Mulligan v. Alum Rock Riverside ( 2024 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 22IN THE
SUPREME COURT OF THE STATE OF UTAH
MOLLY J. MULLIGAN and JOHN P. MULLIGAN,
Appellants,
v.
ALUM ROCK RIVERSIDE, LLC,
Appellee.
No. 20221024
Heard April 10, 2024
Filed July 18, 2024
On Direct Appeal
Third District, Salt Lake County
The Honorable Adam T. Mow
No. 206927043
Attorneys:
Bradley L. Tilt, Salt Lake City, Felicia B. Canfield, Cody, Wyo.,
for appellants
Benjamin D. Johnson, KC Hooker, Salt Lake City, for appellee
JUSTICE HAGEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE,
JUSTICE PETERSEN, and JUSTICE POHLMAN joined.
JUSTICE HAGEN, opinion of the Court:
INTRODUCTION
¶1 This case stems from a California judgment that Alum
Rock Riverside, LLC obtained against Brett Del Valle. After
domesticating the judgment in Utah and recording it with the
county recorder, Alum Rock received a writ of execution allowing
it to seize and sell a property in Weber County.
MULLIGAN v. ALUM ROCK RIVERSIDE
Opinion of the Court
¶2 At the time Alum Rock recorded the judgment with the
county recorder, the property was owned by a revocable trust that
was established and administered by Brett and his wife. But the
trust had sold the property by the time Alum Rock applied for the
writ. And when the court issued the writ, the property’s new
owners—the Mulligans—objected, arguing that (1) Alum Rock
failed to create a judgment lien because it did not record the
judgment in the registry of judgments, (2) the writ was not
available because the trust—not Brett—held title to the property
when the judgment was domesticated in Utah, and (3) the district
court lacked jurisdiction to issue the writ because the property was
located in a different judicial district.
¶3 The district court upheld the writ over the Mulligans’
objections, and we affirm. First, we hold that Alum Rock created a
judgment lien when it recorded the judgment in the county
recorder’s office. As of July 1, 2002, a party seeking a judgment lien
is not required to record the judgment in the registry of judgments.
Second, we hold that the writ was available against the property,
even though the title was held in the name of a revocable trust,
because Brett retained all indicia of ownership over the property
when the lien was created. And third, we hold that the Mulligans
have not identified a relevant limitation on the district court’s
jurisdiction that would prevent it from issuing the writ.
BACKGROUND
¶4 Alum Rock Riverside, LLC sued Brett Del Valle in
California state court for breach of contract and other claims. Alum
Rock prevailed, and the court issued a judgment in its favor
totaling more than $4 million. Soon after, Alum Rock domesticated
the judgment in Utah’s Third District Court. Because the Del Valle
Family Trust owned property in Weber County, Utah, Alum Rock
recorded the judgment in the Weber County Recorder’s Office.
¶5 Brett and his wife, Traci, had formed the trust years earlier,
naming themselves as trustees. Brett and Traci retained broad
powers over the trust and its property, including the power to
revoke the trust, amend it, and transfer property from it. In
addition, the trust empowered Brett and Traci, as trustees, to hold,
manage, control, lease, and encumber trust property. Several years
after they created the trust, Brett and Traci, acting as trustees,
acquired the Weber County property at issue in this case.
¶6 The trust continued to hold title to the property when
Alum Rock recorded its judgment against Brett in the county
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recorder’s office. A few months after Alum Rock recorded the
judgment, however, the trust conveyed the property to Molly and
John Mulligan. And one month after that, Alum Rock applied for a
writ of execution against the property, identifying Brett as the
judgment debtor and asking the district court to “direct the sheriff
to seize and sell” the property to satisfy the judgment.
¶7 When the court issued the writ as requested, the Mulligans
challenged it. Acknowledging that their challenge “rises or falls”
on whether a lien “was created and attached to the property,” they
asserted that Alum Rock did not do what the Judgment Act
requires to create a judgment lien on real property.1 Specifically,
they claimed that Alum Rock did not fully comply with the
following statutory requirements, found in Utah Code section 78B-
5-201:
(2) On or after July 1, 1997, a judgment entered in a
district court does not create a lien upon or affect the
title to real property unless the judgment is filed in
the Registry of Judgments of the office of the clerk of
the district court of the county in which the property
is located.
(3)(a) On or after July 1, 2002, . . . a judgment entered
in a district court does not create a lien upon or affect
the title to real property unless the judgment or an
abstract of judgment is recorded in the office of the
county recorder in which the real property of the
judgment debtor is located.
UTAH CODE § 78B-5-201(2)–(3)(a) (2021).
¶8 The Mulligans argued that because Alum Rock obtained
its judgment against Brett in 2020—after both July 1, 1997, and July
1, 2002—Alum Rock needed to comply with the requirements of
both subsections: filing the judgment in the registry of judgments
and recording it with the county recorder. Because Alum Rock did
not file the judgment in the registry of judgments, the Mulligans
reasoned, a lien was not created.
__________________________________________________________
1 We refer to Utah Code, Title 78B, Chapter 5, Part 2 as the
Judgment Act. Effective July 1, 2024, the Judgment Act was
renumbered, and the legislature made minor stylistic changes. We
cite the version in effect at the time the district court issued the writ.
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MULLIGAN v. ALUM ROCK RIVERSIDE
Opinion of the Court
¶9 The Mulligans also claimed that, under the Judgment Act
and the Utah Rules of Civil Procedure, the writ was not “available”
against the property. Under the Judgment Act, real property
subject to a judgment lien “includes all the real property . . . owned
or acquired at any time by the judgment debtor during the time the
judgment is effective.” Id. § 78B-5-202(7)(c)(ii) (2021). And under
rule 64E of the Utah Rules of Civil Procedure, “[a] writ of execution
is available to seize property in the possession or under the control
of the defendant following entry of a final judgment.” UTAH R. CIV.
P. 64E(a). According to the Mulligans, the writ was “issued
improperly” because (1) Brett never owned the property (the trust
did), and (2) in any event, he did not possess or control the property
at the relevant time (the Mulligans did).
¶10 Finally, the Mulligans questioned the district court’s
jurisdiction. In their view, the court lacked jurisdiction to issue the
writ because the proceedings fall within reach of a venue statute
that lists actions that “shall be tried in the county in which the
[property] . . . is situated.” See UTAH CODE § 78B-3-301(1) (2021).2
The Mulligans also claimed that under Utah caselaw, actions in
which the “main question . . . involves title to real property” may
be heard only by the district court where the property is located.
(Quoting Calder v. Third Jud. Dist. Ct., 273 P.2d 168, 171 (Utah 1954).)
Because the property here is outside the district court’s geographic
boundaries, the Mulligans maintained that the court lacked
jurisdiction to issue the writ.
¶11 The district court upheld the writ against the Mulligans’
challenge. It first concluded that the Judgment Act did not require
Alum Rock to file its judgment in the registry of judgments, as the
Mulligans had argued, and that Alum Rock’s lien attached when
the judgment was recorded with the county recorder. Next, the
court determined that because the property was under Brett’s
control when Alum Rock domesticated the judgment, the property
was subject to execution under rule 64E. Finally, the court rejected
the Mulligans’ challenge to its jurisdiction, explaining that it had
the power to issue the writ even though the property is located
outside the Third District.
__________________________________________________________
2 This venue statute has been renumbered and slightly altered,
effective July 1, 2024. See UTAH CODE § 78B-3a-202(1). We cite the
version in effect at the time the district court issued the writ.
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¶12 The Mulligans appeal, and we have jurisdiction under
Utah Code subsection 78A-3-102(3)(j).
ISSUES AND STANDARDS OF REVIEW
¶13 The parties dispute whether Alum Rock created a
judgment lien on the property. “Judgment liens are creatures of
statute . . . .” Gildea v. Wells Fargo Bank, N.A., 2015 UT 11, ¶ 12, 347
P.3d 385. Accordingly, whether the property here is encumbered
by Alum Rock’s purported judgment lien raises a question of
statutory interpretation, a legal question that we review for
correctness. See Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50,
¶ 12, 267 P.3d 863.
¶14 The Mulligans also contest the district court’s conclusions
that the property is subject to the writ and that the court had
jurisdiction to issue the writ. Because these determinations were
premised on the court’s interpretation of Utah law, they also
present legal questions, which we review for correctness. See Peak
Alarm Co. v. Salt Lake City Corp., 2010 UT 22, ¶ 16, 243 P.3d 1221.
ANALYSIS
¶15 The Mulligans challenge three aspects of the district
court’s decision, each of which turns in part on statutory
interpretation. “The aim of statutory interpretation is to ascertain
the intent of the legislature, and the best evidence of the
legislature’s intent is the plain language of the statute itself.”
SunStone Realty Partners X LLC v. Bodell Constr. Co., 2024 UT 9, ¶ 11,
545 P.3d 260 (cleaned up). But because “statutory text may not be
plain when read in isolation,” State v. J.M.S. (In re J.M.S.), 2011 UT
75, ¶ 13, 280 P.3d 410 (cleaned up), “we determine the meaning of
the text given the relevant context of the statute (including,
particularly, the structure and language of the statutory scheme),”
McKitrick v. Gibson, 2021 UT 48, ¶ 19, 496 P.3d 147 (cleaned up).
¶16 We first address the Mulligans’ contention that Alum Rock
skipped a necessary step to create a lien on the property by not
filing its judgment in the registry of judgments. We clarify that to
create a lien from a foreign judgment, creditors must adhere to
relevant requirements under the Judgment Act as well as the
Foreign Judgment Act. But since July 1, 2002, creditors do not need
to file judgments in the registry of judgments to create a lien. Thus,
Alum Rock created a valid lien when it recorded its judgment in
the county recorder’s office.
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MULLIGAN v. ALUM ROCK RIVERSIDE
Opinion of the Court
¶17 Next, we assess whether Brett “owned” the property,
allowing Alum Rock’s lien to attach, even though the revocable
trust that he and his wife created and administered held title to it.
We conclude that he did.
¶18 Finally, we consider and reject the Mulligans’ argument
that limitations on the district court’s jurisdiction prohibited the
court from issuing the writ.
I. ALUM ROCK CREATED A VALID LIEN ON THE PROPERTY
¶19 To resolve this appeal, we must decide whether Alum
Rock created a valid lien on the property before it was sold to the
Mulligans. The answer to that question largely depends on the
meaning of two provisions of the Judgment Act.
¶20 These provisions, subsections (2) and (3)(a) of Utah Code
section 78B-5-201, set out actions that judgment creditors have
needed to perform at different times to create a judgment lien on
real property:
(2) On or after July 1, 1997, a judgment entered in a
district court does not create a lien upon or affect the
title to real property unless the judgment is filed in
the Registry of Judgments of the office of the clerk of
the district court of the county in which the property
is located.
(3)(a) On or after July 1, 2002, . . . a judgment entered
in a district court does not create a lien upon or affect
the title to real property unless the judgment or an
abstract of judgment is recorded in the office of the
county recorder in which the real property of the
judgment debtor is located.
UTAH CODE § 78B-5-201(2)–(3)(a) (2021). The Mulligans argue that
these requirements—the registry-of-judgments requirement and
the county-recorder requirement—“work together, cumulatively.”
Under their reading, because the judgment was domesticated in
2020, which is “on or after” both July 1, 1997, and July 1, 2002, see
id., Alum Rock could not create a lien on the property unless it
(1) filed its judgment in the registry of judgments and (2) recorded
it with the county recorder.
¶21 Before interpreting these provisions, we address a
threshold issue raised by Alum Rock: whether section 78B-5-201 of
the Judgment Act even applies here, given that Alum Rock’s
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judgment is a foreign judgment. After explaining why the section
applies, we interpret its provisions.
A. Creditors Domesticating Foreign Judgments Must Adhere to the
Judgment Act’s Requirements for Creating a Lien
¶22 Alum Rock argues that the Judgment Act’s registry-of-
judgments requirement is not implicated here because Alum
Rock’s judgment is governed by the Foreign Judgment Act, which
makes no mention of the registry of judgments. We disagree.
¶23 As it relates to converting a foreign judgment into a lien,
the Foreign Judgment Act provides:
(1) A foreign judgment entered in a district court
under this part becomes a lien as provided in Section
78B-5-202 if:
(a) a stay of execution has not been granted;
(b) the requirements of this chapter are satisfied;
and
(c) the judgment is recorded in the office of the
county recorder where the property of the
judgment debtor is located, as provided in Section
78B-5-202 [of the Judgment Act].
UTAH CODE § 78B-5-305(1).
¶24 Alum Rock points out that this section of the Foreign
Judgment Act mentions section 78B-5-202 of the Judgment Act but
not section 78B-5-201. And, it adds, section 202 also does not
mention section 201 or its registry-of-judgments requirement, on
which the Mulligans’ argument turns. See id. § 78B-5-202(7)(a)
(2021) (“After July 1, 2002, a judgment . . . becomes a lien upon real
property if . . . the judgment . . . is recorded in the office of the
county recorder.”).
¶25 These points are well taken. Still, the Foreign Judgment
Act declares that foreign judgments are treated the same as
domestic ones. Specifically, it provides that “[a] foreign judgment
filed under [the Foreign Judgment Act] has the same effect and is
subject to the same procedures, defenses, enforcement, satisfaction,
and proceedings for reopening, vacating, setting aside, or staying
as a judgment of a district court of this state.” Id. § 78B-5-302(3).
Alum Rock argues that this language does not “incorporate[] the
Judgment Act wholesale into the Foreign Judgment Act.” Instead,
Alum Rock urges us to parse this language and treat the phrase “for
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MULLIGAN v. ALUM ROCK RIVERSIDE
Opinion of the Court
reopening, vacating, setting aside, or staying” as modifying and
limiting the entire preceding series—“procedures, defenses,
enforcement, satisfaction, and proceedings.”
¶26 To take one example, as Alum Rock sees it, foreign
judgments are not generally “subject to the same procedures” as
domestic judgments; they are merely “subject to the same
procedures . . . for reopening, vacating, setting aside, or staying” as
domestic judgments. Alum Rock thus argues that the Judgment Act
applies to foreign judgments only when reopening, vacating,
setting aside, or staying a foreign judgment, none of which Alum
Rock seeks to do here.
¶27 But Alum Rock’s argument is undercut by a decision that
we issued after the briefing in this appeal was completed, SunStone
Realty Partners X LLC v. Bodell Construction Co., 2024 UT 9, 545 P.3d
260. There, the parties disputed whether, under the Foreign
Judgment Act, Utah’s or Hawaii’s postjudgment interest rate
applied to a Hawaii judgment that was domesticated in Utah. Id.¶¶ 1–2. In resolving the dispute, we explained that the Foreign
Judgment Act “mandates that foreign judgments domesticated
using the [Foreign Judgment Act] are ‘subject to the same
procedures, defenses, enforcement, satisfaction, and proceedings
. . . as a judgment of a district court of this state.’” Id. ¶ 13 (quoting
UTAH CODE § 78B-5-302(3)). In line with this principle, we held that
“[b]ecause postjudgment interest is an enforcement mechanism,”
Utah’s postjudgment interest rate applied. Id. ¶ 21.
¶28 In SunStone we did not read the phrase “for reopening,
vacating, setting aside, or staying” as modifying “enforcement.”
See id. ¶ 13; see also UTAH CODE § 78B-5-302(3). Indeed, it would be
unreasonable to read the phrase to modify terms like
“enforcement” and “satisfaction” because a judgment’s
enforcement or satisfaction would not be at issue in proceedings to
reopen, vacate, set aside, or stay a judgment. This leads us to
conclude that the phrase limits and modifies only the nearest item
in the series to it—“proceedings.”
¶29 We reject Alum Rock’s reading for another reason as well.
Under its reading, a creditor intending to create a lien based on a
domestic judgment would be subject to all the Judgment Act’s
constraints, but a foreign-judgment creditor would not. This would
result, counterintuitively, in a foreign judgment being easier to
convert into a lien than a domestic one, which is contrary to an
express purpose of the Foreign Judgment Act—to treat foreign
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judgments the same as domestic ones in key respects. See UTAH
CODE § 78B-5-302(2)–(3).
¶30 Like postjudgment interest, a lien is a means of enforcing
a judgment. As such, a foreign judgment is subject to the same
requirements for lien creation as domestic judgments. Thus, the
Foreign Judgment Act incorporates the Judgment Act’s
requirements for creating a judgment lien, including those found
in section 78B-5-201.
B. Alum Rock Did Not Need to File Its Judgment in the Registry of
Judgments to Create a Lien
¶31 Having concluded that section 201 applies, we must
interpret subsections (2) and (3)(a) and determine whether their
requirements are cumulative (as the Mulligans argue) or sequential
(as Alum Rock argues). We hold that they are sequential, not
cumulative.
¶32 Although we have yet to decisively interpret these
provisions, the court of appeals previously interpreted a
substantively similar version of the statute under analogous
circumstances and rejected the cumulative reading now advanced
by the Mulligans. In Kitches & Zorn, L.L.C. v. Yong Woo Kim, 2005
UT App 164, 112 P.3d 1210, judgment creditors recorded an
abstract of their judgment in the county recorder’s office and
applied for a writ of execution permitting them to sell a property
that was owned by the judgment debtor. Id. ¶¶ 2–3. But the
judgment debtor deeded his interest in the property to his wife
between the time the creditors recorded the judgment with the
county recorder and the time they applied for the writ. Id. ¶ 2.
¶33 When the district court issued the writ, the judgment
debtor objected, claiming that the creditors did not create a lien on
the property before the debtor conveyed the property to his wife
because they “had not . . . filed the Judgment in the Registry of
Judgments.” Id. ¶ 4. On appeal, the debtor argued that the registry-
of-judgments and county-recorder provisions “must be read
together, thereby creating a two-step process” that required post-
2002 judgments to be filed “in both the Registry of Judgments and
the office of the county recorder.” Id. ¶ 12.
¶34 The Kitches court rejected this cumulative reading and held
that “after July 1, 2002, a person seeking a lien on real property need
only file in the office of the county recorder.” Id. ¶ 13. We reach the
same conclusion because it is supported by the structure of section
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Opinion of the Court
78B-5-201, other sections of the Utah Code from the Judgment Act
and the Foreign Judgment Act, and the prior-construction canon of
statutory interpretation.
¶35 The structure of section 201 itself signals that the registry-
of-judgments and county-recorder requirements are to be read
sequentially, creating independent requirements for successive
time periods. For context, a district court’s entry of judgment
historically “create[d] a lien upon the real property of the judgment
debtor” automatically. See UTAH CODE § 78B-5-202(2) (2021) (“Prior
to July 1, 1997, . . . the entry of judgment by a district court creates
a lien upon the real property of the judgment debtor . . . .”). But the
legislature did away with this automatic-lien regime. As
recognized by subsection (2) of section 78B-5-201, beginning July 1,
1997, a judgment lien does not arise automatically upon a district
court’s entry of judgment; such a judgment does not create a lien
“unless the judgment is filed in the Registry of Judgments of the
office of the clerk of the district court of the county in which the
property is located.” Id. § 78B-5-201(2) (2021).
¶36 As with the automatic-lien regime, the legislature also
phased out subsection (2)’s registry-of-judgments requirement.
Subsection (3)(a) of section 201 marks this evolution in the law.
Rather than allow a judgment to create a lien automatically (before
July 1, 1997) or require judgment creditors to file the judgment in
the registry of judgments (on or after July 1, 1997), beginning July
1, 2002, a judgment entered in the district court does not create a
lien “unless the judgment or an abstract of judgment is recorded in
the office of the county recorder in which the real property of the
judgment debtor is located.” Id. § 78B-5-201(3)(a) (2021).
¶37 This sequential reading makes sense when we zoom in on
the grammatical structure of subsections (2) and (3)(a). The two
subsections are separate, stand-alone provisions, each punctuated
with a period. Their requirements are not joined with a conjunction
such as “and” or “or.” And subsection (3)(a) does not expressly
incorporate subsection (2)’s registry-of-judgments requirement.
¶38 Contrast this with subsection (4) of the same section, which
also imposes requirements on judgment creditors, requiring them
to include certain information when filing or recording a judgment:
(4) In addition to the requirements of Subsections
(2) and (3)(a), any judgment that is filed in the
Registry of Judgments on or after September 1, 1998,
or any judgment or abstract of judgment that is
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recorded in the office of a county recorder after July
1, 2002, shall include:
(a) the information identifying the judgment
debtor as required under Subsection (4)(b) on
the judgment or abstract of judgment; or
(b) a copy of the separate information statement
of the judgment creditor that contains:
(i) the correct name and last-known address
of each judgment debtor and the address at
which each judgment debtor received
service of process;
(ii) the name and address of the judgment
creditor;
(iii) the amount of the judgment as filed in
the Registry of Judgments;
(iv) if known, the judgment debtor’s Social
Security number, date of birth, and driver’s
license number if a natural person; and
(v) whether or not a stay of enforcement has
been ordered by the court and the date the
stay expires.
Id. § 78B-5-201(4) (2021). Unlike subsections (2) and (3)(a),
subsection (4)’s requirements are unified, with the cumulative
requirements indented, punctuated with semicolons, and joined
with a conjunction. And with the opening phrase “in addition to,”
subsection (4) expressly incorporates the requirements of previous
subsections.
¶39 As subsection (4) demonstrates, the legislature knows how
to signal when it intends requirements to be cumulative. But unlike
subsection (4), subsection (3) does not state that recording in the
county recorder’s office must be done “[i]n addition to” the
registry-of-judgments requirement in subsection (2). And instead
of listing both requirements as indented subsections separated by
semicolons and a conjunction, the legislature listed the two
requirements as stand-alone provisions triggered on different
dates. That structure supports our reading that subsection (3)’s
requirements supplant those in subsection (2) after July 1, 2002.
¶40 Reading the subsections sequentially also makes sense
when we zoom out and look at related sections of the Utah Code.
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We have a “duty to harmonize and reconcile statutory provisions.”
Field v. Boyer Co., 952 P.2d 1078, 1081 (Utah 1998) (cleaned up).
Reading section 201’s requirements as being sequential harmonizes
and reconciles them with section 78B-5-202 of the Judgment Act
and section 78B-5-305 of the Foreign Judgment Act. Properly
understood, all three statutes provide that, since July 1, 2002, a
judgment becomes a lien on real property if it is recorded in the
office of the county recorder. Utah Code section 78B-5-202 provides
that, after July 1, 2002, a judgment becomes a lien on real property
if it “is recorded in the office of the county recorder.” UTAH CODE
§ 78B-5-202(7)(a) (2021). And Utah Code section 78B-5-305, part of
the Foreign Judgment Act, provides:
(1) A foreign judgment entered in a district court
under this part becomes a lien as provided in Section
78B-5-202 if:
(a) a stay of execution has not been granted;
(b) the requirements of this chapter are satisfied;
and
(c) the judgment is recorded in the office of the
county recorder where the property of the
judgment debtor is located, as provided in
Section 78B-5-202.
Id. § 78B-5-305(1).
¶41 Notice that these sections do not refer to the registry of
judgments. If, as the Mulligans suggest, the legislature intended
judgment creditors to continue filing in both the registry of
judgments and the county recorder’s office, this absence would be
hard to reconcile. For example, consider how the text of section 202
squares with the Mulligans’ reading of section 201. Section 202
provides, “After July 1, 2002, a judgment . . . becomes a lien upon
real property if . . . the judgment . . . is recorded in the office of the
county recorder.” Id. § 78B-5-202(7)(a) (2021). But under the
Mulligans’ reading of section 201, after July 1, 2002, a judgment does
not become a lien on real property if the judgment is recorded in
the office of the county recorder; the judgment must also be filed in
the registry of judgments.
¶42 Historical context helps explain why sections 202 and 305
mention the county-recorder requirement but not the registry-of-
judgments requirement. In 2001, the legislature passed a bill that
amended the Judgment Act and the Foreign Judgment Act in
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significant ways. See Judgment Lien Amendments, H.B. 305, 2001
Leg., Gen. Sess. (Utah 2001) (available at
https://le.utah.gov/~2001/bills/hbillenr/HB0305.htm). The
bill—which ushered in the county-recorder regime for judgment-
lien creation—provided that the statutory overhaul was to take
effect July 1, 2002. See id. Before that date, the sections that are now
codified as sections 202 and 305 did not specify the manner of
recording a judgment lien. See UTAH CODE §§ 78-22-1, 78-22a-5
(2001). As of July 1, 2002, however, the sections recognized and
reflected the incoming county-recorder requirement. See id. §§ 78-
22-1, 78-22a-5 (July 2002). Each section was amended to specify that
for a judgment to create a lien, the judgment must be “recorded in
the office of the county recorder.” See id. §§ 78B-5-
202(7)(a), -305(1)(c). But the legislature did not add similar
language referring to the registry-of-judgments requirement. That
omission further supports our conclusion that the outdated
registry-of-judgments requirement was entirely supplanted by the
county-recorder regime as of July 1, 2002.
¶43 The prior-construction canon of statutory interpretation
also reinforces our reading of section 201. Under that canon, if a
word or phrase has been uniformly interpreted in caselaw, “a later
version of that act perpetuating the wording is presumed to carry
forward that interpretation.” ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 322 (2012). In
other words, “where a legislature amends a portion of a statute but
leaves other portions unamended, or re-enacts them without
change, the legislature is presumed to have been satisfied with
prior judicial constructions of the unchanged portions of the statute
and to have adopted them as consistent with its own intent.”
Christensen v. Indus. Comm’n, 642 P.2d 755, 756 (Utah 1982).
¶44 In Kitches, the court of appeals interpreted the section that
is now codified as section 201 to mean that “after July 1, 2002, a
person seeking a lien on real property need only file in the office of
the county recorder.” 2005 UT App 164, ¶ 13. That decision has
stood as controlling law in this jurisdiction for nearly two decades,
and during that time judgment creditors have presumably relied
on it as such. The legislature has amended the Judgment Act—
including section 201—several times since Kitches was decided, yet
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Opinion of the Court
it has not modified the language to abrogate the case’s holding.3 We
presume that by amending the statute but leaving the portions
relevant here unamended, the legislature was satisfied with Kitches’
reading.
¶45 The Mulligans maintain that Kitches has not been the
controlling law in Utah since 2013 because it was overtaken by the
court of appeals’ decision in T3 Properties, LLC v. Persimmon
Investments, Inc., 2013 UT App 38, 299 P.3d 613. There, a creditor
obtained a court judgment in 2001, at which time the judgment
debtor owned property in Salt Lake County. Id. ¶¶ 2–3. Not long
after, however, the debtor conveyed his interest in the property to
a third party. Id. ¶ 3. And not until years later did the creditor begin
efforts to execute the judgment by having the property sold. Id. ¶ 4.
¶46 Between the time the court entered the judgment and the
time the debtor transferred the property, the creditor recorded the
judgment in the registry of judgments but did not file an
information statement with the judgment.4 Id. ¶¶ 16–17. The issue
was whether the judgment creditor created a lien on the property
before the debtor conveyed it away. Id. ¶ 17. To answer that
question, the court interpreted the 2001 version of the Judgment
Act, id. ¶¶ 16–28, which, like the current version, provided that
“[o]n or after July 1, 1997, a judgment . . . does not create a lien upon
or affect the title to real property unless the judgment is recorded
in the Registry of Judgments,” see id. ¶ 15 (quoting UTAH CODE § 78-
22-1.5(2) (2001)). The next subsection provided, “In addition to the
requirement of [the previous subsection], any judgment that is
recorded in the Registry of Judgments on or after September 1,
__________________________________________________________
3 For examples of how section 201 has been amended over the
years, see H.B. 46, 2011 Leg., Gen. Sess. (Utah 2011) (available at
https://le.utah.gov/~2011/bills/static/HB0046.html); H.B. 315,
2014 Leg., Gen. Sess. (Utah 2014) (available at
https://le.utah.gov/~2014/bills/hbillenr/hb0315.htm); H.B. 16,
2014 Leg., Gen. Sess. (Utah 2014) (available at
https://le.utah.gov/~2014/bills/static/hb0016.html); H.B. 251,
2023 Leg., Gen. Sess. (Utah 2023) (available at
https://le.utah.gov/~2023/bills/static/HB0251.html).
4 There was some uncertainty about whether the judgment was
recorded in the registry of judgments, but the court assumed that it
was. See T3 Pros., LLC v. Persimmon Invs., Inc., 2013 UT App 38,
¶¶ 16, 28, 299 P.3d 613.
14
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1998, shall include a separate information statement of the
judgment creditor.” Id. (quoting UTAH CODE § 78-22-1.5(3) (2001)).
¶47 The T3 court concluded that under the 2001 version of the
Judgment Act, “both requirements”—the registry-of-judgments
and information-statement requirements—“must be satisfied to
create a judgment lien.” Id. ¶ 19. To support this conclusion, the
court analyzed the relevant text by noting that (1) the legislature’s
“[u]se of the word ‘shall’ . . . indicates that filing an information
statement is mandatory,” and (2) the information-statement
requirement “must be completed ‘in addition’ to” the registry-of-
judgments requirement. Id. (cleaned up); see also id. ¶ 21. Even
though the court’s decision was based on the language of the 2001
version of the Judgment Act and turned on the information-
statement requirement, the court added a footnote stating that “the
2002 version [of the Judgment Act] required that the judgment and
the information statement be recorded in both the Registry of
Judgments and in the county recorder’s office.” Id. ¶ 14 n.5.
¶48 According to the Mulligans, T3 overtook Kitches as
controlling law interpreting the Judgment Act. We disagree.
Although the T3 court included a footnote suggesting that the
registry-of-judgments and county-recorder requirements of the
2002 Judgment Act are cumulative, see id., that statement was dicta
because it was “unnecessary to the decision in the case and
therefore not precedential,” see Obiter Dictum, BLACK’S LAW
DICTIONARY (12th ed. 2024). A separate panel of the court, squarely
presented with the issue, had held that those requirements are
sequential and that judgments no longer need to be filed in the
registry of judgments for a lien to attach. See supra ¶¶ 32–34. The T3
court did not even mention Kitches, much less purport to overrule
it. Kitches remained controlling law on the sequential nature of the
recording requirements despite the footnote dicta in T3. We
therefore presume that when the legislature amended section 201
post-Kitches, it saw no need to amend the recording requirements
because it was satisfied with the prior judicial interpretation of
those requirements in Kitches.
¶49 The Mulligans also argue that the court’s analysis in T3
favors a cumulative reading of the registry-of-judgments and
county-recorder requirements. They maintain that T3 “involved a
deep analysis” of section 201 and “laid out a roadmap for how
courts should analyze [the Judgment Act’s] cumulative
amendments over time.” Although we are not bound to follow
15
MULLIGAN v. ALUM ROCK RIVERSIDE
Opinion of the Court
court of appeals decisions, we often look to those decisions for their
persuasive value. Eaton Kenway, Inc. v. Auditing Div. of Utah State
Tax Comm’n, 906 P.2d 882, 885 (Utah 1995). But we see little
persuasive value in T3 relative to the issue in the present case.
¶50 The court in T3 interpreted a different provision in the
2001 version of the Judgment Act, which did not contain the
county-recorder requirement. See 2013 UT App 38, ¶ 15. The
question before the court was whether the registry-of-judgments
and information-statement requirements were cumulative. See id.
¶ 28. Unlike the county-recorder requirement at issue here, the
information-statement requirement specified that it was “[i]n
addition to” the registry-of-judgments requirement found in
section 201(2). Id. ¶ 12 (quoting Utah Code § 78-22-1.5(3) (2001)).
This additional language, which expressly made the registry-of-
judgments and the information-statement requirements
cumulative, easily distinguishes T3 from both Kitches and the
present case.
¶51 We endorse Kitches’ holding that, since July 1, 2002, a lien
on real property is created by recording the judgment, along with
other required information, with the county recorder where the real
property is located. Alum Rock therefore did not need to record the
judgment in the registry of judgments, and it created a lien by
recording the judgment in the county recorder’s office.
II. BRETT OWNED THE PROPERTY FOR PURPOSES OF ALUM ROCK’S
LIEN ATTACHING
¶52 The Mulligans argue that, under the Judgment Act,
“[t]here is no basis for any judgment lien against the Property”
because the trust, not Brett, held title to the property. Before
explaining why we disagree, we pause to address the Mulligans’
criticism of the district court’s analysis.
¶53 The Mulligans criticize the district court for relying on rule
64E of the Utah Rules of Civil Procedure, rather than the Judgment
Act, in concluding that the property is “subject to the execution.”
Rule 64E allows writs of execution to be issued against property
that is “in the possession or under the control of the defendant.” UTAH
R. CIV. P. 64E(a) (emphasis added). The Judgment Act, in contrast,
sets the conditions under which a judgment lien attaches in the first
instance, providing that real property subject to a judgment lien
“includes all the real property . . . owned or acquired at any time by
the judgment debtor during the time the judgment is effective.”
UTAH CODE § 78B-5-202(7)(c)(ii) (2021) (emphasis added).
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¶54 The Mulligans argue that the district court should have
focused its analysis on the Judgment Act, rather than on rule 64E,
which they contend “has nothing whatsoever to do with whether
the Foreign Judgment against Brett personally could become a lien
against Property he never owned.” But because they principally
relied on rule 64E, not the Judgment Act, before the district court,
the court’s reliance on rule 64E was understandable. In their
principal filing below, the Mulligans cited rule 64E and quoted,
with emphasis, the rule’s language regarding possession and
control. In contrast, they mentioned the Judgment Act’s “owned or
acquired” language only in passing in a footnote.
¶55 It is true that the Mulligans argued to the district court that
the property was “never . . . owned by Brett Del Valle in his
individual and personal capacity.” (Emphasis added.) Yet they
never tied that argument to the language of the Judgment Act, and
the thrust of their argument below was that the writ “was not
properly available under the express terms” of the “governing
Utah Rules of Civil Procedure.” In its decision, the court rejected
that rule-based argument because rule 64E “does not contain any
provision limiting its application to owners of property.”
¶56 On appeal, the Mulligans distance themselves from their
prior reliance on rule 64E and embrace the Judgment Act’s “owned
or acquired” language.5 Under the Judgment Act, real property
subject to a judgment lien “includes all the real property. . . owned
or acquired at any time by the judgment debtor during the time the
judgment is effective.”6 Id. To the Mulligans, holding title is the
essence of ownership. Because Brett “was never in title,” they
maintain that “he never owned the Property” and the lien never
attached to it.
¶57 When the judgment was entered against Brett, the
property was held by the Del Valle Family Trust, which is a
revocable trust that Brett formed with his wife, Traci. “A trust is a
form of ownership in which the legal title to property is vested in a
trustee, who has equitable duties to hold and manage it for the
benefit of the beneficiaries.” Cont’l Bank & Tr. Co. v. Country Club
Mobile Ests., Ltd., 632 P.2d 869, 872 (Utah 1981). A revocable trust is
“[a] trust in which the settlor” (the person who creates the trust)
__________________________________________________________
5 Alum Rock has not challenged this issue as unpreserved.
6 The Utah Code defines “[r]eal property” as “any right, title,
estate, or interest in land.” UTAH CODE § 57-1-1(3).
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MULLIGAN v. ALUM ROCK RIVERSIDE
Opinion of the Court
“reserves the right to terminate the trust and recover the trust
property and any undistributed income.” Revocable Trust, BLACK’S
LAW DICTIONARY (12th ed. 2024). One standard estate-planning
practice is to form “[a] revocable trust in which the settlor[s] . . . are
also the trustees and manage the trust for their own benefit during
their lifetimes.” West v. West (In re Est. of West), 948 P.2d 351, 355
(Utah 1997). When done properly, this strategy serves to “avoid
probate of the assets while allowing the settlor to retain control of
the trust property during his or her own lifetime.” See id.¶58 Under the terms of the Del Valle Family Trust, either Brett
or Traci, as co-settlors, may revoke the “community estate”
(community property held in trust), wholly or partially. Upon
revocation, this property would be delivered to Brett and/or Traci
and would continue to be their community property. Similarly, the
“separate estate” (separate property and quasi-community
property held in trust) may be revoked unilaterally by Brett or
Traci, whichever of them contributed the property to the trust; and
upon revocation, the property would be delivered to the
contributor.
¶59 Brett and Traci may also amend the trust and transfer
property from it. While they are both living, Brett and Traci may
amend “any of the terms of [the trust] by an instrument in writing
signed by [Brett and Traci] and delivered to the Trustee.” And they
may—acting jointly for community property, or individually for
separate and quasi-community property—“transfer property . . .
out of the trust estate to any other person or organization.” In
addition, as trustees, Brett and Traci may hold, manage, control,
lease, and encumber trust property. With this backdrop, the
question is whether, for purposes of the Judgment Act, Brett
“owned” the property when the judgment was entered against
him, even though the trust held title to it. See UTAH CODE § 78B-5-
202(7)(c)(ii) (2021).
¶60 Because “the settlor of a revocable trust necessarily retains
the functional equivalent of ownership of the trust assets,” 6
AUSTIN WAKEMAN SCOTT ET AL., SCOTT AND ASCHER ON TRUSTS
§ 15.4.2 (6th ed. 2024), “[i]n . . . substantive respects (such as
creditors’ rights), the property held in a revocable trust is ordinarily
to be treated as if it were property of the settlor,” RESTATEMENT
(THIRD) OF TRUSTS § 25 cmt. a. (AM. L. INST. 2003). Thus, in certain
situations—“by reason of a power of revocation, appointment, or
withdrawal”—a person may have “the equivalent of ownership of
18
Cite as: 2024 UT 22Opinion of the Court
the trust property, even though the legal title to the property is held
by the trustee.” See id. § 74 cmt. a (AM. L. INST. 2007).
¶61 In effect, the Mulligans argue that the trust shielded the
property from Brett’s judgment creditor, Alum Rock. But under
Utah law, “[d]uring the lifetime of the settlor, the property of a
revocable trust is subject to the claims of the settlor’s creditors.”
UTAH CODE § 75-7-505(1). That approach is consistent with the
general rule that “property held in [a revocable] trust is subject to
the claims of creditors of the settlor . . . if the same property
belonging to the settlor . . . would be subject to the claims of the
creditors.” RESTATEMENT (THIRD) OF TRUSTS § 25 cmt. e (AM. L. INST.
2003). And other courts “generally have concluded that the assets
of a revocable trust are properly subject to the claims of the settlor’s
creditors.” Pandy v. Indep. Bank, 372 P.3d 1047, 1050 (Colo. 2016) (en
banc) (collecting cases).
¶62 In short, because settlors of revocable trusts can access the
full bundle of property-rights sticks, they cannot keep those sticks
from their creditors. Here, as co-settlor and co-trustee, Brett
retained the hallmarks of ownership over the property. As the
district court noted, Brett and Traci could, at any time, “revoke the
Trust, . . . amend it, . . . [or] transfer property from it.” Under these
circumstances, we hold that, for purposes of the Judgment Act,
Brett owned the property at the time the judgment was entered
against him.7 Accordingly, Alum Rock’s lien attached to the
property when Alum Rock recorded the lien with the county
recorder.
III. THE MULLIGANS HAVE NOT IDENTIFIED A LIMITATION ON THE
DISTRICT COURT’S AUTHORITY TO ISSUE A WRIT OF EXECUTION ON
PROPERTY LOCATED IN A COUNTY OUTSIDE THE THIRD DISTRICT
¶63 The Mulligans contend that the Third District Court
“lacked authority and jurisdiction” to issue the writ because the
property sits in Weber County, which is outside the court’s
geographic boundaries. Because they have not identified a relevant
limitation on the district court’s jurisdiction to issue the writ, we
reject that argument.
__________________________________________________________
7 Neither side has addressed whether Traci’s joint ownership of
the property has any effect on the judgment lien. For that reason,
we express no opinion on the matter.
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MULLIGAN v. ALUM ROCK RIVERSIDE
Opinion of the Court
¶64 This matter arose when Alum Rock filed a notice of
judgment with the Third District Court. There is no question that
this was proper, because under the Foreign Judgment Act a foreign
judgment like Alum Rock’s California judgment “may be filed with
the clerk of any district court in Utah.” UTAH CODE § 78B-5-302(2).
Once Alum Rock domesticated the judgment, the judgment
inherited “the same effect . . . as a judgment” of a Utah district
court. Id. § 78B-5-302(3). Such a judgment may be enforced through
a writ of execution. Id. § 78A-5-102 (“A district court judge may
issue all extraordinary writs and other writs necessary to carry into
effect the district court judge’s orders, judgments, and decrees.”).
¶65 The Mulligans have not identified any relevant law that
would limit a district court’s authority to issue a writ of execution
to be effectuated in a county outside that court’s judicial district.
They first cite a venue statute, which provides that “[a]ctions” for
certain “causes involving real property shall be tried in the county
in which the subject of the action . . . is situated.” Id. § 78B-3-301(1)
(2021). Those “causes” are
for the recovery of real property, or of an estate or
interest in the property; . . . for the determination . . .
of the right or interest in the property; . . . for injuries
to real property; . . . for the partition of real property;
and . . . for the foreclosure of all liens and mortgages
on real property.
Id.
¶66 But the Mulligans’ reliance on this statute is misguided
because no “[a]ction[] . . . involving real property” is at issue here.
See id. Indeed, no cause of action is at issue at all. The causes of
action that gave rise to Alum Rock’s judgment against Brett (for
breach of contract) were brought in California and, from what we
can tell, had nothing to do with the Weber County property. Simply
put, this proceeding to enforce that judgment through a writ of
execution is not an action involving real property governed by the
venue statute.8
__________________________________________________________
For the same reason, the caselaw that the Mulligans cite
8
regarding “action[s]” that “involve[] title to real property” misses
the mark. See Calder v. Third Jud. Dist. Ct., 273 P.2d 168, 171 (Utah
1954).
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¶67 The Mulligans also cite rule 64 of the Utah Rules of Civil
Procedure as an additional limitation on the district court’s
authority. According to them, a distinction in word choice between
two sentences in rule 64(d)(1) “precludes courts in one county from
ordering seizure of real property located in a different county.”
Rule 64(d)(1) explains how court clerks are to issue writs for real
and personal property:
If the writ directs the seizure of real property, the
court clerk will issue the writ to the sheriff of the
county in which the real property is located. If the
writ directs the seizure of personal property, the
court may issue the writ to an officer of any county.
UTAH R. CIV. P. 64(d)(1). From this language, the Mulligans glean
that “the rule expressly authorizes any court in any county in Utah
to direct the seizure . . . of personal property located in any county in
Utah” but does not do the same for real property.
¶68 Although the Mulligans are correct that the rule
distinguishes between writs of execution for personal property
versus real property and requires that the latter be directed to the
“sheriff of the county in which the real property is located,” see id.,the rule says nothing about which court may issue the writ. Rule
64(d)(1) contains no requirement that the district court issuing the
writ be in the same county as the real property. If anything, by
specifying that writs involving real property must be “issue[d] . . .
to the sheriff of the county in which the real property is located,”
see id., the rule seems to presuppose that the issuing court may be
located elsewhere.
¶69 The Mulligans have not established that the district court
exceeded its authority by issuing the writ. Neither the venue statute
nor rule 64(d)(1) prohibits a district court from issuing a writ of
execution for real property located in another Utah judicial district.
CONCLUSION
¶70 Although Alum Rock needed to comply with the
Judgment Act’s requirements for creating a lien, filing in the
registry of judgments was not one of those requirements. The lien
attached to the property once Alum Rock recorded the judgment
with the Weber County Recorder’s Office. When the judgment was
recorded, Brett owned the property for purposes of the Judgment
Act because the property’s title was held in a revocable trust settled
by Brett and his wife. And the Mulligans have not shown that the
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MULLIGAN v. ALUM ROCK RIVERSIDE
Opinion of the Court
district court lacked authority to issue the writ. Accordingly, we
affirm.
22