*1 Shеlby Taylor, MASCARO individuals, Appellants, Plaintiffs DAVIS, Charley Joseph, Curtis
John S. Inc., individuals, Chatillion, Baum, corporation, Defendants
a Utah
Respondents.
No.
Supreme Court of Utah. 6, 1987.
July Aug.
Rehearing Denied *2 Since gone
tion. the case has never to trial, the limited factual background provid- ed for part upon below based the most pleadings, filings, the and submissions. I.
Early in plaintiff Mascara and de- Joseph partnership fendant formed a for purpose acquiring of developing and property. partnership’s real real es- tate option transactions involved an to buy eighteen Lehi, Utah, acres land in for $117,000 (Taylor property) larger a and parcel contiguous of land Taylor to the property known as Lehi Meadows. The partnership attempted thereafter to sell the Tаylor property and also acted as a real agent estate for Lehi Meadows. potential buyers After several failed to purchase Davis, the properties, defendant attorney, Joseph an contacted an un- Upon learning part- related matter. nership’s venture, repre- real estate Davis Joseph sented to he sell could properties. subsequently Davis was hired partnership. Hanna, Joseph Rust, W. Charles C. Salt partnership In March entered appellants. Lake for City, Chatillion, Inc., into an a Davis, pro John S. se. corporation operated by owned and Curtis Smith, City, Joseph M. Lake Shane Salt By Baum. the terms Tesch, City, respondent E. Char- Heber for purchase agreed approximate- Chatillion to ley Joseph. ly twenty-nine of Lehi acres Meadows and options purchase several to the remainder Bountiful, Burnett, respon- Duane A. for Taylor property. of Lehi Meadows and the Chatillion, dents Baum Inc. Curtis and part, agreed pay In relevant to Chatillion HALL, Chief Justice: $380,000 partnership approximately for (which Taylor property in turn was to joint Plaintiffs obtained and several a consid- judgment against be used Chatillion of its default defendants Davis accompany- for Lehi plaintiff and eration Meadows and Joseph and in Masca- favor $205,869.16 ing options) and as a commission ra for plaintiff and Lehi made $85,706, fees, sale of Meadows. Chatillion attorney as well as for inter- est, totalling payments partnership cash and costs. Plaintiffs seek reversal eight (1) $140,937.09 agreed convey an and to modifying setting order aside each, building lots, $30,000 value of part plaintiffs’ with a against $380,- satisfy owing (2) enforcing to the balance on the Joseph; order defendant an obligation. (3) agreement; an order plaintiffs executing preventing gave payments cash Chatillion pursu- Joseph’s property defendant Davis, placed who them in trust a client ant judgment. to the default Davis Joseph account. claimed that he told $20,000 $40,000 Taylor, The discussion in case to distribute involves Mascara, $20,000 to re- portion larger Joseph real estate transac- tain the until furthеr Joseph remainder notice. told that everything would be taken Davis, however, $38,000 Joseph issued care of worry.” and “not to Over the next of money. embezzled over months, Joseph several allegedly spoke re- peatedly concerning with Davis the status into, After the entered of the suit. believed that Davis dispute eight arose as to whether the lots taking proper legal steps to suc- $30,- convey Chatillion were worth *3 cessfully defend the action. Additionally, Moreover, although closing 000 each. on may Joseph’s Davis have told wife that he twenty-nine acres of Lehi and Meadows fact, had filed an In answer. Davis failed accompanying options place, part- took complaint to answer the any or take re- nership eight never received title to the sponsive Instead, action. entry he allowed building lots. judgment of the default against himself partnership Taylor op- The exercised the Joseph and on June provide tion so it could Chatillion with title Taylor property. The A terms of the motion to judg- set aside the default option agreement provided part- ment was denied in February nership pay Taylor would in the form of Judge Thereafter, Sawaya. James Joseph income-producing property. re- embezzlement, learned of Davis’s obtained partial option ceived satisfaction of the counsel, brought and new a similar motion agreement partnership provided when Judge Dean Conder. The motion $30,000 buy duplex. excess to him a January was denied in Joseph again Taylor then property located other which retained stay new counsel and moved partnership buy he- wanted to for him execution, granted by Judge which was to satisfy option the remainder of the David Dee in March 1982. agreement. personally paid Mascaro in ex- May In prior one week to trial on $10,000 partial payment cess of for a down plaintiffs’ Joseph’s claims and cross-claims However, on property. this other since no against Chatillion, pretrial Baum and con- funds remained in Davis’s client trust ac- agreement ference was held. An pay count with which to the remainder of reached, settling claims, most of the be- payment, property down was fore- parties. tween all of the closed and Mascaro’s invested funds were lost. conference, pretrial At the Baum and agreed partner- Chatillion to tender to the In complaint, plaintiffs alleged their ship eight property lots of real in Weber Joseph and Davis converted to their own (also County, Utah known as Phase III of $140,000 placed by use the Davis in the Subdivision). Taylor agreed Parkvale alleged trust further account. Plaintiffs accept four eight lots in full that Joseph repeated and Davis refused judgment against satisfaction of his Joseph requests accounting, clаiming for an Baum, any against and claims he the funds had Mas- trust account and they caro, individually any Joseph, Chatillion, provided had not received evi- funds from Discovery the account. produced dence could be that the lots in otherwise, proved Davis’s bank records question were each worth or more. Joseph thereafter admitted he received also called for Baum and $38,000. dispute There no that Davis Chatillion to make certain portion embezzled a beginning the funds terms, the lots. Based these same in June of 1979. agreed accept Mascaro two of the lots in partial judgment against satisfaction of his complaint Plaintiffs filed their May Joseph. The final two lots were to be held Joseph Davis and were both escrow, pending a 5,1980. served on resolution of the re- May following day, Joseph apparently judgment mainder of Mascaro’s called oth- Davis and re- quested against Joseph er claims steps Davis take whatever cross- were necessary represent Joseph might against him. Davis claims Masca- Finally, 54(b), Mascaro’s all of related tions stated in ro.1 Rule court Chatillion stay claims Baum and were to judgment enforcement of that until prejudice. negoti- After be dismissed the entering subsequent put ations the settlement into may prescribe such completed, plaintiffs form were final indi- conditions necessary as are to secure the they did not intend to hоnor the cated benefit thereof the party in whose In agreement.2 November favor the is entered. granted Joseph’s to enforce Dee motion granting Dee’s order Joseph’s mo- stay tion to provided the execution perti- Thereafter, Joseph brought a third mo- part: nent judgment. to set aside the default tion IT IS HEREBY ORDERED: January Judge Dee modified and set 62(h) That the Stay U.R.C.P. Rule part plaintiffs’ judgment, aside Judgment Default requested by holding responsible *4 Charley Joseph hereby granted is on the funds the embezzlement of the from the Charley Joseph post condition that bond partnership, Taylor’s claim had been $25,000.00 in the amount of in property satisfied, judgment against that Mascaro’s or other assets. Joseрh satisfied, partially was and that the during period 2. That of said judgment remainder of Mascaro’s should Stay, Charley Joseph is ordered appeal be set aside. This followed. transfer or property. alienate of his continuing 3. That this court retains II. jurisdiction over this case. Plaintiffs contend that Dee erred although 4. That this case has been by granting Joseph’s stay motion to execu- brought owing, posture of a debt argu- judgment. tion Charley Joseph between Mascaro and judge’s beyond ment is that the order went is, fact, Joseph correctly it more scope thereby affecting the motion partner- viewed as a of their validity dissolution plaintiffs’ judgment. Joseph ship. properly plaintiffs’ was served with сom- plaint, his default thereon was entered Court, therefore, 5. That this intends pursuant to Utah of Civil Procedure Rule to treat the matter as a dissolution of 55(a)(1). Thereafter, judgment en- intending partnership, said to become tered accordance Utah Rules of fully appressed partner- both [sic] 58A(b). 55(b)(2) Civil Procedure ship partnership debts and assets. September Judge Dee made the de- [re]quire intends to That this court judgment pursuant
fault final to the terms legitimate payment partnership of all the 54(b).3 of Rule and, assets; partnership debts out of the Joseph’s stay of motion for a execution partnership profits equally to divide the upon based of Civil Utah Rules Proce- Therefore, among рartners. all said 62(b) 62(h) 62(h). provides: dure Rule partnership [acquired by plain- assets judg- pre- tiffs are to Charley
When a court has ordered final ment on all of the served until Order of this some but not claims disbursed presented in under the condi- Court. the action II, 54(b) provides explained will be section 3.Utah Rule of Civil Procedure As trial pertinent part: judgment against court viewed the default Jo- being seph as thus the infirm and settlement is When more than one claim for relief litigation agreement anticipated further between entry presented may direct the ... the court Joseph and Mascaro. judgment but of a final as to one or more parties claims or fewer than all of the plaintiffs yet signed express faсt court
2. The had an determination delay legal just of no conse- settlement is that there is no reason State, judg- entry quence. Murray express for the See an direction 1987). (Utah ment. judgment the embezzle- and thus without foundation in this court views 7. That $100,000.00by at- approximately the law. We therefore limit the effect of ment of to be the crux of torney para- S. Davis Dee’s March 1982 order to John dispute. through 3 graphs this of that order.6 S. Davis was the at- That as John at the time of partnership torney for III. embezzlement, partner will each agree Plaintiffs contend that loss is realized equally share whatever reached at the ment settlement conference after John S. from said embezzlement Judge Sawaya improperly en exhausted assets have been Davis’ by Judge Dee forced due to a failure of through efforts to execute on counsels’ conditions. It a basic rule that the law against him. disputes.7 favors Such 54(b) requirements of Rule were satis- agreements proper under the circumstanc Taylor’s respect to Mascaro’s and fied with However, summarily es enforced.8 Therefore, Judge against Joseph. claims whether a court should enforce such an 62(h), power, pursuant to Rule Dee had merely does not turn on the stay of the default execution agree character of the An pending entry on the collateral compromise ment of and settlement consti claims. executory tutes an accord.9 Since an exec- Although expressly did not the court utory accord “constitutes a valid enforce upon Joseph’s grant stay claims based contract,”10 principles able basic contract voidable,4 *5 judgment void or that the was affect the determination of when a settle through 4 comments in paragraphs 8 and agreement ment should so enforced. be corresponding entry minute indicate the appeal, plaintiffs dispute do not On Judge judgment that Dee viewed the final validity the of the but rather Judge being as hold that infirm.5 Since we perform there assert that their failure to setting subsequent Dee’s order aside the certain condi under was excusеd because judgment an abuse of discre- was agreement precedent tions to the had not tion, 946-947, pp. we view the con- infra contend, therefore, 8, through met. Plaintiffs paragraphs tents of 4 which been Judge granting in mo effectively undermine the default that Dee erred the Joseph, being agreement.11 in as to as conflict with that tion to enforce the settlement Joseph alternatively argued stay It is now well established that the trial court the granted power summarily should have been because the on mo- has the to enforce void, implying stay proper agreement the tion a settlement entered into 62(b). pursuant to Utah Rule of Civil Procedure litigants litigation pending while the is the 62(b) Although stay Rule a court to exe- allows obviously, simple Quite so before it. judgment pending disposition cution of a the remedy speedy policy serves well the favor- 60, pursuant a motion for relief to no such Rule ing compromise, which in turn has made a motion was before the court until after major popularity. contribution to its stay Dee ruled the on motion for a of execution. Id. at 609. corresponding entry provides 5. The minute Co., Drywall, 9. L & A Inc. v. Whitmore Constr. pertinent part: "This court intends to retain 626, 1980) (Utah (citing Cox 608 P.2d 629 case, control of this of case to with intent at end 85, Comm’n, P.2d Constr. Co. v. State Road 583 possible by way resolve issues as much as (Utah 1978)). 87 gathering making partnership dis all rssets fair among parties.” tribution all Holmquist, 642 10. Lawrеnce Constr. Co. v. P.2d 30(a). (Utah 1982); 6. See R.Utah S.Ct. v. see Blackhurst Trans- Co., (Utah america Ins. 699 P.2d 691-92 1000; Murray, 737 P.2d at Alvin G. Rhodes 1985). Comm’n, Pump Sales v. Industrial 681 P.2d (Utah 1984); Jimco, Ltd., Rio Algom Corp. summarily to 11. The decision of a trial court (Utah 1980). 618 P.2d agreement will not be re enforce a settlement Travelstead, appeal there versed on unless it is shown that Tracy-Collins Bank & Trust Co. v. Therein, Millerberg v. Stead abuse of discretion. we was an man, (Utah 1982) (and cases stated: light party to a settlement this
Where one evidence and the insufficien- cy record, of the we agreement fulfill a con cannot hold fails to substantial trial court abused its therein, discretion. precedent oth the dition thereto party(s) performance.12 er is excused Plaintiffs further contend that the Although agreement itself is silent on the improvements called for certain point, parties’ papers indicate made They to the lots. claim that required Baum and Chatillion were as completion of these consti provide documentary precedent tuted conditions which were not showing evidence the lots each had Specifically, plaintiffs fulfilled. claim the Further, or more. both following value noted in the por agree tion of plaintiffs require completed: precedent ment was a condition following improvements have been [T]he dispute completed completed lies whether or shall be no later date the condition fulfilled. Plaintiffs claim than the indicated herein below in paragraph: that Chatillion’s documentation failed to required valuation. How piped, culinary substantiate a. That water has ever, plaintiffs have not indicated where been extended to each of the speci- above fied lots. that documentation located in the record.
Moreover, transcript is no there asphalt That b. surfaced road hearing III, of the Dee. for in record called Phase Parkvale Subdivi- plat, approved by previously County, indicated when sion Weber We record, completed shall each above crucial are not in the matters specified August 2nd, lots on or before missing presumed portions suрport are presently 1982. There is a lien on each judge.13 trial documentation County lot in favor of Weber ensure appears record relevant asphalt completion roadways; of said property appraisal is an cover value agree Baum and Chatillion to substitute ing Phase I of the Parkvale Subdivision County of Weber cash bond favor letter, 23, 1982, dated June written *6 present lieu lien and to of obtain by plaintiffs’ attorney Joseph’s attorney. County from a release of said lien Weber pertinent in part: This letter stated 61, 62, 57, 58, 59, 60, 47 on and 48. lots pro- you From the evidence of Evidence of substitution said cash us, vided appears my it clients that by lien the release of bond and Weber рroperty by Baum submitted Curtis parties County shall all no be delivered probably roughly ap- does have value Agree- of than the execution this later proaching $30,000 agree each. We ment. probably Curtis Baum been met has [sic] fence, specified as c. That a chain link obligation and that it rea- would be plat approved by in the subdivision sonable to him from the release lawsuit completed County, across Weber shall be proper tender of said lots. 57, 58, 59, property line of lots east long delay getting Due to the verifi- 2nd, 60, 61, August and 62 on or before Baum, however, Shelby cation from both Further, rep- Chatillion Baum and Taylor and Joe Mascaro are now unwill- for the erection resent that the contract ing unimproved to take let, fact, lots offered and in of said fence has been as a of the Curtis Baum satisfaction made to the payment full has been respective completion of judgments. for the said contractor Bethers, 91, therein); Bambrough pequa Oyster Bay, 50 cited see 552 Town Misc.2d 269 v. of 1286, 830, (Utah 1976). (N.Y.Sup.Ct.1966); Davego, N.Y.S.2d 833 703, O’Brien, 11 175 N.Y.S.2d Inc. v. Misc.2d Bunker v. 252, Hill Co. United Steelworkers (N.Y.Sup.Ct.1958). 835, Am., 107 Idaho 686 P.2d (1984); Baker, Ariz.App. Chapman Chapman, 728 P.2d Aritex Co. v. Land v. 13. See (1971); In re Massa Taylor A letter the said contractor to obtain fence. Baum payment in full for affirming receipt necessary and Chatillion an amount fence, including of said all complete any improvements the erection of the not labor, speсifying However, and all materials made.14 neither nor Mas- August than completion no later date remedy, caro availed himself of this 2nd, 1982, par- shall be delivered each consequently, there is no evidence than the execution of ty hereto no later support record to beyond contention Agreement. this arising the inferences from the enforce- specified irrigation ditches as d. That ment order. III, plat, in Phase Parkvale Subdivision We have held that matters not approved by County, Weber shall and as raised at the trial court level will not be speci of the provided to each above be considered by appeal,15partic this Court on 15,1982. July fied lots on or Fur before ulаrly problem when the could have been ther, guaranteed lot shall be that each policy resolved below.16 The this behind share of in the West the use lk water applicable contingen rule here where the Company, under a nine Warrant Water cy improvements might not be ty-nine year master in favor of the lease completed contemplated and the below Association, and Parkvale Home Owners given remedy pursued. therefor was not that each lot shall assessed for no Steadman, in Millerberg As we stated pro-rata more than its share the annu The settlement in this case lease, costs of al costs of said reasonable presence was entered into in thе common, maintaining irrigation ditches in trial court. There nois claim of fraud or and a reasonable fee to a water master imposition. The issues unresolved now appointed by Home the Parkvale Owners were, part, relied on for the most Association. Assessment for current presented judge to the trial as an ob ($4.00) years per is Four dollars lot. performance agree stacle to the upon by plaintiffs relied ment. Under the circumstances of this prece- do not rise to the level of conditions case, judge ... the trial acted within the dent to enforcement of the necessary ambit discretion in summar por-
This conclusion is necessitated ily enforcing agreement.17 the sеttlement agreement providing tion of the that “the following improvements com- have been having The dissent views Dee as pleted completed no later than shall parties’ agree- rewritten the (Emphasis the date indicated herein.” add- However, ment. the settlement ed.) reading language A fair of indi- provided that Baum and Chatillion would complete improve- cates that failure to make the noted parties ments an event which the quoted parties the dates above. The clear- *7 prevent intended would enforcement of the ly agreement binding intended the to be agreement. settlement once Baum and Chatillion established the Moreover, Moreover, of agreement the value the lots. once that binding, expressly provided provided enforced for this contin- it that (that gency improvements might the not be Baum and Chatillion would released be made) allowing Mascaro, by Joseph, liability; agreement clearly from the indi- motion, 14.Joseph’s entry except enforcement which was la- lowed this format for the initial of Chatillion, joined by requested ter Baum and prejudice. a dismissal without the terms of the enforced be the that claims Baum and Chatillion dis- n , Messer, (Utah Lane v. prejudice missed without and thereafter be dis- 1986). Baum, prejudice upon proof missed with if sixty days, required improve- within made the Condas, n. 8 Condas v. 618 P.2d Cf. requested ments. The motion further that (Utah 1980). made, judg- should such not be grаntees ments be entered in favor of the in an (Utah 1982) (citations 17. 645 P.2d omit- necessary complete improve- amount the ted). ments. The trial court’s order fol- enforcement parties contemplated the im- cates the that almost five Judge months after or- Dee might not provements be made at the time parties dered comply agree- the with the from Baum Chatillion were released ment. Plaintiffs rely cannot this turn of However, 23,1982, plain- liability. on June regarding events Baum and Chatillion to quoted attorney tiffs’ wrote the letter agreement.18 avoid the plaintiffs Since above, supra indicating p. his clients’ Judge have failed show Dee abused agree- go through reluctance to with the enforcing disсretion in the prior to ment. This letter was dated the we will reverse the November required time the were to order. light of the various have been made. Chatillion, against Baum and it cross-claims IV. they may have de- understandable Plaintiffs finally contend that Dee layed making improvements plaintiffs since concluding erred in Taylor’s default attempting agree- of were back out the judgment against Joseph had been satisfied Judge Dee’s did ment. order not excuse setting and in judg- aside Mascaro’s default nonperformance, merely en- the but rather against Joseph ment for all amounts parties’ agreement the forced and estab- $60,000. Further, excess they of claim that completion lished deadlinеs for of the im- the by finding court erred Dee, allowing provements. Judge by plain- by owed receipt was satisfied Mascaro’s court, trial, tiffs to come back into without lots. two any improve- and obtain for completed by not timely ments Baum and 55(c) Utah Rule pro- of Civil Procedure Chatillion, upon plain- bestowed a benefit vides that a may default set were they tiffs which not afforded under conformity 60(b).19 aside in with Rule Jo- indicated, original their As seph sought pursuant 60(b) relief to Rule
plaintiffs never availed themselves on three occasions before three different Indeed, remedy. there is no evidence judges. Joseph’s motions denied in if improvements, any, the record of what proceedings. the first two Even if dowe might prior have been made to or after original not consider the motion before Judge Dee’s order. Judge Sawaya, where was still be- ing Davis, Judge Also, represented disagree Dee erred plaintiffs’ we setting the remainder they claim that should relief be afforded judgment in County because favor Mascaro aside since Chatillion the Weber previously properties bankruptcy. are now involved Conder had denied Stay” “Notice of Automatic dated same motion.20 Chasel, prior judgment In re See Estate which it is has based vacated, been reversed otherwise is no or or it equitable longer should 60(b) provides: 19. Utah Rule of Civil Procedure (7) application; prospectivе or other just, On are motion and such terms as justifying operation reason relief from justice court the furtherance of judgment. The motion shall be made party legal representative (1), relieve a or his within reasonable time and reasons order, judgment, proceeding (2), (3), (4), final or or not more than three months mistake, inadvertence, (1) following order, reasons: judgment, proceeding after surprise, (2) newly neglect; or excusable dis- entered taken. ... This Rule does diligence covered evidence due power limit of a an court entertain *8 could not been time to have discovered in independent party a a action relieve from 59(b); (3) move for a new trial under Rule proceeding judgment, or aside order or to set (whether fraud heretofore in- denominated judgment for the a fraud court. extrinsic), misrepresentation, trinsic or or obtaining any procedure a for relief from (4) party; other misconduct of an adverse prescribed judgment shall motion as when, cause, an ac- the summons in independent by an these Rules or action. personally tion has not been served required 4(e) uphold we it defendant as Rule and the 20.Since the settlement action; by declaring appear judge err defendant has failed to did not said follows (5) void; (6) judgment judgment judgment Taylor’s is has and of Mascaro’s satisfied, released, discharged, judgment been or a satisfied. 946 Conder, mistake, inadvertеnce, Jo- motion for before sur-
In
motion
pursu-
relief
prise
neglect
newly
he
entitled to
or excusable
argued was
dis-
seph
60(b)(7)
because
to Rule
evidence or fraud after three
ant
covered
judgment
after
against
months
has been entered.
taken
judgment
... was
default
fraud,
Joseph through the
And it seems me those are all of the
[defendant]
neglect
misconduct,
and
intentional
and
talking
elements that we are
about here.
Davis,
fiduciary duty by
Jo-
of
violation
he
And that
knew or should have known
of embez-
attorney, whose actions
seph’s
doing
job for
that Mr. Davis was not
opposition
his interest
placed
zlement
thought
he
He
him that
he was.
a
of this fraud
As
result
Joseph’s.
negotiations taking placе
relying upon
Davis, de-
by co-defendant
perpetrated
protecting his lawsuit that was
without
fair
Joseph has
denied a
been
fendant
at that
knew the law-
pending
time. He
position heard on
to have his
opportunity
pending
fact that
suit was
and then the
merits.
its
it, I
already
the court has
ruled on
have
motion, Judge Conder held
Pursuant to
grave
only thing I
difficulty.
some
evidentiary hearing involving the
deny the
can do is
motion.
hearing,
concluding
In
instant case.
judgment
made final
The default
60(b)(7)
correctly noted that Rule
judge
4, 1981,
purposes
appeal.
September
as an end-run around
may not be used
denying
settled
an order
It is well
that
60(b)(1)
Rule
limitations of
temporal
60(b) generally
a
pursuant
relief
Rule
is
Also,
Joseph’s
(b)(4).21
denying
through
However, Joseph
appealable
final
order.22
motion, Judge Conder stated:
appeal
did not then
from
Conder’s
sir,
pend-
Joseph,
if we had a lawsuit
Mr.
signed or-
ruling,
to a
reduced
on this
ing
me now and based
28,
although he
January
And
der on
you
very
have a
may
...
well
evidence
appeal,
he has not
filed a notice
intent to
Mr. Davis
very legitimate
claim
concerning Judge
cross-appeal
Con-
filed
put
things.
I’m hard
on two
but
Instead,
ruling.
Joseph filed his third
der’s
pend-
you knew
lawsuit was
One:
to set aside
motion
that’s
ing in
here
1982 and
1980 and
it is
motion,
16,1982.
In
April
this final
years
gone by since
almost two
that have
claiming in
60(b)(7), again
relied on Rule
you’ve had
that time. I understand that
perpetrated
had
pertinent
Davis
it out.
negotiations аnd tried to work
(which effectively
court
denied
fraud on the
very
I
difficult time because
But have
process). Judge
agreed
Dee
Joseph due
put
things to rest
says let’s
the law
these
granted Joseph’s
motion.
up
time
and sets
within a certain
element
repeatedly
indicated
We
says
limitation
in a law-
statutes of
over
brought
judge
one district court
cannot
can’t even be
suit it can be
equal
judge
district
brought
rule another
court
after certain times because
gener-
bring
authority.23
This
is
say
you
can’t
branch of what
this. We
21.Laub
Builders v.
stated:
652 P.2d
1304,
1982);
This rule
discretion
determination]
modify
showing
ests in the
First,
rule
listed in
... Subdivision
1308
60(b);
Calder
inequitable judgments.
v. South Cent. Utah Tel.
922,
a final
subdivisions
that this discretion
brings
(Utah
Swapp,
the reason
of the trial
Bros. Co.
finality
it
926
embodies three
(7)
into
1982);
656
be reversed
conflict
(1) through
be one other
v. Anderson
court....
P.2d
Gardiner
is addressed
residuary
competing
was abused....
429,
Ass’n,
requirements:
A motion
only upon a
(6);
[The
& Gardiner
Signs,
than those
430
Laub,
clause of
657 P.2d
*9
second,
court’s
(Utah
relief
inter-
Inc.,
we
Bd.
Bero,
Supp.
State v.
Harward v.
(Utah
047 against Joseph. “law of the case” doctrine ally party termed the Each is to bear his delays avoid the has evolved to difficul- own costs. judge presented when is
ties that arise one I. STEWART, Daniel C.J., an issue identical to one which has with Associate concurs. already passed upon by a been coordinate the same case.24 in judge Accordingly, ZIMMERMAN, (concurring). Justice: if, by Dee, Judge Judge stated even I join in majority’s disposition of the of judicial economy, “for reasons Conder case, except respect that with to issue relinquished authority jurisdiction all part discussed pertains under III that to matter,” Judge in the Dee not over- could the failure of Baum and Chatillion to make order. rule Conder’s improvements certain lots, join I holding This is Code consistent with Utah in portion that majority of the opinion that (1977). -20 Ann. 78-7-19 and Sectiоn §§ to declines reach the issue because Masca- provides: 78-7-19 ra preserve did adequately not order, an application If for an made to a appeal. issue for I do in join not that a in judge a court which action or portion states, as an alternative proceeding pending, is is refused ground issue, for disposing of the that the part, granted or in or is whole condition- failure improvements to make these cannot application ally, subsequent no for the a pro- constitute defense to an enforcement to any ceeding. same order can be made other unnecessary This disposi- is to a except higher court; judge, of a but tion appeal. of the nothing applies in this to section motions DURHAM, J., concurs in informality papers
refused for concurring opinion ZIMMERMAN, proceeding necessary obtain the J. to order, liberty to motions refused HOWE, (concurring Justice: and dissent- to renew the same. ing). (1977) provides Utah Code Ann. 78-7-20 § I opinion concur in the except Court’s contrary an order made to section holding part Taylor’s judgment by judge 78-7-19 be vacated wholly satisfied and that Mascaro’s proceeding court which the action or partially by satisfied pending. conveyance of County the Weber lots. As independent filed an action opinion, to I Court’s dis- perpetrated he wherein claims that Davis sent. upon prevented fraud the court which him agreement required The settlement having opportunity litigate a fair Baum and Chatillion should make certain the case on the merits.25 Although asphalt An road lots. Dee allowed the action to consolidated be completed by was to be to each of the lots case, February with the instant 1983 or- August 2,1982. fencing Chain link was to stayed pending der the action the outcome paid installed and the same date. be Thus, appeal. that action is Irrigation provided ditches were us, properly before we therefore do not 15, 1982, each July of the lots each rule that action. guaranteed lot of one- use pro- irrigation The case is remanded for further sixth of a sharе of an water ceedings action, agree I Joseph's independent company. majority as to with the While which, successful, if may operate completion set of these precedent aside the remainder of Mascaro’s conditions settle- Oil, Inc., Big (1959)). previously & We have held that Sittner v. Horn Tar Sands 735, bringing independent prerequi- P.2d action is a an site to relief a claim of fraud based McGavin, 25. See v. Utah 2d McGavin court. (1972) (citing P.2d Shaw Pilcher, 2d 9 Utah *10 sixty days Baum and Chatillion they material terms from the were agreement, ment complete constituted of the order to agreement and date them. How- Taylor ever, they completed to be received if were not consideration within time, Taylor Mascaro. and still had and Mascaro accept unimproved in their the lots state not made. were improvements The given right the dubious and were sue Nevertheless, Baum in November for Baum and Chatillion the value of the motion brought a and Chatillion missing improvements. agree- settlement enforce the Dee to Dee, reasons do for ment. record, excused the non- in the appear Chatillion, en- Baum and
performance of against
forced the Mascaro, rewrote their but
Taylor and give and Chatillion an-
agreement to Baum improve- days make the sixty
other so, again to do ments, they if failed and RDG ASSOCIATES/JORMAN could sue them' and Taylor Mascaro and CORPORATION, Plaintiff damages. judgment for obtain a Respondent, order con- Judge Dee’s enforcement the law of trary principle to a contracts per- party in default cannot dеmand that a COMMISSION OF INDUSTRIAL contracting party. formance of the other UTAH, Appellant, Defendant and bargain Taylor Mascaro did not Chatillion. Baum and bargained improved lots.
They Atkinson, R., al., Eddy Employees. et improvements to be made were set out No. 860003. agreement, and a timetable detail Baum and Chatil- was established. When Supreme Court of Utah. improvements, Tay- lion did not install the legally obligated and Mascaro were not lor Aug. put accept unimproved lots and then be expense of a lawsuit to and trouble damages missing improve- recover for the majority glosses the fact
ments. The over not construct- were by stating
ed and Mascaro given right to sue Baum
Chatillion, to “avail themselves but failed course, they remedy.”
of this Of failed they
pursue remedy. It not what bargained judge had no
had for. The trial required
right performance to alter the
the contract.
I cannot to the statement subscribe majority opinion concurring
opinion uncompleted that this issue of im-
provements trial was not raised raised, proof
court. As that the issue was recog- judge’s
we have the trial order that
nized that the had been
constructed in the settle- accordance with gave erroneously
ment but