Prowswood, Inc. v. Mountain Fuel Supply Co.
| Decision Date | 06 January 1984 |
| Docket Number | 18511,No. 18404,18404 |
| Citation | 676 P.2d 952 |
| Parties | PROWSWOOD, INC., et al., Plaintiffs and Appellants, v. MOUNTAIN FUEL SUPPLY CO., Defendant and Respondent. PROWSWOOD, INC., et al., Plaintiffs and Respondents, v. MOUNTAIN FUEL SUPPLY CO., Defendant and Appellant. |
| Court | Utah Supreme Court |
Bill Thomas Peters, Michael Z. Hayes, Salt Lake City, for plaintiffs and appellants.
Robert S. Campbell, Salt Lake City, for defendant and respondent.
These consolidated appeals arise out of an action commenced by Prowswood Corporation (hereinafter "Prowswood") against Mountain Fuel Supply Company (hereinafter "Mountain Fuel") for damages resulting from the alleged breach of an oral contract and the alleged negligent misrepresentation made in connection with the promotion and sale of gas air conditioning. Following a dismissal of the action with prejudice, Prowswood filed an appeal based on the following contentions: (1) the lower court's dismissal for failure to prosecute the action in the name of the real party in interest violated the purpose and language of Rule 17(a) of the Utah Rules of Civil Procedure; (2) incorporation of Prowswood's negligent misrepresentation cause of action in the final pretrial order precluded the dismissal of said claim on the first day of trial; (3) the lower court disregarded statutory procedural safeguards in dismissing Prowswood's tort claim on the basis of Mountain Fuel's motion in limine; (4) Mountain Fuel's circumvention of statutory procedural rules through improper implementation of the motion in limine had a prejudicial impact upon Prowswood; and (5) the lower court erroneously dismissed Prowswood's claim for negligent misrepresentation as not being a judicially recognized cause of action.
Mountain Fuel subsequently filed a response in the Prowswood appeal and in addition filed a separate appeal from an order of the lower court granting Prowswood's motion for an extension of time to file its notice of appeal. As the basis for this appeal, Mountain Fuel contends that the timely payment of the docketing fee and filing fee is required to perfect an appeal and that failure to perfect an appeal due to mere inadvertence or oversight does not constitute excusable neglect.
The facts that precipitated Prowswood's cause of action and that pertain equally to both appeals are set forth immediately hereafter. Following this, the specific procedural facts giving rise to the Prowswood appeal and those giving rise to the Mountain Fuel appeal are stated separately.
Prowswood is a closely held corporation engaged in the development of real estate. It is presently owned by Richard Prows and Robert Wood and their families. 1 During the years 1969 through 1974, Messrs. Prows and Wood, serving in their official corporate capacities as president and vice-president respectively, were approached by sales representatives of Mountain Fuel with the prospect of installing gas air-conditioning units in their apartment projects. It is alleged by Prowswood that the sales representatives, particularly one Riley, made the following oral representations with respect to the gas air-conditioning proposal:
(A) The initial costs would be greater with gas air conditioning, but there would be no maintenance cost because Mountain Fuel would perpetually service and/or maintain all the units.
(B) Mountain Fuel would guarantee the air-conditioning units if they were installed according to the sizing recommendations and instructions furnished by Mountain Fuel.
(C) Mountain Fuel would maintain a complete parts inventory to provide for rapid replacement of parts for the units.
Prowswood further contends that it relied upon these representations when it purchased gas air-conditioning equipment and installed such equipment in a large apartment complex known as Lake Pines Apartments.
According to the allegations of Prowswood's amended complaint, as well as Mr. Prows' testimony at trial, the air-conditioning units installed in the Lake Pines Apartments developed serious operational problems. When called upon to service the malfunctioning units, Mountain Fuel denied having made the alleged warranties and promises and ultimately refused to repair the units. Consequently, Prowswood brought this action against Mountain Fuel for breach of contract and negligent misrepresentation.
This action, although commenced on March 10, 1977, did not proceed to trial until January 20, 1982. Prior to the trial, a final pretrial order was prepared, approved as to form by both parties and filed pursuant to the court's order. The order sets forth Prowswood's claim for damages based on both breach of contract and negligent misrepresentation theories.
On January 19, 1982, the day before the scheduled trial, counsel for Mountain Fuel served upon counsel for Prowswood a motion in limine to dismiss plaintiff's fraud claim. On the next day, January 20, prior to commencement of the trial, counsel for Prowswood served upon opposing counsel a reply and objection to the motion in limine. Argument was then heard by the court on this motion (prior to trial), resulting in the dismissal of Prowswood's claim for negligent misrepresentation. The court concluded that although the allegations of the amended complaint were legally sufficient to state a cause of action for breach of contract, the allegations were insufficient to state a claim for misrepresentation.
After the jury was impaneled and during the presentation of Prowswood's case in chief, it was discovered through testimony given by Mr. Prows that the owner of the Lake Pines Apartments at the time the alleged oral contract was entered into was a partnership entity known as Lake Pines Development Company (hereinafter "Lake Pines") and not Prowswood, the plaintiff in the action. Counsel for Mountain Fuel therefore made a motion to dismiss the case for failure to prosecute in the name of the real party in interest. 2 Argument on this motion was then heard outside the presence of the jury. Counsel for Prowswood, while conceding its mistake as to the legal ownership of the Lake Pines Apartments, offered to have the partnership (Lake Pines Development) ratify the action or be substituted therein pursuant to Rule 17(a) of the Utah Rules of Civil Procedure. Prowswood argued that the ownership composition of both Prowswood and Lake Pines is the same with the exception of the children of Messrs. Prows and Wood. It further argued that Prowswood Corporation was a managing entity with respect to the subject apartments and that in its managerial capacity it had entered into the oral agreement with Mountain Fuel for the benefit of the owner/principal, Lake Pines Development. Notwithstanding Prowswood's arguments, the court dismissed the action with prejudice, reasoning that a substitution or ratification of the action by Lake Pines would not solve or reconcile the factual dilemma of Prowswood's having privity of contract with Mountain Fuel but no damages and Lake Pines' having damages but no privity of contract.
A final judgment in this matter, together with findings of fact and conclusions of law, was entered on March 18, 1982. A notice of appeal was then prepared by counsel for Prowswood and filed by way of a "runners" service on April 14, 1982.
On April 23, 1982, some five days after the expiration of the statutory thirty-day period for filing an appeal, 3 Prowswood received notice from the district court clerk's office that neither the filing fees nor the docketing fees had been received on the date the notice of appeal had been filed. Prowswood immediately filed an ex parte motion for an extension of time for filing notice of appeal, which motion was summarily granted, extending the time for completing the filing to April 28, 1982.
Counsel for Mountain Fuel became apprised of Prowswood's motion for extension on April 28, 1982. Thereafter, on May 7, 1982, Mountain Fuel filed a motion to set aside the order that extended the time for filing the notice of appeal. At the May 14 hearing on the motion, the court set aside the April 23 order on the basis of Prowswood's failure to give proper notice, which denied Mountain Fuel an opportunity to be heard. However, upon further hearing it was determined that Prowswood's inadvertent failure to accompany the notice of appeal with the requisite fees was excusable neglect, and the time for paying such fees was extended to May 17, 1982. From this order, Mountain Fuel appeals.
The focus of this appeal is upon two provisions of Rule 73(a) of the Utah Rules of Civil Procedure. These two provisions, as they appear in the text of said rule, are as follows:
(a) When an appeal is permitted from a district court to the Supreme Court, the time within which an appeal may be taken shall be one month from the date of the entry in the Register of Actions of the judgment or order appealed from unless a shorter time is provided by law, except that upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal not exceeding one month from the expiration of the original time herein prescribed. Such an extension may be granted by the district court before or after the expiration of the original time herein prescribed; ....
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A party may appeal from a judgment by filing with the district court a notice of appeal, together with sufficient copies thereof for mailing to the Supreme Court and all other parties to the judgment, and depositing therewith the fee required for docketing the appeal in the Supreme Court. The clerk of the district court shall forthwith transmit one copy of the notice of appeal, showing the date of filing, together with the required fee, to the Supreme Court where the appeal shall be duly docketed. Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from...
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