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Corbett v. Fitzgerald

LEXSEE 709 p2d 384

Boyd CORBETT and Keith Gurr, individuals, and Utah
Ranchlands, a partnership, Plaintiffs and Appellants, v. Lee
A. FITZGERALD and Helen Fitzgerald, his wife, Perry G.
Fitzgerald and Carolyn S. Fitzgerald, his wife, et al.,
Defendants and Respondents

No. 19225

Supreme Court of Utah

709 P.2d 384; 1985 Utah LEXIS 936

November 1, 1985, Filed


COUNSEL:
[**1]

Byron L. Stubbs, Salt Lake City, Utah, for Plaintiff.

M. Dayle Jeffs, Provo; Robert B. Hansen, Salt Lake City; Michael J. Mazuran,
Salt Lake City; David B. Boyce and Milton A. Oman, Salt Lake City; Jon C. Heaton
and Gordon Strachan, Salt Lake City; Allen M. Swan, Salt Lake City; K. Thomas
Bowen, Salt Lake City, Utah, for Defendant.

JUDGES:
Timothy R. Hanson, District Judge, wrote the opinion. We concur: Gordon R.
Hall, Chief Justice, Christine M. Durham, Justice, I. Daniel Stewart, Justice,
Michael D. Zimmerman, Justice. Howe, Justice, having disqualified himself, does
not participate herein; Timothy R. Hanson, District Judge, sat.

OPINIONBY:
HANSON

OPINION:

[*385] This case, which is before the Court a second time, involves various
real estate transactions among the parties regarding property located in Cedar
Valley, Utah. The first appeal was from the original judgment entered by the
trial court following a trial where both plaintiffs' and defendants' reciprocal
claims were considered. The parties' status as appellants or respondents does
not change in this subsequent appeal. The first appeal was taken by plaintiffs
Corbett, Gurr, and Utah Ranchlands from judgments entered by the [**2] trial
court on May 17, 1982, and June 29, 1982. Plaintiffs appealed from judgments
for both defendants Lee A. Fitzgerald and Helen Fitzgerald (hereinafter
"defendants I") and defendants Perry G. Fitzgerald and Carolyn S. Fitzgerald
(hereinafter "defendants II"). Both appeals were dismissed with prejudice by
the Court on November 1, 1982. Corbett v. Fitzgerald, Utah, No. 18529, appeal
dismissed (Nov. 1, 1982); Corbett v. Fitzgerald, Utah, No. 18594, appeal
dismissed Nov. 1, 1982).

Subsequent to this Court's dismissal of the original appeals, defendants II
brought before the trial court a motion seeking an order requiring plaintiffs to
appear and show cause why the original judgment between plaintiffs and
PAGE 2
709 P.2d 384, *385; 1985 Utah LEXIS 936, **2

defendants II should not be amended and corrected. The nature of the requested
amendment and correction was to enter an award of money damages to defendants II
against plaintiffs rather than the original order and judgment of reconveyance
that had been entered by the trial court in its May 17, 1982 judgment. The
basis for the motion for an order to show cause was that the real property could
not be reconveyed inasmuch as plaintiffs had disposed of the property [**3] to
third parties. An order to show cause was issued, and several hearings were
held by the trial court. Following the hearings, the trial court found that
plaintiffs could not reconvey, and after receiving testimony regarding the value
of the properties, the trial court entered a money judgment in lieu of its
original judgment of reconveyance in favor of defendants II and against
plaintiffs.

In addition to the foregoing, the trial court at the conclusion of the
hearings entered certain orders clarifying the basis for its earlier June 29,
1982 judgment as to [*386] defendants I, but did not disturb the original
judgment.

In the present appeal, plaintiffs seek to resurrect the issues that were
raised in the first appeal. The assignments of error in plaintiffs' brief are
directed toward the original judgments, the same judgments from which plaintiffs
appealed in Corbett v. Fitzgerald, Nos. 18529 and 18594, supra. This Court
declines now to consider those original appeal issues, inasmuch as those issues
and their appeals were dismissed with prejudice. The order to show cause
hearings held subsequent to plaintiffs' original appeals to this Court do not
provide an occasion [**4] for plaintiffs to now appeal the results of those
hearings and include in the instant appeal those issues that were raised and
dismissed in the original appeals. The express ruling by this Court on all
issues raised by the prior appeals is binding upon the parties, the trial court,
and this Court. C & J Industries, Inc. v. Bailey, Utah, 669 P.2d 855, 856
(1983). Plaintiffs' claims of error as to the original judgments were dismissed
by this Court with prejudice. That dismissal constitutes an affirmance of the
original judgments, and they are not subject to further attack in a subsequent
appeal. n1

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n1 Rule 76(c) of the Utah Rules of Civil Procedure (repealed), in effect
during these appeals, reads as follows:

Effect of dismissal of an appeal. The dismissal of an appeal is in effect an
affirmance of the judgment or order appealed from, unless the dismissal is
expressly made without prejudice to another appeal.

See generally Prudential Federal Sav. & Loan Ass'n v. St. Paul Ins. Cos., 22
Utah 2d 70, 448 P.2d 724 (1968); Gammon v. Federated Milk Producers Ass'n, 14
Utah 2d 291, 383 P.2d 402 (1963); Davis v. Payne & Day, Inc., 12 Utah 2d 107,
363 P.2d 498 (1961); Helper State Bank v. Crus, 95 Utah 320, 81 P.2d 359 (1938).

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[**5]

The only question properly before this Court now is whether the actions of
the trial court following the order to show cause hearings, specifically the
trial court's order and judgment of April 19, 1983, were appropriate. Those
PAGE 3
709 P.2d 384, *386; 1985 Utah LEXIS 936, **5

actions and the amendment of the original judgment only deal with plaintiffs and
defendants II. Plaintiffs accepted the sum of $4,709.96 from defendants I and
released their judgment against them. That judgment is therefore not reviewable
on appeal. See Ottenheimer v. Mountain States Supply Co., 56 Utah 190, 193-94,
188 P. 1117, 1118 (1920).

We direct our attention to the nature of the trial court's order of April 19,
1983, and whether the amendment of the original judgment to allow an award of
money damages against plaintiffs was proper under the circumstances. We treat
the order as one issued in response to a motion brought under Rule 60(b) (7) of
the Utah Rules of Civil Procedure. This Court will reverse the trial court's
ruling only when there has been an abuse of discretion. See Larsen v. Collina,
Utah, 684 P.2d 52, 54 (1984).

Plaintiffs' brief on appeal contains no claim of error as to the trial
court's actions at the order to show cause [**6] hearings. This Court's
independent review reveals no error by the trial court. The original judgment
ordered reconveyance of the real properties at issue. Since those real
properties had been disposed of by plaintiffs to third parties, making it
impossible for plaintiffs to comply, an amendment of the original judgment in
favor of defendants II allowing money damages, rather than reconveyance, was
appropriate. The basis utilized by the trial court in determining an
appropriate money damages award is supported by the evidence and was well within
his discretion.

To the extent that the issues are properly before us, the trial court's order
is affirmed.

WE CONCUR: Gordon R. Hall, Chief Justice, Christine M. Durham, Justice, I.
Daniel Stewart, Justice, Michael D. Zimmerman, Justice.

Howe, Justice, having disqualified himself, does not participate herein;
Timothy R. Hanson, District Judge, sat.

   

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