MacKay v. Hardy

HOWE, Chief Justice,

concurring and dissenting:

I concur in the majority opinion except as to its treatment of the cross-appeal. I disagree with some of the criticism leveled at Jones’ brief (the appellee and cross-appellant).

For example, the majority finds fault with Jones’ brief in that “the briefs argument fails to include the ‘contentions and reasons of the appellant with respect to the issues presented.’ ” I find the brief to be adequate. Under rale 24(f) of the Utah Rules of Appellate Procedure, Jones, as a cross-appellant, was required to set out the “issues and arguments” contained in the cross-appeal. He has set out the issues as follows:

1. Did the trial court err in granting Roy E. Hardy and Rex L. Jackson (defendants) any credits for their claimed post-dissolution capital contributions? Standard of Review: clearly erroneous.

2. Did the trial court err in dismissing the claim of J. Earl Jones (plaintiff) against the defendants for fraud? Standard of Review: clearly erroneous.

3. Did the trial court err in dismissing the petition of plaintiff to correct the original judgment entered herein? Standard of Review: clearly erroneous.

4. Did the trial court err in prohibiting plaintiff from pursuing discovery? Standard of Review: clearly erroneous.

Following the statement of each of the above issues, Jones’ counsel has presented his argument in support of his resolution of those issues.

While the brief is deficient in some other regards as pointed out in the majority opinion, I believe that on balance it is adequate for us to consider the cross-appeal on its merits.