Lundberg v. Backman

Utah Supreme Court

Lundberg v. Backman

337 P.2d 433, 9 Utah 2d 58, 1959 Utah LEXIS 192

CourtUtah Supreme Court

DecidedMarch 31, 1959

DocketNo. 8896

StatusPublished

Cited by3 cases

This text of 337 P.2d 433 (Lundberg v. Backman) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lundberg v. Backman, 337 P.2d 433, 9 Utah 2d 58, 1959 Utah LEXIS 192 (Utah 1959).

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Opinions

JONES, District Judge.

Action against attorney to recover damages for alleged negligence in defending a lawsuit. A motion for summary judgment was granted and an appeal taken. We hold •that fact questions precluding summary judgment were presented. Reversed.

If the affidavits filed by the parties, in support of and against the motion, .are to be conclusive on the question presented, one can readily conclude that no justiciable issue of fact remained to be resolved. But our Rule 56 provides that not only the affidavits but the pleadings, admissions, and depositions (where appropriate) must be considered by the court in making its determination. We hold, therefore, that as against the general allegations of negligence contained in the complaint, the facts set out in the affidavits cannot be construed as totally superseding the pleading nor' as containing such conclusive admissions of fact as to necessitate a summary judgment of dismissal.

By this holding we are not determining that this case must now be submitted to the trier of the facts on the merits. It may well be that after an answer is filed, and such other proceedings had as our Code contemplates, the trial court may conclude that no real controversy of fact, as to liability, remains. That question can be resolved at that time, and nothing herein contained should be construed as a predetermination in whole or part of such matter.

In view of the fact that the organized bar has seen fit to interest itself in this case, a further comment may be appropriate. Had the prevailing party in the previous action (which respondent “lost”) seen fit to comply with the provision of Rule 77(d) and deposit an additional' copy of the judgment obtained with the clerk of the court for service by mail on respondent, it is probable that the motion for' a new trial would have'been filed in time [60]*60and, no doubt, the instant action never commenced. It is obvious that unless our practitioners comply with this important rule in contested cases, other attorneys will be found representing themselves, instead of clients, in negligence actions.

WADE and McDONOUGH, JJ., concur. WORTHEN, J., concurs in the result.

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JONES, District Judge.

Action against attorney to recover damages for alleged negligence in defending a lawsuit. A motion for summary judgment was granted and an appeal taken. We hold •that fact questions precluding summary judgment were presented. Reversed.

If the affidavits filed by the parties, in support of and against the motion, .are to be conclusive on the question presented, one can readily conclude that no justiciable issue of fact remained to be resolved. But our Rule 56 provides that not only the affidavits but the pleadings, admissions, and depositions (where appropriate) must be considered by the court in making its determination. We hold, therefore, that as against the general allegations of negligence contained in the complaint, the facts set out in the affidavits cannot be construed as totally superseding the pleading nor' as containing such conclusive admissions of fact as to necessitate a summary judgment of dismissal.

By this holding we are not determining that this case must now be submitted to the trier of the facts on the merits. It may well be that after an answer is filed, and such other proceedings had as our Code contemplates, the trial court may conclude that no real controversy of fact, as to liability, remains. That question can be resolved at that time, and nothing herein contained should be construed as a predetermination in whole or part of such matter.

In view of the fact that the organized bar has seen fit to interest itself in this case, a further comment may be appropriate. Had the prevailing party in the previous action (which respondent “lost”) seen fit to comply with the provision of Rule 77(d) and deposit an additional' copy of the judgment obtained with the clerk of the court for service by mail on respondent, it is probable that the motion for' a new trial would have'been filed in time [60]*60and, no doubt, the instant action never commenced. It is obvious that unless our practitioners comply with this important rule in contested cases, other attorneys will be found representing themselves, instead of clients, in negligence actions.

WADE and McDONOUGH, JJ., concur. WORTHEN, J., concurs in the result.

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Bluebook (online)

337 P.2d 433, 9 Utah 2d 58, 1959 Utah LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lundberg-v-backman-utah-1959.

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