*2
of
in this action. The
representation
Zions
Before
BENCH
stating that an
filed an affidavit
ORME, JJ.
Ray, Quinney Nebeker had
attorney at
&
be-
them in
matters
represented
several
ORME, Judge:
and 1983.
tween 1979
Interiors,
Barbara Jensen
hearing
parties’
at
After a
which both
Inc.,
N.
and Barbara
Lowell
argued,
the district court
motions were
Jensens”)
tri-
(“the
appeal from the
Jensen
granted
compel
settle-
Zions’
Zions
granting plaintiff
al
court’s
ment, concluding that
the record estab-
First
to
set-
National Bank’s motion
an oral settlement had been reached
lished
to
denying the Jensens’ motion
tlement and
during
by
both
legal
affirm.
disqualify Zions’
counsel. We
February
negotiations.
The court also
that, consistent
a settlement
noted
FACTS
reached,
deposi-
having been
the Jensens’
1986,
Zions Bank filed
June
cancelled
the trial date
tions were
Interiors,
against
action
Barbara Jensen
by Zions. The court also denied
stricken
promissory
Inc.
note. Lo-
to collect on
disqualify Zions’
the Jensens’ motion to
named
Jensen
and Barbara
were
counsel, holding
motion was un-
legal
personally guar-
had
as defendants as
it had
timely
filed more than
arranged to
note. Zions Bank
antied the
claimed
three months
the Jensens
depose
the Jensens
the law offices
first learned of the basis for their
Nebeker,
Ray, Quinney
substitute
Zions’
court further held the
matter,
10,
February
on
substantive merit as
lacked
attorney at-
1987. The Jensens and their
representation
its
ceased
depositions,
scheduled
but set-
tended the
1983,
December
negotiations began
Ac-
tlement
instead.
prior representations
substance
Zions,
cording
negotiations
these
culmi-
present
The Jen-
unrelated
action.
nated in settlement.
as
Jen-
appeal both decisions.
sens
it,
agreed that
only
sens see
attorney
prepare
Zions’
certain doc-
TO COMPEL
MOTION
SETTLEMENT
setting
a proposed
forth
settle-
uments
Voluntary
legal
dis
deposi-
ment.
and,
putes
under
is favored
tions
not taken.
agree
a settlement
certain
18, 1987,
February
On
summarily enforced
he had
delivered the settlement documents
Davis,
executory accord.
Mascaro v.
See
attorney. Despite
prepared to the Jensens’
(Utah 1987).
“The deci
P.2d
attorney, the
repeated requests
summarily
court to
enforce a
sion of a trial
documents, ul-
sign
Jensens refused
reversed
contending
timately
that no firm settle-
that there was
appeal
shown
during
reached
the Febru-
had been
at 942 n. 11.
of discretion.” Id.
an- abuse
ary
negotiations.
April
On
Thus,
of a motion
affirm
to compel
Zions filed a motion
compel settlement if the record estab
along
the affidavit of Donald M. Ben-
binding agreement
“the excuse
lishes
nett,
employee
participated
of Zions
who
comparatively un
nonperformance
rep-
Bank &
Tracy-Collins
substantial.”
resentative.
Travelstead,
P.2d
Trust Co.
1979).
also,
Murray
e.g.,
May
On
several months
(Utah 1987);
Ray, Quinney &
had first
Nebeker
Re
Department
Natural
peared
only one
as Zions’
counsel and
Robinson
sources,
Zions’ motion to
before
claim their
discussions and their actions. On the
did not
appears
demonstrates
assent to an oral
record before
these
during
negotia
“understandings”
pri-
were the Jensens’
thus,
minimum,
tions
a'
the issue
thoughts
expressed
vate
were not
*3
submitted
jury.
should have been
to a
Zions.
However,
of the
our review
Jensens’ affi
It
is well
that
established
law
us
davit does not convince
that the district
unexpressed intentions do not affect the
court
discretion in
abused its
validity
apparent
of a
“The
contract....
affidavit,
their
In
the Jen-
mutual assent of
... must be
sens state:
gathered by
language employed by
At
negotia-
the time of
10
[the
them,
imputes
person
and the
to a
law
tions],
that
we believed
no firm settle-
corresponding
intention
to the reasonable
reached; rather,
ment was
we under-
meaning of its
and
words
acts.”
of the
stood that terms
settlement were
Group,
Jaramillo v.
Ins.
Farmers
prepared by
to be
counsel for
[Zions]
(Utah 1983)
(quoting
Allen
put
if
we
Co.,
Bissinger
v.
Utah
P.
agreement
were in
to the terms as set
(1923)).
541-42
forth writing....
if
Accordingly,
the Jensens did not
discussions,
Since the
said
[of]
wish to settle this
to enter
any
have decided not
into
clearly expressed
such an intention
and for that
reason
during the settlement conference which
sign any
have refused to
settlement
depositions.
held in lieu
their
Had
so,
done
they would have been in a
contrast,
Bennett’s
Donald
affidavit
position
summary
to defeat
enforcement of
that
unequivocally
negotiating
states
through
an affidavit iden
hour,
for over
Zions and
one
tifying
specific
statements and actions
agreement,
reached an
the terms of which
they had taken to communicate to Zions
repeated
par-
summarized and
for the
accept
their decision not to
the settlement
attorney.
ties
Bennett further
offer at that
Absent
time.
such informa
he,
his capacity
that
.states
tion,
given only
the Jensens’ unex
representative,
agreed
the settlement
plained conclusion
to their
otherwise un
“observed
to the
[the Jensens]
beliefs,
disclosed
Bennett’s statement that
terms
agreement.”
of the settlement
actually agreed
to the settle
wholly
Jensens’
identify
fails to
ment stands uncontroverted. Accordingly,
any
statements made
actions taken
say
we cannot
trial
court abused its
them
at the
time of
which
discretion in compelling the settlement.1
Bennett’s
contradict
claim that to the settlement that had
DISQUALIFY
MOTION TO
COUNSEL
Rather,
negotiated.
the Jensens’ affi-
merely
davit
their
identifies
A
unsubstantiat-
ed
entirely
“understanding”
immediately
unilateral
must be
filed and diligently
pursued
“beliefs” as to
effect of these
party
as soon as the
becomes
1. Our decision in
757 F.2d formerly practice a rule of This rule was F.2d Redd Shell Oil and was therefore afford- courts (10th Cir.1975); Upchurch, Margulies v. of a rule of civil ed the full enforcement dis- the rule has now been procedure. Since trict court held the Jensens' elevated into the Code of Judicial Adminis- nearly seven untimely it was filed tration, entitled to enforcement it is now equal given other rules. counsel, more than peared as Zions’ strictly followed and en- if this rule is *4 February 10 settle- months after the forced, three applied be way the the law is negotiations. The claim the case, dramatically changed disqualification least, remained un- existing ignored. I am other law is slavishly to them until well into the course of the unwilling known follow rule litigation, admittedly showing learned of in face of but issue the evidence stipulation parties the no later than the Febru-- entered into but the asserted basis writing. to in Other oral negotiations, at which ary 10 settlement the ments are enforceable when having in the recalled too their existence. So establishes Ray, Quinney & Nebeker office build- the stipulations when evi- oral be enforced the former attor- ing previously to visit their dence their existence. shows filed ney.2 the motion was three later, and one before Zions' BENCH, Judge (concurring and settlement was scheduled motion dissenting): heard. the district We with I in the main treatment that under these concur disqualify Zions’s of the Jensens’ motion to disqualify counsel Jensens’ motion to I my col- counsel. dissent untimely. motion com- leagues’ analysis Zions’s CONCLUSION I the trial court’s pel settlement. believe grant of an abuse of dis- grant affirm both the mo- We cretion. the denial of tion Administration, rule of Judicial the Jensens’ motion counsel. Our Code 4-504(8) provides follows: (concurring): Judge orders, judgments No or decrees based signed en- upon stipulation shall be or opinion main I I concur in the but write writing, stipulation is tered unless express a about the separately to concern attorneys of record for the signed by the in the of Judicial Ad- rules contained Code respective and filed with the clerk parties dissent, pointed ministration. As out made stipulation was 4-504(8) Admin- rule of the Code of Judicial istration states: orders, Brown, P.2d 333 judgments or decrees based No applied prede- or stipulation signed shall be en- this court upon 4-504(8)1 expressly held stipulation cessor rule writing, is tered unless agreements must attorneys record for the that settlement orders, upon stipula- judgments decrees Claiming No to remember the name of one’s recognize but to its office inte- such former firm tion or entered unless shall disingenuous blush. rior seem at first stipulation writing, signed the attor- is in design, how- Jensens involvement interior neys respective of record ever, may oddity. explain this clerk, provided that orally open tion be made court. 4.5(b) Previously, Rules of Practice rule provid- Courts in the District Courts Circuit ed that language to be enforce- In view of the clear rule of a written form indistinguishable 4-504(8) Brown, Brown is I I and our decision in able. believe case. compelling from the instant would reverse ment and remand the case for trial. only exception to the rule that settle- must be in concede the existence of where agreement.
an (Utah 1987) (conceded 1000, 1001 argument).2 Throughout the in-
at oral case, consistently the Jensens have
stant an was ever
denied
reached.
(6th Cir.1973) (if
is admitted
not writ-
2. Where
but