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Show THE SALT LAKE TIMES FRIDAY, DECEMBER 26, 1975 Kaiparowits Would Bring to Utah $3 billion-plu- s Utah Supreme Court Opinions IN THE SUPREME II the Dfrrcc nuipi fiiuni'iil dutrf ii, the ruling n be n viewed if witlun one year after final judgment COURT OP THE STATE OP UTAH oo Ooo party requests it. Tlmpanogoa Highlands, Inc., Plaintiff and Appellant, PILED v. December 3, 1975 The derision of the Court waa baaed upon an aaaumption that the net value of the assrt, of the plaintiff waa $225,000.00 Allan E. Mecham, Clerk Having confidence in the integrity of our trial courta and the ability of the judge to review the matter if preeented to them, we affirm the judgment rendered and leave it to the lower court to determine if a modification ahonld be made. Emily D. Harper and Max D. harper, Defendante and Reapondenta. CROCKETT. Justice: Plaintiff, Timpanogoa Highlanda, Inc., eued defendante, Max D. Harper and Emily D. Harper (now decaaaed), for epecific performance of a contract for the purchaee of a tract of 71 acrea of unimproved property eaat of Lindon in Utah County. Defendante acknowledged execution of the contract, but averred that It had bean abandoned; and alao counterclaimed, alleging plaintiff had alandered their title by recording the abandoned contract. The action for epecific performance being in equity, an advieory jury wax uaed. Ite finding were in favor of the defendante: that the contract had been abandoned. The trial court made finding! accordingly and entered judgment againat the plaintiff and in favor of the defendante, except that it diemlaeed defendant' counterclaim for alandar of title. Plaintiff appeal. Defendant 1 croii-appeal- tnidf either Another puaaible reason fur having the matter looked at within a year ia the distribution of the aeaeta. No. 13916 a. Plaintiff eta tel Ite contention: (1) That the finding of abandonment "le againat a fair preponderance of the evidenre"; (2) That a tender it made to reinetata the contract ahould have been accepted; (3) That the court erred in admitting evidence of a atatement of Karl B. Hale, one of plaintiff pradeceiiori, who ia now deceaaed, concerning abandonment of the contract. The original partial. Perry W. and Emily D. Harper, a aellera, and Karl B. Hale and Roy A. Barrett, buyer (each predeceaaora to the partial to thii action), uaed a uniform real eitate contract form. It wae dated September 18, 1957, an) provided for a total price of $35,000 (about $500 per acre) to be paid: $500 for the option to purchaie; $2,500 on the exarciie of the option; and $3, 000 per year, with five per cent lntereit on the deferred balance, until the total anunat wai paid. After the initial payment!, and the following year, 1959, the purchaaera made aporadic but Inadequate payment until November, 196B. During that time they had paid a total of $24, 150, of which $14, 650 had been applied 6n lntereit, and of the total pr'ce) on principal. $9,500 (thua a little more than After the remand, the defendant, on October 25, 1973, filed a "Petition for Review of Economic Matters and Modification of the Decree" supported by affidavits and proffer of proof. In i onnection with an order to show cause issued thereon, the trial court indicated his view that under the prior decree and the decision of this court it was his conclusion that "serious financial distress is a relative matter" and that whether the defendant was ao distressed could not be determined without reviewing the whole economic situation of these parties. If we look at the total situation, including the substantial property interand the complex financial situation of thaie parties, together with the facts that the original decree did not purport to make the usual final disposition thereof, but contained the reservation recited above, we see nothing unreasonable or improper in the just stated conclusion of the trial court. Tha circumstances here distinguish this case from those relied on by plaintiff which hold that a final decree cannot be modified except for a change of circumstances. Moreover, in thia situation we see no reason why tha court in its effort to do equity between theae parties could not make whatever corrections or adjustments in the decree it deemed necessary to carry out that purpose. ests Consistent with that objective, there followed extensive discovery procedures, and a hearing of several days' duration, at which both parties presented extensive evidence and tha testimony of experts on valuations; and thereafter submitted their respective memorandums and proposals as to the disposition to be made of their financial affairs. Consequent thereto, the trial court on November 11, 1974, made findings that the value of the assets was $2,037,535.63, less liabilities of $288,725.65, with a resulting net worth of $1,748,809.98. Of this it awarded to the plaintiff properties valued at $1, 121, 471, 63, required him to discharge obligations of $189, 869, thus giving him properties of net value $931 , 602. 63. To the defendant ha awarded properties valued at $842, 144, required her to discharge obligations of $98, 856. 65, a net award to her of $743, 387. 35. one-four- th Other aignlficant facta are: that the buyer never entered into the poaaeaalon of the property, or in any way uaed or exerciaed dominion over it. Nor did they pay the taxea thereon. For aeveral year prior to 1968 the buyera had been making two payment a year of $500 each. The laat auch payment waa made in November, 1968. A few daya later. Max Harper called Karl B. Hale on the telephone and told him that the payment waa not enough, that it would not even cover the intereat and taxea. Whereupon Mr. Hale told him that due to financial difficultiea ha could not pay for the property and would have to let it go. The evidence ia further that upon a aubaequent occaaion Mr. Hale made a aimilar atatement to Ruby Harppr Weat, Max' a aiatar. Shortly after theae occurrence, the defendant! laaaed the property for a term of .ten year to a third party. Karl B. Hale died May 24, 1969. There le aome diapute aa to what happened between that time and April, 1973, when the event occurred which precipitated thii lawauit. However, there waa aome contact between the 1. See Keeler v. Roger, , October, 1975. P. 2d All right. Mr. Klein, you have heard your counael read into the record, part of it by reference to paragraph. I don't know whether you have been ab.e to follow it or not. THE COURT: MR. KLEIN: I haven't followed it. Your Honor. THE COURT: Do you understand it? Four days after the November 11, 1974, supplemental decree, plaintiff filed his objections thereto and motions for other relief andor a new trial. A haar-in- g on these motions began on Friday, December 6, 1974, and continued on Monday, December 9. During the noon recess respective counsel engaged in discussions and apparently arrived at terms of settlement based on an offer of the defendant. Whan court convened at 2:00 p. m. defendant's counsel orally stated into the record the terms thereof, which involved reference to certain paragraphs of the November 11, 1974, judgment. Inasmuch as it is the position of the plaintiff that he repudiates the stipulation, the following ia noteworthy. A part of the record, relied upon by the plaintiff in support of hia position, is: Thia order was entered by Hon. James Sawaya; and the subsequent proceedings and the amended decree appealed from were handled by Hon. G. Hal Taylor. 2. No. 13994 -- 2- addition to all of the foregoing, there ia no reason that the trial court cannot consider what was proposed by the parties as a stipulation, and what was said by them or their counael about it, aa part of the total facts and circumstances upon which to fashion what In his judgment is a just and equitable decree. Under the circumstances shown, particularly the fact that upon his analysis of the total circumstances the court indicated in his judgment of November 11, 1974, that tha defendant should have $200,000 more In assets than tha present decree gives her, and tha plaintiff $200,000 leea, it le obvious that tM trial court did not regard this latter allocation of asset as in any unjust or Inequitable to the plaintiff. Consistent with tha latitude of discretion necessarily allowed to the trial judges in dealing with problems of tha character here involved, we are not persuaded that we ahould disturb tha decree. ( All emphasis heroin added. ) Affirmed. . Costs to defendant (respondent). da-gr- ee MR. KLEIN: I am relying on my counael. I haven't been able to read it. At thia point, Aa opposed to the foregoing, a part of the record upon which the defendant places reliance is the following response of the plaintiff which occurred later: By way of the record, I accept the stipulation and I so Spoken by Robert D. Klein. understand. Speaking in generality, the offer made on the defendant1! behalf which was then agreed to by the plaintiff and hia counael reduced the properties being awarded to the defendant in the amount of about $200, 000 and increased the value of properties being awarded to the plaintiff in that amount. Subsequent thereto, on December 18, 1974, the trial court made forther finding! and antered a decree in conformity with the stipulation, and from which thii appeal ia taken. Plaintiff' a arguments that he ahould not be bound by the stipulation did not understand the goings-o- n at the time it waa presented to the court; that it waa hia impreaaion that he was obliged to Indicate agreement so that negotiation! could continue and that the stipulation would be reduced to writing for his examination before it waa confirmed and reliad on: but that the next day, when he realized what had been done, he immediately notified hia counsel, who in turn notilica opposing counsel and the trial court that he would not ao agree; and that this was done before the amended are: that he WE CONCUR: R. L. Tuckett, Justice 5. See Pinion v. Pinion, 92 Utah 255, 67 P. 2d 265; McDonald v. McDonald, 120 Utah 573, 236 P.2d 1066; Wiese v. Wiese, 24 Utah 2d 236, 489 P.2d 504. MAUCHAN. Justice: (Dissenting) For the following reasons, I dissent. what is called a stipulation of the parties. The judgment hare ia based on The power of the court to render a judgment by consent is dependent on the existence of the consent of the parties at the time the agreement receives the sanction of die court or is rendered and promulgated as a judgment. order waa entered. Plaintiff advances the proposition that it would be neither faLr nor proper to enter a "consent decree" purporting to be baaed on the agreement of a party who doea not agree thereto at the time of final submission to the court. Thia appears to be a eound proposition when applied to appropriate circumstances. But it la alao true that the aame rules apply to binding parties to auch agreement aa apply to any other agreement. If there la any justification in law or equity for avoiding or repudiating a stipulation, and ha timely does so, ha la entitled to be relieved from it, otherwise not. A. H. Ellett, Justice F. Henri Henriod, Chief Justice This general ride, in my view, is dispositive of the matter before us. There was no stipulation, because one of the parties withdrew consent prior to judgment. The withdrawal was seasonable, and prior to any change of position by the parties, in reliance on the terms of the proposed agreement. cases2 deal specifically with this general rule. In Two Burnaman it was said: A valid consent judgment cannot be rendered by a court when consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party's consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make tha agreement the judgment of the court. In Van Donselaar, it was the court's opinion that: If no asreameut was in fact made, or equally if oneofof the the be bound by it, to the knowledge partiea hao refined tohad no right to enter a consent judgment. court, then the court For tha same reason, I think the court had no right to refuse to allow plaintiff1 trial counsel to withdraw, until after the judgment had bean rsnderad. ed Proceeding beyond what has just been laid, we make aeveral observations about thia stipulation: the first la that the iaaua as to whether plaintiff agreed to and should be bound by the stipulation waa one of fact for the trial court to determine; and it was not convinced that the plaintiff did not under-etan- d and voluntarily agree to the stipulation. Thia would aeem to sufficiently settle the iaaua. But even if it be assumed, as the plaintiff contends, that he either did not understand andor waa subjected to duress in agreeing to the stipulation; or that hia agreement waa timely and properly withdrawn, these further observation! are applicable: It ie the established rule that a stipulation pertaining to matters of divorce, custody and property rights thesein, though advisory upon the court and would usually be followed unless the court thought it unfair or unreasonable, is not necassarily binding on the court anyway. It la only a recommendaIn tion to be adhered to if the court believes it to be fair and reasonable. 3. See Burnaman v. Heaton, 150 Tex. 333, 240 S. W.2d 288; Van Donselaar v. Van Donselaar, 249 Iowa 504, 87 N. W. 2d 311 (1958). 4. Openahaw v. Openshnw, 102 Utah 22, 126 P. 2d 1068; Callistar v. Calllster, 1 Utah 2d 34, 261 P. 2d 944. J.S., Judgments, Sec. 174b, page 311. Burnaman v. Heaton, 150 Texas 333, 240 S.W. 2d 288, 291 (1951); and Van Donselaar v. Van Donselaar, 249 Iowa 504, 87 N.W.2d 311, 313 (1958). 1. 2. 49 C. No. 13994 No. 13994 -- 3- Ski Touring Gains Converts; Sport Thrives in Utah The popularity contest between ski touring and alpine skiing is battle as the becoming a see-say skiers conof ranks tinues to grow. In Utah, where the downhill ski season spans six months, crosscountry enthusiasts can ski even longer usually a full three-quarteof the year. Ski tourers can choose from a variety of terrain, too, from the challenging canyons of northern Utah to the flat red w cross-countr- rs , rockof Zion and Bryce Canyon national parks. Ski touring is strenuous exercise, but the alternating kick-lik- e steps and glides required in the sport are skills the entire family can master. It's also easy on the family budget: Light, soft boots and long, shm, lightweight touring skis and poles can be purchased for less than $100. Most Salt Lake City ski shops provide ski touring programs and rental equipment; Page Three many resorts offer lessons and rentals, too. At Park City, for instance, crosscountry skiers can spend the morning taking lessons, the afternoon touring over some of the miles and miles of old mining roads which criss-cros- s the area, and the evening delighting in a moonlight tour with an overnight stay in a toasty snow cave or refurbished prospector's cabin. What will Kaiparowits do for amenities of a modern city of 15,000 Utah? The total direct and indirect to 18,000 inhabitants. Other jobs benefits cannot be fully estimated for approximately 4,700 workers because of their great diversity and will be generated to supply the the multiplying effects which an needs of the new community. Permanent Annual Payrolls: industry of this size and kind will Over $103 million. have in every portion of the State Increased Tax Assessed Values and beyond. But it would be safe to from of some that the investment power plant only (an 18.3 predict increase over present total state billion of new $3 capital (mostly and the added assessments): $421.6 million. from Annual Tax Revenues: $61.6 investment of additional hundreds of millions for a new town with all million. What Kaiparowits will ,not do: its amenities, mainly paid for out of new payrolls, new tax revenues It will not violate any of the and similar seed money and multi- standards required by the Federal plying facotrs, will benefit either Environmental Protection Act or directly or indirectly virtually the Federal Clean Air Act or any State pollution standards, either as every citizen of Utah. to air quality or other environMajor benefits will come from mental safeguards. Rather, the the following sources: performance which will be guaran5 teed for the Kaiparowits Project to construction: (4 During in will some cases, be better than will, The generating plant years) workthat required by either Federal or provide new jobs for 2,500 State standards. ers. New full Further, the Kaiparowits Project operation: During will 500 for some permit the orderly developgenerating plant jobs ment and utilization for the people mine workers. and workers 2,500 of Utah, the West, and for the During the life of the plant: (minimum 35 years, but unlimited nation as a whole a comparatively lifetime expectancy for the town) small part of the dormant natural These 7,700 direct and indirect resources with which Utah has workers and their families and been abundantly endowed for the dependents will require 3,200 new use and benefit of mankind. And what better purpose can housing units, also schools, churchnatural resources be put to than to office buildings, hospies, shops, mankind? all better other and the tals, playgrounds out-of-stat- e) Government Accounting Offices Charges Bureau of Reclamation, Not Central Utah Project There is a great deal of mis- unit that has contracted with the understanding and confusion con- Federal government to repay the cerning the recent report by the costs of the project and to become federal government's General Ac- its operator and distributor if its counting Office charging ceiling water when it is completed. But, the Central Utah Project cost inflation of the Bonneville Unit of the Central Utah Project, Lynn is, in fact, being built by the United Ludlow, general manager of the States Bureau of Reclamation and Central Utah Water Conservancy the Bureau handles all of the District, told the District's Board of accounting and use of funds that Directors at their monthly meeting has been called into question, Thursday. What this amounts to is a disagreement on accounting procedures between the General Accounting Office and the Bureau of Reclamation, both Federal Agencies, he said. The General Accounting Office recently released a report which said that the Bureau (of Reclamation) misapplied its procedures in preparing the fiscal year 1976 estimate of the authorized cost ceiling for three reclamation projects including the Bonneville Unit of the Central Utah Project. Congress has authorized the cost ceilings on these projects to be automatically increased to cover increased costs caused by inflation," Ludlow said. It is a very complicated accounting question, but, in general terms, the General Accounting Office is saying that Bureau of Reclamation misapplied its procedures in calculating what these projected increased costs should be, Ludlow said. Two things should be perfectly understood by everyone," he said. "First, it is a disagreement between two federal agencies over accounting procedures and does not directly involve the Central Utah Water Conservancy District. And, secondly, all the money appropriated has been spent on the Central Utah Project and any implication to the contrary is totally incorrect," he said. The Central Utah Water Conservancy District, covering parts of 12 of Utahs 29 counties, is sponsor for the Central Utah Project, a multi-millio- n dollar water development project. What that means is that the District is the local governmental Ludlow said. Davil L. Crandall, regional director of the Bureau of Reclamation, attended the CUWCD board meeting and told the directors that the BORs Washington office was preparing a response to the GAOs charges, that it would be presented at Congressional hearings on the matter next week and that it would be inappropriate for him to comment at this time. The sad fact is, however, Mr. Ludlow said, that the delays to the CUP caused by inadequate Congressional funding, the requirements of the National Environmental Policy Act of 1969 and the resulting lawsuits brought by environmental groups have caused the cost of the CUP to soar. so-call- ed Every day that passes without completion of the CUP means that much more Utah water has flowed downstream to Arizona and California. Water in the west means money to those who have it and use it, Ludlow said. The money lost to Utah with the loss of our water combined with the increased costs of the CUP due to inflation should cause all Utahns to be concerned by the unreasonable and uneconomical method by which this project has been funded and handled by the Federal Govt., Ludlow said. It still remains that current water needs require the completion of this project as early as possible. It should be given a priority position by the Federal Government in completing its construction. Ludlow acknowledged that he had received an inquiry from Congressman Gunn McKay concerning the GAO's accusations. |