Lead Opinion
Plaintiffs Lamar and Lynne Richards brought this action seeking a decree quieting title and an order requiring defendants William and Maxine Baum to specifically perform a contract to sell certain real property located in Utah County. The Baums counterclaimed, seeking a decree quieting title in their favor. Following a bench trial, the court quieted title in favor of the Baums. The Richardses appeal.
In March 1994, the Richardses filed a notice of appeal. Pursuant to rule 6 of the Utah Rules of Appellate Procedure, they also filed a cost bond with the court. However, they did not seek or obtain a stay of the trial court’s decree.
The Baums have moved to dismiss this appeal, contending that it has become moot. The strong judicial policy against giving advisory opinions dictates that courts refrain from adjudicating moot questions. Merhish v. H.A. Folsom & Assocs.,
The Baums contend that since the trial court quieted title to the property in them and the Richardses did not seek or obtain a stay, the Baums were free to treat the property as their own. Furthermore, the Baums argue that since they no longer have an interest in the disputed property, the requested relief of specific performance cannot be granted even if this court should reverse the trial court’s judgment. The Richardses, on the other hand, contend that despite the conveyance of the property, they could still pursue a remedy in damages on remand if this court were to decide that the trial court erred. These damages would presumably be proved at a later proceeding in the trial court if that court in its discretion allowed plaintiffs to amend their complaint to seek damages.
It is true that where a court of equity has jurisdiction over a controversy, it has discretionary power to award complete relief, including damages. Valley Mortuary v. Fairbanks,
These rules of law would have permitted the Richardses to recover damages if they had prevailed on the merits at trial and found that the Baums were unable to specifically perform the contract. However, this court has taken a different approach when an appellant has failed to obtain a stay of the judgment and the remedy sought is thereafter rendered impossible. In Kellch v. Westland Minerals Corp.,
This court has never held that when an appellant fails to obtain a stay and the property sought is conveyed in good faith to a third party, the appellant is entitled to return to the trial court to have damages awarded if successful on appeal. Neither the Richards-es nor the dissent has cited a single case where this took place. Nor could they: other jurisdictions that have addressed this issue have denied such relief. For instance, the Illinois Appellate Court has held that “in the absence of a stay, an appeal is moot if possession or ownership of specific property which is inextricably involved in the relief being sought on appeal has been conveyed to third parties.” Horvath v. Loesch,
The dissent attempts to distinguish Kellch and the above cases by stating that in each case, the action was moot because the only available remedy was extinguished while the appeal was pending. As previously noted, that was not true in Kellch, as damages could have been recovered on remand had this court thought it proper. Instead, we dismissed the action as moot.
The dissent reasons that if the Rich-ardses are successful on appeal, upon remand they could amend their pleadings to seek damages to be proved in a new court proceeding. Although the amendment of pleadings is sometimes permitted on remand, on appeal we do not base our examination of the pleadings on the possibility of future amendments that a trial court may in its discretion
The dissent cites rule 54(c)(1) of the Utah Rules of Civil Procedure, which provides in part:
[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.
This rule clearly pertains to a trial court’s authority prior to its final judgment, not to an appellate court’s authority to look beyond the case as it stands on appeal. Indeed, all of the cases cited by the dissent deal with a trial court’s powers on direct disposition. See, e.g., Mabey v. Kay Peterson Constr. Co.,
In Franklin Financial v. New Empire Development Co.,
The buyers argued on appeal that the entry of summary judgment was in error. The sellers countered that the appeal should be dismissed as moot because the foreclosure sale had already been carried out and the period of redemption had passed. Id. The court held that the appeal was not moot because the appellants were not trying to prevent the foreclosure but were merely trying to establish their right to a share of the sale proceeds. However, the court indicated that
if appellant were seeking on this appeal to prevent the foreclosure sale, and because of their failure to obtain a stay of execution, the sale were legally carried out during the pendency of the appeal and the time for redemption had run, the appeal would be moot.
Id. (citations omitted).
In this case, the sole relief the Richardses sought at ti’ial was specific performance of a real escate contract and a decree quieting title to the property. Because of their failure to obtain a stay pending this appeal, the property was lawfully sold to another. No action which we could now take would affect the litigants’ rights to the property. See Burkett v. Schwendiman,
Appeal dismissed.
Notes
. The Utah Rules of Civil Procedure provide, "When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay, unless such a stay is otherwise prohibited by law or these rules.” Utah R. Civ. P. 62(d). The bond is required to protect the appellee if for any reason the appeal is dismissed or the trial court’s judgment is affirmed. 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2905, at 522-24 (1995). The Utah Rules of Appellate Procedure also allow, under some circumstances, a motion for a stay to be made to the appellate court. Utah R.App. P. 8(a); Jensen v. Schwendiman,
Dissenting Opinion
dissenting:
The majority rules that because plaintiffs did not post a supersedeas bond and obtain a stay of the trial court’s judgment which denied plaintiffs specific performance of a land sale contract and quieted title in defendants, defendants’ sale of the property during the pendency of the appeal has mooted the breach of contract issue. Clearly, the case is not moot if plaintiffs would have a damage remedy in lieu of specific performance on a remand if this Court were to rule that the trial ’ court erred in finding no breach of contract. However, the Court holds that if there were a reversal, plaintiffs would not be entitled to damages in lieu of specific performance on the hyper-technical and, I submit, erroneous ground that plaintiffs failed in their prayer for relief in the complaint to add
I submit that if plaintiffs are correct on the merits of their appeal, they clearly would have a remedy for damages even though they neglected to request damages in their complaint. See Eckard v. Smith,
The majority states, “We do not base our examination of pleadings upon the possibility of future amendments.” That position is an anachronistic throwback to the rigidity of common law code pleading and completely ignores the strong policy in our rules of civil procedure in favor of deciding cases on their merits rather than on procedural technicalities. Rule 54(c)(1) of the Utah Rules of Civil Procedure provides that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” (Emphasis added.) That rule has been invoked by this Court on numerous occasions to provide for the amendment of pleadings so that substantive law, rather than a procedural technicality based on an insignificant lapse in the pleadings, governs the outcome of a case. E.g., Mabey v. Kay Peterson Constr. Co.,
If plaintiffs were to prevail on the merits of this appeal, they would be entitled on remand to request damages by filing a supplemental pleading pursuant to Rule 15(d) of the Utah Rules of Civil Procedure. That rule provides:
Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense.
Rule 15(a) provides that a party may amend a pleading by leave of court or written consent of the other party “and leave shall be freely given when justice so requires.” (Emphasis added.)
This Court has consistently held that Rule 15 is to be construed liberally to allow amendments so that cases may be fully and fairly decided on their merits. See Williams v. State Farm Ins. Co.,
Even on remand, pleadings may be amended to allow the parties to present whatever legitimate contentions they have so that their rights and liabilities may be fully decided, see Call v. City of West Jordan,
The majority admits, as indeed it must, that these rules of pleading would have permitted plaintiffs a damage remedy if they had prevailed in the trial court and then, before an appeal was taken, found that defendants could not specifically perform the contract, even though plaintiffs had not asked for damages in their prayer for relief. Nevertheless, the Court holds that a plaintiff is not entitled to damages if the magic words “in the alternative, a judgment for damages” are left out of the prayer for relief and then the plaintiff loses in the trial court, does not file a supersedeas bond, and wins on appeal after the property is sold. The majority suggests no policy and cites no rule as to why the result should be different. Indeed, there is no such policy or rule.
The Court’s sole justification for ruling as it does is that “this court has taken a different approach when an ‘appellant has failed to obtain a stay of the judgment and the remedy sought is thereafter rendered impossible,’ ” citing Kellch v. Westland Minerals Corp.,
None of the cases the Court cites from other jurisdictions as support for its position is on point. In each case, as in Kellch, no alternative remedy was available once the relief requested for the cause of action asserted was mooted.
In sum, plaintiffs have been denied their right of appeal, and if their position on appeal is correct, they have been denied their right to a remedy.
. Whether another cause of action might provide some kind of remedy presents a different issue than whether there is an alternative remedy for the same cause of action.
. The Court cites the following cases, none of which addresses the issue in this case: Masonry Arts, Inc. v. Mobile County Comm'n,