Watkins & Faber v. Whiteley, 15831
| Decision Date | 12 March 1979 |
| Docket Number | No. 15831,15831 |
| Citation | 592 P.2d 613 |
| Court | Utah Supreme Court |
| Parties | WATKINS & FABER, a partnership, Plaintiff and Respondent, v. John M. WHITELEY, an Individual and Intermountain Capital Corporation of Utah, a Utah Corporation, Defendants and Appellants. |
Robert J. Debry and Valden P. Livingston, Salt Lake City, for defendants and appellants.
Rinehart L. Peshell, Salt Lake City, for plaintiff and respondent.
This is an action to collect attorneys' fees for legal services performed on behalf of the defendants or one of them. The jury rendered its verdict in favor of the plaintiffs in the amount of $9,094.70 against John M. Whiteley.
Mr. Whiteley is the president of the corporate defendant. It was admitted that the plaintiff had rendered legal services in the amount of $9,094.70 and the only question for the jury to decide was whether the president of the corporate defendant made himself personally liable for all services rendered. It was agreed that of the sixteen occasions when plaintiffs represented the defendants, ten of them were in cases wherein only the corporation was named as a party, four of them were in cases where only Mr. Whiteley was named a party, and two of them were where both defendants were named as parties.
The evidence was such as to justify the verdict and no exceptions were taken to the instructions given to the jury. The only claim of reversible error made by Mr. Whiteley on this appeal is a claim of error on the part of the court in not granting a motion for a mistrial because of a question asked Mr. Whiteley on cross-examination.
Mr. Faber had represented the corporate defendant in the case of Robertson, plaintiffs and respondents v. Geis, et al., defendants and appellant; Intermountain Capital Corporation of Utah, a corporation, defendant, third-party plaintiff and appellant v. John W. Robertson, et ux, third-party defendants. 1
Whether Mr. Whiteley was personally responsible for the legal fees in that case was involved in the instant action. On cross-examination the following proceedings occurred:
Q. And you were present in Court yesterday when Mr. Faber testified that you were involved personally in those matters weren't you? And you heard that testimony didn't you?
Q. (By Mr. Peshell) Answer the question, Mr. Whiteley.
A. The only involvement that I had in those cases was as a representative of Intermountain Capital Corporation. I had no, I had no investment in them. I had no personal interest. It was representing the interest of Intermountain Capital.
Q. But you were involved then in the Robertson v. Geis case; is that accurate?
A. As a representative of Intermountain Capital purely.
Q. All right. Isn't it true, well, isn't it true that the District Court and the Supreme Court of the State of Utah specifically found that you were involved in the scheme of deceit against an old couple by the name of Robertson to deprive them of their property in the Robertson v. Geis case?
A. That is not true.
Q. (By Mr. Peshell) Mr. Whiteley, have you had an opportunity to see the Supreme Court decision that was in that case?
A. I imagine that I have.
Q. And you have read that decision?
A. Yes. I don't recall exactly how it is worded at this point.
Q. Mr. Whiteley, I am going to read to you from that decision, and I want to know whether these statements are true. Are true. Reads as follows: Appeal from a judgment in a case tried to the Court, that awarded damages for deceit against defendants Geis and Smith, and against defendant Intermountain Capital avoiding a mortgage against plaintiffs' realty.
Goes on: This case had to do with defendant Geis, neighbor of plaintiffs, an elderly couple, in obtaining a deed from them for some realty, to be used as collateral. The purpose was to obtain funds to promote a second-hand equipment sales project in South America, by a Bermuda corporation created by defendant Smith. His interests were promoted by Geis who, as agent for him and his corporation and aided somewhat by one Whiteley, assisted in forming a Utah corporation in order to get a Federal small business investment loan, not available to a foreign corporation. It appears from the record to have been a dummy corporation designed to do something indirectly that could not have been done directly in a promotional scheme at the outset. This was compounded by Smith's residence in Bermuda which also was compounded by Whiteley, a friend of Geis and Smith, but not the plaintiffs.
Now as I suggested, you have had an opportunity to read that, this decision. Isn't that correct, Mr. Whiteley?
A. Is that part of the actual decision, or is that a summarization or
Q. That is the actual decision, Mr. Whiteley.
Q. (By Mr. Peshell) Well, I want to know if that is the decision that was handed down by the Supreme Court of the State of Utah?
A. Well, I assume that it is in, that the Supreme Court did find fraud on the part of the individuals that Intermountain Capital loaned money to. And that is the only part that we played in it, is that we furnished these fellows a lot of money and lost it.
Q. But they also state in there 'assisted by one Whiteley,' do they not?
The defendant on appeal claims that the question propounded to him as set out above was an...
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