Hawkins v. Callahan

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John B. Hawkins,
Plaintiff and Appellee,

v.

Tom Callahan,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000550-CA

F I L E D
November 16, 2001 2001 UT App 343 -----

Third District, Salt Lake Department
The Honorable Robert K. Hilder

Attorneys:
Thor B. Roundy, Salt Lake City, for Appellant
Shawn D. Turner, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Orme.

PER CURIAM:

Appellant Tom Callahan appeals from a judgment finding him to be in unlawful detainer and limiting damages on his counterclaim.

Appellee John Hawkins contends that this court lacks jurisdiction because the appeal was untimely. The notice of appeal was timely filed following entry of the written order disposing of Callahan's motion under Rule 59 of the Utah Rules of Civil Procedure. That order clarified that the motion had not been previously considered and disposed of Hawkins' claim that the original judgment implicitly denied the post-trial motion. Rule 4(b) of the Utah Rules of Appellate Procedure requires a notice of appeal to be filed within thirty days after entry of an order disposing of one of the enumerated post-trial motions. Therefore, Callahan's appeal was timely.

Prior to trial, the court entered an order granting Callahan's Motion for Order Establishing Admissions. The requests for admissions included admissions that a document attached to the requests was a true and correct copy of the lease agreement signed by the parties and another document was a true and correct copy of a rental receipt and lease extension signed by the parties. Over Callahan's objection, the court allowed Hawkins's testimony that the lease and purported extension were altered by Callahan after Hawkins signed them. The trial court found that (1) Callahan's testimony was not credible; (2) he altered the lease after it was signed; and (3) the card that allegedly extended the lease was not prepared and signed in the form presented to the court. The court thus found that the lease term was not extended, Callahan occupied the property on a month to month tenancy after March 15, 1998, and that tenancy terminated as of June 14, 1998. Accordingly, Hawkins was entitled to recover the property and its rental value from June 14 to August 15, 1998. Callahan contends the trial court erred in setting aside the admissions.

Rule 36(b) of the Utah Rules of Civil Procedure allows withdrawal or amendment of an admission "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits." Id. Under the circumstances, we determine that Hawkins's opposition to the motion for an order seeking to have the admissions deemed admitted was sufficient as a request to amend or withdraw the admissions. The issue on appeal is whether the trial court properly applied, or declined to apply, the requirements of Langeland v. Monarch Motors, Inc., 952 P.2d 1058 (Utah 1998).

The district court concluded that Langeland would not prevent the court from considering whether fraud or forgery occurred. Callahan's counsel conceded at the beginning of the trial that the court could examine additional facts regardless of the admissions. Although the court did not explicitly apply the Langeland tests, we conclude that the trial court satisfied the requirements of that case in setting aside admissions. In Langeland, the supreme court stated: To show that a presentation of the merits of an action would be served by amendment or withdrawal of an admission, the party seeking amendment or withdrawal must (1) show that the matters deemed admitted against it are relevant to the merits of the underlying cause of action, and (2) introduce some evidence by affidavit or otherwise of specific facts indicating that the matters deemed admitted against it are in fact untrue. Id. at 1062. Whether the lease was extended was clearly relevant. Hawkins testified that (1) he did not execute the receipt while it included the extension language; (2) the extension pre-dated by two months the only discussion between the parties regarding an extension; and (3) he refused to grant an extension because he planned to sell the property. Given the sworn testimony, including specific facts indicating the admissions were untrue, the trial court did not err in setting aside the admission and determining whether the lease had been extended. Based upon the evidence and the trial court's assessment of Callahan's credibility, the finding that the purported extension was a forgery was not clearly erroneous. Callahan's assertion that he was prejudiced is a bare recitation of Langeland. He has not identified any witness or item of evidence that was not available to him at trial and has not established prejudice. See id. at 1063 (stating prejudice requires showing that the party is less able to obtain evidence required to prove the admitted matter than at the time admission was made).

The trial court did not abuse its discretion, as limited by Langeland, in setting aside the admissions as to the lease terms and the extension. Our affirmance of this ruling is dispositive of the remaining issues pertaining to wrongful eviction. Accordingly, we affirm the judgment.
 
 

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Judith M. Billings, Judge
 
 

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James Z. Davis, Judge
 
 

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Gregory K. Orme, Judge