Bagnall v. Suburbia Land Co. , 1975 Utah LEXIS 786 ( 1975 )

HENRIOD, Chief Justice:

Appeal from 1) a judgment terminating a real estate contract, in favor of Bagnalls and against some of the defendants but not United Paint, involving a 540-acre tract, and 2) a quiet title judgment in favor of United Paint and against Bagnalls, involving 140.15 acres included in the 540. Affirmed as to 1), and remanded as to 2) for trial on the merits.

This case really represents two consolidated cases.

In 1) above, counsel for defendants (a) designated only those parts of the record favorable to their position, much of which appears to have been controverted, according to the court’s written findings, and (b) practically no references were made to the record to substantiate the factual situation represented by counsel to have existed. Counsel for plaintiffs did not employ the provisions of Rule 75, Utah Rules of Civil Procedure, to designate any part or parts of the record in support of plaintiffs’ contentions. After the filing of defendants’ brief, counsel for plaintiff filed a somewhat abortive, belated and unsuccessful request of this court to allow him to designate parts of the record, which, if permitted, would not have been in harmony with the spirit of Rule 75.

As a result we have before us briefs of both sides loaded with unreferenced, self-serving statements of facts and contentions, with an apparent invitation that we perform their procedural obligations and conduct their research. We cannot indulge them such luxury under the circumstances here. This court, therefore, under elementary principles anent appellate review, in this particular case will presume the findings of the court to have been supported by admissible, competent, substantial evidence¹ — to any criticism of which, by any litigants, the court feels constrained to turn a deafened ear.

As to 1) above: the trial court found: that on September 1, 1952, an agreement between Hanna and J. R. Bag-nail, Sellers, and Wallace J., Jean B. and Glenna A. Nyberg, Buyers, was signed involving the real estate, subject of this litigation; ten years later, Suburbia of Idaho represented it had acquired the Nyberg interests, which led to a modification agreement between Bagnalls and Suburbia, whose agent represented it had acquired Jean B. Nyberg’s individually claimed and acquired one-half interest in 140.15 acres of the tract; that at that time the charter of Suburbia of Idaho had been forfeited; that nonetheless, Suburbia of Idaho attempted to transfer its assets to other companies whose appellations contained the word “Suburbia,” which attempts were void; that all of such companies were fictitious ; that all the so-called transferees (had they been legitimate), were delinquent on the contract; that notice of default was given, with 30 days allowed to become current, else the contract would terminate; that there were no oral or other meritorious, compensating facts representing a defense to plaintiffs’ action, which circumstances resolve the action mentioned in 1) above in favor of plaintiffs.

As to 2) above, the action was disposed of on Summary Judgment. Hence the trial court determined that there was no genuine issue of fact to resolve and consequently as a matter of law, held that United Paint was owner of the 140.15-acre tract included in the larger one.

Difficulty with such conclusion seems to be apparent when the following circumstances are noted:

On March 3, 1962, a Warranty Deed was executed and delivered by Jean Ny-berg Shirk to Utah Valley Land and Development Corporation, a nonentity, purportedly conveying a one-half interest in the 140.15 acres mentioned above. 20 days later on March 23, 1962, the Valley Land and Development Company legitimately was born, which defendants, so to speak, simply urged was the visible corpus of a living corporate fetus, — or alter ego, if you please. On May 20, 1971, more than nine years later, Mrs. Shirk executed and delivered a quitclaim deed to the plaintiffs herein purportedly conveying to them the same property, — which deed was recorded on May 28, 1971. Five months later on October 5, 1971, the Utah Valley Corporation, not the Company, purportedly conveyed the property to United Paint, which deed was recorded October 20, 1971. An affidavit signed and filed by the Bagnalls, as an adjunct to the discovery process leading to the Summary Judgment, avowed that they were unaware of the vintaged nine-year old, but prior deed by their grantor, Mrs. Shirk, to the Utah Valley Corporation.

Under such circumstances of confusing corporate paternity and the question of knowledge in light of Title 57-3-3, Utah Code Annotated 1953, having to do with the recording act, hardly can we concede that there was no genuine issue of fact to pursue and determine, forever precluding a hearing on the merits. Consequently, we are constrained to and do conclude that as to 2) above, the case between plaintiffs and United Paint, is remanded for trial.

CROCKETT and TUCKETT, JJ., concur.

1 . Sandall v. Sandall, 57 Utah 150, 155, 193 P. 1093, 15 A.L.R. 620 (1920); In re Voorhees Est., 12 Utah 2d 361, 366, 366 P.2d 977 (1961); James Mfg. Co. v. Wilson, 15 Utah 2d 210, 213, 390 P.2d 127 (1964); Lepasiotes v. Dinsdale, 121 Utah 359, 242 P.2d 297 (1952).