*1 1250 proof alleged. law, discretion The burden a trial court Utah
Under met, is therefore granting is afforded not and the decision a decree divorce been prop area of in the costs considerable discretion affirmed. No awarded. Moreover, erty the court has distribution.2 parties with
continuing jurisdiction over the CROCKETT, and J.,C. and WILKINS decree, enabling it to regard make JJ., STEWART, concur. are equit as subsequent modifications MAUGHAN, J., result. concurs discretionary power able.3 The breadth given initial determi the trial court in the property extends in
nation of the division subsequent
equal measure to these modific
ations.4 matters, party seeking
In these prove trial must reversal of the
misunderstanding misapplication or prejudicial resulting law in substantial and HUGHES, Plaintiff, Clifford error, clearly prepon or that the evidence v. that findings, derated such a inequity serious the order as resulted from Defendant, HOUSLEY, Third- James F. to constitute an abuse of the court’s Appellant, Party Plaintiff appel discretion.5 It is the role v. late in such to evaluate the forum cases N. Jack and Paul decision, GLEN sagacity being the trial court’s Third-Party Defendants shadings based it is of fact and cir as on Respondent. reviewing cumstance unavailable to properly court. within If the decision rests No. 16062. imposed judicial the bounds of discretion Utah. Supreme Court of law, our is at end. Defendant inquiry an v. Hen refers us to the case of Hendricks 30, Aug. 1979. 6 proposition reviewing dricks for the probative, court should undertake a more the facts un
quasi-independent review of
derlying ruling. the trial court’s That deci long ago given
sion a restrictive read
ing, being regarded as in line is now
with the set above.7 standard forth ruling
The trial court’s standard. Re- comports
gardless of our own inclinations based us,
strictly upon the defend- record before
ant has shown us no facts or circumstances
enabling as us to treat the decision below
being inequitable so or devoid of evidentia-
ry support as to
the abuse of
constitute
Mitchell,
supra;
U.C.A., 1953,
v.
2.
v.
cited
Madsen
Mitcheli
30-3-5.
Madsen,
(1954).
2d
0. Robert Meredith Christensen, Christensen, Gard- Roger P. Evans, iner, City, for Salt Lake Jensen & respondent. third-party defendants and BANKS, longed Carpenter, and Investment Judge: Glenn District Wells Systems, Inc. We note that failed legal This a claim action stems out of of. Housley. serve answer on ihalpractice plaintiff, which the Clifford responsive Hughes (hereinafter “Hughes”) sought re- did not tender covery ap- pleading interpleader for the against his former *3 against action, judgment entered pellant Housley this James F. default was in Hughes damages Hughes has in October 1974. (“Housley”) for which Housley’s of negligence claimed as a result May Hughes terminated During be allowing judgment in a default to taken Cotro- Housley attorney as and retained his against prior legal Housley in a action. him as his new counsel. Cotro-Manes Manes response Hughes’ in filed a to claim third- and to Aside Default filed a motion Set party action Paul N. Cotro-Manes with an ac- Judgment and Order Default (“Cotro-Manes”), by the retained authority of companying memorandum Hughes replace Housley representing in to judgment the should which asserted default litigation, prior seeking him in the indemni- did be set aside because the defendants ty alleging neg- from him Cotro-Manes was relief file cross claim and because the a ligent failing to judg- in have the default the granted plaintiff exceeded that which ment set aside. by was heard the demanded. The motion The Housley’s trial court found that court was denied. but third-party complaint state failed to a claim to the having failed have upon granted which relief and could be aside, judgment filed a com- default set complaint prejudice. the with dismissed action, alleging that plaint in the appealed. From Housley this order negligent allowing the en- Housley was in try failing it agreement
In an escrow was entered of the default in to have and Howick, into E. Keith T. set between Delwin aside. Systems, Pond Investment Inc. Under third-party Housley filed a thereafter the agreement, terms of that was Pond complaint Housley’s against Cotro-Manes.
obligated, agent, as escrow to hold certain this is complaint, subject appeal, the of early dispute stock certificates. In upon allegation the that Cotro-Manes based ownership arose over the these of certifi- to the negligent attempt was in have his Inc., Systems, cates between Investment aside, judgment negli- that such default set Jack Hughes, Glenn and Clifford the facts Hughes’ gence aggravated perpetuated controversy. of which are irrelevant to this Housley damages and that as a result for Pond, indemnified Cotro-Manes upon becoming should be Delwin aware of damages. such ownership the conflicting claims to the escrow, stock held in certificates which he Cotro-Manes made a motion to dismiss interpleader July action on instituted an complaint, upon the based the third-party 1974, seeking a declaration from the court third-party com- grounds asserted that the ownership as to the the stock certificates. upon plaint not state a cause of action did trial could The which relief be obtained. Hughes retained the services complaint third-party court dismissed the represent to interpleader his interests in the prejudice. with action. appeal that the Housley contends on this The parties interpleader other ac- this finding erred in that his com- its
tion represent retained Edward T. Wells to plaint against did not state Cotro-Manes their the regard interest with stock cer- upon which sufficient cause of action relief tificates. granted. could be August On Wells filed an answer on controversy Hughes his clients’ behalf had A motion to dismiss claiming that right, alleged pleadings no of the corporate title or on an failure interest based upon relief shares the which rightfully shares be- to state a cause injured granted place plaintiff can be is to as a be treated motion in Judgment.1 Summary treating And a mo- negligent phy- Cotro-Manes as the granted tion be appears should not unless it appeal analogy provides sician. While this certainty to a would be case, doing deciding a flaw in so is in this entitled to no relief under state of any facts apparent upon made closer examination. proved support which be in of the could assuming arguendo For that Cotro-Manes Using agree claim.2 this standard we case, negligent handling his the trial Housley’s court’s conclusion that aggra- negligence be said to have cannot third-party complaint legal state failed to injury Hughes’ vated or added to dam- claim for relief. age. pertinent It is to note that in this replaced At the time that Cotro-Manes practice state party permitted third is only Housley the default representing *4 original where can the defendant show that damage had been and the total entered if he is liable plaintiff found to the then the complete. place did not Cotro-Manes party third will be liable to the defendant.3 Hughes he was any position in than worse Housley in order to a claim in damages this no of before and as such allocation action, presents cognizable legal which a under indemnification could be attributed issue, places great upon a reliance an analo- to Cotro-Manes. gy between the fact at bar and those cases Housley Third- next contends that his negligent in party injuries plain- which a a Party cause in Complaint states a sufficient plaintiff’s injuries tiff and the are subse- negligence justify action for to relief. quently aggravated or perpetuated through however, agree, We with the the negligent injury by treatment of the a physician. pointed Housley be enti- finding As out Mr. in that would not Housley for jurisdictions the of majority support which have tled to the facts in of relief under addressed substantially facts similar have this claim. that, although
held originally negligent the requires finding negligence A tortfeasor liable is for all of injuries elements, the original presence the one of sustained in the acci- certain dent as well as for the aggravation part of those the duty running which is a between injuries resulting party’s from a negli- third ies.5 It is the of this apparent facts gent plaintiff, original treatment of the the arose controversy duty no ever be that tortfeasor should be allowed some form of parties. tween the Had been Go- party indemnification4 from the third for would tro-Manes’ then Cotro-Manes client the aggravated injury. Housley. have to duty had a Cotro-Manes’ client, however, long Hughes.
In
It
analogy
this case
would character-
tortfeasor,
held,
ize Housley
exceptions6
appli-
as the initial
been
not
with few
States,
(5th
12(b)(6).
1. Rule
Co. v.
409
Cir.
U.R.C.P.1953.
United
F.2d 514
26,
1969).
Indemnity
8
§
See
41 Am.Jur.2d
also
Athas,
Liquor
2.
121
Control Comm. v.
Utah
recovery
Subrogation
theo-
A.L.R.3d 639.
as a
457, 243
441.
P.2d
ry
Ry. Light
&
see Fisher v. Milwaukee Electric
Co.,
57,
(1920). Contri-
173 Wis.
Accordingly, was correct to the trial court Complaint Third-Party under dismiss the support might party prove What a controversy. facts of the the Court is of no concern claim prior unless is raised thereon an issue Respondent Cotro- Affirmed. Costs to Summary Judg- ruling Motion on the Manes. ment. CROCKETT, J.,C. concurs. JJ., STEWART, HALL and concur JJ., WILKINS, having MAUGHAN
result. themselves, participate disqualified do herein. *5 ELLETT, (concurs Justice Retired reservation):
result result, wish
I concur but to state while the paragraph sentence in 14 of correctly opinion
the main states what this cases,
Court has held number of to wit: [Summary Judgment] a motion
“[S]uch appears granted it
should not be unless Ward, 195, 25 Am.Jur.2d, Savings Attorneys 100 U.S. L.Ed. Bank v. see § also 7 at Law 167.