Turville v. J & J Properties, L.C.
| Decision Date | 20 July 2006 |
| Docket Number | No. 20050248-CA.,20050248-CA. |
| Court | Utah Court of Appeals |
| Parties | Scott R. TURVILLE, Plaintiff and Appellant, v. J & J PROPERTIES, L.C.; James W. Ritchie; John Quitiquit; John T. Clark; Sherlene Clark; Clark Properties, Inc.; Tri-J Properties, L.L.C.; and Does 1-50, Defendants and Appellees. |
Brian W. Steffensen, Salt Lake City, for Appellant.
R. Willis Orton, Alexander Dushku, Gregory S. Moesinger, Kirton & McConkie, George A. Hunt, Mark R. Anderson, Williams & Hunt, and Mark R. Gaylord, Ballard Spahr Andrews & Ingersoll, Salt Lake City, for Appellees.
Before GREENWOOD, Associate P.J., BILLINGS and McHUGH, JJ.
¶ 1 Plaintiff Scott R. Turville (Plaintiff) appeals three trial court rulings in favor of Defendants Tri-J Properties LLC (Tri-J); J & J Properties LC (J & J) and its members John Quitiquit and James W. Ritchie, in their individual capacities; and Clark Properties, Inc. (CPI) and its officers John T. Clark and Sherlene Clark, in their individual capacities. We affirm.
¶ 2 In 1995, J & J, through its members Ritchie and Quitiquit, joined with CPI, through its officers Mr. and Mrs. Clark, to form Tri-J. Upon its formation, Tri-J bought 142 acres of property in Davis County. After Davis County accepted Tri-J's bid for the property, Mr. Clark, unbeknownst to Ritchie and Quitiquit, caused the property to be titled in CPI's name rather than Tri-J's. Mr. Clark later deeded the property back to Tri-J, only to subsequently deed 128 acres of the property (the Kaysville Property) back to CPI when Ritchie was out of the country. Fourteen acres of the property (the 14-Acre Property) remained in Tri-J's name. All of the transfers by Mr. Clark were without Ritchie's or Quitiquit's consent.
¶ 3 Sometime thereafter, Plaintiff met with Ritchie, Quitiquit, and Mr. Clark in hopes of purchasing the Kaysville Property and the 14-Acre Property from Tri-J. Tri-J's members were undecided as to whether to sell. However, Mr. Clark later contacted Plaintiff to see if he was still interested in purchasing the property. Mr. Clark informed Plaintiff that CPI owned the Kaysville Property and, despite Tri-J owning the 14-Acre Property, Mr. Clark had the authority to sell that parcel as well because he was manager of the 14-Acre Property. Mr. Clark also indicated that because he had cancer he did not think he would be able to develop the properties by himself.
¶ 4 Plaintiff subsequently made an offer to Mr. Clark to purchase the Kaysville Property and the 14-Acre Property, including their underlying debts, for $1,000,000. Mr. Clark agreed to sell the properties and, subsequently, caused CPI to deed the Kaysville Property to Plaintiff and granted Plaintiff a quitclaim deed to CPI's interest in the 14-Acre Property. Apparently, Mr. Clark also promised Plaintiff that he could convince Tri-J to transfer the 14-Acre Property to Plaintiff. In exchange, Plaintiff gave Mr. Clark a note for $1,000,000 and began developing the properties.
¶ 5 Despite Mr. Clark's promise to Plaintiff, Mr. Clark was unable to convince Tri-J to deed the 14-Acre Property to Plaintiff. Tri-J refused to turn over its interest without proper compensation, alleging that Plaintiff had no legal right to the 14-Acre Property because Mr. Clark had no legal authority to transfer the property.
¶ 6 Plaintiff later contacted Mr. Clark about obtaining an easement across the 14-Acre Property. Mrs. Clark, at the direction of Mr. Clark, executed such an easement.
¶ 7 In December 1998, Tri-J and CPI sued Plaintiff, claiming Plaintiff had no legal rights to either of the properties because Plaintiff had obtained them by misrepresentation and without consideration. Tri-J and CPI requested that the trial court void the deed to the Kaysville Property and the subsequent easement encumbering the 14-Acre Property. Tri-J and CPI also filed a notice of lis pendens. Soon after filing the lawsuit against Plaintiff, Mr. Clark apparently made a deal with Ritchie and Quitiquit that they would receive $300,000 of the proceeds from the $1,000,000 note given to Mr. Clark by Plaintiff. Under their agreement, Mr. Clark would retain $700,000. In November 1999, without Plaintiff ever filing an answer to their complaint, Tri-J and CPI dismissed the lawsuit without prejudice.
¶ 8 On July 25, 2000, Plaintiff filed a complaint against Ritchie, Quitiquit, Tri-J, and J & J (collectively, Defendant Ritchie/Quitiquit), along with CPI and Mrs. Clark (collectively, Defendant Clark) and Mr. Clark.1 In his complaint, Plaintiff set forth thirteen allegations: (1) alter ego, (2) fraud, (3) breach of contract, (4) breach of warranty, (5) breach of implied covenant of good faith and fair dealing, (6) malicious prosecution, (7) abuse of process, (8) slander of title, (9) intentional and/or negligent interference with current and prospective business relations/contracts, (10) intentional and/or negligent infliction of emotional distress, (11) defamation, (12) civil conspiracy, and (13) declaratory and other equitable relief. On July 26, 2000, Plaintiff served Ritchie with process.
¶ 9 After filing his complaint and serving Ritchie, Plaintiff took no further action, and in May 2001, the trial court issued an order to show cause why the case should not be dismissed for Plaintiff's failure to prosecute. Four months later, Plaintiff filed for a default judgment against Ritchie after Ritchie failed to appear and answer Plaintiff's complaint. The trial court issued a default judgment against Ritchie on September 24, 2001. In May 2002, Mr. Clark died of cancer.
¶ 10 Between late October and mid-November 2002, Plaintiff served his complaint on Tri-J, J & J, Quitiquit, CPI, and Mrs. Clark. Plaintiff never served Mr. Clark. On November 18, 2002, Defendant Clark answered Plaintiff's complaint and filed a notice of suggestion of death, noting for the record that Mr. Clark had died. On November 21, 2002, Ritchie moved to set aside the 2001 default judgment against him. At this time, Defendant Ritchie/Quitiquit also moved to dismiss Plaintiff's claims. Plaintiff cross-motioned for summary judgment.
¶ 11 In March 2003, counsel for Mr. Clark moved to dismiss Plaintiff's action against Mr. Clark with prejudice for Plaintiff's failure to file a motion for substitution of parties — specifically, the substitution of Mr. Clark's estate (the Estate of Mr. Clark) — within ninety days after the notice of suggestion of death, as required under Utah Rule of Civil Procedure 25. See Utah R. Civ. P. 25(a)(1).
¶ 12 At a March 24, 2003 hearing, the trial court granted Ritchie's motion to set aside judgment and denied Plaintiff's cross-motion for summary judgment. The trial court also partially granted Defendant Ritchie/Quitiquit's motion to dismiss, dismissing without prejudice Plaintiff's second (fraud) and twelfth (civil conspiracy) claims for relief because of procedural deficiencies. The trial court, however, granted Plaintiff leave to amend these claims to cure their deficiencies.2
¶ 13 In response, on April 9, 2003, Plaintiff filed his first amended complaint (First Amended Complaint). Plaintiff's First Amended Complaint not only amended claims two and twelve, it also added five additional parties: the Estate of Mr. Clark; Clark LHS, LLC; the Clark Charitable Grantor Trust; Ritchie Enterprises, LP; and Paul Ritchie. The complaint also included two new causes of action: unfair competitive practices and fraudulent conveyances. On that same day, Plaintiff filed a motion for leave to amend (Motion to Amend) to include the additional parties and claims set forth in his First Amended Complaint.
¶ 14 In a minute entry dated May 9, 2003, the trial court denied Mr. Clark's motion to dismiss for failure to substitute parties, ruling that because Mr. Clark was named but never properly served, nor had he appropriately entered an appearance, he was not a party to Plaintiff's action. See Utah R. Civ. P. 25(a)(1) ().
¶ 15 On June 30, 2003, the trial court denied Plaintiff's Motion to Amend. In July 2003, Defendant Ritchie/Quitiquit moved to strike Plaintiff's First Amended Complaint and moved for an award of summary judgment. In a September 22, 2003 minute entry, the trial court stayed Defendant Ritchie/Quitiquit's motion for summary judgment pending further discovery and granted its motion to strike Plaintiff's First Amended Complaint, resulting in the actionable complaint precluding Plaintiff's second and twelfth claims for relief.
¶ 16 On October 16, 2003, Ritchie moved for partial summary judgment, which the trial court ultimately granted as to Plaintiff's third, fourth, fifth, sixth, ninth,3 tenth, and thirteenth claims against Ritchie. The trial court dismissed these claims with prejudice.
¶ 17 In November 2003, Defendant Clark, later joined by Defendant Ritchie/Quitiquit, moved to dismiss Plaintiff's complaint for failure to join the Estate of Mr. Clark as an indispensable party (Motion to Dismiss for Failure to Join an Indispensable Party).4
¶ 18 On December 5, 2003, Defendant Ritchie/Quitiquit renewed its motion for summary judgment after Plaintiff failed to conduct its requested discovery by the December 1 deadline. On that same day, Plaintiff also moved the trial court to reconsider his Motion to Amend and grant leave to file a second amended complaint.
¶ 19 At an April 14, 2004 hearing, the trial court: (1) denied Plaintiff's motion to reconsider his Motion to Amend; (2) denied Plaintiff's motion for summary judgment; (3) granted Defendants' Motion to Dismiss for Failure to Join an Indispensable Party; and (4) granted Defendant Ritchie/Quitiquit's renewed motion for summary judgment, dismissing all of Plaintiff's claims against Defendant Ritchie/Quitiquit.
¶ 20 On April 20, 2004, Ritchie, later joined by Quitiquit, J...
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