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George M. Baker and Della A. Baker V Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 1987 George M. Baker and Della A. Baker v. Western Surety and Craig A. Papa-Dakis : Brief of Respondent Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca1 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. John N. Braithwaite; Hanson, Dunn, Epperson and Smith; attorneys for respondent. John D. Parken; Parken and Keck; attorney for appellant. Recommended Citation Brief of Respondent, George M. Baker and Della A. Baker v. Western Surety and Craig A. Papa-Dakis, No. 870267 (Utah Court of Appeals, 1987). https://digitalcommons.law.byu.edu/byu_ca1/499 This Brief of Respondent 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. TAH DCUMENT FU I 10 F APPEALS OF THE STATE OF UTAH OCKET HO. ffPffiffiftogflA GEORGE M. BAKER and DELLA A. BAKER, Plainti ffs/Appellants and Cross-Respondents, v. WESTERN SURETY COMPANY, Case No: 870267-CA Defendant/Respondent and Cross-Appellant, and Priorjity 14(b) CRAIG A. PAPA-DAKIS, individually and d/b/a "AUTO-MART"; and AUTO-MART, Defendant. BRIEF OF RESPONDENT/CROSS-APPELLANT APPEAL FROM AN ORDER OF THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH, THE HONORABLE HOMER F. WILKINSON JOHN N. BRAITHWAITE HANSON, DUNN , EPPERSON & SMITH Attorneys for Defendant/Repondent and Cr oSs-Appellant Western Surety Company 650 Clark Learning Office Center 175 South West Temple Salt Lake city, utan b4iul Telephone (GO**\): JOHN D. PARKEN PARKEN & KECK 9 Exchange Place Suite 808 Salt Lake City, Utah 84111 Telephone: (801) 596-2920 OCT-- h IN THE COURT OF APPEALS OF THE STATE OF UTAH GEORGE M. BAKER and ) DELLA A. BAKER, Plaintiffs/Appellants ! and Cross-Respondents, ! WESTERN SURETY COMPANY, Case No: 870267-CA Defendant/Respondent 3 and Cross-Appellant, 1 and I • Priority 14(b) CRAIG A. PAPA-DAKIS, I individually and d/b/a ! "AUTO-MART"; and AUTO-MART, Defendant* BRIEF OF RESPONDENT/CROSS-APPELLANT APPEAL FROM AN ORDER OF THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH, THE HONORABLE HOMER F. WILKINSON JOHN N. BRAITHWAITE HANSON, DUNN, EPPERSON & SMITH Attorneys for Defendant/Repondent and Cross-Appellant Western Surety Company 650 Clark Learning Office Center 175 South West Temple Salt Lake City, Utah 84101 Telephone: (801) 363-7611 JOHN D. PARKEN PARKEN & KECK 9 Exchange Place Suite 808 Salt Lake City, Utah 84111 Telephone: (801) 596-2920 TABLE OF CONTENTS Page TABLE OF AUTHORITIES K iii JURISDICTION 1 NATURE OF THE PROCEEDINGS w 1 STATEMENT OF ISSUES PRESENTED FOR REVIEW 2 DETERMINATIVE STATUTES AND RULES 2 STATEMENT OF THE CASE f 4 A. Nature of the Case t 4 B. Course of Proceedings and Statement of Facts.... 7 SUMMARY OF ARGUMENT 15 ARGUMENT POINT I. THE TRIAL COURT'S RULING UNDER RULE 60(b) SHOULD ONLY BE REVERSED IF THE COURT ABUSED ITS DISCRETION, AND ITS DECISION SHOULD BE AFFIRMED IF IT IS SUSTAINABLE ON ANY LEGAL BASIS* 16 POINT II. RELIEF FROM JUDGMENT UNDER RULE 60(b) WAS PROPERLY GRANTED 18 A. The Motion For Relief From Judgment Was Properly and Timely Filed 18 B. The Trial Court Had Jurisdiction To Grant Relief Under Rule 60(b) and Did Not Abuse Its Discretion in Granting Relief Pursuant Thereto as Numerous Grounds Support Its Decision....... 19 1. The Trial Court Had Jurisdiction To Entertain a Motion Under Rule 60(b) and to Enter an Order Granting Relief Pursuant Thereto 20 2. Numerous Grounds Existed For Granting Relief Pursuant to Rule 60(b) and the Trial Court Did Not Abuse Its Discretion in Granting Such Relief 23 Page POINT III. THE BAKERS' CONTENTION THAT NO GROUNDS EXISTED FOR RELIEF UNDER RULE 60(b) AND THAT NO GROUNDS EXISTED FOR LIMITING THEIR JUDGMENT TO THE INTERPLEADED FUNDS IS BASED ON A MISUNDERSTANDING OF WESTERN SURETY'S OBLIGATION ON THE BOND AND A MISUNDERSTANDING OF INTERPLEADER 36 CROSS-APPEAL POINT I. THE DENIAL OF THE MOTION TO STAY PROCEEDINGS WAS ERROR IN LIGHT OF THE PENDING INTERPLEADER ACTION AND SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED OUTSIDE OF INTERPLEADER 42 POINT II. WESTERN SURETY'S CROSS-APPEAL WAS TIMELY AND PROPER UNDER THE APPLICABLE RULES 44 CONCLUSION 48 -ii- TABLE OF AUTHORITIES Page I \TOTES AN 11 MILES ( I TEU |ii ,jl hi. I | • 1 I-I ilQPfi Turn ^nnp„ 1 I Ml,3b, J. TO , m III ,ih i OI1I Mm II ' Ml il Ml , J u | I- I , , I i " ,ih Code Ann. §78-2a-3<2)" ' U987> ' Rule 22, Utah Rules of Civil Procedure , . „ , J , «. >,. u ?.B, 34,41,42, 43 Hn 1 n VI "tTh Rn'r- r4- "V" ' " • --r M- i Kuli hi) la I, III ill h'uLes of Civil Procedure I'a,21),21 K.jle 60 (I:'1, ' .' .'Jules of Civil ": cedur*- . .', ,', I3,]4.]t- 16,17 , 18,19,20,21 ,22,23,29,30,31,32,33,3b,3b ,42,4S ,46,48,40 Former Rule I M llrah Piilo--: ol rj vi 1 Procedure (1984). I 11 ii i i iii pftiluLt IJL oOt. kidre. i l.iih I (J I Ml ih Rules of Appellate Procedure 12,22 i1 11 Mi h Pnl i • ' i'i|i|t« I ' i- ' i l\iili' Mil), Utuli UuJcb ut Appellate Procedure. Rule 37(al, '".ill Mile:; or Appellate Procedure 14,23,46 Rule 'MM III ih MiM I i\i |IH Mil I i lin 1 I , i J , Jh CASES CITED Airkem Intermountain, Inc. v. Parker, 30 Utah 2d 65, 513 P.2d 429 f«- Allphin Realty, Inc. v. Sine, <oc v.2$ fab fntah 107^ ^ ^- Board of Ed. v. Superior Court, 97 Cal. App.3d 977, 159 Cal. Rptr. 265 Cal. Ct. Appp. 1979) -iii- Page Brimhall v. Mecham, 27 Utah 2d 222, 494 P.2d 525 (1972) 33,34 Clugston v. Moore, 655 P.2d 29 (Ariz. Ct. App. 1982) 39 Crosland v. Peck, 738 P.2d 631 (Utah 1987) 47 Dennis Dillon Oldsmobile, Inc. v. Zdunich, 668 P.2d 557 (Utah 1983) 36,37 Fackrell v. Fackrell, 740 P.2d 1318 (Utah 1987) 17 Fidelity & Deposit Co. of Md. v. Santa Monica Fin. Co.? 6 Cal. Rptr. 213 (Cal. Ct. App. 1960) 29,31,35,41,A-60 Goodsel v. Department of Business Regulation, 523 P.2d 1230 (Utah 1974) 17 Ketchum Coal Co. v. Christensen, 48 Utah 214, 159 P. 541 (1916) 42 Limb v. Federated Milk Producers, Assoc, 23 Utah 2d 222, 461 P.2d 290 (1969) 17 Maryland Casualty Co. v. Glassell-Taylor & Robinson, 156 F.2d 519 (5th Cir. 1946).... 35 Percival Const. Co. v. Miller & Miller Auctioneers, Inc., 532 F.2d 166 (10th Cir. 1976) 26 Security Mut. Cas. Co. v. Century Cas. Co., 621 F.2d 1062 (10th Cir. 1980) 31 State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523 87 S.Ct. 1199, 18 L.Ed.2d 270 (1967) 28 Surety Co. of the Pacific v. Piver, 149 Cal. App. 3d Supp. 29, 197 Cal. Rptr. 531 (Cal. App. Dept. Super. Ct. 1983) 27,28,29,31,35,41 Taylor National, Inc. v. Jensen Bros. Construction, 641 P.2d 150 (Utah 1982) 41,42 -iv- Page Terry's Sales, Inc. v. Vander Veur, 618 P.2d 29 (Utah 1980) P 25 Western Surety Co. v. Childers, 372 P.2d 214 (Okla. 1962) 38 OTHER AUTHORITIES CITEp 3A Moore's Federal Practice 1122.10, p.22-99 26 7 Moore's Federal Practice 1(60.25 [2], p.60-225 33,44 11 C. Wright & A. Miller, Federal Practice and Procedure, §2871 (1973) 46 -v- IN THE COURT OF APPEALS OF THE ST^TE OF UTAH GEORGE M. BAKER and DELLA A, BAKER, Plaintiffs/Appellants and Cross-Respondentsf v. WESTERN SURETY COMPANYr Case No: 870267-CA Defendant/Respondent and Cross-Appellantf and Priority 14(b) CRAIG A. PAPA-DAKIS, individually and d/b/a "AUTO-MART"; and AUTO-MARTf Defendant. BRIEF OF RESPONDENT/CROSS-APPELLANT JURISDICTION This court has jurisdiction over thjLs appeal by virtue of the order of the Utah Supreme Court dated July 8, 1987, and Utah Code Ann. §78-2a-3(2)(h) (1987). NATURE OF THE PROCEEDING^ This is an appeal from an order of the Third Judicial District Court entered pursuant to Rule 60 (b) of the Utah Rules of Civil Procedure. Said order granted the respondent Western Suretyfs motion for relief from the judgment previously entered -1- by the court. The cross-appeal of Western Surety is in the alternative only, and appeals from that part of the final order and judgment that denies Western Surety's motion to stay proceedings. STATEMENT OP ISSUES PRESENTED FOR REVIEW 1. Was the trial court's decision under Rule 60(b) of the Utah Rules of Civil Procedure an abuse of its discretion? The following issues are presented by the cross-appeal and are contingent upon this court's disposition of the appeal. Should the court affirm the trial court's order granting relief pursuant to Rule 60(b) , cross-appellant Western Surety does not wish to disturb the order and judgment.
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