Lamoreaux v. Black Diamond Holdings, LLC
2013 UT App 32
Utah Ct. App.2013Background
- Lamoreaux sued Black Diamond for 8% commission in 2008; bench trial occurred in February 2011 with merits undecided.
- In March 2011 Fishers obtained a judgment against Lamoreaux; a writ of execution was issued against Lamoreaux’s interest in the Black Diamond action.
- Lamoreaux failed to respond to the writ or raise his claimed transfer to his son; a public judicial sale occurred on March 21, 2011.
- Black Diamond submitted the highest bid of $17,383.78 and then moved to substitute as plaintiff in Lamoreaux’s action.
- The district court granted substitution on August 11, 2011 and later dismissed the action on September 23, 2011; Lamoreaux appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether execution and sale of choses in action is permissible after Rule 69 repeal | Lamoreaux: repeal prohibits execution of choses in action | Black Diamond: choses in action remain amenable to execution under current rules | Choses in action remain amenable to execution; sale valid |
| Whether district court abused in substituting Black Diamond as plaintiff | Lamoreaux contends substitution was improper | Black Diamond lawfully purchased the action and sought substitution | No abuse of discretion; substitution affirmed |
| Whether dismissal without merits ruling was error | Lamoreaux argues district court should rule on merits to protect contingency fee | Court could dismiss after substitution without merits ruling | Dismissal affirmed; no abuse of discretion |
Key Cases Cited
- Applied Med. Technologies, Inc. v. Eames, 44 P.3d 699 (Utah Supreme Court, 2002) (chos es in action amenable to execution; purchase and dismissal possible)
- Snow, Nuffer, Engstrom & Drake v. Tanasse, 980 P.2d 208 (Utah Supreme Court, 1999) (execution of claims by creditor through attachment and execution)
- Lundahl v. Quinn, 67 P.3d 1000 (Utah Supreme Court, 2003) (substitution of parties under Rule 25(c) discretion)
- Posner v. Equity Title Ins. Agency, Inc., 222 P.3d 775 (Utah Court of Appeals, 2009) (trial courts have broad discretion in managing cases)
- Saucier v. Hayes Dairy Prods., Inc., 373 So. 2d 102 (La. 1978) (contingency fee counsel payment rights)