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Show ';y --5 THE SALT LAKE TIMES Page Three FRIDAY, FEBRUARY 13, 19 V Poison Control Center Tags Warn of Household Dangers ' 84132. He said a contribution of 20 cents per sheet to help defray the program's costs will be appreci- INTERMOUNTAIN POISON CENTER ated. The center is enlisting the aid of several civic organizations to help distribute the stickers throughout the area. 801581-215- 1 Green Safety Flag Flies at Hawthorne School 4-- H Utah Supreme Court Opinions IN THE SUPREME the net profit, we reverie the trial court and remand the caaa with direction! a pi it the net in the agraid ratio profit! available fur dividend!, alter deducting taaee. Each party will bear ill own coite. COURT OF THE STATE Or UTAH - - - - ooOoo Utah The Squire, lac, , corporation, iM Harvey Smith, aa individual, Plaintiffe and Appellanta, No, WE CONCUR: 14072 FILED January 30, 1976 J. Allan Crockett, Juiitce v. Lynn H. Coomba, Defendant and Raapondanl. Allan E. Macham, Clerk R. L. Tackett, Juetice ELLETT. Juetice: Richard J. Maughan, A Joint voalure agreement uraa entered into by and between Lynn H. Coomba and Vieta International Corporation (hereafter referred to ae Viala) for the purpoae of auhdividing tome land owned by Tho Squire, lac. Mr. Coomba owned all of the aleck of The Squire and, ae a paet of the agreement, he tranafarrad all of The Squire atock to Vieta. The partlee further agreed that the Joint venture would be effectuated through the Squire Corporation. Thua both partial could uee tha corporate entity of The Squire ae a ahield from liability. They further agreed that ell net profile from tha Joint venture would be divided 40 to Coomba and 60 to Vieta. IIENRIOD. Chief Juitice: TUi action wae brought by Mr. Smith, tha aaeignee of Vlata'e lain tha Joint venture agreement Vgainat Mr. Coomba, tha other Joint venturer. A counterclaim wae filed and both partial eought an accounting. designed to prevent accidental poisonings of young children, has been launched by the Intermountain Regional Poison Control Center. Dr. Anthony R. Temple, center director, said thousands of adhesiv stickers showing a caricature of Officer UGG, a police officer with his hands placed firmly across his mouth, have been distributed to many Salt Lake area residents. The stickers are for toxic agent containers, such as pill bottles and household cleaners. Parents are urged to tell small children they should not play with anything that has an Officer UGG sticker on it," Dr. Temple said. Accompanying the sheets of stickers is a list of common household agents to which the stickers should be attached. Stickers giving the location of the poison control center in University of Utah Hospital and listing its phone number are also included. Dr. Temple said these should be attached to a convenient place on family telephones or telephone directories. He emphasized that if families are faced with a poisoning of any type the poison control centers services are available 24 hours as day, every day of the year by or toll free calling (801) outside the Salt Lake area, The cnee wae tried to a jury and thereafter a new trial wee granted and tha matter tried to tha court baled upon the record at tha Jury trial. Tha court found that the original agreement had been modified by a anbae-que- at agreement and that tha claim of Smith and Tha Squire wae not auataiaad. Tha evidence euelaina thia finding. However, the court aleo found that 40 of the "net profit" due Coomba meant "net profit before income taxaa paid by tha Squire, Iac,"and gave Coomba judgment for 40 of tho profit of the corporation with no deduction for income tanae; thua forcing Smith to bear the entire income tan due by Tha Squire out of hie 60 and thie in view that tha Joint venture agreement provided that the proceil of eubdividing tha land would be dona through Tha Squire, Inc. Had both partiee not uaed Tha Squire ae tha agent to accompliah the project, then we could aaa that not profile would mean profile before taxation. However, ao long ae Mr. Coomba ie receiving the benefit of the corporate ahield. he ought not to be able to compel hie aieociata to etand all of tha corporate tanae out of hie ahara of the earning!. Green Pennant Safety The Flag flys at Hawthorne Elementary School, 1632 South 700 East. This helps every child to be more safety 4-- H minded, according to Bertha Youth Staff Daniels, U.S.U. who services Assistant, programs in Salt Lake City. Special assemblies were held to reemphasize safety. All the Hawthorne School students met to see the film Keep the Flag Flying for Safety. The school safety patrol were recognized as important school leaders and were given patches to wear. 4-- H 4-- H 4-- H Newly chosen captains are Carolyn Thompson and Susan Hurley, Lieutenants, Jeff Andrews and David Oschefski; Sargeants, Leslie Tolley and Kim Openshaw. Pamphlets were sent home so parents can help in this special activity for safety. A poster contest will be held at the school to encourage constant efforts for safety. Principal Sorenson and Kay Bendixsen, County Youth Agent spoke words of encouragement at the assemblies. They complimented the young people on their safety Dr. Temple added that Officer record and solicited teachers and UGG stickers are available through parents to help the children be hours a day, the poison control center, 50 North careful twenty-fou- r Medical Drive, Salt Lake City, UT every day of the week. 581-215- 622-422- 1, 5. Probate Notices Consult clerk of the District Court or the respective signers for further information. NOTICE TO CREDITORS No. 62704 Estate of THOMAS L. POWERS, also known as THOMAS L. POWERS, JR., TOM L. POWERS, JR., THOMAS POWERS, T. L. POWERS and TOM POWERS, JR., Deceased. Creditors will present claims with vouchers to the undersigned at the office of Edward M. Bown, attorney at law, 616 Kearns Building, Salt Lake City, Utah 84101 on or before the 5th day of May, A.D. 1976. Claims must be presented in accordance with Utah the provisions of Code Annotated 1953, and with proper verification as required therein. JEAN POWERS, Executrix of the Last Will and Testament of Thomas L. Powers, also known as Thomas L. Powers, Jr., Tom L. Powers, Jr., Thomas Powers, T. L Powers, and Tom Powers, Jr., Deceased. Date of first publication January 30th, A.D. 1976. Edward M. Bown, Attorney of Executrix 616 Kearns Building Salt Lake City, Utah 84101 75-9-- 5, (1-- 30 2-2- 0) Escapt for tha determination of tha term "net profit" aa lot out in Ai to tho baaia for calculating tha percentage of tin. finding!, wa affirm. 1. It ii difficult to aaa how tha profit! of tho corporation could ba divided other than aa dividend! baaed upon the atock held; howavar, that point waa neither raiaed below nor hare on appeal. Tha appellant, Harvey Smith, now ouma all of tha atock of Tha Squira, Inc. From tho finding!, tha trial judge concluded: That tho partial, by tha Joint Ventura Agreement aa to a) achedulo Ucraaa-lafor ula of lata, b) additional ancillary promotional caata acquired by of lot pricoa, and aald that Viata had waived auch original achedule, by aqt and by accepting immediately financing, or requiring filing a plat earlier, aalea made by Coomba thereafter, plua diverting Coomba' effort to call lota, which to aelliag contract! for lota, by iacroaalng aalea pricaa of lota, all af which avant tinted prior ttatha time Smith had acquired hia iateraat, alteration! or "waivara" Smith waa bound. Other ceaclua iona won entered inimical to Smith' a contention! which need no further apacificlty. Tha plaintiff a have had tha benefit of two triala, one by a jury md ana the court. Independent of a jury. Wo are charged with a duty to recognlaa by the deliberation! of tha fact findera, and thin author believe! that tha evidence tha trial adduced, if believed, reaioaably and amply aupporta tha jury and have ban aoma diacrapanclaa Judge, irraapactivu of tha bet that thorn may conaa to tha uaderatnnding between tha partial, - which, from a tnnacrigd - ara raifeikably few, - aa recounted taining aoma 2M pagaa of teatimony, in the brief a, aad which do aot appear to be of auch prejudicial Batura aa to attributable to other evidence found ta tha overcome tho coaaidorabla weight Platatiffa urge on appeal that tha court arred ta 1) not finding that Coomba broke hia agraamant by a) exceeding the development coata aad W were firat before tho foiling to aaU a avon lota per month. Both contention! the Judge, - and it appear! Jury, aad aecondly, and Independently, before that the evidence amply aupporta a voluntary c binge by both partial of tho tarma of tha contract ta thoao reapacta. tha trial court erred ta inAgain, tha plaintiff! nrga on appeal that - principally that part having to contract,1 tho of tarma the plain terpreting do with tha 40 of net profit compeniation. The ab inline clarity ta tarma Miscellaneous Notices on file in the office of the Salt Lake County Recorder. Consult clerk of the District Purchase price payable in Court or the respective signers lawful money of the United for further information. States Dated at Salt Lake City, Utah, this 11th day of February, 1976. SHERIFFS SALE DELMAR L. LARSON. Sheriff DISTRICT COURT of Salt Lake County, State of ORDER OF SALE Civil No. 230264 Utah. By Keith L. Buckner, Deputy Docket No. 93093 In the District Court of the Third Judicial District in and Peter M. Ennenga for the County of Salt Lake, Attorney for Plaintiff State of Utah. Date of first publication FEDERAL NATIONAL ruary 13, 1976. MORTGAGE ASSOCIATION, (2-1- 3 Feb3-- 5) Plaintiff, VS WILLIAM V. McCLOUD and DELORIS A. McCLOUD, his wife, and CITY FINANCE COMPANY; (UTAH) now known as CAPITAL FINANCIAL SERVICES, INC., No. 23 a corporation, Defendants. To be sold at Sheriff's Sale at the County Courthouse in the City and County of Salt Lake, State of Utah, on 9th day of March, 1976 at 12 oclock noon of said day that certain piece or parcel of real property situate in Salt, Lake County, State of it Utah, described as follows, ' Lot SUNNYVALE 21, HEIGHTS No. 8 according to the official plat thereof to-w- g Tha court concluded that them waa no cauaa of action for tho claim! of Smith and Squira, that Coomba waa entitled to tho lot aaalgnad by tho buyer of mentioned above, and to a judgment of 40 of tho net profit! on tha aalo " - reaa-onilota, computed "prior to any accrual of income tauaa of Tho Squire, that to arrive at "net profile from tha aala of lota, "aa recited la tha ba auM reeled from agreamant, 'tho bona fide obligation! of The Squira ahould obligation la auch clue of tho Squlre'e aaaota. " Certainly tha income tantho property by a aa obligation, which if unpaid could bo made a lien agalnet Fadaral warrant filed ith tha County Clork, in the nature of a judgment lien, aa effectively aa a mechanic'! lien or a flrat mortgage recorded la tha County Recorder'! Off lea. And juat aa certainly tha majority of tha court, undar tho facta of thia caaa, would have to concede that auch liana would have ta ba to determine not profile under thia Joint venture agreement. record. NOTICE Please take notice that all those claiming liens in the property described as follows, to wit: Lot Number 6 Antionette Acres, according to the Plat thereof, as recorded in the office of the Salt Lake County Recorder, are to appear before the Law and Motion Judge of the Third District Court at 10:00 a.m. on Tuesday the 20th day of February, 1976, at 310 City and County Building, Salt Lake City, Utah, then and there to exhibit the proof of their liens. WESTERN WHOLESALE FLOORING, INC. David R. Bowen Attorney for Lienholder (1-- 30 Thia can originally waa tried to a jury reaultlng in a verdict in favor of defendant Coomba. The trial judge granted a new trial for one reaaoa only: the queitioa of admiaaibility of certain evidence anant tha purcheie price being comiderad to have been prejudicial. The partial itipulatad that the judge could try tha caaa without a Jury, by reviewing the record and evidence adduced at the prior trial. Thia the trial court did and came un with tho name anawere aa had the jura after having Indulged continued hearing!, admitting additional evidence and taking the caaa under adviaament, and entering writtan findingi of fact and conclua iona ia pertinent part abatracted hereinafter. Tha main opinion in one fell awoop deatroya tho conclua iona of two aeparate fact-findiagenciaa, which we have laid many time a are inviolate on appeal unleae clearly ahowa to have been unaupported by the avidance. Tha focta ware: that in October 1969 a Joint Ventura Agreement waa executed between Coomba and Viata Corporation looking to development of a aubdiviaion on property owned by The Squire, another corporation, whareta Coomba waa to receive 40 of the net profit!, waa to aaU at loaat a even lota Viata and waa to month, furniah not to axcaed $150, 000 for financing, that per both partial contemplated Immediate fundi and aale of lota and all waa to bo in a Both wera delayed, admittedly and without recrimination, completed year. and development coata, aa frequently happena, exceeded thoea anticipated. A of number unanticipated avanta occurred under which tho partial learned to live without any particular faultfinding, and the 0 bit waa no problem for the partial, tha jury or tha judge, - until now. In January 1971, three yeara after the venture waa initiated, plaintiff Smith acquired Viata'a intareat (ao he ia now Viata), Coomba had aold three fourtha of the Iota, although off achedule, but conaented to, and Viata (and Smith) had approved the changoa in promotion. Smith, for threo yeara before, had been Viata'e adminietrative naaiatant and waa aware of the facta and couraa of dealing. Smith, without any reaaoa lave the profit temptation, ao for aa tho trial court waa concerned, then attempted to diacharga Coomba aa aalea agent and adviacd him to aall no more lota, which Coomba ignored, aelliag a majority of tha remaining lota, all of which aalea Smith accepted. One of the lot buyere adviaed Smith aha had aaaigned her interact ia the lot to Coomba, which Smith refined to recogniae. 40-6- Whuu paoplu ipuah of tho not profit! of corporation, they rotor to tho amount of oarningi avullabla for dividend! and dividend! cannot bo paid in diaragard of thoao charge! called tarn. hral agreamant, had altered Tha partial itipulatad to an audit by a local firm ta an effort to reconcile numaroua other diaputad claime let forth ta the finding!, and tha court found that the Joint Venture Agreement waa ambiguoue ta defining Coomba' 40 of tho "net profit!" from the aale of lota. 14072 -- 2- with reaped to thia aapect of the caaa that bmtth caataada for deal aot tha rigidity of Interpretation he daima. Percentage af not profit, aa a ninnaral, may bo clear, but certainly may bo much more viable aad malleable whan related ta the calculable "aot profit factor. Tha lattar deFrom tho entire record pend! oa what tha partial may have contemplated. hare, no one ihould do other than confirm the conviction of tha trial court to tha affect that inch intention conditioned tha net profit! on Tha Squire' a aaaota and liabilittea, - which of necaaalty, and aa a baaia for calculating net profit!, - required aaaumption of inch variable! aa tax liabilittea incident to the development of tho aubdlviaioa. Coomba. Wa are not ta diaagreemant with platatiffa' authorittaa to the affect that a contract moat bo enforced according ta ita dear, plain tarma and moaning. 1. I believe tha jury, and tha judge, independent of the jury, were not uareaaoa-ablta their apprataala of tho facte, and that tha trial judge waa not prejudicially amiea ta hia caavaaa af the facta and hia interpretation of tho agraamant and the partial' latent. Ia my opinion, tha majority member! ta thia caaa have gone into tho accounting buaiaeaa via a bob loquitur concilia tea about tax ahtalda baaed oa "dividend!" that ao one, aa I recall, ratead ta thia caaa except thia court itaalf. My guaaa would ba that tha LB JB. people would uaa different computer! ta aliening tha tax liabil-ltle- a and cone aqua ally tha true of the partial ta thia caaa than hn thia court. taxable income attributable to each. -- 4No. 14072 The following described property will be sold at public auction to the highest bidder at the South door of the Courts Building, County of Salt Lake, State of Utah, on March 10, 1976, at 12:00 oclock noon of said day: All of Lot 32. Block 48, HOFFMAN HEIGHTS NO. 8, according to the official plat thereof on file and of record in the office of the County Recorder of Salt Lake County, State of Utah. Also known as 5040 Capehart, Kearns, Utah 84118. Purchase Price payable in lawful money of the United States Dated this 9tty day of Feb1976. TITLE INSURANCE AGENCY OF UTAH, INC. By Reese S. Howell, Vice President, Trustee 80 West Broadway Salt Lake City, Utah 84101 (2-- 13 2-2- 7) SUMMONS Civil No. In the District Court of Salt Lake County, State of Utah. ABOVE-NAME- D You are . DEFENDANT: hereby summoned and required to file an answer in writing to the attached complaint with the Clerk of the d Court, and to serve upon, or mail to 211 East Third South, Suite 203, Salt above-entitle- Lake City, Utah, a copy of said answer, within 20 days after service of this summons upon you. If you fail so to do, judgment by default will be taken against you for the relief demanded in said complaint, which has been filed with the Clerk of said Court and a copy of which is hereto annexed and herewith served upon you. This is an action for divorce. Defendants address 495 North 5th East Richfield, Utah Dated this 13th day of Jan- uary, 1976. ARMANDO IBANEZ, Attorney for Plaintiff 211 East Third South, Suite 203 Salt Lake City, Utah (2-1- 37 ALICE MARIE MORRISON, vs. 3) a Aa to Smith' a contention, not mentioned la the main opinion, that tha quea-tio- n of "waiver" waa not apoctally pleaded under Rule 5(c), Utah lifal of Civil Procedure, it laama obvioua that tha court entertained auch term aa the giving up af recognteed righta aa a canaaquauca of a valid, voluntarily indulged, modification of the agreement by the partial eignatory thereto, . and not ta tha employment af factor! incident to aa aatoppel ta pate. Aaiumlag a quoatioa of aaloppal warn Involved hero, Coomba ta tha 4th Dafonaa ta hia Aaawar, a peaking to tha queattaa . of failure to aaU a a van lota per month, inerted that "aa an affirmative dafoaaa, defendant allege! that he waa relieved" of inch obligation and that "ptatatiffo ara therefore aa topped" to puraua the matter, - which, ta turn, would a earn to eatiafy tha rule. NOTICE OF TRUSTEES SALE ruary, . The taolated lot traaaaction between a buyer and Coomba waa an except ion to the ordinary couraa of diapoaal of the lota , born of a diaagraemeat of tha partial, when doubt waa reaolved by tha lower court ta favor of KEITH MORRISON, 2-1- (Diiaentlnel Thia ii aa appeal from a judgment incident to a joint venture agreement having ta do with the promotion of a real eatata aubdiviaion. . I think the trial court ihould be affirmed in toto, and hence dineat from tha main opinion. teral! A consumer education program, Juatica Plaintiff, Defendant. THE STATE OF UTAH TO THE 3 3-- 5) if it's printing... dial 364-846- 4 |