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Fadel v. Deseret First Credit Union

Court of Appeals of Utah

August 31, 2017

George K. Fadel, Appellant,
Deseret First Credit Union, Appellee.

         Second District Court, Ogden Department The Honorable Noel S. Hyde No. 150906526

          George K. Fadel, Appellant Pro Se

          Wallace O. Felsted and Gregory S. Moesinger, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Stephen L. Roth concurred. [1]


          POHLMAN, JUDGE.

         ¶1 George K. Fadel appeals the district court's judgment entered in favor of Deseret First Credit Union (Deseret First). Fadel contends the court erred in dismissing his complaint that sought to foreclose an attorney's lien. We affirm.


         The Underlying Lawsuit

         ¶2 Jerry W. Parkin as successor trustee for the Wilma G. Parkin Family Protection Trust (the Trust) owned a piece of real property in Bountiful, Utah. Deseret First claimed an interest in the property and brought suit against the Trust to quiet title. The Trust hired Fadel to represent it in the litigation against Deseret First.

         ¶3 In the written attorney-client agreement between Fadel and the Trust, the Trust agreed to pay Fadel "one-half of the amounts recovered by settlement or judgment . . . in excess of $10, 000." The fee agreement also provided that recovery in the form of property "could result in [Fadel] obtaining a joint interest in the land with [the Trust] after deducting $10, 000."

         ¶4 Deseret First and the Trust entered into mediation. Fadel was present for a portion of the mediation but left before its conclusion. After Fadel left, Deseret First and the Trust entered into a settlement agreement pursuant to which the Trust agreed to convey the property to Deseret First by general warranty deed in exchange for a payment of $30, 000. On that same day, Deseret First tendered, and the Trust accepted, the $30, 000 payment, and Deseret First received the general warranty deed. The next day, October 21, 2011, Deseret First recorded the general warranty deed with the Davis County Recorder's Office.

         ¶5 Three days later, on October 24, 2011, Fadel recorded a notice of attorney's lien against the property with the Davis County Recorder's Office. He also filed the notice of lien with the district court the next day. In the notice, Fadel acknowledged that the Trust conveyed the deed to Deseret First before he recorded the notice of lien.

         ¶6 The Trust retained a new attorney who filed a substitution of counsel on behalf of the Trust, and Deseret First and the Trust filed a stipulated motion to dismiss with prejudice. The district court, over Fadel's objection, entered an order dismissing the quiet title case.

         ¶7 After being replaced as counsel, Fadel nevertheless repeatedly filed motions and documents in the quiet title case purportedly on behalf of the Trust. In response, Deseret First moved to enforce the settlement agreement and for sanctions against Fadel, citing rule 11 of the Utah Rules of Civil Procedure and the court's inherent authority to regulate the conduct of attorneys. Deseret First also petitioned the court to nullify Fadel's attorney's lien and sought damages under the wrongful lien statute. Months later, Fadel filed a motion to intervene, which both Deseret First and the Trust opposed.

         ¶8 Judge David Hamilton, who was presiding over the case, ruled in favor of Deseret First in most respects. First, Judge Hamilton ruled that the Trust and Deseret First had resolved their dispute, that the settlement agreement was valid and enforceable, and that Fadel had no basis to submit pleadings on the Trust's behalf. Second, Judge Hamilton imposed sanctions, including an award of attorney fees, against Fadel. The sanctions were warranted, the judge explained, because Fadel had "repeatedly attempted to represent the Trust in filing motions, and he [had] repeatedly taken positions that [were] frivolous, meritless, and inconsistent" with the district court's rulings. Fadel had also attempted to pursue, on behalf of himself and the Trust, claims against Deseret First "that, if at all, belonged to the Trust but that were resolved and released under the Settlement Agreement." Third, Judge Hamilton ruled that Fadel's notice of attorney's lien was void ab initio. He explained that, although Fadel was entitled to an attorney's lien pursuant to statute, the notice of lien that Fadel recorded with the county on October 24, 2011, was "plagued by errors and failed to comply with statutory requirements." Judge Hamilton ultimately denied Deseret First's request for damages, however, because he determined that Fadel's attorney's lien itself was not wrongful as defined under the wrongful lien statute. Fourth, because Fadel filed his motion to intervene after the quiet title case had been dismissed with prejudice, Judge Hamilton denied the motion as untimely. Fadel appealed, and this court affirmed the district court's decisions. See Deseret First Fed. Credit Union v. Parkin, 2014 UT App 267, ¶¶ 1, 22, 339 P.3d 471.

         The Present Lawsuit

         ¶9 After the quiet title case concluded, Fadel filed the present action against Deseret First. In his complaint, Fadel alleged that Deseret First took title to the property subject to his attorney's lien. He cited his attorney fee agreement with the Trust and relied on Judge Hamilton's statement in the prior case that Fadel was entitled to an attorney's lien.[2] In terms of relief, Fadel sought to foreclose his attorney's lien and sought an interest in the property as well as a portion of the rents on the property.

         ¶10 Deseret First moved to dismiss, asserting that Fadel's complaint was "attempting to enforce and foreclose a Notice of Attorney's Lien that was previously invalidated, voided, and struck by Judge Hamilton" in the quiet title case. According to Deseret First, when it recorded the general warranty deed, "Fadel had neither asserted nor perfected his attorneys' lien for any unpaid compensation." It asserted that Fadel thus had "no pending lien against Deseret First's real property" and that because the property had "already been conveyed by the former client to Deseret First, " Fadel could not "create a new lien" on the property. Deseret First also argued, among other things, that res judicata barred Fadel's claims because they had previously been adjudicated. Deseret First requested sanctions, including an award of attorney fees pursuant to the court's inherent authority and the bad faith attorney fees statute.

         ¶11 In response, Fadel contended that the invalidity of the notice of lien "[did] not affect the validity of the lien" itself and was also insignificant because Deseret First had actual notice of his lien. He further contended that his "attorney's lien itself was not wrongful" under the definition in the wrongful lien statute because it was "expressly authorized" under the attorney's lien statute. Moreover, Fadel contended his suit could proceed because "[t]he issue of [his] entitlement to a lien for services rendered and costs advanced ha[d] not been litigated." According to Fadel, ...

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