Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 1987 Diamond Parking, INC., a Washington Corporation v. Mortimer : Brief of Respondent Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca1 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. George H. Mortimer; Pro Se. John Smistad; Pro Se; D. Randall Trueblood; Watkiss and Campbell; Attorney for Respondent. Recommended Citation Brief of Respondent, Diamond Parking v. Mortimer, No. 870295 (Utah Court of Appeals, 1987). https://digitalcommons.law.byu.edu/byu_ca1/519 This Brief of Respondent is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. i?nimr UTAH DOCUMENT KFU 50 -A10 OOOCETTMO OF APPEALS OF THE STATE OF UTAH DIAMOND PARKING, INC., a Washington Corporation, Appellate Court No. 870295-CA Plaintiff/Respondent, vs. GEORGE H. MORTIMER, Small Claims Case No. 874010693SC Defendant/Appellant. BRIEF OF RESPONDENT DIAMOND PARKING, INC. Small Claim Judgment from the Fifth Circuit Court, Salt Lake City Department Honorable Donald Sawaya, Esq. Judge Pro Tern George H. Mortimer John Smistad 3687 N. Little Rock Dr, Diamond Parking City Manager Provo, Utah 84604 Pro Se at Trial (801) 224-5647 Pro Se D. Randall Trueblood WATKISS & CAMPBELL 310 South Main Street, Suite 1200 Salt Lake City, Utah 84101-2171 Telephone: (801) 36 3-3300 Attorney for Plaintiff-Respondent Diamond Parking, Inc. on appeal Argument Priority 14b FILED SEP 2 91387 Jf&* «* the CaiHt TABLE NTENTS NATURE OF CALiE . , STATEMENT OF ISSUES, STATEMENT <W FA^'TT. , SUMMARY OF ARGUMENT. POINT I. DEFENDANT MORTIMER WAS NEGLIGENT IN BACKING HIS VEHICLE INTO AND DAMAGING A STATIONARY PARKING TICKET DISPENSER AND DIAMOND'S PARKING ATTENDANT WAS NOT CONTRIBUTOR Tr '-r ^FGI..IGENrn . POINT II. THE TRIAL COURT PROPERLY AWARDED DIAMOND A JUDGMENT FOR DAMAGES FOR THE REASONABLE COST TO REP ATP THF DAMAGED ^IC**?!" DISPENSER, iiiLRL xo oUFFI'UIEN. ADMISSIBLE C MPETENT EVIDENCE TO SUPPORT THE LOWER COURT'S FINDINGS OF FACT AND CONCLUSIONS ^F ' ,AW WERE PROPERTY ^Apr: POINT IV. DIAMOND SHOULD BE AWARDED REAS . ,^ ATTORNEY'S FEES AND COSTS ON T 3OUNDS THAT THIS APPEAL IS FRIVOLOUS. CONCLUSION I CERTIFICATE OF SERVICE ADDEND! If I TABLE OF AUTHORITIES STATUTES Page Utah Code Ann. § 41-6-106 Repl. Vol. 5A (1981) 5 Utah Code Ann. § 78-6-15 Repl. Vol. 9 (1987) 8 RULES OF THE COURT Rule 11, Utah Rules of Civil Procedure 9 Rule 33, Utah Rules of Appellate Procedure 9 Rule 408, Utah Rules of Evidence 8 CASES Acculog, Inc. v. Peterson, 692 P.2d 728 (1984) 7 Anderson v. Parson Red-E-Mix Paving Co., 24 Utah 2d 128, 467 P.2d 45 (1970) 6 Dixon v. Stewart, 658 P.2d 591 (Utah 1982) 7 Hughes v. Hooper, 19 Utah 2d 389, 431 P.2d 983 ( 1967) . 6 Malan v. Lewis, 693 P.2d 661 (Utah 1984) 5 Power v. Taylor, 14 Utah 2d 152, 379 P.2d 380 (1963) ... 8 Wardell v. Jerman, 18 Utah 2d 359, 423 P.2d 485 (1967) . 6 AUTHORITIES Annotation, "Automobiles - Backing - Private Premises", 63 A.L.R. 2d 184, 193 § 4 6 Annotation, "Duty and Liability of Vehicle Drivers within Parking Lot", 62 A.L.R. 2d 288, 291 § 3, "Collision with Parked Vehicle or Other Stationary Object" 6 7 Am.Jur. 2d § 414, "Automobiles and Highway Traffic". 5 22 Am.Jur. 2d § 142, "Damages" 7 -ii- IN THE COURT OF APPEA DIAMOND PARKING, INC., a Washington Corporation, s\)\»- L L it i s. F L d L n 1. i. t: f ' R e s po nd e n t , vs . Small Claims GEORGF H, MORTIMER, C _erenaant/ Appei ldiit. NATURE OP CASE "his i <= an appeal bv defendant George H Mortimer ("Morti- me jiamond raikir/: j 'Dia­ mond'1 entered June - he amount- r: ::,s ~T ? ~ c 2' : ^A '" ^^a-3^ "irid £.•.'•' : - jr* costs, r " : ~ ' • reascndCx. -- • ~; ^~.~_,_ coated . C5 par«:;nq 1-?c property a1. 3.0 .-tjj- » -la. cii^. ,:, . • * ; M^-r-j-^r f^aCK^H into *ni damaged on Mar J ? , . .: - -, f lot. STATEMENT OF ISSUES 1. i • * ' ~^ •: 1 : *--> — : * c < : } '- r : ~c k-eo a proper leckuut ana oacA^lM . * » .icr : -' • *" '-n™ ^rv _ic'<ti+. iiscens.r.a aic'-.'.r.o ?:: Diamond's parki:. i Let . rcperty, - attendant proximately cause - r contri ru t e ' '. .^ :• . :. s i on ? L. Did the trial court properly award, damages based upon the reasonable value to repair the ticket dispensing machine? 3. Was there sufficient admissible competent evidence to support the lower court's findings of fact and conclusions of law? 4. Is Mortimer's appeal frivolous and is Diamond enti­ tled to an award of reasonable attorney's fees and costs in having to defend the appeal? STATEMENT OF FACTS For the convenience of the Court, a transcript of the trial proceedings is attached hereto as Addendum No. 1. 1. At approximately 6 p.m. in the evening of March 31, 1987, the defendant Mortimer entered Diamond's parking lot at 310 South Main Street, Salt Lake City, Utah, by entering off of Post Office Place and proceeding north towards an atten­ dant booth and ticket dispensing machine located near the end of the driveway leading into the parking lot. (Tr. 2-3, 5-7) A photograph of the driveway leading into the parking lot showing the attendant booth and ticket dispensing machine, which was provided to the trial judge, is attached hereto as Addendum No. 2. 2. Defendant Mortimer and his wife intended to have dinner at the China Village Restaurant which is located on the corner of Main Street and Post Office Place. (Tr. 5) A photograph showing the parking area to the east of the atten­ dant booth and north of the China Village Restaurant, which -2- was provided to the trial judge, is attached hereto as Addendum No. 3. 3. Defendant Mortimer stopped at the attendant booth and inquired of the attendant, David Rice, what the procedure was for obtaining a validation to avoid paying for parking. Rice told Mortimer to go ahead and park and that the China Village Restaurant would validate his parking ticket. (Tr. 2, 5) i 4. Rather than parking in the lot behind the China Village Restaurant, defendant Mortimer proceeded directly forward and north of the Diamond lot and proceeded down a loading dock ramp located in the rear of and below the J. C. Penney office tower located at 310 South Main Street. (Tr. 2-3, 5) A true and correct copy of a photograph of the loading dock, which was provided to the trial judge, is attached hereto as Addendum No. 4. 5. When defendant Mortimer reached the end of the loading dock and discovered that it only led to the basement of the building, he proceeded to back up the loading dock. He continued to back up onto the parking lot and thereafter proceeded to continue backing up across the lot until he hit the stationary ticket dispensing machine. (Tr. 5) A photograph showing the view of the ticket dispensing machine from the rear window of an automobile at the top of the loading dock, which was provided to the trial judge, is attached hereto as Addendum No. 5. 6. The impact of Mortimer's vehicle damaged the ticket dispensing machine and Diamond was required to have it repaired by replacement of rotors, case switches, mounting bolts and labor in the amount of $213.56. (Tr. 3) The invoice for the repair costs from Time and Instrument Center, which was submitted to the trial judge, is attached hereto as Addendum No. 6. SUMMARY OF ARGUMENT Defendant Mortimer was negligent as a matter of law in failing to keep a proper lookout and in backing into the clearly visible bright orange stationary ticket dispensing machine. The instructions of Diamond's parking attendant, David Rice, to go ahead and park and the restaurant would validate the ticket, does not constitute contributory negligence nor was it the proximate cause of the accident. It is obvious and apparent to a reasonably prudent driver that parking for the China Village Restaurant is outside or behind the restaurant and the parking area was open and visible. Defendant Mortimer's decision to proceed down a loading ramp behind and below the J. C. Penney Office Tower was not justified or reasonable. Furthermore, defendant Mortimer failed to keep a proper lookout and backed into the ticket dispensing machine which is clearly visible out of the rear window of a vehicle from the top of the loading dock. As the trial judge observed, the defendant proceeded past the fixed object, took a ticket from it and was aware of its location which was open and visible. (Tr. 6) The parking lot attendant testified that Mortimer backed into the ticket machine and the defendant himself admitted at trial that he backed into and hit the machine (Tr. 7), and that he "does not contest the amount it cost plaintiff to have the damage repaired." (Mortimer Brief at 10) Accord- inglyf judgment for Diamond was proper and the appeal is clearly frivolous and without merit which justifies an award of reason­ able attorney's fees and costs to Diamond for having to respond.