Richards v. Baum

• Decision Date: 28 March 1996
• Docket Number: No. 940160,940160
• Citation: 914 P.2d 719
• Parties: Lamar RICHARDS and Lynne P. Richards, individually and dba Markay Enterprises, Plaintiffs and Appellants, v. William Udell BAUM, Maxine L. Baum, Estate of Dean E. Terry, Vilate B. Terry, Steven Atom Baum, Florence G. Baum, Internal Revenue Service, IHC Hospitals, State of Utah, Recovery Services, Utah State Tax Commission, and Utah State Industrial Commission, Defendants and Appellees.
• Court: Utah Supreme Court

Page 719

914 P.2d 719

Lamar RICHARDS and Lynne P. Richards, individually and dba Markay Enterprises, Plaintiffs and Appellants, v. William Udell BAUM, Maxine L. Baum, Estate of Dean E. Terry Vilate B. Terry, Steven Atom Baum, Florence G. Baum Internal Revenue Service, IHC Hospitals, State of Utah Recovery Services, Utah State Tax Commission, and Utah State Industrial Commission, Defendants and Appellees.

No. 940160.

Supreme Court of Utah.

March 28, 1996.

David K. Smith, Midvale, for the Richardses.

Leslie W. Slaugh, Provo, for the Baums.

HOWE, Justice:

Plaintiffs Lamar and Lynne Richards brought this action seeking a decree quieting title and an order requiring defendants William and Maxine Baum to specifically perform a contract to sell certain real property located in Utah County. The Baums counterclaimed, seeking a decree quieting title in their favor. Following a bench trial, the court quieted title in favor of the Baums. The Richardses appeal.

In March 1994, the Richardses filed a notice of appeal. Pursuant to rule 6 of the Utah Rules of Appellate Procedure, they also filed a cost bond with the court. However, they did not seek or obtain a stay of the trial court's decree. ¹ In October 1994, the Baums conveyed the property to a third party. The Richardses do not contest the Baums' assertion that the conveyance was part of an arm's-length transaction.

The Baums have moved to dismiss this appeal, contending that it has become moot. The strong judicial policy against giving advisory opinions dictates that courts refrain from adjudicating moot questions. Merhish v. H.A. Folsom & Assocs., 646 P.2d 731, 732 (Utah 1982). Where the issues that were before the trial court no longer exist, the appellate court will not review the case. McRae v. Jackson, 526 P.2d 1190, 1191 (Utah 1974); Mikkelsen v. Utah State Tax Comm'n, 22 Utah 2d 438, 439-40, 455 P.2d 27, 27 (1969). "An appeal is moot if during the pendency of the appeal circumstances change so that the controversy is eliminated, thereby rendering the relief requested impossible or of no legal effect." Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1043 (Utah 1983); accord Morgan v. Morgan, 854 P.2d 559, 562 (Utah Ct.App.), cert. denied, 860 P.2d 943 (1993).

The Baums contend that since the trial court quieted title to the property in them and the Richardses did not seek or obtain a stay, the Baums were free to treat the property as their own. Furthermore, the Baums argue that since they no longer have an interest in the disputed property, the requested relief of specific performance cannot be granted even if this court should reverse the trial court's judgment. The Richardses, on the other hand, contend that despite the conveyance of the property, they could still pursue a remedy in damages on remand if this court were to decide that the trial court erred. These damages would presumably be proved at a later proceeding in the trial court if that court in its discretion allowed plaintiffs to amend their complaint to seek damages.

It is true that where a court of equity has jurisdiction over a controversy, it has discretionary power to award complete relief, including damages. Valley Mortuary v. Fairbanks, 119 Utah 204, 222, 225 P.2d 739, 749 (1950); Draper v. J.B. & R.E. Walker, Inc., 115 Utah 368, 374, 204 P.2d 826, 829 (1949); King Aircraft Sales, Inc. v. Lane, 68 Wash.App. 706, 846 P.2d 550, 555 (1993). In addition, where a plaintiff seeks specific performance of a contract and that relief is not available, the trial court may grant monetary damages for breach of contract. Wittick v. Miles, 274 Or. 1, 545 P.2d 121, 124 (1976); 81A C.J.S. Specific Performance § 202 (1977); 71 Am.Jur.2d Specific Performance § 214 (1973).

These rules of law would have permitted the Richardses to recover damages if they had prevailed on the merits at trial and found that the Baums were unable to specifically perform the contract. However, this court has taken a different approach when an appellant has failed to obtain a stay of the judgment and the remedy sought is thereafter rendered impossible. In Kellch v. Westland Minerals Corp., 26 Utah 2d 42, 484 P.2d 726 (1971), the plaintiff stockholders brought an action to require the defendant corporation to issue them free trading stock rather than investment stock. The trial court granted the relief sought, and the corporation appealed. The corporation took no steps to stay the operation of the judgment or to supply a supersedeas bond. The stockholders then sold and transferred the stock to third parties. This court held that it was "without power to grant any relief to the [corporation] and upon remand the court below would be equally powerless " and dismissed the appeal as moot. Kellch, 26 Utah 2d at 43, 484 P.2d at 726 (emphasis added). Thus we rejected the notion, now advanced by the Richardses, that even though the property has been sold due to the appellant's failure to obtain a stay or post a supersedeas bond, this court should decide the merits of the appeal and, if the appellant prevails, remand the case to the trial court, where the appellant could seek damages in lieu of the lost property.

This court has never held that when an appellant fails to obtain a stay and the property sought is conveyed in good faith to a third party, the appellant is entitled to return to the trial court to have damages awarded if successful on appeal. Neither the Richardses nor the dissent has cited a single case where this took place. Nor could they: other jurisdictions that have addressed this issue have denied such relief. For instance, the Illinois Appellate Court has held that "in the absence of a stay, an appeal is moot if possession or ownership of specific property which is inextricably involved in the relief being sought on appeal has been conveyed to third parties." Horvath v. Loesch, 87 Ill.App.3d 615, 43 Ill.Dec. 154, 157, 410 N.E.2d 154, 157 (1980) (citation omitted) (holding appeal moot on this basis). This holding is consistent with numerous other cases that held the appeal moot when the appellant failed to obtain a stay and the requested relief was subsequently rendered impossible. See, e.g., Masonry Arts, Inc. v. Mobile County Comm'n, 628 So.2d 334, 335 (Ala.1993) (public contract awarded and executed); Jones v. Matthis, 89 Ill.App.3d 929, 45 Ill.Dec. 298, 300, 412 N.E.2d 649, 651 (1980) (real estate sold); Hazzard v. Westview Golf Club, Inc., 217 A.2d 217, 226 (Me.1966) (golf course sold); Basiliko v. Welsh, 219 Md. 602, 150 A.2d 220, 221 (1959) (mortgaged property sold); Wagner v. Boggess Coal & Supply Co., 94 N.E.2d 64, 66 (Ohio Ct.App.1950) (corporation dissolved); Westinghouse Elec. v. Grand River Dam Auth., 720 P.2d 713, 721 (Okla.1986) (public contract awarded and executed). Any other result would nullify the requirement that the appellant obtain a stay pending appeal.

The dissent attempts to distinguish Kellch and the above cases by stating that in each case, the action was moot because the only available remedy was extinguished while the appeal was pending. As previously noted, that was not true in Kellch, as damages could have been recovered on remand had this court thought it proper. Instead, we dismissed the action as moot.

The dissent reasons that if the Richardses are successful on appeal, upon remand they could amend their pleadings to seek damages to be proved in a new court proceeding. Although the amendment of pleadings is sometimes permitted on remand, on appeal we do not base our examination of the pleadings on the possibility of future amendments that a trial court may in its discretion allow or disallow. Instead, we examine the action before us in its present form.

The dissent cites rule 54(c)(1) of the Utah Rules of Civil Procedure, which provides in part:

[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

This rule clearly pertains to a trial court's authority prior to its final judgment, not to an appellate court's authority to look beyond the case as it stands on appeal. Indeed, all of the cases cited by the dissent deal with a trial court's powers on direct disposition. See, e.g., Mabey v. Kay Peterson Constr. Co., 682 P.2d 287, 290 (Utah 1984) (trial court could have reformed contract if mutual mistake of fact had been established); Combe v. Warren's Family Drive-Inns, Inc., 680 P.2d 733, 735 (Utah 1984) ("Although Rule 54(c)(1) permits relief on grounds not pleaded, that rule does not go so far as to authorize the granting of relief on issues neither raised nor tried."); Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179, 1182 (Utah 1983) (plaintiff should have been allowed to amend complaint prior to trial to include punitive damages).

In Franklin Financial v. New Empire Development Co., 659 P.2d 1040 (Utah 1983), this court anticipated the issue in the present case and directed a resolution in accord with our holding. In that case, the seller of an apartment complex sought to foreclose on a contract of sale. The trial court granted the seller summary judgment and ordered a sale of the property. Id. at 1042. The buyers filed notices of appeal but failed to obtain a stay of the judgment. Id. at 1043. The sale went forward. When the complex sold for less than the amount of the judgment, the sellers obtained a deficiency judgment.

The buyers argued on appeal that the entry of summary judgment was in error. The sellers countered that the appeal should be dismissed as moot because the foreclosure sale had already been carried out and the period of redemption had passed. Id. The court held that the appeal was not moot because the appellants were not trying to prevent the foreclosure but were merely trying to establish their right to a share of the sale proceeds. However, the court indicated that

if appellant were seeking on this appeal to prevent the...