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Show Page Four Utah Supreme Court Opinions Wide Open Spaces Offer Scenic Attractions ha vs bean completed by the deadline; that numerous other problems wera encountered after tha deadline which wars not tha responsibility of Heberts and over which ha had no control. IN THE SUPREME COURT OF THE STATE OF UTAH ooOoo vides the visitor with option packages on river running the mighty Colorado, the Green River. A special golf tour in essence provides you with a choice of golf courses from the spectacular alpine beauty of Tamarron in Colorado to fare-wain Arizona where giant cacti stand sentry. For those who cant quite break away from the bright lights, there is a tour that takes in the capital cities of all four states and in the process, the spectacular scenic and historic sights near each of them. Special fishing, boating and camping packages are offered on Lake Powell, whose 1800 miles of shoreline exceeds that of the Pacific shoreline of California. One of the tours being offered as part of the Four Most West package is called the Dominguez-Esca-lant- e tour. It follows the route taken by 2 Spanish priests who explored the Four Most West in 1776 as they sought routes to the missions of California. While the 13 original colonies were fighting for independence, Spanish priests were exploring the West. One special tour, Grat Southwest Adventure 76, is designed with comfort and luxury and is directed to senior citizens. This trip takes in the highlights of all four states. Guest ranches? There are more than 200 of them in the Four Most West. These include tennis ranches. The state of Arizona, Colorado, New Mexico and Utah touch borders just about 350 miles north of Mexico. Its gorgeous country, within its borders are more than 420,000 square miles of mountains, deserts, lakes, and rivers, comprising one sixth of the total land area of the 48 contiguous states. And while the wide open spaces offer such remarkable scenic attractions as Rocky Mountain, Grand Canyon, Zion and Bryce National Parks, only 2.8 per cent of the U.S. population lives in these four states. ' Result: cosmopolitan population enclaves (Denver, Phoenix, Salt Lake, Albuquerque) that tend to generate industrial dollars, while outside the cities tourism is one of g activities , the few these states can count on. With the energy crunch of the Leger Construction, Inc. , a corporation. Plaintiff and Appellant, -- - i , Leger assigns tea points on appeal, moat of which are simply by virtue of an interpretation of tha evidence antithetically to that of the trial court, to which interpretation we cannot subscribe, since era think thara la sufficient refutation of Leger's contention, that if believed by tha trial court, supports such findings. No. 13717 FILED May 21, 1976 Roberta, Inc. , a corporation, Defendant and Respondent, ys - dollar-generatin- . THE SALT LAKE TIMES FRIDAY, JULY 2, 1976 early 70s, these four states, heavily dependent on automobile tourism, decided that together they would look to the development of package tours. Under the direction of the federal governments Four Corners Regional Commission, the four states, calling themselves The Four Most West, set about design- ing package tours with broad interest. The first tours lire now being offered. It became apparent in the very beginning that the variety of these four states would be the biggest asset we would have to reckon One of the most unique tours of with, says Brad P. Smith, director four states is provided by a the of the Four Corners Regional Tour-i- s pilot based in Santa Fe, New Organization, the marketing arm Mexico. His name is Bruce Adams, of the program. Mr. Smith has a a displaced easterner, who flies hiw point. own special aircraft and your party .Together these 4 states have 10 across the four states to points of national parks, 37 national monuscenic and cultural interests off the ments, 32 national forests, 1,500 beaten track. Adams state parks, caqipsites, state and specially-designed monoplane may national historical sites and recrea- in seen at a trading post be setting tion areas, 2 grasslands, 20 wilderin a distant, remote corner of the ness primitive areas. Indian reservation. The four states are uniquely rich huge Navajo who Those with Adams will fly in scenic, historical and recreational under the sleep wing and dine on activity sites. cooked steaks an open fire at over A quick look at your map tells next the night at a fine the story. In Arizona, spectacular night; enjoy in Denver or Salt Lake. Grand Canyon heads the list. In hotel Visitors get a special treat when Colorado, Rocky Mountain National view the many national parks Park, In Utah, magnificent Lake . they monuments from Adamss and Powell reflects the red rock counlocation. try. And in New Mexico, its the birdseye influence of 17th century Spain at In a three hour flight with Santa Fe. Adams, one may cover portions of And in all 4 states, there are New Mexico, Utah, Arizona and members of 37 different Indian Colorado. Youll see incredible tribes and pueblos. The West still National Park where the lives in the Four Most West". Green and Colorado Rivers come ' The Four Cornes TourRegional together; next in view are the tall, ism Organization knew that variety green Rocky Mountains. The Con-- , would be a promotable plus. Offertinental Divide bisects the four ing the first tours in 1976 program states. After that, its possible to began one year earlier when Four look over the wing and view an Corners Regional Tourism Organi- Apache Indian resort below you. zation began structuring its tours And perhaps at the end of the with an eye toward interest, segflight, you find yourself in Scottsments. dale enjoying a snack of fine pate, The result is 13 different tour breads, and a German eiswein. The Four Most West, by nature categories, each of them specifically directed to a segment of tourism of the geography, offers a vast market. "Cultures of Contrast a array of ctivities. In one tour, you tour series offered by southwestern can get your fill of trail riding; in anthropologist. Dr. B. Alan Kite, another, its all by foot backpacking takes visitors among the Indians to into remote areas of wilderness. see portions of these cultures most .You can ride in a 19th Century people never get close to. College Pullman (completely restored) as credit is offered on these tours. The you travel along the sides of a emphasis from Dr. Kite is on the thrashing river or placid lake. cultural aspects of the Southwest There is fishing in a thousand lakes and how they hve blended into a and rivers. You can hunt big game, truly unique culture. Another tour, upland birds, or waterfowl. Golf "Outlaws, Railroads and Mining fifty different courses as part of one Camps," provides a fascinating trip package. Cook dinner and spend for the Western history buff or the the night in an outlaw cave. Watch persons intereted in railroading. Indian ceremonial dances. Visit the This trip takes the vacationer from inside of a Navajo hogan. Climb to the silver mines of the high Rockies ' the ruins of Anasazi clif dwelling to the arid country of Lost Dutch- built about 1100 AD. Spend days man fame. Other tours provide exploring the maze of canyons unique and interesting means of around Lake Powell, either houseseeing the highlights of the Four boat or a small but comfortable Most West, including the national launch. Tour Bryce; Grand Canyon, parks and monuments and the Zion, Canyonlands, and Rocky Indian tribes and pueblos. Another Mountain National Paks, ski cross tour package offers a variety of ski country or downhill; dine on Navajo vacations. Yet another tour pro fry bread or succulent filet mignon. Allan E. Mecham, Clerk United State! Fidelity and Guaranty Company, a corporation. Added Defendant. HENRIOD. Chief Juatlcet Appeal from a Judgment on Roberta1 counterclaim, ai subcontractor, under an agreement with Leger. The latter was the prime contractor on two public maintenance station jobs. Affirmed la part and reversed in part. No costs awarded. t Leger says that foe only way that Roberts could gel aa extension of tima was to ask for it in writing, when it "shall ba granted, whan it la, in the ludement of (Laser), not practical or impossible or because of unforeseeable causes beyond control and without fault or nagllganca on (Roberts') behalf, to complete said work in the specified tima (above causes including but not restricted to strikes, war, acts of God. . . , acts of another contractor . . . and adverse weather conditions. ) The facts that Leger failed to pay the balance on the contract, and filed this suit, and alleged in his complaint that Roberts failed to comply with tha contract, "despite (Leger's) repeated demands" upon him to do so, make It obvious that if Roberta had asked for aa extension. It would havs been an idle gesture and was unnecessary under tha principle that tha law will not require one to do a useless or impossible thing. As to Leger's objection that eyidanca that another similar job was squally delayed, was inadmissible, in many cases, this wall might ba true, 7 Legar cites no authority to support this point on appeal, however. The matter of admissibility largely depends on Identicalneas, similarity, or, on tha other hand, a stranger thereto, - governable largely by tha sound discretion of the trial court. The two Jobs on which Roberta was employed at Salt Lake City and Manila, Utah, wsrh about tha same kind of construction and plumbing, as was a third job at Lehl, Utah, that went to another subcontractor, - all three jobs having been put out to bid about tha same time. We saa no error in the trial court having admitted the avlden, particularly since one of Leger's wltnesses-whappeared to ba an expert, opened the matter upWnd made It a legitimate target for Leger obtained a bond from defendant U. S. F. k G. , running in favor of himself, laborers and materialmen. The contract with Roberts having to do with tha plumbing was to be completed by November 30, 1971. There was a clausa in tha contract providing for a liquidated damage payment for each day thereafter that tha construction remained incomplete. Also there was a provision that an extension of time could be granted if Roberts asked for it and if Leger, believing there were circumstances or unforeseeable causes beyond Roberts1 control and without fault or negligence on Roberts part, which circumstances Included acts of tha owner, other contractors, and adverse weather conditions. The court found there wera such circumstances. However,, Roberts neglected to asktfor auch extension. $50-a-d- Tha court also found tha following: That Leger testified ha was suing only for delay In laying radiant heating pads, claiming Roberts was slow in starting; also that the pads ware Installed by October 14, 1971, and tha con-cra- te floors pouredy tha end of October, when bad weather halted construction throughout November; that leaks ware found in tha system bacauaa of faulty valves furnished according to specifications (which Roberts had to follow); that such valves ware in tha walls, that were Lagers responsibility, and which ha put up, difficult to reach and repair, taking until December S, 1971 to accomplish, and pouring of concrete was delayed until December 29; that Leger had a work time exhibit that ha claimed reflected tha work was not diligently pursued, which was countered by Roberts data to the contrary; that tha tima factor was no greater than a third similar job with which Roberts had nothing to do; that Leger claimed that tha sola basis for his damages was delay in Installing the radiant heat pads; that there was no delay y In Installing tha pads; that there was not a preponderance of tha evidence that failure to complete tha work on timo "was due to tha foul! or negligence of defendant"; that the walls and roof, - Legars responsibility, - could not 1. Which finding Leger objected to, and which may have been somewhat Inaccurate as reflected in tha record, but appears to have been a factor of substantial urgenca by Lager as to the nature and extant of claimed damages, but at tha same time not such as would call for reversal. 2. To which finding Legar ohjacted on the ground that th is being a contract, fault or negligence of him who breaches it is not tenable as a defense (Willi-Sta- n, Contracts 3d Ed. 2, Sec. 1290). Such finding may be inarticulate but certainly failure to comply with Us tarma is the letter's fault and may be negligence, and the objection, in our opinion, is one of semantics. Tha record is so diffused with evidence of different complexion that to believe and hold that thara era sufficient facts reflected and this being so, under tha therein, that If believed, supported the findings, ruins on appeal we affirm the judgment, 1 - except that for attorney's feas, which la another matter. we are constrained ' As to the award of attorney's fees, that part of tha judgment la reversed. In tha original judgment no attorney's fass were awarded. They were awarded on motion to amend. Thera was nothing in tha contract that mentioned entitlement to attorney's fees in case of suit by either party, and it is obvious that the parties did not intend or axpset that aither would be entitled thereto in tha event either filed suit thereon. Wa have said more than once that a litigant cannot pray for attorney's fees unless they ara provided for la a contract, or by statuta. Wa think foal In tha latter case, one entitled, in fairness, should make his claim known in hi s pleadings. That was not done in this case and no one has claimed or cited any authority here that he must or must aot do so. Albeit ere say In fairness this should ba dona wa need not and do not decide that point. Wa think, however, that because of the circumstances and naturb of this case, and the factual contradlctionq that conceivably could have resulted In a different conclusion, tha defendant, who did not sue in tha first instance fpr tha bal-- I anee he claimed was due him,' but counterclaimed therefor, should be held to a 3. Nokaa v. Continental M. k M. Co.. 6 Utah 2d 177, 3M P.2d 954 (1957); v. Hendrickson, 27 Utah 2d 251, 495 P.2d 26 (1972); Staples v. Weyher, Hardy 26 Utah 2d 3S7, 490 P.2d 330 (1971); Lynch v. MacDonald, 12 Utah 2d 427; 367 P. 2d 464 (1962). 4. Holland v. Brown. 15 Utah 2d 422, 394 P.2d 77 (1964); Horman-v- . Lloyd, 21 Utah 2d 112, 499 P.2d 124 (1972): Hawkins v. Perry, 123 Utah 16, 253 P.2d ' 372 (1953). No. 13737 . -- 2- , - high-winge- d, . Can-yonlan- ds preclse accountability to tha wording of the statute which almost obviously he employed as an afterthought, since he did not roly on the statute in his pleadings before the original judgment was entered, didn't call tha court's attention to it until after the judgment was entered, and only did so for tho first time just one day before his time for filing a motion to amend expired, whence ha made claim. under tha statute. Withal that, tha award for attorney's IN THE SUPREME COURT OF THE STATE OF UTAH ooOoo Mary Busianis, Plaintiff and Respondent, foes must ba reversed on a perhaps more substantial and specific basis. Rule 54(d)(2), Utah Rules of Civil Procedure with respect to "Coats," provides that one claiming them must, "within five days" af tar judgment, sarva the other party and file with tha court a verified memorandum of items. Roberts did not Include any attorney's teas In bln cast bill wltbta tbn fiva-dprescribed period, - and could not havs done so because tba original judgment awarded aone. Ha sought the fees nine days after the judgment sad four days after tha required coat bill filing date. Tba attorney's fees were incorporated In the iudsment and that is tha present state ef tha record. The Judgment ' cannot be amended again on motion because it is loo lata. Aa a matter of tact tha Judgment for attorney's fees is Invalid since there was nothing in tha contract providing for auch an award. ay 1, Beneficial Homes, Inc. . a Utah corporation., and Ronald Gibb, Defendants and Appellants. Allan E. Mecham, Clark ftENRlOD, Chief Justice: Appeal from a judgment oa a promissory note. Affirmed with costa to plaintiff. Utah Coda Annotated 1953, which This action has to do with tha sale of lots by plaintiff to defendants in exchange for an installment promissory note. dearly reads aa In any action brought upon Attorney's fees allowed. either of tha bonds provided herein, or against tha public body failing to obtain the delivery of the payment bond, the orevailini party . upon each separate cause of action, shall recover a reasonable attorney's fas to be taxed as costs. As to I): Tha record reflects that Gibb had given checks that had been credited on one project, which conclusion eras evidenced oa tho chocks ihamselvaa, and were not allocable to tha transaction, tba subject of this legislation. Tha judgment for costa is quite inconsistent with foe terms of tha conIn derogation of the statuta. Tha case is remanded with Instructions to vacate tha award for attorney's fees. Other matters raised oa appeal need no treatment, being moot, la the light of what we say here. tract and completely WE CONCUR: A. H. Ellett, Justice J. FILED May 24. 197ft Defendants say the trial court arred 1) in excluding certain evidence of damages, 2) flling to credit a check assarted to ba part payment on the note, 3) recognising a stipulation of tha parties because allegedly it was ambiguous, and 4) in approving an asserted unproved, unreasonable attorneys fca. Tha only basis upon which Roberts could have been awarded tha fees under the statuta was to invoke It and to invoke lt it would have to ba oa tha basis of expense of litigation, - or "costs, " - and not as aa outgrowth of a written contract. Tha statute involved is Title follows: No. 14257 Allan Crockett, Justice As to 2): At tha initial hearing on June f , 1975, the plaintiff, by counsel, and defendant Gibb,' personally stipulated that Judgment might be entered according to tha prayer of plaintiff's complaint, with aa opportunity, however, given to defendant, Gibb, by July 14 (about seven weeks hence), to produce evidence.- ef any credit to which ha might ba entitled, which had not been conceded- Ha offered evidence of claimed credit, which the trial court held inadmissible, as being inapplicable, which hold ing" .was folly Juati-fle- d. Even so, tha court, having entered judgment as prayed, nonetheless gave Gibb another week, until July 21, to produce forthar evidence that Gibb suggested he could procure. He foiled to show up at this last of a aeries of hearings and opportunities to show a defense, and there is no merit, under the circumstances that it was error to burden Qibb with a showing of facts for which ha asked permission to obtain. As to 3): Tha stipulation may have been a bit inarticulate, but it was perfectly understandable and was obviously allowed at Gibb's behest and for his benefit, so that In fairness he cannot attack it now. R. L. Tuckatl, Justice . . " "J i t7 " ; j jj.;1.:,; r-.'- J As to 4): Tha amount found dne on the note was $6,661, and the fee awarded was thereof, - which was not unreasonable, particularly be- - I r causa the service In this case substantially was la excess of the ordinary service beamount havs in an to , in reducing a promissory note to judgment 4 admittedly come in default, although unsuccessfully questioned to soma extant. Gibb t ( P amount stipulated that Judgment could be entered as prayed, which included tha of attorney's fees to ba awarded, subject only to the granting of time to present ,v I. Ij proof of credits claimed, and Gibb's failure to respond precludes him from s contenting the same. one-thi- rd Richard J. Maughan, Justice Openahaw v. Opeaahaw, 60 Utah 9, 12 P.2d 364 (1932): "A litigant claiming his costa and to whom tha trial court has awarded costs, la order to recover the same from the adverse party, must file his cost bill within tha tima prescribed by the statute. Houghton, at al. v. Barton, 49 Utah 611, 165 P, 471 (1917); Chacketta v. Coiling! (Utah), I P.2d 950, 75 A.L.R. 1393." ' 5. -- 3- No. 13737 . ... WE CONCUR: A. H. Ellett, Justice J. R. L. Tuckett, Justice Richard J. Maughan, Justice Alina Crockett, Justice Farm Bureau Chief Asks Cooperation The head of Utah's largest farm organization this has called on the state's fishermen to help continue the cooperation between sportsmen and food producers that has been built up in past years. Speaking for 13,225 member families of the Utah Farm Bureau Federation, President Elmo W. Hamilton asked sportsmen to help prevent the damage to farms and ranches that sometimes accompanies the fishing and hunting seasons. Many folks don't realize that the ' . land is protected by law even if it isn't posted with No Fishing' or No Hunting signs, the farm leader explained. He referred to wording on the fishing and hunting licenses which' reads: 'This license does not auth- -' orize you to trespass on private property, whether posted or not, without the permission of those in control thereof." Farmers are outdoorsmen themselves," Hamilton said, and unless they have a real unhappy exper ience with a few thoughtless people, they're going to let fishermen and hunters cross their property." But a small group of unthinking people can spoil things for the majority by causing damage to gates, fences, livestock, crops or other farm items, he added. Careful sportsmen should encourage their friends to be considerate for property owners, Hamilton explained, so more farmers will open their property for hunting and fishing. ' J(- .j - ..'i i S. 1 -- 4 . |