Case Information
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T HE U TAH C OURT OF A PPEALS
D AVID L EE L AMOREAUX , Plaintiff Appellant, v.
B LACK D IAMOND H OLDINGS LLC, Defendant Appellee.
Opinion No.
Filed February
Fifth District, St. George Department Honorable Eric A. Ludlow
No.
Michael W. Park, Attorney for Appellant
David L. Elmont Daren Barney, Attorneys Appellee
J UDGE W ILLIAM A. T HORNE J R . authored this Opinion, which J UDGES J AMES Z. D AVIS M ICHELE M. C HRISTIANSEN concurred.
THORNE, Judge:
¶1 David Lee appeals from order dismissing originally initiated Holdings, LLC (Black Diamond) 2008. After bench trial but before merits, purchased judicial successfully moved substituted party plaintiff. then filed motion dismiss its
Lamoreaux Black Diamond capacity as plaintiff, which court granted. We affirm.
BACKGROUND
¶2 In April 2006, Diamond entered into a real estate sales listing agreement with Prudential Cedar City Realty (Prudential), whereby Prudential agreed market and sell a subdivision owned Diamond. The listing agreement named Lamoreaux seller’s agent, and signed agreement Prudential’s “Principal/Branch Broker.” The agreement provided for a sales commission 8% selling price, and Prudential ultimately brokered a for between eight ten million dollars. When failed pay full amount he believed entitled agreement, Lamoreaux brought against for breach contract in March (the action). complaint sought a determination amount 8% sales commission a judgment amount, less $150,000 already paid, plus attorney fees prejudgment interest. The con ‐ ducted a two day bench trial claim on February 17, At conclusion trial, directed both parties submit proposed findings fact orders by April would take matter under advisement issue a written decision.
¶3 In separate (the Fisher action), Darwin Cheryl Fisher obtained judgment February in amount $16,484.96. On January pursuant their judgment, Fishers obtained writ against listing agreement contained attorney fees provi ‐ sion. retained counsel contingency fee basis, counsel paid a percentage amount ultimately recovered.
Lamoreaux Black interest in the Black Diamond action. The Fishers publicly noticed judicial sale and personally served Lamoreaux with notice February 16, Despite notice, Lamoreaux did not file reply or objection in either the Fisher or the Black Diamond action. Lamoreaux and his counsel attended March sale attempted stop the proceedings by declaring Lamoreaux had transferred interest in Black Diamond action. Nevertheless, sale took place, Black Diamond submitted highest bid in amount of $17,383.78. That same day, Black Diamond filed motion substitute in as party plaintiff in Diamond action.
¶4 opposed motion substitute, alleging first in had transferred his in Diamond son being served notice Fishers’ writ. argued that Utah longer allowed choses action following repeal Civil Procedure. The rejected arguments and granted August concluding still permitted law could collaterally attack results Fisher Having been substituted as plaintiff, then sought dismissal Fishers’ writ, well subsequent notice sale, contained following property description:
All claims, counterclaims, causes action, choses rights payment, rights compensation and/or damages every kind nature, David against Holdings LLC, including, but not limited to, all such claims causes action asserted complaint dated March 2008, filed Fifth Judicial District Court with civil case number 080500885. *4 Lamoreaux v. Black Diamond district court granted over Lamoreaux’s objection on September appeals.
ISSUES AND STANDARDS OF REVIEW
¶5 first challenges Diamond’s purchase his claim against Diamond, arguing that law longer allows in action should been granted an evidentiary hearing on allegation he had transferred interest to sale. “The district court’s interpretations Utah statutes rules procedure are questions law reviewed for correctness.” In re Irrevocable Jack W. Kunkler Trust A , 2011 UT 7, ¶ P.3d 1184.
¶6 Next, argues district court erred when it allowed substitute plaintiff We review substitution only an abuse discretion. See Civ. P. 25(c) (“In case transfer interest, be continued or original party, unless court upon motion directs person whom transferred be substituted . . . .”); cf. Lundahl v. Quinn , P.3d 1000 (per curiam) (“While 25(c) speaks permissive rather than mandatory terms, clear courts cannot compelled recognize parties whim movant.”). ¶7 Finally, erred by failing render decision merits instead dismissing upon motion. review district case management decisions rulings voluntary dismissals abuse discretion standard. See Murray First Thrift & Loan Co. Benson , (Utah 1977) (stating has “reasonable matter [voluntary] dismissals”); Posner Equity Title Ins. Agency, Inc. v. UT App 347, ¶ 23, 222 P.3d 775 (“[T]rial courts broad in managing cases assigned their courts.”).
ANALYSIS
¶8 multiple issues appeal fall into three distinct categories: those challenging execution and sale his claim against Diamond, those challenging court’s order, and those challenging order dismissal. address arguments within this chronological framework.
I. Execution and Sale
¶9 On appeal, raises two arguments challenging validity purchase his in action. First, argues that rule 69 Utah Civil Procedure repealed and that replacement provisions do allow execution sale choses Second, he argues that erred in failing hold evidentiary hearing claim that had transferred cause against execution sale.
¶10 Lamoreaux first that, light repeal 69, execution sale longer permitted any such execution void under Rules Civil Procedure. Supreme Court has ruled, recently choses are subject sale. In Applied Medical Technologies, Inc. Eames , UT P.3d 699, supreme stated, “Given choses are amenable 69(f), follows defendant can purchase claims, i.e., pending itself then move dismiss those claims.” Id. ¶ 13; see Snow, Nuffer, Engstrom & Drake Tanasse (“[W]e hold legal malpractice claim, like other chose in may ordinarily be acquired by creditor through attachment execution.” (emphasis added)). ¶11 However, correctly points out, Applied Medical Technologies was decided under now ‐ repealed rule 69. Applied Medical Technologies is longer good law light 2004 repeal rule 69. We disagree, we conclude choses remain “amenable execution” under current Civil Procedure. See Applied Med. Techs. , 2002 reach conclusion by comparing relevant language rule corresponding provisions of current rules. ¶12 Rule governed procedures relating writs provided such writs were “available a judgment creditor satisfy judgment or other order requiring delivery property or payment money by judgment debtor.” R. Civ. P. 69(a) (2003). contained internal definition property subject execution: “A writ execution used levy upon all judgment debtor’s personal property real property exempt from execution state or federal law.” Id. R. 69(b). Rule 69(f) expressly referred choses its provisions service writ, stating that
[u]nless otherwise directs, officer must execute writ non exempt property judgment debtor by levying a sufficient amount property, if there sufficient property; collecting or selling selling other property manner set forth herein.
Id. R. 69(f) (emphasis added).
¶13 In repealed replaced multiple new rules, including rules 64E. See id. (2012) (“Writs in v. general.”); id. R. 64E (“Writ of execution.”). Rule 64E states, “A writ of execution is available to seize property the possession or under control of the defendant following entry of a final judgment or order requiring delivery of property or payment of money.” Id. R. 64E(a). “Property,” for purposes of rule 64E, “means defendant’s property any type not exempt from seizure. Property includes but is not limited to real personal property, tangible intangible property, right to property whether due or to become due, an obligation a third person to perform for defendant.” Id. R. 64(a)(9); see id. R. 64(a) (providing definitions terms “[a]s used 64, 64A, 64B, 64C, 64D, 64E, 69A, 69B, 69C”). The current rules contain no single provision directly comparable former rule 69(f) make express reference choses context. ¶14 Lamoreaux amendment rules omit reference choses indicates intent prohibit their execution sale. is correct removal a term from definition is often intended remove excluded term from definition. See T Mobile USA, Inc. v. State Tax Comm’n , 2011 UT 28, ¶ 27, 254 P.3d 752 (“As part our plain language analysis, we place significance removal term from piece legislation.”); Sindt v. Retirement Bd. , 2007 UT 16, ¶ 13, P.3d 797 (noting legislature’s removal term “constable” indicative its intent remove “constable” from definition public officer). However, plain language both rule current rules demonstrates such result not appropriate here. ¶15 Even under definition executable property never expressly included choses action. Rather, allowed “all judgment debtor’s personal property real property exempt from state or federal law.” Civ. P. 69(b) (2003). supreme has repeatedly found definition broad enough include in See Applied Med. Techs., Inc. Eames , UT ¶ 699; Snow, Nuffer, Engstrom & Drake Tanasse 9, P.2d 208. Rule 69’s only express reference to choses in action appeared in 69(f), governing service of writs of execution. ¶16 Under current rules, definition of property subject to execution even broader, encompassing “the defendant’s property of any type exempt from seizure” including “real personal property, tangible intangible property, right to property whether due or to become due, an obligation of a third person to perform for defendant.” Civ. P. 64(a)(9) (2012). Choses in been identified as type intangible property, included within current definition. See Bagford Ephraim City , (Utah 1995) (“[I]ntangible property, such as choses patent rights, franchises, charters or other form contract, are within scope [eminent domain] . . . fully land or other tangible property.” (second alteration original) (citation internal quotation marks omitted)). In light current broad definition property subject to execution, we conclude action remain “amenable execution” Civil Procedure. See Applied Med. Techs. Accordingly, we reject Lamoreaux’s argument repeal 69 precluded purchase his interest Black sale. ¶17 We next turn second argument, he was improperly denied evidentiary hearing his claim had transferred son sale. agree any dispute about ownership required be litigated by or his son by replying writ Fisher action.
¶18 Rule 64E provides procedure defendant to challenge writ execution: “The defendant reply writ request hearing. reply shall filed served within days after service writ accompanying papers upon defendant.” failed challenge writ replying the Fisher action. Further, to the extent that Lamoreaux’s son’s interests are even relevant to this matter, third parties are also required to assert their interests by replying to writ. Rule 64(e)(1) provides that
[a]ny person claiming the property has the same rights and obligations the defendant with respect to writ and with respect to providing and objecting to security. . . . Any claimant not named by plaintiff and not served with writ and accompanying papers may exercise those rights obligations at any before property sold or delivered plaintiff.
Id. 64(e)(1). Thus, while Lamoreaux’s son not been bound ten day limitation 64E(d)(1), he was still required reply writ before Lamoreaux’s claim was sold, and failed do so. We agree with ultimate conclusion there “no support proposition merely having [Lamoreaux] his counsel appear public auction orally assert [Lamoreaux] longer owned claims is sufficient satisfy requirements Rules 64E.” ¶19 We conclude Civil Procedure continue allow sale causes even after repeal agree that Lamoreaux’s attack circumstances surrounding sale claim was required raised litigated Fisher For these reasons, we affirm conclusion execution valid. son has intervened or, our knowledge, made other attempt secure alleged interest.
II. Substitution of Diamond as Party Plaintiff ¶20 Lamoreaux next argues that the district court erred when it allowed Diamond substitute in the party plaintiff. acknowledges that substitution rulings are discretionary with the district court but argues the district court abused its discretion case. We address this argument light of our conclusion Diamond had validly purchased Lamoreaux’s interest the Diamond of the substitution ruling. ¶21 Rule the Civil Procedure states, “In case transfer interest, the may be continued by or the original party, unless the upon motion directs person whom the transferred be substituted or joined the original party.” Civ. P. 25(c). argues plain language the contemplates actions be continued original party despite a transfer interest. However, also clearly allows substitute transferee into action.
¶22 We see abuse here. Black had lawfully purchased had filed motion new owner asking substituted into place. As Utah Supreme Court has explained,
[a]fter claims been sold, new party steps into shoes former plaintiff, claims remain cognizable, but cuts off former should have occurred entry ruling merits address failure issue a merits our analysis court’s dismissal order.
Lamoreaux plaintiff’s right pursue those claims. Once acquired by another, the new litigant has the right to determine the course scope the litigation of the claims purchased, including the right move to dismiss pending claims.
Applied Med. Techs., Inc. Eames (citations omitted). district court’s substitution order merely recognized newly acquired status owner did so within bounds the authority granted Seeing abuse by district court, we affirm its substitution for plaintiff case.
III. Dismissal
¶23 Finally, we turn examination district court’s order dismissal. argues district court should not dismissed case without ruling on merits his—now Diamond’s—claims. argues district failed make a prompt decision on merits after taking case under advisement on February that failure enter a ruling on merits defeated Lamoreaux’s counsel’s contractual right contingency fee. affirm district court’s dismissal order.
¶24 Lamoreaux first erred failing issue merits within reasonable after taking matter advisement. In light order, we recognize possibility lacks standing challenge dismissal order because was no longer party when dismissal order entered. However, does argue standing issue, we proceed address arguments their merits. v. argument misreads district court’s orders at the February 17 conclusion trial. district court did take the matter under advisement on that day, but rather ordered the parties to submit proposed findings orders no later than April 1, at time would take matter under advisement. purchased cause filed its motion for substitution on March deadline for proposed findings before district court had taken the matter under advisement. Once district court became aware that had purchased was seeking substitution—and, presumably, ultimate dismissal action— reasonably refrained from expending further judicial resources on crafting a ruling. see no abuse discretion relation timing August 11 order September dismissal order vis a ‐ vis its failure issue a ruling on merits. See generally Posner v. Equity Title Ins. Agency, Inc. , App P.3d 775 (“[T]rial courts broad managing cases assigned their courts.”).
¶25 Lamoreaux argues failure issue a merits effectively precluded his counsel from receiving compensation counsel’s contingency fee agreement Lamoreaux. directs us Louisiana case for proposition client discharge contingency fee counsel at but must pay counsel for services actually rendered. See Saucier Hayes Dairy Prods., Inc. , So. 2d (La. 1978). further argues law provides for contingency fee attorneys be paid quantum meruit basis when contingency fee agreement becomes unenforceable. See Parents Against Drunk Drivers Graystone Pines Homeowners’ Assoc. 56–58 (Utah Ct. App. 1990). ¶26 To extent counsel has some right paid services rendered, counsel’s client—Lamoreaux—was longer party time considering dismissal, counsel made no Black attempt to intervene action. Arguments pertaining counsel’s right to payment were therefore not properly before district dismissal. Accordingly, we will not disturb court’s dismissal order basis of argument failure issue on merits Black Diamond action interfered his counsel’s right payment.
CONCLUSION
¶27 We reject challenges sale cause against Black Diamond, into Black Diamond party plaintiff, ultimate dismissal on Diamond’s motion. We conclude current Rules Civil Procedure continue allow in action. We conclude was required assert alleged divestiture replying writ Fisher action. Because Diamond’s purchase Lamoreaux’s valid, did abuse its substituting plaintiff ultimately dismissing Affirmed.
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requests we order Lamoreaux’s counsel personally pay portion attorney fees incurred appeal. decline award fees this matter.