*1 1209 tion, subject been merely propounded would have each of his codefend- Memmott, ants, cumulative. Stevens v. 9 Utah was: “At time you signed [the 37, 40, 337 418, 420 (1959); P.2d Taylor 2d v. was agreement, your it under- lease] Mazzola, 553, (1962). 150 Colo. P.2d 96 standing that going that was to be a final agreement?” face, its this question On con- case, appellant’s In this heard jury tains no terms to elicit evidence bearing testimony that he considered lease in- whether appellant guaran- was lessee or a strument to be no more than a preliminary Moreover, tor. this issue on agreement starting point or “letter of —a appeal, appellant had to make an offer he intent” —because had never received the proof on the as to what record evidence he opposite effect, lease attachments. To the questions, intended to adduce his Utah jury competent heard other evidence 5; 43(c); R.Civ.P. Utah R.Evid. v. Bradford appellant read document and Sons, Alvey supra; Downey & State Bank signed it in space “tenants,” entitled v. Corp., Major-Blakeney supra; 75 Am. he had executed previously another (1974), Jur.2d Trial or to propound lease § Tunex which was substantially similar questions further here, explicitly pertinent more challenged to the one that appellant Scott, 267, to the issue. v. was aware that construction Scott 2d building began November, in P.2d v. and that McElwain business Schuckert, began operating January, Ariz.App. 470-71, oper- until (1970). ated sometime in 1980. There 756-57 Since was was neither done, also evidence that we for shortly after the business have no basis a reversal on this appellant commenced with spoke respon- issue. an open dent at Appellant house. was noti- judgment affirmed. is Costs to re- fied of in rent delinquency payments in spondent. or spring summer of Although 1980. he years opportunities four and ample HALL, C.J., STEWART, HOWE and so, appellant do he admitted that had never DURHAM, JJ., concur.
requested that a final lease executed or
inquired respondent his or codefendants the missing
as to or challenged attachments binding final and quality lease respondent
instrument until after filed suit November 1980. Edwards’ Pet Cf. Utah, v.
Supply
Bentley,
fendants’ whether he testimony as to exe
cuted the lease as a (principal lessee obli-
gor) as, effect, only guarantor two ques- other lessees. The excluded *2 December, 1971, P. DeLoris
In defendants an purchased Dale and her husband Dorius to building agreed for LPE office which At price. purchase a of the pay portion time, building placed the seller of defend- warranty showing in escrow a deed Ac- building. holders ants as title of Hull, documents cording to the escrowed part of agreement included an on also convey LPE an undivided defendants to to final upon property one-half interest Thereafter, and LPE payment. defendants proper- regular made payments each equal contributing approximately ty, price. the purchase amounts toward anticipation completion of In of building property, on the office payment defendants to discuss began LPE and of sale of LPE’s interest possibility annual to defendants. At their property 17, 1978, LPE’s di- meeting on October of appraisals two rectors resolved obtain with Dale and to then “meet property price.” According a and decide on meeting, minutes of that the directors McKell, vice to “contact Joy tended [P. and confer president and director of LPE] is made.” with her before final decision appraisal de- Following property, of the Harker, Daniel Cassity, Donn E. M. Doris Driggs, P. trea- Gay fendants tendered Barker, City, A. Salt Lake LPE, check in the surer and director of appellant. $14,000, representing allegedly amount of Mann, de- City, for Brigham Walter G. property LPE’s the value of interest respondents. fendants and higher apprais- the two according of 30, 1979 January als. The minutes of a HALL, Chief Justice: of the meeting show that all four directors’ valid. Enterprises, recognized Lloydona Peters directors directors, However, Hull two of the four (LPE), appeals trial court’s dismiss- Inc. McKell, as to of remained undetermined specific performance al of its action for at the ten- to it an inter- whether to sell LPE’s interest alleged convey contract to the ex- of price. defendants. dered contravention property est in real owned directors, Hull, two pressed Jean P. wishes these appeal At issue on is whether in LPE’s bank LPE, Driggs deposited to initiate check held recog- Thereafter, account. defendants this action on its behalf. building prop- nized no interest in the office sisters, one LPE is owned four part on the LPE and discontinued erty P. Dorius. whom is defendant DeLoris previously payments rental which it assets of real consist forwarding corporation. been mother, Pe- Lloydona from inherited their years and one-half equal Approximately share in two ters. Each sister holds an $14,000, without au- serves and each after the stock of directors, from LPE’s board thorization as a director and officer. Hull from withdrew board of directors whom the au- $15,888 original representing account thority to bind the is commit- $14,000 two plus years’ interest. After us- not ted is the individual directors scat- money legal of this retain there, here tered ... but it is the counsel, deposited Hull with the dis- sitting together board and consulting in a court a complaint seeking trict and filed *3 directors, body. any Individual or num- warranty deed to an undivided one-half quorum, ber of them less a than have no building along gen- terest in the office with authority to as directors bind the corpora- punitive damages. complaint eral and tion.2 included the following allegation: rule, deny general Hull does not this but Complaint That is Jean by this verified claims to file the authority present suit Hull, Lloydona Enterpris- P. President of rule, under exception an the citing es, Inc., action brought and said is case Taylor.3 of Kamas Co. v. In Securities corporation behalf of the said to preserve case, president corporation the of a corporate assets and interests. litigation to of initiated recover the value Defendants countered with motion dis- a to loan improperly collateral returned the by miss, claiming authority Hull had no to to secretary the debtor who litigation initiate on behalf of LPE. pledged it. The Court stated: granted The trial court defendants’ mo- true is that there was no of resolution [I]t tion, stating: directing the board of directors such suit I find that the management control and filed, to be an but executive officer is not plaintiff of the corporation [sic] required to wait for of formal resolution directors, they may alone authorize perform the directors to his official duties of litigation.... the institution [T]he the of the assets president thereof have im- does not the prevent or to their dissipation. [Empha- power or plied power the inherent to in- sis added.]4 litigation stitute in this the name of the In affirming president’s power the to initi- plaintiff corporation. ate litigation under the above circumstanc- U.C.A., 1953, provides 16-10-45 in § es, pointed the Court out: part: he such deferred action until con- [H]ad agents All corpora- officers and procured sent had been the tion, as between cor- themselves and the might irreparable have suffered an loss.5 poration, shall have such
perform such duties in
management
the
plaintiff
Unlike the
in the Kamas Securi-
the corporation may
provided
of
as
in
case,
ties
of
danger
losing
LPE faces no
bylaws,
may
the
as
be determined
significant
asset. LPE received
sum
resolution
board of directors not
payment
tendered
defendants in
with
bylaws.
inconsistent
for its share in the
property.
tender
was
in
with
made
accordance
an
with the
rule,
accordance
above
this
accepted
which all four
directors
consistently
uphold
Court has
refused
ap-
power
corporate
expressly
valid. Two of
directors
act
20,
proved
January
at
1979
behalf
his
without
sale
authoriza
two,
tion
meeting.
from its board of directors.1 In Loch
directors’
The other
while
witz v.
transaction,
Pine Trees
their
Mining
Co., noting
objection
& Milling
following
quoted
pay-
Court
statement: made no effort
return the
Utah,
Heights Corp.,
241,
(1950).
1. Foster v. Blake
3. 119
ment
Thus,
as follows:
alleges,
paragraph
years later.
and one-half
nearly two
apparent-
on hand the sum
already
rental value of the
LPE has
the reasonable
That
month,
of its interest
to the value
and the
ly equal
per
premises is $450.00
protecting
claims to be
Hull
property which
failed to remit
Defendants have
this suit. Unlike
initiating
undivided rental
for its one-half
case, LPE faces no
in the Kamas Securities
in the above described
interest
the event of failure to
loss” in
“irreparable
the time of
from November
facts of the
action. The
legal
initiate
above referenced
in full of the
any
justify
fail to
present
Contract,
case therefore
time
at which
Real Estate
general
prohibiting
rule
departure from the
conveyed
have been
Plaintiff should
president.6
by corporate
acts
unauthorized
the title to
interest in
undivided one-half
Therefore, Plaintiff has
property.
properly
court
the trial
We hold that
*4
in loss of rents in
damaged
been
the basis of Hull’s
this action on
dismissed
$7,200.00,
inter-
plus accrued
amount of
initiate suit on behalf
lack of
dam-
will suffer additional
est. Plaintiff
Affirmed. Costs to defendants.
of LPE.
per month for the time
ages of $225.00
withhold rents
continues to
Defendant
HOWE, JJ., concur.
OAKS
from Plaintiff.
DURHAM,
(dissenting):
Justice
that
appears to hold
majority opinion
opinion,
acknowledg-
while
majority
forced to sell its inter-
may
be
corporation
president may act for
corporate
that a
of the unau-
by
in real
virtue
est
of authoriza-
corporation
in the absence
in an
money
a sum of
deposit
thorized
tion
board of directors in order to
from the
corporation
agreed
amount never
assets,
corporate
holds
protect
accounts. The deadlock on
in one of its
danger
here is in “no
corporation
prevents any reso-
LPE Board of Directors
disagree.
I
losing
significant
asset.”
just
absolutely
as
authorizing
lution
a sale
authorizing
dismiss,
prevents any
as it
resolution
the trial court is
On a motion
that all the di-
this
The fact
alleged
litigation.
the facts
required
accept
has
accepted
rectors
as “valid"
of the mo-
complaint
purposes
as true for
whether
bearing on the issue of
complaint
the verified
no
tion.
In this case
accept
appraisal price
have failed and
will
alleges
respondents
that the
purchase.
in a
the absence of
proposed
and transfer title to
refused to execute
sale,
being deprived (perhaps
one-half inter-
valid
LPE is
corporation for its undivided
title to its undivided
permanently) both of
persisted
est in the
and have
property,
real
which
property,
may
interest in
corpora-
from the
one-half
claiming
that a “sale”
value,
and of its share of
appreciating
the unauthorized
tion occurred
virtue of
rents. There should be
past
and future
deposit of
into
Co.,
However,
Ney
Telephone
the record
has never been returned.
6. See
Eastern Iowa
v.
(1913); Community
from the
Iowa
tute assets” bring which
case within the holding of Kamas Securities Taylor,
Co. v.
(1950). I would reverse.
STEWART, J., concurs in dissenting
opinion DURHAM, J. LEA,
Joan Sena Bowers Appellant,
v. BOWERS,
Farrell D. Defendant *5 Respondent.
No. 18030.
Supreme Court of Utah.
Feb. Wootten, Fork,
Noall T. American plaintiff appellant. Ivins, Fork,
H. American for de- Grant fendant respondent.
DURHAM, Justice: judgment This is an from a modi- appeal fying a divorce decree. We reverse because the di- modifying the trial court erred in vorce decree in the of factual find- absence change of a substantial in circumstanc- es. 29, 1974, a Divorce De- April
On default cree granting was entered divorce respondent. Paragraph 7 of that decree provided as follows: hereby awarded as her separate property
sole and the 1965 Chev- automobile, fur- rolet all of the household niture, furnishings, equip- fixtures and hereto and belonging parties ment