Smoot v. Lund

Decision Date14 March 1962
Docket NumberNo. 9515,9515
Partiesd 168 Richard P. SMOOT and Barbara M. Smoot, Plaintiffs and Appellants, v. Howard L. LUND and Gwen C. Lund, Defendants and Respondents.
CourtUtah Supreme Court

McBroom & Hyde, Salt Lake City, for appellants.

Cranmer, McGarry & Lund, Raymond W. Gee, Salt Lake City, for respondents.

CROCKETT, Justice.

Plaintiffs appeal from a summary judgment dismissing a second cause of action alleged in their complaint. The dismissal was upon the ground that the defendants fully discharged the obligation due on the note which is the main foundation of said cause of action by tendering into court the sum of $15,347.50, the amount of principal and interest due thereon.

Plaintiffs allege: that the defendant Howard L. Lund was their attorney, and that after some solicitations by the latter, the plaintiffs agreed to loan him $36,000 to aid in financing a real estate subdivision venture; that plaintiffs were to receive one lot as an $8,500 payment on the debt; and as security for the balance, were to have a lien on certain property in Salt, Lake City and a trust deed to other property in Santa Clara County, California; and that if 'the property pledged as security for the funds' advanced to plaintiffs sold for more than $12,500, they were to share equally in the excess.

Plaintiffs further allege: that the defendant Howard Lund, acting as their attorney, perpetrated a fraud upon them in these particulars: that he designedly prepared the document so that it was not recordable to give the plaintiffs a lien on the Salt Lake property; and likewise, procured plaintiffs not to record the California trust deed by advising them that it was not necessary to do so; and that consequently the defendants conveyed the California property away, depriving the plaintiffs of their security; that they relied on defendant as their attorney to prepare the contract and that the latter negligently failed to include a provision for attorney's fees; wherefore, they seek to share in the profits, a reasonable attorney's fee, and punitive damages for all such alleged wrongful conduct.

In connection with the filing of the action the plaintiffs attached assets of the defendants. When the defendants tendered into court the amount due on the note and moved for summary judgment on the ground that the obligation was thus discharged, the court granted the motion.

Plaintiffs appeal insisting that they are entitled to pursue other claims asserted in connection with the transaction: to prove that the defendant was guilty of fraud; to reform the contract to allow them to share in an excess sale price; and to recover attorney's fees and punitive damages. Opposing this, the defendants argue that the plaintiffs, by grounding their action on contract and employing the remedy of attachment, which is permitted therewith, must be deemed to have elected their remedy as in contract and to have abandoned the tort aspects of the case dealing with fraud.

We are not unaware of authorities cited by defendants which have held that a plaintiff may not proceed both in contract and in tort; and that by choosing one he must be deemed to have abandoned the other, which give various reasons justifying such rulings: 1 the necessity for regularity of procedure requiring an identified theory upon which the action proceeds so the issues may be clearly defined and the defendant can know what he must meet; and that it is unfair to permit one to pursue remedies which may be inconsistent and thus have several bites at the apple. But we need not here concern ourselves with the justification or the merit of such a rule.

The solution to the problem is found in the fact that our Rules of Civil Procedure make it plain that such is not the law of this state. They show a clear purpose to eliminate rigidity of rules and technical objections as to the form or nomenclature of claims for relief.

Rule 18(a) provides that a party may 'join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party.'

This is so even where the claims might be deemed inconsistent.

Rule 8(e)(2) states that, 'A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both.'

Under our liberalized rules of pleading and procedure we see no reason why the other issues alleged in connection with the transaction, if otherwise maintainable, could not be determined in this suit.

We turn to an examination of the plaintiffs' claims to see whether a right to recovery could be made out, assuming the facts to be as they contend: that defendant Howard Lund, acting as plaintiffs' attorney, designedly fashioned the lien on the Salt Lake property in a manner insufficient to be recorded and create a lien; and that because of Lund's advice, plaintiffs did not record the California trust deed; so that by reason of those facts plaintiffs did not get the security they were supposed to have. Those facts would not now be of any importance because the only purpose of the security would have been to assure repayment...

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10 cases
  • Biswell v. Duncan
    • United States
    • Utah Court of Appeals
    • 18 Agosto 1987
    ...v. D & C Builders, 22 Utah 2d 297, 452 P.2d 325 (Utah 1969); Powers v. Taylor, 14 Utah 2d 152, 379 P.2d 380 (1963); Smoot v. Lund, 13 Utah 2d 168, 369 P.2d 933 (1962); Holland v. Moreton, 10 Utah 2d 390, 353 P.2d 989 (1960); Evans v. Gaisford, 122 Utah 156, 247 P.2d 431 (1952); Murphy v. Bo......
  • Baird v. Cutler
    • United States
    • U.S. District Court — District of Utah
    • 18 Abril 1995
    ...current client. It is true that an attorney is bound by special ethical obligations in this regard. See generally Smoot v. Lund, 13 Utah 2d 168, 369 P.2d 933, 936 (1962) ("An attorney must not represent interests adverse to those of his client"). Nevertheless, the ethical duties of loyalty ......
  • Shaw Resources v. Pruitt, Gushee & Bachtell, 20050304-CA.
    • United States
    • Utah Court of Appeals
    • 28 Julio 2006
    ...to conceal facts or law, nor in any way deceive [a client] without being held responsible therefor.'" Id. (quoting Smoot v. Lund, 13 Utah 2d 168, 369 P.2d 933, 936 (1962)). ¶44 It is undisputed that the Law Firm was hired to provide legal representation, rather than to find oil and gas deve......
  • Cook Associates, Inc. v. Warnick
    • United States
    • Utah Supreme Court
    • 28 Abril 1983
    ...is permissible under our authorities, Dairyland Insurance Corp. v. Smith, Utah, 646 P.2d 737, 740 (1982); Smoot v. Lund, 13 Utah 2d 168, 170-71, 369 P.2d 933, 934-35 (1962), the court could not properly enter judgment on both theories, since that would represent a double recovery. Brigham C......
  • Request a trial to view additional results
1 books & journal articles
  • Conflict of Interest: the Attorney-client Joint Business Venture
    • United States
    • Colorado Bar Association Colorado Lawyer No. 14-9, September 1985
    • Invalid date
    ...and client whereby the attorney benefits are closely scrutinized for any unfairness on the attorney's part"). 14. 13 Utah 2d 168, 172, 369 P.2d 933, 936 (1962). 15. See, McFail v. Braden, 19 Ill.2d 108, 117-118, 166 N.E.2d 46, 52 (1960). See also, U.S. v. Dolan, 570 F.2d 1177 (3d Cir. 1978)......

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