Nebeker v. Summit County ( 2014 )

2014 UT App 244_________________________________________________________
THE UTAH COURT OF APPEALS
JIM NEBEKER,
Plaintiff, Appellee, and Cross-appellant,
v.
SUMMIT COUNTY,
Defendant, Appellant, and Cross-appellee.
Amended Opinion1
No. 20120269-CA
Filed October 17, 2014
Third District Court, Silver Summit Department
The Honorable Robert K. Hilder
The Honorable Todd M. Shaughnessy2
No. 090500413
‘
Michael Z. Hayes and Todd J. Godfrey, Attorneys
for Appellant and Cross-appellee
Richard M. Hymas, David L. Arrington, and
Josh D. Chandler, Attorneys for Appellee
and Cross-appellant
JUDGE STEPHEN L. ROTH authored this Amended Opinion, in
which JUDGES J. FREDERIC VOROS JR. and MICHELE M.
CHRISTIANSEN concurred.
1. This Amended Opinion replaces the Opinion issued June 12,
2014, Nebeker v. Summit County, 2014 UT App 137. In response to
a petition for rehearing by Summit County, we have removed
former footnote 14 and added paragraphs 55 to 60.
2. Judge Robert K. Hilder denied Summit County’s motion to
dismiss for lack of jurisdiction and its motion for summary
judgment. Judge Hilder also granted summary judgment in
favor of Jim Nebeker on liability. Judge Todd M. Shaughnessy
awarded Nebeker damages.
Nebeker v. Summit County
ROTH, Judge:
¶1 Summit County (the County) appeals the entry of
judgment in favor of Jim Nebeker on Nebeker’s negligence
claim. Nebeker cross-appeals, contending that the court
improperly imposed a statutory cap to reduce the judgment
from $594,400.21 to $221,400. We affirm.
BACKGROUND
¶2 John Rhineer was Nebeker’s accountant prior to Rhineer’s
death on November 14, 2003. Later that year, Wells Fargo Bank
sued John Rhineer’s estate and Nebeker’s business, Jim Nebeker
Trucking, Inc., seeking, among other things, ‚a determination of
non-liability for allowing John Rhineer to deposit Nebeker’s
monthly tax deposits in John Rhineer’s personal Wells Fargo
account instead of Nebeker’s IRS trust account.‛ On March 26,
2004, Jim Nebeker intervened and filed a cross-claim against the
Rhineer estate asserting that John Rhineer had embezzled funds
from both Nebeker and his business. Nebeker brought the claim
against David Rhineer, John Rhineer’s son, who purported to be
the personal representative of the estate but, as it turned out, had
never been appointed. Later, in June 2004, the probate court
appointed Greg Rhineer, another of John Rhineer’s sons, as
personal representative. Wells Fargo immediately filed an
amended complaint substituting personal representative Greg
Rhineer as the defendant, but Nebeker did not move to
substitute Greg Rhineer for David Rhineer as the estate’s
personal representative until June 10, 2005, nineteen months
after John Rhineer’s death.
¶3 On March 26, 2004, the date that Nebeker originally
intervened in the case, he also obtained a prejudgment writ of
attachment (the Writ) against the Rhineer estate. The Writ
directed the County Sheriff to ‚attach and safely keep all the
property‛ held by the Rhineer estate, including Unit 25-C of the
20120269-CA 2 2014 UT App 244Nebeker v. Summit County
Stonebridge Condominiums (the Condominium Unit). Nebeker
delivered the Writ, along with the legal description of the
Condominium Unit, to the Summit County Sheriff for levy. The
sheriff posted the required notices and promptly submitted the
Writ to the County Recorder for recording, but the sheriff failed
to include the legal description of the Condominium Unit as
required by rule 64C of the Utah Rules of Civil Procedure. Utah
R. Civ. P. 64C(e)(1) (explaining that ‚*t+he officer to whom the
writ is directed must execute the same without delay, and . . .
[attach any r]eal property, standing upon the records of the
county in the name of the defendant, . . . by filing with the
recorder of the county a copy of the writ, together with a
description of the property attached, and a notice that it is
attached‛).3 The recorder discovered the omission shortly
thereafter and notified the sheriff, but the sheriff did not correct
the error until nearly a year later, in March 2005. In the
meantime, on August 20, 2004, the Condominium Unit was sold
to a bona fide third-party purchaser, who bought the property
without notice of the Writ due to the sheriff’s failure to include
the legal description.
¶4 On March 8, 2005, Nebeker filed a notice of claim under
the Governmental Immunity Act of Utah, alleging negligence by
the County Sheriff and the County Recorder in failing to
properly record the Writ. See Utah Code Ann. § 63G-7-401(2)
(LexisNexis 2011) (requiring ‚*a]ny person having a claim
against a governmental entity, or against its employee for an act
or omission occurring during the performance of the employee’s
duties, . . . [to] file a written notice of claim with the entity before
maintaining an action‛).4 After the County rejected Nebeker’s
3. All references to rules 64A and 64C in this decision are to the
version of the rules in effect when the Writ issued in March 2004.
4. As a convenience to the reader, we cite the most recent
codification of any code section where the statute has not
(continued . . .)
20120269-CA 3 2014 UT App 244Nebeker v. Summit County
claim, he filed suit against the County in the Third Judicial
District Court on March 30, 2006. The parties later stipulated to a
dismissal of the case without prejudice, agreeing that ‚due to the
doctrine of ripeness, the statute of limitations regarding
Nebeker’s claims against the Sheriff and Recorder had not yet
begun to run.‛
¶5 On November 5, 2007, Nebeker obtained a default
judgment against the Rhineer estate in the amount of $11.9
million (the Rhineer estate judgment). A little over a month later,
on December 12, 2007, Nebeker refiled his negligence lawsuit
against the County Sheriff and the County Recorder. On March
26, 2008, the district court dismissed the case for lack of
jurisdiction after the court determined that the County, not the
sheriff or recorder, was the proper defendant and that Nebeker’s
2005 notice of claim had not fulfilled the requirement to give
notice to the County itself.
¶6 Nebeker filed a second notice of claim on September 11,
2008, this time naming the County as the negligent party,
through the actions of its sheriff and recorder. The County did
not respond, and on May 21, 2009, Nebeker filed a new
complaint in the district court alleging that the County had
negligently recorded the Writ without the Condominium Unit’s
legal description. The parties filed cross-motions for summary
judgment. The district court granted the County’s motion with
respect to the recorder5 but denied its motion as to the sheriff.
Instead, the court granted Nebeker’s cross-motion on the issue of
liability, holding that the County was responsible to Nebeker for
the sheriff’s failure to properly record the Writ. It reserved
damages for later resolution.
undergone a substantive amendment. When the statute has been
substantively amended, we cite the version then in effect.
5. Nebeker has not appealed the district court’s summary
judgment decision with respect to the recorder.
20120269-CA 4 2014 UT App 244Nebeker v. Summit County
¶7 The County then filed a motion to dismiss the case for
lack of subject matter jurisdiction, asserting that both the Writ
and the Rhineer estate judgment on which Nebeker’s claim was
based were void. In particular, the County claimed that the
district court did not have jurisdiction to enter the Writ because
a personal representative of the estate had not yet been
appointed at the time the Writ was granted and that even if the
court had jurisdiction, a writ of attachment could not be issued
against the property of an estate. See id. § 75-3-104 (Michie 1993)
(‚No proceeding to enforce a claim against the estate of a
decedent or his successors may be revived or commenced before
the appointment of a personal representative.‛); id. § 75-3-812
(‚No execution may issue upon nor may any levy be made
against any property of the estate under any judgment against a
decedent . . . .‛). It further asserted that Nebeker’s embezzlement
claim was barred due to his failure to bring the claim against the
estate’s personal representative within one year of John
Rhineer’s death as required by the probate code. See id. § 75-3-
803(1)(a) (LexisNexis Supp. 2013) (‚All claims against a
decedent’s estate which arose before the death . . . are barred
against the estate, the personal representative, and the heirs and
devisees of the decedent, unless presented within . . . one year
after the decedent’s death.‛). The district court decided,
however, that the validity of the Rhineer estate proceedings,
including the issuance of the Writ and the entry of judgment,
were not subject to collateral attack in this separate proceeding.
The court further decided that even if such an attack were
permissible, the court could still resolve the case because a
district court has subject matter jurisdiction over probate matters
generally. It therefore denied the motion to dismiss.
¶8 Following a bench trial on damages, the district court
entered judgment for Nebeker in the amount of $594,400.21
($335,000 for the loss of the value of the Condominium Unit plus
prejudgment interest and costs). The court then applied the
statutory cap on property damage awards against governmental
entities to reduce the judgment to $221,400. See id. § 63-30d-
604(1)(c) (LexisNexis Supp. 2004) (current version at 63G-7-
20120269-CA 5 2014 UT App 244Nebeker v. Summit County
604(1)(c) (LexisNexis 2011)); Utah Admin. Code R37-4-2, -3(4);
see also Utah Code Ann. § 63G-7-102 (LexisNexis 2011). Both
parties now appeal.
ISSUES AND STANDARDS OF REVIEW
¶9 The County asserts that Nebeker’s negligence claim is
jurisdictionally barred under two theories: first, it asserts that the
claim is barred because Nebeker failed to file a timely notice of
claim under the Governmental Immunity Act of Utah; second, it
contends that the Utah Uniform Probate Code bars recovery
from the County because Nebeker failed to timely file his
underlying claim against the estate. Both theories raise questions
regarding the district court’s subject matter jurisdiction, which is
an issue of law. In re Adoption of Baby E.Z., 2011 UT 38, ¶ 10, 266
P.3d 702. The County’s claim about Nebeker’s compliance with
the probate code, however, attempts to challenge the validity of
the Rhineer estate judgment by raising an issue about the
timeliness of Nebeker’s embezzlement claim that was not raised
in the case in which that judgment was entered. A judgment
may only be attacked in a collateral proceeding if the judgment
is void as opposed to merely voidable. Farley v. Farley, 431 P.2d
133, 137 (Utah 1967) (‚If a judgment be void, it is open to
collateral attack.‛); Bangerter v. Petty, 2010 UT App 49, ¶ 8, 228
P.3d 1250 (‚Errors other than lack of jurisdiction render the
judgment merely voidable, and a voidable judgment can only be
challenged on direct appeal.‛ (citation and internal quotation
marks omitted)). Whether a judgment is void or voidable is a
question of law. See Bangerter, 2010 UT App 49, ¶ 10.
¶10 The County also challenges the district court’s
conclusions and findings on each element of negligence. First, it
argues that the court erred in determining that the sheriff had a
duty to Nebeker. Whether a duty exists is an issue of law, and
we will review the district court’s conclusion that a duty arose
20120269-CA 6 2014 UT App 244Nebeker v. Summit County
for correctness. Jeffs ex rel. B.R. v. West, 2012 UT 11, ¶ 25, 275 P.3d
228.
¶11 The County next asserts that even if it owed a duty to
Nebeker, it did not breach that duty. Although normally ‚breach
. . . [is a] question[] for the fact finder determined on a case-
specific basis,‛ id., ‚when the facts are undisputed and only one
conclusion can be drawn from them,‛ breach becomes a question
of law, Silcox v. Skaggs Alpha Beta, Inc., 814 P.2d 623, 624 (Utah
Ct. App. 1991).
¶12 Third, the County claims that its failure to properly
record the Writ was not a proximate cause of Nebeker’s loss of
the Condominium Unit because Greg Rhineer’s dissipation of
the proceeds of the Condominium Unit’s sale constituted an
intervening and superseding cause of Nebeker’s injury.
Proximate cause is generally a question for the finder of fact but
may be decided as a matter of law if ‚the facts are undisputed
and but one reasonable conclusion can be drawn therefrom.‛ Dee
v. Johnson, 2012 UT App 237, ¶ 3, 286 P.3d 22 (citation and
internal quotation marks omitted).
¶13 Finally, the County appeals the damages award. It argues
that ‚Nebeker was not damaged by *the County because+ his
recovery from the [Rhineer] Estate was not reduced as a result of
the negligent acts of the Summit County Sheriff.‛ The County’s
argument amounts to a challenge to the district court’s findings
of fact. We will not disturb a court’s findings of fact unless they
are clearly erroneous. Utah R. Civ. P. 52(a) (‚Findings of fact,
whether based on oral or documentary evidence, shall not be set
aside unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of the
witnesses.‛).
¶14 On cross-appeal, Nebeker also challenges the damages
award, asserting that the district court erred in reducing the
judgment as it did because his claim was not for ‚property
damage‛ but rather for ‚personal injury,‛ which is subject to a
20120269-CA 7 2014 UT App 244Nebeker v. Summit County
higher statutory damages cap. We review a district court’s
interpretation of a statute for correctness. McQueen v. Jordan
Pines Townhomes Owners Ass’n, Inc., 2013 UT App 53, ¶ 7, 298
P.3d 666.
ANALYSIS
I. Notice of Claim
¶15 The County asserts that Nebeker failed to file a timely
notice of claim. The Governmental Immunity Act of Utah (the
Act) requires ‚*a+ny person having a claim against a
governmental entity . . . [to] file a written notice of claim with the
entity‛ ‚within one year after the claim arises.‛ Utah Code Ann.
§§ 63G-7-401, -402 (LexisNexis 2011). According to the County,
Nebeker’s negligence claim arose as early as late March or early
April 2004 when the sheriff recorded the Writ without a legal
description of the Condominium Unit, but no later than March
2005 when Nebeker filed the original notice of claim against the
County Sheriff and County Recorder. Yet Nebeker did not file a
notice of claim against the County until more than three years
later in September 2008, and the County argues that the filing
was therefore untimely. Nebeker counters that his claim did not
arise until November 2007, when he obtained a judgment against
the Rhineer estate, and that his September 2008 notice of claim
was in fact timely.
¶16 The parties agree that Bank One Utah, NA v. West Jordan
City, 2002 UT App 271, 54 P.3d 135, controls. In Bank One, Upper
Valley Utilities (UVU) contacted West Jordan City about
marking the city’s utility lines before UVU began drilling
activities to install an underground fiber optic conduit. Id. ¶ 3.
West Jordan negligently marked its lines, and as a result, UVU
drilled into the sewer line servicing Bank One. Id. The bank
experienced some clogging in its restrooms a few days later and
contacted West Jordan. Id. ¶ 4. On March 15, 1999, West Jordan
20120269-CA 8 2014 UT App 244Nebeker v. Summit County
inspected the sewer line and reported that it had found no
problems. Id. Bank One then hired a private contractor to
identify the source of the problem with its restrooms. Id. ¶ 5. On
March 22, 1999, the contractor discovered that the sewer line had
been punctured and needed repair. Id. That same day, both UVU
and West Jordan denied responsibility for the puncture, and
Bank One later repaired the sewer line at its own expense. Id.
One year later, on March 22, 2000, Bank One filed a notice of
claim against West Jordan for negligent inspection of the line. Id.
¶ 6. The district court determined that Bank One’s notice of
claim was untimely because the cause of action accrued on
March 15, 1999, when the city’s inspection had taken place. Id.
Bank One appealed, and we reversed, holding that a claim arises
when ‚a cause of action has accrued, which occurs upon the
happening of the last event necessary to complete the cause of
action.‛ Id. ¶ 8 (citation and internal quotation marks omitted).
We concluded that the ‚last event necessary to complete *Bank
One’s+ cause of action‛ happened on March 22, 1999, because
that was when the bank first became ‚aware that its property
had been harmed by the negligently handled drilling work,‛ that
‚West Jordan was responsible for properly marking the lines,‛
and that ‚UVU denied it was at fault.‛ Id. ¶¶ 8, 15 (citation and
internal quotation marks omitted). Although the amount of
damages remained to be determined, ‚all the events necessary to
complete the claim,‛ including the fact of damages, ‚had
occurred by that date.‛ Id. ¶ 15. Prior to that date, we reasoned,
Bank One did not have enough information to link West Jordan
to the sewer issue, particularly in light of the city inspector’s
statement on March 15 that there was no problem with the sewer
line. Id. ¶ 13.
¶17 The parties in this case disagree about when the ‚last
event necessary to complete the cause of action‛ occurred. See id.
¶ 8 (citation and internal quotation marks omitted). The County
contends that Nebeker knew by at least March 8, 2005, when he
filed his original notice of claim, that any interest he may have
been able to claim in the Condominium Unit by virtue of the
Writ had been impaired through the sheriff’s failure to include
20120269-CA 9 2014 UT App 244Nebeker v. Summit County
the legal description in the recorded document. The County
further contends that as a consequence of the Writ’s
shortcomings, Nebeker had been damaged by the sale of the
Condominium Unit to a bona fide purchaser who had no notice
of Nebeker’s interest. According to the County, only the amount
of damages remained to be determined at that point. See id. ¶ 15.
Thus, ‚all the events necessary to complete the claim had
occurred by that date,‛ thereby starting the notice-of-claim clock.
See id. Nebeker counters that ‚all the events necessary to
complete the claim had *not+ occurred‛ because he had not
suffered injury from the mere failure to properly record the
prejudgment writ; rather, harm occurred only at the point when
he attained a judgment that the Writ would have secured had it
been properly recorded. See id. Nebeker points out that a writ of
attachment is an inchoate or contingent lien upon attached
property, James v. Eames, 519 P.2d 236, 238 (Utah 1974), that is
perfected only upon the entry of the judgment it is meant to
secure, In re McNeely, 51 B.R. 816, 819 (Bankr. D. Utah 1985).
Thus, according to Nebeker, damage occurred—and the cause of
action accrued—upon entry of the judgment in November 2007.
¶18 We addressed this very question in Tuttle v. Olds, 2007 UT
App 10, 155 P.3d 893. In the mid-1990s, the State sent out notice
to certain property owners in the Pahvant Valley who were
using more water than their certificated water rights allowed. Id.¶¶ 2–3. The Tuttles were not among those notified. Id. ¶ 3. The
State followed up in 1996 with a letter to all of the property
owners in the valley, including the Tuttles, representing that it
had given notice to all those who were using more water than
they were entitled to and advising that all irrigated lands were
now properly certificated. Id. Two years later, in 1998, the Tuttles
listed their property for sale. Id. ¶ 4. During negotiations with a
prospective buyer, the Tuttles received a second letter from the
State, this time ‚expressing concern about a diesel-powered well
on the Property for which no water rights could be identified.‛
Id. The Tuttles did not disclose the second letter to the buyers
and instead used the State’s 1996 letter as evidence that the
property had sufficient water rights. Id. The buyers purchased
20120269-CA 10 2014 UT App 244Nebeker v. Summit County
the property and, when they later discovered the lack of water
rights for the well, sued the Tuttles, seeking ‚damages for the
decrease in the Property’s value as a result of the inability to
legally irrigate the Property to the extent represented.‛ Id. On
April 30, 2003, the buyers won a judgment against the Tuttles. Id.Just short of a year later, on April 28, 2004, the Tuttles filed a
notice of claim against the State for the State’s negligence in
providing misleading information in the 1996 letter about the
extent of their water rights. Id. ¶ 5. The State filed a motion to
dismiss, asserting that the notice of claim was untimely because
the cause of action arose, at the latest, in 1998 when the State
notified the Tuttles that their well lacked water rights. Id. ¶¶ 5,
11–12. The district court granted the motion. Id. ¶ 5. We
reversed, explaining ‚‘the law does not recognize an inchoate
wrong, and therefore, until there is actual loss or damage
resulting to the interests of another, a claim for negligence is not
actionable.’‛ Id. ¶ 11 (quoting Seale v. Gowans, 923 P.2d 1361,
1364 (Utah 1996)). Rather, when ‚there exists a possibility, even a
probability, of future harm,‛ a ‚plaintiff must wait until some
harm manifests itself.‛ Id. (citation and internal quotation marks
omitted). Thus, it was ‚*o+nly after the . . . judgment was entered
*that the Tuttles+ suffer*ed+ an actual loss.‛ Id. ¶ 12.
¶19 Applying the principles of Tuttle here, we conclude that
Nebeker’s claim against the County did not accrue until the
Rhineer estate judgment was entered in November 2007 because
even though there was a possibility, even a probability, of harm
from the sale of the Condominium Unit unimpeded by the faulty
writ, no actual injury occurred until the judgment was rendered
and no property was available in the estate to satisfy that
judgment. The September 2008 notice of claim was therefore
timely.
II. Enforceability of the Rhineer Estate Judgment
¶20 The County also asserts that it cannot be liable for its
failure to properly record the Writ because Nebeker’s claim for
damages arose from a void judgment against the Rhineer estate.
20120269-CA 11 2014 UT App 244Nebeker v. Summit County
Specifically, the County argues that the court in the Rhineer
estate suit lacked jurisdiction to enter a judgment against the
estate because section 803 of the Utah Uniform Probate Code
bars ‚*a+ll claims against a decedent’s estate which arose before
the death of the decedent . . . unless presented within . . . one
year after the decedent’s death.‛ Utah Code Ann. § 75-3-803(1)(a)
(LexisNexis Supp. 2013).6 And Nebeker did not file his cross-
claim against Greg Rhineer, the actual personal representative of
the estate, until June 10, 2005, more than a year after John
Rhineer’s death in 2003. Nebeker counters that the Rhineer estate
judgment is not subject to collateral attack. In taking this
position, Nebeker adopts the reasoning of the district court in
denying the County’s motion to dismiss on this basis: because a
district court has subject matter jurisdiction over probate matters
generally, the court that handled the Rhineer estate litigation
had jurisdiction to resolve Nebeker’s claims against the estate;
consequently, any challenge to Nebeker’s compliance with
section 803 must have been brought in that case, not in a
collateral proceeding. Thus, assuming for purposes of appeal
that Nebeker failed to timely present his claim, the County’s
ability to attack the Rhineer estate judgment depends on
whether that judgment is thereby rendered void or merely
voidable.7
6. The alternate time period identified by the statute for filing a
claim against the estate does not apply here. See Utah Code Ann.
§ 75-3-803(1)(b) (LexisNexis Supp. 2013).
7. Alternatively, Nebeker argues that he did comply with the
probate code because he presented his claim within one year of
John Rhineer’s death by filing a cross-claim against the estate’s
self-identified personal representative, David Rhineer, in March
2004 as part of the Wells Fargo litigation. David Rhineer had
held himself out as the estate’s personal representative, but it
turned out that he was never actually appointed. Nebeker
asserts that when he later amended his cross-claim to name Greg
Rhineer, the estate’s appointed personal representative, the
(continued . . .)
20120269-CA 12 2014 UT App 244Nebeker v. Summit County
¶21 ‚*A+n attack upon a judgment is regarded as collateral if
made when the judgment is offered as the basis of a claim in a
subsequent proceeding.‛ Tolle v. Fenley, 2006 UT App 78, ¶ 15,
132 P.3d 63 (citation and internal quotation marks omitted). ‚If a
judgment [is] void, it is open to collateral attack.‛ Farley v. Farley,
431 P.2d 133, 137 (Utah 1967); 46 Am. Jur. 2d Judgments § 29
(2006). But ‚*t+he concept of a void judgment is narrowly
construed in the interest of finality.‛ Brimhall v. Mecham, 494 P.2d
525, 526 (Utah 1972). Thus, ‚*e+rrors other than lack of
jurisdiction render the judgment merely voidable, and a
voidable judgment can only be challenged on direct appeal.‛
Bangerter v. Petty, 2010 UT App 49, ¶ 8, 228 P.3d 1250 (citation
and internal quotation marks omitted).
¶22 The County asserts that the underlying judgment is void
because the probate court lacked jurisdiction over Nebeker’s
untimely claim. In support of its position, the County quotes
three paragraphs from In re Estate of Ostler, 2009 UT 82, 227 P.3d
242, and In re Estate of Uzelac, 2005 UT App 234, 114 P.3d 1164,
which both concluded that claims were jurisdictionally barred
due to the respective plaintiffs’ failures to comply with the time
period for bringing a claim against an estate. In Ostler, the Utah
Supreme Court reviewed the district court’s decision to dismiss
a wrongful death claim made by a mother on behalf of her child
against the child’s father’s estate because the mother had not
brought the claim within the time period set forth in section 803
of the probate code. 2009 UT 82, ¶ 1. The supreme court
concluded that section 803 is a ‚nonclaim‛ statute, which
‚imposes a condition precedent to the enforcement of a right of
action, that is to say, the claim must be presented within the time
set in‛ the statute. Id. ¶¶ 17, 21 (citation and internal quotation
marks omitted). The failure to do so ‚operates to deprive a court
amended cross-claim related back to the date Nebeker filed the
original cross-claim. We do not reach this argument because we
conclude that the County has not demonstrated that the Rhineer
estate judgment was void and thus subject to collateral attack.
20120269-CA 13 2014 UT App 244Nebeker v. Summit County
of jurisdiction‛ and bars the claim. Id. ¶ 17 (citation and internal
quotation marks omitted). And the statutory bar ‚can neither
[be] waive[d] . . . nor toll*ed+.‛ Id. (citation and internal quotation
marks omitted); see also In re Estate of Uzelac, 2005 UT App 234,
¶ 12 (affirming the trial court’s denial of the wife’s breach of
contract claim against her husband’s estate because the claim
was barred by the wife’s failure to file it within the time period
set forth by section 803).
¶23 By simply assuming that Ostler and Uzelac are dispositive,
however, the County has failed to address the district court’s
reasoning for denying the County’s motion to dismiss. The
district court explained that the motion to dismiss constituted an
impermissible ‚collateral attack on a final judgment issued in a
*separate+ case‛ because even if the issuance of the Writ was
precluded by the probate code, the district court still had
sufficient jurisdiction over the subject matter of probate
generally to vest it with authority to decide the underlying case.
Nebeker has advanced the same reasoning in his responsive
briefing, arguing that the Rhineer estate judgment was not
subject to collateral attack. The supreme court has confined the
concept of a void judgment to the circumstance where the
rendering court lacked subject matter jurisdiction, that is, where
the court was simply without authority to entertain the kind of
case that it purported to decide. In re Adoption of Baby E.Z., 2011
UT 38, ¶ 30, 266 P.3d 702; see also Bangerter, 2010 UT App 49, ¶ 8
(‚Errors other than lack of jurisdiction render the judgment
merely voidable, and a voidable judgment can only be
challenged on direct appeal.‛ (citation and internal quotation
marks omitted)). The determination of a court’s subject matter
jurisdiction requires evaluation of ‚the relationship between the
claim and the forum‛ to determine whether the subject is one
that the court has authority to decide; a conclusion that the court
was barred from providing the specific relief sought therefore is
not determinative of the subject matter jurisdiction question. In
re Adoption of Baby E.Z., 2011 UT 38, ¶ 31 (citations and internal
quotation marks omitted).
20120269-CA 14 2014 UT App 244Nebeker v. Summit County
¶24 An example of this crucial distinction is found in the
landmark case of Johnson v. Johnson, 2010 UT 28, 234 P.3d 1100—
a case that the County fails to mention, even though the district
court relied on it (and its progeny) in denying the motion to
dismiss and Nebeker cited it extensively in support of his
position that the Rhineer estate judgment was not void. In
Johnson, the district court entered a divorce decree after the
parties had stipulated to the division of their assets; neither
party appealed. Id. ¶¶ 1–2. Six years later, Mr. Johnson filed a
motion to vacate the decree on the basis that the district court
lacked subject matter jurisdiction over the divorce case because
the parties had never been legally married. Id. ¶¶ 2–3. The
district court denied the motion, and Mr. Johnson appealed. Id.
¶ 5. The Utah Supreme Court held that the court that entered the
divorce decree had jurisdiction to do so despite the lack of a
valid marriage because ‚the district court clearly has the
authority to adjudicate divorces,‛ id. ¶¶ 12–13, and ‚*w+here the
court has jurisdiction over the class of case involved, [the]
judgment is not void on the ground that the right involved in the
suit did not embrace the relief granted,‛ id. ¶ 9. Consequently,
the supreme court concluded that Mr. Johnson could not
collaterally attack the underlying divorce decree because that
judgment was merely voidable. Id. ¶ 14.
¶25 Later, in In re Adoption of Baby E.Z., 2011 UT 38, 266 P.3d
702, the supreme court reiterated the Johnson principle when it
stated that ‚*i+n determining whether a court has subject matter
jurisdiction, we focus on whether the court has authority over
the general class of cases to which the particular case at issue
belongs, rather than on the specific facts presented by any
individual case.‛ Id. ¶¶ 33–34. The court then applied this
principle to reach a conclusion that because the district court had
subject matter jurisdiction over adoptions generally, the court’s
adoption ruling was valid despite the fact that another statute
gave jurisdiction under the facts of the case to the
commonwealth of Virginia. Id. ¶¶ 35–39.
20120269-CA 15 2014 UT App 244Nebeker v. Summit County
¶26 In the case before us, the district court applied the
reasoning of Johnson and In re Adoption of Baby E.Z. and
concluded that it had authority over ‚probate proceedings‛ even
if the relief Nebeker sought—a judgment against the Rhineer
estate—might have been legally unavailable due to his failure to
timely present his underlying claims against the estate. While
this position seems to find support in Johnson, we note that
Johnson also recognizes a principle that seems to undermine it: a
district court lacks subject matter jurisdiction even where the
court may have general jurisdiction to resolve the type of
dispute presented ‚when the statute permitting a party to sue
another party requires statutory compliance, as with notice of
claim requirements for suit against governmental entities.‛ 2010
UT 28, ¶ 9. An argument can be made that the probate code’s
time limits for claim filing are the sort of ‚statutory compliance‛
requirements that fit within this principle. See id. But the County
does not make this argument; rather, it simply ignores Johnson
and instead focuses on an argument, based on another line of
cases, that compliance with the probate code’s time limitations is
not subject to waiver. In doing so, the County fails to address a
significant impediment to its position that the judgment is void,
i.e., that a court’s lack of jurisdiction to grant the relief sought
does not automatically invalidate its judgment but may render it
merely voidable and therefore not subject to collateral attack.
¶27 The County’s use of unanalyzed quotes from Ostler and
Uzelac to support its position that the Rhineer estate judgment
was void does not satisfy its obligation to thoroughly analyze
the case law and its application to the facts of the present case.
See Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 25, 254 P.3d 161(‚Meaningful analysis requires not just bald citation to authority
but development of that authority and reasoned analysis based
on that authority.‛ (citation and internal quotation marks
omitted)). This conclusion is highlighted by the fact that, in
response, Nebeker analyzed a competing position, adopted by
the district court and supported by the landmark Johnson case,
which demonstrates that the subject is much more complex than
the County had portrayed it. And even if ‚a careful analysis of
20120269-CA 16 2014 UT App 244Nebeker v. Summit County
[Johnson] and similar cases might convince us that the facts of
this case mandate one result or the other, we will not conduct
that analysis on a party’s behalf.‛ See State v. Dennis, 2007 UT
App 266, ¶ 14, 167 P.3d 528. We therefore affirm the district
court’s decision that the Rhineer estate judgment was not subject
to collateral attack.
III. Duty
¶28 The County next challenges the district court’s judgment
on the basis that the County had no duty to Nebeker to record
the Writ. According to the County, Nebeker was never entitled
to the Writ he obtained on March 26, 2004, because the probate
code precludes the issuance of a writ of attachment against the
property of an estate.8 Without a legitimate writ to create a lien
on the Condominium Unit, the County contends, Nebeker
cannot obtain damages from the loss of the unit that the Writ
was intended to prevent.
¶29 There is some basis for the County’s argument that the
issuance of a writ in a probate matter is improper in both the
rules governing issuance of writs and the probate code. For
instance, the versions of rules 64A and 64C of the Utah Rules of
Civil Procedure in effect at the time Nebeker obtained the Writ
in March 2004 permit a ‚plaintiff, at any time after the filing of a
complaint . . . [, to] have the property of the defendant, not
exempt from execution, attached as security for the satisfaction of
any judgment that may be recovered.‛ Utah R. Civ. P. 64C
8. The County does not assert on appeal, as it did in support of
its motion to dismiss, that the Writ was void due to its being
issued prior to the appointment of a personal representative for
the estate.
20120269-CA 17 2014 UT App 244Nebeker v. Summit County
(emphasis added).9 The probate code identifies the property of
an estate as exempt from execution: ‚No execution may issue
upon nor may any levy be made against any property of the
estate under any judgment against a decedent . . . .‛ Utah Code
Ann. § 75-3-812 (Michie 1993). Other provisions of the probate
code offer alternative protections to creditors. See, e.g., id. §§ 75-
3-501 to -505 (court-supervised administration); id. § 75-3-607
(order restraining personal representative’s authority in
administration of estate, including asset distribution); id. § 75-3-
605 (demand for payment of bond by personal representative);
id. § 75-3-611 (termination of personal representative’s
appointment by removal). The Writ, however, was issued in the
course of the Rhineer estate litigation, and, as discussed above,
the County has not persuaded us that the Rhineer estate
judgment or its proceedings are open to collateral attack. See
supra ¶ 27. Thus, we must accept that the writ was issued,
whether or not the law otherwise permitted it.
¶30 A question nevertheless remains about whether the
County had a legal duty to Nebeker, the breach of which is
answerable in damages. Rule 64C provides that attachment is
made on real property when the ‚officer to whom the writ is
9. Rule 64A specifically governs prejudgment writs of
attachment. Utah R. Civ. P. 64A (Prejudgment writs of replevin,
attachment and garnishment). In March 2004, when the Writ was
issued in this case, rule 64A only provided a means to ensure
‚procedural due process . . . in the issuance of prejudgment writs
of . . . attachment‛ and did not outline the grounds for issuing
one. Id. purpose. The grounds for issuing a writ of attachment,
whether pre- or post-judgment, were outlined in rule 64C. Id. R.
64C(a). In November 2004, both rules were repealed and
reenacted. Id. R. 64A repeals and reenactments; id. R. 64C repeals
and reenactments. In its reenacted form, rule 64A contains the
same grounds for issuing a prejudgment writ of attachment as
rule 64C contains for issuance of writs of attachment generally.
20120269-CA 18 2014 UT App 244Nebeker v. Summit County
directed . . . file[s] with the recorder of the county [in which the
defendant’s deed to the property is recorded] a copy of the writ, together
with a description of the property attached, and a notice that is
attached‛ and ‚by leaving a similar copy of the writ, description
and notice with an occupant of the property, if there is one, and
if not, then by posting the same in a conspicuous place on the
property attached.‛ Utah R. Civ. P. 64C(e)(1) (emphasis added).
Rule 64C certainly imposes an obligation upon the sheriff to
record a writ with the legal description of the property, and in
the Writ itself, the court orders the sheriff to ‚attach and safely
keep all of the property of the Estate of John M. Rhineer,‛
including the Condominium Unit. But the fact that the law
requires the sheriff to comply with court orders does not
necessarily create a duty, or establish a standard of care owed, to
a third person. See Normandeau v. Hanson Equip., Inc., 2009 UT 44,
¶ 19, 215 P.3d 152 (citing W. Page Keeton, Prosser and Keeton on
the Law of Torts § 53, at 356 (5th ed. 1984) (describing duty as ‚an
obligation, to which the law will give recognition and effect, to
conform to a particular standard of conduct toward another‛
(citation and internal quotation marks omitted))).
¶31 The problem for the County, however, is that the district
court determined that rule 64C does, in fact, create a legal duty
to the writ holder and identifies the standard of care for fulfilling
that duty—recording the writ with the legal description. And the
County has not provided this court with any legal analysis or
authority to rebut that determination.10 Instead, the County
simply concludes that based on the rule’s plain language, it ‚in
no way creates any affirmative duty on behalf of Summit
County.‛
10. The County does offer some case authority in support of its
position that the sheriff did not owe any duty to Nebeker under
the common law. The basis of the district court’s duty
determination, however, was rule 64C, not the common law.
20120269-CA 19 2014 UT App 244Nebeker v. Summit County
¶32 Although duty is a legal question that an appellate court
is generally equipped to resolve, whether a duty exists is not a
simple issue. ‚A court determines whether a duty exists by
analyzing the legal relationship between the parties, the
foreseeability of injury, the likelihood of injury, public policy as
to which party can best bear the loss occasioned by the injury,
and other general policy considerations.‛ Normandeau, 2009 UT
44, ¶ 19 (citation and internal quotation marks omitted). In other
words, ‚*l+egal duty . . . is the product of policy judgments
applied to relationships.‛ Id. (citation and internal quotation
marks omitted). ‚A court’s conclusion that duty does or does not
exist is an expression of the sum total of those considerations of
policy which lead the law to say that the plaintiff is [or is not]
entitled to protection.‛ Webb v. University of Utah, 2005 UT 80,
¶ 9, 125 P.3d 906 (alteration in original) (citations and internal
quotation marks omitted).
¶33 The County has not offered any analysis of the policy
considerations that must inform a determination of whether the
County’s obligation to properly record the Writ (inhering in the
requirements of rule 64C and in the court’s order incorporated in
the Writ itself) rose to the level of an actionable duty to Nebeker.
And although this court can identify some of the implications of
imposing or not imposing a duty on this relationship, it is
inadvisable to do so in the first instance without adequate input
from the parties who have a vested interest in the outcome. See
State v. Robison, 2006 UT 65, ¶¶ 23–24, 147 P.3d 448 (explaining
that appellate courts must resist the temptation to reverse on an
insight of their own invention ‚without examination [of] the
quality of *that+ insight‛). Furthermore, because the County is a
governmental entity, other doctrines, such as the public duty
doctrine11 and the governmental immunity act, may complicate
this analysis.
11. Utah’s public duty doctrine imposes a specific duty of care
on governmental entities only when there is a specific
connection between the agency and an individual, thereby
(continued . . .)
20120269-CA 20 2014 UT App 244Nebeker v. Summit County
¶34 Resolving this issue would thus require that we step
outside our role as a neutral reviewing body and ‚assume *the+
. . . burden of argument and research‛ on the County’s behalf.
See Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (citation and
internal quotation marks omitted). To do this would ‚distort
[the+ fundamental allocation of benefits and burdens‛ that lies at
the heart of our appellate system, and it is therefore a task we
should not undertake, except under extraordinary
circumstances, which we do not find to be present here.12 See
Robison, 2006 UT 65, ¶¶ 21–23; U.S.A. United Staffing Alliance,
providing protection for governmental activities benefitting the
public at large. Day v. State, 1999 UT 46, ¶ 12, 980 P.2d 1171. The
public duty doctrine, however, does not apply where a
governmental actor ‚causes injury to persons who stand so far
apart from the general public that [they can be described] as
having a special relationship to the governmental actor.‛ Webb v.
University of Utah, 2005 UT 80, ¶ 11, 125 P.3d 906; Day, 1999 UT
46, ¶ 12.
The County does make an assertion that the public duty
doctrine prohibits Nebeker’s recovery. It does so, however, in
the context of asserting that it had no duty to Nebeker under the
common law to record the Writ. As we have just mentioned, the
determination that the County had a duty to Nebeker was not
based in common law. The County does not address how the
public duty doctrine interplays with the question of whether an
actionable duty exists under these circumstances.
12. The district court apparently found the County’s duty
analysis lacking in the same regard. In its order granting
summary judgment, the court noted that the County had
‚agreed‛ at oral argument that ‚it had not addressed its liability
via the Sheriff.‛ The County later attempted to correct that
oversight by submitting a copy of a statute it deemed pertinent
but without including any supporting argument. The district
court did not find the statutory language alone to be persuasive,
nor do we.
20120269-CA 21 2014 UT App 244Nebeker v. Summit County
LLC v. Workers’ Comp. Fund, 2009 UT App 160, ¶ 14, 213 P.3d 20.
As a result, we affirm, without further analysis, the district
court’s conclusion that the County owed Nebeker a duty to
record the Writ.
IV. Breach
¶35 The County next asserts that if it had an actionable duty,
there was no breach because the sheriff’s recording of the Writ,
even if defective, was sufficient to satisfy its duty. To support its
position, the County cites two provisions in the recording
statutes and four cases that it claims demonstrate that a recorder
would not be in breach of any duty if he or she recorded the Writ
without the legal description because recording is merely a
ministerial task that does not give rise to liability. The County
then asks us to extend that logic to the County Sheriff, arguing
that because the recorder is authorized to record a defective writ,
the sheriff cannot be liable for presenting the Writ without the
property’s legal description. The County’s argument is
unpersuasive.
¶36 The first statutory provision that the County cites
provides that the ‚county recorder may refuse to accept a
document for recording if the document does not‛ ‚contain*+ a
legal description of the real property,‛ Utah Code Ann. § 57-3-
105(2), (4) (LexisNexis Supp. 2013), while the second one states
that ‚[a] recorded document imparts notice of its contents
regardless of any defect, irregularity, or omission in its
execution, attestation, or acknowledgment,‛ id. § 57-4a-2
(LexisNexis 2010). The County argues that the permissive
language ‚may refuse‛ in the first provision implies that the
recorder may choose not to ‚refuse‛ but may instead record a
document that lacks a legal property description. It then cites
several cases, which it contends demonstrate that recording is a
ministerial act that ‚simply does not rise to negligent conduct,
regardless of the general duties that may be imposed.‛
According to the County, these cases reinforce the statutory
20120269-CA 22 2014 UT App 244Nebeker v. Summit County
provisions that excuse a recorder from liability when he or she
records a defective writ.
¶37 Even assuming that the County’s interpretation of the
statutory provisions and cases is accurate with respect to the
recorder—which we do not decide—the same logic cannot
excuse the sheriff’s failure to properly record the Writ. First, the
plain language of the pertinent statutes and rules does not
support the County’s position. When construing a statute or a
rule, we ‚assume that the legislature used each term in the
statute advisedly‛ and we will ‚read the statute’s words literally
unless such a reading is unreasonably confused or inoperable.‛
In re Adoption of R.M., 2013 UT App 27, ¶ 6, 296 P.3d 757 (citation
and internal quotation marks omitted). The district court
determined that a duty arose out of rule 64C of the Utah Rules of
Civil Procedure, which directed the sheriff to attach the subject
property ‚by filing with the recorder of the county [in which the
defendant’s deed to the property is recorded,] a copy of the writ
together with a description of the property attached,‛ Utah R.
Civ. P. 64C(e)(1). The recording statutes provide further
instruction on how that duty is to be carried out: ‚A *real
property] document . . . is entitled to be recorded . . . only if the
document contains a legal description of the real property,‛ and
a person ‚may not present . . . a document for recording if the
document does not conform to this section.‛ Utah Code Ann.
§ 57-3-105(2), (4) (LexisNexis Supp. 2013).
¶38 A plain reading of both rule 64C and the recording
statutes thus demonstrates that the sheriff is obligated to present
a writ containing the property’s legal description in order for
that writ to be eligible for recording. Although the recording
statutes seem to excuse the county recorder’s recording of a writ
that does not meet the legal description requirement, they say
nothing about the requirement that the sheriff present for
recording a writ in compliance with the statute. See id. § 57-3-
105(4). Rather, the first provision states that as a condition of
eligibility for recording, a document must ‚contain*+ a legal
description of real property‛ and simply gives the recorder the
20120269-CA 23 2014 UT App 244Nebeker v. Summit County
authority to reject a document that fails to comply with this
requirement without imposing a duty to do so. Id. § 57-3-105(2),
(4). Thus, in providing that ‚*a+ person may not present and a
county recorder may refuse to accept a document for recording if
the document does not conform to this section,‛ id. § 57-3-105(4)
(emphasis added), the statute emphasizes the requirement that
the presenter comply with the law while offering protection to
the recorder if he or she fails to observe that the document, for
example, is lacking the required legal description. Cf. Jackson v.
County of Amador, 112 Cal. Rptr. 3d 506, 511–12 (Ct. App. 2010)
(declining the plaintiff’s request to hold the county recorder
liable for recording a power of attorney without the proper
signature because ‚*i+t has never been the duty of the county
recorder to make determinations of that type of legal
sufficiency‛ (alteration, citation, and internal quotation marks
omitted)). It does not say or reasonably imply that a recorder’s
acceptance of a nonconforming document exonerates the person
presenting that document from the requirements of the statute.
¶39 And the cases cited by the County do not support a
reading of our statute that excuses the presenter—in this case,
the sheriff—from his or her obligation to include ‚a legal
description of the real property‛ on the Writ, see Utah Code Ann.
§ 57-3-105(2); Utah R. Civ. P. 64C(e)(1), merely because the
recorder recorded the Writ without such a description. See, e.g.,
Jackson, 122 Cal. Rptr. 3d at 511–12; Schneider v. County of Elko, 75
P.3d 368, 383 (Nev. 2003) (holding that the county recorder did
not have a ‚duty to determine whether a *subdivision map+
serves its intended purpose, given that recording a document is
purely a ministerial task‛ despite the statute’s provision that the
recorder may be liable for ‚willfully, negligently, or untruly
record*ing+ a document in a manner other than as directed‛ by
statute), abrogated on other grounds by Buzz Stew, LLC v. City of N.
Las Vegas, 181 P.3d 670 (Nev. 2008). The lone Utah case cited by
the County involves a dispute between a waste management
service district and Bountiful City about the payment of service
fees after the city failed to record a resolution and plat to annex
certain land that had been served by the service district. Davis
20120269-CA 24 2014 UT App 244Nebeker v. Summit County
Cnty. Solid Waste Mgmt. v. City of Bountiful, 2002 UT 60, ¶¶ 2–4,
52 P.3d 1174. The County cites this case for the proposition that
because recording is purely a ministerial task, a governmental
entity cannot be liable for any errors that arise in the recording.
The Utah Supreme Court, however, rejected Bountiful City’s
contention that recording was only a ministerial task; rather, the
court held that the act of recording was essential to the city’s
claim to have annexed the land.13 Id. ¶ 19.
¶40 Accordingly, we decline to disturb the district court’s
determination that the sheriff’s failure to deliver the Writ to the
county recorder with the required legal description ‚amounted
to a breach of duty.‛
V. Proximate Cause
¶41 The County next contends that its failure to record the
Writ was not the proximate cause of Nebeker’s injury, because
13. To the extent that the County may have intended its citation
to Utah Code section 57-4a-2 to advance an argument that the
sheriff’s omission of the legal description resulted in no harm
because once the recorder chose to record the Writ without the
legal description, the recorded document is effective to impart
notice of its contents, we find that argument unpersuasive as
well. It is difficult to ascertain how the fact that a defective
recorded document still imparts notice of its contents remedies
the sheriff’s failure to include the legal description in the
recorded document. Notice of the Writ can be given only if its
recording connects it to a particular parcel of land. See Utah
Code Ann. § 57-4a-2 (LexisNexis 2010) (explaining that ‚defect*s+
... in *a document’s+ execution, attestation, or
acknowledgement‛ will not affect its ability to impart notice if
the document is recorded against the property). It is undisputed
that the Writ did not give notice, actual or constructive, to the
bona fide purchaser of the Condominium Unit because the Writ
was never connected to the unit by a legal description.
20120269-CA 25 2014 UT App 244Nebeker v. Summit County
the actual cause of the loss was Greg Rhineer’s sale of the
Condominium Unit and dissipation of the proceeds. According
to the County, Greg Rhineer’s sale of the Condominium Unit
and his wrongful dissipation of the proceeds of that sale
constituted an intervening act that superseded the sheriff’s
actions as a proximate cause of Nebeker’s injury.
¶42 A person can be legally liable for his negligent act if the
act was the ‚efficient, producing cause‛ of the injury, CSX
Transp., Inc. v. McBride, 131 S. Ct. 2630, 2642 (2011) (internal
quotation marks omitted), meaning ‚that cause which, in a
natural and continuous sequence, unbroken by any new cause,
produced the injury, and without which the injury would not
have occurred,‛ Bunker v. Union Pac. R.R. Co., 114 P. 764, 775
(Utah 1911). See also Holmstrom v. C.R. England, Inc., 2000 UT App
239, ¶ 36, 8 P.3d 281 (explaining that the defendant’s negligence
is a proximate cause if the negligence ‚played a substantial role
in causing the *plaintiff’s+ injuries‛). ‚[A] more recent negligent
act may break the chain of causation and relieve the liability of a
prior negligent actor under the proper circumstances.‛ Godesky v.
Provo City Corp., 690 P.2d 541, 544 (Utah 1984). But an
‚intervening act does not automatically become a superseding
cause that relieves the original actor.‛ Id. at 545. Rather, a
negligent actor remains responsible for the foreseeable negligent
acts of another, later actor. Id.; Cruz v. Middlekauff Lincoln–
Mercury, Inc., 909 P.2d 1252, 1257 (Utah 1996) (‚An intervening,
independent, and efficient cause ordinarily severs whatever
connection there may be between the defendant’s negligence
and the plaintiff’s injuries, unless the intervening cause was
foreseeable.‛). In that case, both actions become concurring
causes, and each actor can be held liable for his or her own
negligence. Godesky, 690 P.2d at 545–46.
¶43 Here, the district court concluded that ‚it was foreseeable
that [the Condominium Unit would be sold] . . . without a
properly recorded physical description in the Writ‛ because
‚without such a foreseeable act, there would have been no need
to obtain the Writ in the first place.‛ The very purpose of such a
20120269-CA 26 2014 UT App 244Nebeker v. Summit County
writ is to provide a plaintiff with ‚security for the satisfaction of
any judgment that he may recover,‛ In re McNeely, 51 B.R. 816,
818 (Bankr. D. Utah 1985), and the possibility that the assets of a
defendant might be disposed of, through legal means or
otherwise, is a foreseeable risk of failing to properly record such
a writ. Rule 64C itself anticipates the possibility that a defendant
may act illegally to put assets out of reach of a creditor by
providing that a writ may issue when it is shown that the
defendant ‚is about to assign, dispose of or conceal, any
property with intent to defraud creditors.‛ Utah R. Civ. P.
64C(a)(4). Thus, the rule’s requirement that the sheriff record a
writ with the legal description of the subject real property
safeguards the writ holder’s interest by notifying all the world of
the encumbrance. Id. R. 64C(e)(1); see also Utah Code Ann. § 57-3-
102(1) (LexisNexis 2010). Without the recording, the purpose of a
writ can be thwarted, perhaps most effectively by someone
tempted to act unlawfully in dissipating real property assets
entrusted to his or her care. Because Greg Rhineer’s sale of the
Condominium Unit and dissipation of the proceeds were
foreseeable consequences of the County’s failure to properly
record the Writ—indeed, were precisely the result the Writ was
designed to prevent—his actions did not amount to a
superseding cause that absolves the County of liability.
Accordingly, we affirm the district court’s conclusion that the
County’s negligent recording was a proximate cause of
Nebeker’s injury.
VI. Damages
¶44 Both the County and Nebeker have appealed the district
court’s damages decision.
A. The County’s Appeal
¶45 The County asserts that it cannot be liable in damages to
Nebeker because despite the issuance of the Writ, Nebeker was
merely an unsecured creditor and thus would not have been able
to collect against the insolvent Rhineer estate in any event. See
generally Wasatch Livestock Loan Co. v. Nielson, 56 P.2d 613, 617
20120269-CA 27 2014 UT App 244Nebeker v. Summit County
(Utah 1936) (‚One who was a mere general creditor before the
death remains such after it. His position with respect to other
creditors remains unchanged.‛), amended in part by 61 P.2d 616(Utah 1936); id. at 620 (‚*I+t is apparent that a creditor, after the
death of his debtor, is precluded from securing a specific lien on
the property of the estate by attachment, execution, or other legal
process . . . [,] that is, claims presented and allowed have the
same standing whether they be founded upon a judgment or
claims allowed and approved by the administrator and the
court.‛); Sheehan v. Gamberg, 677 P.2d 254, 256 (Alaska 1984)
(interpreting a provision of the Alaska probate code, identical to
Utah’s, precluding execution or levy on an estate, to mean that a
judgment holder cannot obtain a judgment lien and execute
upon it after the decedent’s death, because the purpose of the
statute ‚is to freeze the status of all claims at the death of the
debtor in order to provide for the orderly administration of the
estate‛). The County argues that the estate was insolvent and
unsecured creditors were not paid on their claims because the
estate owed federal and state tax debts in excess of all the estate’s
assets, including the Condominium Unit. In other words, even if
the Condominium Unit had been preserved, there were too few
assets to satisfy the Rhineer estate’s numerous tax debts, and
thus none of the Condominium Unit’s proceeds could be paid
toward the claims of unsecured creditors such as Nebeker.
Further, the County argues, the Condominium Unit was already
encumbered by a mortgage at the time the Writ was issued,
making it unlikely that the unit would have become part of the
Rhineer estate, and thus available for distribution, had the Writ
been properly recorded.
¶46 The district court rejected the same arguments following a
bench trial, making findings of fact about the debt load of the
estate contrary to the County’s position. On appeal, the County
asserts that the district court’s findings of fact are clearly
erroneous. We will conclude that ‚*a+ trial court’s factual
determinations are clearly erroneous only if they are in conflict
with the clear weight of the evidence, or if this court has a
definite and firm conviction that a mistake has been made.‛
20120269-CA 28 2014 UT App 244Nebeker v. Summit County
Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (citation
and internal quotation marks omitted). To prevail on such a
challenge, the County must acknowledge the evidence that
supports the findings and demonstrate ‚a basis for overcoming
the healthy dose of deference owed to factual findings.‛ State v.
Nielsen, 2014 UT 10, ¶¶ 41–42 (noting that an appellant is
unlikely to ‚carry its burden of persuasion on appeal if it fails to
marshal‛). The County has failed to carry its burden of
persuasion.
¶47 The district court found that although the Condominium
Unit had been encumbered by a mortgage at one time, it was
unencumbered when the unit was sold; that in the absence of a
properly recorded writ, the unit had been sold to a bona fide
third-party purchaser and the proceeds dissipated by the
personal representative; and that the unit had a fair market value
of $335,000 at the time of sale in August 2004. The County now
contends that the Condominium Unit was in fact encumbered at
the time of the Writ’s issuance. The County, however, neither
cites any evidence in the record that supports its position nor
acknowledges the record evidence (an accounting showing that
the mortgage on the unit had been satisfied) that supports the
court’s finding that the unit was not encumbered by the
mortgage when the unit was sold. The County therefore has
failed to show that the court’s finding that the Condominium
Unit was unencumbered was clearly erroneous. See id.; Kimball,
2009 UT App 233, ¶ 14.
¶48 The district court also rejected the County’s assertion that
the Rhineer estate would have been required to apply all of its
assets, including any proceeds from the sale of the
Condominium Unit, to satisfy various federal and state tax liens.
The court found that the IRS had never filed a federal tax lien
against John Rhineer or the Condominium Unit and that the
County had ‚offered no evidence that the Rhineer Estate had
more federal tax debt than assets.‛ It also found that although
there had been twenty-one state tax judgments against John
Rhineer individually, they all had been voluntarily dismissed or
20120269-CA 29 2014 UT App 244Nebeker v. Summit County
had expired. On appeal, the County asserts that there are in fact
numerous tax liens that would have consumed all of the estate’s
assets. However, at one of the two record citations provided by
the County—an accounting by the estate’s personal
representative—the personal representative indicated that
although John Rhineer had not paid federal income taxes for a
period of years, the IRS ‚has not asserted a claim against the
Rhineer Estate‛ and ‚there is no record *of+ any federal tax liens
. . . recorded against John Rhineer or the Rhineer Estate.‛ The
accounting also indicates that all but two of the state tax liens
had been released.14 Because there is factual evidence to support
the findings, the findings are not clearly erroneous. Kimball, 2009
UT App 233, ¶ 14.
¶49 We therefore affirm the district court’s determination that
the County was required to pay the damages Nebeker incurred
due to the County’s negligence in recording the Writ on the
Condominium Unit.
B. Nebeker’s Cross-appeal
¶50 The district court calculated Nebeker’s damages from the
loss of the unit to be $594,400.21. Under the Governmental
Immunity Act of Utah, however, the maximum allowable
judgment for ‚property damage‛ is $221,400, while ‚personal
injury‛ damages are capped higher, at $553,500. Utah Code Ann.
§ 63-30d-604(1)(c) (LexisNexis Supp. 2004) (current version at id.§ 63G-7-604(1)(c) (LexisNexis 2011)); Utah Admin. Code R37-4-2,
-3(4). The court applied the property damage cap and awarded
Nebeker $221,400. Nebeker challenges the district court’s
14. The district court stated in its findings of fact and conclusions
of law that the two remaining liens had expired and been
released by the time of trial. The County has not specifically
challenged that determination.
20120269-CA 30 2014 UT App 244Nebeker v. Summit County
decision that the statutory cap for property damage, rather than
the cap for personal injury, applied to his judgment.
¶51 When construing a statute, we ‚assume that the
legislature uses each term in the statute advisedly‛ and we will
‚read the statute’s words literally unless such a reading is
unreasonably confused or inoperable.‛ In re Adoption of R.M.,
2013 UT App 27, ¶ 6, 296 P.3d 757 (citation and internal
quotation marks omitted). The Act defines the terms ‚property
damage‛ and ‚personal injury.‛ ‚Property damage‛ means
‚injury to, or loss of, any right, title, estate, or interest in real or
personal property.‛ Utah Code Ann. § 63G-7-102(8) (LexisNexis
2011). ‚Personal injury‛ is defined to include everything else:
‚an injury of any kind other than property damage.‛ Id. § 63G-7-
102(6).
¶52 Nebeker asserts that the sheriff’s negligence did not injure
a ‚right, title, estate, or interest in real . . . property,‛ see id.
§ 63G-7-102(8), because the Condominium Unit was never levied
upon pursuant to the Writ and, even if the Writ had been
properly recorded, Nebeker would have obtained only a
‚contingent lien in the‛ Condominium Unit that ‚would not
have given [him] a title, estate, or other ownership right or
interest‛ in property.15 We are not persuaded.
¶53 Nebeker sought, and received, damages resulting from
the County’s failure to properly record the Writ. Had the Writ
been properly recorded, Nebeker would have obtained a lien,
albeit an inchoate one, upon the property: ‚*W+hen property is
levied upon pursuant to a writ of attachment, plaintiff acquires
an inchoate or contingent lien or interest in the property
15. In making his argument, Nebeker assumes that had the Writ
been properly filed, he would have been a secured creditor. He
does not address how the damages cap might be applied if he is
only an unsecured creditor, as the County contends. We
therefore do not reach that issue.
20120269-CA 31 2014 UT App 244Nebeker v. Summit County
attached,‛ Jensen v. Eames, 519 P.2d 236, 238 (Utah 1974); such an
interest ‚is a vested interest of the attaching creditor, which
affords specific security for the satisfaction of the debt,‛ In re
McNeely, 51 B.R. 816, 819 (Bankr. D. Utah 1985). Then, once the
judgment was entered in Nebeker’s favor, ‚the attachment lien
*would have+ merge*d+ with the judgment lien,‛ thereby
‚perfect*ing+ the inchoate lien‛ as of the date the Writ was
issued. See id. A judgment lien is clearly a property interest.
Black’s Law Dictionary 1006 (9th ed. 2009) (defining ‚lien‛ as a
‚legal right or interest that a creditor has in another’s property‛).
And the fact that the lien was merely inchoate at the time the
Writ was improperly recorded does not change the fundamental
character of Nebeker’s interest. Nebeker’s loss is not simply the
inchoate writ of attachment but also the failure of that inchoate
interest to become an actual lien upon the property once the
judgment entered. Just as a seed represents the plant it will grow
into, the inchoate interest arising from a writ of attachment
cannot be defined except in terms of the property interest it is
meant to become, i.e., ‚*a+ property interest that has not yet
vested,‛ see id. at 886 (defining inchoate interest). Thus, because
the damages Nebeker sought cannot be meaningfully
conceptualized or defined as anything other than the loss of a
legal ‚right . . . or interest in real property,‛ Utah Code Ann.
§ 63G-7-102(8), we conclude that the district court properly
capped Nebeker’s damages according to the property damage
limit.
CONCLUSION
¶54 For the foregoing reasons, we affirm the district court’s
judgment.
20120269-CA 32 2014 UT App 244Nebeker v. Summit County
ON PETITION FOR REHEARING
¶55 After issuance of the decision in this case, the County filed
a petition for rehearing, asserting that in footnote 14 of our June
12, 2014 decision, we ‚overlooked or misapprehended a critical
fact.‛ In response to the petition, we have elected to strike the
footnote previously numbered 14 from the decision. Except for
striking the footnote, our decision remains unchanged. We
address the County’s arguments on petition for rehearing as
follows.
¶56 The previous version of footnote 14 read,
The district court awarded Nebeker
damages for the loss of the Condominium Unit on
the basis that ‚he would have had a lien‛ but for
the County’s failure to perform the ‚duty *it+ owed
to Mr. Nebeker.‛ The County counters that
regardless of the Writ, Nebeker was an unsecured
creditor who was only entitled to his pro rata share
of the assets that were available for unsecured
creditors as a whole. Even if the district court erred
in treating Nebeker as a secured creditor—an issue
we need not resolve—any error was harmless
because the court also concluded that none of the
other persons who asserted unsecured claims on
the estate had their claims approved so as to allow
them to participate in any proportional distribution
of estate assets. Thus, regardless of whether the
County’s proper recording of the Writ would have
given Nebeker the status of a secured creditor with
the Condominium Unit as collateral, or whether
Nebeker would have had merely an unsecured
claim against the unencumbered assets of the estate
available for distribution (apparently limited to the
Condominium Unit) to the class of unsecured
creditors, of which Nebeker was the sole member,
he was entitled to the full value of the unit.
20120269-CA 33 2014 UT App 244Nebeker v. Summit County
¶57 The County challenges our conclusion that any error in
the district court’s decision to treat Nebeker as a secured creditor
‚was harmless because the court also concluded that none of the
other persons who asserted unsecured claims on the estate had
their claims approved so as to allow them to participate in any
proportional distribution of estate assets.‛ It asserts that the
district court never found that there were no other unsecured
creditors. According to the County, the effect of our conclusion
that the district court made such a finding was to ‚allow*+
Nebeker to obtain . . . money based on the loss of an Estate asset
to the exclusion of at minimum the two other creditors with
allowed claims.‛ In his response, Nebeker conceded ‚that two
other [unsecured] claims against the Estate were approved.‛
¶58 Despite footnote 14’s indication otherwise, it is apparent
that the County is making an argument about Nebeker’s
entitlement to only a pro rata share of any distribution for the
first time in a petition for rehearing. At no point prior to
rehearing did the County assert that Nebeker’s entitlement to the
Rhineer estate judgment was limited to his pro rata share; it
simply argued that he was entitled to no recovery at all.16 In its
initial briefing, the County argued that governing law dictates
that upon the debtor’s death, ‚all unsecured creditors*’+ claims
be treated equally.‛ We do not disagree with this proposition.
See supra ¶ 45 (citing Wasatch Livestock Loan Co. v. Nielson, 56 P.2d
613, 617 (Utah 1936) (‚One who was a mere general creditor
before the death remains such after it. His position with respect
to other creditors remains unchanged.‛), amended in part by 61
P.2d 616 (Utah 1936); id. at 620 (‚*I+t is apparent that a creditor,
after the death of his debtor, is precluded from securing a
specific lien on the property of the estate by attachment,
execution, or other legal process . . . [,] that is, claims presented
and allowed have the same standing whether they be founded
16. Indeed, nowhere in the opening or reply brief did the County
use the words ‚proportionate, ‛ ‚proportional,‛ or ‚pro rata.‛
20120269-CA 34 2014 UT App 244Nebeker v. Summit County
upon a judgment or claims allowed and approved by the
administrator and the court.‛)). But the County made this
argument only in the context of its claim that the Writ was
improperly issued and so it did not give Nebeker secured
creditor status, which meant that Nebeker could only recover
whatever he would have been entitled to as an unsecured
creditor of the estate. Because the County believed that the
unsecured creditors would not have received any distribution
from the estate even if the Condominium Unit had been
preserved, see supra ¶ 45, it argued that Nebeker was not entitled
to collect anything from the County.
¶59 In other words, the County opted to pursue challenges to
the propriety of the Writ’s issuance, the resulting judgment, and
the County’s liability on that judgment, rather than to address
how any judgment, if sustained, might be allocated among the
creditors. In making this choice, the County did not raise any
claims regarding proportionate distribution. Furthermore, it
neither challenged the district court’s finding that Nebeker was
the only unsecured creditor that had reduced its claim to
judgment nor contested the district court’s implied legal
conclusion that, as a result, there simply were no unsecured
creditors, other than Nebeker, who had any viable claim to a
share in any recovery from the County.
¶60 We will not now consider such a challenge raised for the
first time on rehearing. We routinely decline to consider an issue
raised for the first time in a reply brief. Allen v. Friel, 2008 UT 56,
¶ 8, 194 P.3d 903 (‚It is well settled that issues raised by an
appellant in the reply brief that were not presented in the
opening brief are considered waived and will not be considered
by the appellate court.‛ (citation and internal quotation marks
omitted)). And we see no reason to do so when the issue is
presented in the first instance in a petition for rehearing. See
generally Harper v. Evans, 2008 UT App 165, ¶ 18 n.5, 185 P.3d 573(refusing to consider, on petition for rehearing, the appellant’s
claim regarding the commencement of the sixty-day period for
20120269-CA 35 2014 UT App 244Nebeker v. Summit County
agency review under the administrative code because that ‚issue
was not raised in the initial briefing‛).
20120269-CA 36 2014 UT App 244