Von Hake v. Thomas

• Decision Date: 10 August 1993
• Docket Number: No. 920643-CA,920643-CA
• Citation: 858 P.2d 193
• Parties: Richard W. VON HAKE, Trustee of the Von Hake 1987 Trust, Plaintiff and Appellee, v. Harry Edward THOMAS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 193

858 P.2d 193

Richard W. VON HAKE, Trustee of the Von Hake 1987 Trust, Plaintiff and Appellee, v. Harry Edward THOMAS, Defendant and Appellant.

No. 920643-CA.

Court of Appeals of Utah.

Aug. 10, 1993.

Certiorari Granted Nov. 23, 1993.

Shawn D. Turner, Salt Lake City, for defendant and appellant.

H. Ralph Klemm, Salt Lake City, for plaintiff and appellee.

Before BILLINGS, GARFF and ORME, JJ.

ORME, Judge:

Defendant, Harry Edward Thomas, appeals the summary judgment entered against him in plaintiff's action to renew a judgment. Due to defendant's long-standing status as a contemnor of the trial court, we refuse to consider the merits of his appeal and instead dismiss it.

FACTS

As this case has a long and arduous history, we only discuss facts pertinent to our disposition, and not those of the underlying dispute or the myriad of arguments Thomas raises in the instant appeal.

In an earlier round of this litigation, appellee's father and predecessor in interest, Richard A. Von Hake, obtained a substantial judgment for fraud against Thomas. The Utah Supreme Court affirmed that judgment in Von Hake v. Thomas, 705 P.2d 766 (Utah 1985) (Von Hake I ). Eighteen months later, because Thomas had failed to make payments on the judgment During the course of protracted supplemental proceedings, the trial court found that Thomas had not complied with its order for production and had used improper and dilatory tactics to frustrate its orders and to avoid appearing in court. Accordingly, the court found Thomas in contempt, sentenced him to thirty days in jail, and ordered the issuance of an arrest warrant. ¹

Von Hake commenced supplemental proceedings to discover the whereabouts and extent of Thomas's assets.

The court entered a formal order of commitment stating that Thomas was guilty of contempt for failing to produce various documents and for failing to appear before the court as ordered. The Utah Supreme Court stayed execution of the sentence pending appeal.

On appeal, the Court, inter alia, affirmed Thomas's criminal contempt conviction. Von Hake v. Thomas, 759 P.2d 1162, 1173 (Utah 1988) (Von Hake II ). The Court released the stay of execution and remanded the matter to the trial court for a single purpose: "execution of the thirty-day sentence." Id.

Thomas is now appealing the summary judgment entered against him in a proceeding to renew the very judgment affirmed in Von Hake I and out of which the contempt determination arose. ² Nonetheless, to this very day, Thomas has not served the thirty-day contempt sentence upheld in Von Hake II. Upon learning of this state of affairs in the course of reviewing the briefs, we requested that both parties file supplemental memoranda addressed to the effects of Thomas's outstanding contempt on his present appeal in light of our decision in D'Aston v. D'Aston, 790 P.2d 590 (Utah App.1990). In his memorandum, Thomas disclosed he was incarcerated on April 12, 1993, in the Federal Penitentiary in Boron, California, where he is serving a five-year sentence for tax fraud.

D'ASTON

D'Aston presented this court--coincidentally, this very panel--with its first opportunity to determine whether Utah appellate courts "may dismiss a civil appeal when the appellant is in contempt of a trial court order in the same action." D'Aston v. D'Aston, 790 P.2d 590, 593 (Utah App.1990) (emphasis added). In D'Aston, the trial court held the appellant in contempt of court because she was "purposely hiding herself from the jurisdiction of the Court and from service." Id. at 592. Accordingly, the trial court entered a formal order of commitment and issued a bench warrant for appellant's arrest. Subsequently, appellant filed an appeal from the divorce decree entered by the trial court. We held that the appeal would be dismissed in thirty days if within that time appellant did not bring herself within the process of the trial court. Id. at 595. In so doing, we stressed that appellant was not being denied her right to an appeal under Article VIII, section 5 of the Utah Constitution, but instead was merely being required to submit herself to the lawful process of the trial court and to satisfy that court's concerns as a prerequisite to exercising her right to an appeal. Id. at 594.

CONTEMPT

In his memorandum, Thomas urges this court not to dismiss his appeal on two grounds, both of which focus on the alleged inapplicability of D'Aston to the instant matter. ³ First, Thomas asserts We disagree that these arguable distinctions take the instant matter out of the compass of the D'Aston rule. Thomas convinces us that conditioning dismissal on his appearance within thirty days would be fruitless; he does not convince us that he should be spared the dismissal of his appeal.

that this case is different from D'Aston because unlike D'Aston, in which the contempt occurred in the very action from which the appeal was taken, albeit for failure to comply with post-judgment directives of the court, the appeal here is arguably in an action different from the one in which the contempt occurred, namely a subsequent action to renew the judgment entered in the case out of which the contempt arose. Second, Thomas claims that his circumstances are unlike those present in D'Aston because in D'Aston there was no discernible obstacle preventing the appellant from complying with the trial court's order, whereas, in the present case, Thomas's incarceration makes it physically impossible for him to submit himself to the trial court within thirty days. Thus, Thomas concludes that because a dismissal conditioned on submitting himself to the district court would necessarily be fruitless, we cannot dismiss his appeal.

A. Action to Renew Judgment

Thomas first argues that an action to renew a judgment is an action separate from the action out of which the judgment arose.

In D'Aston, this court's decision dealt with the limited situation in which the appellant was in contempt of a trial court's order issued in the same action. 790 P.2d at 593. Indeed, some jurisdictions limit the authority of courts to dismiss a contemnor's appeal to just such circumstances. See Bonn v. Bonn, 12 Wash.App. 312, 529 P.2d 851, 854 (1974) (holding that a contemnor has access to the courts to present a new and independent matter).

However, the majority rule expands this doctrine somewhat and also allows dismissal of a contemnor's appeal if the contempt arose in a collateral proceeding. In Steed v. Woods, 475 S.W.2d 814 (Tex.Civ.App.1972), for example, the court stated that it was

convinced that the better reasoning supports the majority rule that an appellate court, in the absence of a constitutional or statutory prohibition, is vested with the implied power to deny the assistance of its processes to an appellant who persists in contumaciously defying either the order attempted to be appealed from or a collateral order emanating from the same cause of action.

Id. at 816 (emphasis added). In Woods, the court held that where the appellant stood in contempt of a prior custody order entered in a divorce action, her appeal from a subsequent community property division award, arising out of the same divorce proceeding, would be dismissed. Id. at 817.

Thomas urges this court to consider a renewal proceeding a separate action because it is commenced by the filing of a new complaint and summons. See Utah R.Civ.P. 3(a). We refuse to do so. It is clear in the instant case that the renewal judgment appealed from arises, ultimately, from the same cause of action that culminated in the original judgment. Thus, we could consider the renewal action a collateral proceeding and dismiss Thomas's appeal under the Woods rationale. However, we believe the better line of reasoning, which is followed by Utah and the majority of American jurisdictions, treats a renewal action as simply a continuation of the original proceeding.

Under Utah law, "[a] renewal is not an attempt to enforce, collect, or expand the original judgment." Barber v. Emporium Partnership, 800 P.2d 795, 797 (Utah 1990) (holding that an action to renew a judgment against a debtor does not violate the automatic stay provisions of the Bankruptcy Code). Instead, in seeking to renew a judgment, a party is "only trying to maintain the status quo by preventing the judgment's lapse under the statute of limitations." Id. Accordingly, Utah law treats a renewal action, at least in other contexts, as merely a continuation of the original proceeding and not as a new and independent action.

The adherence of American jurisdictions to this position is unmistakable in cases dealing with questions of in personam jurisdiction. See, e.g., Bank of Edwardsville v. Raffaelle, 381 Ill. 486, 45 N.E.2d 651, 653 (1942) (action to renew a money judgment is not a new suit but a continuation of the old one); Bahan v. Youngstown Sheet & Tube Co., 191 So.2d 668, 670 (La.App.1966) (proceeding to revive a money judgment entered against a nonresident judgment debtor is not a new action but is only a proceeding to continue the original action); State v. Kirkwood, 361 Mo. 1194, 239 S.W.2d 332, 334 (1951) (en banc) (action to revive a divorce is not a new action but is merely a continuation of and supplementary to the original proceeding); Kronstadt v. Kronstadt, 238 N.J.Super. 614, 570 A.2d 485, 487-88 (1990) (process to revive a judgment for support arrearages and partial property settlement is simply a continuation of the original action); Berly v. Sias, 152 Tex. 176, 255 S.W.2d 505, 508 (1953) (action to renew a money judgment is not an independent suit but merely a continuation of the original suit); Duffy v. Hartsock, 187 Va. 406, 46 S.E.2d 570, 574 (1948) (proceeding to revive a judgment lien against real estate is to be treated as a continuation of the original suit). Likewise, the connection between the original action and the renewal action in the instant case is simply too close to ignore merely because a new...