Wells v. Parker

Annotate this Case
Wells v. Parker. Filed May 20, 1999 IN THE UTAH COURT OF APPEALS
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Holley Wells, Shirley Sontag, and Lucille Ditzenberger, individuals,
Plaintiffs, Appellants, and Cross-appellees,

v.

Joel Parker, an individual,
Defendant, Third-party Plaintiff,
Appellee, and Cross-appellant,

v.

Lloyd J. Webb, individually and in his capacity
as personal representative of the Estate of Fred E. Parker;
and the Estate of Fred E. Parker,
Third-party Defendants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981323-CA

F I L E D
May 20, 1999 1999 UT App 168 

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Second District, Ogden Department
The Honorable Parley R. Baldwin

Attorneys:
Charles P. Sampson, Craig H. Howe, and H. Michael Drake, Salt Lake City, for Appellants
Douglas A. Taggart and Sandra L. Crosland, Ogden, for Appellee

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Before Judges Bench, Davis, and Orme.

BENCH, Judge:

Appellants first argue that a partnership was not formed between Fred and Joel. However, appellants conceded at trial that a partnership existed. Even without this concession, when we view the evidence in the light most favorable to the trial court's findings, the determination that a partnership existed is not so lacking in support as to be against the clear weight of the evidence. See In re Estate of Bartell, 776 P.2d 885, 886 (Utah 1989).

Appellants next argue that even if a partnership existed, the real property was not a partnership asset. Appellants emphasize that the real property was paid for by Fred, and was titled only in his name. However, when we view the evidence in the light most favorable to the trial court's findings, the determination that the real property was a partnership asset is not so lacking in support as to be against the clear weight of the evidence. See id.

Appellants' final argument is that the trial court erred in determining that Fred gave Joel one-half of his capital contribution as a gift because Joel failed to present clear and convincing evidence of a gift. In reviewing the trial court's determination that clear and convincing evidence of a gift was presented, we "uphold the [trial] court's findings unless we find them to be 'clearly erroneous,' notwithstanding the 'clear and convincing' standard of proof below." In re R.R.D., 791 P.2d 206, 208 (Utah Ct. App. 1990) (citation omitted). "Though we are not unmindful of the 'clear and convincing' burden of proof below, that burden does not alter, nor is it inconsistent with, the 'clearly erroneous' standard of review on appeal." Id. at n.3. We must determine simply "whether the evidence is reasonably sufficient to sustain the findings." Lovett v. Continental Bank and Trust Co., 4 Utah 2d 76, 80, 286 P.2d 1065, 1067 (1955). In so doing, we should "consider all of the testimony and the inferences therefrom in the light most favorable to the existence of the facts as found." Id.

Appellants contend that the clear weight of the evidence demonstrates that Fred intended to contribute money only to the business, and not to Joel personally. The evidence, however, indicates that Fred's actions were motivated by a desire to help Joel personally, no matter what his chosen career or business venture. Fred treated Joel like a son, and was more interested in his success than in the type or successfulness of the business. There was also evidence that Fred wanted Joel to own and retain one-half of all partnership assets. Fred had assured Joel that Fred's heirs would not be able to take Joel's interest in the partnership. Considering the evidence and the inferences therefrom in the light most favorable to the trial court's findings, the determination that there was clear and convincing evidence of Fred's intention to give one-half of his capital contribution to Joel is not clearly erroneous.(1)

In light of our resolution of the foregoing issues, we need not address any of the other arguments advanced by the parties, including those in the cross appeal. Accordingly, we affirm the decision of the trial court.
 
 

______________________________
Russell W. Bench, Judge

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I CONCUR:
 
 

______________________________
Gregory K. Orme, Judge

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DAVIS, Judge (concurring and dissenting):

I respectfully dissent from that part of the main opinion affirming the trial court's determination that "Fred Parker intended one-half of the capital he contributed to the partnership to be a gift to Joel Parker." "Under Utah law a donee has the burden of proving an inter vivos gift by 'clear and convincing' evidence." In re Estate of Ross, 626 P.2d 489, 491 (Utah 1981). "This standard requires a finding not merely that the existence of the disputed facts is more probable than not, but rather that it is very highly probable that such facts exist." Id. "The role of this Court in reviewing a decision that a gift was made is to determine whether it was reasonable for the [trial court] to find that the requisite degree of proof was met." Id.

While it is true that the "clearly erroneous" standard of review applies to the clear and convincing standard of proof, seeState in re T.J., 945 P.2d 158, 164 (Utah Ct. App. 1997); State in re J.M., 940 P.2d 527, 531 (Utah Ct. App. 1997); State in re D.G., 938 P.2d 298, 301 (Utah Ct. App. 1997); cf. Jefferies v. Jefferies, 895 P.2d 835, 837 (Utah Ct. App. 1995), the main opinion first relies almost exclusively upon inferences here and below to satisfy the standard of proof.

An inference . . . is "a logical and reasonable conclusion of the existence of a fact in a case, not presented by direct evidence as to the existence of the fact itself, but inferred from the establishment of other facts from which by a process of logic and reason, based upon common experience, the existence of the assumed fact may be concluded by the trier of fact."

State v. Brooks, 631 P.2d 878, 881-82 (Utah 1981) (emphasis added).

Given the paucity of underlying facts from which logical deductions may be made, the "inferences" drawn by the majority are little more than unsubstantiated "speculations" or "assumptions" as to what actually occurred . . . . Furthermore, since this court is clearly not the "trier of fact," it is improper for the majority to be drawing any inferences.

State v. Mirquet, 844 P.2d 995, 1005 n.7 (Utah Ct. App. 1992) (Bench, J., dissenting) (emphasis added).

The main opinion then apparently misapplies the principle that "'"[c]learly erroneous" means that the findings are either against the clear weight of the evidence or induce a definite and firm conviction that a mistake has been made.'" In re R.R.D., 791 P.2d 206, 208 (Utah Ct. App. 1990) (citation omitted). After a careful review of the record, I have found no direct evidence supporting a finding that Fred intended that there be a gift to defendant. In fact, there was substantial evidence to the contrary. The transactions between Fred and Joel which "support" the findings of the trial court are consistent with the conduct of a joint venture or partnership, not clear and convincing evidence of a gift. Moreover, the trial court itself stated during the hearing on plaintiffs' motion to reconsider that "there is no question that I did not hear the term gift [during the trial]." The issue of whether any of the transactions amounted to a gift were never before the trial court. The only issue at trial was whether a partnership existed and, if so, whether defendant was entitled to include his services as a capital contribution. The trial court itself conceived the novel theory that Fred had "gifted" fifty percent of his capital contribution to the partnership to defendant.

Accordingly, I would hold that the trial court's finding that Fred made a gift to defendant was clearly erroneous and reverse the trial court's determination on this point. I would affirm the trial court's ruling in all other respects.
 
 

______________________________
James Z. Davis, Judge

1. While the evidence and inferences therefrom might more readily support a finding that Fred intended all of his capital contribution to inure to Joel as a gift, Joel sought below only one-half of the value of the capital contribution, thus waiving any claim he had to the balance.