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Show MONDAY, OCTOBER 24, 1974 INTERMOUNT AIN COMMERCIAL RECORD In The Supreme Court of The Robert B. Hansen, Plaintiff and Respondent, ! PAGE SEVEN State of Utah No. 13276 E. R. Callister, Jr., Chief Justice FILED v. October 11, 1974 Petrof Trading Company, Inc. J. Allan Crockett, Justice , Defendant and Appellant. Allan E. Mecham, Clerk R. L. Tuckett, Justice HENRIOD, Justice: Appeal from a dismissal of a counterclaim, asserted against plaintiff, incident to an attorney's suit for fees, in which he received a judgment. Affirmed, with no costs awarded. .Petrof, pleadings, affidavits and statements, said the plaintiff, who had to sue for, and obtained judgment for his fees, was compensatorily guilty of malpractice. After hearing the evidence, the trial court said that the pleaded four year limitations statute barred the counterclaim. The chronology of the alleged negligence and filing of Petrof's counterclaim supported the trial court. Petrof, however, said the statute was inapropos since he did not discover the negligence until a time within which the statute was inapplicable. The trial court countered with a finding of fact that if any negligence occurred, which was not conceded by the court or anyone else save Petrof), it "occurred more than four years prior to the filing of said counterclaim and should have been discovered prior to that time. " The evidence sufficiently supported such conclusion, which under familiar principles of appellate review, we respect, without further burdening this decision by detailing the quite voluminous record. further conclude that the trial court committed no prejudicial error in refusing to grant plaintiff any relief as to any additional amount of hourly to be reimbursable. compensation or interest, urged on cross-appeWe al WE CONCUR: John R. McCall, ELLETT, Justice: (Concurring in the result) concur in the result because I do not think the counterclaim states a cause of action. The fact that pretrial depositions were not used at trial does not in and of itself show negligence or malpractice. I While this point was not raised on appeal, we may notice it in order to affirm the trial judge. 1. 5 C. J.S. Appeal and Error 1464(1); Goodsell v. Dept. of Business , 523 P. 2d 1230 (1974). Utah 2d lation, However, I cannot agree that the statute of limitations had run on the claim. While-i- is true that the statutory period had run from the time of the alleged negligence at the time of filing the counterclaim, it had not run from the date of termination of the services of the plaintiff as counsel for defendant in the case wherein the negligence is claimed to have occurred. t think that so long as a lawyer is trying a case for his client that it would be improper to permit or require the client to begin a separate action against his attorney every time he thought the attorney had erred in a trial tactic. The cause of action, if any there be, should ripen and the statute of limitation begin to run only upon termination of services of the attorney in I that particular case. . No. 13450 . Plaintiff and Respondent, 10. That petitioner was advised of the Utah Implied Consent Law without securing a waiver under the Miranda warning and that such advice was given by reading from a . form provided by the Department of Public Safety which contains the Miranda warning and the Implied Consent Law and no other advice. FILED October 16, 1974 Earl N. Dorius, Director, Driver License Division of the Allan E. Mecham, Clerk State of Utah, Defendant and Appellant. 11. That thereafter, the petitioner requested to call his wife and his attorney and was denied both requests. ELLETT, Justice: That thereafter, petitioner refused to take the chemical tests offered by the Trooper. 12. The defendant appeals from an order made by the trial court in a civil case restoring driving privileges to the plaintiff herein. The court thereupon concluded: The plaintiff was arrested for driving while under the influence of intoxicating liquor by a trooper who had reasonable grounds to believe that the offense had been and was being committed. We are not here concerned with the outcome of the trial for that crime or with whether there was or will be such a trial. That the petitioner had a right to contact counsel to prior deciding whether to take the offered chemical tests under the Implied Consent Law. Section nent herein reads: Regu- U. C.A. 1953, as amended, so far as 1. 2. That the Court makes no specific finding in regard to whether the nature of a Driver's License Hearing U in nature and to the re"purely civil" or "quasi-crimina- l" sultant questions' of whether a refusal to waive the rights guaranteed under Miranda precludes an officer from proceeding with advice as to the Implied Consent Law and its peti- perti- (a) Any person operating a motor vehicle in this state shall be deemed to have given his consent to a chemical test of his breath or blood for the purpose of determining the alcoholic content of his blood, provided that such test is administered at the direction of a peace officer having reasonable grounds to believe such person1 to have been driving in an intoxicated condition. The arresting officer shall determine within reason which of the aforesaid tests shall be administered. tioner's refusal of tests thereunder because even if it is in nature civil it is clear that the officer did not purely properly qualify his advice marking clear the of the Miranda warning to the driver's license question. non-applicat- ion 3. That the petitioner's refusal under the above facts and the law as set forth does not constitute a rejection warranting the suspension of petitioner's driver's license. (c) If such person has been placed under arres'. and has thereafter been requested to submit to any one of the chemical tests provided for in subsections (a) or (b) of this section and refuses to submit to such chemical test, the test shall not be given and the arresting officer shall advise the person of his rights under this section. Within twenty days after receiving an affidavit from the arresting officer to the effect that such person has refused a chemical test the department shall notify such person of a hearing before the department. If at said hearing the department determines that the person was granted the right to submit to a chemical test and without reasonable cause refused to submit to such test, or if such person fails to appear before the department as required in the notice, the department shall revoke for one year his license or permit to drive. Any person whose license has been revoked by the department under the provisions of this section shall have the right to file a petition within thirty days thereafter for a hearing in the matter in the district court in the county in which such person shall reside. Such court is hereby vested with jurisdiction, and it shall be its duty to set the matter for trial de novo upon ten days' written notice to the department and thereupon to take testimony and examine into the facts of the case and to determine whether the petitioner's license is subject to revocation under the pro- visions of this act. Mr. McCall refused to take a test, and the defendant herein duly had a hearing and cancelled the driving license of Mr. McCall, who then brought suit in the district court to have the cancellation set aside. - After a trial of the matter, the judge of the district court found the following: There is no evidence to sustain a finding that the form provided by the Department of Public Safety which was read to McCall contained the Miranda warning or any reference thereto. In fact, the form was introduced as an exhibit, and no. mention is made of Miranda thereon. There is no evidence that McCall was refused the right to call his wife. He testified that his contact lenses hurt his eyes and that he asked the officers to stop along the way and allow him to phone somebody to come get his lenses. The arrest was made approximately ten miles from the jail, and it required only a few minutes to travel that distance. The officers denied that Mr. McCall made any such request. Besides, as soon as he was booked at the jail, he was afforded the use of a telephone. Because he could not reach his wife, he called a friend of his who located her, and she met h:.m shortly thereafter. in-tran- sit Regarding the finding that McCall was not permitted to call an attorney he had the use of the phone as soon as he was booked, but he did not call or attempt to call an attorney. McCall was very belligerent toward the arresting officer. When the Miranda warning was read to him by the officer, he pretended not to understand it. It was read three times. The last time it was read and discussed sentence by sentence, and then McCall said he understood it except as to the part about having an attorney present so-call- ed before answering questions. Thereafter the trooper read to McCall the implied consent law as above set out, and McCall refused to take any test. Thereafter the trooper again read to him that statute and explained the consequences of a refusal to take a test, to wit, that he might lose his driver's license for a period of one year. Two officers testified that McCall refused to take the test. McCall himself testified as follows: Q Do you deny that' you said that you would not take any tests? 8. The trooper read petitioner his Miranda Rights to which petitioner repeatedly indicated Tin did not understand. I I A No. I don't. hadn't had much to drink, why were you afraid Q If T i |