O presente trabalho visa o estudo da audiência de custódia, por meio de sua implementação pelo Projeto Audiência de Custódia, do Conselho Nacional de Justiça. O instituto está previsto em diplomas internacionais de direitos humanos dos quais o Brasil é signatário. Consiste na imediata apresentação do preso em flagrante a uma autoridade judiciária, para que esta proceda à avaliação da legalidade da prisão e decida acerca da necessidade de sua manutenção, adequação de outra medida cautelar ou concessão da liberdade provisória. Será analisada sua função e utilidade na atual conjuntura do sistema prisional brasileiro, em que se observam penitenciárias cada vez mais superlotadas. Será avaliado o contraditório na medida cautelar, em contraposição ao sistema atual, que prevê apenas o envio do auto de prisão em flagrante ao magistrado. Será observada a efetividade da audiência e desse contraditório, verificando se realmente é capaz de evitar prisões desnecessárias e se tem o condão de detectar indícios de abusos e de tortura policial. Por fim, serão examinadas as consequências da não realização da audiência de custódia

Almeida, Rodrigo Carlos de

Repositório Institucional do UniCEUB

Audiência de custódia: um meio de garantir os direitos do preso em flagrante?

RICHINS DRILLING, INC., A UTAH CORPORATION, PLAINTIFF/APPELLANT, v. TUHAYE, L.LC, A UTAH LIMITED LIABILITY COMPANY, AND GOLF SERVICES GROUP, INC., A UTAH CORPORATION, DEFENDANTS/APPELLEES .
CASE No. 20060955 DISTRICT CT. NO. 02050046

Utah Court of Appeals

Brigham Young University Law School

Brigham Young University Law SchoolBYU Law Digital CommonsUtah Court of Appeals Briefs2006Richins Drilling v. Tuhaye : Reply BriefUtah Court of AppealsFollow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca2Part of the Law CommonsOriginal Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.Gail E. Laser; Tesch Law Offices; Attorneys for Defendants/Appellees.John R. Lund; P. Matthew Cox; Snow, Christensen & Martineau; Attorneys for Plaintiff/Appellant.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 AppealsBriefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available athttp://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at hunterlawlibrary@byu.edu withquestions or feedback.Recommended CitationReply Brief, Richins Drilling v. Tuhaye, No. 20060955 (Utah Court of Appeals, 2006).https://digitalcommons.law.byu.edu/byu_ca2/6895IN THE UTAH COURT OF APPEALS RICHINS DRILLING, INC., A UTAH CORPORATION, PLAINTIFF/APPELLANT, v. TUHAYE, L.LC, A UTAH LIMITED LIABILITY COMPANY, AND GOLF SERVICES GROUP, INC., A UTAH CORPORATION, DEFENDANTS/APPELLEES . CASE No. 20060955 DISTRICT CT. NO. 020500464 REPLY BRIEF OF APPELLANT APPEAL FROM A DECISION OF THE FOURTH JUDICIAL DISTRICT COURT HONORABLE DEREK P. PULLAN GAIL E. LASER TESCH LAW OFFICES, P.C. 314 MAIN STREET, SUITE 200 POST OFFICE Box 3390 PARK CITY, UTAH 84060 TELEPHONE (435) 649-0077 JOHN R. LUND P. MATTHEW COX SNOW, CHRISTENSEN & MARTINEAU 10 EXCHANGE PLACE, ELEVENTH FLOOR POST OFFICE BOX 45000 SALT LAKE CITY, UTAH 84145-5000 TELEPHONE: (801)521-9000 Attorneys for Defendants/Appellees Attorneys for Plaintiff/Appellant UTAH DECU TABLE OF CONTENTS PAGE ARGUMENT 1 I. THE TRIAL COURT SHOULD HAVE INTERPRETED THE RELEASE TO INCLUDE ATTORNEY'S FEES RELATED TO THE COUNTERCLAIM. THIS ISSUE WAS PRESERVED FOR APPEAL. 1 II. IN THE ABSENCE OF ANY FINDING OF AMBIGUITY OR OTHER JUSTIFICATION FOR THE USE OF EXTRINSIC EVIDENCE TO ADD TO THE TERMS OF THE CONTRACT, THE TRIAL COURT COMMITTED ERROR. 4 III. THE TRIAL COURT'S RELIANCE ON PAROL EVIDENCE WITHOUT DETERMINING WHETHER THE CONTRACT WAS OR WAS NOT INTEGRATED WAS REVERSIBLE ERROR. 7 CONCLUSION 9 - l -TABLE OF AUTHORITIES CASES Page Badger v. Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998) 4 Bakowski v. Mountain States Steel, Inc., 2002 UT 62, f 16, 52 P.3d 1179 5, 6, 7 Brookside Mobile Home Park, Ltd. v. Peebles, 2006 UT 48, f 14, 48 P.3d 968 3 Eie v. St. Benedict's Hosp., 638 P.2d 1190, 1194 (Utah 1981) 8 Saleh v. Farmers Insurance Exchange, 2006 UT 20, % 21, 133 P.3d 428 6, 7 The Catamar LLC v. Champagne 2006 UT App. 321, % 11 8 Union Bank v. Swenson, 707 P.2d663, 665-66 (Utah 1985) 8 -ii-ARGUMENT I. THE TRIAL COURT SHOULD HAVE INTERPRETED THE RELEASE TO INCLUDE ATTORNEY'S FEES RELATED TO THE COUNTERCLAIM. THIS ISSUE WAS PRESERVED FOR APPEAL. Golf Services and Tuhaye incorrectly assert that Richins Drilling failed to preserve this issue. Richins Drilling argued at least three distinct times to the trial court that the Release released atttorney's fees related to the counterclaim. In fact, Golf Services and Tuhaye acknowledged such argument, and the objection and argument of Richins Drilling was incorporated into two rulings by the trial court. It is difficult to imagine what else Richins Drilling was required to do to preserve this issue for appellate review. Richins Drilling first raised this issue after Golf Services and Tuhaye filed their first attorney's fees affidavit. On July 15, 2005, counsel for Golf Service and Tuhaye filed an affidavit in support of their request for attorney's fees and costs. (R. 598-601.) Richins Drilling objected to the affidavit on the basis that the attorney's fees related to the counterclaim were released pursuant to the Release and that the attorney's fees affidavit did not allocate fees and costs between those claims that were successful and those that were released. (R. 614-625.) Specifically, Richins Drilling argued: In the case at hand, the Defendants clearly waived attorney fees in the Release of All Counterclaims that they . . . could have claimed. . . . Just as it can be argued that all fees, including fees associated with the prosecution of the counterclaims, were necessary to the defense of the mechanics' lien claim, as argued by Defendants in the Affidavit, it can also be argued that all fees of Defendants up to the time of the Release, were necessary by the Defendants to prosecute the Counterclaim. Yet, in the Release, the Defendants clearly waived all fees associated with the prosecution of the counterclaim. This was their agreement and obligation under the Release. (R. 623.) Next, on September 16, 2005, in their response to the objection filed by Richins Drilling, Golf Services and Tuhaye acknowledged that "Plaintiff objected to the claimed attorney fees and costs on three bases. First, Plaintiff asserted that the fees on the counterclaim were 'waived' in the Release of all Counterclaims." (R. 708.) Additionally, it its reply memorandum in support of its Objection, Richins Drilling stated: Defendants' Memorandum fails to take into consideration the effect of the Release . . . Plaintiff is entitled to enforcement of the Release which it paid valuable consideration for. In Defendants' Counterclaim, their first cause of action was their claim for attorney fees based on Plaintiff's breach of contract. . . . As stated by Defendants in their Memorandum, Plaintiff/Counterclaim Defendants, Richins Drilling paid $15,000.00 already in compromise of this provision and all other counterclaims. Defendants are now trying to make Plaintiff pay again for the same thing. (R. 721.) Next, in its ruling dated February 2, 2006, the trial court acknowledged that "Richins Drilling objects to the initial and supplemental fees affidavit because GSG released Richins from liability for attorney's fees relating to the counterclaim." (R. 732.) (emphasis added). The trial court found that "GSG released Richins Drilling from liability for attorney's fees incurred in prosecuting the counterclaim." Id. In short, the trial court recognized that Richins Drilling raised the issue of whether the Release released Richins Drilling from liability for attorney's fees related to the counterclaim. Following the trial court's ruling, Golf Services and Tuhaye filed an additional affidavit. (R. 737-777.) Again, Richins Drilling objected and specifically renewed each objection contained in the initial objection to the Golf Services' and Tuhaye's request for attorney's fees and costs. (R. 785.) Finally, on May 1, 2006, the trial court issued its Ruling Awarding Attorney's Fees to Defendants. (R. 794-804.) In this ruling, the trial -2-court again acknowledged that "Richins Drilling objected to the affidavit because (1) GSG had released Richins Drilling from liability for attorney's fees relating to the GSG's counterclaim" (R. 803.) (Emphasis added.) The trial court, however, after two objections filed by Richins Drilling arguing that the Release waived all attorney's fees related to the counterclaim, nevertheless stated "The Court need not determine what the parties intended by using the phase 'attorneys fees relating to the counterclaim.' Richins Drilling has never contended that the release afforded it broader protection against liability for attorney's fees than that permitted under Utah statutes and case law. Therefore, any such argument is waived."1 (R. 803 n.l.) The trial court provided no support for its conclusion that Richins Drilling waived this argument. Under Utah law "[i]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, 114, 48 P.3d 968. Utah courts have explained that there are three factors to determine whether a trial court had such an opportunity: "(1) the issue must be raised in a timely fashion; (2) the 1 This statement by the trial court is grounds alone for this Court to remand this case. Richins Drilling has argued that the trial court committed reversible error when it failed to determine the parties' intentions when they entered the Release. See Brief of Appellant, at 20-21. In this case, there was no determination by the trial court of the intent of the parties. Richins Drilling submitted argument that it was its contention that all fees of Defendants up to the time of the Release were necessary to prosecute the counterclaim and were therefore released when the Release was signed. (R. 623; 721; 785.) The trial court, however, made no finding and made no inquiry as the intention of the parties when they signed the release. Having failed to do this, the trial court committed reversible error. As a result, the proper remedy for this error is to remand the case back to the trial court for a determination of the parties' intent when they entered into the Release. -3-issue must be specifically raised; and (3) a party must introduce supporting evidence or relevant legal authority." Id. (citing Badger v. Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998)). In this case Richins Drilling asks this Court to review whether the trial court erred when it interpreted the Release in such a manner as to not release Golf Services' or Tuhaye's claim for attorney's fees and costs related to the settled counterclaim. This issue was preserved for appeal. First, Richins Drilling timely raised the issue of whether the Release waived attorney's fees and costs related to the counterclaim. After Golf Services and Tuhaye filed their affidavit requesting attorney's fees, Richins Drilling objected on the basis that the Release waived attorney's fees and costs related to the counterclaim. (R. 614-625.) Richins Drilling renewed this objection after Golf Services and Tuhaye filed an amended request for attorney's fees. (R. 785.) Second, Richins Drilling specifically raised the issue of whether the Release waived all attorney's fees related to the counterclaim with the trial court. As explained above, in each of its objections, Richins Drilling argued that the trial court should deny Golf Services' and Tuhaye's request for fees related to the counterclaim because those fees were waived. Lastly, in support of those arguments, Richins Drilling submitted relevant evidence in support its position. (R. 614-625.) Richins Drilling, therefore, more than adequately preserved this issue for this Court to review.2 At most, contrary to the arguments of Golf Services and Tuhaye, the only argument that the trial court considered waived was whether the Release was broader that Utah law, not whether the Release released attorney's fees related to the counterclaim. -4-II. IN THE ABSENCE OF ANY FINDING OF AMBIGUITY OR OTHER JUSTIFICATION FOR THE USE OF EXTRINSIC EVIDENCE TO ADD TO THE TERMS OF THE CONTRACT, THE TRIAL COURT COMMITTED ERROR. The Contract clearly states the compensation to be paid to Richins Drilling upon termination. It says that upon termination, Golf Services must pay Richins Drilling the amounts due under the Contract based on the time spent and the material purchased (Contract f 16.3(c).) With respect to when the Contract is terminated, the Contract does not make any reference to any other contractual duty, nor does it impose any further duties on Richins Drilling. It does not reference whether Richins Drilling should comply with industry standards or what should be the amount charged for the work performed. It simply states, upon termination Golf Services should pay Richins Drilling the amount due under the Contract. The trial court, however, did not apply this provision. Instead, the trial court considered substantial intrinsic evidence. In opposition to this argument, Golf Service and Tuhaye suggest that the trial court did not err when it inserted duties into the Contract that were not part of the express terms of the Contract. Nowhere in Golf Services' and Tuhaye's argument, however, do they suggest that the terms of the Contract were ambiguous, nor did the trial court find that the terms of the Contract were ambiguous. Therefore, the trial court's reliance on extrinsic evidence, including the testimony of Randy Mayer, to insert contractual terms into the Contract was erroneous. Under Utah law for extrinsic evidence to be considered, the contract must be ambiguous. See Bakowski v. Mountain States Steel, Inc., 2002 UT 62, f 16, 52 P.3d 1179 (stating "a court will look to extrinsic evidence only when the contract -5-language is ambiguous") In other words, it is a necessary prerequisite for the trial court have found that the Contract was ambiguous before it considered extrinsic evidence to vary or add to the express terms of the Contract. The Contract is not ambiguous and, therefore, it was an error to use this extrinsic evidence to add terms to the Contract. When interpreting a contract, a court first looks to the contract's four corners "to determine the parties' intentions, which are controlling." Bakowski at f 16. Further, "if the language of the four corners of the contract is unambiguous, the parties' intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law." Saleh v. Farmers Insurance Exchange, 2006 UT 20, \ 21, 133 P.3d 428 (refusing to consider extrinsic evidence, holding that doing so "would require us to radically alter, and not for the better, our analytical approach to contract interpretation by making even unambiguous contract terms vulnerable to modification by extrinsic evidence"). Lastly, the reviewing court "will not make a better contract for the parties than they have made for themselves. Nor will we avoid the contract's plain language to achieve an 'equitable' result." Id. at f 19 (citations omitted). Here, by reading a maximum price, a time for completion, and a method into the Contract, the trial court incorrectly strove for an equitable result and gave Golf Services a better contract than it made for itself. To do so is reversible error. For example in Saleh, the defendant claimed that certain language in an insurance policy allowed it to retain the value of depreciation. Id. at f 13. The plaintiff, however, argued that those terms were ambiguous and proffered an alternative interpretation of the policy. Id. In affirming the trial court, the Utah Supreme Court noted that "equitable -6-doctrines are not . . . within the tool box of contract interpretation. In the context of contract interpretation, therefore, it is irrelevant whether insurance companies . . . regularly pay the depreciation value prior to completion . . . Farmers has bound itself through textually unambiguous language, and it is not within this Court's purview to bind it more." Id. at f 22. The Utah Supreme Court disregarded industry standards and practices when the contract between the parties was unambiguous. In this case, the trial court impermissibly bound Richins Drilling to contractual provisions not found in the unambiguous contract. The Contract does not (1) provide any completion date, (2) specify an amount for which the well must be completed, or (3) require Richins Drilling to use the "Reverse-Rotary" method for drilling. The court, however, treated these provisions as part of the Contract and excused performance by Golf Services and Tuhaye because Richins Drilling apparently breached these added terms. This was contrary to the plain terms of the Contract providing for the work to be done on an "hourly, time and materials basis" and with payment at the applicable daywork rate in the event of a termination. Unlike the court's instruction in Bakowski and Saleh, the trial court here rewrote the Contract and made a "better contract" for Golf Services than it made for itself. See Bakowski, at f 19. The net effect was to fully undermine the Contract that Golf Services signed, and relieve it from the deal it made. -7-III. THE TRIAL COURTS RELIANCE ON PAROL EVIDENCE WITHOUT DETERMINING WHETHER THE CONTRACT WAS OR WAS NOT INTEGRATED WAS REVERSIBLE ERROR. In their brief, Golf Services and Tuhaye admit that the trial court "heard parol evidence at trial." See Brief of Appellee, at 19 n.2. As pointed out by Golf Services and Tuhaye, the trial court recognized that it was admitting parol evidence and explicitly indicated that it later intended to resolve the issue of whether the Contract was integrated. Id.\ (R. 831 at 114:16-115:3). The trial court, however, never did resolve the issue of whether the Contract was integrated. The failure of the trial court to resolve this fundamental issue before it considered and relied upon parol evidence to interpret the terms of the Contract is reversible error. Utah courts have made it clear that before a trial court applies the above-explained parol evidence rule, the trial court "must determine as questions of fact: (1) whether the agreement is integrated and, if so, (2) whether that integration is complete or partial. The Catamar, LLC v. Champagne, 2006 UT App. 321, \ 11 (citing Eie v. St. Benedict's Hosp., 638 P.2d 1190, 1194 (Utah 1981) ("'[T]he court must determine as a question of fact whether the parties did in fact adopt a particular writing or writings as the final and complete expression of their bargain."')). Failure by the court to make a determination as a question of fact as to whether the contract was integrated is reversible error. See Union Bank v. Swenson, 707 P.2d 663, 665-66 (Utah 1985) (reversing and remanding to the trial court to make "a specific determination as to whether the note was an integration"). Golf Services and Tuhaye cite to no relevant case law, nor do they point to anything in the -8-record, to contradict this conclusion—the trial court erred when it considered parol evidence without determining whether the Contract was integrated. As a result, without making such a finding, it was error for the trial court to consider parol evidence regarding the parties' intentions, even if the evidence presented merely supplemented the terms of the Contract. This Court should, therefore, remand this case to the trial court to determine whether the Contract was integrated and whether the admittance of parol evidence interpreting the Contract was correct. - Q -CONCLUSION The trial court incorrectly interpreted of two agreements between the parties. First, the trial court incorrectly rewrote the Contract to deprive Richins Drilling of the central contract terms to which Golf Services agreed. Second, the Release entitled Richins Drilling to be released, without limitation, from any further claims relating to the counterclaim, including claims for attorney's fees and costs. The trial court incorrectly interpreted that contract to leave Richins Drilling exposed for fees and costs that did in fact relate to the counterclaim. As to both of these errors, Richins Drilling respectfully submits that this court should reverse the trial court's order and remand this case so that these contracts can both be enforced as they were written and agreed to by the contracting parties. DATED this day of December, 2007. SNOW, CHRISTENSEN & MARTINEAU John R. Lund P. Matthew Cox Attorneys for Plaintiff/Appellant -10-CERTIFICATE OF SERVICE I HEREBY CERTIFY that two true and correct copies of the foregoing REPLY BRIEF OF APPELLANTS were served by U.S. Mail on December 12, 2007 as follows: Gail E. Laser Tesch Law Offices, P.C. 314 Main Street, Suite 200 P.O. Box 3390 Park City, Utah 84060 -11-

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Richins Drilling v. Tuhaye : Reply Brief

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Audiência de custódia: um meio de garantir os direitos do preso em flagrante?

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