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Show MONDAY, AUGUST 5, 1974 INTERMOXJNTAIN In The PAGE FIFTEEN Supreme Court of The State of Utah Defendant and Respondent. HENRIQD, commercial record Allan E. Mecham, Clerk Jmtice: The main thrust of plaintiffs' argument here is that their lawsuit was an independent action in equity, where all parties were present, and that such an action is authorized under Rule 60(b)3 collaterally to attack a probate decree lf on the basis of "inadvertence" on the part of the court three and years before, absent which such "inadvertence," otherwise must be conceded would be subject to the defense of "res judicata,"4 limitation of action, etc. one-ha- Appeal from a lummarv judsment dismisslne a suit to auiet title to real estate. Affirmed with costs to defendant. Plaintiffs also urge that the nuptial agreement should have been incorpoin the probate decree. Difficulty is that they simply asked the trial court rated Earl L. Parker and defendant, Annie Taylor were and to a married, modify the decree by incorporating in it an exhibit, - not introduced by plainsigned nuptial agreement either before or after such marriage, which said, in part, that after Earl's death, Annie was to have the home tiffs, but by defendant, and not incorporated in the decree by reference. The for record here does not reflect what, if any, reason the trial court had in failing life, "unless she should marry again" in which case she would transfer the to include the agreement reference or otherwise in the decree, if the court, not home, car and furnishings to Earl's heirs. In October. 1967, Earl died intestate, and his son Norman, (not Annie, statutorily preferred) one of the plaintiffs, so failed without cause, or in decreeing an unconditional life estate to Annie. Many reasons might suggest themselves, such as something said at plaintiffs, was made administrator of the estate. In August, 1969, Norman maybe an indication of hearing, maybe a stipulation, maybe an admission, prepared and filed a petition for approval of final account and decree of dis5 a life for dower a which interest tribution, estate, maybe an unrecorded document swapping petition contained the following! of transfer or settlement of some kind, - and we cannot second guess what was 5. The decedent married one Annie C. Taylor in in the court's mind when the probate decree finally was signed. That is why July of 1963, the parties entered into an agreement, a copy of Mr. Justice Ellett stated in Siddoway that under facts very similar to those here, which is attached, incorporated and made a part of this petithe omission in a previous decree was a judicial error not subject to modification on motion. The suggestion was made that there might be a situation where tion, and which agreement his widow, Annie C. Parker, has an independent action could be pursued under certain facts but we have grave abide to The to the widow a agreed by. agreement grants doubts that there was anything remotely suggesting such an independent action life estate in the decedent's property, otherwise the entire under the facts adduced through the discovery procedure in this case, we property is to be distributed to the lineal heirs of the decedent equally. believe the law of the case in the Siddoway case fully supports the decision of the trial judge here, who also recognised such case in his judgment. attaching the agreement thereto. The petition further stated that "the agree1. Section U. C. A. 1953, states: "An objection to any paper, petition, ment grants to the widow a life estate of the decedent's property, otherwise in decree or order any probate or guardianship matter, for an erroneous or the entire property is to be distributed to the lineal heirs of the decedent defective statement or determination of any fact necessary to jurisdiction which equally. " actually existed, or for an omission to find or state any such fact in such paper, petition, decree or order, is available only on direct application to the same In September, 1969, the account was approved and the decree distribute " court, or on the real property to Earl's heirs "subject to the life estate in Annie C. Taylor 2. 24 Utah 2dappeal. 314, 471 P. 2d 143 (1970): A case relied upon most heavily by On July 16, 1963, d 75-1-- Parker." Later Annie remarried. About three and one -- half yearn after the decree the plaintiffs filed a suit to quiet title against Annie. There was no direct attack on the probate proceedings and there was no allegation of fraud, undue influence or other equitable grounds in the quiet title action, except one statement, that may have implied a "mistake," on someone's part to the effect that the estate " was probated and inadvertently a decree granting the defendant a life estate failed to specify that such life estate was further contingent upon the defendant not marrying. " It is significant that nowhere in the complaint was there, any language to the effect that this was a suit in equity, but only that it was a suit to quiet title, together with three other alleged causes of action, namely 1) for unlawful detainer asking treble damages, 2) for conversion of personal property i and 3) an injunction and forcible removal, all asking variously for a) damages for rental value, b) judgment quieting title, c) damages for conversion of personalty, d) attorney's fees, e) costs, f) an injunction, and g) a writ of assistance, - all of which adds up, apparently, to a series of legal andor statutory actions. - This case was not filed in the probate proceedings. There was no direct attack on said proceedings, but only a collateral attack, at best. 1 There was no claim of a clerical error as opposed to a judicial error, the difference in which clearly was pointed up in Richards v. Siddoway? . and which difference is quite significant here as it was in that case, whose facts, with minor vari"inadvertence" seems extant ables, - seem to be on all fours. The in both cases, - and the Siddoway case held it may have been judicial, but not a clerical error, and reversed the granting of a motion to modify a previous so-call- ed judgment. No. 13522 M. Dale Burningham. 8, both parties. 3. Rule 60(b) is set .out in Siddoway and Utah Rules of Civil Procedure, to which reference is made. 4. "A decree of distribution in probate proceedings after due and legal notice by a court having jurisdiction of the subject matter is conclusive as to the fund, property, items and matters covered by and properly included within the decree." In Re Rice's Estate, 111 Utah 428, 182 P. 2d 111 (1947). 5. It is significant that nowhere is mentioned the dower interest in the probate proceedings, which might suggest undue influence or pressure, or mistake or something else in decreeing an unconditional life estate; we don't know. . We presume the court had reason for his decree - which until now was uncontested. In support of our decision, plaintiffs' case seems to be one to test title to land, - not to reform a probate decree. This is evident from plaintiffs' own pleadings, which do not ask for reformation or other equitable relief, save possibly an injunction not germane to plaintiffs' rather belated claim. Rule 60(b). which plaintiffs suggested as a basis for an independent action, was not pleaded. Whether such a suit would lie in a given case is a matter we need not discuss here, since we think the facts presented to the trial court to be such that we could not apply such a theory to facts pleaded. If there were any "inadvertence1 it would have been plaintiffs own, having had a duty to follow several pertinent statutes having to do with correction of errors, both clerical probate filing-tim- e and judicial, - of none of which plaintiffs took advantage, - which appears to be an inattention to the record or chargeable oversight. The plaintiffs not only lf failed in the above respect, but waited for three and years to contest to court and asked the a document which they no doubt prepared sign, - which certainly constitutes a state of facts justifying a court to exercise its discretion favorably to their opponent. one-ha- The trial court's summary judgment is affirmed. rule to tell a party that he is or is not entitled to recover as a matter of law when the facts are not in dispute. a-l- Plaintiff and Appellant, - . FILED July 29. 1974 v. Layton Ott, et al. . Defendants and Respondents. Allan E. Mecham, Clerk" The dissent takes issue with the idea that it is not a harsh remedy for a court to grant a summary judgment and cites three cases by three separate justices of this court to the effect that a summary judgment is a harsh remedy. It could have cited twelve more by the author of the dissent2 and nine by Justice U. C. A. 1953 1. Sec. U.C.A. 1953; 15 U. S. C. A. 77m; Sec. 2. Allen's Products Company v. Glover. 18 Utah 2d 9. 414 P. 2d 93 (1966); Theros v. Metropolitan Life Insurance Comoanv (dissent ins ooinion). 17 Utah 2d 205. 407 P. 2d 685 (1965); Thompson v. Ford Motor Co. , 16 Utah 2d 30, 395 P. 2d 62 (1964); Kidman v. White. 14 Utah 2d 142. 378 P. 2d 898 (1963); Samms v. Eccles. 11 Utah 2d 289. 358 P. 2d 344 (1961); Henry v. Washiki Club Inc., 11 Utah 2d 138, 355 P. 2d 973 (1960); Pender v. Alix (dissenting opinion). 11 Utah 2d 58, 354 P. 2d 1066 (I960); Brandt v. Springville Banking Co. , .10 Utah 2d 350. 353 P. 2d 460 (I960);, Richards v. Anderson. 9 Utah 2d 17, 337 P. 2d 59 (1959); Auto Lease Company v. Central Mutual Insurance Co. , 7 Utah 2d 336, 325 P. 2d 264 (1958); Abdulkadir v. Western pacific Railroad Co. , 7 Utah 2d 53, 318 P. 2d 339 (1957): Morris v. Farnsworth 61-1-22- ELLETT, Justice: This is an appeal by plaintiff from a summary judgment in favor of defendant Ott of no cause of action in a suit sounding in fraud. (5). in which Ott was an officer. in a some stock Plaintiff- bought .... i corporation . . m J -"-aKmJmh. Naii. aBoth were good irienas apparency, Du.n.-w- B w wnen ceaseu exist 123 Utah 289. 259 P. 2d 297 M9511. Pimui theless. this affection one for the otner Ott Motel, as value in not did 3 was Us on face escrowed, which appreciate three4 q that the stock, t of a and brief guaranty in his urges Plaintiff would. pleadings had indicated it ubstance , y. of future developments. profit irrespective Such showing must preclude all The defendants answered, denying the fraud and claiming that the action loer could if gWen a trial is barred by any one and all of three limitation statutes. would reasonably sustain 1 1 The only apparent question of fact developed by the pleadings and the discovery process is that after plaintiff signed a stock purchase agreement having a restricted sales condition provision written therein, and after plaintiff receive notices of stockholders' meetings and statements of corporate operations, and after often contacting company representatives and its attorney, and after knowit or having the reasonable ability to discover any fraud, plaintiff was given some more shares of stock without consideration. (3), the caiM by Justice Wade he in reasonable possibility producc evidence which in his favor. Who knows what evidence a party might produce if given the opportunity? In the light of the modern practice under the Rules of Civil Procedure, a trial is not to be by ambush. Instead, the evidence upon which one relies for judgment can be, and should be, known to the opponent; and when all the evidence is known, if there is no dispute on any material issue of fact, the rules provide that the court may apply the law and thus terminate the matter, thereby conand to the litigants. serving the time of the court and avoiding expense to the state The additional stock given without consideration in no sense could have been construed as a modification of the written, specific contract of the stock purchase so as to toll the statutes of limitation. Gratuitous statements put in decisions to the effect that a summary judgment is a harsh remedy and should never be given if at trial a party might be able to produce evidence which would reasonably sustain a judgment in his favor, tends to cause trial judges to hesitate to grant motions for summary judgments The pleadings and the proof under the discovery process fail to show that in those cases where there are no disputed issues of material facts. The only , there is any dispute of a material issue of fact. harsh thing about summary judgments is for a trial judge to fail in his duty to the law and summarily decide a case when there is no disputed issues of apply evithe that rules (1) the decided under be should Plaintiff says the case material facts. dence should be viewed in a light favorable to the plaintiff and (2) a summary in either claim. In summary judgjudgment is a harsh rule. He is not correct The judgment is affirmed with costs to the respondent. The viewed. not to be judgment can be given only in case ther ments evidence is WE CONCUR: is no dispute on a material evidentiary matter. We do not see that it is a harsh ' J |