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Show TUESDAY, MAY INTERMOUNTAIN COMMERCIAL RECORD 28, 1974 PAGE FIVE In The Supreme Court Of The State Of Utah Cont'd, from Pagi 4) of all parties concerned. 3 work which was directly related to the general business operations of the employer. They each exercised discretion under the rules adopted by the defendant and assisted an employee of the defendant who was in an executive or administrative capacity in that they kept the business operations of the employer running smoothly. They also used discretion in keeping the trucks moving so as to satisfy the requirements of the customers of the employer. Each performed week. Defendants make this further argument: that the granting of the plaintiffs' motion to "strike their answer" and enter their default removed their appearance from the case; and that inasmuch as they are residents of Colorado and were served there, the court was without Jurisdiction to render an in personam judgment against them. We do not agree. The filing of their answer constituted a general appearance. 4 Thereafter they were in court to be dealt with the same as any other party in the case. One may wonder why their answer was stricken, rather than simply entering their default. Nevertheless, after they were in court the application of a procedural sanction provided for in the rules5 does not divest it of Jurisdiction. The judgment is affirmed. non-man- ual trial court found that each of the plaintiffs was exempt under the we believe that the evidence sustains that finding. As employees and statute, in administrative positions the plaintiffs are not entitled to the benefits of the The statute for any overtime services which they may have rendered. i Costs to plaintiffs (respondents). The judgment of the trial court is affirmed. Since this case seems to be in the nature of a test case, no costs are awarded. WE CONCUR: m m m WE CONCUR: E. R. Callister, Jr. , Chief Justice E. R. Callister, Jr., Chief Justice F. Henri Henriod, Justice F. Henri Henriod, Justice Ellett, Justice A. H. J. Allan Crockett, Justice R. L. Tuckett, Justice R. L. Tuckett, Justice 3. See Wright and Miller, Federal Practice and Procedure, Sec. 2693. 4. That an appearance by the defendant for any purpose except a special appearance to object to jurisdiction over his person constitutes a general appearance, see 6 C. J.S. , Sec. 12(f), p. 23; 6C.J.S., Sec. 13, p. 42; in accord, J. B. Colt Co. v. District Court, 72 Utah 281, 269 P. 1017; Cooke v. Cooke, 67 Utah 371, 248 P. 83, Goodwin v. Superior 47 63 407 2d 481. Cal.2d P. 1; and see comment Court, Cal.Rptr. 201, of Ellett, Justice, in dissent in Housley v; Anaconda Co. , 19 Utah 2d 124, 106-10- 7; 427 P. 2d 390. Rule 37(b)(2)C provides that for failure to comply with order in discovery that the court may make: "An order striking out pleadings or parts thereof, or rendering a judgment by default against the disobedient party;". 5. Mr. Price testified that he devoted 10 per cent of his time to adding sales tickets, 40 per cent to weighing trucks and writing sales tickets in connection therewith, 35 per cent taking orders on the phone, and 15 per cent sweeping floors, cutting lawns, and shoveling snow. 1 . Edlean Searle, Jay Price, Plaintiffs and Appellants, No. 13448 , Utah Sand and Gravel Products Corporation, a corporation, Allan E. Mecham, Clerk Defendant and Respondent. ELLETT, Justice: The plaintiffs appeal from an adverse decision by the trial court hold- ing that neither of them was entitled to overtime pay. This action was commenced pursuant to 29 U.S. C. 201, et seq (Fair Labor Standards Act), and the question involved herein is whether or not the plaintiffs were administrative employees. If they were, then they were exempt and not entitled to overtime pay. In determining that an employee works in an administrative position, the court must find that the employee: work directly related to management policies Performs or general business operations of the employer. non-man- ual (B) Customarily and regularly exercises discretion and independent judgment. May 16, 1974 ' ' Allan E. Mecham, Clerk CALLISTER, Chief Justice; FILED May 23, 1974 v. (A) FILED v. Woodey B. Searle, Defendant and Appellant. Ralph Jacketta and . No. 13335 Plaintiff and Respondent, ... : , (C) (1) Assists a proprietor or employee employed in a bona fide executive or administrative capacity; or (2) performs only general supervision work along specialized or technical lines requiring special training, experience or knowledge, or (3) executes under general supervision special assignments and tasks. . f !' - I ' Defendant, husband, appeals from a decree of divorce, wherein plaintiff, wife, war awarded certain real and personal property. In lieu of alimony. Defendant urges this court to review' the evidence and make its own determination relative to the distribution of the property of the parties. In essence, defendant contends that it was inequitable and unjust to award plaintiff approximately one half of the property accumulated during their 27 years of marriage and claims that an award of permanent alimony would be more appropriate under the particular circumstances. The parties were married In October, 1944; they have four children, of this marriage, but all have attained their maj orlty. The trial court found that defendant had treated plaintiff cruelly and caused her great physical and mental suffering since July 27, 1971, and that she had grounds for divorce. Plaintiff was found to be unemployed and without funds who are Issue and should be awarded reasonable attorney's fees, and expert witness fees incident to the cause of action. The trial court found that plaintiff had been dominated by defendant, and that her best Interests would be served by becoming Independent and not to be required to rely on him for monthly alimony payments; plaintiff was entitled to be Independent of defendant and should be awarded a reasonable property settlement. The trial court recited the following as the elements It considered in the exercise of its discretion to provide for an equitable property settlement: (a) the amount and kind of property owned by the parties; (b) the prop erty accumulated during their marriage; (c) the ability of each to earn money; (d) the financial conditions and necessities of the parties; (e) the standard of living of the parties; (f) the health of the parties; (g) the duration of the marriage; (h) what the wife gave up by way of marriage; and (1) the age of the parties,1 trial court found that at the time of the marriage of the parties defendant had accumulated as his own separate real and personal The Does not devote more than per cent of his time to activities not to the and related performance of the work as set out above. closely directly 20 (D) (E) Receives not less than $125. 00 per week. The case was tried to the court sitting without a jury over a period of four days. The plaintiffs are dispatchers of trucks hauling sand and gravel from the sand pits to the cement plant, and of trucks hauling cement to various job-sit- es of purchasers. While the company has rules about the order in which the various truckers should be directed in their hauling operations, those rules, are not and it is the duty of these plaintiffs to implement and enforce the rules and to assign the various drivers to the hauling to be done. self-executi- ng, The plaintiffs claim that they are not exempt employees under the statute and argue that they do not customarily and regularly exercise discretion nor do they work 80 per cent of their time at the work of dispatching trucks. Each plaintiff testified to the percentage of work he performed in the such various assignments, but the trial1 court was not obligated to believe exact mathematical estimations. than $125.00 per Certainly each plaintiff received a salary greater In 1944, property, an amount valued at approximately $50, 000. The balance of the property In the names of either or both of the parties had been accumulated as a result of the joint efforts of the parties during the period of their marriage. Since the testimony of the expert witnesses called by each of the parties as to the appraised value of each of the specific assets acquired during the marriage was so contradictory and ambiguous, the trial court ordered each party to submit a list which separated all the property Into two groups, which In the opinion of each party represented equal value In comparison to the other. The party was not to specify any preference as to the separate groupings. Based on the testimony and the additional aid of the parties, the trial court decreed an equitable disposition of the property. The hub of defendant's enterprises was a gas company, which was incorporated; plaintiff owned 80 shares and defendant owned 167 shares; three other shares were owned by others. Closely associated with the gas company was a business, solely owned by defendant, which sold appliances utilising the gas (butane). Defendant was a partner in a farm equipment center, which provided him with an advantageous position to buy equipment 1. These elements are among those Included In the general formula for evaluating and adjusting the rights and obligations of the parties in McDonald v. McDonald, 120 Utah 573, 236 P. 2d 1066 (1951). , 581-58- 2, fCtalUMiVjvw |