Garry W. MICKELSEN, d/b/a Mickelsen Excavating & Construction, Inc., and Mickelsen Excavating & Construction, Inc., Plaintiff and Appellant, v. CRAIGCO, INC., a Utah corporation, Sherwood & Roberts, Inc., a Washington corporation, and Dan R. Fogle, and John Does 1-10, Defendants and Respondents.
No. 19945.
Supreme Court of Utah.
Jan. 11, 1989.
767 P.2d 561
While termination can be an emotionally distressing event in one‘s life, mere termination alone does not constitute the intentional infliction of emotional distress. Unless some outrageous conduct rising to the level described in Samms has attended the termination, Larson cannot maintain the action. He failed to raise a genuine issue of material fact with respect to this tort. Accordingly, the trial court was correct in dismissing this claim on the summary judgment motion.
IV.
After defendants moved for summary judgment, Larson moved for leave to file an amended complaint. He did not submit a proposed amended complaint, but in his motion he stated that he desired to amplify the allegations in his complaint by asserting that there is an implied covenant of good faith and fair dealing in an employment contract, which covenant was violated here by SYSCO. He relies on rule 15(a), Utah Rules of Civil Procedure, directing that leave to amend “shall be freely given when justice so requires.” See Girard v. Appleby, 660 P.2d 245 (Utah 1983).
We find no error in the denial of Larson‘s motion to amend. As pointed out in part I of this opinion, he has totally failed to cite or furnish us with any Idaho authority, which he claims governs this case, holding that there is an implied covenant of good faith and fair dealing in at-will employment contracts. Our research has disclosed none.
THE JUDGMENT IS AFFIRMED.
HALL, C.J., and STEWART, DURHAM, JJ., concur.
ZIMMERMAN, J., concurs in the result.
Wendell E. Bennett, Salt Lake City, for plaintiff and appellant.
David Dolowitz, Salt Lake City, for Craigco.
Bruce A. Maak, Salt Lake City, for Sherwood & Roberts.
HOWE, Associate Chief Justice:
Plaintiff Garry W. Mickelsen brought this action to foreclose a mechanic‘s lien which he had recorded against the River Oaks subdivision owned by defendant Craigco, Inc. Defendant Sherwood & Roberts, Inc., which was the beneficiary of a trust deed on the subdivision, moved for summary judgment on three grounds: (1) that plaintiff‘s foreclosure action had not been timely commenced; (2) that plaintiff‘s recorded notice of lien was invalid because it had not been properly verified; and (3) that no work had been done in the subdivision and no materials had been furnished as required by
In July 1978, Craigco began development of the subdivision. In October 1978, a boundary survey was made by a surveyor, who set more than twenty stakes in the ground. Later, there was additional surveying and setting of over two hundred stakes to mark the center line of proposed roads as well as water, sewer, and storm sewer lines. In April 1979, plaintiff dug six test holes for soil and water studies. Plaintiff claims that before the end of 1979, the proposed roads were rough cut, the land was “cleared and grubbed,” and an old dairy barn and corrals were demolished and removed from the property. On December 28, 1979, Sherwood & Roberts made a loan to Craigco which was secured by a trust deed on the property which was recorded on that date.
During 1980 and up to about August 28, 1981, plaintiff furnished labor and materials to install the water lines, sewer lines, and storm sewer lines. Three times during the course of his work, plaintiff, at the request of Craigco, suspended work for thirty days or more. The periods of suspension of work were August 22 through October 2, 1980; November 1, 1980, through January 2, 1981; and March 13 through July 26, 1981. On September 30, 1981, plaintiff recorded a notice of mechanic‘s lien on the property to secure the payment of over $62,000 which was then past due. On April 29, 1982, he commenced the instant action to foreclose that lien.
On motion for summary judgment by Sherwood & Roberts, it contended and the trial court agreed that plaintiff was required to bring any foreclosure action within twelve months after the suspension of any work and therefore plaintiff had no valid lien for work done by him prior to March 13, 1981, and any lien for work done after that date was junior to the trust deed.
Actions to enforce the liens herein provided for must be begun within twelve months after the completion of the original contract, or the suspension of work thereunder for a period of thirty days.
We do not subscribe to the trial court‘s interpretation of section 38-1-11 because it runs contrary to this Court‘s decision in Totorica v. Thomas, 16 Utah 2d 175, 397 P.2d 984 (1965). In that case, we interpreted the literal conjunctive language of the statute “that the action must be commenced within twelve months after the completion of the original contract, or the suspension of work thereunder for a period of thirty days” as affording the lien claimant a choice. That is to say, “a lien claimant may bring an action within twelve months after the completion of his contract, or, if he wishes, bring it within twelve months after there has been a suspension of work for a period of thirty days.” Totorica, 16 Utah 2d at 178, 397 P.2d at 986-87.
The rationale for our decision in Totorica is that the mechanic‘s lien law was enacted for the benefit of those who perform the labor and supply the materials and that the lien claimant‘s remedy should not be limited without a clear mandate from the legislature requiring such an effect. We therefore conclude that plaintiff commenced his action to foreclose his lien within the time afforded by section 38-1-11.
Defendant next contends that the notice of lien filed by plaintiff was invalid since he admittedly did not make an oral averment as to the truthfulness of its contents to the notary public before whom he appeared.
Between our decisions in Spangler and Colman, we decided two cases in which the strict requirements of Spangler were not adhered to. In State v. Mathews, 13 Utah 2d 391, 375 P.2d 392 (1962), we held that no formal ritual with the raising of the right hand was necessary and that a deputy county recorder who only signed a printed oath before a notary was a de jure officer. We later held that the administration of the oath need not follow any certain pattern and that the ritual is of secondary importance. McKnight v. State Land Board, 14 Utah 2d 238, 381 P.2d 726 (1963). In that case, the affiant signed an application form in blank in the presence of a notary. Later, while out of the state, he conferred with the notary in Utah by phone. The notary then completed the application and affixed his jurat that the application had been “[s]ubscribed and sworn to before me this 2nd day of February, 1962, at Salt Lake City, Utah,” although the affiant was out of the state on that date. We upheld the verification.
A survey of cases from other jurisdictions reveals that many of them do not require that the affiant raise his hand or
- there must be a correct written oath or affirmation, and (2) it must be signed by the affiant in the presence of a notary or other person authorized to take oaths, and (3) the latter must affix a proper jurat.
There is no minimum requirement that an oath must be administered to the affiant or that the affiant must speak an oral oath or affirmation or raise his or her hand. We overrule Colman v. Schwendiman and Spangler v. District Court of Salt Lake County to the extent that they conflict with this new rule. However, our decision today in no way disturbs First Security Mortgage Corp. v. Hansen, 631 P.2d 919 (Utah 1981), where the form of verification was deficient, and Graff v. Boise Cascade Corp., 660 P.2d 721 (Utah 1983), where the verification form, though proper, was not properly executed. Nor do we depart in any way from our case law requiring substantial compliance with the statutory requirements of the contents of a notice of mechanic‘s lien. Roberts Investment v. Gibbons & Reed Concrete Products, 22 Utah 2d 105, 108, 449 P.2d 116, 118 (1969); Park City Meat Co. v. Comstock Silver King Mining Co., 36 Utah 145, 154, 103 P. 254, 257 (1909). Likewise, Helsten v. Schwendiman, 668 P.2d 509 (Utah 1983), where the affiant did not personally appear before the notary, and Baker v. Schwendiman, 714 P.2d 675 (Utah 1986), where the affiant was not formally put under oath by the notary, remain good law.
In the instant case, the form of verification on the notice of mechanic‘s lien recorded by plaintiff was properly worded so that by signing it, plaintiff swore to the truthfulness of the contents of the notice of lien.2 The verification was signed in the presence of a notary, and the notary affixed a proper jurat. We therefore find that the notice of lien was properly verified.
We note that in early 1988 after the instant case had been argued and submitted to this Court, the legislature amended our statutes governing notaries public and enacted the “Notaries Public Reform Act.”
Defendant‘s third ground for its motion for summary judgment was that the work which was done in the subdivision by plaintiff and other mechanics prior to the recordation of defendant‘s trust deed, the work relied on by plaintiff in bringing his claims of priority over the trust deed, was insufficient to satisfy the requirements of
STEWART, J., concurs.
ZIMMERMAN, Justice (concurring):
I join the majority in departing from our decisions in Colman v. Schwendiman, 680 P.2d 29 (Utah 1984), and Spangler v. District Court of Salt Lake County, 104 Utah 584, 140 P.2d 755 (1943), although not without some reluctance. I would have been
The question of the formalities required in the execution of documents is one upon which the legislature has spoken repeatedly, albeit with no apparently coherent overarching principles in mind.1 Different statutes use different terminology in describing the formalities they require. While our decision today indicates that we will not be as literal in demanding compliance with these formalities as we were in Colman and Spangler, we cannot eliminate those antiquated and apparently unnecessary statutory formalities and bring consistency and clarity to this area by judicial fiat. As a consequence, and despite our opinion today, it is possible, as Justice Oaks stated in dissent in Colman, that many routine real estate and other transactions completed in the state of Utah on a day-to-day basis may fail to comply with the technical mandates of the statutes that govern them and, as a result, may be subject to attack.
I agree with the policy judgment that underlies the majority opinion: there is little reason to require these technicalities in this day of simplified practice and procedure. However, a complete remedy for the problems created by these statutes would be the legislature‘s enactment of a law repealing technical swearing requirements in all statutes and substituting the simple requirement that the documents or statements in question be signed or made under penalty of perjury.2 It is a common procedure that has long been employed elsewhere. See, e.g.,
It is to be hoped that by adopting the position taken today and obviating some of the most unsettling consequences of the Colman and Spangler approach, we have not induced the Bar and the legislature to believe that the problem has been finally laid to rest. It would be most unfortunate
DURHAM, J., concurs in the concurring opinion of ZIMMERMAN, J.
HALL, Chief Justice (concurring and dissenting):
I join the Court in following precedent which interpreted
The underlying policy considerations for the requirement of verification are as stated in First Security Mortgage Corp. v. Hansen:3
A lien creates an encumbrance on property that deprives the owner of his ability to convey clear title and impairs his credit. The filing of a lien for an excessive amount could be used to force a settlement unfairly weighed in favor of the claimant. Such abuse is made a misdemeanor by
§ 38-1-25 . These serious consequences justify the statutory imposition of a requirement that one who makes the claim must furnish a sworn statement to the truthfulness of the facts giving rise to it. Frivolous, unfounded, and inflated claims can thereby be minimized, and the prejudgment property rights of the individuals receive their due protection.4
Thereupon, we concluded that verification is a mandatory condition precedent to the very creation and existence of a lien.
In Graff v. Boise Cascade Corp.,5 we observed that the doctrine of substantial compliance has application in an appropriate case, but that the lack of verification is not a hypertechnicality that the Court is free to discount. Accordingly, in Helsten v. Schwendiman,6 we held that a police officer‘s failure to sign his sworn report under oath in the presence of a notary public constituted a lack of verification. Similarly, in Colman v. Schwendiman,7 we held that a formal verbal affirmation is required in order for a statement to be validly sworn to.8
In the instant case, plaintiff‘s own testimony was that he executed the notice of lien without being placed under oath and did not recite under oath any of the matters stated in the notice before the notary who placed her signature and notarial seal on the instrument. Without such verification, no lien was created.
I would affirm the judgment of the trial court, albeit on these different grounds.