Brigham Young University Law School

WILLIAM GARLAND, Plaintiff and Respondent, v. THE BEAR LAKE AND RIVER WATER WORKS AND IRRIGATION COMPANY, ET. AL., Defendants and Appellants : Appellants\u27 Brief

WILLIAM GARLAND, Plaintiff and Appellant, v. THE BEAR LAKE AND RIVER WATER WORKS AND IRRIGATION COMPANY, ET. AL., Defendants and Respondents : Appellant\u27s Brief

Appeal from the Judgment of the District Court of Daggett County Hon. Maurice Harding, Judg

Brigham Young University Law School 
BYU Law Digital Commons 
Utah Supreme Court Briefs (1965 –) 
1872 
Don Weiler Bennion, Executor of the Estate of Heber Bennion, Jr., 
Vera W. Bennion And Bennion Ranching Co. v. Dudley M. Amoss 
And Diana H. Amoss, His Wife, And John Does Nos. I Through 5 : 
Brief of Defendant-Appellants 
Follow this and additional works at: https://digitalcommons.law.byu.edu/uofu_sc2 
Original Brief submitted to the Utah Supreme Court; funding for digitization provided by the 
Institute of Museum and Library Services through the Library Services and Technology Act, 
administered by the Utah State Library, and sponsored by the S.J. Quinney Law Library; machine-
generated OCR, may contain errors.D.M. Amoss; Attorney for Defendants-Appellants 
Recommended Citation 
Brief of Appellant, Bennion v. Amoss, No. 12716 (1872). 
https://digitalcommons.law.byu.edu/uofu_sc2/5119 
This Brief of Appellant is brought to you for free and open access by BYU Law Digital Commons. It has been 
accepted for inclusion in Utah Supreme Court Briefs (1965 –) by an authorized administrator of BYU Law Digital 
Commons. For more information, please contact hunterlawlibrary@byu.edu. 
IN THE SUPREME COURT 
OF THE STATE OF UTAH 
DON WEILER BENNION, 
Executor of the Estate of Heber Bennion, 
Jr., VERA W. BENNION and 
BENNION RANCHING CO., a Utah 
Corporation, Plaifliifa, Cue No. 
vs. 11118 
DUDLEY M. AMOSS and DIANA H. 
AMOSS, his wile, and JOHN DOES 
Nos. I through 5, Def tmtlanta. 
Brief of Defendants - Appellmts 
Appeal from the .Jadrment of the District Com 
of Darcett County 
Bon. Mauriee Bardiag, Juclge 
D. M. AMOSS 
974 East 3rd South Street 
Salt Lake City, Utah 
Attorney for Defendants-Appellallta 
HANSEN F 1 L E D 410 Newhouse Building Salt Lake City, Utah 
Attorneys for Plaintiffs-Respondentl FE B l O ig7z 
TABLE OF CONTENTS 
Page 
STATEMENT OF CASE ------------------------------------ I 
DISPOSITION IN LOWER COURT________________ 2 
RELIEF SOUGHT ON APPEAL -------------------- 2 
STATEMENT OF THE FACTS ---------------------- 2 
ARGUMENT ------------------------------------------------------------ 6 
POINT I ---------------------------------------·-------------··----------·---- 6 
S Ul\iIMARY JUDG 1\iIENT FOR THE 
PLAINTIFFS-RESPONDENTS WAS NOT 
JUSTIFIED. 
POINT II ------------------------------------------------------------······-- 9 
SUMMARY JUDGMENT SHOULD NOT 
HAVE BEEN GRANTED PRIOR TO A 
TRIAL OF ALL THE ISSUES INCLUDING 
THOSE OF THE COUNTERCLAIM. 
CONCLUSION --------------------------------------------------------- II 
CASES CITED 
LEWIS COUNTY SA VIN GS AND LOAN 
ASSOC. V. BLACK, 374 Pac.2d 157 ----------------IO 
TANNER V. UTAH POULTRY & FARMERS' 
COOPERATIVE, et al, II Utah 2d 353, 359 
Pac. 2d 18 -------····················································· 9 
1 
STATUTES CITED 
RULE 11, UTAH RULES OF CIVIL 
Page 
PROCEDURE ---------------------------------------------------- 5 
RULE 56, UTAH RULES OF CIVIL 
PROCEDURE ---------------------------------------------------- 9 
RULE 56 (d) UTAH RULES OF CIVIL 
PROCEDURE ---------------------------------------------------- IO 
RULE 56 (e) UTAH RULES OF CIVIL 
PROCEDURE ---------------------------------------------------- 7 
OTHER AUTHORITIES CITED 
70 ALR 993 ------------------------------------------------------------------ 8 
8 ALR ad 1370 ------------------------------------------------------------ 9 
1l 
IN THE SUPREME COURT 
OF THE STATE OF UTAH 
DON WEILER BENNION, 
Executor of the Estate of Heber Bennion, 
Jr., VERA W. BENNION and 
BENNION RANCHING CO., a Utah 
Corporation, Plaintiff a, 
vs. 
DUDLEY M. AMOSS and DIAN AM. 
AMOSS, his wife, and JOHN DOES 
Nos. l through 5, Defendants. 
Case No. 
12716 
Brief of Defendants - Appellants 
STATEMENT OF THE KIND OF A CASE 
This is a case where the Plaintiffs-Respondents 
sought to accelerate the payment of a note and fore-
close a mortgage securing the same, and the Defend-
ants-Appellants asserted certain affirmative defenses 
and urged a counterclaim against the Plaintiffs-Re-
spondents. 
1 
DISPOSITION IN THE LOWER COURT 
The lower court granted to Plaintiffs-Respondents 
a summary judgment in the sum of $140,586.16 and 
decreed foreclosure of their mortgage, but a hearing 
was not had on the affirmative defenses of Defendants-
Appellants, nor did the court rule on their counterclaim. 
RELIEF SOUGHT ON APPEAL 
Defendants-Appellants seek an order of this Court 
reversing the judgment of the lower court, with direc-
tions that a trial be had on all the issues of the case, 
including the counterclaim, prior to the entry of any 
judgment. 
STATEMENT OF FACTS 
It is felt by the writer that a background of this 
case should be set forth to more fully illuminate the 
immediate facts before the Court. 
For the sake of clarity, Plaintiffs-Respondents will 
hereinafter be referred to as Bennions and the Defend-
ants-Appellants will hereinafter be referred to as Amoss. 
In 1964, Heber Bennion came to Amoss, who owned 
a ranch neighboring Bennion, and suggested that Amoss 
buy the Bennion ranch at a certain figure. Amoss agreed 
and a contract was executed. A few weeks later, Ben-
nion changed his mind and told Amoss that he was 
taking his land back. As Amoss, at that point, had spent 
2 
many thousands of dollars on the ranching operation, 
he did not feel inclined to fold his tent and steal away. 
After days of wrangling, Amoss and Bennion, in the 
company of Bennion' s lawyer, agreed on a compromise 
settlement to avoid legal action. A few weeks later, 
Bennion again changed his mind, and Amoss brought 
suit for specific performance of the original contract. 
The lower court ruled in favor of Amoss and Bennion 
appealed. This Court affirmed, but added that as Amoss 
had agreed in the compromise to pay Bennion an addi-
tional $17,500., he should do so and he should not be 
allowed any attorney's fees. The case was remanded 
with directions to wind up a few loose ends. The lower 
court, not to be outdone by the generosity of the Ap-
late Court, decided that as Amoss had allowed Bennion 
to reserve 40 acres of the so-called Kiel place, which 
was one of the ranches making up the Bennion ranches, 
Bennion should be given the whole Kiel place, about 
eighty acres, and of course the contract price would not 
be reduced accordingly. The court further allowed 
Bennion 52 shares of water, which, again under the 
compromise, Amoss had agreed to let Bennion keep, 
however, for this the court directed that Bennion must 
pay. Not so! Again Bennion appealed, and this time 
he came away with $5,000. worth of water stock for 
nothing. 
During all of this time, Amoss had sought to be 
heard on certain claims against Bennions regarding 
interference with Amoss' business, conversion of per-
sonal property and other tort and contract actions. The 
3 
inclusions of these claims apparently spoiled the neat-
ness of the package and the claims were ever separated 
to be handled later. Later came and went and Heber 
Bennion died. 
A.moss had previously paid off the Bennions' in-
debtedness of $35,000. to the Utah P.C.A., some of 
which came from the old Bennion livestock and some 
of which from Amoss' pocket. Amoss had further kept 
the Federal Land Bank of Berkeley current and paid 
off the $5,000. plus interest indebtedness of Bennions 
to one Rodney Schofield. In November, 1969, Bennions 
completed the title work on the property and Amoss 
signed the myriad notes, mortgages and other papers 
papers presented to him for signature, giving Bennions 
a further $35,000. in cash. Amoss did not until 1970 
realize that the notes contained a prepayment penalty. 
A.moss also felt that as the courts had enforced every 
concession that they had made to Bennions as a com-
promise to avoid litigation, (and indeed more as Ben-
nion had ended up with the gift of an additional 40 
acres and did not have to pay for the water stock or 
attorney's fees) , that the acreage release clause agreed 
to by Heber Bennion should be incorporated in the 
mortgages. 
Following the death of Heber Bennion, a claim 
was made by Amoss against the estate and an action 
subsequently filed thereon as Daggett County civil No. 
132. The action slowly proceeded to a motion to dismiss 
Plaintiffs' complaint, which motion was still under 
advisement upon the commencement of the subject 
4 
action .During all this time, Bennions carried on the 
tradition set by Heber Bennion and continue to inter-
fere in the financial and ranching affairs of Amoss. 
On December 17, 1970, Amoss was served with a 
Summons and a Complaint in the instant action, R-134. 
Amoss answered, R-123. Bennions moved the court for 
a summary judgment, R-118, and for sanctioning of 
Amoss and his lawyer under Rule 11, Utah R.C.P., 
R-117, the latter apparently on the grounds that Amoss 
had had the unmitigated gall to resist counsel in the 
mere taking of property. The court denied these mo-
tions, R-81 and R-110. Bennions then had an ex parte 
order signed appointing a receiver for the ranch, R-106. 
At a rehearing of this matter, the court refused to 
appoint a receiver and Amoss' tenant was left in pos-
session, R-91. 
In May, 1971, case no. 132, came on for trial and 
the jury returned a verdict in favor of Amoss. On July 
28, 1971, this verdict was set aside by the trial court 
and a new trial was ordered; an interlocutory appeal 
was denied by this Court on October 19, 1971. 
On July 22, 1971, Bennions mailed to Amoss inter-
rogatories, R-71, and requests for admissions, R-68. 
On August 12, 1971, Bennions mailed to Amoss a notice 
of hearing to compel answers, R-66. Amoss had not 
answered Bennion' s discovery because of the pend ency 
of case no. 132, which pendency was the result of Ben-
nions' motion to set aside the verdict, which made the 
questions in the discovery meaningless at that time. 
5 
Bennions at the same time renewed their petition for 
the appointment of a receiver for the ranch, R-60, and 
served Amoss and his tenant with Orders to Show 
Cause, R-I6 and R-20. As the lower court had pre-
viously denied Bennions' motion for summary judg-
ment and no new factual material had been presented 
to the court in support of the renewed motion, Amoss 
concentrated on the rebuttal of the wild allegations made 
by Bennions in support of their renewed petition for 
the appointment of a receiver, R-60. This proved to be 
a costly error in tactics, R-65. From this judgment 
Amoss appealed, R-I4. 
ARGUMENT 
POINT I 
SUMMARY JUDGMENT FOR THE PLAIN-
TIFFS-RESPONDENTS WAS NOT JUSTI-
FIED. 
Summary judgment was granted by the trial court 
based on the pleadings, affidavits and exhibits on file. 
Don Bennion's affidavit in support of summary 
judgment, R-ll9, consists in part of self-serving dec-
larations, e.g., paragraphs IO and I I, "Defendant Dud-
ley Amoss was given full credit upon the purchase price 
of the subject real property and Bennion livestock for 
the purchase price received by Plaintiffs for said al-
leged converted cows and calves ... ", quite true -
as far as it goes. However, the credit given was 
6 
the market value of non-pregnant cows, (the cows con-
verted were pregnant), and calves at the date of the 
conversion, with no payment for the harm done Amoss' 
business. The same affidavit, at paragraph 9, states as 
fact certain legal conclusions, which of course is in flag-
rant violation of Rule 56 (e), Utah R.C.P., FORM 
OF VITS, "Supporting and opposing affi-
davits shall be made on personal knowledge, shall set 
forth facts as would be admissable in evidence, and 
shall show affirmatively that affiant is competent to 
testify to the matters stated therein. (Emphasis sup-
plied). Paragraph 7 disagrees with admissions made 
by Heber Bennion in prior depositions which were read 
into the record at the trial of case no. 132. Paragraph 
8 contradicts Amoss and this creates a fact issue. 
Mr. Bem1ion's affidavit further shows photographs 
purporting to show damage done by Amoss, which 
photographs are lettered A through R. Photographs 
A and Bare not taken of Belllion ranch land but rather 
of a ditch located on land belonging to the Utah Dept. 
of Fish and Game,a nd which serves the Bennion life 
estate. Although there is always some portion of fence 
on a large ranch in need of repair, whether due to rot, 
deer, cows, hunters or what have you, photograph G 
depicts not a down fence but an open wire gate be-
tween the Bennion and Swan properties. Photographs 
0 through R are taken of one of the farm houses on 
the Bennion ranches. Photos of the same house were 
before Judge Harding at the hearing for the appoint-
ment of a receiver in April, 1971, at which time the 
7 
court was apprised of the fact that the vandalism clone 
to this was done when the deceased Heber Ben-
nion was collecting the rents and exercizing control 
thereof, which was several years prior to the execution 
of the subject mortgages. 
At the hearing on August 20, 1971, Amoss told 
the court that the reason for the request for admissions 
and interrogatories from Bennions had not been an-
swered was because Bennions should have been aware 
of the pendency of case no. 132 and that the required 
answers could not in good faith be made until that case 
was disposed of. 
Although at the August 20 hearing Amoss admitted 
not having made the payment due in 1970, they main-
tained that, as set forth in the pleadings, they were not 
in default because of Bennions' actions. Amoss had 
filed an affidavit, R-73, in support of their position. If, 
as Amoss contended in their affirmative defense, R-124, 
Bennions are in pari delicto in that their interference 
with Amoss' business from 1964 through 1970, rendered 
it impossible for Amoss to make payments due under 
the subject note, then equity will not find a default. 
"It is held, apparently without dissent, that a 
court of equity has the power to relieve a mort-
gagor from the effect of an operative accelera-
tion clause, when the default of a mortgagor was 
the result of some unconscionable or inequitable 
conduct of the mortgagee." 70 ALR 993. 
8 
The court based its summary judgment on the 
"pleadings, affidavits and other matters appearing in 
the files," R-35; it is submitted that as to Bennions' 
complaint, the base used contained and does contain 
issues of fact as to the default and form of the said 
mortgage. 
"Summary Judgment is appropriate only when 
the favored party makes a showing which pre-
cludes as a matter of law, awarding any relief 
to the losing party," Tanner v. Utah Poultry & 
Farmers' Cooperative, et al, 11 Utah 2d 353, 
359 Pac. 2d 18. 
POINT II 
SUMMARY JUDGMENT SHOULD NOT 
HAVE BEEN GRANTED PRIOR TO A TRIAL 
OF ALL THE ISSUES INCLUDING THOSE 
OF THE COUNTERCLAIM. 
Although there is no question that the trial court 
has the power under Rule 56, Utah R.C.P., to grant 
a partial summary judgment in the proper case, this 
may not be done in all cases. 
"The presence of a counterclaim predicated 
upon good and substantial cause justifying a 
trial, may bar a Plaintiff's motion for summary 
judgment on his complaint or may preclude the 
court from ordering execution of the judgment 
pending the determination of the counterclaim," 
8 ALR 3d 1370. 
9 
In the subject case, the court not only granted 
Bennions' motion for summary judgment, but ordered 
execution thereon, R-31. 
When a partial summary judgment has been prop-
erly rendered in a case, the trial court should make 
findings as to what material facts are and are not in 
substantial controversy, with directions as to what fur-
ther proceedings shall be had, Rule 56 ( d), Utah R.C.P. 
This was not done in the subject case. 
In a 1959 Washington case, Lewis County Savings 
and Loan Assoc.v. Black, 374 Pac. 2d 157, the lower 
court granted Plaintiff's motion for summary judg-
ment and dismissed Defendant's counterclaim without 
prejudice, decreeing foreclosure of the subject mort-
gage. The appellate court held that the mortgagee was 
not entitled to summary judgment ordering mortgage 
foreclosed, without reference to mortgagor's pending 
counterclaim based on allegations that mortgagee's 
actions had damaged the subject property in an amount 
greater than the mortgage loan. The court said, "How-
ever the judgment went beyond establishing facts. It 
determined that respondent was entitled to a decree 
of foreclosure before Appellant's affirmative defense 
and counterclaim was (sic) heard on its merits." 
If what Amoss asserts in their counterclaim is true, 
then Bennions may owe Amoss an amount greater than 
the amount owed Bennions by Amoss, and therefore 
there would have been no default. 
10 
CONCLUSION 
Summary Judgment is an excellent, expeditious 
tool of the courts-in a proper case and at the proper 
posture of the case. However, in the instant case, it is 
submitted that the lower court should either have stayed 
the proceedings pending the outcome of case No. 132, 
as stated in Amoss' Third Defense, R-124, or have 
ordered the case set for trial so that all of the issues 
might be determined prior to the disposing of the sub-
ject land at a distressed price. 
The judgment and decree of the lower court should 
be reversed and the case remanded for a trial. 
Respectfully submitted, 
DUDLEY M. AMOSS 
Attorney for Defendants-Appellants 
11 


English

Don Weiler Bennion, Executor of the Estate of Heber Bennion, Jr., Vera W. Bennion And Bennion Ranching Co. v. Dudley M. Amoss And Diana H. Amoss, His Wife, And John Does Nos. I Through 5 : Brief of Defendant-Appellants

Review of the Order of the Public Service Commission of Uta

Lakeshore Motor Coach Lines, Inc., Wasatch Motors, Inc., Metro Transportation, Inc., Ogden Bus Lines v. Salt Lake Transportation Company, Public Service Commission Of Utah, Donald Hacking, Hal S. Bennett And Donald T. Adams : Brief of Plaintiffs Lewis Bros Stage Lines, Inc. And Bingham Stage Lines

Brigham Young University

Not a member yet

WILLIAM GARLAND, Plaintiff and Respondent, v. THE BEAR LAKE AND RIVER WATER WORKS AND IRRIGATION COMPANY, ET. AL., Defendants and Appellants : Appellants\u27 Brief

WILLIAM GARLAND, Plaintiff and Appellant, v. THE BEAR LAKE AND RIVER WATER WORKS AND IRRIGATION COMPANY, ET. AL., Defendants and Respondents : Appellant\u27s Brief

Don Weiler Bennion, Executor of the Estate of Heber Bennion, Jr., Vera W. Bennion And Bennion Ranching Co. v. Dudley M. Amoss And Diana H. Amoss, His Wife, And John Does Nos. I Through 5 : Brief of Defendant-Appellants

Lakeshore Motor Coach Lines, Inc., Wasatch Motors, Inc., Metro Transportation, Inc., Ogden Bus Lines v. Salt Lake Transportation Company, Public Service Commission Of Utah, Donald Hacking, Hal S. Bennett And Donald T. Adams : Brief of Plaintiffs Lewis Bros Stage Lines, Inc. And Bingham Stage Lines

41,790

43,674