Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 1989 Consolidated Freightways v. Nova Mud Corporation : 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. Peter W. Guyon; Attorney for Appellant. Leslie Van Frank; Cohne, Rappaport & Segal; Attorney for Respondent. Recommended Citation Brief of Respondent, Consolidated Freightways v. Nova Mud Corporation, No. 890634 (Utah Court of Appeals, 1989). https://digitalcommons.law.byu.edu/byu_ca1/2292 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. UTAH COURT Of APPEALS BRIEF ITAH IN THE COURT OF APPEALS AW W3H — STATE OF UTAH 50CKET NO. Jd ***** CONSOLIDATED FREIGHTWAYS, a Delaware Corporation, RESPONDENT' S BRIEF Plaintiff/Respondent, v. No. 89-0634-CA NOVA MUD CORPORATION, Category 14(b) a Nevada Corporation. Defendant/Appellant. ***** APPEAL FROM JUDGMENT ENTERED BY THE HONORABLE ROBIN REESE, THIRD JUDICIAL CIRCUIT COURT ***** Attorney for Respondent: LESLIE VAN FRANK (4913) of and for COHNE, RAPPAPORT & SEGAL 525 East 100 South, Suite 500 P. O. Box 11008 Salt Lake City, Utah 84147-0008 Telephone: (801) 532-2666 Attorney for Appellant: PETER W. GUYON (1285) 614 Newhouse Building 10 Exchange Place Salt Lake City, Utah 84111 Telephone: (801) 322-5555 M VI 1 TABLE OF CONTENTS JURISDICTION AND NATURE OF CASE 1 ISSUES PRESENTED FOR APPEAL 2 CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES AND REGULATIONS 2 STATEMENT OF THE CASE 2 A. Nature of the Case, Course of Proceedings Below and Disposition 2 B. Statement of Relevant Facts 3 SUMMARY OF ARGUMENT 7 A. Legal and Historical Background 7 B. The Issues in This Case are Governed bv the Interstate Commerce Act and the Cases Promulgated Thereunder 8 C. Nova Mud is Estopped or Otherwise Precluded from Seeking a Referral to the ICC 8 ARGUMENT 9 A. Legal and Historical Background 9 B. The Issues in this Case are Governed bv the Interstate Commerce Act and the Cases Promulgated Thereunder 14 C. Nova Mud is Estopped or Otherwise Precluded from Seeking a Referral to the ICC 24 CONCLUSION 30 APPENDIX A - TRANSCRIPT REFERENCES APPENDIX B - RECORD REFERENCES APPENDIX C - RELEVANT EXHIBITS APPENDIX D APPENDIX E APPENDIX F ii APPENDIX G APPENDIX H APPENDIX I TABLE OF AUTHORITIES 49 U. S. C. §10102 9 49 U. S. C. §10501 2 49 U. S. C. §10701 5 49 U. S. C. §10761 2, 9, 10, 23 49 U. S. C. §11705 6, 7, 30 49 U. S. C. §11706 6 §78-2a-3(2) (d), Utah Code Ann 1 TABLE OF CASES Allen v. Greyhound Lines, Inc. , 583 P. 2d 613 (Utah 1978) 19 Brennon v. Schwerman Trucking Co. , 540 F. 2d 1200 (4th Cir. 1976) 9 Campbell Sixty Six Express, Inc. v. H. A. Cole Products Co. (In re Campbell Sixty Six Express, Inc. , 94B. R. 1019 (Bankr. W. D. Mo. , 1988) 13 Climate Engineering Co. v. Merchants Fast Motor Lines, Inc., 459 S. W. 2d 695 (Tex. Civ. App. 1970) ... 9 Consolidated Rail Corp. v. Standard Milling, 508 F. Supp. 277 (W. D. N. Y. 1981) 22, 23 APPENDIX H ICC Op., Ex Parte No. MC-177 (October 14, 1986) 12, 13, 24 APPENDIX D ICC Op., 1989 MCC Lexis 333, June 14, 1989 14, 25, 26, 28, 29 APPENDIX F iii Inman Freight Systems, Inc. v. Olin Corp., 807 F. 2d 117 (8th Cir. 1986) 25 APPENDIX I L & N Railroad v. Central Iron Co. , 265 U. S. 59, 65, 44 S. Ct. 441, 442 (1924) 11 Louisville and Nashville Railroad Co. v. Maxwell, 237 U.S. 94, 35 S. Ct. 494 (1915) 11, 12, 21 APPENDIX G Motor Carrier Audit and Collection Company v. United Food Service, Inc. , 1987 W. L. 19008, (U. S. D. C. , D.Colo., May 1987) 13 APPENDIX E Penn Central Transportation Co., 477 F. 2d 841, 844 (3d Cir. 1973), af f' d. 414 U.S. 885, 94 S. Ct. 231 (1973) 11 Schindler v. Schindler, 776 P. 2d, 84, 88 (Utah App. 1989) 16 Supreme Beef Processors, Inc. v. Yaquinto (Matter of Caravan Refrigerated, Inc. ), 864 F. 2d, 388 (5th Cir. 1989) 13, 27 iv Leslie Van Frank (Bar No- 4913) COHNE, RAPPAPORT & SEGAL, P. C. 525 East First South P. O. Box 11008 Salt Lake City, Utah 84147-0008 Telephone: (801) 532-2666 Attorneys for Respondent IN THE COURT OF APPEALS STATE OF UTAH ***** CONSOLIDATED FREIGHTWAYS, a Delaware Corporation, RESPONDENT' S BRIEF Plaintiff/Respondent, v. No. 89-0634-CA NOVA MUD CORPORATION, Category 14(b) a Nevada Corporation. Defendant/Appellant. ***** JURISDICTION AND NATURE OF CASE This Court has jurisdiction of this matter pursuant to the provisions of §78-2a-3 (2) (d), Utah Code Ann. (eff. Jan. 1, 1988), as this is an appeal from a judgment entered by the Third Circuit Court, State of Utah. In the case below, after trial in August, 1989, the trial court entered its findings of fact and conclusions of law, and then entered judgment in favor of plaintiff Consolidated Freightways and against defendant Nova Mud on October 11, 1989. Nova Mud appeals the Court's judgment. 1 ISSUES PRESENTED FOR APPEAL 1. Whether the issues in this case are governed by the Interstate Commerce Act and cases promulgated thereunder. 2. Whether or not Appellant is estopped or otherwise precluded from seeking a referral to the ICC. CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES AND REGULATIONS 49 U. S. C. §10761 (a) provides in full: (a) except as provided in this subtitle, a carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission under chapter 105 of this title [49 USC §§10501 et. seq. ] shall provide that transportation or service only if the rate for the transportation or service is contained in a tariff that is in effect under this subchapter [49 USC §10761 et. seq. ]. That carrier may not charge or receive a different compensation for that transportation or service than the rate specified in the tariff whether by returning a part of that rate to a person, giving a person a privilege, allowing the use of a facility that affects the value of that transportation or service, or another device. STATEMENT OF THE CASE A. Nature of the Case, Course of Proceedings Below frnfl Disposition, Consolidated Freightways, indisputably a shipper in interstate commerce, shipped 90,000 pounds of drilling mud in the spring of 1986 from Salt Lake City to Florida at the request of Nova Mud Corporation. Subsequently, a dispute arose over the amount invoiced by Consolidated Freightways. The complaint below was filed on July 10, 1987. Nova Mud answered on July 17, 1987, alleging failure to state a claim, estoppel, failure of 2 '•oris J derat i on, statute of frauds, and fraud. Consolidated Frei ghtways 1 ater amended i ts compl ai nt to i nc 1 ude addi t i onal amounts due and owing and to allow a credit for payments made. Nova Mini i answer to the amended complaint ra i sed the same defenses as its original answer. Consolidated Freightways filed a Motion for Summary Judgment on October 3, 1988. The Motion was fully briefed and argued on December 16,, 1988, but, waw withdrawn before the Court' s ruling thereon Shortly before trial, the court denied Nova Mud' s Motion to Amend its Answer to bring a counterclaim for fraud against Consolidated Freightways. The case was heard at trial before the Honorable Judge Robin Reesp,,,, sitting without a jury, on August 4 1989 and again on August 2 8, 1989. The trial court took the mat ten undei advisement and entered its Findings of Fact ^nd Conclusions of Law on September 1 5, ; ^ - ; * i o;. Judgment was thereafter entered on October : .^v . ^b^ +-o+-*"* amount of $10,566. 15, representing the amount actually invoiced by Consolidated Freightways less amounts paid, ?lus interest and costs. (R. 272-73). This appeal followed. B. Statement of Relevant Facts 1. Consolidated Freightway s i s a iommoi i carri er subj ect to the Interstate Commerce Act. 2. In March of 1986, Charles Perry, an employee of Nova Mud' s representation in its brief on page five that the Motion for Summary Judgment was denied is not true. The record below, at R. 116, and the docket entry dated 12/22/88, reflect the fact that Consolidated Freightways withdrew its Motion for Summary Judgement. (Appendix B hereto). 3 Consolidated Freightways, was contacted by Nova Mud Corporation. (Tr. 1, pp. 23-24). 2 3. Nova Mud indicated that it wanted to ship 90,000 pounds of drilling mud to Cape Canaveral, Florida, and asked what it would cost to ship the same. (Tr. 1, pp. 23-24). 4. Perry quoted a rate of $2. 00 per mile per truckload, anticipating that two truckloads would be needed to haul the cargo. (Tr. 1, p. 33). 5. Two truckloads consist of two tractors with either one 40 to 45-foot trailer or two 27-foot long trailers. (Tr. 1, pps. 26-27). 6. At some later date, Nova Mud again contacted Consolidated Freightways requesting the shipment of an additional 16,000 pounds of shipping mud.