Briggs v. Holcomb, 860027-CA

• Court: Utah Court of Appeals
• Writing for the Court: ORME
• Citation: Briggs v. Holcomb, 740 P.2d 281 (Utah App. 1987)
• Decision Date: 29 July 1987
• Docket Number: No. 860027-CA,860027-CA
• Parties: John C. BRIGGS and Carol G. Briggs, Plaintiffs and Respondents, v. Steven HOLCOMB, Defendant and Appellant.

Page 281

740 P.2d 281

John C. BRIGGS and Carol G. Briggs, Plaintiffs and Respondents, v. Steven HOLCOMB, Defendant and Appellant.

No. 860027-CA.

Court of Appeals of Utah.

July 29, 1987.

Larry R. Keller, Salt Lake City, and Michael S. Eldredge, Park City, for defendant and appellant.

Robert F. Babcock, Walstad & Faust, Salt Lake City, for plaintiffs and respondents.

Before ORME, GARFF and DAVIDSON, JJ.

ORME, Judge:

After an unrecorded teleconference, the district court granted summary judgment in favor of respondents Briggs, holding that they were entitled to elect the remedy of foreclosure after appellant Holcomb defaulted on the obligations under a Uniform Real Estate Contract which had been assigned to him. Holcomb seeks outright reversal of the summary judgment or, alternatively, a new hearing so a record can be made. We affirm.

FACTUAL BACKGROUND

On October 1, 1980, the Briggs, as sellers, entered into a Uniform Real Estate Contract for the sale of apartment units in Salt Lake City. The buyers, Edmunds, Bowen, and Evans ("Edmunds"), simultaneously with the execution of the contract gave the Briggs a $13,000 note "as additional security ... due to no downpayment," secured by an assignment of contract and a quitclaim deed. The quitclaim deed, with instructions, was held in escrow by Alta Title Company. On August 9, 1982, Edmunds sold the property to Holcomb. That sale was memorialized by an assignment to Holcomb of the buyer's rights under the 1980 contract with Briggs.

Holcomb fell behind in the payments almost immediately. The Briggs threatened to foreclose, but the parties worked out a compromise agreement. Holcomb again fell behind in the payments. Under paragraph 16C of the Uniform Real Estate Contract, the Briggs elected to accelerate the payments, treat the contract as a note and mortgage, and foreclose. Holcomb failed to cure his default after receipt of notice from the Briggs.

The Briggs brought this action and moved for summary judgment. Holcomb counterclaimed, alleging that Edmunds misrepresented the nature of the contract. Holcomb further claimed that by accepting Edmunds' quitclaim deed and assignment for security, the Briggs had elected as their remedy that provided in paragraph 16A of the contract, which would allow the Briggs to retake possession of the property and keep all payments as liquidated damages. ¹

At this point, the facts take an unusual twist. The hearing on the Briggs' motion for summary judgment was held via teleconference on January 27, 1984, as part of an experiment conducted at the Utah State Bar's mid-year meeting. No transcript of the teleconference was kept, in accordance with Rule 2(k) of the Rules of Practice of the Third District Court. See Note 3, infra. Counsel for Holcomb participated from the hospital where his wife was about to give birth. Counsel for Holcomb was unaware that no record was being made. To make matters worse, his secretary had failed to file (and apparently lost) his memorandum in opposition to the motion. Not only was his memorandum not before the court, but he had received opposing counsel's memorandum only fifteen minutes before the teleconference. In spite of these bizarre circumstances, Holcomb's counsel, understandably not wishing to inconvenience the trial court judge and the many lawyers attending the Bar conference, failed to request a continuance. ²

Holcomb raises two principal issues on appeal. First, whether Rule 2(k) of the Third District Court Rules of Practice, which allows unrecorded hearings, is unconstitutional, and second, whether the trial court erred in granting summary judgment.

COURTS OF RECORD

Under the Utah Constitution, district courts are courts of record. Utah Const. Art. VIII, § 1. We share appellant Holcomb's concern about the selective making of records in the face of that requirement. Of course, the problem is larger than the local procedure permitting unrecorded teleconferences. ³ Other areas of concern include law and motion practice, closing arguments, and conferences in chambers. Although consistently making a record of all proceedings imposes a greater burden on the trial court and court reporters, ⁴ it is impossible for an appellate court to review what may ultimately prove to be important proceedings when no record of them has been made.

Notwithstanding this concern, we are convinced that although prejudicial error can result from failure to make a complete record, we need not reach the issue of whether Rule 2(k) is unconstitutional because, in the instant case, the potential for prejudice is remedied by the intensive scrutiny given summary judgments on appeal.

SUMMARY JUDGMENT

Summary judgment is appropriate whenever "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Utah R.Civ.P. 56(c). On reviewing a summary judgment, an appellate court applies the same standard as that applied by the trial court. Durham v. Margetts, 571 P.2d 1332, 1334 (Utah 1977). "[W]e consider the evidence in the light most favorable to the losing party, and affirm only where it appears there is no genuine dispute as to any material issues of fact, or where, even according to the facts as contended by the losing party, the moving party is entitled to judgment as a matter of law." ⁵ Themy v. Seagull Enterprises, Inc., 595 P.2d 526, 528-29 (Utah 1979).

After a careful and independent review of the record, we find that the Briggs were entitled to judgment as a matter of law. In his lengthy affidavit, which was spared the fate of the memorandum, Holcomb avers that Edmunds made misrepresentations about the effect of the quitclaim deed and...