Winters v. Schulman
| Decision Date | 15 April 1999 |
| Docket Number | No. 980242-CA,980242-CA |
| Parties | 367 Utah Adv. Rep. 19, 1999 UT App 119 David WINTERS, Plaintiff and Appellant, v. Joanne SCHULMAN and Allison Abizaid, Defendants and Appellee. |
| Court | Utah Court of Appeals |
W. Kevin Jackson, Salt Lake City, for Appellant.
David C. Wright and Ellen Maycock, Salt Lake City, for Appellee.
Before WILKINS, P.J., GREENWOOD, Associate P.J., and ORME, J.
¶1 Appellant, David Winters (Winters) appeals the trial court's grant of summary judgment in favor of Joanne Schulman (Schulman). The trial court ruled that Winters's wrongful lien claim was moot and that his abuse of process and negligence claims against Schulman failed as a matter of law. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
¶2 The following facts are undisputed. Winters and his wife Allison Abizaid (Abizaid) divorced in California in 1989. In 1990, Winters purchased a piece of property located in Sandy, Utah. Originally, the names of both Winters and Abizaid appeared on the title to the Utah property; however, in 1992, Abizaid quit-claimed her interest in the Utah property to Winters pursuant to an agreement in which he agreed to refinance the Utah property and pay Abizaid amounts owing under the California divorce decree.
¶3 In May 1995, Abizaid retained the services of Schulman, a licensed California attorney, to enforce the terms of the California decree of divorce. After consultation with Abizaid, Schulman filed a lis pendens on Winters's Utah property. The lis pendens was signed by Abizaid and recorded in the Salt Lake County Recorder's office on May 30, 1995. The lis pendens stated that a divorce action was pending between Abizaid and Winters in California and that the action might affect title to or possession of the Utah property. Nothing in fact, was pending in the California divorce action at the time the lis pendens was recorded.
¶4 Some five months later, in October 1995, Schulman filed a post-divorce enforcement action with the California court requesting attorney fees, sanctions, determination of amounts still due Abizaid under the 1989 divorce decree, and enforcement of its terms. Winters sent two letters to Schulman in October 1995, claiming the lis pendens was illegal under Utah law and demanding that it be released immediately. However, the lis pendens remained on the Utah property and in December 1995, Winters filed a complaint in Utah naming Schulman and Abizaid as co-defendants. The complaint sought the immediate removal of the lis pendens from the Utah property and requested damages for filing a wrongful lien. The complaint also alleged that Schulman's act of filing what Winters considered to be a baseless lien constituted an abuse of process and gross negligence. Because of the potential conflict of interest created by the Utah suit, Schulman withdrew as counsel for Abizaid in the California proceedings on January 10, 1996.
¶5 On April 19, 1996, the California court, after hearing Winters's and Abizaid's arguments, ordered an immediate release of the lis pendens, but placed a restraining order on Winters regarding the Utah property and continued the hearing until May 1996. Four days later, Winters filed a motion with the Utah trial court requesting an order releasing the lis pendens on the Utah property. On May 6, 1996, Abizaid instructed her attorney to release the lis pendens.
¶6 At the California hearing which resumed on May 31, 1996, an agreement was reached between Winters and Abizaid concerning Abizaid's October 1995 post-divorce enforcement action. As part of the settlement, the California court vacated the restraining order on Winters regarding the Utah property and ordered that a $10,000 payment Winters owed to Abizaid under the California divorce decree be secured by a deed of trust on the Utah property. The settlement also released Abizaid from any further liability in this case.
¶7 Winters filed a motion for partial summary judgment with the Utah trial court alleging that the lis pendens filed by Schulman was a wrongful lien and that Schulman's actions constituted an abuse of process as well as gross negligence. Schulman filed a cross-motion for summary judgment refuting Winters's claims. The trial court entered an order denying Winters's motion for summary judgment and granting Schulman's cross-motion for summary judgment. The trial court ruled that Winters's wrongful lien claim became moot after the California court ordered the release of the lis pendens and issued a restraining order on Winters regarding the Utah property. The trial court also determined that Winters's negligence claim failed as a matter of law because Schulman owed no duty to Winters. Finally, the trial court concluded that Winters failed to establish the necessary elements to support an abuse of process claim. Winters appeals.
¶8 On appeal, Winters challenges three legal conclusions of the trial court: (1) that Winters's claim for a wrongful lien was moot; (2) that Schulman owed no duty of care to Winters capable of supporting a negligence claim; and (3) that Winters failed to establish the requisite elements to support an abuse of process claim.
¶9 Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c); Drysdale v. Ford Motor Co., 947 P.2d 678, 680 (Utah 1997). In addition, "we view the facts and inferences in the light most favorable to the non-moving party." Krantz v. Holt, 819 P.2d 352, 353 (Utah 1991). "Because a challenge to summary judgment presents for review only questions of law, we accord no deference to the trial court's conclusions but review them for correctness." World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 256 (Utah 1994).
¶10 We begin by addressing the threshold issue of whether Winters's wrongful lien claim is moot or barred by principles of collateral estoppel.
¶11 This court has stated that an issue only becomes "moot when 'the requested judicial relief cannot affect the rights of the litigants.' " Bennion v. Sundance Dev. Corp., 897 P.2d 1232, 1234 (Utah Ct.App.1995) (). In this case, Schulman argued below, and the trial court agreed, that because the California court had released the lis pendens and entered a restraining order, this claim was moot. We disagree. The release of the lis pendens and issuance of a restraining order in no way affected Winters's ability to file a wrongful lien claim under Utah law. See Utah Code Ann. §§ 38-9-1 to -4 (1995) (repealed 1997). 1 At the time Winters filed his initial complaint section 38-9-1 provided that
[a] person who claims an ... encumbrance against, real property, ... who knows or has reason to know that the document is ... groundless, ... is liable to the owner ... for $1,000 or for treble actual damages, whichever is greater, and for reasonable attorney fees, and costs ... if he willfully refuses to release or correct such document of record within 20 days from the date of written request from the owner....
Utah Code Ann. § 38-9-1 (1995) (repealed 1997). The statute's plain language clearly allows one whose property has been wrongfully encumbered to recover if such encumbrance is not removed within twenty days from the day the owner requests its removal. See Brendle v. City of Draper, 937 P.2d 1044, 1047 (Utah Ct.App.1997) (). The statute makes no mention whatsoever that recovery is barred if the encumbrance has been removed, even if "replaced" by a non-wrongful encumbrance or, in this case, a restraining order. Because Winters may request relief under section 38-9-1 for the alleged wrongful lien on his property, a request that, if granted, will affect both his and Schulman's legal rights, this claim is not moot.
¶12 We next address Schulman's contention that because the California court ordered the release of the lis pendens and denied Winters's request for attorney fees incurred in pursuing that claim, any wrongful lien claim has already been litigated and is barred by collateral estoppel. We disagree.
¶13 Collateral estoppel "does not apply to issues that merely 'could have been tried' in the prior case, but operates only to [bar] issues which were actually asserted and tried in that case." International Resources v. Dunfield, 599 P.2d 515, 517 (Utah 1979); accord Aragon v. Clover Club Foods Co., 857 P.2d 250, 254 n. 6 (Utah Ct.App.1993) (same). Although the California court ordered the lis pendens released, it did not specifically address Winters's contention that the lis pendens filed by Schulman was wrongful in that it did not comply with section 78-40-2. See Utah Code Ann. § 78-40-2 (1996). Also, the California court did not consider Winters's claim for damages under sections 38-9-1 to -4 for Schulman filing an allegedly wrongful lien in Utah. Thus, we conclude that Winters's wrongful lien claim was not precluded by principles of collateral estoppel. Additionally, because the issue of attorney fees, as it relates to the wrongful lien claim under sections 38-9-1 to--4, was not litigated in the California proceeding, collateral estoppel does not preclude consideration of this issue either.
¶14 Because we have determined that Winters's wrongful lien claim is neither moot nor barred by principles of collateral estoppel, we next address the merits of Winters's wrongful lien claim. Winters asserts the lis pendens filed by Schulman is invalid under Utah law because it relates to a California divorce action. More specifically, Winters argues that in Utah, a lis...
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