Conder v. A.L. Williams & Associates, Inc.
| Decision Date | 25 June 1987 |
| Docket Number | No. 860073-CA,860073-CA |
| Court | Utah Court of Appeals |
| Parties | James D. CONDER, Plaintiff and Appellant, v. A.L. WILLIAMS & ASSOCIATES, INC., a Georgia corporation; Massachusetts Indemnity and Life Insurance Company, a Massachusetts corporation; and Bryce D. Peterson, Defendants and Respondents. |
Dennis L. Wright, Roger D. Sandack, Giauque & Williams, Salt Lake City, for plaintiff and appellant.
Clifford C. Ross, Hanson, Dunn, Epperson & Smith, Salt Lake City, for defendants and respondents.
Before BILLINGS, JACKSON and ORME, JJ.
James D. Conder ("Conder") filed suit against A.L. Williams & Associates, Inc. ("Williams"), Massachusetts Indemnity and Life Insurance Company ("MILICO"), and Bryce D. Peterson ("Peterson") alleging five causes of action stemming from an employment contract. The district court granted partial summary judgment thereby dismissing the first cause of action alleging fraud and misrepresentation in the inducement of the contract. The remaining causes of action are before the district court. The court thereafter denied Conder's motion to amend the partial summary judgment and entered its judgment pursuant to Utah R.Civ.P. 54(b) from which Conder appeals. We reverse and remand for further proceedings.
First we must resolve a preliminary evidentiary matter. Both parties quoted extensively from the depositions of Conder in support of and in opposition to the motion for partial summary judgment which is the subject of this appeal. Williams and MILICO in their brief on appeal rely heavily on facts in these depositions. It is conceded, however, that the depositions were not published in the proceedings below. Although Williams and MILICO endeavor to characterize this oversight as a technical one, namely that of failing to formally move that the depositions be published, we cannot agree. After a close review of the record we find no evidence that the depositions were in fact ever filed with the district court, much less that the trial judge had actual access to the deposition transcripts when hearing and deciding Williams' and MILICO's motion for summary judgment. In this situation where the parties cite the same depositions to support conflicting versions of the facts, we believe that documentation that the trial judge had access to the deposition transcripts is essential.
Recognizing their error, Williams and MILICO filed a motion to supplement the record to include Conder's depositions. The supreme court, after briefing on the merits, denied this motion on February 19, 1985.
The case was subsequently transferred to this Court pursuant to Utah Code Ann. § 78-2-2(4) (1987) and R. Utah Ct.App. 4A. When, as here, a case is transferred to us from the supreme court, we stand in that court's shoes for all purposes pertinent to the case. We become fully entitled to manage the case now before us. We are not bound by what the supreme court has thus far done in the case merely because it is the supreme court and we are, in other respects, a lower court.
However, the prior denial of the motion to supplement the record is now the "law of the case" and we decline to reconsider that decision. There are sound policy considerations supporting the "law of the case" doctrine and the principle that a court should not reconsider and overrule a decision made by a co-equal court. Sittner v. Big Horn Tar Sands & Oil, Inc., 692 P.2d 735, 736 (Utah 1984). As Justice Zimmerman states:
One branch of what is generally termed the doctrine of "law of the case" has evolved to avoid the delays and difficulties that arise when one judge is presented with an issue identical to one which has already been passed upon by a coordinate judge in the same case. "[O]rdinarily one judge of the same court cannot properly overrule the decision of another judge of that court." Richardson v. Grand Central Corp., 572 P.2d at 397.
Id. at 736. Cf. Daly v. Sprague, 742 F.2d 896, 900 (5th Cir.1984) ().
Our decision is mandated not only on legal grounds but also by practical concerns. In their appellate briefs, counsel disagree as to the facts which can be gleaned from Conder's depositions and this Court has no way to independently verify the facts. Furthermore, as is more fully developed in section IV of this opinion, even if the facts from the Conder depositions as cited by Williams and MILICO were taken as true, there are issues of material fact which preclude summary judgment. Finally, our decision should not cause undue delay. Our remand will allow this highly factual fraud action to be tried at the same time as the other claims remaining before the district court.
The depositions of Conder, therefore, are not part of the record and the facts contained therein are not legally before this Court.
The following facts are properly before this Court. In the early part of 1980, Conder had several conversations with agents of Williams and MILICO. Conder maintains that Williams and MILICO fraudulently misrepresented the nature of their business and thus his employment opportunities. Specifically, Conder alleges he was told that Williams was a full service financial company dealing in insurance, real estate, securities, gold, silver, and annuities and that he would have employment opportunities as an investment counselor in these areas. Relying upon these statements, Conder alleges he terminated his former employment and was induced to work as an agent of MILICO, as part of the Williams organization. As a result, he alleges he was deprived of income that he might have earned working in investment counseling with securities, annuities, gold, silver, and real estate.
Conder entered into a written agent agreement with Williams on March 10, 1980 which expressly limited Conder's authority to selling life insurance and annuities for MILICO. Conder's initial job training was in insurance. Conder continued to work for Williams believing, based upon the representations of Williams and MILICO, that his training in securities and other investment areas would begin later. At some point (not clear in the record), Conder learned that Williams was not authorized to do business as a full service financial company, but only as an insurance agency. Conder claims that by the time he discovered that Williams was only an insurance organization, he had no other source of income, and continued to work for Williams to support his family. He was employed by Williams selling MILICO insurance from April, 1980 to September, 1981.
Conder filed suit on August 27, 1982 against Williams, MILICO, and Peterson 1 alleging, among other things, that based upon their fraudulent misrepresentations as to the nature of his employment opportunities, he was induced to terminate his prior employment and to enter into the agent's agreement and was deprived of income he might have derived from working in the area of securities and real estate investment counseling.
The court granted Williams' and MILICO's motion for partial summary judgment finding that Conder had failed to establish fraud as a matter of law.
Conder contends there were numerous issues of material fact before the trial court which precluded summary judgment on his fraud claim. Summary judgment should be granted only when it is clear from the undisputed facts that the opposing party cannot prevail. Frisbee v. K & K Const. Co., 676 P.2d 387, 389 (Utah 1984); see Utah R.Civ.P. 56(c). In considering a summary judgment motion, the court must evaluate all the evidence and all reasonable inferences fairly drawn from the evidence in a light most favorable to the party opposing summary judgment. Frisbee, 676 P.2d at 389.
This Court must determine whether the undisputed facts properly before us support the trial court's conclusion that Conder, as a matter of law, could not have established a claim for fraudulent misrepresentation in the inducement of his employment contract.
The essential elements in a fraudulent misrepresentation action are:
(1) [t]hat a representation was made;
(2) concerning a presently existing material fact;
(3) which was false;
(4) which the representor either
(a) knew to be false, or
(b) made recklessly, knowing that he had insufficient knowledge upon which to base such representation;
(5) for the purpose of inducing the other party to act upon it;
(6) that the other party, acting reasonably and in ignorance of its falsity;
(7) did in fact rely upon it;
(8) and was thereby induced to act;
(9) to his injury and damage.
Pace v. Parrish, 122 Utah 141, 144-45, 247 P.2d 273, 274-75 (1952).
Williams and MILICO in the court below contended: 2 (1) Conder's reliance was unreasonable as a matter of law; (2) Conder suffered no damage as he could not recover for damages accruing after he learned of the "falsity" of the representations; (3) there was no representation made concerning a presently existing material fact; and, (4) the representations made to Conder were not false. In entering partial summary judgment, the trial court apparently relied on the issues of reasonable reliance and/or lack of damages. 3
In a fraud action, a plaintiff must demonstrate that he or she, acting reasonably and in ignorance of the statement's falsity, did in fact rely upon the misrepresentation. Pace, 122 Utah at 145, 247 P.2d at 275. Thus, not only must there be reliance, but the reliance must be justifiable under the circumstances. Prosser and Keeton explain the policy behind the requirement of reasonable reliance: 4
The principle argument in support of some such requirement as justifiability of reliance would seem...
To continue reading
Request your trial
-
Govert Copier Painting v. Van Leeuwen
...when there is no record the trial judge had access to those facts when deciding the motion at issue. Conder v. A.L. Williams and Associates, 739 P.2d 634, 636 (Utah Ct.App.1987); Alford v. Utah League of Cities and Towns, 791 P.2d 201, 206 n. 3 (Utah Ct.App.1990). Furthermore, the portions ......
-
Topline Solutions, Inc. v. Sandler Sys., Inc.
...33 F.3d 159, 164 (2d Cir. 1994) (applying New York law); Lewis v. Cohen, 603 A.2d 352, 354 (Vt. 1991); Conder v. A.L. Williams & Assocs., Inc., 739 P.2d 634, 638 (Utah Ct. App. 1987); Foust v. Valleybrook Realty Co., 446 N.E.2d 1122, 1125 (Ohio Ct. App. 6th Dist. 1981). Moreover, the Maryla......
-
Dorato v. Smith
...conduct discovery.See Response at 2 (citing Chavez v. City of Albuquerque, 402 F.3d 1039 (10th Cir.2005) ; Conder v. A.L. Williams & Assocs., 739 P.2d 634, 641 n. 1 (Utah Ct.App.1987) ). The Plaintiffs argue that Smith's contradictory statements create credibility issues that a jury, and no......
-
Territorial Sav. & Loan Ass'n v. Baird
...summary judgment. Evidence not available to the trial judge cannot be added to the record on appeal, Conder v. A.L. Williams & Assocs., Inc., 739 P.2d 634, 635-36 (Utah Ct.App.1987), and thus we deny TSL's motion to supplement. Accordingly, we consider only facts properly before the trial c......
-
Article a Primer on Pleading Fraud Claims in Utah
...or he has discovered something which should serve as a warning that he is being deceived.” Conder v. A.L. Williams & Assocs., Inc., 739 P.2d 634, 638 (Utah Ct.App. 1987). Question 4: What was the Injury Resulting from the Misrepresentation? “No injury, no tort, is an ingredient of every sta......