Case Information
*1 IN THE UTAH COURT OF APPEALS
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N.A.R., Inc., ) MEMORANDUM DECISION
)
Plaintiff, ) Case No. )
v. )
) F I L E D Aubrie Vermillion, ) (July 2012)
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Defendant Appellee. ) App ____________________________________ )
)
Neil B. Baird, D.D.S., )
)
Appellant. )
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Third District, Salt Lake Department,
The Honorable Robert K. Hilder
Attorneys: Derek A. Coulter Robert T. Tateoka, Draper, Appellant
Ronald Ady, Salt Lake City, Appellee ‐‐‐‐‐
Before Judges Voros, Thorne, Christiansen.
CHRISTIANSEN, Judge:
¶1 Neil B. Baird, D.D.S., appeals court’s denial his attorney fees against Aubrie Vermillion her counsel. Specifically, challenges trial ruling precluded for fees associated that parties ultimately settled. We affirm. *2 ¶2 Baird performed dental services for Vermillion; Vermillion refused to pay for those services based upon her claim Baird provided defective care. As result written agreement between Baird and N.A.R. (the ‐ ‐ debt agreement), Baird assigned Vermillion’s to N.A.R. and N.A.R. filed collection against Vermillion effort collect debt. Baird was party action. In course suit, Vermillion filed counterclaim against N.A.R. asserting Utah Consumer Sales Practices Act violations. Vermillion subsequently served subpoena duces tecum on Baird, seeking his deposition and production documents, and Baird incurred substantial attorney fees moving trial court quash subpoena limit scope deposition. Baird also requested attorney fees sanction against Vermillion and her counsel. In its rulings on discovery disputes between Vermillion and Baird, trial court granted Baird’s motion quash but reserved issue Baird’s motion attorney fees.
¶3 Vermillion and N.A.R. settled all claims on day trial after jury had been empaneled. In particular, N.A.R. released any claims it or could be brought against Vermillion, which release extended “[N.A.R.’s] officers, agents, Dr. Baird, his officers, agents, their attorneys . . . .” Additionally, Vermillion and N.A.R. agreed “everyone bears their own attorneys fees, costs and expenses.” Baird was present, sans counsel, during settlement proceedings, but Baird never addressed court or objected settlement. Shortly after Baird renewed his motion attorney fees, which trial court dismissed part its ruling enforcing settlement. The trial court reasoned Baird was contract with N.A.R. was therefore bound agreement.
¶4 We agree trial reasoning its denial Baird’s for attorney fees N.A.R. settlement between precluded Baird raising further claims against Vermillion, including fees.
The described Baird privy. Pursuant debt however, technically obligor/assignor, making assignee/obligee. See generally Sunridge Dev. Corp.
(continued...) *3 ¶5 Utah case law provides clarification of privity in a collateral estoppel context, which is useful an understanding privity in this matter. Collateral estoppel is not involved here there rather than a judicial determination. Nonetheless, preclusive effect the is analogous. For example, in Searle Brothers v. Searle , 588 P.2d 689 (Utah 1978), the supreme explained, “The legal definition person in privity with another, is a person so identified in interest another he represents same legal right. This includes mutual or successive relationship rights in property.” Id. at (applying privity “judgments or decrees court,” which “privity means ‘one whose interest has been legally represented at time,’” and holding did not exist where plaintiffs claimed an “independent and separate partnership interest” in property involved, which “arose before commencement first action, not subsequent thereto” (citation omitted)); cf. Brigham Young Univ. v. Tremco Consultants, Inc. , 2005 UT 19, ¶ 27, 110 P.3d 678 (outlining elements collateral estoppel).
¶6 Unlike in Searle , where plaintiffs did not share same “legal right” or “mutual or successive relationship rights in property” due their “independent separate partnership interest,” Searle , 588 P.2d at 691, and shared same legal right any amount ultimately collected Vermillion. As provided in their assignment assigned debt but the dentist maintained 50% interest claim. retention 50% interest in demonstrates both he same legal right, property (...continued) v. RB&G Eng’g, , ¶ 15, 230 P.3d 1000 (Utah 2010) (explaining “the relationship assignee obligor is not best characterized form of privity, but rather continuation rights liabilities assignor as evidenced assigned agreements further limitations stated itself”). Although an may not be “best characterized form privity,” see id. , assignee fortiori an assignor. Because it does affect our analysis, we use parties’ characterization relationship.
interest, at stake in the collection of the debt. Further, this legal right was not affected by the fact that Baird served a fact witness.
¶7 Again in collateral estoppel context, a court may evaluate whether a party has control over the litigation in order to determine whether privity exists. See Baxter v. Utah Dept. of Transp. , 705 P.2d 1167, 1169 (Utah 1985) (stating that “[t]o establish privity, [a] witness also must have had some control over the litigation” holding that the fact witness was not in privity to the preceding action because the only direct connection he had with suit was that he appeared witness). Similarly, in Brigham Young University v. Tremco Consultants, , 2005 19, 110 P.3d 678, the supreme analyzed whether collateral estoppel elements were met by applying “the concept based on nonparty’s control of litigation.” Id. ¶¶ 32 ‐ 34. ¶8 In contrast Baxter , Baird retained some control over litigation between N.A.R. Vermillion. He had contractual right decide whether commence litigation whether terminate N.A.R’s prosecution at time prior to its conclusion. Baird contends he no control over litigation the settlement ‐ ‐ agreement granted N.A.R. exclusive right compromise settle claim. On contrary, ‐ debt agreement required N.A.R. gain approval Baird before settling, reducing, or compromising debt. also argues since he was independently represented by counsel who was not made aware settlement he was not in privity But representation limited involvement in case a fact witness, rather than 50% interest claim.
¶9 Finally, having statement on record instead formal written document does negate agreement. “It is basic long established principle contract law agreements are enforceable even though there is neither written memorialization nor signatures parties, unless specifically required by statute frauds.” Murray v. State , 737 P.2d (Utah 1987) (citing 17 Am. Jur. 2d Contracts § 67 (1964)). ¶10 Because maintained interest control over litigation, he Thus, he is bound settlement *5 agreement. Accordingly, we conclude correctly enforced denied motion attorney fees. ¶11 Affirmed.
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Michele M. Christiansen, Judge
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¶12 WE CONCUR:
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J. Frederic Voros Jr.,
Associate Presiding Judge
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William A. Thorne Jr., Judge
It therefore unnecessary us decide whether preclusion barred Baird’s fees.