Taubert v. Roberts

747 P.2d 1046, 72 Utah Adv. Rep. 3, 1987 Utah LEXIS 825, 1987 WL 3296
CourtUtah Supreme Court
DecidedDecember 21, 1987
DocketNo. 19718
StatusPublished

This text of 747 P.2d 1046 (Taubert v. Roberts) 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
Taubert v. Roberts, 747 P.2d 1046, 72 Utah Adv. Rep. 3, 1987 Utah LEXIS 825, 1987 WL 3296 (Utah 1987).

Opinions

ZIMMERMAN, Justice:

This is an appeal from a summary judgment upholding the validity of a sheriff’s sale of real property. Appellant Taubert contends that the sale was invalid under Utah Rule of Civil Procedure 69(d) because levy occurred after the return date of the writ. We agree and reverse.

Taubert purchased some Summit County property in 1978. At that time, the property was subject to a judgment lien held by Pacific States Pipe Co. (“Pacific”). In 1979, respondent Roberts purchased Pacific's interest under the judgment lien. To satisfy the judgment, Roberts obtained a writ of execution, which was delivered to the Summit County sheriff on August 4, 1981. Under Utah Rule of Civil Procedure 69(c), the return date of a writ is no later than two months after it is delivered to the officer charged with its execution. Therefore, the return date in this case was no later than October 4, 1981.1

On August 13, 1981, a copy of the writ was served on Taubert at his California residence. Taubert thereafter checked the property, the court records, and the local newspaper, but found nothing further to indicate that the property was to be sold. By contacting the Summit County sheriff, he did, however, learn that a sale involving Pacific’s judgment was set for October 13, 1981. Assuming that his property would be sold, Taubert sent his agent to attend the sale. The agent found that although the sale was to satisfy a portion of the same judgment, it involved a different piece of property. At that point, Taubert believed that because two months had passed since the writ was served on him, no sale of his property could occur under the August 4th writ.

On October 16th, nearly two weeks after the return date of the writ, Roberts instructed the sheriff to sell Taubert’s property. Prior to that time, the sheriff had done nothing to execute the writ beyond serving a copy on Taubert. After reviewing Roberts’ October 16th instruction, the sheriff posted notice of the sale on the property, at the place of the sale, and in three other public places and published notice in the local newspaper, as required by Utah Rule of Civil Procedure 69(e)(1). The sheriff’s sale was held on November 13, 1981. Roberts purchased the property. Taubert was ignorant of the sale until March of the following year.

Utah Rule of Civil Procedure 69(f)(3) provides that “[t]he property may be redeemed from the purchaser within six months after the sale.” Because Taubert did not learn of the sale until March of 1982, he actually had less than two months to redeem. Unable to raise the funds in time, Taubert brought suit to set aside the sale. Taubert challenged the sale on the ground that the sale was untimely under the rule. The trial [1048]*1048court summarily rejected this claim as a matter of law.

Because this appeal raises only legal issues, we give the trial court’s ruling no deference. See, e.g., Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985) (citing Betenson v. Call Auto and Equipment Sales, Inc., 645 P.2d 684, 686 (Utah 1982); Automotive Manufacturers Warehouse, Inc. v. Service Auto Parts, Inc., 596 P.2d 1033, 1036 (Utah 1979)).

On appeal, Taubert argues that a sheriff’s sale is valid only if the requirements of rule 69 have been met and that they have not been met in this case. Specifically, rules 69(c) and (d) require either that the sale occur before the return date or that the officer begin to “serve the execution” before the return date.2 Because the sheriff’s sale occurred nearly two weeks after the return date, the only issue is whether the officer had “begun to serve an execution” before the return date. Taubert argues that the sheriff had not “begun to serve an execution” because he had done nothing more than serve him with a copy of the writ; service of execution begins when the sheriff levies on the real property, and levy is accomplished only by complying with the steps set forth in rule 69(e)(1), i.e., posting notice of the sale on the property, at the place of the sale, and in three public places, as well as publishing notice in the . local newspaper. Because none of these steps was taken before the return date, the sale was void.

In response, Roberts argues that the sheriff had “begun to serve an execution” by serving Taubert with a copy of the writ of execution. Therefore, the sale could be held after the return date.

The issue we must decide is whether in a case involving real property, a levy as defined in rule 69(e)(1) must be commenced before the writ of execution return date. The resolution of this issue turns on the meaning of “serve an execution” as that phrase is used in rule 69(d). Unfortunately, rule 69(d) was poorly drafted, and the phrase in question was an especially poor choice. Out of context, “serve an execution” might imply service of process or notice by means of serving a copy of the writ of execution on the property owner. A reading of the entire rule, however, reveals a completely different meaning. Rule 69(d) deals not with service of process, but exclusively with performance of the writ’s commands. It sets forth the requirements for executing or performing the commands of the writ as follows:

(d) Service of the Writ. Unless the execution otherwise directs, the officer must execute the writ against the property of the judgment debtor by levying on a sufficient amount of property, if there is sufficient [property]; collecting or selling the choses in action and selling the other property, and paying to the judgment creditor or his attorney so much of the proceeds as will satisfy the judgment. Any excess in the proceeds over the judgment and accruing costs must be returned to the judgment debt- or, unless otherwise directed by the judgment or order of the court. When there is more property of the judgment debtor than is sufficient to satisfy the judgment and accruing costs within view of the officer, he must levy only on such part of the property as the judgment debtor may indicate, if the property indicated is amply sufficient to satisfy the judgment and costs.
When an officer has begun to serve an execution issued out of any court on or before the return day of such execution he may complete the service and return thereof after such return day. If he shall have begun to serve an execution, and shall die or be incapable of completing the service and return thereof, the same may be completed by any other officer who might by law execute the same if delivered to him; and if the first officer shall not have made a certificate of his doings, the second officer shall certify whatever he shall find to [1049]*1049have been done by the first, and shall add thereto a certificate of his own doings in completing the service.

Utah R.Civ.P. 69(d) (emphasis added). The first paragraph of rule 69(d) provides that to begin execution of the writ, the sheriff must levy on the debtor’s property. It provides no procedure for serving a copy of the writ on the property owner. The second paragraph also fails to provide any such procedure. Therefore, it can be interpreted only as elaborating on the requirements set forth in the first paragraph.

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Bluebook (online)
747 P.2d 1046, 72 Utah Adv. Rep. 3, 1987 Utah LEXIS 825, 1987 WL 3296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taubert-v-roberts-utah-1987.