Richards v. Baum

914 P.2d 719, 287 Utah Adv. Rep. 13, 1996 Utah LEXIS 20, 1996 WL 141793
CourtUtah Supreme Court
DecidedMarch 28, 1996
Docket940160
StatusPublished
Cited by23 cases

This text of 914 P.2d 719 (Richards v. Baum) 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
Richards v. Baum, 914 P.2d 719, 287 Utah Adv. Rep. 13, 1996 Utah LEXIS 20, 1996 WL 141793 (Utah 1996).

Opinions

HOWE, Justice:

Plaintiffs Lamar and Lynne Richards brought this action seeking a decree quieting title and an order requiring defendants William and Maxine Baum to specifically perform a contract to sell certain real property located in Utah County. The Baums counterclaimed, seeking a decree quieting title in their favor. Following a bench trial, the court quieted title in favor of the Baums. The Richardses appeal.

In March 1994, the Richardses filed a notice of appeal. Pursuant to rule 6 of the Utah Rules of Appellate Procedure, they also filed a cost bond with the court. However, they did not seek or obtain a stay of the trial court’s decree.1 In October 1994, the Baums conveyed the property to a third party. The Richardses do not contest the Baums’ assertion that the conveyance was part of an arm’s-length transaction.

The Baums have moved to dismiss this appeal, contending that it has become moot. The strong judicial policy against giving advisory opinions dictates that courts refrain from adjudicating moot questions. Merhish v. H.A. Folsom & Assocs., 646 P.2d 731, 732 (Utah 1982). Where the issues that were before the trial court no longer exist, the appellate court will not review the case. McRae v. Jackson, 526 P.2d 1190, 1191 (Utah 1974); Mikkelsen v. Utah State Tax Comm’n, 22 Utah 2d 438, 439-40, 455 P.2d 27, 27 (1969). “An appeal is moot if during the pendency of the appeal circumstances change so that the controversy is eliminated, thereby rendering the relief requested impossible or of no legal effect.” Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1043 (Utah 1983); accord Morgan v. Morgan, 854 P.2d 559, 562 (Utah Ct.App.), cert. denied, 860 P.2d 943 (1993).

The Baums contend that since the trial court quieted title to the property in them and the Richardses did not seek or obtain a stay, the Baums were free to treat the property as their own. Furthermore, the Baums argue that since they no longer have an interest in the disputed property, the requested relief of specific performance cannot be granted even if this court should reverse the trial court’s judgment. The Richardses, on the other hand, contend that despite the conveyance of the property, they could still pursue a remedy in damages on remand if this court were to decide that the trial court erred. These damages would presumably be proved at a later proceeding in the trial court if that court in its discretion allowed plaintiffs to amend their complaint to seek damages.

It is true that where a court of equity has jurisdiction over a controversy, it has discretionary power to award complete relief, including damages. Valley Mortuary v. Fairbanks, 119 Utah 204, 222, 225 P.2d [721]*721739, 749 (1950); Draper v. J.B. & R.E. Walker, Inc., 115 Utah 368, 374, 204 P.2d 826, 829 (1949); King Aircraft Sales, Inc. v. Lane, 68 Wash.App. 706, 846 P.2d 550, 555 (1993). In addition, where a plaintiff seeks specific performance of a contract and that relief is not available, the trial court may grant monetary damages for breach of contract. Wittick v. Miles, 274 Or. 1, 545 P.2d 121, 124 (1976); 81A C.J.S. Specific Performance § 202 (1977); 71 Am.Jur.2d Specific Performance § 214 (1973).

These rules of law would have permitted the Richardses to recover damages if they had prevailed on the merits at trial and found that the Baums were unable to specifically perform the contract. However, this court has taken a different approach when an appellant has failed to obtain a stay of the judgment and the remedy sought is thereafter rendered impossible. In Kellch v. Westland Minerals Corp., 26 Utah 2d 42, 484 P.2d 726 (1971), the plaintiff stockholders brought an action to require the defendant corporation to issue them free trading stock rather than investment stock. The trial court granted the relief sought, and the corporation appealed. The corporation took no steps to stay the operation of the judgment or to supply a supersedeas bond. The stockholders then sold and transferred the stock to third parties. This court held that it was “without power to grant any relief to the [corporation] and upon remand the court below would be equally powerless ” and dismissed the appeal as moot. Kellch, 26 Utah 2d at 43, 484 P.2d at 726 (emphasis added). Thus we rejected the notion, now advanced by the Richardses, that even though the property has been sold due to the appellant’s failure to obtain a stay or post a supersedeas bond, this court should decide the merits of the appeal and, if the appellant prevails, remand the case to the trial court, where the appellant could seek damages in lieu of the lost property.

This court has never held that when an appellant fails to obtain a stay and the property sought is conveyed in good faith to a third party, the appellant is entitled to return to the trial court to have damages awarded if successful on appeal. Neither the Richards-es nor the dissent has cited a single case where this took place. Nor could they: other jurisdictions that have addressed this issue have denied such relief. For instance, the Illinois Appellate Court has held that “in the absence of a stay, an appeal is moot if possession or ownership of specific property which is inextricably involved in the relief being sought on appeal has been conveyed to third parties.” Horvath v. Loesch, 87 Ill.App.3d 615, 43 Ill.Dec. 154, 157, 410 N.E.2d 154, 157 (1980) (citation omitted) (holding appeal moot on this basis). This holding is consistent with numerous other cases that held the appeal moot when the appellant failed to obtain a stay and the requested relief was subsequently rendered impossible. See, e.g., Masonry Arts, Inc. v. Mobile County Comm’n, 628 So.2d 334, 335 (Ala.1993) (public contract awarded and executed); Jones v. Mattkis, 89 Ill.App.3d 929, 45 Ill.Dec. 298, 300, 412 N.E.2d 649, 651 (1980) (real estate sold); Hazzard v. Westview Golf Club, Inc., 217 A.2d 217, 226 (Me.1966) (golf course sold); Basiliko v. Welsh, 219 Md. 602, 150 A.2d 220, 221 (1959) (mortgaged property sold); Wagner v. Boggess Coal & Supply Co., 94 N.E.2d 64, 66 (Ohio Ct.App.1950) (corporation dissolved); Westinghouse Elec. v. Grand River Dam Auth., 720 P.2d 713, 721 (Okla.1986) (public contract awarded and executed). Any other result would nullify the requirement that the appellant obtain a stay pending appeal.

The dissent attempts to distinguish Kellch and the above cases by stating that in each case, the action was moot because the only available remedy was extinguished while the appeal was pending. As previously noted, that was not true in Kellch, as damages could have been recovered on remand had this court thought it proper. Instead, we dismissed the action as moot.

The dissent reasons that if the Rich-ardses are successful on appeal, upon remand they could amend their pleadings to seek damages to be proved in a new court proceeding. Although the amendment of pleadings is sometimes permitted on remand, on appeal

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Richards v. Baum
914 P.2d 719 (Utah Supreme Court, 1996)

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Bluebook (online)
914 P.2d 719, 287 Utah Adv. Rep. 13, 1996 Utah LEXIS 20, 1996 WL 141793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richards-v-baum-utah-1996.