Appeal from the judgment of the Third Judicial District Court of Tooele County. Gordan R. Hall, District Judge, Presidin

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Brigham Young University Law SchoolBYU Law Digital CommonsUtah Supreme Court Briefs2000Louis Buzianis and Gus Buzianis v. BeneficialHomes, Inc., Ronald Gibb : Brief of RespondentUtah Supreme CourtFollow this and additional works at: https://digitalcommons.law.byu.edu/byu_sc2Part of the Law CommonsOriginal Brief Submitted to the Utah Supreme Court; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.E. Nordell Weeks; Ted Boyer; McMillan and Browning; Attorneys for Defendants-Appellants.Edward A. Watson; Attorney for Plaintiffs-Respondents.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 SupremeCourt Briefs 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 CitationBrief of Respondent, Buzianis v. Beneficial Homes, Inc, No. 14258.00 (Utah Supreme Court, 2000).https://digitalcommons.law.byu.edu/byu_sc2/214RECEIVED LAW LIBRARY IN THE SUPREME COURT OF THE STATE OF UTAH SEP 1 6 1976 LOUIS BUZIANIS & GUS BUZIANIS, Plaintiffs-Respondents, vs. BENEFICIAL HOMES, INC., a Utah Corporation, and RONALD GIBB, | Defendants-Appellants. BRKiHAM mmis tWIVfcRSITY J. Reuben Clark Law School CASE NO. 14258 BRIEF OF RESPONDENTS Louis Buzianis and Gus Buzianis Appeal from the judgment of the Third Judicial District Court of Tooele County. Gordan R. Hall, District Judge, Presiding EDWARD A. WATSON Tooele County Courthouse Tooele, Utah 84074 Attorney for Plaintiffs-Respondents 41 Nordell Weeks 5ed Boyer cMILLAN and BROWNING 020 Kearns Building Salt Lake City, Utah 84101 itorneys for Defendants-Appellants Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors.IN THE SUPREME COURT OF THE STATE OF UTAH •k *k "k k k k k k k k k k LOUIS BUZIANIS & GUS BUZIANIS, Plaintiffs-Respondents, vs. ) CASE NO. 14258 BENEFICIAL HOMES, INC., a Utah Corporation, and RONALD GIBB, Defendants-Appellants. k -k k -k k -k -k -k "k ie k k BRIEF OF RESPONDENTS Louis Buzianis and Gus Buzianis STATEMENT OF THE NATURE OF THE CASE This is an action brought to recover judgment for services rendered. DISPOSITION IN THE LOWER COURT Judgment was rendered for the plaintiff in the amount of $2,665.00 plus interest of $517.79 and costs of $38.90. RELIEF SOUGHT ON APPEAL Plaintiffs-Respondents seek affirmance of the judg-ment of the trial court. STATEMENT OF FACTS Respondents accept the statement of facts of appellants with the following clarifications and additions: Plaintiffs and the defendant Ron Gibb entered into an oral agreement, whereby plaintiffs were to perform excavation and backfill work for the defendant Ron Gibb.(TR. 2,3,13). Under the initial terms of this agreement the plaintiffs were -1-Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors.to dig and backfill basements at the rate of $100.00 per lot. Pursuant to this oral agreement plaintiffs excavated and back-filled thirty-five lots from January 1971 through August 1972. (TR.9). At the trial the plaintiff Louis Buzianis testified that he performed other excavating work at the specific request of the defendant Ron Gibb.(TR-3). This work involved digging trenches, cutting roads and sidewalks and backfilling.(TR.3,15). He further testified that he attempted to change the price from a lot to an hourly basis.(TR.4). The defendant Ron Gibb testified that there was never an agreement concerning an increase in costs of excavation but said that they had agreed to Mdo it in the future".(TR.12). Plaintiffs admitted that they received $850,00 from the defendant Ron Gibb for the above described services and had credited it to the amount due and owing under the oral agreement (TR.6). Plaintiff Louis Buzianis testified that a billing was prepared at his direction from his personal records and submit-ted to the defendant Ron Gibb in the amount of $2,665.00 or the amount prayed for in plaintiffs1 Complaint. (TR.6). The court received a copy of this bill as evidence and marked it Exhibit No. 1 which the defendant Ron Gibb did not object to.(TR.6). POINT I .,,..' THE JUDGMENT OF THE TRIAL COURT WAS SUPPORTED BY THE EVIDENCE Plaintiffs filed suit against Ron Gibb personally and <-... - 2 -Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors.TABLE OF CONTENTS Page No. Statement Of The Nature Of The Case 1 Disposition In The Lower Court 1 Relief Sought On Appeal 1 Statement Of Facts 1 POINT I. The Judgment Of The Trial Court Was Sup-ported By The Evidence. 2 POINT II. The Amount Of The Judgment Was Supported By The Evidence. 4 Conclusion 6 Cases Cited Hardy v. Hendrickson, 27 Utah 2d 251, 495 P. 2d 28 6 (A \ Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors.IN THE SUPREME COURT OF THE STATE OF UTAH LOUIS BUZIANIS & GUS BUZIANIS, Plaintiffs-Respondents, vs. BENEFICIAL HOMES, INC., a Utah Corporation, and RONALD GIBB, Defendants-Appellants. CASE NO. 14258 BRIEF OF RESPONDENTS Louis Buzianis and Gus Buzianis Appeal from the judgment of the Third Judicial District Court of Tooele County. Gordan R. Hall, District Judge, Presiding EDWARD A. WATSON Tooele County Courthouse Tooele, Utah 84074 Attorney for Plaintiffs-Respondents E. Nordell Weeks Ted Boyer MCMILLAN and BROWNING 1020 Kearns Building Salt Lake City, Utah 84101 Attorneys for Defendants-Appellants Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors.Beneficial Homes Incorporated, for excavation services perform-ed. The oral agreement to perform this excavation work was entered into between the plaintiffs and the defendant Ron Gibb personally.(TR.3,13). The plaintiff Louis Buzianis testified at trial that Mthe defendant Ron Gibb approached him personally and requested that certain work be done": (TR. 2, 3) . He also testified that when he requested a price increase for his services he spoke directly to Ron Gibb, and Ron Gibb testified that in response thereto he said that they agreed to get together.(TR.5,7,12) Finally, plaintiff Louis Buzianis stated that he presented a bill for services directly to Ron Gibb and he received payment from Ron Gibb personally.(TR.7,8,15,16). The court clarified the status of Ron Gibb as a party defendant at the trial when it stated on page 11 of the trans-cript the following: f,The Court: Gentlemen, so that the record will be clear in this matter, is it correct that we are now proceeding only with Mr. Gibb as a defendant. . . " "Mr. Watson: We are proceeding against Mr. Gibb, yes." "The Court: All right and him alone?" "Mr. Watson: Right." "The Court: So that his appearance today is in behalf of himself and certainly not on behalf of Beneficial Homes, Inc." "Mr. Watson: That is right, your honor." The evidence is clear that the defendant Ron Gibb person-ally entered into an oral agreement with the plaintiffs and -3-Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors.thereafter never did anything inconsistent with that personal representation and involvement in the matter. There was no evidence introduced at the trial indicating that Ron Gibb was the principal operating officer of Beneficial Homes, Inc. The defendant Ron Gibb never made any statements concerning the fact that the work he requested to be done was for anyone other than himself. Ron Gibb at no time during the trial men-tioned the name of Beneficial Homes, Inc., the part it played in the transaction at issue, if any, or his relationship to that corporation. The only evidence before the court was that Ron Gibb personally contracted for plaintiffs services and that work was thereafter performed by the plaintiffs at Mr. Gibb's direction. After the plaintiffs action was filed Mr. Gibb personally and in his own behalf filed his answer to plaintiffs' Complaint and never thereafter made any attempts to cross-claim against Beneficial Homes, Inc., or represent to the court that he was acting other than in his own behalf. POINT II THE AMOUNT OF THE JUDGMENT WAS SUPPORTED BY THE EVIDENCE. Plaintiff Louis Buzianis testified that the original agreement between the parties was that the plaintiffs would dig basements and backfill them at the rate of $100.00 per lot.(TR-4). Defendant Ron Gibb also testified that an agreement had been entered into between the parties.(TR.13). Plaintiff Louis Buzianis testified that he had excavated -4-Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors.and backfilled basements on thirty-five lots between January 1971 and August 1972, at the request of Ron Gibb and pursuant to the oral agreement.(TR.9). Louis Buzianis also testified that he had received $850.00 from Ron Gibb as partial payment for the thirty-five basements excavated and for other excavation work performed at the request of the defendant, including excavating of trenches, roads and sidewalks.(TR.3,6). These statements were uncontro-verted by the defendant Ron Gibb at the trial. The plaintiff Louis Buzianis testified that he attempted to negotiate a change of price from a lot to an hourly basis with Ron Gibb, since he was doing more than digging and backfill-ing basements on each lot.(TR.4). The plaintiff was induced to continue performing excavation work by the defendant Ron Gibb's response that an agreement would be reached in the future.(TR. 12). The plaintiffs1 bill for work performed xvas at the rate of $15.00 per hour. The total bill was for $2,665.00 and the amount prayed for in plaintiffs' Complaint. The $850.00 received by the plaintiffs had been previously credited in defendant's favor. Even if the trial court had based its judgment on the original agreement of $100.00 per lot for a basement dug and backfilled it would have reached substantially the same result, as it did on an hourly basis. Plaintiff Louis Buzianis' uncontroverted testimony is that he dug basements and backfilled them on thirty-five lots, at Ron Gibb's request.(TR.9). At $100.00 per lot this is a Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors.total of $3,500.00. If the defendant is credited $850.00 this leaves a total of $2,650.00 due and owing the plaintiffs. This is a difference of $5.00 frora the amount of the judgment render-ed by the court and it is clear that substantial evidence favors the courts findings and judgment. .*••*« v I n Hardy v. Hendrickson 27 Utah 2d 251, 495 P. 2d 28, this court stated general rule with respect to review of a trial court's findings at page 254 as follows: -n0n appeal the evidence is viewed in the light most favorable to sustain the lower court, _ , and the findings will not be disturbed unless they are clearly against the weight of evidence. . ." It can not be stated in present case that the judgment is clearly against the weight of evidence. ^ . . , , CONCLUSION The evidence presented to the trial court clearly indicat-ed that the defendant Ron Gibb personally entered an oral agree-ment to pay plaintiffs for excavation work and that he was person-ally liable for the services rendered. The court's judgment whether based on an hourly rate or on a lot basis would be sub-stantially the same and the evidence supports the judgment. RESPECTFULLY SUBMITTED this 10th day of March, 1976. EDWARD A, WATSON Tooele County Courthouse Tooele, Utah 84074 Attorney for Plaintiffs-ResDondents Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors.RECEIVED LAW LIBRARY SEP 16 1976 BRIGHAM YOUNG UNIVERSITY J. Reuben Clark Law School Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors.

Louis Buzianis and Gus Buzianis v. Beneficial Homes, Inc., Ronald Gibb : Brief of Respondent

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Louis Buzianis and Gus Buzianis v. Beneficial Homes, Inc., Ronald Gibb : Brief of Respondent

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