Alarm Protection v. Crandall ( 2021 )

2021 UT 26IN THE
SUPREME COURT OF THE STATE OF UTAH
ALARM PROTECTION TECHNOLOGY, LLC,
Appellee,
v.
NATHAN CRANDALL,
Appellant.
No. 20190177
Heard October 14, 2020
Filed July 1, 2021
On Direct Appeal
Third District, Salt Lake
The Honorable Su Chon
No. 170907867
Attorneys:
Erik A. Olson, Jason R. Hull, Trevor C. Lang, Salt Lake City,
for appellee
Kamron Keele, Chicago, IL, for appellant
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court
in which JUSTICE PEARCE joined. CHIEF JUSTICE DURRANT,
JUSTICE HIMONAS and JUSTICE PETERSEN concur with exception to
section III.
JUSTICE PETERSEN authored a concurring opinion
in which CHIEF JUSTICE DURRANT and JUSTICE HIMONAS joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 This is one of two pending cases in which a sales
representative of Alarm Protection Technology (APT) seeks to
challenge a set of steps taken by APT to insulate itself from claims
for unpaid compensation. The challenged steps include APT’s
payment of an advance in exchange for the execution of a
confession of judgment, the entry of a judgment by confession, the
issuance of a writ of execution against the sales representative’s
ALARM PROTECTION TECHNOLOGY v. CRANDALL
Opinion of the Court
claims for unpaid commissions, APT’s purchase of those claims at
a constable sale, and APT’s substitution as plaintiff on the claims
against APT.
¶2 In this case Nathan Crandall asserts that APT’s actions
illegally and unfairly deprived him of the right to assert his claims
for commissions owed to him by APT. Several elements of
Crandall’s sweeping challenge to APT’s “scheme” 1 are not
properly presented for our review. The sole questions presented
go to the district court’s denial of two motions filed by Crandall—
his motion to vacate the judgment by confession and quash the
writ of execution of his claims, and his motion for return of excess
proceeds and unused property from APT’s purchase of his claims.
We affirm the denial of these motions. In so doing, we reject
Crandall’s argument that APT was required to establish the value
of his claims before executing on them and purchasing them at the
constable sale, to presume (absent such proof) that the true value
of the claims was established in the allegations of Crandall’s
complaint, and to return to Crandall excess proceeds or remaining
“property” on the basis of those allegations.
I
¶3 Crandall worked as a sales representative for APT from
2012–2014. During that period, he entered into written agreements
under which APT agreed to pay him advances against future
compensation 2 and Crandall agreed to secure repayment of any
unearned advances by executing a promissory note and
confession of judgment. 3
______________________________________________________________________________
1We put “scheme” in quotes throughout this opinion to reflect
the terminology used in Crandall’s briefing. In so doing we
recognize that APT objects to the term as a loaded one. And we
take no position on the question whether the shoe fits. That
question is not presented for our review.
2 In his briefs on appeal, Crandall asserts that he never
received “advances” despite APT’s promise to provide them. APT
claims that it in fact paid advances even though not required to do
so. We do not resolve this conflict because it is not presented for
our review and not necessary to our decision.
3 See UTAH R. CIV. P. 58A(i) (providing for entry of “judgment
by confession” if “authorized by statute”); UTAH CODE § 78B-5-205
(continued . . .)
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¶4 Crandall signed one such agreement in October 2013.
Under that agreement, APT agreed to advance Crandall $15,000
and Crandall executed a promissory note and confession of
judgment in that amount. Crandall’s relationship with APT ended
a few months later—in January 2014. And a few years after that, a
dispute arose as to the parties’ financial obligations to each other.
¶5 In June 2017, Crandall filed an action in Fourth District
Court alleging that APT and related parties owed him $143,000 in
treble damages for unpaid commissions and were also liable for
his attorney fees under the Sales Representative Commission
Payment Act, Utah Code §§ 34-44-101–302. Later that year (in
December 2017), APT filed the $15,000 confession of judgment
(signed by Crandall in 2013) in Third District Court. Crandall’s
counsel entered an appearance in that court but made no objection
to the entry of the judgment by confession. Such judgment was
entered in the Third District Court action in January 2018.
¶6 APT then took steps toward collecting on the judgment
by confession. In May 2018, it filed an application for a writ of
execution, seeking to seize Crandall’s claims in the filed Fourth
District case and to have them sold at a constable sale. The
requested writ described the property as follows:
All rights, claims, interests, and choses in action
that the judgment debtor has in the action entitled
Nathan Crandall v. Alarm Protection Technology, LLC,
et al., Fourth District Court, Provo, Case No.
170400790, including any claims that could or
should have been brought in that action against the
defendants including those identified as John Does.
Value Unknown.
All rights, claims, interests, and choses in action
that the judgment debtor may have against Alarm
Protection Technology, LLC, Alder Holdings, LLC,
Alder Protection Holdings, LLC, Alarm Protection
Alabama, LLC, Alarm Protection Technology
Alabama, LLC, Alarm Protection Technology
Holdings, LLC, Rhodesian Protection, Adam
(authorizing entry of “judgment by confession . . . without action,
either for money due or to become due . . . in the manner
prescribed by law”).
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ALARM PROTECTION TECHNOLOGY v. CRANDALL
Opinion of the Court
Schanz, any other entity doing business under the
name “Alder” or “Alarm Protection,” their
subsidiaries, parent companies, members,
shareholders, affiliates, officers, principals,
employees, agents, attorneys, or staff. Value
Unknown.
¶7 Crandall raised no objection to the requested writ and the
Third District Court entered it on May 17, 2018. APT then served
Crandall with the writ of execution and a notice of constable sale
for the property described in the writ, which sale was then held
on August 15, 2018. APT appeared at the sale and purchased the
claims on a credit bid of $3,500. And it immediately filed a partial
satisfaction of judgment, providing an accounting of the sale
proceeds and indicating that the $3,500 bid was allocated to
constable fees of $327.50, accrued interest on the judgment in the
amount of $2,061.88, and $1,110.62 toward the $15,000 judgment.
¶8 APT then filed a motion to substitute itself as the plaintiff
in the pending Fourth District Court action filed by Crandall
against APT. When that motion was granted, APT extinguished
all claims against itself and the other defendants in the case. And
the Fourth District Court dismissed all of the claims pending in
that action on September 25, 2018.
¶9 Crandall made his first attempt to challenge APT’s
actions a few months later—when he filed a “motion to vacate the
judgment and quash the writ of execution” in the Third District
Court proceeding. That motion was filed on December 14, 2018—
eleven months after the entry of judgment by confession, seven
months after issuance of the writ of execution, and four months
after the constable sale. On the same day, Crandall also filed a
“motion for return of excess proceeds and unused property from
constable sale,” asserting that APT was liable to return to him the
sum of “just over” $129,000, which he calculated by assigning a
$143,000 value to the claims asserted in the Fourth District action
(the claims seized under the writ and sold at the constable sale)
and subtracting $14,000 owed on the judgment by confession.
¶10 The district court denied both the motion to vacate the
judgment and quash the writ of execution and the motion for
return of excess proceeds. In denying the first motion the court
found that it was “untimely and without justification.” First, the
court noted that the reasonable time standard for a motion under
rule 60(b)(6) of the Utah Rules of Civil Procedure is not a bright
line. It then observed that the motion had been filed “eleven
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months after the Judgment and seven months after the writ” and
noted that Crandall had “been represented by the same counsel
since this case was filed” and had “not claimed that he didn’t
receive copies of the Judgment and Writ.” Ultimately, the court
concluded that Crandall had provided “no rationale for the delay
other than not knowing what a Judgment or Writ means”—“not a
reasonable justification” for the delay.
¶11 In denying the motion for return of excess proceeds, the
district court concluded that there was no basis for a
determination of any “excess.” First, the court noted that the
certificate of sale (dated August 16) from the constable sale stated
that APT’s $3,500 credit bid “was the highest bid made and the
whole price paid for all right, title, and interest, owned” by
Crandall. It also emphasized that the partial satisfaction of
judgment (dated August 17) indicated that “the sale proceeds
were first applied to the constable fee of $327.50, the accrued
interest of $2061.88, and the principal of $1110.62,” and that
Crandall “still owed a principal amount of $13,899.38.”
¶12 Second, the court addressed Crandall’s argument that it is
somehow “implicit in the requirement to provide an accounting”
under rule 69B(e) of the Utah Rules of Civil Procedure that the
judgment creditor present “a determination of the exact value” of
the property in question “through some proper, informed method
of calculation,” and Crandall’s assertion that “because his lawsuit
prayed for $143,000 in damages, $143,000 is the ‘value’ of the
chose in action sold to APT.” The court found these positions
“untenable” and belied by the text and structure of rule 69B(e),
which provides for proceeds to be distributed based on an
accounting of the sale of seized property first to pay costs of the
sale (under subsection (1)), next to the plaintiff to satisfy the
judgment (under subsection (2)), and last to yield any “remaining
property and proceeds of the sale” to the defendant (under
subsection (3)). Under this structure, the district court held that
“[i]f the sales proceeds dry up at any point in the chain, the
distribution naturally stops there.”
¶13 Finally, the district court also rejected Crandall’s
“argument that the value of seized property is something other
than the sales price at auction.” It noted that Crandall had made
“much” of that argument but provided “no authority for this
position.” “While Mr. Crandall believes his lawsuit was worth
$143,000,” the court noted that “the value (if it went to trial) could
be anywhere from $0 to $143,000.” “Further,” Crandall “could
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ALARM PROTECTION TECHNOLOGY v. CRANDALL
Opinion of the Court
have protected his rights by bidding above the creditor to protect
his lawsuit.” But he “did nothing.”
¶14 On this record, the court noted that the only evidence of
value in the record was APT’s credit bid for $3,500. It also
emphasized that Crandall “could have responded to the Writ of
Execution within 14 days, which he never did.”
¶15 Crandall then filed this appeal, asserting a series of
objections to APT’s “scheme” to “avoid having to defend itself
against any claims by its workers” and even “to avoid any way
[for workers] to challenge the scheme in court.” Crandall asserts
that there are substantial “public policy concerns” that foreclose
APT’s use of a confession of judgment as an instrument for
extinguishing claims against it—particularly where the amount
paid at the constable sale allegedly was far less than the real value
of the claims. And he further contends that his due process rights
are infringed by a system that allows APT “to extinguish any
action brought against it by its workers by simply jumping
through” a series of “procedural hoops”—by obtaining a
judgment by confession, securing a writ of execution, acquiring its
worker’s claims against APT at the constable sale, and then
substituting itself as plaintiff in a pending proceeding and
extinguishing the worker’s claims. Lastly, Crandall insists that
APT was “required under Utah law to estimate the value” of the
property that was the subject of the writ of execution, and asserts
that he is entitled to a payment of “excess proceeds” based on the
alleged value of the claims set forth on the face of the complaint in
the Fourth District Court ($143,000).
¶16 Some of the sweeping challenges raised in Crandall’s
brief are not properly presented for our decision. Crandall
preserved only two narrow objections in the district court
proceedings before us on this appeal—in his motion to vacate the
judgment and quash the writ of execution and his motion for
return of excess proceeds. And we see no reason to disagree with
the district court’s decision denying those motions—much less to
reverse under the governing standard of review. See Fisher v.
Bybee, 2004 UT 92, ¶ 7, 104 P.3d 1198 (noting the “broad
discretion” afforded to the district court on rule 60(b) decisions
because they are typically “equitable in nature”); Utah Dep't of
Transp. v. G. Kay, Inc., 2003 UT 40, ¶ 5, 78 P.3d 612 (we review
findings of fact for clear error and conclusions of law for
correctness).
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II
¶17 Crandall preserved only two narrow objections to the
APT “scheme” he challenges in his briefing on this appeal—in (a)
his motion to vacate the judgment and quash the writ of
execution; and (b) his motion for return of excess proceeds. But
these motions were untimely and groundless. And our decision to
affirm the denial of these motions forecloses some other claims
raised in Crandall’s briefing.
A
¶18 Crandall styled his first motion as a motion to “vacate the
judgment and to quash the writ of execution.” And he sought to
connect the motion to rule 60(b) of the Utah Rules of Civil
Procedure—as a motion for relief from a judgment, order, or
proceeding. Crandall cited rule 60(b)(6), a catchall provision for
relief for “any other reason that justifies relief.” He asserted that
the judgment and writ were “against public policy and in
violation of [his] constitutional rights of due process.” As in his
briefs on this appeal, Crandall sought to challenge the general
“scheme” by which APT foreclosed his claims in the Fourth
District Court case—by inducing him to sign agreements that in
his view were void as against public policy, by executing on and
purchasing his claims for much less than their true value, and by
extinguishing the claims through substitution.
¶19 The district court denied this motion as untimely and
unsupported. We affirm that decision. In this motion, Crandall
sought to wrap together in a single bundle a wide range of his
objections to various steps of APT’s process for extinguishing his
claims. But many of those objections were effectively aimed at
earlier steps in the process, and were forfeited when Crandall
failed to raise them at those stages.
¶20 To the extent Crandall was complaining about the
judgment by confession, or the enforceability of the agreements
that led to such judgment, his motion was an untimely motion for
relief from that judgment. As the district court noted, his motion
was filed eleven months after the entry of the judgment by
confession, and Crandall offered no justification for his failure to
challenge the judgment sooner. The motion was thus properly
denied as untimely under rule 60(c). See UTAH R. CIV. P. 60(c) (“A
motion under paragraph (b) must be filed within a reasonable
time and for reasons in paragraph (b)(1), (2), or (3), not more than
90 days after entry of the judgment . . . .”).
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ALARM PROTECTION TECHNOLOGY v. CRANDALL
Opinion of the Court
¶21 Crandall’s motion was also untimely to the extent it was
challenging the propriety of the writ of execution. The motion was
filed seven months after the writ of execution was issued. And the
district court was accordingly right to conclude that his motion
under rule 60(b) was thus not filed within a “reasonable time.” 4
¶22 In resisting this determination on appeal, Crandall asserts
that he was not just challenging the “first few steps” in APT’s
process, but its overarching “scheme.” Because that “scheme was
only completed upon extinguishment” of Crandall’s claims in the
Fourth District action, Crandall insists that the date for judging
the timeliness of his motion is the date when APT was substituted
as plaintiff in the Fourth District Court—on September 25, 2018.
And Crandall asserts that he “challenged APT’s entire scheme in
his Motion to Vacate within a few weeks of extinguishment,” and
contends that “he could not have done so any earlier”—“the basis
for relief (pursuant to rule 60(b) of the Utah Rules of Civil
Procedure) only became available . . . after extinguishment in
September 2018.”
¶23 This is a key premise of Crandall’s sweeping challenge to
the APT “scheme.” But it is both factually mistaken and rooted in
a misconception of the nature of our civil process. Our civil rules
prescribe specific timelines for objections to orders and
proceedings in our courts. As a general rule, objections must be
raised if and when a party’s interests are adversely affected by such
orders or proceedings. There is generally no luxury of sitting idly
by until the full impact of the order or proceeding comes into full
view. That’s not how our procedural system is designed.
¶24 Crandall thus forfeited several of the objections he
presents on appeal by failing to raise them at earlier stages.
Several of his objections were available earlier. He could have
challenged the judgment by confession as void as a matter of
______________________________________________________________________________
4 The parties have treated the timeliness question as a matter
governed by the flexible “reasonable time” standard set forth in
civil rule 60(b)(6), not the strict 14-day limit for a reply to a writ of
execution under civil rule 64E(d). The district court proceeded on
the same premise. We accept the premise for the sake of resolving
the appeal, but note that the 14-day limit may well control for
some 60(b) motions that are rooted in an underlying challenge to a
writ of execution.
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“public policy” at the time of its entry. And he could have
challenged APT’s authority to acquire and extinguish his claims
when the claims were acquired and extinguished. These
objections are procedurally foreclosed because they were not
properly preserved.
¶25 In so stating, we are not suggesting that Crandall had a
silver bullet available but failed to fire it. In related APT cases we
have upheld the above steps against properly preserved
challenges raised by other APT sales representatives. 5 With that in
mind, Crandall’s forfeiture of his objections may ultimately have
been harmless. But procedure matters. And we decline to reach
the merits of unpreserved issues in our disposition of this case.
B
¶26 Crandall’s second motion was a “motion for return of
excess proceeds or unused property from constable sale.” In
advancing this motion Crandall cited rule 64(f)(3) of the Utah
Rules of Civil Procedure, which directs the court to “order any
remaining property and proceeds of sales delivered to the
defendant” upon discharge of a writ, and rule 69B(e), which
provides for the “order” in which the property is to be applied
under an “accounting” of a constable sale, “up to the amount due
or the value of the property, whichever is less.” Crandall views
the referenced “value” of the property as its “true value.” And he
deems the judgment creditor’s burden of advancing proof of such
value to be implicit in the duty to provide an “accounting” of a
constable sale. Because APT failed to present such evidence,
Crandall asked the district court to presume that the “value” of
his claims must have been the amount he placed on them in the
complaint filed in the Fourth District ($143,000). And with that in
mind, Crandall claimed that there were “excess proceeds” or
“remaining property” that he was entitled to receive under civil
rule 69B(e).
______________________________________________________________________________
5 See Bradburn v. Alarm Prot. Tech., LLC, 2019 UT 33, ¶¶ 12–14,
449 P.3d 20 (affirming a decision allowing APT to substitute itself
for a former sales representative after having purchased the
representative’s claims against APT while declining to decide
whether APT should have been foreclosed from purchasing the
claims because that issue was not preserved or presented on
appeal).
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ALARM PROTECTION TECHNOLOGY v. CRANDALL
Opinion of the Court
¶27 The district court denied this motion as both meritless
and procedurally barred. We affirm.
1
¶28 Our rules require an applicant for a writ of execution to
state “the nature, location and estimated value of the property”
that is the subject of a writ of execution. UTAH R. CIV. P. 64E(b)(2).
But there is no basis in our rules for a court to assume that the
self-serving value placed on the property by its owner is its “true
value,” and no ground for concluding that the district court was
required to determine the availability of “excess proceeds” or
“remaining property” on that basis.
¶29 Our rules implicitly—but quite clearly—establish a
different mechanism for calculating the value of the property and
the availability of “remaining proceeds.” Value and proceeds are
established under our rules by the amount paid “at auction to the
highest bidder.” Id. 69B(d). This is clear from the requirement that
the constable “sell only so much property as is necessary to satisfy
the amount due.” Id. A constable will know the amount due on
the judgment and the amount paid by the highest bidder but will
have no basis for calculating the “true value” of the sold property.
And the requirement to sell only the property “necessary to
satisfy the amount due” is thus incompatible with Crandall’s
position.
¶30 As Crandall has noted, a plaintiff may be required to
“deliver an accounting of the sale.” Id. 69B(e). And rule 69B(e)
prescribes the “order” in which the proceeds of the property are
to be distributed, “up to the amount due or the value of the
property, whichever is less”: first to pay the “costs” of the sale,
then to pay the plaintiff on the judgment, and last to “deliver to
the defendant the remaining property and proceeds of the sale.”
Id. Yet rule 69B(e) yields no basis for treating the referenced
“value” as a value established by the plaintiff—much less for
assuming that the defendant’s own view of its value should
control. In context, our rules’ reference to “value” is to the market-
based indication of value established by our rules—in the amount
paid by the “highest bidder” at the constable sale.
¶31 Nowhere do our rules require a judgment creditor to
carry a burden of proving the “true” value of property that is
subject to a constable sale. And they don’t provide for property to
be valued based on the self-serving valuation of a judgment
debtor. Our rules protect a judgment debtor’s interests in other
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ways. They allow the judgment debtor to challenge a writ of
execution on a “reply” and request for an evidentiary hearing, id.
64E(d), to participate in the constable sale, id. 69B(d), and to
request an accounting and seek “remaining proceeds” or
“remaining property,” id. 69B(e). Our rules are detailed and
comprehensive. Because they say nothing about any requirement
that the judgment creditor put on evidence of the value of the
property, the clear implication is that the judgment debtor is
protected in other ways—and that the property is valued (for
purposes of the 69B(e) right to “remaining proceeds”) not by any
kind of evidence that is to be presented prior to the sale but by the
purchase price at the constable sale.
¶32 This is confirmed by a body of case law establishing a
remedy for setting aside a constable sale. Our cases have long
held that a judgment debtor has a right to file a motion to set aside
a constable sale under a “sliding scale” showing of “gross
inadequacy” of the purchase price and “irregularities during the
sale that contributed to the inadequacy of price.” Pyper v. Bond,
2011 UT 45, ¶¶ 2, 15, 258 P.3d 575; see also Pender v. Dowse, 265
P.2d 644, 648 (Utah 1954). The burden of proof falls to the moving
party on such motion—the judgment debtor. See Pyper, 2011 UT
45, ¶ 2, 19. And that burden is quite incompatible with the burden
that Crandall would have us impose on the judgment creditor.
¶33 For these reasons we conclude that there was no
substantive basis for Crandall’s motion for return of excess
proceeds or unused property. The property in question was
valued in the manner set forth in our rules—by the amount paid
by the “highest bidder” at the constable sale. And based on that
value, there were no excess proceeds or unused property to be
returned to Crandall.
2
¶34 Crandall failed to avail himself of any of the procedural
protections highlighted above. He filed no motion seeking to
make a “sliding scale” showing of gross inadequacy and
procedural inequity. And he pursued none of the other means of
protecting his interests set forth in our rules. Despite receiving
notice of a writ of execution describing the subject property and
indicating that its value was “unknown” to APT, Crandall filed no
reply opposing the writ and made no request for an evidentiary
hearing. And despite receiving notice of the constable sale, he did
not appear at the sale, or at least did not outbid APT’s $3,500 bid
for property he says he values at $143,000.
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ALARM PROTECTION TECHNOLOGY v. CRANDALL
Opinion of the Court
¶35 Crandall did file a motion for return of excess proceeds.
But that motion was procedurally misdirected. The motion was
rooted in the notion that APT bore a burden of producing
evidence of value in support of its writ of execution. Yet Crandall
failed to advance that argument at the procedural point at which
it was in play—in a reply to the writ of execution.
¶36 For this reason the district court was right to deny
Crandall’s motion as procedurally barred. There is a fundamental
mismatch between the substance of Crandall’s argument and the
procedural basis for his challenge (and appeal). And that is also
fatal to his position.
III
¶37 Justice Petersen has authored a thoughtful opinion
concurring in the above analysis while also identifying grounds
for possible amendments to our rules of civil procedure going
forward. I commend the concurrence for its careful consideration
and analysis of an important set of issues. I decline to concur in
the opinion, however, because I prefer to let the rule amendment
process play out in the normal course instead of announcing my
views in advance in a published opinion.
IV
¶38 The district court did not err in denying Crandall’s
motion to vacate the judgment and quash the writ of execution or
his motion for return of excess proceeds. We accordingly affirm.
¶39 In so doing, we note that the briefing on this and the
other related case has highlighted some points in our rules of
procedure that could be framed more clearly, and that might
merit further revision to avoid potential pitfalls going forward.
With this in mind, we anticipate the need to invite our advisory
committee on the civil rules to examine some of the rules at issue
in these cases.
¶40 We also deny APT’s request for an award of its attorney
fees under rule 33(a) of the Utah Rules of Appellate Procedure.
Crandall’s position fails on its merits. But we see no basis for
concluding that it is either “frivolous” or “for delay.” And we
deny the request for fees on that basis.
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JUSTICE PETERSEN, concurring:
¶41 This is one of two companion cases that raise similar legal
issues. See Alarm Prot. Tech. v. Bradburn, 2021 UT 25. In both cases,
I concur in the majority opinion. I agree that there was no error in
the district court’s denial of the specific motions at issue here. And
more generally, it seems that our rules of civil procedure do not
prohibit Alarm Protection Technology (APT) from doing what it
did in these cases—executing upon its former sales
representatives’ claims against APT and extinguishing those
claims before they could be adjudicated. See Bradburn v. Alarm
Prot. Tech., LLC, 2019 UT 33, ¶¶ 13–17, 449 P.3d 20; supra ¶ 25
(“[W]e are not suggesting that Crandall had a silver bullet
available but failed to fire it.”). But I write separately because
Appellants’ arguments, while not successful in this litigation,
have persuaded me that we should consider whether our rules
should permit such a practice.
¶42 In the two related cases involving Appellee APT,
Appellants Ryan Bradburn and Nathan Crandall have a number
of things in common. Both worked as sales representatives for
APT. After leaving their positions, both alleged that APT had
failed to pay them commissions they had earned. They both sued
APT in the district court under Utah’s Sales Representative
Commission Payment Act (Commission Act), UTAH CODE §§ 34-
44-101–302. But neither of them has had their claims adjudicated
on the merits because APT purchased their civil cases and
extinguished them.
¶43 APT’s ability to effectively immunize itself from these
sales representatives’ Commission Act claims was the culmination
of a series of steps taken by APT, beginning with how APT paid
advances to the sales representatives. When APT paid the sales
representatives advances against future compensation, it required
the sales representatives to sign both a promissory note and a
confession of judgment. 6 A confession of judgment is a potent tool
for a creditor. It is a written statement, signed and verified by the
debtor, that authorizes the creditor to enter judgment against the
debtor for a specified sum of money. Id. § 78B-5-205; UTAH R. CIV.
______________________________________________________________________________
6 The Appellants both assert that they did not receive the
advances that APT claims it paid them. We have not resolved this
dispute because it is not before us.
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ALARM PROTECTION TECHNOLOGY v. CRANDALL
PETERSEN, J., concurring
P. 58A(i). Under Utah law, a creditor can enter a confession of
judgment in court “without action.” 7 UTAH CODE § 78B-5-205.
Once it is signed by the court, the creditor has a judgment against
the debtor for the amount due and can then use certain Utah
Rules of Civil Procedure to collect on the judgment.
¶44 Here, after Bradburn and Crandall sued APT for unpaid
commissions, APT filed in the district court a confession of
judgment against each man, signed by them years earlier when
they were sales representatives. Specifically, Bradburn filed his
suit against APT two years after he stopped selling for them, in
March 2017. The same day, APT filed the instant confession of
judgment against Bradburn, specifying that he owed the company
$24,000 for advances it had paid him in 2013. Crandall also filed
suit against APT in 2017, over three years after he stopped selling
for them. Within months, APT filed the instant confession of
judgment specifying that Crandall owed APT $15,000 for
advances it paid him around four years earlier.
¶45 Once APT obtained these judgments against the
Appellants, APT quickly turned to the civil rules to begin
collection efforts. On the day the court signed the judgment
against Bradburn, APT moved for a writ of execution. See UTAH
R. CIV. P. 64E(a). APT’s writ identified Bradburn’s Commission
Act claim against APT as the property it wished to seize. Under
rule 64E, the court granted the writ. Likewise, APT moved for a
writ of execution on Crandall’s Commission Act claim against
APT. That writ was also granted.
¶46 Once a creditor obtains a writ under rule 64E, the civil
rules provide for an officer to seize the property on behalf of the
creditor. Id. 69A. The rules then explain how the property is to be
sold at auction. Id. 69B. Here, APT attended the auction and
purchased Crandall’s civil case, in which he alleged $47,876 in
unpaid commissions and damages, for a $3,500 credit bid.
Through the same process, it purchased Bradburn’s civil case, in
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7 The statute provides that a “judgment by confession may be
entered without action, either for money due or to become due or
to secure any person against contingent liability on behalf of the
defendant, or both, in the manner prescribed by law. The
judgment may be entered in any court having jurisdiction for like
amounts.” UTAH CODE § 78B-5-205.
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which he alleged $348,434 in unpaid commissions, for a $2,500
credit bid.
¶47 Now the owner of the cases against it, APT substituted
itself as the plaintiff in both actions. See id. 25(c). It then moved to
dismiss both cases, which the respective district courts granted,
thereby terminating the Commission Act claims against itself.
¶48 In doing so, APT has not violated any civil rule. In fact,
we have expressly held that our rules of civil procedure permit
judgment creditors to execute upon and extinguish claims against
the creditor. We have held in general that a cause of action
constitutes “property” upon which a judgment creditor may
execute. See Cougar Canyon Loan, LLC v. Cypress Fund, LLC, 2020
UT 28, ¶ 12, 466 P.3d 171; Applied Med. Techs., Inc. v. Eames, 2002
UT 18, ¶ 13, 44 P.3d 699; Snow, Nuffer, Engstrom & Drake v. Tanasse,
1999 UT 49, ¶ 9, 980 P.2d 208. Our reasoning was initially based
upon the language of civil rule 69(f), which stated that a sheriff
shall “execute the writ [of execution] against the non-exempt
property of the judgment debtor by levying on a sufficient
amount of property . . . collecting or selling the choses in action and
selling the other property in the manner set forth herein.” Tanasse,
1999 UT 49, ¶ 9 (first alteration in original) (emphasis added)
(citation omitted); see also Eames, 2002 UT 18, ¶¶ 11–13. We
defined a “chose in action” as “a claim or debt upon which a
recovery may be made in a lawsuit. It is not a present possession,
but merely a right to sue; it becomes a ‘possessory thing’ only
upon successful completion of a lawsuit.” Tanasse, 1999 UT 49, ¶ 9
(quoting Chose in Action, BARRON’S LAW DICTIONARY 71 (3d ed.
1991)). We noted that the term “chose in action” in rule 69 was
used “without restriction of any sort.” Id. ¶ 10 (citation omitted).
And we therefore viewed “rule 69 to encompass all choses in
action.” Id.
¶49 Rule 69(f), as relied upon in Tanasse and Eames, no longer
exists. 8 However, we have concluded that “choses in action
remain amenable to execution” under our current rules. Cougar
Canyon, 2020 UT 28, ¶ 11 n.7 (citation omitted) (internal quotation
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8 Notably, the current language of the corresponding rule of
civil procedure no longer references “choses in action.” See UTAH
R. CIV. P. 69A.
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PETERSEN, J., concurring
marks omitted) (concluding that rules 64 and 64E include choses
of action within the “property” subject to a writ of execution).9
¶50 We have recognized one exception to this general rule.
We have prohibited attorneys and law firms from executing upon
former clients’ malpractice actions against them. Tanasse, 1999 UT
49, ¶ 12 (“[W]e reverse the court of appeals’ determination that
the very law firm against which a malpractice claim is brought
may purchase the cause of action.”). We so held for policy
reasons, noting that “[t]his question is one that this court is
particularly suited to decide, because the public policy concerns at
issue closely touch on our regulatory and supervisory
responsibilities over the practice of law.” Id. We observed that
allowing a law firm to execute upon a malpractice claim against it
had two problems: it effectively denied the plaintiff the right to a
trial on his claims, and the appropriate value of the legal
malpractice claim would never be fairly determined. Id. ¶¶ 13–14.
We acknowledged that both problems “are present in every
situation in which a judgment creditor seeks to execute on an
action pending against it.” Id. ¶ 15. But we expressly did not
address this more general question. Id. ¶ 16 n.3.
¶51 We have since declined requests to extend this exception
to other circumstances. See, e.g., Cougar Canyon, 2020 UT 28,
¶¶ 10–21; Eames, 2002 UT 18, ¶¶ 14, 21. Most relevant here, we
have held that a judgment creditor may execute upon legal claims
pending against the creditor. Eames, 2002 UT 18, ¶ 13. 10 We held
that such a practice did not violate the open courts clause of the
Utah Constitution. Id. ¶¶ 15–18. And we concluded that the
specific facts of that case did not present a sufficient public policy
basis to justify departing from our civil rules. Id. ¶ 21.
¶52 Even so, the facts here and in other cases make it difficult
to deny the collateral damage done to justice. Here, the very entity
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9“Choses in action” also are not identified as exempt property
under Utah statutory law. UTAH CODE § 78B-5-505.
10Eames also relied upon former rule 69(f). In that case, we
reasoned that “[g]iven that choses in action are amenable to
execution under rule 69(f), it follows that a defendant can
purchase claims, i.e., choses in action, pending against itself and
then move to dismiss those claims.” Applied Med. Techs., Inc. v.
Eames, 2002 UT 18, ¶ 13, 44 P.3d 699.
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that Appellants accuse of injuring them is able to take over their
civil cases and terminate them. It is true that APT has a valid
money judgment against both Appellants. But Appellants allege
that APT owes them money as well, and they will never receive a
fair accounting on the merits.
¶53 Moreover, the statutory scheme enacted by the legislature
in the Sales Representative Commission Payment Act is
completely thwarted. The Commission Act has specific provisions
to ensure that companies (referred to as “principals” in the
statute) abide by its terms: It voids any attempt of a principal to
require sales representatives to waive their rights under the Act or
agree to be bound by the laws of another state, and it provides for
triple damages if the principal fails to pay the sales representative
earned commissions. UTAH CODE §§ 34-44-104, -301(2). Most
importantly, it expressly contemplates situations like the one here,
where a sales representative alleges that the principal failed to pay
earned commissions, and the principal alleges that the sales
representative owes the principal money. Id. § 34-44-301(1). In
calculating damages under the Commission Act, the sum of
unpaid commissions owed to the sales representative is offset by
any money the sales representative owes the principal. Id. § 34-44-
301(2)(a)(ii). The remaining amount, plus attorney fees and court
costs, is then tripled and due to the sales representative. Id. § 34-
44-301(2). Yet rule 64E of the Utah Rules of Civil Procedure, along
with APT’s use of judgments of confession to pay its sales
representatives, has allowed APT to avoid these clear provisions
of the Commission Act.
¶54 A federal appellate case provides another example of the
damage that can be done to the legal process when judgment
creditors execute upon and terminate claims in which they are
defendants. In RMA Ventures California v. SunAmerica Life
Insurance Co., 576 F.3d 1070 (10th Cir. 2009), the defendants
prevailed on summary judgment in the district court. Id. at 1071.
The plaintiff appealed. Id. at 1072. Meanwhile, the district court
granted the defendants’ motion for attorney fees and entered a
corresponding judgment for the defendants of over $87,000. Id.The defendants obtained a writ of execution to enforce the
judgment. Id. Following Utah state procedure, the defendants
(through the Salt Lake City Deputy Constable) noticed for sale the
plaintiff’s right to its pending claims against the defendants,
including the plaintiff’s right to appeal. Id. The defendants
purchased the cause of action, and then argued in the Tenth
Circuit that the plaintiff no longer had standing because they now
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PETERSEN, J., concurring
owned the plaintiff’s claims. Id. at 1072–73. The Tenth Circuit
acceded to this argument, but not without remarking that “the
circumstances of this case present a degree of discomfort.” Id. at
1075. Judge Lucero described the problem a bit more forcefully in
a separate concurring opinion:
It is with considerable understatement that the
majority acknowledges the “degree of discomfort”
presented by this case. . . . By executing on a
subsidiary judgment, SunAmerica has extinguished
RMA’s right to appeal the very merits determination
that served as the predicate for the subsidiary
judgment in the first place. If we were to reach the
merits and reverse the district court’s decision,
however, there is little doubt that RMA would be
entitled to relief from the subsidiary attorneys’ fee
judgment. . . . RMA will not have the opportunity to
pursue its merits appeal . . . . As a matter of public
policy, I doubt the wisdom of a rule that readily
places the right to appeal on an auction block. More
troublesome still is a rule permitting a defendant to
purchase its opponent’s appellate rights, thereby
extinguishing a plaintiff’s claim. “[A defendant]
obviously has no intention to litigate a claim against
itself.” Today’s decision thus incentivizes Utah
defendants to attempt an end run around merits
determinations by purchasing a plaintiff’s right to
appeal. This incentive is at its zenith when it is most
offensive—in those cases in which a defendant
believes it would likely lose the merits appeal.
Id. at 1076–77 (Lucero, J., concurring) (fourth alteration in original)
(quoting Tanasse, 1999 UT 49, ¶ 13).
¶55 Clearly, permitting judgment creditors to execute upon
claims in which they are defendants can result in severe collateral
damage to the legal process and the presumption that claims
should be fairly adjudicated on the merits. Our rules currently
permit this. But we should consider whether our rules should
permit such a practice. Judgment creditors like APT have the legal
right to a sum of money. We have civil rules to assist them in
collecting that money. But the right to collect a sum certain does
not include the right to immunity from suit or dismissal of an
otherwise valid legal claim against the creditor. We should
consider whether our civil rules could be modified to address this
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situation in a way that still assists creditors in collecting on
judgments, but better protects the legal process from unnecessary
harm. I am not pre-judging what the solution might be. I propose
only that we refer this issue to our civil rules committee for study
and consideration.
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