Archuleta v. Hughes

IN THE SUPREME COURT OF THE STATE OF UTAH

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Maxcine Archuleta,
Plaintiff and Petitioner,
v.
Donald C. Hughes,
Defendant and Respondent.

No. 970166
F I L E D
October 16, 1998
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Second District, Farmington Dep't
The Honorable Glen R. Dawson
 

Attorneys:
J. Kelly Walker, Richard K. Glauser, Salt Lake City, for petitioner on certiorari
Donald C. Hughes, pro se
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On Certiorari to the Utah Court of Appeals

HOWE, Chief Justice, dissenting:
 

I respectfully dissent. The court of appeals erred in holding that the trial court did not abuse its discretion in denying Archuleta's motion, made at the conclusion of the trial, to amend her complaint to conform to the evidence which had been presented. That motion was made pursuant to rule 15(b) of the Utah Rules of Civil Procedure, which states: (b) Amendments to conform to the evidence. When issues not raised by the pleading are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. (Emphasis added.) Although Archuleta had not pleaded breach of contract in her complaint, but instead had pleaded negligence, fraud, and malpractice, Hughes defended on the ground that he had strictly complied with the retainer agreement between the parties. In response to questions asked him by Archuleta's attorney, Hughes testified as follows: Q. Have you alleged in this case that you had--that you were entitled, under the plain language of the retainer agreement, to receive one-third of any recovery, including any payment made through PIP?

A. I believe that I was entitled to that. Yes.

Q. I'm just asking if you took that position and made that claim, and you tell me you have.

A. I think a retainer agreement on its plain face gives me the right to recover one-third of what is paid.

Q. Is that a contractual right you're talking about?

A. Yeah. Attorney fees are contractual--I mean attorney retainer agreements are contracts.

Q. So you're claiming you had a right to do that under the terms of the contract?

A. Right. It says plainly on its face that on either liability, the person that ran into her, their insurance, I get to claim a third of what we recover. That--that's what she agreed to. And I would also submit that that's the standard that's done here in this community. Subsequently, Hughes reiterated his right to the fee he collected under the terms of the retainer agreement: Q. Now, is this the document you claim your contractual right to (inaudible)?

A. This is the Attorney Retainer Agreement. That's where she was paying for me to be her attorney and we set out how we were going-- how I was going to get paid and what I'm going to do. In General Insurance Co. v. Carnicero Dynasty Corp., 545 P.2d 502, 506 (Utah 1976), we held: Implied consent may be found where one party raises an issue material to the other party's case, or where evidence is introduced without objection. Significantly, the first part of Rule 15(b) is not permissive in terms, for it provides that issues tried by express or implied consent shall be treated as if raised in the pleadings. Even failure to amend does not affect the result of the trial of these issues. (Footnotes omitted.) It is clear that the issue of whether Hughes had breached the retainer agreement was litigated at the trial. Hughes responded to Archuleta's allegations of negligence, malpractice, and fraud, by essentially stating that everything about his representation of Archuleta--including the fee he retained from her insurance settlement--was done pursuant to the terms of the retainer agreement. The majority opinion states that "[a]lthough Hughes mentioned the retainer agreement on several occasions, the references were not in the context of breach of contract; Hughes mentioned the contract in defense against Archuleta's fraud charge." That distinction is not determinative. Hughes' defense to the fraud charge was that he had strictly adhered to the terms of the retainer agreement. Thus the breach of contract issue was necessarily tried. Therefore, the trial court erred in not allowing Archuleta to amend her complaint to conform with Hughes' abundant testimony on the breach of contract issue.

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