Holbrook Co. v. Adams

• Decision Date: 04 November 1975
• Docket Number: No. 14005,14005
• Citation: 542 P.2d 191
• Parties: HOLBROOK COMPANY, a Utah Corporation, Plaintiff and Appellant, v. Stanley S. ADAMS et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 191

542 P.2d 191

HOLBROOK COMPANY, a Utah Corporation, Plaintiff and Appellant, v. Stanley S. ADAMS et al., Defendants and Respondents.

No. 14005.

Supreme Court of Utah.

Nov. 4, 1975.

Charles C. Brown and F. Burton Howard, of Boyden, Kennedy, Romney & Howard, Salt Lake City, for plaintiff-appellant.

John S. Adams, of Adams, Kasting & Anderson, Salt Lake City, for defendants-respondents.

CROCKETT, Justice:

Plaintiff Holbrook Company sued the three named defendants, alleging they were a partnership dba The Exchange, for the value of work and materials furnished in remodeling the building at 39 Exchange Place in Salt Lake City: one count is in quantum meruit and one is for failure to file the bond required by Section 14-2-1, U.C.A.1953, to protect those furnishing such services. Defendants do not question that those causes of action are sufficiently stated. They filed a verified motion to dismiss, asserting therein that they were not a partnership; and that neither as a partnership nor individually had they contracted with the plaintiff. In opposition thereto plaintiff filed the affidavit of its president, Mr. Ben Holbrook, averring dealings with Mr. Stanley Adams, through architects hired by the latter, concerning requesting the remodeling in question; and also presented a certificate which had been filed with the Secretary of State in which Stanley S. Adams had certified that the three defendants were carrying on business at the named premises under the assumed name of 'The Exchange.' Pursuant to a hearing the trial court ruled that The Exchange Place Social Association, a nonprofit corporation, was the 'proper defendant,' granted plaintiff ten days to refile against it, and dismissed the action as to the individual defendants. Plaintiff appeals.

It is not made clear in the record whether the trial court treated the defendants' 'motion to dismiss' as a motion to dismiss for failure to state a claim under Rule 12(b)(6) U.R.C.P., or as a motion for summary judgment under said Rule and under Rule 56. Defendants' brief states that they 'would agree with plaintiff's allegation that, due to the acceptance of evidence and exhibits outside of the pleadings themselves, the trial court's ruling was one treating and granting defendants' motion as a motion for summary judgment.'

In spite of the concession just recited, (with which we agree) ¹ defendants' position seems to be predicated upon the fallacious assumption that there has been what amounts to a presentation of evidence and a determination upon the merits. This is the gravamen of their argument as shown by statements in their brief, some of which we except:

'. . . Judge Hanson could have ruled (and presumably did rule), by determining upon the evidence before him that these defendants did not act in an individual capacity and that, upon this sole question, no material issue of fact existed.'

Further: 'The lower court did have a duty to examine the entire evidence and, upon that evidence, to 'ascertain whether there are any material issues of fact in dispute."

They continue 'the court had more than ample evidence before it upon which to rule that defendant Adams was not acting in an individual capacity . . .' in the dealings with the plaintiff; and proceed to supplement that argument by stating that 'among other evidence, the lower court had the following before it . . .' and sets forth averments of facts recited in their motion to dismiss.

The error in the...