains that this answer was elicited based on Defendant's cross-examination, in which Cook was asked why an inmate would request to speak -to a crisis worker. Cook responded, "I can't get into why they make the request." Defense counsel then asked, "What kinds of explanations? What types of things would precipitate them meeting with a crisis worker?" Cook responded, "Any time they feel homicidal or suicidal or feel that they are not mentally stable."

€33 Because the testimony complained of was initially elicited by defense counsel's cross-examination of Cook, any error was invited. "We have held repeatedly that on appeal, a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error." State v. Dunn, 850 P.2d 1201, 1220 (Utah 1998).

€$34 Similarly, evidence admitted concerning Defendant's prior conviction for a drive-by shooting was also initially elicited by Defendant The evidence Defendant complains of was relevant to Defendant's testimony on direct examination where he denied committing the drive-by shooting. "When a defendant on direct examination attempts to explain away the effect of the conviction or to minimize his guilt, a defendant may then be cross-examined on any facts which are relevant to the direct examination." State v. Tucker, 800 P.2d 819, 828 (Utah Ct.App.1990) (quotations and citation omitted). Accordingly, the trial court did not commit plain error when it admitted this testimony. See id. (concluding no plain error where defendant "opened the door" by "making misstatements").

IL - Hearsay Testimony

135 Defendant argues that the trial court erred by admitting hearsay testimony of Teresa Brown (Brown) through Detective Weloth. Detective Weloth had a discussion with Brown after she contacted the police department with information about the Boulevard Market murder. The State called Brown, who testified that she gave Defendant a ride from his grandmother's house on the day of the murder; she then refused to testify further. After instructing the witness to answer several times, the court dismissed the jury and ruled that Brown was unavailable. Based on her unavailability, the State requested permission to call Detective Wel-oth to testify about Brown's prior statement to him.

136 Defendant did not specifically object to Detective Weloth's testimony at the trial court. He first objected to the ruling that Brown was unavailable, and then objected a second time, but without any specificity. " '[A] contemporaneous objection or some form of specific preservation of claims of error must be made a part of the trial court record before an appellate court will review such claims on appeal Importantly, the grounds for the objection must be distinctly and specifically stated." State v. Winward, 941 P.2d 627, 633 (Utah Ct.App.1997) (alteration in original) (citations omitted). Defendant's objections did not preserve the issues he now argues on appeal, that the testimony was not reliable and that he did not have notice of the hearsay testimony. See Utah R. Evid. 804(b)(5) (requiring hearsay exceptions have "cireumstantial guarantees of trustworthiness," and notice be given to an "adverse party sufficiently in advance of the trial").

137 Based on Defendant's failure to specifically object and preserve the issue for appeal, Defendant's claim that allowing the testimony was error fails.

III. Motion for Mistrial

T88 Defendant moved for a mistrial after a witness for the State testified about statements Defendant made during a "plea negotiation." See Utah R. Evid. 410 (stating that statements made in course of plea negotiations are inadmissible). The State's witness, Detective Lucas, testified that Defendant said, "I'm willing to plead to first degree murder, but there's two things that I want." Shortly after this testimony, which was elicited during defense counsel's voir dire, the jury was dismissed. The court denied Defendant's mistrial motion because the defense solicited the testimony. "This court has stated that ' "[a] party who leads a court into error cannot later complain of that error to obtain reversal." ' " State v. Price, 909 P.2d 256, 262 (Utah Ct.App.1995) (alteration in original) (quoting Clark v. Farmers Ins. Exch., 898 P.2d 598, 600 n. 4 (Utah Ct.App.1995)) (citation omitted).

T39 "The decision to grant or deny a mistrial ... rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion." State v. Calliham, 2002 UT 86,¶ 42, 55 P.8d 578. " 'Unless a review of the record shows that the court's decision is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial, we will not find that the court's decision was an abuse of discretion." " State v. Decorso, 1999 UT 57,¶ 38, 993 P.2d 837 (quoting State v. Robertson, 982 P.2d 1219, 1281 (Utah 1997)). We agree with the trial court that Defendant took a risk when he initiated the voir dire line of questioning in front of the jury. Defendant solicited the testimony, did not immediately object to the witness's answer, and the jury was instructed to disregard the statement.

1 40 The trial court did not abuse its discretion by denying Defendant's motion for a mistrial where Defendant invited the error by eliciting the testimony in front of the jury, and where the conviction resulted from the totality of the evidence.

IV. Cumulative Error

141 Defendant maintains this court should reverse based on cumulative error. "Under the cumulative error doctrine, we will reverse only if the cumulative effect of the several errors undermines our confidence ... that a fair trial was had." State v. Colwell, 2000 UT 8,¶ 44, 994 P.2d 177 (quotations and citations omitted). Since .we find no error, reversal is not required. See State v. Decorso, 1999 UT 57,¶ 81, 998 P.2d 837 (holding eumu-lative error argument moot where court rejected each of defendant's arguments that trial court committed error).

Further, Defendant's various confessions, corroborated by the visit to the crime scene, are overwhelming evidence of Defendant's guilt. The following witnesses testified that Defendant confessed to killing someone: 1) Ricarla Dominguez (Defendant's grandmother) testified that during the birthday party, on October 15, she heard Defendant say that he had killed a man; 2) John Dominguez (Defendant's uncle) testified that he heard Defendant tell his grandmother, at the party, that he shot someone; he also told Detective Lucas that when he and Defendant heard a news report about the Boulevard Market murder, Defendant said that he did it; 3) Detective Mann testified that Defendant told him various stories about the murder, including specific, unreleased facts, and accused someone else; 4) Officer Minor testified that Defendant told him a series of stories about the murder, ultimately admitting to the murder and describing unpublished details; Officer Minor also testified about walking though the store with Defendant after Defendant signed documents waiving his rights; and 5) Detective Lucas testified about walking though the store with Defendant, listening to him describe how and where the murder was committed.

CONCLUSION

{43 Defendant's argument that multiple errors committed by the trial court warrant reversal fails. First, the trial court did not abuse its discretion in its pretrial ruling allowing limited testimony of Defendant's parole and prison status. Second, Defendant has not demonstrated plain error in the admission of testimony he alleges exceeded the scope of the pretrial ruling. Third, Defendant failed to specifically object to the admission of Teresa Brown's testimony through Detective Weloth, and Defendant does not demonstrate plain error on appeal. Finally, the denial of the motion for a mistrial was not an abuse of discretion. We therefore affirm the jury verdict.

44 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and WILLIAM A. THORNE JR., Judge.

      . On appeal, this court "relate[s] the facts in the light most favorable to the jury's verdict." State v. Vargas, 2001 UT 5, ¶2, 20 P.3d 271 (quotations and citation omitted).

      . Defendant testified that he just followed the officers through the shop, agreeing to the questions they posed. In contrast, the officers testified that Defendant was in the lead and that he identified the murder site and gave specific details without any prompting.

      . Defense counsel responded that he opposed the evidence about Defendant being a parolee, "but we recognize the context in which they want it presented to the jury." Regarding the evidence about the prison incident, defense counsel stated, "My position as defense counsel is that [the evidence] is perhaps more prejudicial than probative."

      . Defendant testified on direct that he was "misunderstood" by those at the party who said he killed someone. Defendant testified that he was talking about going to prison for "discharging a firearm from a motor vehicle.... I didn't do the actual shooting." Later, the State was permitted to call Officer Gallegos as a rebuttal witness. Gallegos testified about interviews he had with Defendant in 1996 concerning the shooting.

      . Further, the testimony was reliable under the facts of this case. Brown testified that she gave Defendant a ride on the night of the murder. Detective Weloth testified, "[Defendant] told [Brown] that he had killed someone, that he had a gun.... At one point [Defendant] changed and said that he had killed three people but later changed that back to he had killed one person." When considered in light of other evidence, including similar testimony about Defendant's various stories from detectives, officers, Defendant's family, and Defendant himself, this testimony is reliable.

      . Additionally, "[The trial court is in the best position to determine whether the incident prejudiced the jury." State v. Widdison, 2001 UT 60,1 54, 28 P.3d 1278.

      . - Other appellate decisions have denied a motion for a mistrial for similar reasons. See State v. Price, 909 P.2d 256, 262 (Utah Ct.App.1995) (affirming "the trial court's denial of defendant's motion for a mistrial not only because defendant has failed to show prejudice, but also because defendant declined to avoid any error that might have occurred"); see also State v. Wach, 2001 UT 35,¶ 46, 24 P.3d 948 (denying motion for mistrial that was based on witness's unsolicited, isolated remark, where totality of evidence caused jury to convict defendant); State v. Decorso, 1999 UT 57,¶ 39, 993 P.2d 837 (denying motion for mistrial where reference to other crimes was vague, followed lengthy examinations, and was insignificant); State v. Kiriluk, 1999 UT App 30,¶ 19, 975 P.2d 469 ("A defendant has the burden of persuading this court that the conduct complained of prejudiced the outcome of the trial.") (quotations and citation omitted).


source: Caselaw Access Project

author: JACKSON, Presiding Judge.

license: Public Domain

text:
    2003 UT App 168
    Ilia DENNIS, Plaintiff and Appellant, v. David VASQUEZ, Defendant and Appellee.
    No. 20020415-CA.
    Court of Appeals of Utah.
    May 30, 2003.

      Michael A. Katz, Siegfried & Jensen, Murray, for Appellant.
    Richard K. Glauser and Albert W. Gray, Smith & Hauser PC, Salt Lake City, for Appellee.
    Before Judges JACKSON, BILLINGS, and DAVIS.
   OPINION

JACKSON, Presiding Judge.

1 Appellant Ilia Dennis appeals the district court's grant of Appellee David Vasquez's summary judgment motion. We affirm.

BACKGROUND

T2 Dennis brought suit in small claims court for property damage incurred in an automobile accident with Vasquez. In his complaint, he alleged: "Damage to vehicle ... as a result of an auto accident." He then properly served notice of the small claims action upon Vasquez. The opposing parties appeared in court at the appointed time, argued their respective positions, and had opportunity to present evidence. | After hearing argument from both parties, the small claims judge ruled against Dennis and checked the box on the judgment form that states, "No Cause of Action." Dennis did not appeal that judgment. Later, Dennis filed a new suit in district court claiming damages for personal injuries sustained during the same automobile accident. The district court entered summary judgment on grounds that Dennis's claim was barred by claim preclusion.

ISSUE AND STANDARD OF REVIEW

13 Dennis challenges the trial court's grant of summary judgment. "We will affirm summary judgment only when 'there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law' We review the trial court's legal conclusions for correctness, granting no deference." Alder v. Bayer Corp., 2002 UT 115, ¶ 20, 61 P.3d 1068 (quoting Utah R. Civ. P. 56(c)) (other citations omitted).

ANALYSIS

§4 Dennis argues that res judicata does not bar the second suit because (1) the issues in the two suits are not identical, and (2) the judgment in the small claims action was not final and on the merits. Snyder v. Murray City Corp., 2008 UT 13, ¶ 34, 471 Utah Adv. Rep. 5, 73 P.3d 325, 2003 WL 1860524 (citations omitted).

"Generally, 'claim preclusion bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously." " In order for a claim to be precluded under this doctrine the party seeking preclusion must establish three elements:
"First, both cases must involve the same parties or their privies. Second, the claim that is alleged to be barred must have been presented in the first suit or be one that could and should have been raised in the first action. Third, the first suit must have resulted in a final judgment on the merits."

Clearly, the first element of claim preclusion, identity of the parties, is met here. The second element, requiring the claim to "have been presented in the first suit or be one that could and should have been raised in the first action" is also met here. Id. (quotations and citations omitted). Dennis "could have raised" his personal injury claim in the small claims action. Id. (emphasis added) (quotations and citations omitted). See Kawamoto v. Fratto, 2000 UT 6, ¶ 15, 994 P.2d 187 (holding small claims courts have jurisdiction to hear personal injury claims).

T6 Further, Dennis "should have ... raised" his personal injury claim in the first suit. Snyder, 2008 UT 18 at 134, 73 P.3d 325 (emphasis added) (quotations and citations omitted). The law in Utah generally prohibits splitting causes of action. See Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 41, 16 P.3d 1214 (stating that where a plaintiff "commences a second action to obtain increased damages, the court will hold him precluded; his claim has been merged in the judgment and may not be split. It is immaterial that in trying the first action he was not in possession of enough information about the damages, past or prospective, or that the damages turned out in fact to be unexpectedly large and in excess of the judgment") (emphasis and citation omitted). Thus, where one event damaged person and property, an action to recover for personal injury must be brought at the same time as an action to recover for damage to property. See Raymer v. Hi-Line Transp., Inc., 15 Utah 2d 427, 394 P.2d 388 (Utah 1964); Restatement (Second) of Judgments § 24 emt. e, illus. 1-2, emt. g, illus. 13-14 (1982) (llus-trating examples similar to this case where rule against splitting causes of action precludes second action).

T7 The third element of claim preclusion under Snyder, finality of judgment on the merits, is also met here. It is clear that the judgment was final and precluded Dennis from pursuing any remedy or initiating any further proceedings in small claims court. Thus, the only remedy left available to him was to appeal the small claims judgment to the district court. See Utah Code Ann. § 78-6-10(1) (2002) (stating "[elither party may appeal the judgment in a small claims action to the district court"). Accordingly, we conclude the judgment of the small claims court was final.

18 "[A] judgment on the merits may be made at any stage of the litigation, so long as the district court rendered judgment based upon a proper application of the relevant law to the facts of the case." Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 42 n. 6, 44 P.3d 668. "[A] judgment is on the merits if it completely disposes of an underlying cause of action, or determines that plaintiff has no cause of action ...." 50 C.J.S. Judgment § 728 (1997) (emphasis added).

T9 Here the small claims court unambiguously determined, after hearing opposing arguments from both parties, that Dennis had "No Cause of Action. Thus, the small claims court applied the "relevant law to the facts of the case," Miller, 2002 UT 6 at T 42 n. 6, 44 P.3d 663, and "determine[d] that [Dennis] has no cause of action." 50 C.J.S. Judgment § 728. Accordingly, we conclude the judgment was on the merits.

CONCLUSION

1 10 Because Vasquez established all three prongs of the claim preclusion test, we determine the trial court was correct in ruling that claim preclusion barred Dennis from bringing a second suit. Accordingly, we affirm the district court's grant of summary judgment.

11 WE CONCUR:; JUDITH M. BILLINGS, Associate Presiding Judge, and JAMES Z. DAVIS, Judge.

      . Claim preclusion is distinguishable from the other branch of res judicata, issue preclusion. Under the issue preclusion branch,
      the adjudication of an issue bars its relitigation in another action only if four requirements are met. First, the issue in both cases must be identical. Second, the judgment must be final with respect to that issue. Third, the issue must have been fully, fairly, and competently litigated in the first action. Fourth, the party who is precluded from litigating the issue must be either a party to the first action or a privy of a party.
      Madsen v. Borthick, 769 P.2d 245, 250 (Utah 1988) (emphasis added). Claim preclusion, on the other hand, does not require an identity of the issues, nor does it require that the issues be "fully, fairly, and competently litigated." Id. Rather, the precluded claim must be one that "could and should have been raised in the first action," and regardless of whether the claim in fact was raised in the first action, the first action "resulted in a final judgment on the merits." Snyder v. Murray City Corp., 2003 UT 13, ¶ 34, 471 Utah Adv. Rep. 5, 73 P.3d 325 (quotations and citations omitted).

      . Dennis argues that the small claims court improperly applied the law to the facts of the case. He argues that the trial court's determination of no cause of action was based on an erroneous finding that Dennis had signed a waiver of claims. This argument fails.
      The fact that a judgment is erroneous, voidable, or irregular will not prevent the cause of action from merging in the judgment, nor will it prevent the judgment from acting as a bar to a relitigation of the cause of action, as long as the judgment is not reversed or otherwise set aside. This is true even where the error is undoubted and apparent on the face of the record.
      50 C.J.S. Judgment § 720 (1997). If it is true that the small claims court's decision rested on an erroneous finding, the proper remedy would certainly be to appeal, which Dennis did not do. Thus, he accepted the judgment as proper, and it became impossible to "reverse[ ] or otherwise set aside" the supposedly erroneous judgment. Id.

      . "Key factors in determining whether a judgment may be considered as on the merits are that there have been notice and an opportunity to be heard." 50 C.J.S. Judgment § 728 (1997). In this case, it is clear that Dennis had sufficient opportunity to be heard in the small claims court. He chose not to pursue his right of appeal, which would have provided review of the adverse judgment on his property damage claim by trial de novo on the merits in the district court. Rather, Dennis elected to let that judgment stand as final, then filed a new lawsuit in district court to pursue damages for personal injuries.

      . The form used by the small claims judge provided three options for ruling against a plaintiff; (1) No Cause of Action; (2) Dismissal With Prejudice; and (3) Dismissal Without Prejudice. Revision of this form to include a brief explanation of the small claims court's basis for ruling and/or a wider range of more specific dispositional alternatives would likely prevent problems of this type from recurring.

      . Dennis's claim for equitable relief is without merit, and we decline to address it. See Young v. Salt Lake City Sch. Dist., 2002 UT 64, ¶ 21 n. 8, 52 P.3d 1230 (declining to address meritless argument).


author: JACKSON, Presiding Judge:

text:
    2003 UT App 170
    STATE of Utah, Plaintiff and Appellee, v. Sean R. SLOAN, Defendant and Appellant.
    No. 20020333-CA.
    Court of Appeals of Utah.
    May 30, 2003.

      Gregory G. Skordas and Jack M. Morgan, Skordas & Caston LLC, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Karen A. Klueznik, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges JACKSON, GREENWOOD, and ORME.
   OPINION

JACKSON, Presiding Judge:

[ 1 Sean Sloan appeals from a conviction of sodomy on a child, in violation of Utah Code Ann. § 76-5-408.1 (1999), and a conviction of aggravated sexual abuse of a child, in violation of Utah Code Ann. § 76-5-404.1(8) (1999). We affirm.

BACKGROUND

I 2 In March of 2000, Sloan began conversing with Tracie McEwan over an Internet singles chatline. In the first weekend of April 2000, McEwan and her daughters, S.M. and R.M., ages nine and four, went to Idaho Falls to meet Sloan and his two sons, Z.S. and B.S., ages five and three. On May 19, 2000, McEwan and Sloan were married. After the marriage, Sloan and his two sons moved in with McEwan and her children.

T3 During the time they were married, Sloan was employed for only two and a half days and remained home most of the time. McEwan worked as a teacher in the Ogden City School District. She paid her daughter, S.M., and a friend of S.M. eighty dollars a week to help care for the children while she was at work. Sloan would often be the only adult at home during the day with the children.

14 On June 80, 2000, S.M. told McEwan that Sloan had been grabbing her and her friend, dipping them back, whispering things to them in French, and then kissing them. When McEwan confronted Sloan about S.M.'s accusations, Sloan said, "It's not like I'm sexually harassing them." - Shortly thereafter, on July 6, 2000, Sloan and Mc-Ewan separated, and Sloan and his sons moved back to Idaho.

15 After the separation, McEwan noticed a difference in R.M.'s behavior. R.M. became whiney and clingy, began sleeping with McEwan, and urinated on the floor. On August 25, 2000, McEwan took R.M. to see Sandy Watson, a therapist who both S.M. and R.M. had seen after McEwan's previous husband's death. Watson engaged R.M. in some non-directive play therapy and recommended she be interviewed at the Children's Justice Center. On September 12, 2000, R.M. was interviewed at the Children's Justice Center. The interview was videotaped and played for the jury at trial.

T6 About six weeks after Sloan left, R.M. began making accusations to both her mother and Watson about things Sloan had done to her. At various times, R.M. talked about how Sloan had kissed her private parts and had her kiss his. On other occasions, R.M. talked about how Sloan would show her where a bumble bee bit his private parts. R.M. talked about how the bite hurt Sloan because he made funny breathing sounds until it popped and yellow blood came out. Once, R.M.'s disclosure came after her mother found her kissing the crotch of a doll. Another time, her disclosure came after R.M. stuck a small flag down her underwear and began rubbing her front and back with it.

T7 Like R.M.'s mother, Watson noticed that R.M. often acted out various types of sexual play, such as thrusting her hips, kissing passionately, making sounds, and putting Barbie dolls on top of one another. Watson explained that R.M. exhibited sexualized behavior and a knowledge beyond her age, indicators of sexual abuse. Watson also concluded that requiring R.M. to testify in court would cause her to suffer severe emotional and mental strain.

{8 Toni Hughes, a private mental health therapist who did an assessment of R.M. on September 12, 2001, concluded that R.M.'s behavior was consistent with a child who was experiencing severe emotional and behavioral problems consistent with sexual abuse. Hughes further determined that R.M. would be incapable of giving reliable testimony if required to testify in person at trial, and that doing so would subject R.M. to severe emotional and mental strain.

ISSUES AND STANDARDS OF REVIEW

T9 Sloan challenges the trial court's admission of a videotaped interview of R.M. and its admission of witness testimony that bolstered the credibility of R.M.'s testimony. We review the trial court's decision to admit evidence for abuse of discretion. See State v. Pena, 869 P.2d 982, 938 (Utah 1994).

ANALYSIS

I. Admission of Video Testimony

€ 10 Sloan challenges the trial court's admission of R.M.'s videotaped testimony on the grounds that the videotaped testimony was unreliable, prejudicial, and violated his constitutional right to confront the witnesses against him.

{11 The general rule in criminal cases is that "a contemporaneous objection or some form of specific preservation of claims of error must be made a part of the trial court record before an appellate court will review such claim on appeal." State v. Johnson, 774 P.2d 1141, 1144 (Utah 1989) (quoting State v. Tillman, 750 P.2d 546, 551 (Utah 1987)). "[The preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that 'exceptional cireumstances' exist or 'plain error' occurred." State v. Holgate, 2000 UT 74, € 11, 10 P.8d 346.

$12 Sloan claims he preserved his arguments below by filing an objection to the State's Motion for Admission of Child Vice-tim's Statement and Admission of Out-of-Court Statements to Third Parties. Sloan's objection, however, argued inadmissible hearsay and prejudice. It made no reference to reliability or constitutional rights. Moreover, Sloan did not otherwise preserve these issues in the record, and he does not argue exceptional cireumstances or plain error on appeal. Accordingly, we decline to consider whether the videotaped testimony was reliable or whether admission of the testimony violated Sloan's constitutional rights. See Johnson, T74 P.2d at 1144.

Sloan's remaining contention concerns the prejudicial value of the videotaped testimony. Sloan sets forth a three-paragraph argument against the admissibility of the videotaped testimony based on prejudice. The first two paragraphs are misplaced because they deal with Sloan's constitutional concern that he was not permitted to confront R.M. at trial The last paragraph contains no legal analysis or authority and simply concludes that the videotape was prejudicial because "[the outcome at trial would have likely been different absent the admission of R.ML.'s interview."

Briefs that are not in compliance with Rule 24 [of the Utah Rules of Appellate Procedure] may be disregarded or stricken sua sponte by the court. Briefs must contain reasoned analysis based upon relevant legal authority. An issue is inadequately briefed when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court.

Smith v. Smith, 1999 UT App 370, T8, 995 P.2d 14 (quotations and citations omitted); see also Utah R.App. P. 24. Sloan's argument regarding the prejudicial value of the videotaped testimony contains no legal analysis and cites no legal authority. Accordingly, we conclude this issue is inadequately briefed and decline to address it.

II. Admissibility of Witness Testimony

14 Sloan next challenges the trial court's admission of testimony by Tracie McEwan, Sandy Watson, and Toni Hughes regarding statements made to them by R.M.

A. MceEwan's Testimony

115 Sloan asserts the trial court improperly permitted McEwan to repeat out-of-court statements made by R.M. regarding Sloan's alleged sexual abuse. Sloan argues this issue in five sentences of legal conclusions with no legal analysis. Therefore, we decline to address this issue because it is inadequately briefed. See Smith, 1999 UT App 370 at 1 8, 995 P.2d 14.

B. Watson's Testimony

16 Sloan also asserts the trial court improperly permitted Watson to repeat out-of-court statements made by R.M. regarding Sloan's alleged sexual abuse. Specifically, Sloan claims R.M.'s statements to Watson were unreliable because (1) Watson received information from both R.M. and her mother, making the exact source of the statements indeterminable; (2) R.M.'s statements were made nearly seven months after the abuse; (3) the statement occurred while R.M. was making similar disclosures to her mother and being interviewed at the Children's Justice Center; and (4) the statements presented to the jury were from notes following Watson's sessions with R.M. rather than memory. None of these contentions have merit.

17 In State v. Pecht, 2002 UT 41, ¶ 23, 48 P.3d 981, our supreme court upheld the admission of statements made over a year after the alleged abuse occurred. The court noted that the trial court's findings concerning the dates of abuse and the dates of the statements "demonstrates the trial court's awareness of the length of time between the abuse and the statements." Id. It also noted that "there is no indication that the passage of time had any material effect on the reliability of the statements." Id. The same analysis applies here. The trial court found that the alleged sexual abuse between R.M. and Sloan occurred between May 19, 2000, and July 6, 2000, and that R.M.'s statements to Watson were made over a period of time from September 9, 2000 to January 2001. The trial court also found that R.M. was not under any pressure to disclose abuse and that her statements to Watson were not elicited by questioning. Thus, the trial court was aware of the length of time between the alleged abuse and the statements, but it did not find the passage of time to have any bearing on the reliability of R.M.'s statements to Watson.

118 Pecht also rejected the defendant's claim that the court "failed to adequately consider 'the number of times the statement was repeated [to other people] or rehearsed.' " Id. at 124. The court held that "the absence of the [trial] court's express consideration of this element is not error since there is no suggestion that the victim's testimony was memorized or rehearsed" and "the trial court specifically found that none of the statements were prompted, made under improper duress, or affected by any motive to fabricate." Id. Here, the trial court specifically found that R.M.'s statements were spontaneous, that they were not elicited by questioning, but volunteered by the child, and that R.M. was not under any pressure to make them. In light of these findings, Sloan's claim that the statements are unreliable because R.M. was simultaneously making statements to other people fails.

119 Sloan's claim that R.M.'s statements to Watson were unreliable because they were from the notes following Watson's sessions with R.M., and were therefore not presented verbatim to the jury, suffers the same fate. First, Watson's progress notes are replete with statements recording what RM. said, many with quotation marks around them. Sloan has presented no evidence showing that these statements were not recorded verbatim or close to it. Second, no Utah case law requires that statements be reproduced verbatim. Rather, " ° "whether the statement is reproduced verbatim in court" ' " is merely one factor in determining its reliability. State v. Quinonez-Gaiton, 2002 UT App 273, ¶ 23, 54 P.3d 139 (quoting State v. Matsamas, 808 P.2d 1048, 1051 (Utah 1991) (quoting State v. Nelson, T25 P.2d 1353, 1856 n. 3 (Utah 1986))). Because the focus is on reliability, the concern is not whether the statements are produced verbatim in court, but whether they are reproduced in a manner that ensures their accuracy. The trial court's finding that R.M.'s statements to Watson were recorded in her treatment notes, during or shortly after each session, indicates that the trial court considered that question.

$20 Finally, Sloan attacks some of Watson's statements as having come from R.M.'s mother instead of R.M. directly. Sloan affirmatively waived this claim below. The trial court's ruling in this case allowed for the admission of statements made by R.M. during her therapy sessions with Watson. If Watson testified to statements made outside those sessions, le., statements Watson learned through R.M.'s mother, Sloan had an obligation to object to the admission of the statements at the time they were offered. See State v. Hardy, 2002 UT App 244, ¶15, 54 P.8d 645 (holding that requirement for specific, timely objection "arises out of the trial court's need to assess allegations by isolating relevant facts and considering them in the context of the specific legal doctrine placed at issue." (citation omitted)). However, Sloan made no objection to the evidence when admitted, instead hoping to undermine its weight on cross-examination. Although Sloan was unsuccessful in this attempt, his willingness to forego objecting in the hopes of undermining the witness's testimony on cross-examination is a strategic choice that forecloses review of the matter on appeal. See State v. Bullock, 791 P.2d 155, 159 (Utah 1989) ("If the decision [to not object] was conscious and did not amount to ineffective assistance of counsel, this Court should refuse to consider the merits of the trial court's ruling."). Consequently, Sloan's claim fails.

C. - Hughes's Testimony

$21 Lastly, Sloan claims the court erred under State v. Rimmasch, 775 P.2d 388 (Utah 1989), in allowing Toni Hughes to provide an opinion that R.M. was truthful when making statements to her about sexual abuse Sloan's claim fails on the merits.

122 In Rimmasch, the supreme court made three holdings that Sloan now invokes. First, "an expert may not testify that ... the story of an alleged victim in a child abuse case was true." State v. Kallin, 877 P.2d 138, 140 (Utah 1994) (citing Rimmasch, P.2d at 892); see also Rimmasch, T5 P.2d at 391-92 (holding rule 608(a) of the Utah Rules of Evidence "bars admission of an expert's testimony as to the truthfulness of a witness on a particular occasion"); Utah R. Evid. 608(a). Second, an expert cannot testify "that an alleged child abuse victim had been abused if the opinion was based, even in part, on the conformance of a victim's behavior to a child sexual abuse profile if there was no scientific evidence establishing the scientific accuracy of the profile in identifying sex abuse victims." - Kallin, 877 P.2d at 140 (citing Rimmasch, Tb P.2d at 890, 898). Finally, "an expert [cannot base testimony that a child had been sexually abused on the expert's acceptance of the victim's story as a truthful account." Kallin, 877 P.2d at 140-141.

123 Sloan's brief is unclear regarding how the trial court allegedly violated Rimmasch. It seems to imply, however, that the trial court improperly allowed Hughes to testify definitively that R.M. had been abused, and that Hughes violated Rimmasch by testifying that R.M. was telling the truth when she made her allegations.

[ 24 To the extent these are Sloan's claims, the record does not support them. Hughes never testified that R.M. had been sexually abused. Moreover, she did not testify that R.M. was telling the truth when she claimed she was abused or that Hughes's conclusions regarding R.M.'s behavior were based on her belief that R.M. was telling the truth.

125 Rather, Hughes testified only that, based on the behavioral information she had gathered from interviewing R.M. and from people who had observed R.M.'s behavior before and after the alleged abuse, R.M.'s behavior was consistent with sexual abuse. The supreme court has held that this evidence is admissible under Rimmasch - See State v. Loose, 2000 UT 11, ¶ 11, 994 P.2d 1237 (holding "properly founded expert testimony that is limited to the statement that a particular child's behavior is 'consistent with' symptoms that might be exhibited by one who was sexually abused" is admissible); Kallin, 877 P.2d at 141 (holding that, where expert "does] not ... testify to any kind of sexual abuse profile as such," her testimony "that the victim's symptoms were 'consistent with sexual abuse" is admissible).

CONCLUSION

126 We decline to address whether the trial court properly admitted R.M.'s videotaped testimony because Sloan did not properly preserve two of his three arguments on the issue and inadequately briefed the third. Similarly, we decline to address whether the trial court properly admitted out-of-court statements made by R.M. to McEwan because Sloan did not adequately brief the issue. We cannot say the trial court improperly admitted Watson's testimony because neither the fact that R.M.'s statements were made nearly seven months after the abuse nor the fact that R.M. was simultaneously making similar statements to other people undermines the reliability of the statements, and Utah law does not require that the child's statements be reproduced verbatim. Finally, we cannot say the trial court improperly admitted the testimony of Hughes because testimony that a particular child's behavior is consistent with child abuse is admissible.

T27 I CONCUR: PAMELA T. GREENWOOD, Judge.

1 28 I CONCUR IN THE RESULT: GREGORY K. ORME, Judge.

      . Sloan's argument regarding the out-of-court statements made by McEwan to R.M. relies solely on the following legal conclusions: "The statements were hearsay, ... [they] went to the truth of the allegations made by R.M., ... [they] bolster[ed] the credibility of RM.'s unreliable statements[, and they were] unduly prejudicial." Sloan then cites two cases for the proposition that a conviction must be based on substantial reliable evidence, but he provides no legal analysis linking his conclusions and the cited authority. An argument that does not contain "reasoned analysis based upon relevant legal authority" is inadequately briefed, and we will not consider the issue. Smith v. Smith, 1999 UT App 370, ¶ 8, 995 P.2d 14.

      . Sloan also claims the trial court improperly allowed Hughes to testify about out-of-court statements made to her by R.M. Hughes's testimony was admissible as substantive evidence under rule 803(4) of the Utah Rules of Evidence. Under rule 803(4), "[s]tatements made for purposes of medical diagnosis or treatment" are "not excluded by the hearsay rule," whether or not the declarant testifies. Utah R. Evid. 803(4). This rule has been applied to psychiatrists and psychologists, see State v. Jaeger, 1999 UT 1, ¶ 27, 973 P.2d 404; State v. Schreuder, 726 P.2d 1215, 1224 (Utah 1986), as well as social workers and therapists. See United States v. Balfany, 965 F.2d 575, 581 (8th Cir1992); State v. Stancil, 146 N.C.App. 234, 552 S.E.2d 212, 217 (2001). Hughes, a licensed clinical social worker, was engaged by the prosecutor to diagnose R.M.'s mental and emotional condition as it related to her ability to testify at trial. During her evaluation, Hughes concluded that the symptoms exhibited by R.M. were consistent with those exhibited by a child who had been sexually abused. Both before and at trial, Hughes testified that her interview with R.M. was relevant to these diagnoses. Accordingly, we cannot say the trial court erred in allowing Hughes to testify regarding out-of-court statements made to her by R.M.


author: THORNE, Judge:

text:
    2003 UT App 171
    Lucille BEARDEN; Dorothy Lucille Christensen Bearden, as Trustee of the Lucille Bearden Family Trust; and Harold Dee Bearden, Plaintiffs and Appellees, v. WARDLEY CORPORATION dba Wardley Better Homes & Gardens; Guy Gritton; Charlene - Burns-Nielson; - Backman Stewart Title Services, Ltd.; and Old Republic Surety Group, Defendants and Appellant.
    No. 20011036-CA.
    Court of Appeals of Utah.
    May 30, 2003.

      Kevin N. Anderson, Fabian & Clendenin, Salt Lake City, for Appellant.
    Thomas R. Barton and James W. MeConk-ie III, Prince Yeates & Geldzahler, Salt Lake City, for Appellees.
    Before Judges BENCH, DAVIS, and THORNE.
   OPINION

THORNE, Judge:

T1 Wardley Corporation, dba Wardley Better Homes & Gardens (Wardley), appeals from a jury verdict in favor of Lucille Bear-den, the Lucille Bearden Family Trust, and Harold Dee Bearden (collectively Bearden). We affirm.

BACKGROUND

T2 Lucille Bearden decided to sell rental property (the property) owned by a family trust for which she was the trustee. Bear-den listed the property with real estate agent Guy Gritton, who worked for Wardley Corporation, a real estate brokerage firm. Shortly after listing the property, Gritton told Bear-den that he wanted to purchase the property for $89,000. Bearden agreed and the parties decided that Gritton would take immediate possession of the property and that Gritton would pay Bearden $400 per month followed by a one-time balloon payment at the end of five years. Bearden was to retain title until Gritton made the balloon payment.

T3 Bearden and Gritton met on July 11, 1997 to execute the real estate and financing documents. Unbeknownst to Bearden, Grit-ton obtained Bearden's signature on a warranty deed that purported to immediately transfer title of the property to Gritton. Gritton later had Bearden's signature on the warranty deed notarized improperly and then recorded the deed.

I 4 Gritton took possession of the property and made sporadic payments to Bearden. After Bearden sought legal help to enforce the parties' agreement, Bearden learned that Gritton had recorded the fraudulently obtained warranty deed, had borrowed money against the property, and that the property was in foreclosure. Bearden paid approximately $60,000 to keep the property from being foreclosed and then filed suit against Gritton and Wardley claiming breach of contract, fraud, negligent misrepresentation, unjust enrichment, breach of fiduciary duty, and conversion. A jury returned a $75,000 judgment against both Gritton and Wardley. The jury also awarded $25,000 in punitive damages against Gritton and $15,000 against Wardley. In addition, the jury awarded Bearden $1,107.00 in costs, $46,970.00 in attorney fees, and $7,203.00 in prejudgment interest. Wardley appeals.

ISSUES AND STANDARDS OF REVIEW

15 Wardley asserts three arguments on appeal: First, Wardley argues that the trial court erred in not granting its motion for summary judgment and/or directed verdict. " "Whether the trial court properly granted summary judgment is a question of law that we review for correctness, according no deference to the trial court's legal conclusions." " Walter v. Stewart, 2003 UT App 86, ¶15, 67 P.3d 1042 (quoting Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 14, 52 P.3d 1179).

16 Wardley also argues that the trial court erred by not following rule 47(0) of the Utah Rules of Civil Procedure when it communicated with the jury during deliberations without notifying the attorneys.

The determination of the propriety of a trial court's communication with a jury during deliberations is reviewed under a correction-of-error standard, and the trial court will be reversed only if the error is "substantial or prejudicial ... such that the result would have been different had it not taken place."

Board of Comm'rs, Utah State Bar v. Petersen, 987 P.2d 1268, 1267 (Utah 1997) (ellipsis in original) (quoting Tyas v. Proctor, 591 P.2d 488, 441 (Utah 1979)).

17 Wardley next argues that the damage award is not supported by the evidence. "[The adequacy of a damage award is a factual question" that we will reverse only if "clearly erroneous." Lysenko v. Sawaya, 1999 UT App 31, ¶ 6, 973 P.2d 445, modified 2000 UT 58, 7 P.3d 783.

ANALYSIS

T8 Wardley argues that the trial court erred in not granting its motion for summary judgment and/or directed verdict because Bearden did not introduce evidence regarding Wardley's duty to Bearden or the resulting breach. Bearden introduced into evidence a listing contract drafted by Ward-ley and signed by Gritton, individually and as Wardley's agent. The listing contract provided:

Wardley Better Homes & Gardens and the Agent agree to act as agent for the Seller and will work diligently to locate a Buyer for the Property. As the Seller's agent, they will act consistent with their fiduciary duties to the Seller of loyalty, full disclosure, confidentiality, and reasonable care.

(Emphasis added.) Bearden also introduced evidence that it was Wardley's policy to have management or a supervisor review the doe-uments in its transaction files and that Ward-ley had an internal policy that prohibited agents from purchasing properties that agent listed. From this evidence, the jury could have found that Wardley owed Bearden the fiduciary duties of "loyalty, full disclosure, confidentiality, and reasonable care."

T9 Bearden also introduced sufficient evidence for the jury to find that Wardley breached its own duty of care to Bearden. Bearden introduced evidence that (1) Gritton . was employed by Wardley, (2) Wardley was aware that Gritton had executed a listing agreement and a real estate purchase agreement with Bearden wherein Gritton acted as buyer and seller's agent and the purchaser of the property, (3) Wardley never questioned Gritton about violating its internal policy against an agent purchasing property listed by that agent, (4) Wardley never asked Grit-ton to stop representing Bearden, and (5) Wardley never informed Bearden of Gritton's violations of the internal policy. This evidence is sufficient for the jury to find that Wardley breached its duty of care to Bear-den.

1 10 Furthermore, the jury made a specific finding that Wardley breached a fiduciary duty owed to Bearden. Wardley has not adequately marshaled the evidence in support of this finding and attempts to marshal the evidence only as it relates to Wardley's vicarious liability. See Harding v. Bell, 2002 UT 108, ¶19, 57 P.3d 1098 ("When challenging a jury's verdict, a party must 'marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdiet.' " (citation omitted)). In light of the evidence introduced, and because Wardley did not adequately marshal the evidence in support of the jury's findings, we conclude that Wardley's claim that the trial - court erred in not granting its motion for summary judgment/directed verdict is without merit.

T11 Next, Wardley claims that the trial court violated rule 47(0) of the Utah Rules of Civil Procedure when it communicated with the jury without first notifying either party or their attorneys. "[A] court's communication with a jury will be considered reversible error only if the error is 'substantial or prejudicial ... such that the result would have been different had it not taken place' " Board of Comm'rs, Utah State Bar v. Petersen, 937 P.2d 1263, 1270 (Utah 1997) (ellipsis in original) (quoting Tyas v. Proctor, 591 P.2d 438, 441 (Utah 1979)). Rule 47(0) states:

After the jury have [sic] retired for deliberation, if there is a disagreement among them as to any part of the testimony, or if they desire to be informed on any point of law arising in the cause, they may require the officer to conduct them into court. Upon their being brought into court the information required must be given in the presence of, or after notice to, the parties or counsel. Such information must be given in writing or stated on the record.

(Emphasis added.) "The language of rule 47(0) seems to require notification of the attorneys only when the jury is conducted into the courtroom in the presence of the judge." Petersen, 937 P.2d at 1271.

112 Moreover, even if the trial court's communication process with the jury was error under rule 47(0), that error was harmless. See Utah R. Civ. P. 61 (noting that this court "must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties"). Wardley argues that the jury's questions highlight that the jury was improperly instructed about vicarious liability. However, because we have already concluded that sufficient evidence was introduced to support the jury's specific finding that Wardley breached its own fiduciary duty of care to Bearden, we need not resolve the question of any perceived error relating to the issue of vicarious liability. Cf Petersen, 987 P.2d at 1271. Thus, we conclude, even if the trial court's means of communication with the jury was error under rule 47(0), that error was harmless. See Tingey v. Christensen, 1999 UT 68, 16, 987 P.2d 588 (noting that "[eJrrors require reversal only if confidence in the jury's verdict is undermined").

1183 Wardley next argues that the damage award is not supported by the evidence. Wardley " 'must marshal all evidence supporting the verdiet' and then show that the evidence cannot support the verdict." Dejavue, Inc. v. U.S. Energy Corp., 1999 UT App 355, ¶ 12, 998 P.2d 222 (quoting Von Hake v. Thomas, 705 P.2d 466, 769 (Utah 1985)). " 'The burden on an appellant to establish that the evidence does not support the jury's verdict ... is quite heavy." " Id. (quoting Cambelt Int'l Corp. v. Dalton, 745 P.2d 1289, 1242 (Utah 1987)). "[TJhe amount of the verdict is a matter exclusively for the jury and unless such an award clearly indicates the jury's disregard of competent evidence or the influence of passion or prejudice, the trial court may not interfere with the jury's determination." Batty v. Mitchell, 575 P.2d 1040, 1048 (Utah 1978).

1 14 In this case, Wardley has not properly marshaled the evidence upon which the jury could have based a finding that Bearden was injured in the amount of $75,000. Wardley admits that Bearden was injured in the amount of almost $60,000, but then argues the remaining $15,000 in damages is unsupported by the record. We disagree. Ward-ley overlooks evidence that Bearden testified that she paid $8,000 to $10,000 in interest on loans to keep the property from being fore-cloged, that before Gritton agreed to purchase it Bearden rented the property for $600 to $625 per month, that Gritton's monthly payments were only $400 per month, and that Gritton lived in the property for several months without making any payments. This is sufficient evidence to support the jury's award of $75,000 in damages. Wardley has not met its burden to show that the jury award was the result of "passion or prejudice." Batty, 575 P.2d at 1043. Thus, we affirm the damage award.

$15 Lastly, Bearden has requested attorney fees on appeal. The listing contract signed by the parties entitles the prevailing party to an award of attorney fees and costs "Jln any action, proceeding or arbitration arising out of" that contract, and we award Bearden attorney fees and costs on this basis. See Management Servs. Corp. v. Development Assocs, 617 P.2d 406, 409 (Utah 1980) (noting that the prevailing party in a suit to enforce a contract is entitled to attorney fees both at trial and on appeal).

CONCLUSION

16 The trial court properly denied Ward-ley's motion for summary judgment/directed verdict because there was sufficient evidence from which the jury could have found that Wardley breached a duty of care to Bearden. Also, even if the trial court improperly communicated with the jury during deliberations, that error was harmless. Lastly, the jury award is supported by the evidence and is not the result of passion or prejudice.

117 The jury verdict is affirmed and the case is remanded to the district court for an award of attorney fees and costs to Bearden.

{18 WE CONCUR: RUSSELL W. BENCH and JAMES Z. DAVIS, Judges.

      .. Bearden also filed suit against the individual who improperly notarized her signature, the surety that held the notary's bond, and the notary's employer. However, Bearden settled with these parties and subsequently they were dismissed from the lawsuit.

      . Wardley cites as an issue on appeal the validity of the attorney fee award, however, Wardley abandons this issue by not developing this argument or citing any cases in support thereof in the body of the brief. See Utah R.App. P. 24 (requiring appellants to brief their arguments); see also State v. Wareham, 772 P.2d 960, 960 (Utah 1989) (noting that "a brief must contain some support for each [of its] contentions").

      . Wardley actually argues that the trial court erred by not following rule 47(n) of the Utah Rules of Civil Procedure. However, in 2003 rule 47 was amended and renumbered as rule 47(0). See Utah R. Civ, P. 47. We cite to the most recent version of the rule throughout the opinion.

      . We also note that Wardley failed to comply with the mandates of rule 24 of the Utah Rules of Appellate Procedure. Wardley cites to no case law or any portion of the record to support this claim. Rule 24 places the burden upon the appellant to properly brief the issues for review. See Utah R. Civ. P. 24. "An issue is inadequately briefed when 'the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court.' " Smith v. Smith, 1999 UT App 370, ¶ 8, 995 P.2d 14 (citation omitted). Wardley has improperly shifted the burden of research and 'argument to this court. Thus, we could decline to address this issue on this ground alone, however, because we can easily dispose of Wardley's claim that there was insufficient evidence of Wardley's duty and the resulting breach, we do so.

      . - Wardley also claims that the trial court erred in not granting its motion for summary judgment/directed verdict because there was no evidence that Wardley was vicariously liable for Gritton's actions. In similar fashion, Wardley argues that the jury instructions defining "agent" were misleading, that the special verdict misstated the burden of proof for fraud, and that both these errors affected the jury's finding of vicarious liability. Because we find that the evidence is sufficient to sustain the jury verdict that Ward-ley breached its own duty to Bearden, we need not address the issue of vicarious lability.

      . Here, the jury asked the judge the following two questions: (1) "Does 'Acts' mean all or any one of the offending actions of Mr. Gritton?"; and (2) "Does 'Acts' refer only to the "defrauding and/or fiduciary duties of Mr. Gritton?" In response, the judge wrote: "The term 'acts' is intended to refer to the alleged offending conduct described in Ques. # 1 only."

      . Wardley only argues that the $75,000 compensatory damage award is not supported by the evidence and does not attack the punitive damages award. Instead, Wardley argues that the jury erred in awarding punitive damages because it should not be punished for Gritton's actions. Wardley fails to recognize that there was sufficient evidence from which the jury could have imposed punitive damages against Wardley for its own conduct or that the jury found "by clear and convincing evidence that the acts or omissions of Wardley were a result of willful and malicious conduct, or conduct that manifested a knowing reckless indifference toward, and a disregard for, the rights of ... Bearden."

      . In the future, it would be helpful for parties requesting attorney fees to set forth in more detail the basis for such an award rather than merely relying upon a bald assertion that they are entitled to fees.


author: KITE, Justice.

text:
    2003 WY 81
    John STONEKING, Appellant (Plaintiff), v. WHEATLAND RURAL ELECTRIC ASSOCIATION, Appellee (Defendant).
    No. 02-127.
    Supreme Court of Wyoming.
    July 7, 2003.

      Tina N. Kerin, Cheyenne, Wyoming, Representing Appellant.
    Stephen N. Sherard of Sherard Sherard & Johnson, Wheatland, Wyoming, Representing Appellee.
    Before HILL, C.J.; GOLDEN, LEHMAN, and KITE, JJ.; and E. JAMES BURKE, D.J.

       Order entered March 6, 2003, permitted Ms. Ke-rin to withdraw as counsel for Appellant.

   KITE, Justice.

[¶1] John Stoneking filed three pro se actions against Wheatland Rural Electric Association (WREA) and individual WREA employees in the justice court for Platte County. All three actions were based on a disruption of the electrical service in January and February of 1998 to the home in which Mr. Stoneking was living. Ultimately, Mr. Sto-neking hired counsel and filed this action in the district court. The district court granted summary judgment finding Mr. Stoneking's action was precluded by the doctrine of res judicata. We affirm.

ISSUES

[¶2] Mr. Stoneking frames two issues:

I. Whether the trial court erred in dismissing Appellant's first amended complaint, based upon res judicata?

II. Whether Appellant was denied due process of law by the trial court's dismissal of his first amended complaint?

FACTS

[¶3] In January of 1998, Mr. Stoneking was living with his girlfriend who was renting a house in Wheatland from Clora Harris. In what was apparently a landlord-tenant dispute, Ms. Harris disconnected the electrical meter and interrupted the electrical service to the property on or about January 27, 1998, and for some time in February 1998 as well. Mr. Stoneking had the electrical service put in his name, and the power was restored. Ms. Harris again disconnected the meter and padlocked the electric box. When Mr. Stoneking asked WREA to remove the padlock by cutting it off the box, it declined. Mr. Stoneking claimed the interruption of the electrical service caused food kept in a freezer to spoil, certain other expenses, and mental suffering. He also claimed WREA should have prosecuted Ms. Harris for her interference with his electrical service.

[¶4] On May 5, 1998, Mr. Stoneking filed his first pro se action in the justice court against WREA and Chuck Witte, a WREA employee, alleging damages of $1,834 caused by violation of Wyo. Stat. Aun. §§ 37-12-202, 87-12-208, 37-12-401, and 37-12-4022 (Lexis-Nexis 2003). On June 3, 1998, the court granted WREA's and Mr. Witte's motions to dismiss with prejudice finding it had no jurisdiction, the complaint lacked properly stated allegations, and the statutes were inapplicable. No appeal of this dismissal was filed.

[¶5] Almost immediately thereafter, Mr. Stoneking filed a second action pro se against "President of W.R.E.A. William J. Stafford," again alleging damages in the amount of $1,834 caused by: (1) "Breach of Contract"; (2) "going on up to 8.5 days without electricity in Jan 1998 and Feb 1998"; and (38) "no one would do anything to help till I got a third party involved." This case was dismissed without prejudice on or about July 8, 1998, pursuant to Mr. Stoneking's request.

¶16] Mr. Stoneking filed a third action pro se in November of 1999 against Chuck Witte, "Manager for WREA," alleging WREA stole Mr. Stoneking's connection box breakers and caused him $450 in damages. A hearing was held on December 14, 1999, at which testimony and exhibits were received. The record contains no transeript or recording of this proceeding. The justice court issued a decision letter on December 15, 1999, finding: (1) Mr. Stoneking and his girlfriend signed an instrument on April 2, 1998, indicating they did not intend to take legal action against WREA; (2) on April 12, 1999, Mr. Stoneking asked WREA to remove the meter box; (8) Mr. Stoneking signed an agreement prepared by WREA acknowledging he would be responsible for the cost of the work to remove the box; (4) Mr. Stoneking hired Jack's Electric & Plumbing to perform the work for which he was charged $450; (5) WREA owned the equipment, not Mr. Stoneking, and could not have stolen its own property. The justice court dismissed Mr. Stoneking's complaint for failure to state a claim upon which relief could be granted. Similarly, the justice court dismissed WREA's counterclaim which purportedly was filed because Mr. Stoneking "was a pain and was causing them a lot of extra work." The record does not reflect any order beyond the justice court's decision letter.

[¶7] Mr. Stoneking filed an appeal in district court which was dismissed because he failed to submit a brief as required by W.R.A.P. 7.06(a) and the "Complaint" filed as a notice of appeal attempted to reargue the facts and did not provide a statement of cogent reasons why, as a matter of law, the case should be reversed. Mr. Stoneking did not appeal from the dismissal.

[¶8] A fourth action, the subject of this appeal, was filed in the district court by counsel on behalf of Mr. Stoneking on February 2, 2000, naming only WREA as a defendant. This action alleged WREA negligently, willfully, and wantonly failed and refused to promptly restore utility service in January and February of 1998 in violation of the National Electrical Code and Wyo. Stat. Ann. § 87-12-212 (LexisNexis 2003) and refused to prosecute Ms. Harris pursuant to Wyo. Stat. Ann. § 87-12-117 (LexisNexis 2003) An amended complaint added breach of contract and fraud claims. WREA filed a motion to dismiss contending this fourth lawsuit was precluded by the doctrine of res judicata or, alternatively, collateral estoppel. After a hearing held on February 28, 2002, the district court issued a four-page decision letter which converted the WREA motion into a motion for summary judgment and granted the same on the basis that the action was precluded by the doctrine of res judicata. This appeal followed.

STANDARD OF REVIEW

[19] When reviewing a grant of summary judgment, we utilize our oft-repeated standard of review. We determine whether a genuine issue of material fact exists and the prevailing party is entitled to have a judgment as a matter of law. Slavens v. Board of County Commissioners for Uinta County, 854 P2d 683, 685 (Wyo.1993); Davidson v. Sherman, $48 P.2d 1341, 1343 (Wyo.1998); W.R.C.P. 56(c). When there is no contention that a genuine issue of material fact exists, our concern is strictly with the application of the law. Goglio v. Star Valley Ranch Association, 2002 WY 94, 112, 48 P.3d 1072, 112 (Wyo.2002). "We review a grant of summary judgment deciding a question of law de novo and afford no deference to the district court's ruling." Id.; see also Hirschfield v. Board of County Commissioners of the County of Teton, 944 P.2d 1189, 1141 (Wyo.1997).

DISCUSSION

[110] The district court thoroughly analyzed the application of the doctrine of res judicata to the cireumstances of the actions filed by Mr. Stoneking and determined the justice court order issued in the third action precluded the fourth action filed in the district court. Relying on this Court's opinion in Swasso v. State ex rel. Wyoming Worker's Compensation Division, 75l P.2d 887 (Wyo.1988), the district court considered the four factors necessary to invoke the doctrine of res judicata. We agree the correct test was applied.

Res judicata bars the relitigation of previously litigated claims or causes of action. Four factors are examined to determine whether the doctrine of res judicata applies: (1) identity in parties; (2) identity in subject matter; (8) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in reference to both the subject matter and the issues between them.

Eklund v. PRI Emvironmental, Inc., 2001 WY 55, ¶15, 25 P.3d 511, 115 (Wyo.2001) (citation omitted).

[T11] The district court found: The parties in fact need not be identical but rather in privy with the original parties. Roush v. Roush, 889 [589] P.2[ ] d 841 (Wyo.1979). Clearly WREA is in privy with its president and its manager. Nevertheless, in the 9911-0009 suit, WREA did appear as a counter-claim party. Thus, the first requirement of the Swasso case was met.
It is further clear that the subject matter of the suits was the same. That was essentially admitted to by [Mr. Stoneking] in his deposition and his counsel at argument. Furthermore, _ CV-9911-0009, through its incorporation of CV-9806-0009, indicate[s] that the subject matter was indeed the same.
For the same reason, the issues were the same and therefore the third requirement of the Swasso case was met.
Finally, there is no question but the capacities of the parties were identical in relationship to the subject matter and the issues between them.
In the [third justice court action-CV-9911-0009] tried before Judge Connolly, [Mr. Stoneking] was clearly afforded the opportunity and should have litigated all issues arising under the factual circumstances pertaining to WREA that have given rise to this dispute....
.... This Court finds that the verdict in that case against Mr. Stoneking is res jw-dicata.
This Court also notes that [Mr. Stonek-ing's] claim for fraud should have been brought in the earlier suit, but that it is so non-specific in this matter, it should nevertheless be dismissed for that reason alone.

We agree with the district court's reasoning and conclude it properly applied the principles of the doctrine of res judicata in dismissing Mr. Stoneking's claims. The multiple suits should have been brought at one time in the proper judicial forum and should have raised all issues related to the incident.

In addition to precluding issues previously raised and litigated from being the subject of later challenges, the doctrine precludes issues that could have been raised in the first action. Cermak v. Great West Casualty Company, 2 P.3d 1047, 1054 (Wyo.2000). We have explicitly stated that claim preclusion has "the effect of foreclosing any litigation of matters that never have been litigated because of a determination that they should have been advanced in an earlier suit." Id. at 1058. A full and fair opportunity to litigate an issue is all that is required for the doctrine to apply. Bender v. Uinta County Assessor, 14 P.3d 906, 910 (Wyo.2000); Wilkinson v. State ex rel Wyoming Workers' Safety and Compensation Division, 991 P.2d 1228, 1234 (Wyo.1999).

Wyodak Resources Development Corporation v. Wyoming Department of Revenue, 2002 WY 181, ¶12, 60 P.3d 129, ¶12 (Wyo. 2002). The doctrine of res judicata furthers society's interest in having disputes conclusively resolved in a single action and minimizing the expense and difficulties of picce-meal litigation. DLB v. DJB (Paternity of JRW), 814 P.2d 1256, 1264 (Wyo.1991).

[112] Mr. Stoneking contends he was denied due process of law. The record is clear that Mr. Stoneking was afforded plenty of due process. Yet, he believes he is entitled to more-presumably until he per-feets his claims and his choice of forum. We recognize that the earlier actions were pursued pro se and lacked a clear and thorough articulation of the issues. The fact that the prior cases may not have been well litigated does not permit multiple, repetitious actions.

"One has the right to appear pro se; but when a person chooses to do so, he must be held to the same standard as if he were represented by counsel. He cannot expect the court or the attorneys for other parties to present his case. He cannot be given an advantage by virtue of his pro se appearance, and he cannot be placed at a disadvantage thereby other than whatever disadvantage results from his decision to proceed without the assistance of counsel."

RM v. State, Department of Family Services (Interest of KMM), 957 P.2d 296, 298 (Wyo. 1998) (quoting Johnson v. Aetna Casualty and Surety Company of Hartford, Connecticut, 630 P.2d 514, 517 (Wyo.), appeal dismissed and cert. denied, 454 U.S. 1118, 102 8.Ct. 961, 71 LEd.2d 105 (1981)). "Although a certain leniency is accorded to pro se litigants, the proper administration of justice requires reasonable adherence to the same rules of evidence, procedure and requirements of the court as expected of those qualified to practice law." Dewey v. Dewey, 2001 WY 107, ¶17, 38 P.8d 1148, Y 17 (Wyo.2001).

[¶13] Affirmed.

      . These statutes are entitled as follows: § 37-12-202-'"Public utility personnel violating or aiding or abetting in violations"; § 37-12-208-'"Utility liable for loss or damage"; § 37-12-401-"Defi-nitions" under Article 4 entitled "Civil Remedies for Wrongful Use of Utility Facilities"; and § 37-12-402-'"Civil action allowed."

      . Section 37-12-212 provides:
      Every public utility, all officers and agents of any public utility, and every person shall obey, observe and comply with every provision of this act and with every order made by the commission under authority of this act and duly served in accordance with its provisions so long as the same shall be and remain in force. Any public utility or its officers or agents, and any other persons, who shall knowingly and willfully violate any of the provisions of this act is punishable as a misdemeanor or felony, or who fails, omits or neglects to obey, observe or comply with any order or any direction or requirement of the commission, shall (in addition to liability to the party aggrieved for all damages sustained by reason of such violation) forfeit to the state not to exceed the sum of one thousand dollars ($1,000.00) for each and every violation, or in case of a violation which is punishable as a misdemeanor or felony, not to exceed the maximum sum fixed as a fine therefor, which shall be recovered in an action at law to the use of the state upon the complaint of the commission appearing by its attorney or the attorney general; but no such action shall be maintained unless brought within two (2) years after the date of such violation; nor shall such an action be maintained in the case of a person who has already been convicted for the same violation of this act, and recovery by civil action brought in accordance with this section shall not be a bar to any criminal prosecution for the same violation of this act.

      . Section 37-12-117 provides:
      Any person who willfully injures, alters or by any instrument, device or contrivance in any manner interferes with or obstructs the action or operation of any meter for measuring electricity or the amount or quantity of electricity passing through it without the knowledge and consent of the person or corporation owning said meter, shall be deemed guilty of a misdemeanor and punished as provided in section 4 hereof [§ 37-12-1181.

      . We decline to review or consider a Public Service Commission consumer complaint raised in the pleadings as yet another of the multiplicity of actions filed by Mr. Stoneking. That action, which was dismissed, was pursued in an administrative forum and did not address claims of damage related to negligence, breach of contract, or fraud. Likewise, we decline to review a complaint filed by counsel on behalf of Mr. Stoneking in the First Judicial District Court which was dismissed on the basis of forum non conveniens as the court declined to exercise jurisdiction and no decision on the merits was rendered.


text:
    2003 WY 82
    Sharon P. SWEAT, Appellant (Plaintiff), v. Daryl J. SWEAT, Appellee (Defendant).
    No. 02-168.
    Supreme Court of Wyoming.
    July 7, 2003.

      Representing Appellee: - Paul Clause, Rock Springs, Wyoming. Thomas
    Representing Appellant Stan Decker Cannon of Greenhalgh, Beckwith, Lemich & Stith, Rock Springs, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶1] Sharon P. Sweat (wife) appeals from the property distribution portion of a divorce decree granting her a divorce from Daryl J. Sweat (husband). She claims the trial court abused its discretion in, first, finding that a particular bank account was not part of the marital estate and awarding it to the husband and, second, dividing the property generally in an inequitable manner. We find no abuse of discretion and affirm.

ISSUES

[¶2] The wife presents the following issues:

1. Whether the District Court abused its discretion by not finding that a joint marital account established for the benefit of both parties during the marriage was a marital asset to which [the wife] had legal and equitable rights.
2, Whether the court's award of the marital estate, which set over more than $24 million to the [husband], but only $112,000.00, plus a car and two trailers, to the [wife] shocks the conscience of the court and appears to be so unfair and inequitable as to be an abuse of discretion.

The husband phrases the issue as:

1. Whether the Trial Court abused its discretion when it divided the parties' marital property?

FACTS

[¶3] The husband and the wife married on November 19, 1998. No children were born to the parties although the wife came into the marriage with four children of her own. At the time of the marriage, the husband owned Rock Springs Ford, Inc. He also had numerous other assets, including a life insurance policy, a 401(k) account, an IRA, an annuity, stocks, several parcels of real estate, and an interest in a family trust. He sold the primary corporate assets of Rock Springs Ford in October of 2000 for $1,292,500. The proceeds realized from the sale, approximately $500,000, were deposited into a joint savings account referred to as the "Zurich account."

[¶4] - On March 27, 2001, the wife filed for a divorce. The only contested issue in the divorce proceedings was the property distribution. She claimed, among other things, that she was entitled to twenty-five percent of the amount realized from the sale of the Rock Springs Ford assets or, in the alternative, one-half of the amount held in the Zurich account. She also claimed she was entitled to a portion of much of the property the husband held prior to the marriage.

[¶5] After a day and a half long trial and submission of written closing arguments, the trial court generally awarded property the husband acquired before the marriage to him, including Rock Springs Ford, the 401(k) account, a life insurance policy, an IRA, an annuity, stocks, and the real estate less the wife's share of the equity in parcels purchased during the marriage. The trial court awarded to the wife two mobile homes, a vehicle purchased by the parties during the marriage, and her share of the equity in the real estate purchased during the marriage. To equalize the division of the property, the trial court also ordered the husband to pay the wife $112,000.

STANDARD OF REVIEW

[16] The division of marital property is within the trial court's sound discretion, and we will not disturb that division absent an abuse of discretion. Carlton v. Carlton, 997 P.2d 1028, 1082 (Wyo.2000). A just and equitable distribution is as likely as not to be unequal. Id. We evaluate whether the trial court's property division is, in fact, equitable from the perspective of the overall distribution of marital assets and liabilities rather than from a narrow focus on the effects of any particular disposition. Id. From that perspective, we afford the trial court considerable discretion to form a distributive scheme appropriate to the peculiar cireum-stances of each individual case, and we will not disturb such a scheme absent a showing that the trial court clearly abused its discretion. Id. The division of property in a divoree case should not be disturbed except on clear grounds as the trial court is usually in a better position than the appellate court to judge the parties' respective merits and needs. Metz v. Metz, 2003 WY 3, ¶ 6, 61 P.3d 883, 16 (Wyo.2008). The trial court is also in the best position to assess the witnesses' credibility and weigh their testimony. Raymond v. Raymond, 956 P.2d 829, 882 (Wyo.1998). We, therefore, give considerable deference to its findings. Id. The ultimate question in determining whether an abuse of discretion occurred is whether the trial court could reasonably conclude as it did. Metz, 2008 WY 3, T 6. In answering that question, we consider only the evidence of the successful party, ignore the evidence of the unsuccessful party, and grant the sue-cessful party every favorable inference that can be drawn from the record. Holland v. Folland, 2001 WY 118, 8, 35 P.8d 409, 18 (Wyo.2001).

DISCUSSION

[17] Pointing specifically to the Zurich account, the wife contends the trial court abused its discretion in not treating it as a marital asset and in awarding it to the husband. She argues the account was opened as a joint account in both of their names; she was expressly identified as a "joint tenant" on the application; the check deposited into the account was made out to her and the husband; and, therefore, she had a legal right to one-half of the funds in the account. Looking at the property division as a whole, the wife claims the trial court's division of the property was so unfair and inequitable as to be unconscionable. She claims the husband ended up with property worth more than $2.4 million while she was left with "only $112,000.00, plus a car and two trailers."

[¶8] The husband contends the Zurich account was properly awarded to him because it derived from the sale of Rock Springs Ford assets, which he owned prior to the marriage. He also asserts it is not proper to look at only the Zurich account. He claims this Court must consider all the assets and liabilities in reviewing the appropriate, ness of the trial court's property distribution. He argues the overall distribution was equitable because the assets awarded to him were his prior to the marriage and either did not appreciate significantly during the marriage or appreciated for reasons independent of any efforts by the parties. He also argues the wife was fairly compensated for any entitlement she might have had to a share in those assets by the $120,000 in checks she wrote on the Rock Springs Ford account after the parties separated, together with the $112,000 the trial court ordered him to pay to her.

[¶ 9] From the record before us, we are able to piece together the following facts with respect to the Zurich account. When the husband sold the primary corporate assets of Rock Springs Ford in October of 2000, the parties opened a joint account-the Zurich account-under both of their signatures and depogited the $500,000 realized from the sale into the account. In January of 2001, the parties separated, and the wife, considering the marriage over, decided to move back to Ohio where her father lived. Believing the funds in the Zurich account approximated her share of the marital estate, the wife withdrew $500,000 from the account. The husband persuaded her not to leave, and she deposited the funds back into the Zurich account. The husband testified at trial that the $500,000, like the other assets retained by Rock Springs Ford, belonged to Rock Springs Ford and was deposited in the joint account by mistake. He testified that, in March of 2001, about the time the parties decided to divorcee, he wrote a $500,000 check on the Zurich account which he deposited back into an account held by Rock Springs Ford. He further testified $240,000 of the amount was subsequently used to pay the tax liability arising from the sale of Rock Springs Ford corporate assets. When the wife subsequently attempted to write a check for $150,000 on the account, she learned the account had insufficient funds in it to cover the check.

[¶10] Looking at the trial court's award of the Zurich account to the husband in the context of the property division as a whole, we hold there was no abuse of discretion. The record reflects the husband held the assets awarded to him prior to the marriage, including Rock Springs Ford, the 401(k) account, the annuity, a life insurance policy, stocks, and an IRA. The trial court found Rock Springs Ford did not significantly appreciate in value during the marriage; rather, it "value[d] the business and proceeds from the business in 2001, after the payment of debts and capital gains taxes, very close to its value in 1998." Although other of the premarital assets, such as the life insurance policy, stocks, and the retirement plan, did appreciate in value during the marriage, the wife received the rough equivalent of her share of the appreciation in the court's award of $112,000 and checks totaling $120,000 which she wrote on the Rock Springs Ford account after the parties separated. The wife also was awarded two mobile homes, a vehicle, and her share of the equity in the real estate purchased during the marriage.

[¶11] When marital property is divided, the statute requires the court to consider the length of the parties' marriage, their respective contributions to the marriage, the condition in which they will be left by the divorcee, and the party through whom the property was acquired. Wyo. Stat. Ann. § 20-2-114 (LexisNexis 2008). In reviewing the trial court's decision, we must consider only the evidence in favor of the husband as the sue-cessful party, ignore the evidence presented by the wife, and grant the husband every favorable inference that can be drawn from the record. Holland, 2001 WY 1183, 18. Given those parameters, we hold the trial court could reasonably conclude as it did and did not abuse its discretion under these particular facts.

[¶12] Affirmed.