Tripp v. Vaughn

746 P.2d 794, 71 Utah Adv. Rep. 40, 1987 Utah App. LEXIS 594, 1987 WL 20650
CourtCourt of Appeals of Utah
DecidedDecember 2, 1987
Docket860129-CA
StatusPublished
Cited by9 cases

This text of 746 P.2d 794 (Tripp v. Vaughn) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tripp v. Vaughn, 746 P.2d 794, 71 Utah Adv. Rep. 40, 1987 Utah App. LEXIS 594, 1987 WL 20650 (Utah Ct. App. 1987).

Opinion

OPINION

GREENWOOD, Judge:

Lincove Partnership (“Lincove”) appeals from the trial court’s consolidation of case nos. 12,342 and 12,251, the denial of its motion to allow a counterclaim, bring in third party defendants and set aside a partial summary judgment, and the trial court’s admission of hearsay. We affirm in part and remand.

I.

The procedural background of this case is central to this appeal, and is, therefore, set forth in detail. Lincove executed a trust deed and trust deed note whereby it agreed to pay Basin State Bank $1,120,000 with interest for the purchase of a subdivision (“the property”) which collateralized the loan. The note provided that in the event of default, the entire sum would become due and payable. After the trust deed was recorded, Wayne Tripp and others performed work on the property. On July 27, 1983, Wayne Tripp filed an action in case no. 12,251 against Jeff Vaughn, Lincove, Basin State Bank and various lien-holders, seeking to foreclose his mechanics’ lien on the property. On August 29, 1983, attorneys Charles Abbott and Brent Jensen answered the complaint on behalf of Jeff Vaughn and Lincove. On September 22, 1983, Basin State Bank filed a foreclosure action against Lincove and others in case no. 12,342.

On November 18,1983, Basin State Bank filed a motion to consolidate the two cases. A notice of the hearing on the motion to consolidate was sent to Charles Abbott as attorney for Lincove on November 22, 1983. The motion was heard on November 30, 1983, and the court ordered the cases consolidated.

DeLoy Sallenback filed an answer in Basin State Bank’s foreclosure action on behalf of two Lincove partners on January 9, 1984. On December 5, 1984 the count granted partial summary judgment in favor of Wayne Tripp and others, against Lin-cove and general partners Richard L. Buchanan, Robert King and DeVerl Byington, finding they had failed to file or obtain a bond as required by Utah Code Ann. § 14-2-1. On December 27,1984, Kenneth Clarke, a law partner of Mr. Sallenback, attended a trial on behalf of Lincove, where the priority of the lienholders was litigated. Trial on the remaining issues was set for February 1, 1985. On January 15, 1985, Mr. Clarke filed an entry of appearance of counsel, a motion to bring in third party defendants and a motion to allow a counterclaim. Mr. Clarke filed an affidavit with his motions, citing his short period of time on the case, his heavy workload and his family problems as the reasons the court should grant the motions. On January 21, 1985. Mr. Clarke filed a motion to continue the trial. The trial was continued until March 19, 1985. On February 1, 1985, Lincove filed a motion to set aside the partial summary judgment in favor of Wayne Tripp.

On March 19, 1985, the court denied the motion to set aside the partial summary judgment, motion to bring in third party defendants and motion to allow a counterclaim, and the trial was held. At trial, the executive vice president of Basin State Bank testified that the accrued interest due on the $1,120,000 loan was $366,300.47. Lincove’s attorney objected to the testimony on the grounds that it was hearsay. The court allowed the testimony into evidence under the business records exception to the hearsay rule. At the conclusion of the trial, the court found that Basin State Bank had priority over all other liens and ordered foreclosure of the property.

Lincove raises the following issues on appeal: 1) whether Basin State Bank gave *797 timely notice of the consolidation of the cases to Lincove; 2) whether the court erred in denying Lincove’s motions to allow a counterclaim and to bring in third party defendants; 3) whether the court erred in denying Lincove’s motion to set aside the partial summary judgment; and 4) whether the court erred in admitting the bank officer’s testimony into evidence.

II.

Lincove’s first claim on appeal is that Basin State Bank failed to provide it with timely notice of the motion to consolidate and the nature of the hearing on March 19, 1985. Notice, to be adequate, must be reasonably calculated to apprise interested persons of the pendency of the action and afford them an opportunity to present their objections. Nelson v. Jacobsen, 669 P.2d 1207, 1212 (Utah 1983). The notice must “adequately [inform] the parties of the specific issues they must prepare to meet.” Id. at 1213.

On November 22, 1983, notice of the hearing on the motion to consolidate was sent to Charles Abbott as attorney for Lincove. Therefore, Lincove received timely notice of that hearing. Further, a notice of the March 19, 1985 hearing was sent to Mr. Sallenback as counsel for Lincove on March 6, 1985. The notice stated that the hearing would address the foreclosure of Basin State Bank’s trust deed. Lincove clearly received adequate notice of the hearing on March 19, 1985 and the issues it would be required to meet. Therefore, we find that Basin State Bank provided Lin-cove with timely notice of the motion to consolidate and the hearing on March 19, 1985.

III.

Lincove also contends that the court erred in denying Lincove’s motions to allow a counterclaim and to bring in third party defendants. Under the Utah Rules of Civil Procedure a compulsory counterclaim shall be filed and a permissive counterclaim may be filed within the twenty days allowed for filing the answer. Utah R.Civ.P. 12(a), 13(a) and (b). However, “[w]hen a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” Utah R.Civ.P. 13(e).

A defendant, as third party plaintiff, may serve a third party defendant with a summons and complaint and need not obtain leave to make the service “if he files the third-party complaint not later than ten days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action.” Utah R.Civ.P. 14(a). Further, Utah R.Civ. P. 15(a) provides that a party who has not amended his pleadings within the time provided for in the rule, may amend his pleading “only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.”

In interpreting Rule 15(a), the Utah Supreme Court has stated that “the granting of leave to amend is a matter which lies within the broad discretion of the court, and its rulings are not to be disturbed in the absence of a showing of an abuse of discretion resulting in prejudice to the complaining party.” Girard v. Appleby, 660 P.2d 245, 248 (Utah 1983). In Utah, the rule is “to allow amendments freely where justice requires, and especially is this true before trial.” Gillman v. Hansen, 26 Utah 2d 165, 486 P.2d 1045, 1046 (1971). The Utah Supreme Court applied this rule in Girard where the motion to amend was not made until the day of trial and proposed new and different causes of action.

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Bluebook (online)
746 P.2d 794, 71 Utah Adv. Rep. 40, 1987 Utah App. LEXIS 594, 1987 WL 20650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tripp-v-vaughn-utahctapp-1987.