Clark v. Booth

821 P.2d 1146, 168 Utah Adv. Rep. 7, 1991 Utah LEXIS 80, 1991 WL 167017
CourtUtah Supreme Court
DecidedAugust 30, 1991
DocketNos. 880109, 880486 and 890046
StatusPublished
Cited by5 cases

This text of 821 P.2d 1146 (Clark v. Booth) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Booth, 821 P.2d 1146, 168 Utah Adv. Rep. 7, 1991 Utah LEXIS 80, 1991 WL 167017 (Utah 1991).

Opinion

HOWE, Associate Chief Justice:

Before us are three appeals taken from a decree of foreclosure and from a judgment of sanctions. Upon motion and stipulation of the parties, we consolidated the appeals for hearing and decision. Defendants Marian E. Booth, trustee, and her attorney Royal K. Hunt appeal from the decree of foreclosure and from a judgment of sanctions imposed against them pursuant to rule 11 of the Utah Rules of Civil Procedure.

In 1974, under a uniform real estate contract, plaintiffs Ernest G. and Verda G. Clark sold a tract of real property in Salt Lake County on which two homes were located. By June 1, 1986, the contract was in default. The unpaid balance was just over $7,000, and the value of the property was in excess of $50,000. On December 1, 1986, Clarks initiated this foreclosure suit pursuant to paragraph 16C of the contract. At that time, there were only two interest holders of record other than Clarks: Keith L. Gurr, the owner of the vendee’s interest in the contract, and The Lockhart Co., which held a security interest in the vendee’s interest. Booth, who owned the vendee’s interest in the property prior to Gurr, along with other parties who potentially encumbered the title, was served with a summons and complaint.

On February 26, 1987, Booth counterclaimed against Clarks, alleging that they had unlawfully entered the property in November 1986. A timely reply to the counterclaim was not filed, and on April 1, Booth took a default judgment against Clarks for $7,530. On April 30, for no consideration, Booth assigned the judgment to Mauri B. Myers, who was then the owner of the vendee's interest in’ the contract, having taken an assignment from Gurr. Clarks were given notice of neither the assignment nor the default judgment.

In the meantime, Clarks discovered that there were errors in their original title report and that, in fact, many additional parties encumbered the title. In July 1987, Clarks obtained a second foreclosure report, which revealed that Booth had not only taken a default judgment on her counterclaim against them, but was in the process of executing on Clarks’ interest in the property. An execution sale was scheduled in two weeks. The trial court granted Clarks’ motion on August 7 for an order staying the execution of judgment and setting aside the default judgment pursuant to subsections (1) and (3) of rule 60(b) of the Utah Rules of Civil Procedure.

In November, Clarks moved for summary judgment on Booth’s counterclaim, based on evidence obtained from the depositions of Richard L. Booth and Marian E. Booth. The depositions revealed that Booth had quitclaimed the property to Gurr on May 30, 1986, and that Gurr had quit-claimed his interest to Myers on July 1, 1986, prior to the alleged unlawful entry complained of in the counterclaim. However, the deed to Myers was not recorded until April 1, 1987.

Simultaneously with their motion for summary judgment on the Booth counterclaim, Clarks moved for summary judgment on their complaint for a decree of foreclosure, which they had amended to include additional defendants, including Myers. Neither Booth nor Myers filed anything in opposition to either motion. The court granted both motions in November 1987, finding “that the counterclaimant [Booth] had no interest in the property [1148]*1148during all material times alleged in the counterclaim and the counterclaim is therefore without merit and groundless” in light of the quitclaim deed to Gurr. Clarks were awarded, under paragraph 21 of the contract, their costs and attorney fees incurred in the foreclosure action.

On December 10, Clarks moved for rule 11 sanctions against Booth and Hunt, and the motion was granted. The court found that the filing of the counterclaim was a violation of rule 11:

Royal K. Hunt filed said counterclaim in violation of his duties under Rule 11, Utah Rules of Civil Procedure and ... his actions thereafter were in violation of his duties to the court and opposing counsel. Sanctions should therefore be awarded against Royal K. Hunt in the amount of attorney’s fees and costs incurred by plaintiffs in the defense of said counterclaim.

On December 22, 1987, after the decree of foreclosure had been granted but prior to its signing and entry, Associates Financial Services of Utah, successor in interest to The Lockhart Company, assigned its rights under its trust deed to Hunt. Hunt personally became a party to the action on February 29, 1988, as a successor in interest to Associates. On February 1, 1988, the court entered the decree of foreclosure, and the sheriffs sale was held May 17, 1988. The principal sum owing was in excess of $7,000, and the total costs, fees, and expenses exceeded an additional $12,500. No one objected to the sale, at which only Clarks appeared. Their bid covered the principal balance and all costs, fees, and expenses.

Booth and Hunt bring these appeals, contending first that the trial court erred in setting aside the default judgment against Clarks on Booth’s counterclaim because Clarks did not bring their motion within three months after entry of the judgment, as required by rule 60(b)(1) and (3), Utah Rules of Civil Procedure. A short answer to this contention is that Booth and Hunt lack standing to raise this issue. After obtaining the default judgment, Booth assigned it to Myers. At the hearing on plaintiffs’ motion to set aside the default judgment, Booth, through her attorney Hunt, called the trial court’s attention to the fact that Myers, who was the owner of the judgment, had not been given notice of the hearing. Clarks accordingly moved to permit Myers to be heard at a later date. Notice of the subsequent hearing was given Myers, but neither he nor Hunt appeared at that time. The motion to set aside the default judgment was granted. Myers has not raised any objection to the trial court’s action in the appeals before us. Neither Booth nor Hunt can now be heard to assail the trial court’s action.

Appellants next contend that the foreclosure sale was invalid because the trial court had not entered a final judgment upon which a sale could be taken. They point to the fact that the judgment of sanctions against them was not signed by the trial court until January 4, 1989. The decree of foreclosure was entered on February 1, 1988, the order of sale was entered on April 15,1988, and the sheriff's sale was held on May 17, 1988, all before the judgment of sanctions was entered.

Sanctions were imposed against appellants by means of a judgment separate and apart from the decree of foreclosure. Sanctions are imposed under rule 11 as a disciplinary or punitive measure for unacceptable conduct and may be assessed at any time during the course of a judicial proceeding. Their imposition in no way arises out of the real estate contract which was being foreclosed and has no relationship to the disposition of the case on its merits. For these reasons, the fact that the judgment for sanctions was entered after the decree of foreclosure did not in any way make that decree not final when it was entered.

Appellants argue, however, that we have already decided that the decree of foreclosure was not final when in September 1988, we dismissed the appeal in case No. 880109 because it had been taken from a nonfinal judgment, that is, the decree of foreclosure. Our dismissal of that appeal should not be so interpreted. Hunt, as [1149]

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Cite This Page — Counsel Stack

Bluebook (online)
821 P.2d 1146, 168 Utah Adv. Rep. 7, 1991 Utah LEXIS 80, 1991 WL 167017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-booth-utah-1991.