Tanasse v. Snow

• Decision Date: 12 December 1996
• Docket Number: No. 960187-CA,960187-CA
• Citation: 929 P.2d 351
• Parties: 305 Utah Adv. Rep. 33 James A. TANASSE; Nadine B. Young; Club St. George, Inc., a Utah corporation; and Young Tanasse, Inc., a Utah corporation, Plaintiffs and Appellant, v. Steven SNOW; and Snow, Nuffer, Engstrom and Drake, a Utah corporation, Defendants and Appellees.
• Court: Utah Court of Appeals

Page 351

929 P.2d 351

305 Utah Adv. Rep. 33

James A. TANASSE; Nadine B. Young; Club St. George, Inc. a Utah corporation; and Young Tanasse, Inc., a Utah corporation, Plaintiffs and Appellant, v. Steven SNOW; and Snow, Nuffer, Engstrom and Drake, a Utah corporation, Defendants and Appellees.

No. 960187-CA.

Court of Appeals of Utah.

Dec. 12, 1996.

Robert O. Kurth, Jr., Eichbaker & Kurth, Las Vegas, NV, for Plaintiffs and Appellant.

David Nuffer, Snow, Nuffer, Engstrom, Drake, Wade & Smart, St. George, for Defendants and Appellees.

Before ORME, P.J., and BILLINGS and WILKINS, JJ.

ORME, Presiding Judge:

Plaintiff James A. Tanasse appeals the trial court's postjudgment order dismissing his motion to set aside an execution sale of his cause of action against defendant law firm. The law firm was the only bidder at the sale and purchased the malpractice claim asserted against it, in partial satisfaction of a judgment it held against Tanasse and others. We affirm.

FACTS

During 1992, defendant Snow, Nuffer, Engstrom and Drake prepared a lease agreement between its client, Club St. George, Inc., as landlord, and Nedra Pauline and Terry Burchinal, as tenants. Subsequently, a dispute arose concerning the lease. Ultimately, a complaint was filed by Burchinal, doing business as Nedra's Cafe, against Tanasse and Club St. George for wrongful eviction. After filing an answer on behalf of Tanasse and Club St. George, the law firm withdrew as counsel on January 5, 1993. Tanasse and Club St. George obtained new counsel to represent them in the wrongful eviction action, which came to trial on September 7, 1993. Burchinal prevailed and a judgment in an amount over $100,000 was entered against Tanasse and Club St. George.

Meanwhile, during February 1993, the law firm filed an action against Tanasse, Young-Tanasse, Inc., and Club St. George seeking to collect a promissory note and attorney fees due on account. ¹ The law firm obtained a default judgment on June 8, 1993, in the amount of $14,379.68 plus interest.

Over one year later, on June 13, 1994, Tanasse; Nadine Young, a principal in Young-Tanasse, Inc.; Club St. George; and Young-Tanasse, Inc. served their legal malpractice complaint on defendants. The suit claimed that deficiencies in the lease drafted by the law firm resulted in the wrongful eviction action being successfully pursued to judgment. Thereafter, in October 1994, the law firm sought to recover on its judgment in the collection action by executing on the judgment debtors' interest in the legal malpractice action. On December 1, 1994, the law firm purchased the malpractice claim for $10,000 at a sheriff's sale, whereupon the law firm filed a partial satisfaction of judgment in its collection case for that amount. Tanasse then filed a motion to set aside the sale, which was subsequently denied by the trial court. This appeal followed. ²

ISSUES FOR APPEAL

Although Tanasse does not frame the issues on appeal in exactly these terms, we believe the appeal essentially presents these issues for our consideration: (1) Are legal malpractice claims assignable? (2) Even if they are not, may they be reached by execution? (3) Even assuming that a legal malpractice cause of action can generally be levied upon by a judgment creditor through an execution sale, does public policy preclude the very law firm against whom the claim is asserted from purchasing the claim?

ASSIGNABILITY OF LEGAL MALPRACTICE CLAIM

Tanasse vigorously contends that legal malpractice claims are personal and cannot be assigned. Most courts that have considered this issue agree. See, e.g., Schroeder v. Hudgins, 142 Ariz. 395, 690 P.2d 114, 118 (App.1984); Goodley v. Wank & Wank, Inc., 62 Cal.App.3d 389, 133 Cal.Rptr. 83, 86 (1976); Roberts v. Holland & Hart, 857 P.2d 492, 495-96 (Colo.Ct.App.1993); Mickler v. Aaron, 490 So.2d 1343, 1344 (Fla.Dist.Ct.App.1986)(per curiam); Brocato v. Prairie The minority view holds that such claims arise out of routine negligence and breach of contract and, therefore, are freely assignable. See, e.g., Oppel v. Empire Mut. Ins. Co., 517 F.Supp. 1305, 1307 (S.D.N.Y.1981); Thurston v. Continental Casualty Co., 567 A.2d 922, 923 (Me.1989); Collins v. Fitzwater, 277 Or. 401, 560 P.2d 1074, 1078 (1977); Hedlund Mfg. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357, 358-59 (1988).

                State Farmers Ins. Ass'n, 166 Ill.App.3d 986, 117 Ill.Dec. 849, 850, 520 N.E.2d 1200, 1201, cert. denied, 121 Ill.2d 567, 122 Ill.Dec. 434, 526 N.E.2d 827 (1988);  Picadilly, Inc. v. Raikos, 582 N.E.2d 338, 342 (Ind.1991);  Coffey v. Jefferson County Bd. of Educ., 756 S.W.2d 155, 157 (Ky.Ct.App.1988);  Moorhouse v. Ambassador Ins. Co., 147 Mich.App. 412, 383 N.W.2d 219, 221 (1985);  Chaffee v. Smith, 98 Nev. 222, 645 P.2d 966, 966 (1982)(per curiam).  Some courts adopting the majority view reason that a legal malpractice claim arises out of a contract for personal services, and thus, like the underlying contract, is not assignable.  E.g., Goodley, 133 Cal.Rptr. at 86;  Roberts, 857 P.2d at 495-96.   Others view a legal malpractice claim as akin to a personal injury cause of action, which is not assignable.  E.g., Schroeder, 690 P.2d at 118-19
                

INVOLUNTARY TRANSFER OF LEGAL MALPRACTICE CLAIMS

While the foregoing issue is an interesting one, we need not specifically decide it. Even if a legal malpractice action cannot be voluntarily assigned, which we will assume for purposes of this case, it does not follow that it is beyond the reach of an involuntary transfer such as a judicially-sanctioned execution sale. See Riche v. North Ogden Prof. Corp., 763 P.2d 1210, 1213 (Utah App.1988), aff'd, 784 P.2d 1126 (Utah 1989)(per curiam). ³

In Riche, three medical doctors formed a professional corporation. One of the doctors became involved in several unsuccessful investments, culminating in his filing for bankruptcy. Riche, 763 P.2d at 1211. The bankruptcy court ordered the trustee to sell the bankrupt doctor's shares of stock at a public sale. Id. Riche, a creditor of the doctor, purchased the shares and demanded redemption of the shares at fair market value. Id. The corporation refused and argued that since Riche was not a member of the medical profession, he was only entitled to the nominal par value of the stock as contemplated in a stock repurchase agreement. Id. at 1211-12. However, this court held that the transfer restrictions contained in the stock repurchase agreement, ⁴ the articles of incorporation, ⁵ and state law ⁶ simply did not address involuntary transfers during life. Id. at 1213-14. Thus, we concluded that once Riche purchased, at the court-ordered sale, all right, title, and interest of the doctor's bankruptcy estate in the shares of stock, he was entitled, under the stock repurchase In the instant case, the law firm's execution upon the legal malpractice claim worked an involuntary transfer analogous to the trustee's sale in Riche. ⁷ Thus, on the same rationale as advanced in Riche, we hold that a purchaser could acquire the interest Tanasse had in the malpractice action at an involuntary execution sale, even if Tanasse would not have been privileged to voluntarily transfer his malpractice claim to an assignee.

                agreement and Utah Code Ann. § 16-11-13 (1987), to have his shares redeemed for their reasonable fair market value.  Id. at 1214.   The Utah Supreme Court approved of this reasoning and summarily affirmed.  See Riche v. North Ogden Prof.  Corp., 784 P.2d 1126 (Utah 1989)(per curiam)
                

Additional support for this conclusion is found in the language of Rule 69 of the Utah Rules of Civil Procedure. Rule 69 specifically directs the sheriff to "execute the writ [of execution] against the non-exempt 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 in the manner set forth herein." Utah R. Civ. P. 69(f)(emphasis added). A chose in action has been defined as " 'the right to recover pecuniary damages for a wrong inflicted either upon the person or property. It embraces demands arising out of tort, as well as causes of action originating in the breach of contract.' " Porter v. Household Fin. Corp., 385 F.Supp. 336, 344 (S.D.Ohio 1974)(quoting Cincinnati v. Hafer, 49 Ohio St. 60, 30 N.E. 197, 198 (1892)). It means the right to recover something by the process of a suit at law. State v. Miller, 113 N.J.Super. 1, 272 A.2d 539, 541 (App.Div.1971). Accordingly, a chose in action can be a cause of action not yet reduced to judgment. Thus, it has been held that a claim for medical malpractice, although undetermined and unliquidated, can be acquired by a creditor through attachment and execution sale. Woody's Olympia Lumber, Inc. v. Roney, 9 Wash.App. 626, 513 P.2d 849, 850-54 (1973). ⁸ In such a case, it is the right to recover money damages that is subject to attachment and execution sale. Id.

Rule 69 does not restrict a judgment creditor's ability to reach choses in action to those choses which have been reduced to judgment or those which would be voluntarily assignable in the hands of the judgment debtor. On the contrary, the term is used in the Utah version of Rule 69 without restriction of any sort. Therefore, in this case, even assuming that the underlying legal malpractice action could not be voluntarily assigned, we conclude that the right to collect money damages based on the already-asserted legal malpractice action could be levied upon by a judgment creditor of the plaintiff in the malpractice action. ⁹

PUBLIC POLICY AND PROFESSIONAL RESPONSIBILITY

Finally, we must decide whether, notwithstanding our holding that a legal malpractice cause of action can generally be Essentially, Tanasse argues that the Utah Rules of Professional Conduct reflect public policy and that the Rules proscribe the conduct engaged in by the law firm. Tanasse argues that the law firm created a conflict of...