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Painewebber, Inc., a Delaware Corporation, Kidder Peabody and Co., Inc., a Delaware Corproation, and Van Francis Dunn, Jr., and Individual V

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Painewebber, Inc., a Delaware Corporation, Kidder Peabody and Co., Inc., a Delaware Corproation, and Van Francis Dunn, Jr., and Individual V Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 2000 Painewebber, Inc., a Delaware Corporation, Kidder Peabody and Co., Inc., a Delaware Corproation, and Van Francis Dunn, Jr., and individual v. The Robertson Faimly Trust, by and through James L. Robertson, Trustee : Reply Brief Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca2 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Brian W. Steffensen, Mark A. Riekhof; attorneys for appellants. Byron J. Benevento, Robert W. Payne; Snell, Wilmer; attorneys for appellee. Recommended Citation Reply Brief, Painewebber v. Robertson, No. 20000043 (Utah Court of Appeals, 2000). https://digitalcommons.law.byu.edu/byu_ca2/2579 This Reply Brief is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. IN THE UTAH COURT OF APPEALS PAINEWEBBER, INC., a Delaware Corporation, KIDDER PEABODY & CO., APPELLANT'S REPLY BRIEF INC., a Delaware Corporation, and VAN FRANCIS DUNN, JR., an individual, Case No. 20000043-SC Plaintiffs/Appellees, vs. Nature of Proceeding: Appeal from the Third Judicial District The ROBERTSON FAMILY TRUST, by and Court, Salt Lake County, State of Utah through JAMES L. ROBERTSON, Trustee, Honorable Sandra N. Peuler, Presiding Defendant/Appellant. Argument Priority Rule 44 BRIAN W. STEFFENSEN (3092) BYRON J. BENEVENTO MARK A. RIEKHOF (8420) ROBERT W. PAYNE Steffensen Law Office Snell & Wilmer 2159 South 700 East, Suite 100 15 West South Temple, Suite 1200 Salt Lake City, Utah 84106 Gateway Tower West Telephone: (801) 485-3707 Salt Lake City, Utah 84101 Attorneys for Defendants/Appellants Telephone: (801) 257-1900 The ROBERTSON FAMILY TRUST, by and Attorneys for Plaintiffs/Appellees through JAMES L. ROBERTSON, Trustee PAINEWEBBER, INC., a Delaware Corporation, KIDDER PEABODY & CO., INC., a Delaware Corporation, and VAN FRANCIS DUNN, JR., an individual FILED Ut,«h Court Of AUfWtle Defendant/Appellant Requests Oral Argument and a Published Opinion JUL 1 0 2000 Julia Q'Aleeandro Clerk of th« Court IN THE UTAH COURT OF APPEALS PAINEWEBBER, INC., a Delaware Corporation, KIDDER PEABODY & CO., APPELLANT'S REPLY BRIEF INC., a Delaware Corporation, and VAN FRANCIS DUNN, JR., an individual, Case No. 20000043-SC Plaintiffs/Appellees, vs. Nature of Proceeding: Appeal from the Third Judicial District The ROBERTSON FAMILY TRUST, by and Court, Salt Lake County, State of Utah through JAMES L. ROBERTSON, Trustee, Honorable Sandra N. Peuler, Presiding Defendant/Appellant. Argument Priority Rule 44 BRIAN W. STEFFENSEN (3092) BYRON J. BENEVENTO MARK A. RIEKHOF (8420) ROBERT W. PAYNE Steffensen Law Office Snell & Wilmer 2159 South 700 East, Suite 100 15 West South Temple, Suite 1200 Salt Lake City, Utah 84106 Gateway Tower West Telephone: (801) 485-3707 Salt Lake City, Utah 84101 Attorneys for Defendants/Appellants Telephone: (801) 257-1900 The ROBERTSON FAMILY TRUST, by and Attorneys for Plaintiffs/Appellees through JAMES L. ROBERTSON, Trustee PAINEWEBBER, INC., a Delaware Corporation, KIDDER PEABODY & CO., INC., a Delaware Corporation, and VAN FRANCIS DUNN, JR., an individual Defendant/Appellant Requests Oral Argument and a Published Opinion A APPe, P - '^ ~p„seds^dIsl;me''' , * ^^^^:kAsAM^ , C Ca, yD reCtedB ' ^^earcwnstocesDot ' ' ^—C„urt 3 ancesDoctrme Applies.. '3 • ^^^ 4 ed71,eMoti CONCLUSJON »»ToRec„nsider 5 5 Ki.\sAMatterfi£U3V A standardlsilfiteaayeiisAm- .~-«—«-*-"'-"„,„„,„>—«-—• +v,ic is without question a UnderUtahRu1esofCWilPtocedure>et snotttiggeKdbytheday ^ctuanysignedb^udge.T ,,.«..»—*- perfect*. Judge Penned the P ^ wvenWally signed on p^sedo.e^do^fo.s-enO, eprovidedbystaWtetoflle , ,009 Thereafter, andwithmthe30 othestatusofthe Februarys, 1999. rtthe clerk of the Court regardmg the s<a .WsCourttohoWthatthetimeframeforflUnga .ppeUanUnessence,.—^urt ^ , __ order is subrrutieu, ^ceofAppea-Wnstorunwhen the ^efrante begins to nmwhentheorderisactua«yslgned,1t1sc C WdUrin ° ««*3<,dayperiod A PPeiIeeco„tendsthatth cmireiy new standard r+ -•--hlcllapanymustfi)ea •*""-—*,fc30% Bwhw °—submittedtothe " *"^^-.fc^^. Urt' as opposed to when it ;* he '•»~<eneglectduetothefa ^—"~dbeconsidered P-iSi„„whl,h """""""^'^abCish^C^ -^fil.ngdeadlinestn. A -rdingt0Appe,leesthedateth ««**«„*,. ^^issionofthepfopos -—*,*edisimIevant Not;ce S ' ^-Uoputcounse)onnoti.cethM(he frame to file the a notice of appeal has begun. However, given the structure of procedures set forth for a party to submit a proposed order, with the opposing party given the opportunity to object thereto, and having the order entered by the Court at a later date, such a standard is untenable. Put simply, despite the date of the submission of an order, a party is entitled to the statutorily allowed time frame from the date the order is actually entered to file a notice of appeal Any other holding must be error as a matter of law. In the case at hand, Appellant contacted the Court within the 30 days allowed to file a notice of appeal. At that time, Appellant was provided incorrect information which it relied on to its detriment. But for the incorrect information, which was obtained from the Court within the 30 days permitted to file an appeal, the Notice of Appeal could have and would have been timely. B. The Trust's Motion Was Specifically Directed By The Supreme Court Appellee argues that the Appellate Court may affirm a ruling on any grounds presented to the District Court, whether relied upon by the District Court or not. In this regard, Appellee argues that the underlying Motion for Extension of Time to File Appeal was untimely itself, and therefore the Court may elect to affirm the decision on the grounds that the Motion was untimely. While Appellee's argument may technically be true, given the facts of this case, the argument flies in the face of logic. Why would Appellant file a Motion requesting an extension of time to file an appeal it believed was 3 timely filed? Further A , Urtiler'APPeIlant was actuall d' re 0 60 ^ —anexten,onoftime ^l: ;^ —-nr,^, uriJethe Ann „ Appeal. APpeiJeeSspecificaJlysetfo^ Wall Supreme r„ „ '°n for su™nary disno,;,- . n Plant's filed fteir Motion for Ext . "^ ° *"^3, ,999, OnOfTime,0Fi,eAPPea """-A- -e«meor ''^^ d P,ai ffs —aiis^,. Def "" ">otio„forsummaiy ^«onoverthecase Def „ e - ^feafe^medxlies wirt, tll „. em0,,0nWaS —. APPe„mtwas -^^S,ogiCa,and — —.ensionoftill^^^*—^^ A re eW aPPea «*«™ to* " * '' ™» » P-oiseiy ^ action ^^ntbear^en.^^ ^PPelfee,„a„ywaydJrainisiiesAppei(an(>s 195). 'Order of the Utah Supreme Court dated June 1, J"9 (emphasis added) (Index No. argument that the unique circumstances doctrine applies to the facts of this case. Indeed, the cases cited by Appellee support Appellant's position. It is "in the best interests of justice" to allow this appeal. The unique circumstances of relying directly on information provided by the Court, to the detriment of Appellant, demonstrate that not only does justice suggest the appeal should be allowed, justice demands it should be allowed. D, The District Court Improperly Denied The Motion To Reconsider As set forth in Appellant's opening brief, the denial of the Motion to Reconsider was an abuse of discretion by Judge Peuler. The facts present in this case clearly mandated that the Court permit the Appeal and grant the Motion for an Extension of Time to file the appeal. Judge Peuler's refusal to do so, when presented with the relevant facts and law, was an abuse of discretion. CONCLUSION For the foregoing reasons, and the reasons set forth in Appellant's opening brief, Appellant respectfully requests that this Court reverse the findings of the District Court and remand this case to the District Court with instructions to permit the Robertson Family Trust leave for an extension of time to renew their Appeal. DATED this 6th day of July, 2000 Brian W. Steffen&n Mark A. Riekhof Counsel for Appellant 5 CERTIFICATE OF MAILING I hereby certify that on the (^ day of ^u U , 2000, that I caused a true and correct copy of the foregoing instrument to be & _ mailed, postage prepaid; and/or hand delivered by ___ fax and/or by m courier, to: Bryon J. Benevento Robert W. Payne Snell & Wilmer 15 West South Temple, Suite 1200 Gateway Tower West Salt Lake City, UT 84101 FAX 257-1800 1 ±rfc \&ca Tu)!, h.i in J\A~ 6 .
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