Israel Pagan Estate v. Capital Thrift and Loan, 870503

• Decision Date: 17 March 1989
• Docket Number: No. 870503,870503
• Citation: 104 Utah Adv.Rep. 3,771 P.2d 1032
• Parties: ISRAEL PAGAN ESTATE and Leonor C. Pagan, Personal Representative, Plaintiffs and Petitioners, v. CAPITOL THRIFT AND LOAN, a financial corporation, Joseph N. Cannon, Dorius Black, Alpha Leasing Company, a partnership; Robert D. Apgood, Joseph N. Cannon, Dorius Black, and Richard McKean, doing business under the name and style of Alpha Leasing Company, Bill Brown Realty, Inc., Scott Peatross, personally, Stewart Title Company of Utah, Tommy W. Sisk and Merlyn Hanks, Defendants and Respondent.
• Court: Utah Supreme Court

Page 1032

771 P.2d 1032

ISRAEL PAGAN ESTATE and Leonor C. Pagan, Personal Representative, Plaintiffs and Petitioners, v. CAPITOL THRIFT AND LOAN, a financial corporation, Joseph N Cannon, Dorius Black, Alpha Leasing Company, a partnership Robert D. Apgood, Joseph N. Cannon, Dorius Black, and Richard McKean, doing business under the name and style of Alpha Leasing Company, Bill Brown Realty, Inc., Scott Peatross, personally, Stewart Title Company of Utah, Tommy W. Sisk and Merlyn Hanks, Defendants and Respondent.

No. 870503.

Supreme Court of Utah.

March 17, 1989.

Mark S. Miner, Salt Lake City, for plaintiffs and petitioners.

Kay M. Lewis, Kevin V. Olsen, Mel S. Martin, and Bruce H. Shapiro, Salt Lake City, for defendants and respondents.

STEWART, Justice:

This Court granted the petition for a writ of certiorari in this case on February 23, 1988. We have heard oral arguments and studied the briefs and record, and it now appears that certiorari was improvidently granted. The case is, therefore, dismissed.

HALL, C.J., and DURHAM and ZIMMERMAN, JJ., concur.

HOWE, Associate Chief Justice (dissenting):

I dissent. I do not join the Court in dismissing the writ of certiorari because it was improvidently granted. I would reach the merits of the case and affirm the judgment of the Court of Appeals. Israel Pagan Estate v. Cannon, 746 P.2d 785 (Utah Ct.App.1987).

The United States Supreme Court on occasion dismisses writs of certiorari which it has granted on the ground that the writs were improvidently granted. That Court does not always state its reasons when it takes such action. However, there are numerous instances in which the Court has given an explanation. See Stern, Gressman, & Shapiro, Supreme Court Practice, § 5.15, at 288 (6th ed.1986). In general, dismissals occur when (1) there is a change in circumstances since the writ was granted and (2) the basis upon which the writ was granted appears, upon closer examination, to be nonexistent.

As illustrative of category one, the Court in Quinn v. Muscare, 425 U.S. 560, 96 S.Ct. 1752, 48 L.Ed.2d 165 (per curiam), reh'g denied, 426 U.S. 954, 96 S.Ct. 3183, 49 L.Ed.2d 1194 (1976), dismissed the writ because the principal question raised had been determined by the Court in another case and the procedural objection had been remedied for the future by a change in the administrative regulation. Similarly, an intervening court decision or change in a statute may eliminate the issue or make it unlikely that the question will arise again, at least in the same context. Cook v. Hudson, 429 U.S. 165, 97 S.Ct. 543, 50 L.Ed.2d 373 (1976) (per curiam). See also Sanks v. Georgia, 401 U.S. 144, 91 S.Ct. 593, 27 L.Ed.2d 741 (1971), where an appeal was dismissed after oral argument because new factual and legal developments, including new state legislation, made it inappropriate to decide original issues.

As illustrative of cases falling into category two, the Court dismissed a writ of certiorari as having been improvidently granted when an apparent conflict of decisions between two circuit courts of appeals disappeared upon closer analysis. Layne & Bowler Corp. v. Western Well Works, 261 U.S. 387, 43 S.Ct. 422, 67 L.Ed. 712 (1923). Also, an important issue was found not to be presented by the record in McCarthy v. Bruner, 323 U.S. 673, 65 S.Ct. 126, 89 L.Ed. 547 (1944) (per curiam). A hitherto unsuspected jurisdictional defect may become apparent, such as the absence of a decision by the highest state court in which a decision could be had. Gorman v. Washington Univ., 316 U.S. 98, 62 S.Ct. 962, 86 L.Ed. 1300 (1942). Further, decision of the question upon which certiorari was granted may prove unnecessary since the judgment below was clearly correct on another ground. The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 79 S.Ct. 710, 3 L.Ed.2d 723 (1959). In another case, after full argument and due consideration, it became manifest that the course of litigation and the decisions in the state courts did not turn on the issue on the basis of which certiorari was granted. Smith v. Butler, 366 U.S. 161, 81 S.Ct. 937, 6 L.Ed.2d 184 (1961) (per curiam).

According to the recollection of this writer, certiorari was granted in the instant case because we were concerned that the Court of Appeals had overturned a jury verdict which had found Capitol Thrift guilty of civil conspiracy. The...