Curry v. Kilgore, 2004 UT App 112 (Utah App. 4/15/2004)
| Citation | 2004 UT App 112 |
| Decision Date | 15 April 2004 |
| Docket Number | Case No. 20030536-CA. |
| Parties | Annabelle M. Curry, for herself and as trustee of the Annabelle M. Curry Family Living Trust, Plaintiff and Appellant, v. Tod N. Kilgore; Linda Kilgore; Clair L. Phillips; Lois D. Phillips; Chris Wolcott; Lewis, Wolcott & Dornbush, L.L.C.; Susan Shaw; Wardley Corporations; Antone G. Frandsen; and Stewart Title Guaranty Company, Defendants and Appellees. |
| Court | Utah Court of Appeals |
Appeal from the Third District, Sandy Department, The Honorable Denise P. Lindberg.
Charles A. Schultz, Brigham City, for Appellant.
Scott O. Mercer and Ryan B. Hancey, Salt Lake City, for Appellees Kilgore and Phillips.
John B. Wilson and Laura S. Scott, Salt Lake City, for Appellee Stewart Title Guaranty Company.
J. David Pearce and Scott R. Sabey, Salt Lake City, for Appellees Wardley Corporation and Susan Shaw.
Paul M. Halliday Jr. and Paul M. Halliday, Salt Lake City, for Appellee Antone G. Frandsen.
Before Judges Jackson, Orme, and Thorne.
AMENDED MEMORANDUM DECISION1
Annabelle Curry (Curry) appeals from the dismissal of their complaint and from various interlocutory orders. Appellees seek summary disposition of the appeal.
At all times, the real party in interest was the Trustee of the Annabelle M. Curry Family Trust (Trust) as the purchaser and title holder of the real property that is the subject of the action. Curry twice discharged counsel, and on at least three occasions during the period from July 12, 2002 until dismissal of the case on May 19, 2003, she was advised that she could not represent the Trust — or more precisely, the interests of the Trust beneficiaries — as a pro se litigant and must retain a licensed attorney to do so. The trial court repeatedly advised Curry to retain counsel to represent the Trust, allowed adequate time for her to do so, and advised Curry of the consequences of failing to retain counsel and to move the case forward. No party to this appeal challenges, nor did they below, the general accuracy of the trial court's position on the issue. See Zeigler v. Nickel, 64 Cal. App. 4th 545, 75 Cal. Rptr. 2d 312 (1998) (); Tradewinds Hotel, Inc. v. Cochran, 799 P.2d 60 (Haw. Ct. App. 1990) (same); Black Acres Pure Trust v. Fahnlander, 443 N.W.2d 604 (Neb. 1989) (per curiam) (same); see also Lundahl v. Quinn, 2003 UT 11,¶¶6-7, 67 P.3d 1000 ().
The memorandum opposing summary disposition mischaracterizes the record. It focuses only on a final three-day continuance granted at the request of prospective counsel to allow that counsel to review the file and determine whether to enter an appearance. As such, the memorandum does not acknowledge that Curry had been notified on three earlier occasions that the Trust must be represented by a licensed attorney. In addition, a signed minute entry of April 2, 2003, notified Curry that the Trust's failure to appear with counsel at a scheduling conference to be held five weeks later would result in dismissal of the case. Although it is correct that Curry could not compel counsel to represent the Trust, she twice terminated the services of the attorney who initiated the case.
Curry does not dispute that dismissal of the case without prejudice may have been proper because she was unable to obtain counsel to represent the Trust within the time ordered by the trial court. A dismissal under rule 41(b) of the Utah Rules of Civil Procedure operates as an adjudication on the merits, unless the court otherwise specifies. See Utah R. Civ. P. 41(b). Curry asserts that the dismissal with prejudice was improper because she did not have the ability to comply with the court's order by obtaining counsel within the specified time. The case was pending for over...
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