*1 must, controversies, requires party that a theory
present his entire case and his court; recovery to the trial
or theories of so, having done he cannot thereafter theory
change and thus to some different
attempt keep merry-go- motion litigation.
round of judgment court is af- of the trial to defendants.
firmed. Costs are awarded
TUCKETT, ELLETT, HENRIOD
JJ., concur.
CROCKETT, J., the result. concurs P.2d 266 MARINA, INC., Plaintiff
BULLFROG Appellant, LENTZ, Respond Defendant and M.
Gilbert ent, Cross-Appellant.
No. 12503.
Supreme Court of Utah.
Sept. 20, 1972.
Henriod, J., concurred and dissented in part opinion. and filed *2 263' *3 Biehle, Haslam, Jones, Irving, Murphy & Biehle, Fillmore, Jeffrey Salt H. W. Lake. - appellant. City, plaintiff and for Price, Frandsen, for defendant Duane A. ' (cid:127) (cid:127) and-respondent. -. CALLISTER, judgment sions of the Chief are not challenged Justice: appeal on and will not related herein. action, alleging Plaintiff initiated this appeals, Plaintiff and defendant cross-ap- lessee of three un- that it was a houseboats peals. agreement der a for a term two written Plaintiff, lessor, years defendant, corporation, a and that remov- was a conces-' sionaire of ing plaintiff’s had from dock said boats National Park Service and right had the plaintiff’s possessory operate exclusive converted interest tourist action, facilities at Bullfrog therein. In a second cause Basin on Lake Powell County, plaintiff alleged it into an San plain- had entered Utah. Under Juan tiff’s employment government, which contract with contract with defendant if plaintiff breached, resulting in entered into had dam- defendant subconcession con- anyone, tract with age plaintiff. government, Plaintiff further filed an in addi- regular fees, tion to its houseboats franchise affidavit attachment of the was for enti- per tled compensation cent of ground that de- and a housetrailer on re- by plaintiff. Furthermore, ceived State, any con- fendant of this nonresident agreement tract plaintiff pro- Rule U.R.C.P. 64C(a), posed to enter respect to the exercise The trial court released the attachment any privilege granted others of under on the basis defendant was resident required the concession contract was to be meaning within the State to the government approval. submitted for rules of court fur- attachment. The trial employment ther held that the contract and In 1969 determined that part as lease terminated between were service it its would like to rent house- no and were of further force or effect and public Bullfrog. boats Defendant party any right, title or that neither had desirous operating houseboat busi- interest thereunder. trial ness on Lake Powell. The entered against judgment for a awarded defendant negotiations to initiate the opera- houseboat money re- certain sum of and They collected tions. operation deemed a successful houseboats; tained to settle account would entail the use of six parties. between party Plaintiff was award- procure three, each was to de- ed value of certain items of manage operation, fendant $1000 in- personal property furnishings consisting cluding the advertising, reservations equipment bookkeeping. They located on operation the boats at the commenced *4 May time defendant The agreement, removed them. trial oral of 1969 under an they party court determined that neither was which desired reduced writing. to attorney’s fees; provi- entitled the parties to Since desired to other avoid the finan- IS, consequences departed through cial which would occur if the to travel National Park defendant a western Service deemed United Mexico. On States subconcessionaire, parties 23, 1969, subsequently approximately November defend- contracts, executed two written which were Bullfrog ant returned to his removed May back-dated to an em- Crossing 1969. One was three boats to Hall’s across Lake ployment contract, plaintiff wherein em- Subsequently Powell. he submitted a let- ployed operate ter, to 28, plaintiff houseboat 1969, dated November to rental service with remuneration to be terminating his agree- employment both the profits; agreement share the net was ment and the lease. Defendant asserted years for a term of could termi- two but that he had cause to terminate reason party by nated for cause either two- of plaintiff’s diverting control of the ad- week Among written notice. the causes vertising and reservations from Fur- him. enumerated, granted employee the thermore, plaintiff had failed to submit the terminate, right to was unreasonable restric- government, contracts to the although the tions in the it performance work, National Park Service had sent a letter being employee understood that the was in 15, July 1969, making inquiry stating general ensure-, manage to the division. The em- that its clearance necessary was ployment signed by contract was plaintiff entering was not into a sub- 31, 1969, July May on but was dated concession contract. position^ Defendant’s agreement The written was 1969. second plaintiff was that was eliminating him designated lease, leased wherein defendant from participating in the boating sea- plaintiff son, three houseboats a term two e., plaintiff for i. using commenced de- years. rep- “Aqua fendant’s trade name The recited that lease Cruz” and re- ceiving the experience in resented it had no directly. reservations By plaintiff’s procrastination in submitting rental of and desired to lease houseboats agreements government, basis; them a to re- defend- on use lessor ant was left knowing without whether per agree- ceive 40 cent the rental. This would be able to operations conduct the attorney’s provision ment included a for resulting from a fees breach. 31, 1969, May agreement dated this but it appeal, plaintiff On asserts that the trial actually August 19, signed either court erred in its determination that based according plaintiff, or October upon all the facts and circumstances in evi- according defendant. dence the and employment lease contract completed together
Defendant duties Bull- should his be considered as one con- boating part on tract and each frog interdependent the 1969 season October *5 266
n agreement. integration An urges of the is the Plaintiff that the upon the other. n writings agree- writing adopted. or so separate a distinct lease and thereunder it was entitled ment and that
n possessionof years Comment of 228 ex for two a. Section the houseboats plains integrated damages contracts must be and that defendant liable in distinguished plaintiff’s possessory from written memoranda conversion the of proved. may An essen contracts be which interest. integration is that the tial element an of argument To substantiate its parties shall have assent not manifested parties principle have cites the that when merely agreement provisions the of their writing appears to be a reduced to what writing writings question but or complete agreement, it will be and certain as a final statement their intentions as of conclusively presumed, in the absence of therein. the matters contained Whether fraud, writing contains the whole that the adopted document was or was not as an a parties; agreement the between the of any integration may proved by relevant be contemporaneous parol evidence evidence. conversations, representations state or purpose for the be received ments will not litigant insists that a Whenever varying adding to terms of the or writing that is before court is an inte agreement.1
written application pa gration and asks the principle .foregoing is correct The rule, court must determine rol evidence integrated contract. applied to an when parties question of fact whether as a action is whether the of this issue writing adopt particular in fact or did complete represented a final ex lease complete expres writings as the final and agreement pression of the determining bargain.2 In sion of their merely written memorandum completeness integration of the issue of the may proved. part the contract writing, extrinsic to the writ evidence Contracts, Restatement, Section testimony ing is Parol is itself admissible. states: to show the circumstances under admissible agreement and the which the was made agreement integrated is where
An
purpose
for which
instrument was
adopt writing or
writ-
thereto
executed.3
expression
complete
ings
final
as the
451;
3. Id.,
582, p.
v.
Rytting,
Dennis
South
§
22
22
Utah
Rainford
Wash.App. 115,
worth,
P.2d
(1969).
267: in-,, equal per the instant action the trial -In mission to 80 .cent of the net n come for the calendar quarter. The found that after full consideration .con- ' specified tract . transaction, pur net including the income should be the entire by, deducting: gross determined pose to from the im he served the lease and the em contract, come all costs ployment expenses operar. defendant would not tion of the plaintiff, have houseboat rental leased boats to unless service. The operate could service. contract further pro- the houseboat rental defined costs and then *6 wages the vided: “All paid The trial court concluded that lease and commissions or employment during due period and bore a relation the will contract be considered ship be as costs.” to one another and should consid agreement. of ered as the issue one Since rendering''his Defendant monthly ac- integration
whether the lease was an countings- calculated his incentive commis- question, factual and was substantial there by taking per sion 80 of cent the in- net support evidence the determination of come; he did not consider his share of the judge, finding trial his the must sus profits aas cost in the calculation. the In tained. The trial court did not err in fol process litigation, plaintiff of engaged a lowing the rule of law that two where Accountant, Certified Public who subse- by or more instruments are executed the quently opinion testified that in his under parties contemporaneously, same or at dif the of terms the contract defendant’s com- ferent in the the times course of same missions were as deductible cost arriv- transaction, subject and the concern same ing at the net sug-- income. The witness matter, they will be read and to construed gested that such computation might be gether determining respective so far as the by methods, made one of two either an al- parties, although rights of and interests the gebraic equations formula of simultaneous they do in terms refer to not each other.4 whereby may one solve for two unknowns- by computation Plaintiff further an arithmetic by contends that the trial trial interpretation and pro- court erred in its the error. of employment
visions contract under The rejected trial court the accountant’s which defendant’s incentive commission interpretation of the contract and found was calculated. that discussed, had never under- employment provided
The
agreed
contract
upon
stood or
that method but had
paid
defendant would be
an
accepted
incentive com-
operated
system
and
under the
White,
(1968)
4.
;
Frasher,
Strike
Cal.App.
91 Utah
63
Harm v.
181
;
(1936)
405, Cal.Rptr.
(1960) ;
P.2d 600
v. Prairie
West
2d
State
4
Willis
p.
Bank,
(3d Ed.)
200 Kan.
court
erred
costs of $320.80
incurred in the issuance of the attachment
Hardinge
Corp.,5
v. Eimco
In
Co.
houseboats
trailer. The trial
interpretation
in the
this court stated that
court
was a
ruled
residence
matter
contracts,
given
interpretation
intention
all the
and that under
facts
their
themselves as shown
plaintiff
in evidence,
circumstances
had not
(We
adopted by the court.
acts will be
sustained
of proving
its burden
defendant’s
regarded as
be:
think this should
will be
nonresidence. The trial court found
advisory.)
Bullough
In
v. Sims.6
preponderance
did not
parties place
explained
that when
testimony
defendant’s
evidence overcome
agreement
their
their own construction on
Utah he
to the effect that when he came to
perform,
may
the court
consider
so
become
to remain a resi-
intended to
persuasive
their
this as
evidence of what
State,
and he was a resident
dent of this
It
the doc
true intention
is true that
was.
of the attachment.
time
the issuance
may
ap
practical construction
trine of
ambiguous;
adduced indicate that
plied only
The facts
the contract is
when
*7
Fillmore,
Pie
ambiguous
in
California.
to
owned a home
question becomes
but
the
April 1969
in
his wife and child
have demon
came with
parties
the
whom? Where
Marina,
in a
he lived
Bullfrog
to
where
performance
by
strated
their actions
owned, during
housetrailer,
the
he
which
something
contract meant
that to them the
ownership
boating
his
different,
season. He retained
meaning
quite
and intent
the
California,
occu-
in
which was
in his home
In
a
parties
be
such
the
should
enforced.
At the close
situation,
pied
his adult child.
have
their actions
season,
boating
left his trailer
bring
rule into
ambiguity
created the
to
smaller trailer.
rule,
Bullfrog
traveled in a
operation.
If
were not the
times, includ-
to
several
enforcing
Pie returned
Utah
contract
one
courts would be
transported the
ing
when
the occasion
that
demonstrated
when both
have
Crossing. Plaintiff has em-
boats to Hall’s
they
intended to
contract to
meant and
de-
that defendant
phasized
evidence
quite
different.
(1905).
308,
304,
(1954)
269
person
state,
a
in
a nonresident on his 1969
that
whether on
himself
business
dared
tax,
pleasure,
registration
his
or
did
income
not make him a resident of
Utah
California, and
meaning
trailers
in
state within the
the attach-
his cars and
laws,
personal
especially
ment
his
domi-
procure
li-
if
he failed to
a
driver’s
Utah
elsewhere, it
not essential that
cile were
complaint
March
The
cense until
1970.
inten-
he should come into the state
were filed
affidavit
for attachment
permanently
tion
remain
constitute
February
1970.
explained
him a resident. The court
foregoing
upon
princi-
rule rested
proceeding
discharge
In a
ple
permitted
that an attachment was
attachment,
has
an
where the defendant
against a nonresident as one mode of ac-
plaintiff’s af
ground
denied the
averred in
quiring jurisdiction
against
in a suit
him.
fidavit,
upon the
the burden is
purpose
served,
This
would not be
if the
preponderance
of the evi
establish
preserve
debtor
could
constructive resi-
justi
existence of such facts as
dence the
dence
the state from which he had de-
An order
issuing
fied
the attachment.7
parted by
general
return,
intention to
discharge
granting
denying
a motion to
when he was in
residing
fact
in another
evi
upon conflicting
an attachment based
state. The court
prima
held that a
facie
clearly
unless
be reversed
dence will not
case of nonresidency had been established
wrong.8
in the state from which defendant had de-
parted, where the evidence indicated that
Graham,9
ob-
In Hanson v.
the court
he had left the
purpose
state for the
of en-
served that the word “residence” as that
gaging in business in
foreign
country.
express
often
dif-
“domicile” was
used to
meaning according
subject
ferent
Kill,10
In
v.
the court stated that
Jacobsen
taxation,
relating to
set-
matter. In statutes
the issue of whether a
changed
man has
tlements,
suffrage,
right
qualifica-
his residence from
another,
one state to
so
office,
may have a
tion for
“residence”
as to become a resident of the latter de-
very different
construction
from that
pended very
upon
largely
his intention.
belongs
relating
in the statutes
to it
authority
court cited the
to the effect
to attachments. The court stated that al-
acquired by
pres-
that residence was
actual
though
temporary sojourn
coupled
state,
the casual or
ence
with the interi-
Gurnea,
Company
Sorenson,
7. Western
Utah
Auto Co. v.
J. R. Watkins
423, 429,
(1920) ;
7, supra.
P.
R.
J. Wat
note
*8
Neb;
Company
Sorenson,
364,
kins
166
631,
(1890).
9. 82 Cal.
23 P.
57
(1958).
tiff the account as depository for operations. houseboat action, defendant In the instant The evidence further revealed that business; put he did not engage came to Utah to all the funds he collected set this in a trailer house account. established his abode Furthermore, parties paid both expenses blocks; intention expressed an upon he from sources other than the At account. Both resident of Utah. remain and to be a parties, however, received complaint and attach disbursements filing the the time of account, from this which were in the evidenced present not ment, defendant by checks drawn on the account. It is es- State, indicated the evidence but sential action to ascertain the de- boating the season during traveling posits and withdrawals from this account issue not conducted. operations were to determine the difference between the to- question; a close of his residence tal amount collected defendant and the trial court hold that the however, cannot we deposited appropriate offsets amount had its determination erred in profits. expenses share of the It defend- prove its burden not sustained IV, p. Nonresidence, 191. Anno: A.L.R. Attachment — *9 striking the offset of this plaintiff’s account- With significance that $3155.69. is of exception, judgment deposited to the of the trial court total cash used the ant also is affirmed. Costs are in his calculation awarded to defend- account the houseboat plain- ant. owed defendant amount which the
tiff. accountant, testimony, in his TUCKETT,
Defendant’s ELLETT and CROCK- standpoint of what proceeded ETT, JJ., from the concur. received, therein included
plaintiff had HENRIOD, (concurring and dis- at the account remaining in the money the Justice senting part). in de- He testified the season. end of Plaintiff’s plaintiff owed $548.02. fendant except I concur parts as to the to the court pointed out counsel opinion respect with 1) to costs attach- plaintiff’s inception was from its account 2) ment and $3155.69, the item of to which re- sum struck and the property, I dissent. accounting. maining from 1) : It seems unreasonable to conclude account, it plaintiff owned Since that Lentz was a Utah resident since he to determine appropriate
would be permanent California, had a home in was entitled. to which defendant amount where lived; his children filed a sworn-to op- boating in cash received Total $28,452.58 California, tax return in claiming residence eration there, presumably paying his taxes there plaintiff's Deposited account in 19,913.90 — by deposited Collected Lentz and not 8,538.68 produced in income; Utah filed a similar Bullfrog there, Utah tax return claiming residence 618.73 Collected Bullfrog and not de- posited Utah; not in was absent from Utah from Money not collected Lentz and 7,919.95 October 1969 until after the attachment is- deposited Salary plus payments from Lentz 10,663.39 against Utah,' property sued his in 'that he account during Bullfrog resided at the summer money Lentz received Total all 18,583.34' entitled to which Lentz Amount 18,035.32 months, in his bwn trailer'home business profits, expenses, share boats rental three conveniently registered in Cali- which 548.02 owes Amount $ fornia; he didn’t even bother to and that driver’s license until' after obtain a Utah computing the amount in Since- proceedings. attachment the incident of the plaintiff remains same defendant owes highly self-serving statement that His aspect calculated from the whether it is share, -seems bé as intended to reside Utah to' plaintiff’s or defendant’s what was transparent it is as incredible. appears trial court erred it ' hardly testimony accounting 2): The consistent, one harmoniously C.P.A.’s equally impressive
testimony' appearing may point unimpressive where we sharpen employ it old
as well saw else, if anyplace effect that
here as support any
there is believable evidence court, it, trial will we affirm —which disputatious respect
was done other
evidence in case.
Crockett, J., concurred and filed an opinion.
Tuckett, J., opin- dissented and filed an Henriod, P.2d 274 ion in J., concurred. Appellant, of Utah, STATE Plaintiff and Lynn CLARK,
Steven Defendant and Respondent.
No. 12877.
Supreme Court of Utah.
Sept. 20, 1972.