Appeal from a Judgment of the Third Judicial District Court in and for Summit County, State of Utah Honorable James S. Sawaya, Judg

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Hal Taylor Associates, a Utah Corporation v. Unionamerica, Inc., a Corporation, aka Westmor; Ramshire, Inc., a Corporation; William R. Stevenson; Park City Reservations, Inc, a Corporation dba Skyline Realty; Harry F. Reed and Gary Cole : Brief of Appellant

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Hal Taylor Associates, a Utah Corporation v. Unionamerica, Inc., a Corporation, aka Westmor; Ramshire, Inc., a Corporation; William R. Stevenson; Park City Reservations, Inc, a Corporation dba Skyline Realty; Harry F. Reed and Gary Cole : Reply Brief of Appellant

Hal Taylor Associates, a Utah Corporation v. Unionamerica, Inc., a Corporation, aka Westmor; Ramshire, Inc., a Corporation; William R. Stevenson; Park City Reservations, Inc, a Corporation dba Skyline Realty; Harry F. Reed and Gary Cole : Brief of Respondents Unionamerica, aka Westmor Ramshire, Inc. and William R. Stevenson

Brigham Young University Law SchoolBYU Law Digital CommonsUtah Supreme Court Briefs (1965 –)1981Hal Taylor Associates, a Utah Corporation v.Unionamerica, Inc., a Corporation, aka Westmor;Ramshire, Inc., a Corporation; William R.Stevenson; Park City Reservations, Inc, aCorporation dba Skyline Realty; Harry F. Reed andGary Cole : Brief of AppellantUtah Supreme CourtFollow this and additional works at: https://digitalcommons.law.byu.edu/uofu_sc2Part of the Law CommonsOriginal Brief submitted to the Utah Supreme Court; funding for digitization provided by theInstitute of Museum and Library Services through the Library Services and Technology Act,administered by the Utah State Library, and sponsored by the S.J. Quinney Law Library; machine-generated OCR, may contain errorsP.S. Prince, Jr.; Attorney for Respondents Unionamerica, Inc.,Ramshire, Inc., and William R. StevensonStephen G. Crockett; Attorney for Respondents Park CityReservations, Inc., Harry F. Reed and Gary ColeKent B. Linebaugh; Attorneys for AppellantThis Brief of Appellant is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah SupremeCourt Briefs (1965 –) by an authorized administrator of BYU Law Digital Commons. For more information, please contact hunterlawlibrary@byu.edu.Recommended CitationBrief of Appellant, Hal Taylor Associates v. Unionamerica, No. 17359 (Utah Supreme Court, 1981).https://digitalcommons.law.byu.edu/uofu_sc2/25161 I J IN THE SUPREME COURT OF THE STATE OF UTAH HAL TAYLOR ASSOCIATES, a Utah corporation, Plaintiff-Appellant, vs. UNIONAMERICA, INC., a corpora-tion, aka WESTMOR; RAMSHIRE, INC., a corporation; WILLIAM R. STEVENSON; PARK CITY RESER-VATIONS, INC, a corporation dba SKYLINE REALTY; HARRY F. REED and GARY COLE, Defendants-Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ~~~~~~~~~~~~~~~~~~> Case No. 17359 BRIEF OF APPELLANT APPEAL FROM A JUDGMENT OF THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SUMMIT COUNTY, STATE OP U'l'AB HONORABLE JAMES S. SAWAYA, JUDGE F. s. Prince, Jr. Esq. PRINCE, YEATES & GELDZHALER Kent B Linebaugh, Bsq. JARDINE, LINESAUGll, MtOmlJ I .... -: 370 East South Temple, SUite 411 Salt Lake City, ut.ab 84111 , · Attorneys for Appellant 424 East 5th South, Third Floor Salt Lake City, Utah 84111 Attorneys for Respondents Unionamerica, Inc., Ramshire, Inc., and William R. Stevenson Stephen G. Crockett, Esq. MARTINEAU, ROOKER, LARSEN & KIMBALL 36 South State Street, No. 1800 Salt Lake City, Utah 84111 Attorneys for Respondents Park City Reservations, Inc., Harry F. Reed and Gary Cole Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors.IN THE SUPREME COURT OF THE STATE OF UTAH HAL TAYLOR ASSOCIATES, a Utah corporation, Plaintiff-Appellant, vs. UNIONAMERICA, INC., a corpora-tion, aka WESTMOR; RAMSHIRE, INC., a corporation; WILLIAM R. STEVENSON; PARK CITY RESER-VATIONS, INC, a corporation dba SKYLINE REALTY; HARRY F. REED and GARY COLE, Defendants-Respondents. Case No. 17359 BRIEF OF APPELLANT APPEAL FROM A JUDGMENT OF THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SUMMIT COUNTY, STATE OF UTAH HONORABLE JAMES S. SAWAYA, JUDGE F. S. Prince, Jr. Esq. PRINCE, YEATES & GELDZHALER Kent B Linebaugh, Esq. JARDINE, LINEBAUGH, BROWN & DUNN 370 East South Temple, Suite 401 Salt Lake City, Utah 84111 Attorneys for Appellant 424 East 5th South, Third Floor Salt Lake City, Utah 84111 Attorneys for Respondents Unionamerica, Inc., Ramshire, Inc., and William R. Stevenson Stephen G. Crockett, Esq. MARTINEAU, ROOKER, LARSEN & KIMBALL 36 South State Street, No. 1800 Salt Lake City, Utah 84111 Attorneys for Resnondents Park City Reservations, Inc., Harry F. Reed and Gary Cole Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors.TABLE OF CONTENTS Page STATEMENT OF THE NATURE OF THE CASE DISPOSITION IN LOWER COURT 1 2 RELIEF SOUGHT ON APPEAL 3 3 31 STATEMENT OF FACTS ARGUMENT POINT I THE TRIAL COURT ERRED IN AWARDING PCR A SELLING BROKER'S COMMISSION • • • • • • 31 A. THE EVIDENCE IS INSUFFICIENT TO ESTABLISH THAT PCR WAS THE PROCURING CAUSE OF THE SUBJECT SALE • • • • • 31 B. PCR WAS NOT A LICENSED BROKER, THEREFORE LACKED CAPACITY TO SUE, AND THEREFORE PCR'S COUNTERCLAIM SHOULD HAVE BEEN DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION 44 C. PCR CONDUCTED ITS BUSINESS AND PROSECUTED ITS COUNTERCLAIM UNDER AN ASSUMED NAME WITHOUT HAVING FILED A CERTIFICATE OF ASSUMED NAME, THERE-FORE PCR LACKED CAPACITY TO SUE, AND THERFORE PCR'S COUNTERCLAIM SHOULD HAVE BEEN DISMISSED FOR LACK OF SUB-JECT MATTER JURISDICTION • • • • 49 D. THE TRIAL COURT ERRED IN NOT AWARDING APPELLANT COMPENSATORY DAMAGES RESULTING FROM PCR'S BREACH OF FIDUCIARY DUTY OR ITS DUTY TO ACT IN GOOD FAITH, AND SUCH DAMAGES ARE A TOTAL OFFSET TO PCR'S CLAIM AGAINST APPELLANT • • • • • • • • • • • • 52 E. RELIEF REQUESTED WITH RESPECT TO POINT I • • • • • • • • • • • • • • • 60 i Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors.POINT II ASSUMING THAT THE TRIAL COURT WAS CORRECT IN HOLDING THAT PCR WAS ENTITLED TO RECOVER A SELLING BROKER'S COMMISSION FROM APPELLANT, THE TRIAL COURT ERRED IN FINDING AND CON-CLUDING THAT APPELLANT WAS NOT ENTITLED TO ADDITIONAL COMPENSATORY DAMAGES FROM UNION-AMERICA AND STEVENSON IN AN AMOUNT EQUAL Page TO THE AMOUNT AWARDED TO PCR . . . . . . . . 60 A. APPELLANT IS ENTITLED COMPENSATORY DAMAGES FROM AND STEVENSON AS A RESULT BREACH OF FIDUCIARY DUTY TO RECOVER UNIONAMERICA OF THEIR B. THE TRIAL COURT RELIED ON JUDGE CROFT'S ORDER, SUCH ORDER IS PARTIALLY IN ERROR IN HOLDING THAT THERE WAS NO IMPLIED AGREEMENT TO DIRECT ANY WALK-IN TO APPELLANT, AND THEREFORE ANY LIABI-LITY FROM APPELLANT TO PCR WAS 60 WRONGFULLY CREATED 62 C. RELIEF REQUESTED WITH RESPECT TO POINT II • • . . . . . . . . . . 66 POINT III THE TRIAL COURT ERRED IN HOLDING THAT APPEL-LANT WAS NOT ENTITLED TO AN AWARD OF PUNITIVE DAMAGES ••..... · • · · · · · · · · A. THE TRIAL COURT ERRED IN FINDING THAT UNIONAMERICA ACTED REASONABLY IN DEPOSITING ALL OF THE COMMISSION WITH THE ESCROW HOLDER, AND CONCLUDING THAT THERE WAS NO BASIS FOR APPELLANT'S CLAIM AGAINST UNIONAMERICA FOR PUNITIVE DAMAGES ....•..... • · · · · · B. THE TRIAL COURT ERRED IN CONCLUDI~G THAT THERE WAS NO BASIS FOR APPELLANT S CLAIM AGAINST REED, COLE AND PCR FOR PUNITIVE DAMAGES . . . . . · · · C. RELIEF REQUESTED WITH RESPECT TO POINT III ... · · · · · · · ii 66 66 70 70 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors.POINT IV THE TRIAL COURT ERRED IN DETERMINING THAT APPELLANT WAS NOT ENTITLED TO AN AWARD OF ATTORNEYS' FEES AND COSTS AGAINST UNION-AMERICA, AND APPELLANT IS ENTITLED TO SUCH AWARD INCLUDING SUCH ATTORNEYS' FEES AND Page COSTS INCURRED WITH RESPECT TO THIS APPEAL 71 A. THE TRIAL COURT ERRED IN DETERMINING THAT APPELLANT WAS ENTITLED TO AN AWARD OF ATTORNEYS' FEES AND COSTS FOR PRO-SECUTING COUNT I OF THE FOURTH AMENDED COMPLAINT • • • • • • • • • • • • . • • • 71 B. THE TRIAL COURT ERRED IN DETERMINING THAT APPELLANT WAS NOT ENTITLED TO AN AWARD OF ATTORNEYS' FEES AND COSTS FOR PROSECUTING COURT III OF THE FOURTH AMENDED COMPLAINT • • • • . • • • • • 73 C. APPELLANT IS ENTITLED TO AN AWARD OF ATTORNEYS FEES AND COSTS INCURRED WITH RESPECT TO THIS APPEAL • • • 74 D. RELIEF REQUESTED WITH RESPECT TO POINT IV 75 CONCLUSION • • • • • • • • • • • • • • 75 iii Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors.AUTHORITIES CITED CASES Page Ammerman v. Farmer's Insurance Exchange, 19 Utah 2d 261, 430 P.2d 576 (1967) . . . . 55 Bates v. Bates, Utah, 560 P.2d 706 (1977) 75 Boise Dodge, Inc. v. Clark, 92 Idaho 904, 453 P.2d 551 (1969) • . . . . • . . 68 Blodgett v. Martsch, Utah, 590 P.2d 298 (1978) 57,1: Carlsen v. Zane, 67 Cal. Rptr. 747 (1968) . 32,; Centurian Corp. v. Kripps, January 29, 1981 75 Christenson v. Johnson, 90 Utah 273, 61 P.2d 593 (1936) • . • . . . . . . . . 50 Corbitt v. Robinson, 53 So.2d 259, La. App. (1951) .•...•...•........ Diversified General Corp. v. White Barn Golf Course Inc., Utah, 584 P.2d 848 (1978) Dixson v. Kattel, 331 So.2d 827, Fla. App. (1975) Folz v. Begnoche, 222 Ka. 383, 565 P.2d 592 (1977) • . ... Frederick May v. Dunn, 13 Utah 2d 40, 368 P.2d 266 (1962) . . . . •..... Frisell v. Newman, 71 Wa.2d 520, 429 P.2d 864 (1967) •...•..•..... Global Recreation, Inc. v. Cedar Hills Development Co., Utah, 614 P.2d lSS (1980) ..... Harkey v. Gahagan, 338 So.2d 133, La. App.2d Cir. (1976) . . . . . . . . ...... . Hayden v. Ashley, 86 Wa. 653, 150 P. 1147 (1915) iv 36 45 35, JO 32 34 33 45 35 36 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors.J-B Motors v. Margolis, 75 Ariz. 392, 257 P.2d 588 (1953) .•....•••••••.••.• Jones v. Torrance, 141 S.W.2d 1007, Tex. Civ. App. (1940) ••..•.••••...••••• Kadane v. Clark, 134 S.W.2d 448 Tex. Civ. App. (1939) ••.•• Marshall v. White, 254 F. Supp. 514 (D.C.N.C. 1965) Nash v. Craig Co., Inc., Utah, 585 P.2d 755 (1978) ••••••.•••• Neumeier v. Spurzel, 223 Minn. 60, 25 N.W.2d 651 (1946) •••.••.•••• Oakason v. Lisbon Valley Uranium Co., 154 F. Supp. 692 (D.C. Ut. 1957) • , • , • Patterson v. Blair, 123 Utah 216, 257 P.2d 944 (1953) .•.••••••••.•••• Platt v. Locke, 11 U.2d 273, 358 P.2d 95 (1961) Reese v. Harper, 80 Utah 2d 199, 329 P.2d 410 (1958) ••••••••••••••• Reich v. Christopolos, 123 Utah 132, 256 P.2d 238 (1952) •••.•••.••••• Shaw v. Abraham, 12 Utah 2d 150, 364 P.2d 70 (1961) . . . . . . . . . . . . . Shelton v. Tapley, Ok. _, 328 P.2d 672 -(1958) . . . . . . . . . . . . . SEroul v. Sparks, 116 Utah 368, 210 P.2d 436 (1949) . . . . . . . . . . . . . . . . Page 36 35 36 36 67, 36 50 32 50 55, 56 . . 56 . . 36 . . 67 Stanson v. McDonald, 147 Oh. 191, 70 N.E.2d 359 169 A.L.R. 760 (1946) •••••• • • 44 Swain v. Salt Lake Real Estate and Investment Co., 3 U.2d 121, 279 P.2d 709 (1955) • • • • • 75 Tatsuno v. Kasai, 70 Utah 203, 259 P. 318, 55 62 A.L.R. 54 (1927) •• • • • • • • • • v 70 56 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors.Ware v. DosPassos, 38 N.Y.S. 673 (1896) Wilson v. Sewell, 50 N.M. 121, 171 P.2d 647 (1946) ... Wheaton v. Ramsey, 92 Idaho 33, 436 P.2d 248 (1968) .•......... White v. Ragel, 82 N.M. 644, 485 P.2d 978 1971) . . . . . . . . . STATUTES Utah Code Ann. 1953, as amended, § 42-2-5 . . . . . . . . . Utah Code Ann. 1953, as amended, § 42-2-10 . . . . . . . Utah Code Ann. 1953, as amended, § 61-2-1 . . . . . . . . . . Utah Code Ann. 1953, as amended, § 61-2-2 . . . . . . . . . . . . Utah Code Ann. 1953, as amended, § 61-2-5(b) . . . . . . . . . . Utah Code Ann. 1953, as amended, § 61-2-6(a) . . . . . . . Utah Code Ann. 1953, as amended, § 61-2-6(b) . . . . . . . . . . Utah Code Ann. 1953, as amended, § 61-2-9(c) . . . . . Utah Code Ann. 1953, as amended, § 61-2-18(a) . . . . . . . . Utah Code Ann. 1953, as amended, § 61-2-18(b) . . . . . . . . Utah Code Ann. 1953, as amended, § 78-3-4 Utah Consti. Art. 8, § 7 vi ...... 35 ..... 35 ..... 45 . . . 33, . . . 49 . . . . 50, : . . . . 44, ; . . . 44 . . . . 58 . . 58 . . . . 58 44 . . . . 44 1 11' . 46 46 46 d Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors.Page Utah State Securities Commission Real Estate Division, Rule 19 .. : . . . . . . . . . 58, 59, 70 SECONDARY AUTHORITIES 42 A.L.R.2d 516, 533, § 7 50 45 A. L.R. 3d 190 . . . 33 71 A.L.R.3d 586, § 21 et. seq. 33 88 A.L.R.2d 936 § 10 32 169 A.L.R. 764 45 169 A.L.R. 767 44 3 Am. Jur.2d Agency § 199 54 3 Am. Jur.2d Agency § 239 61 12 Am. Jur.2d Brokers § 84 56 12 Am. Jur. 2d Brokers § 167 60 12 Am. Jur.2d Brokers § 178 44 12 Am. Jur.2d Brokers § 226 32, 61 12 Am. Jur.2d Brokers § 227 32 37 Am. Jur.2d Fraud and Deceit § 15 57 37 Am. Jur.2d Fraud and Deceit § 16 54 59 Am. Jur.2d Parties § 20 46 59 Am. Jur.2d Parties § 31 46 Black's Law Dictionary, Fifth Ed (1979) 55, 58 Moore's Federal Practice, Volume 2A, § 1207 47 Volume 3 Spring, 1979, Department of Business Regulations, Real Estate Division, "Utah Real Estate News" . . . . . . . . . 33 vii Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors.Restatement of Torts.2d § 87la ............ 61 Minnesota Law Damages Reality Change" Review 207 (1977), "Punitive in the Law of Contract: the and the Illusion of Legal 8 Indiana Law Review 668 (1975), "The Expanding Availability of Punitive Damages in Contract Actions" ......... . viii Page 64,: 69 69 Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors.Appendix A -Appendix B -Appendix C -Appendix D -Appendix E -Appendix F -Appendix G -Appendix H -Appendix I -APPENDICES The June 4, 1979 order of Judge Bryant H. Croft ("Judge Croft's Order"). The Trial Court's Memorandum Decision ("Memorandum Decision"). The Trial Court's Findings of Fact and Conclusions of Law ("Trial Court Findings") or ("Trial Court Conclusions") as the case may be. The Trial Court's Judgment ("Judgment"). The February 17, 1977 letter agreement between Appellant, Unionamerica, Inc. and Greater Park City Corporation (the "Settlement Agreement"). The February 17, 1977 vacant property listing between Appellant and Ramshire, Inc. (the "Listing"). Cited provisions of the State of Utah Real Estate License Law (the "License Law") Title 62, Chapter 2 of Utah Code Annotated (1953) as amended. Rule 19 of the State of Utah Real Estate License Law Rules and Regulations issued by the Department of Business Regulations, Real Estate Division, effective November 1, 1973 ("Rule 19"). Cited provisions of the State of Utah Conducting Business Under an Assumed Name Law (the "Assumed Name Law") Title 42, Chapter 2, Utah Code Annotated (1953) as amended. ix Sponsored by the S.J. Quinney Law Library. Funding for digitization provided by the Institute of Museum and Library Services Library Services and Technology Act, administered by the Utah State Library. Machine-generated OCR, may contain errors.

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