*1 BANK OF UTAH FIRST SECURITY
N.A., Security Financial, and First Appellees,
Plaintiffs
v.
BANBERRY DEVELOPMENT CORPO-
RATION, corporation, Eugene a Utah Kimball, al., Ap-
L. Defendants and et
pellants. KIMBALL,
Eugene L. Cross-Claimant Appellant, TITLE, al., et
SUMMIT COUNTY
Cross-Defendants
Appellants.
Nos. 870074.
Supreme of Utah. Court
Jan. 1990.
Rehearing Denied Nov. *2 Security.
real liens held First cross-appeals, seeking attorney Kimball fees, costs, and a determination that the refusing in to instruct on the court erred conspiracy. theory of civil facts, complex only on This case based portions of will dis- pertinent length. cussed at Kimball and Jr., Barney E. Campbell, Ge- Robert S. undeveloped land in partner purchased Fowler, sas, Moxley, Tracy H. Ed- Paul T. Utah, City, securing purchase Park Garrett, City, Sidney M. Salt Lake for ward Murray amount with a note favor of Horman, Banberry Development Corp., M. Thrift, Security. First thereafter First Crossing. Banberry and property (“Prospector Ridge”) This was la- Axland, LeRoy Waddoups, S. Mark Clark Banberry, Banberry ter resold to as- City, Lake for Com. Land Wilkey, E. Salt suming existing note and with Kimball Title Co. accepting a trust deed for the balance purchase price subordinate to First Se- Misuraca, Beyers, L. Malcolm A. James subsequently curity’s trust deed and a ob- Rosa, Cal., Cook, Craig Merlin R. S. Santa development tained loan from First Securi- Carlston, Pamela Lybbert, Michael R. G. guarantor ty. Horman was a of the loan Parker, Heffernan, Lake Rodney R. Salt point principal and at one became a officer Keith E. City, Eugene for L. Kimball and Banberry. Garner. 1982, Banberry During was unable Stephen B. Mitch- Burbidge, Richard D. financing development meet its and com- ell, County City, Lake for Summit Title Salt declining property market mitments due Co. Accordingly, renounced values. Kimball Hutchinson, Nehring, E. Don Ronald Salt ground his subordination City, Gregory Lake for P. Nelson Vic- guaranties required personal were tor L. Fowler. development adequately for the obtained notices of de- loan. also recorded Kimball Bean, Layton, for David E. Western sched- his note and trust deed and fault on Woodlands. nonjudicial foreclosure sale. uled a Saunders, Barney City, for Don Park Security commenced an ac- First likewise Hutchinson. deeds, trust judicially foreclose its tion to Roberts, Randy Dryer, L. L. Mi- Gordon pursu- enjoined later and Kimball was Larsen, chael L. for First Sec. Bank Banberry Horman coun- ing his sale. Financial. First Sec. terclaimed, involving raising devel- claims unrelated to the Pros- opment projects HALL, Ridge property. pector Chief Justice: negotiations con- Development Based settlement Appellants Banberry Cor- Horman, (collec- Security, First Banberry Crossing, Inc. ducted poration, “defendants”), and Banberry (collectively tively “Banberry”), Sidney M. Horman agreements. entered into three (“Horman”) jury’s the Trust appeal a determination resolve agreement purported purchase agree- The first that certain settlement and counterclaims; the re- existing second Security Bank and the ments executed First First between (collectively “First loan transactions Security First Financial structured Banberry unrelated devel- Family Security and Security”) and the Horman Trust directly (the “Trust”) appel- opments, and the third involved fraud constituted (“Kim- Ridge property and became Eugene Prospector against lants L. Kimball agreement, enti- ball”) this lawsuit. This extinguishing in the of basis of and resulted part ed on the of defendants to disclose to AGREEMENT” tied “PURCHASE Security the existence and content of into First and Kimball formally entered agreement. previ- purchase that the As we have generally provided It the Trust. reiterated, ously assign Trust would *3 in deposit considera- million certificate of of the fundamental tenets of the One (1) option an to receiving either tion for Anglo-American fraud is that law of Security trust deeds and First acquire the by suppres- fraud be committed the against the notes; (2) rights assignment of the truth as well as the sion of ... Company Insurance Title Commonwealth suggestion of falsehood.... (“Commonwealth”); (3) Prospector the Silence, in order to an actionable Security the if bid at Ridge property, First fraud, must relate to a material matter sale; (4) First proceeds Se- foreclosure or party it is his known to the and which as an unsuccessful bid- curity might obtain legal duty to communicate to the other Also, at the der sale. contracting party, duty the whether judicial with the fore- required to continue trust, arises from a relation of from con- action, receive and the Trust was to closure fidence, inequality of condition and for the first the interest on the certificate knowledge, or other attendant circum- agreed keep to the year. The stances .... agreements confidential. principle in the The is basic law of and Kim- Subsequently, Commonwealth fraud as it relates to that a nondisclosure successfully compelled production of ball charge of fraud is where a maintainable thereafter agreements, and Kimball these party material facts is under who knows alleged that defendants committed fraud circumstances, duty, under the to against by keeping agreements him the information, speak and disclose his but confidential. remains silent.... any Although pertinent inquiry the in in three
This case was tried before jury
the
of nondis-
case where fraud on
basis
phases
separate jury instructions and
with
whether, upon any
asserted is
closure is
special
spe-
the first
verdict forms. Under
occasion,
duty
particular
it was the
verdict,
(1)
jury
part
in
that
cial
the
found
pain
being
person
speak
on
Banberry,
ego
Horman was the alter
silence,
guilty
by
of a fraud
reason of his
ego
not the alter
of the Trust at the time
except in broad terms the law does not
agreements were formed
the settlement
attempt
to define the occasions when
purchase agreement
and trans-
duty
speak
contrary,
arises. On
fer of the
million certificate
adopted,
leading prin-
has
as a
there
“payment”
Horman trust constituted a
duty
ciple,
proposition
that whether a
Banberry of the trust deed notes. Under
speak
exists is determinable
refer-
verdict,
jury
special
the second
deter-
ence to all the circumstances of
case
Banberry
mined
and Horman commit-
by comparing
the facts not disclosed
respect
against
ted fraud
Kimball with
object
in
with the
and end
view
agreements
the settlement
and that Kim-
contracting parties.
difficulty
The
is not
damage thereby.
The
ball sustained
stating
general principles
so much in
in
special
decided
the third
verdict that
understood,
law,
pretty
are
well
which
Banberry and Horman were not liable for
applying
particular
in
the law to
punitive damages. Judgment was entered
groups of facts....
Banberry
against
and Horman.
Thus,
dispositive
appeal
issue
in relation
in order to be held liable for
nondisclosure,
to the fraud claim is whether a
exist-
fraudulent
there must have
379, 382-83,
omitted;
Clawson,
original).
1. Elder v.
14 Utah 2d
omissions in
(1963) (footnotes
emphasis
P.2d
disclose,2
presented significant
authority
case law or
duty to
the burden
been a
alleging
establishing
party
on the
addressing the
squarely
question before us.
and the determination of which
the fraud3
Also,
sparsity
research
our own
reveals a
to decide.4
question of law for the court
is a
subject;
those
of law on
and even
that a
After it has been determined
dealing
analogous
courts
somewhat
law,
fact
a matter of
the trier of
exists as
concluding
are not in
in
cases
question
as to whether
resolves
exists
involv-
whether
situations
particular
case.5
duty was breached
ing
real
and creditor/debtor
above,
Notwithstanding
Ac-
mortgagee(s)/mortgagor
relations.6
fully analyzed
neither
nor
have
herein
Anderson,
Herrick,
debtor);
Sugarhouse
Fin. Co. v.
with mutual
Willett v.
*4
599,
585,
589,
(even
1980);
Gasor, Inc.,
(1927)
1369,
(Utah
155 N.E.
if
Taylor v.
Mass.
595
1373
mortgage,
mortgagor
293,
(Utah 1980);
were
relation of
contract
Moore v. State
607 P.2d
294
character),
mortgagee
382, 389,
fiduciary
of
Burden,
and
is not
P.2d
240
729
Bank
Kan.
of
545,
denied,
83,
906,
U.S.
72 L.Ed.
1205,
cert.
275
48 S.Ct.
(1986),
denied,
cert.
107
1212
482 U.S.
(1927); Vacinek v.
Pine
Peck,
417
First Nat’l Bank
2484,
(1987);
L.Ed.2d
R.A.
S.Ct.
96
376
of
795,
(Minn.Ct.App.
City,
N.W.2d
416
799-800
84, 88,
Bank,
Liberty
v.
Fed. Sav.
108 N.M.
Inc.
1987) (bank
duty
has no
debtor’s
lenders,
to disclose
928,
(Ct.App.1988).
766 P.2d
932
mortgage
potential private
debtor’s
to
longtime
lenders are
customers of
even when
888,
Bank,
N.E.2d
Brown v. Indiana Nat’l
476
3.
Dev.,
bank); Peoples Bank &
Co. v. L & T
Trust
1985).
(Ind.Ct.App.
891
699,
(Miss.1983) (construction
713
434 So.2d
duty
subordinating
owes
to
landowner to
lender
932;
Peck, Inc.,
88,
at
108
at
766 P.2d
4. R.A.
N.M.
funds are used for construction
see
605,
Lecic,
592,
312
In re Estate
104 Wis.2d
of
project),
grounds,
other
7
corrected on
437 So.2d
773,
(1981).
N.W.2d
779
Mitchell,
(1983); First Am. Nat'l Bank
Iuka v.
of
1376,
(Miss.1978) (mortgagee
1380
359 So.2d
Peck,
88,
R.A.
108
at
(2)
that the
bear
The relation
for a con-
negotiating
Kimball was
other;
while
to each
551,
1960 no
(Second)
proposition that at least until
at 119
for
§
of Torts
13.Restatement
theories).
(1977).
adopted
classifica
often abbreviate these
had
Keeton’s
Courts
court
circumstances,
see, e.g., First Sec.
tions and
Crossing,
Banberry
780 P.2d
Bank v.
14. Keeton
at
738-39.
Inc.,
Peck,
(Utah 1989);
at
R.A.
108 N.M.
933; Blon,
35 Ohio St.3d
P.2d at
omitted).
(footnote
Id. at 739
Keeton,
367;
Fraud —Conceal
see also
N.E.2d at
Non-Disclosure, 15 Tex.L.Rev.
34-
ment and
Clark,
16. See Horman
listed),
(1936) (pertinent
cited in W.P.
factors
37
Keeton,
and
(Utah
supra
7 and 13
Ct.App.1987);
*7
Bank,
691,
alleged
respective
18. Dennison State
230 Kan. at
duties of the
640
defendants.
Freden,
(quoting
P.2d at 1241
646, 651,
Curtis v.
224 Kan.
993,
(1978)).
P.2d
See,
585
998
"'The
e.g., Big
Corp.,
24.
Land Inv.
1333
funds,
not
There is no invariable rule which deter-
and do
di-
loan
of construction
fiduciary
mines the existence of a
rela-
“duty” ques-
pertinent
rectly address
in
tionship, but
it
is manifest
all the
Furthermore, generally
here.
tion at issue
only
there must be not
decisions
“was a
the fact
that Kimball
speaking,
other,
in
of the one
confidence
the bank is insuffi-
longtime customer of
inequality,
must exist a certain
de-
there
itself,
fiduciary
cient,
a
rela-
to establish
pendence,
age,
weakness of
of mental
25 Instead, to determine whether
tionship.”
intelligence,
strength, business
knowl-
implied in
fiduciary duty should be
law
a
involved,
edge
or other condi-
of
facts
surrounding
factual situations
due to the
tions,
advantage
giving to one
over
relationship of the
and the
the transaction
other.28
following princi-
parties, we consider
to the evidence
Applying these standards
ples:
record,
fiduciary
do not find that a
we
relationship imparts
posi-
a
fiduciary
A
in-
relationship
existed between
placed by one
peculiar
confidence
tion
Indeed,
ap-
in
case.
it
volved
the instant
fiduciary
A
is a
individual in another.
place particular
did not
pears that Kimball
primarily
to act
person with a
Furthermore,
in defendants.
confidence
fiduciary
in
A
is
position
the benefit of another.
the defendants were in a
none of
Kim-
and exercise influence over
have and exercise and does
to have
position
relationships implied
none of the
ball. And
exercise influence over another.
have and
superiority
any
defendant
a condition
implies
condi-
fiduciary relationship
A
While defendants had at
over Kimball.
superiority
of one of the
tion
relationship
minimal
to the
least
some
Generally,
fiduciary
in
the other.
over
in
mortgaged property, Kimball’s interest
or au-
relationship,
property,
interest
authority
any
and/or
he
itself
placed in the
thority of the other
is
in
contingent
placed
thereto
held
charge
fiduciary.26
Additionally, there was no
charge.29
their
relationship may similarly
A confidential
influence, dependence, or
overmastering
trust
is re-
arise whenever
continuous
(and
mutual under-
justifiably
trust
party
integrity
in the skill and
posed
one
there was no evidence
standing) reposed;30
Also,
strength,
another.27
as one court noted
age,
mental
busi-
of weakness of
justifying
intelligence
experience,
ness
1910,
738,
Loan,
recognized
Cal.App.3d
whether the doctrine
4
case or
v. Brentwood Sav. &
745,
(1970) (no duty
Cal.Rptr.
owed
84
741
Utah.
junior
who
senior lienholder to
lienholder
lien);
Mission Sav. & Loan
subordinated
Gill v.
Vacinek,
(citation omit-
N.W.2d at 800
416
Ass’n,
Cal.App.2d
Cal.Rptr.
ted).
(1965) (senior
pro
owed no
lienholder
Millar,
lienholder);
junior
Spaziani
tect
Bank,
230 Kan.
26. Dennbon State
Cal.App.2d
(existence
Cal.Rptr.
omitted).
(citation
emphasis
P.2d at 1241
*8
law,
statutory
contrac
of common
or
obligation
estab
tual
of disclosure was not
Lala,
N.W.2d at 185-86.
27.
392
lished);
Storage v.
United States Cold
see also
Loan,
Cal.App.3d
165
Great Western Sav. &
460, 466,
232,
Keefe,
Ind.App.
N.E.
1214, 1231,
(1985) (distin
90
28. Yuster v.
46
Cal.Rptr.
212
242
omitted),
quoted in
guishing
involving
(emphasis
diversion of loan funds
cases
922
Bank,
involving implied subordination
640 P.2d
from case not
230 Kan. at
Dennison State
subordinating
assumption
agreement;
seller’s
at 1241.
Rockhill,
("To
discussed);
A.2d at 204
risks
legal duty
where none is
find the existence of
Bank,
at
230 Kan.
Dennison State
29. See
expressed
same
in the contract has much the
1335 upon junior senior to all the Trust was Horman’s lienholders inform ously agreed” that strawman,” any in secured of occasion which “dummy or Banberry’s or purchased, restructured, the senior lien is not jury found that Horman was expressly paid only would or serve to burden senior Trust, which is ego of the verdict alter right lienholders to re and restrict their that an with the determination consistent repayment ceive or allow their loans to be independent party “paid” “pur- third or purchased. subject mortgage. The fact chased” significant dealings with that Horman had Also, possible, if extent of the nature and negate jury’s ex- Trust does not clear, liability a lender’s must be without (cid:127) Rather, press the issue.39 verdict on ambiguity subject needless and not to the purchase by fact or a third of experienced intelligent whim of an but
party
supports the conclusion that
further
disappointed party.
impose
duty
To
impose duty
inappropriate
it
to
a
would be
litiga-
urged here
in a flood of
would result
mortgage lienholder or mort-
a senior
tion and the
of needless uncer-
introduction
junior
gagor to disclose to
lienholder
transactions,
tainty
causing
into real estate
mortgage
“paid”
or
a senior
whenever
possible instability
lending
in the vital
mar-
“purchased.” Mortgages
bought
are
Imposition
duty
kets.41
such a
is not
of
mortgage
secondary
markets.
sold on
community
commensurate
sense
in
priority
lienholders
Mortgagors
justice.
first
conclude as
of
We therefore
special
to such transactions. matter of law
circumstances
remain oblivious
that
do
However,
adopt
give
Kim- not
rise
of disclosure on
were we to
view
to a
Banberry,
Security,
junior
real
behalf
either First
urges,
ball
a holder of
lien on
Horman.
or
property
be entitled to notice from
would
the senior lienholders and
owner of the
supported
This
analo
conclusion is
liens
property when the senior
have been
In
v.
gous Utah case law.
Citizens
Jeffs
restructured,
purchased,
paid.
or
Accord- Finance
this Court addressed the
Co.42
fraud,
ingly,
mortgagors
claims of
to avoid
question
property
the seller of
whether
mortgagees, including
and senior
those not
(referred
analysis
to
as
for clarification
would
track
priority,
first
be forced to
vendor”)
terminate a uni
“secured
could
jun-
subsequent formation
sale of
giving an
form real estate contract without
mortgages
ior
in the event that
notice
mortgagee”)43
assignee/lender (“junior
payment, purchase,
refinancing
of a
to
purchaser
of intention
forfeit
notice
required,
mortgage is
of disclo-
per
to
and a
time within which
reasonable
inevitably extend to
might
sure
situations
holding
In
that
form the contract terms.
parties.
involving all other secured
required
was not
the secured vendor
junior mortgagee
volunteer
notify the
Mortgagees and other lenders
should
facts,
such
we stated:
penalized by choosing
and le
alternate
say
gally
approaches
conducting
opinion
no answer to
that
allowable
In our
it is
vendor],
solving
giving
and to
the financial diffi
notice to the
business
[secured
constructive; places the
mortgagors.'40
either actual or
Imposing
culties of
(1958).
light
42. 7 Utah 2d
44.
7 Utah 2d at
P.2d at
1337
“
reiterated,
‘The
added.)
in a different context
es-
light
In
of this instruc-
(Emphasis
purchasing
between
the
sential difference
tion,
jury specifically found that
the
not in what is
paying
debt and
it consists
million
by the Trust of the $1.6
transfer
it,
doing
in the manner of
but in
done or
deed
“payment” of the trust
constituted
the intention with which the consideration
Banberry
Security.
to First
notes from
accepted,
extinguish
paid
and
whether
findings
fact and conclusions of
In its
of
” 49
quot-
The
keep
the
or to
it alive.’
debt
law,
thereafter stated:
the trial court
that, generally,
clear
ed treatise makes
to inter-
upon
jury’s
the
answers
Based
[Pjayment involves an actual or construc-
which
on issues
rogatories submitted
delivery, by a
or some one
tive
debtor
legal
equitable
to the
were common
him,
creditor, or some
to his
[sic]
case,
Agree-
said Purchase
facets
it,
person authorized to receive
of
other
pay-
constituted a
assignment
ment and
something accepted by the
money or
Security ... notes and
ment of the First
thereof,
equivalent
as the
creditor
arising
priority
of
trust deeds.
Issues
purpose
part
the
the intention or
on
marshalling of assets and the One-
extinguish a
payor or transferor to
effectively mooted
Action Rule were
part,
or in
obligation
debt or
in whole
payment.
this
acceptance by the creditor for
its
purpose.
same
jury’s
to inter-
Based on the
answers
not a transaction con
... Whether or
which are
rogatories submitted on issues
largely upon
payment depends
stitutes
equitable facets
legal
common to the
parties; and acts
the intention of the
case,
October,
Purchase
1984
pay
might
constitute
otherwise
Agreement, together with the irrevocable
do
will not do so when
ment
delivery
and unconditional
to First Secur-
not so intend.50
deposit of
ity
... of a certificate of
principle
long
has
since been well-es-
This
Trust,
Family
million
the Horman
con-
Weissman,
In
v.
tablished.
Weissman
Security
stituted
of the First
Inc.,51
Pennsylvania
Supreme
Court
law,
pay-
...
loans. As a matter of
mortgagees’
the case where
considered
extinguishes the trust deeds of
ment
president and a
assignee,
member
who
lien
... and Kimball’s
corporate
of directors of
of the board
operation
priority
of law rises to first
mortgage was
time the
mortgagor at the
question.
effected,
brought suit for foreclosure
Thus,
jury’s
determination based
claimed
mortgagor
mortgage.
direct-
regarding “payment”
the instruction
a vol-
assignee was
mortgagees’
impacted upon the issue of the lienhold-
ly
original
to the
“payment”
unteer whose
however,
Unfortunately,
priority.
ers’
the cor-
extinguished
mortgagees
creditor
erroneous and did not ade-
instruction was
this conten-
rejecting
In
poration’s debt.
quately
the law.
state
tion,
dis-
that the evidence
the court noted
part of the as-
intention on the
Ralph
Badger
Fidelity
A.
closed no
& Co.
original
creditor
Association,48
mortgagee or
signee
this
Building
Loan
Court
&
jury);
97,
(1938).
Anno-
at law triable to
are actions
P.2d 669
land
48. 94 Utah
75
tation,
Seventh
Supreme Court’s Construction of
111,
(quoting 48 C.J. 588
Id. at
P.2d 675-76
75
Right
by Jury,
Guaranty
to Trial
Amendment’s
(1929));
generally;
v. West
see
Beacon Theatres
(1975).
berry paid the trust notes. Kimball itself *13 brought Security First this action to fore- supports the verdict the con- contends that allegedly close its two trust deeds that using the trust as clusion that Horman was purchase money trust were senior to the Banberry a of funds for such that source by deed held counter- Kimball. Kimball Banberry effectively paid the First Securi- claimed, alleging mortgage that his was however, Unfortunately, spec- this ty lien. light senior. In of Kimball’s assertion of supported claim not the in- ulative priority, Security First was defended jury special the given structions the or lawyers engaged by Commonwealth Title jury Accordingly, once the deter- verdict. Co., Insurance which had insured one of ego alter mined that Horman was not the Security the First trust deeds as a first lien Trust, only the court should have of the Thus, clearly on the land. the issue was jury the as to the issue of instructed priori- framed in the lawsuit: the What was voluntarily paid or whether the note was ty the three trust deeds? With this purchased. whether it was backdrop, pending, the while lawsuit was judgment against Banberry Hor- The Security Family and the Horman First reversed, man is and the case is remanded agree- Trust entered into the October for the determination of the lienhold- sole ment, ostensibly provides that the priorities “pur- ers’ after retrial of the purchase Security Trust the two First trust “payment” chase” versus issue. In all oth- However, deeds for million. uncharac- respects, judgment er the is affirmed. purchase, Security of a First made teristic assignment to
no
of the note and trust deed
purchaser;
Security
to con-
the
First
was
STEWART, DURHAM and
pursuit
its foreclosure action.
It
tinue
ZIMMERMAN, JJ., concur.
agreement
agreed
was
that the
was to be
HOWE, Associate Chief Justice
confidential,
kept
expressly
and the Trust
(dissenting):
agreement
assumed the risk that the
would
become known to Kimball
Common-
judgment.
I dissent.
I would affirm the
parties
contemplate
wealth. The
seemed to
issue,
agree
As to the fraud
I
with the
knowledge
agreement by
the
Kim-
that
rule,
majority
perhaps,
general
that
as a
might
his claim that his trust
ball
bolster
mortgagor
mortgagee
and a senior
owe no
position
elevated to first
deed was now
junior mortgagee
him
to a
to inform
might
knowledge by
that
Commonwealth
paid.
that
the senior
has been
give
that it
exonerated
rise to a claim
was
However,
payment
jury
which the
a first
lien.
liability
from
as insurer of
found was made in the instant case was
part
my opinion, duty
arose on the
during
made
the course of
this lawsuit
Horman,
Banberry
Security,
to
of First
principal
which one of the
issues
was
the trial
disclose to their adversaries and
priority of
three trust deeds. The ma-
agreement
in the
court the existence
jority opinion
does not discuss the
pending
agree-
action since the
foreclosure
ongoing
issue in the context of an
lawsuit
bearing
potentially
important
ment
had an
quite
apply
different
where
rules
to disclo-
issue, viz.,
three
priority
on the main
failure,
majority
sure. Because of that
mortgages. Banberry and Horman seek to
finding
part
errs
no
on the
of First
premise
justify
on the
Security, Banberry, and Horman to disclose
their nondisclosure
pertinent
to
that since the
to the settlement
Kimball
existence of the
agreement
“payment” of the
agreement
settlement
the Horman
did not intend
between
intent,
deeds,
Security
“pur- garding
jury
their
but that the
only
First
trust
was
Family not
to determine
chase” of them
the Horman
bound
intent on
basis
Trust,
impact
had no
intent
of what the
said their
was.
foreclosure action and there-
It
to determine
from all
issues
was told
intent
did not
disclosed. This
having bearing
fore
need
be
on intent. Tak-
evidence
reality
if the
argument
whole,
ing
must,
overlooks
as a
the instruction
as we
agreement provided
payment
of the two
jury
fully
par-
was
informed that
deeds,
trust
Kimball
key
ties’
intent was
to its determination
position
elevated
first
Common-
purchase.
versus
only
was exonerated.
If it were
wealth
had before
it the October
purchase,
perhaps
then
the foreclosure ac-
days
agreement,
written
it listened
pur-
tion should
continued
new
testimony
many witnesses
*14
chaser,
Family Trust,
the Horman
as rule
agree-
parties
what the
intended
that
17(a) of the Utah Rules of Civil Procedure
ment.
It then retired
determine whether
prosecuted by the
requires actions to be
parties
the
purchase
had effected a
or a
party in
The fact
the
real
interest.
that
determination,
making
payment.
In
I
that
jury
agreement provided
found that
for
the
reasonably
cannot
believe that
it could
payment and thus elevated Kimball to first
anything
have
than
considered
other
the
amply
that
position
demonstrates
the Octo-
intent
as
parties
of the
manifested
the
agreement seriously impacted the
ber 1984
testimony
it
agreement
written
the
had
pending
agree-
of the
action.
issues
The
opinion
majority
sug-
heard. The
does
par-
ment should
disclosed
all
have been
gest
the
anything
jury may
else
have con-
ties to the
and the trial
when
lawsuit
court
permitted
sidered. No other instruction
it
it was made because it rendered moot a
presented
to do so. No other evidence was
principal
long passed
issue.
the
We have
issue.
relating to the
It would be sheer
“game
era when a
was a
lawsuit
speculation to conclude that
because
this
a party
skillfully
chance” and
could win
“may,”
in the
technical error
use of
the
withholding vital
information from the
jury
disregard
on a
was set
course
the
court and adversaries.
evidence,
documentary
both
and testimoni-
I also dissent from the
of the
conclusion
al,
that it had seen
heard in the court-
majority that the case must be remanded
room.
of the
because
error in instruction No.
Ralph
It
in
should be noted that even
A.
jury
“may”
the
that
wherein
was told
it
Badger
Fidelity Building
& Co. v.
& Loan
parties
consider the
intentions
rather
Association,
94 Utah
Procedure “unless refus-
turbing judgment or order appears to the court
al to take such action justice. The substantial
inconsistent with proceeding every stage
court at any error or defect in the disregard
must
proceeding not affect the sub- which does cases rights parties.”
stantial Our appellant to demon-
place the burden on the prejudicial to the
strate that the error was likelihood
extent that there is reasonable have
that in its absence there would been
different result. Harris v. Utah Transit (Utah
Authority, 671
1983). demonstration has even No such attempted in the instant case. majority’s conclu-
I also dissent from the wording special verdict
sion that the *15 prejudicial Again, majority error.
has exalted technical error above sub- any payment
stance. While it is true that here with the million
which was made Trust,
was made the Horman
Banberry, same irre- legal effect is the payment.
spective of who made words, payment by Banberry had the
other payment by effect the Horman
same rights
Trust as far as Kimball’s are con- Payment by Kim-
cerned. either elevated Thus, position.
ball’s into first my judgment, any error in the verdict again
form was harmless. TERMUNDE, E. Plaintiff
Ronald Appellant, COOK, L. Defendant
Gerald Appellee.
No. 890495.
Supreme Court of Utah.
Feb. Termunde, pro se.
Ronald E. notes Torts, on the Law Prosser and Keeton accompanying text. 1984) (5th "Kee- ed. [hereinafter at 739 n. 42 Packard, (itself citing Inc. v. General A.B.C. ton”] (9th Cir.1960), Corp., F.2d 69 n. 7 Motors ward, Security, Banberry guardian and/or and/or tract with First conservator and superi- it executor or Horman. Neither is a case where and administrator of an es- exists, tate, others, ority statutory duty among presumed, a and im- [TJhose injured by plied of a in due or Kimball was a breach law to the factual situation surrounding else.17 of disclosure owed someone involved transactions Likewise, (i.e., relationship other factors listed and the several prevent necessary ambiguous questioned matters each other and to the transac- being misleading) either statements from tions.20 apply ring fail the facts or hollow under subordination and contracts compelling the creation of as circumstances fiduciary impose themselves do not rela- duty; viewing after the remain- such and Furthermore, tionship upon defendants. classifications, ing we are not con- relevant regarding relationship mortgagor vinced that a of disclosure arose here. mortgagee, it has been stated that “the “ mortgagor mortgagee relation of is not ‘Whether or not a confidential or fiduci- fiduciary of a It character.”21 has also ary relationship depends on the facts exists never, been noted that debtor can “[a] and circumstances of each individual ” 18 such, merely as be deemed a trustee for his generally case.’ Courts have refrained creditor, any or liable to of the duties which definitively listing the instances of are incumbent on a trustee towards his fiduciary relationships way such as to trust, que cestui whether he.be secured or excluding penumbra risk of unknown unsecured.”22 has, or unraised relevant It how- cases.19 ever, generally been noted that there are Nevertheless, claims Kimball types fiduciary relationships: two him fiduciary duty owed (1) [Tjhose specifically arising years dealings created con- out of of confidential principal agent, position tract such as attor- and based its aas subordinat client, ney However, ing and trustee and cestui lender.23 the cases Kimball trust, que example, support and those created cites of his view24 stand for legal proceedings propositions, formal such as narrow involve the diversion generally supra accompa- Banberry’s alleged 17. See notes 7-13 and 23. Horman’s and duties are briefs, nying independently text. discussed in the opinion distinguish this does not between the
Notes
notes
(1970)
S.Ct.