Ashby v. Ashby, 191 P.3d 35

Ashby v. Ashby

191 P.3d 35

Utah Ct. App.

2008

Check Treatment

*1 Civility appellate 1. Pett’s briefs de ism & “in ruling court’s

scription of the district leap illogical, incredible

ane” and “a most unreasonable, fallacious,

irrational, spe reasoning” grant lack of fails to

cious respect dignity

district court the it de

serves. We also caution that where a “[e]ven

lawyer’s incivility unprofessionalism or does sanctions, it

not warrant often will neverthe effectiveness,”

less diminish his or her Peters Ass’n, 2007

v. Pine Meadow Ranch Home ¶ 20, 151 P.3d and in extreme can result in the assessment of fees

against offending lawyer or even the

striking arguments substantive detriment,

client’s see id. 9. expressed For the substantive reasons

herein,3 affirm we the district court’s order

granting summary judgment Superior

remand matter to the court for a this district Superior’s

determination of attor- reasonable

ney appeal. and costs incurred on fees

¶ 14 WE CONCUR: PAMELA T.

GREENWOOD, Presiding Judge, and BENCH, Judge.

RUSSELL W. Hayley ASHBY,

Gloria Plaintiff Appellant, ASHBY,

Dallen Ben Defendant Appellee.

No. 20070362-CA. Appeals

Court of of Utah. Howell, Scott P. Card and Matthew July 2008. Provo, Appellant. Hunter, Orem, Appellee. David J. BENCH, BILLINGS, Judges Before ORME. Although expressed language we have concern about the is not a basis for our decision language appellate briefing, contained in Pett's this case. *2 medicine, degree

OPINION time he obtained a in in lieu Appellant’s pursuing her own business and ORME, Judge: opportunities. educational Ashby Appellant appeals Gloria alleged The essence of the contract was complaint dismissal of her court’s Appellant that would make certain sacrifices husband, premised against her former education, in opportunities, quality her and unjust of contract theories of breach Appellee life so could obtain his medical The trial court enrichment. dismissed the return, degree. Appellee after finished complaint on the basis the Utah Su- school, provide medical he would her with the preme opinion in Martinez v. Mar- Court’s “niceties of life” incidental to a doctor’s in- tinez, 1991), 818 P.2d 538 barred both Appellant agreed come. to make these sacri- that the claims and frauds addi- fices with the assurance that she would share tionally claim. barred contract Because Appellee’s inevitably higher income once broadly we do not read Martinez as as did parties’ he became a doctor. The alleged the trial court and because we conclude that apparently contract provi- did not contain a ruling beyond the trial court’s went the nar- specifically dealing rights sion with the scope of a motion to dismiss for failure row obligations parties upon of the breach. claim, to state a we reverse. parties’ marriage 5 The dissolved as soon Appellee degree. as obtained his medical BACKGROUND divorce, Appellant complaint filed her' ¶2 appeal This is taken from the trial claim, which included her contract and the dismissing Appellant’s com court’s order proceeding divorce was A bifurcated. decree plaint upon a claim for failure to state which of divorce April was entered on granted. can Utah R. relief See reserving Appellee all other issues for trial. 12(b)(6). ‘“accept the allega material 12(b)(6) then filed a motion to dismiss the interpret in the as true and complaint tions claim, Appellant after which amend- and all reasonable those facts inferences complaint ed her to add her cause of action light drawn therefrom in a most favorable to unjust Appellee enrichment. then moved plaintiff non-moving party.’ as the unjust to dismiss the enrichment as Comm’n, v. Pete Athletic Moss Suazo Utah well as the contract claim. A commissioner (citation 99, 8, 175 omit recommended that the motion to dismiss be ted). pertinent We summarize the facts with granted on the basis both claims must principles these in mind. separate be filed an action from the di- adopted vorce action. The trial court ¶3 parties The married were from 1997 commissioner’s recommendation and dis- they alleged until divorced. As when unjust missed the breach of contract and Appellant, a contract between the prejudice.1 enrichment claims without through was formed various communications. Specifically, prior during Appellant to and the mar- then commenced this action. riage, Appellee Appellant alleged asked to work breached the during him the time reneged he was obtain- contract when he obligation on his education, ing up including his to and performed part after she her bargain. of the separate opinion, Judge points together, place In his Bench sidered one or another. And unjust being equi- out that the enrichment difficulty real is avoided in this case because the nature, part table have should remained of the judge same who handled the divorce case was right, divorce case. He well be as a techni- assigned also case thus instant had “the matter, cal there is no indeed obvious reason big picture." importantly, Appellee Most did not why even the contract claim could not have been appeal unjust the divorce court’s dismissal of the originally dealt with in the action filed. See Utah enrichment claim on the basis that it should 8(e)(2) (In pleading, party may "[a] R. Civ. P. ... separate dealt with in a action and has not con- many separate state as he claims has ... appeal tended in this that the enrichment equitable grounds whether based on or on claim is barred because it should have been both.”). judicial economy, or on In terms of off broken from the contract claim and handled grow contract and enrichment claims out in the divorce case. of the same nucleus of facts and should be con- Tuttle, un- dant plaintiff. also that this conduct 2007 UT App ¶10, justly respond- Appellee. Appellee enriched summary, P.3d 893. In a rule 12(b)(6) 12(b)(6) ed both an motion places with answer into issue “‘the upon sufficiency failure to a claim pleadings, dismiss for state [and] *3 can granted, asserting which relief be underlying case,”’ merits of [the] Oakwood Appellant’s Vill., the statute of frauds barred Albertsons, Inc., 101, LLC v. UT 2004 ¶ 8, breach of contract claim and that v. Martinez Alvarez, 104 (quoting 933 P.2d (Utah Martinez, 1991), 989) (alterations 818 P.2d 538 disal- at in original), the trial of lows breach contract and enrich- may only court allegations consider the in the of arising ¶ ment causes action a marital themselves, pleadings see id. 12. setting. agreed granted The trial court the motion to dismiss. re- seeks I. Statute of Frauds versal of the dismissal.

¶ 8(c) 9 Rule of the Utah Rules of ISSUES AND STANDARDS OF REVIEW requires Civil pleading Procedure that “in to a preceding pleading, party a set shall forth appeal pleading This more is about affirmatively frauds, [the] ... statute of procedure ability than the spouses of to enter any other constituting matter an avoid concerning into enforceable contracts their ance or affirmative defense.” Utah R. Civ. respective obligations. financial In deter 8(c). P. See Smith v. Canyon Expe Grand mining correctly whether the trial court ¶ “ Co., 57, 12, ditions 2003 UT 84 P.3d 1154 dismiss, granted the to we must ‘ac (stating that affirmative defenses must be cept complaint the allegations factual in the affirmatively pleaded in clearly order to them, as true all and consider reasonable tried). frame the to be with any issues “As them, be inferences to drawn from in the defense, affirmative defendants have the bur light most to non-moving par favorable every den proving of necessary element to ty.’” Grainger, v. MFS Series Trust III establish that of [the frauds] statute bars ¶ (citation 6, 61, 2004 UT 96 P.3d 927 omit [plaintiff]’s Gowans, claim.” v. Seale 923 ted). 12(b)(6). Utah Dismiss (Utah 1996). 1361, P.2d 1363 Accord Conder 12(b)(6) al under rule only is warranted in ¶ Hunt, 105, 14, 558, v. 2000 1 App UT P.3d when “even if the ‘factual assertions in denied, (Utah 2000). cert. 9 P.3d 170 correct, complaint they provide were no ” recovery.’ legal Mackey basis for v. Can ¶ Here, Appellee 10 raised the statute of ¶ non, 36, 13, App 996 P.2d 1081 an frauds as affirmative defense in his an- (citation omitted). Ultimately, a trial court’s 8(c), required by is swer as rule but mov- grant pres decision to a motion to dismiss 12(b)(6) ing for to pursuant dismissal rule law, question a of ents which we for review theory Appellant to a failed state correctness. See Cruz Lin Middlekauff prove “every failed to element nec- Inc., 1252, coln-Mercury, 1253 Seale, essary to establish that [defense].” (Utah 1996). 923 at P.2d 1363. See also & W.B. W.W. Gardner, 264, Pappas, Inc. v. 24 Utah 2d 470 ANALYSIS (Utah 1970) (“Rule 252, 12(b), P.2d 253 12(b)(6) “A U.R.C.P., 8 rule motion to specifies dismiss is may defenses which an opportunity motion[;] not by court to ground be asserted defendants’ U.R.C.P., decide the merits a 8(c), Tuttle v. is not case[.]” included therein. Rule Olds, 2007 provides 155 P.3d 893. the Statute of Frauds is an Instead, 12(b)(6) defense.”). “Rule concerns the suffi affirmative affirm a ciency 12(b)(6) pleadings[.]” Alvarez v. Galet rule “‘it appears dismissal if to a ka, (Utah 1997). 933 plaintiff P.2d For certainty that the would not enti- 12(b)(6) example, a rule proper dismissal tled is to relief under state of facts which plaintiff a negligence when proved has sued but could of its claims.’ Co., is possibility there no from the facts Heiner v. S.J. & Groves Sons P.2d duty (citation that a Ct.App.1990) of care was owed defen- omit- talents, certainty capabili- ted). personal his or her innate simply no such is There ties, acquired knowledge,” skills and id. here.2 recognize and thus refused to “a at plead did have not personal property interest in characteristics claim satisfies her contract person,” id. at 542. another rather, having frauds; Appellee, raised persuaded 14 We are defense, affirmative frauds as an statute of involving a divorce case the distribution of proving that it ultimate burden of had the property, precludes express claims based on Ap- Since Appellant’s claim. applied bar simply enrichment because pure brought pellee’s motion was happen involved also to be mar- 12(b)(6) motion, supporting affida without *4 ¶ Reese, v. 1999 ried. See Reese 12(b), prevail vits, to on Utah cf. (“[Sjpouses may 984 987 make P.2d bind- Appellee must have established his other[.]”).3 ing contracts with each The the- deficiency that, of a matter of some facial as ory by barred Martinez is not akin to the the frauds complaint, statute of Appellant’s express unjust contract or enrichment claims necessary supra the action. a bar to was by Appellant asserted in this case. Martinez at way stage this note 2. In no other equitable self-standing bars allocations procedural in this context— litigation—and express and not claims based on contract effectively Appellee demonstrate that could “ Appellant’s are enrichment. claims be relief ‘[Appellant] not entitled to would say, premised might on familiar—one rou- facts could be under state of which tine—legal grounds, making entirely them Heiner, claims.’ proved [her] of appellant’s different from the Martinez novel (citation omitted). 790 P.2d at 109 equitable asking property for an inter- earning power est in the increased attribut- v. Martinez II. Martinez degree. able to her husband’s medical court also The trial concluded sum, the trial of we believe court’s dismissal Appellant’s that claims were barred based on Appellant’s claim on the of basis Martinez opinion in Mar Supreme Court’s the Utah overly reading opin- reflects an broad of that (Utah 1991). tinez v. ion. disagree. urged our appellant Martinez The CONCLUSION Supreme recognize “equitable to resti- Court pro- property” disagree tution” as a “new form of to 15 We that failed to grounds, just equitable distribution of state a claim on statute-of-frauds vide “a power given one to earning prove which the burden the increased bore spouse comply the realizes from an advanced education failed to with stat- ute he acquired during marriage.” Id. at 540. of frauds and had not done so in the notion, rejected early Supreme pleading stage of this Further- The Court action. more, applicable an to holding Appel- that one who obtains advanced Martinez is not degree accordingly degree on basis of lant’s claims. We reverse and “obtains may range equitable prerogatives party, relying 2. a of where court's if a There be narrow could for a the statute of frauds be basis agreement, partially performs on the oral its failure to state a motion to dismiss for obligations.”). The is contractual instant case as affirma- even if the statute were raised an type, Appellant having only generally not of this tive Such cases would those in defense. contract, saying alleged the existence of a noth- inefficacy a claim under the statute which the of ing merely it is about whether oral or both writ- unambiguously appeared face of frauds signed by Appellee. ten See Utah Code Ann. complaint, plaintiff specifically if such as 25-5-4(1) (2007). § sought enforce the existence of an purchase oral real estate which had simple example, 3. To take a Wife obvious if partially performed plaintiff. not been even $60,000, repaid Husband to be with loans 5% (2007); § Utah 25-5-1 see also Code Ann. Cf. months, Percival, interest in ten and Husband refuses to (Utah Jenkins v. 1998) ("Under frauds, pay agreed, is no Wife's as it defense to collec- an otherwise agreement may through invalid tion action that the are married. enforced remand to the trial court for such further

proceedings appropriate. now be TRUST, by ARBOGAST FAMILY through Rodney J. ARBOGAST as I16 CONCUR: JUDITH M. Trustee, Appellee, Plaintiff and BILLINGS, Judge. v. BENCH, Judge (concurring and CROSSINGS, LLC, RIVER a Nevada

dissenting): liability company, limited Defendant Appellant. agree I17 that because the statute of defense, frauds is an affirmative the trial No. 20070395-CA. prematurely Ashby’s court cut off Gloria claim for I disagree, breach contract. Appeals Court of of Utah. however, equitable claim of July See, go e.g., enrichment should also forward.

American Towers Owners Ass’n CCI

Mech., Inc., *5 930 P.2d 1192-93

1996) (stating that a for enrich equitable remedy).

ment seeks an my

view, equitable divorcing par claims between only

ties can be addressed in the divorce

action. See Martinez v. 1991) 541-43 (holding that

Utah Code and relevant case law allows flexibility

courts formulating sufficient separate awards such that a award stand). equitable Spe restitution cannot

cifically, determining alimony, the divorce

court “shall consider ... recipi whether the

ent spouse directly any in contributed to payor spouse’s by paying

crease skill payor spouse education received

allowing payor spouse to attend school

during marriage.” Utah Code Ann. 30-3-5(8)(a)(vii) (2007).

§ I 18 would therefore allow

claim for breach of contract to survive the

12(b)(6)motion to dismiss.