Young v. Bridwell
| Decision Date | 20 February 1968 |
| Docket Number | No. 10774,10774 |
| Citation | 20 Utah 2d 332,437 P.2d 686 |
| Parties | d 332 Marvin YOUNG and Stella Young, his wife, Plaintiffs and Appellants, v. George BRIDWELL, Defendant and Respondent. |
| Court | Utah Supreme Court |
Stewart, Topham & Harding, Ray M. Harding, Salt Lake City, for appellants.
Ernest F. Baldwin, Jr., Salt Lake City for respondent.
The plaintiffs Young sue defendant George Bridwell for damages allegedly caused by his failure to properly perform his duties for them as a lawyer. Upon a trial to the court judgment was rendered against the plaintiffs and they appeal.
The plaintiffs engaged Mr. Bridwell to represent them in a case the facts of which are in summary as follows:
Marvin and Stella Young, his wife, plaintiffs herein, on April 4, 1959, purchased the property at 4430 South 9th East from Anthony and Mary Baker. The property at that time was subject to a lease to F. Hyde and Betty Lucille Mortensen, dated August 10, 1957, for a period of five years, and renewable at the option of the lessee, except that the rent was subject to arbitration for the second five year period.
On September 27, 1961, said Youngs sued the lessees, the Mortensens seeking to terminate the lease because of alleged violations of the lease agreement by said lessees. At the time of the filing of this complaint, Mr. Tom Metos and Mr. Mark Miner, attorneys, represented them. An answer was filed for defendants November 3, 1961, by Mr. Bernard Rose, attorney. A reply was filed by Mr. Metos and Mr. Miner November 8, 1961. With the case at issue nothing further happened until March, 1962, when plaintiffs' attorneys gave notice of taking the deposition of the defendants.
On August 24, 1962, a withdrawal of counsel was effected with notice given to all concerned. George Bridwell became attorney of record and apparently had already rendered services prior to the filing of the withdrawal. The file shows by affidavit of the plaintiffs that defendants Mortensen by their attorney, Bernard Rose, gave notice of intention to continue to occupy the premises under the lease by a letter to Mr. Bridwell in July of 1962, prior to the expiration of the five-year term of the lease. The terms of the letter offered the same rent of $150 a month, or, if refused, proposed that as provided in the lease the amount be arbitrated. Mr. Bridwell, according to the affidavit, responded in behalf of plaintiffs Young by a letter indicating that the lease could be renewed for an additional five-year period only if it was agreed they would pay as rent the sum of $450 a month, and if not acceptable, that the letter was to be considered a notice to quit the premises by the end of the lease period, to-wit, August 10, 1962. The letter further warned that if this arrangement was not accepted the suit to terminate the lease filed September 27, 1961, that would be activated.
There is no evidence that any response was made to this last letter, or that the parties did anything further to explore arbitration to resolve the amount of the rent. Subsequently, payments of $150 per month were accepted by the plaintiffs Young without further objection up to the ultimate date of trial on January 7, 1963.
A pretrial of the matter was held on November 30, 1962, at which time the Youngs were represented by Mr. Bridwell's office associate, Mr. Alan D. Frandsen. The record does not show that his appearance was made with them present or that they had expressly or impliedly consented to or acquiesced in their being represented at that time by him. Judge Ellett's pretrial order ruled that as a matter of law the acceptance of the first rental payment after August 10, 1962, constituted a renewal of the lease for a new period of five years as allowed in the option in the lease. The court was not advised at the pretrial, so far as the record discloses, of the exchange of letters between counsel on the question of renewal and the rent to be charged, nor of an order purportedly prepared by Alan D. Frandsen, ordering that the rental payments of $150 be paid into court. There is no evidence such an order was signed, but it must be assumed from the tenor of the last-referred-to order that Mr. Frandsen knew of it and had in mind getting the order signed to avoid any legal inference that might arise of waiver of the right to negotiate the renewal of the lease and/or the rate of the rent if the payments were received and kept by the Youngs. The evidence indicates that the Youngs did continue to receive the rental payments at the old rate.
At the trial of the matter on January 7, 1963, Mr. Frandsen represented the Youngs without objection on their part so far as the record is concerned. At this time Mr. Frandsen took issue with the trial court on its ruling at the pretrial that acceptance of the rent constituted a renewal of the lease at the old terms. The court acknowledged that it could reconsider the ruling made at the pretrial hearing and asked Mr. Frandsen for law to the contrary. He cited some authority and then had a discussion with the court off the record. The court took the matter under advisement. At the conclusion of the trial the court stated that it was still of the opinion that it would be immaterial to grant Mr. Frandsen's request to amend the pretrial order. The issue of whether or not there was a breach of the lease the judge handled by saying: 'I still think that by accepting the payment that he would have waived that, even had it been a breach.'
On February 23, 1965, the Youngs filed suit against Mr. George Bridwell claiming breach of contract in representing them. It was claimed that his negligence and that of Mr. Frandsen's in the way the suit against the Mortensens was handled, and his failure to appeal the court's claimed erroneous ruling, or to fail to advise them of the court's error, and/or to advise them to appeal, caused them to lose the right to renegotiate the rate of rental of the...
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