D'Aston v. Aston

Decision Date02 December 1992
Docket NumberNo. 900223-CA,900223-CA
Citation844 P.2d 345
PartiesBruno D'ASTON, Plaintiff, Appellee, and Cross-Appellant, v. Eryck ASTON; Dorothy D'Aston; and Lisa Aston, Defendants, Appellants, and Cross-Appellees.
CourtUtah Court of Appeals

Keith W. Meade (argued), Cohne, Rappaport & Segal, Salt Lake City, for Erick Aston.

S. Rex Lewis (argued), Kevin J. Sutterfield and Leslie W. Slaugh, Howard, Lewis & Petersen, Provo, for Bruno Aston.

Before BILLINGS, JACKSON and ORME, JJ.

OPINION

ORME, Judge:

Appellant Eryck B. Aston appeals from an order and decree entered by the trial court awarding appellee, Bruno D'Aston, certain personal property seized from Eryck pursuant to a Writ of Execution and Assistance. On appeal, Eryck seeks an order quashing the writ, vacating the trial court's order and decree issued pursuant to the writ, and directing that all property seized from Eryck be redelivered to him. Eryck also claims the trial court erroneously awarded Bruno attorney fees as an item of costs. Bruno cross-appeals contending the appeal is moot, a contention we summarily reject. Except for the cost issue, we affirm.

FACTS

In May of 1986, Bruno D'Aston filed a complaint against his wife and children seeking (1) a divorce from his wife, Dorothy D'Aston, (2) distribution of marital property between Bruno and Dorothy, and (3) a determination of the rights of his two adult children, Eryck and Lisa, to certain property. In the complaint, Bruno alleged that Eryck, in collusion with Dorothy, had stolen coins and other property from his car and motor home on April 30, 1986. Bruno claimed many of the allegedly stolen coins and silver bullion described in his complaint were in his possession by consignment from two individuals, Michael Graham and Al Schaefer. Accordingly, he sought an order compelling Dorothy and the children to return the allegedly stolen property. 1

Prior to the trial of this matter in April of 1988, all parties to the action, including Eryck, were represented by counsel and participated in discovery. At trial, both Dorothy and Eryck testified regarding the coins, stamps, silver, gold bullion, and other valuable items that Bruno claimed were stolen. Both denied having taken Bruno's property. Bruno also presented the testimony of several witnesses who claimed they had seen some of the coins alleged to have been stolen from Bruno in the possession of Dorothy and Eryck, and offered for sale by them at coin shows subsequent to the date they were allegedly stolen. In turn, Eryck and Dorothy presented testimony of witnesses who claimed they saw some of the allegedly stolen coins in Bruno's possession and offered by him for sale at coin shows after the date he claimed they were stolen.

Eryck testified as to the contents of his own coin collection, introduced a list of his own inventory of coins, and compared it to the list of stolen inventory which Bruno had prepared and provided to the police shortly after the alleged theft. In the same manner, Bruno compared his list of stolen inventory, hereinafter referred to as the police report inventory, to Eryck's inventory list, claiming several items listed in Eryck's inventory as his own. During trial, the ownership of several coins appearing on both Bruno's and Eryck's lists was disputed, and both parties presented evidence and testimony as to the ownership of these coins.

Bruno claimed at trial that many of the coins and much of the silver bullion allegedly stolen from his motor home were consigned to him by two coin dealers: Michael Graham and Al Schaefer. Bruno presented evidence and the testimony of several witnesses verifying both consignments.

In December of 1988, the trial court entered its initial decree, which included a small award of personal property to Eryck, as well as a divorce with comprehensive property distribution as between Bruno and Dorothy. Pursuant to the decree, Bruno was awarded a 70% ownership interest in the allegedly stolen coins and other property, and Dorothy was awarded the remaining 30%. Bruno was also awarded possession of the coins he claimed to have held on consignment. The decree stated that if any of the coins and other property alleged to have been stolen from Bruno were found in possession of any of the parties to the action, it would be considered contempt of court.

Dorothy appealed from the initial decree claiming the trial court, in distributing the marital property between her and Bruno, failed to apply the provisions of a post-nuptial agreement entered into by Dorothy and Bruno in 1973. Although the decree implicitly determined that Eryck was entitled to no interest in the coins at issue in that proceeding, he did not appeal.

In April of 1989, the trial court issued an order to Eryck directing him not to transfer, dispose of, or in any way interfere with any of the personal property described in the decree. Also in April of 1989, Bruno obtained a Writ of Execution and Assistance to seize the allegedly stolen property if it was found. 2 On April 29, 1989, pursuant to the writ, constables entered Eryck's place of business and seized items matching those described in the police report inventory and other exhibits attached to the initial decree. The items seized included silver dollars, bullion and collectable coins. The constables made a detailed inventory list of the items seized, which list was filed with the court.

The trial court then issued an Order to Show Cause ordering Eryck to show why he should not be held in contempt of court since coins and other items awarded to Bruno and/or Dorothy by the initial decree and described in several exhibits attached to the decree were found in Eryck's possession. Eryck moved to quash the writ and to have the property returned to him, and the trial court denied the motion. Following numerous objections and motions concerning the writ, the trial court conducted an evidentiary hearing in order to determine ownership of the coins and other property seized from Eryck and to determine whether the items seized pursuant to the writ were the same coins and other personalty that Bruno had reported stolen prior to the initial proceeding. 3

At the hearing, which lasted three days, both Eryck and Bruno presented evidence as to the ownership of various coins, silver bullion, and other personal property. Eryck challenged Bruno's claim that certain coins had been consigned to him by Michael Graham, doing business as "1841," and sought to introduce the deposition of Michael Graham wherein he testified that he had not consigned coins to Bruno. The trial court concluded that since the issue as to who owned the consigned coins had been decided in the proceeding which culminated in the initial decree, no evidence would be heard on the consignment issue. Accordingly, the trial court excluded the deposition as substantive evidence, considering it only as impeachment of Bruno's credibility.

In its Memorandum Decision, growing out of the hearing on the writ, the trial court found in favor of Bruno with respect to a portion of the seized property. The trial court found that (1) coins matching the description of those that Bruno claimed had been stolen unexplainedly appeared in Eryck's coin shop, (2) Eryck did not adequately explain why he had coins identical to Bruno's missing coins, (3) Eryck had sold many of the stolen coins to finance recent expensive purchases, and (4) the coins found in Eryck's coin shop that were identical to those reported stolen by Bruno were taken by Eryck.

In its ensuing Order and Decree, the court concluded that Bruno was the owner of certain coins bearing an "A" stamp, 4 and that Bruno was also the owner of the items found in Eryck's coin shop which matched those items included on the police report inventory. The court also concluded that Bruno should receive the items which matched the list of consignment items awarded to Bruno in the initial decree. Eryck was awarded all items not expressly included in either of these lists. The court also awarded Bruno costs and certain attorney fees.

Thereafter, in June of 1990, this court decided Dorothy's appeal from the initial decree. The court handed down a narrowly worded reversal of the trial court's distribution of marital property as between Bruno and Dorothy in the initial proceeding, and remanded the case for application of the 1973 post-nuptial agreement. See D'Aston v. D'Aston, 808 P.2d 111 (Utah App.1990).

In the instant appeal, Eryck now seeks an order quashing the Writ of Execution and Assistance, and vacating the trial court's Order and Decree issued in connection with the hearing on the writ, claiming this court's reversal renders the writ and all subsequent proceedings void. Related to this general claim, Eryck raises a number of subsidiary arguments which we consider in turn.

I. ERYCK'S PRIMARY CLAIMS

Eryck's first two arguments are closely related. First, Eryck claims this court's reversal of the initial decree renders void the Writ of Execution and Assistance. Second, Eryck argues he was denied a full and fair hearing on the issue of ownership of the consigned coins because of the trial court's application of the doctrine of res judicata by reason of the now-reversed initial decree. The success of each argument turns on whether this court's partial reversal of the initial decree at Dorothy's behest destroyed the "finality" of the initial judgment as it pertained to Eryck. Before addressing the ultimate issue of finality as related to these two issues, we first review the general criteria necessary for a valid writ of execution and for application of res judicata.

A. Validity of Writ of Execution

The party in whose favor a judgment was rendered has a clear right to have the judgment enforced. Ketchum Coal Co. v. Christensen, 48 Utah 214, 221, 159 P. 541, 543 (1916); Ketchum Coal Co. v. District Court, 48 Utah 342, 350, 159 P. 737, 740 (1916). Rule 69(a) of the Utah Rules of Civil Procedure provides that "[p]...

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