Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wittingham, LLC v. TNE Limited Partnership

Supreme Court of Utah

August 22, 2018

Wittingham, LLC; The Muir Second Family Limited Partnership and Dorothy Jeanne Muir, Respondents and Cross-Petitioners,
v.
TNE Limited Partnership, Petitioner and Cross-Respondent.

         On Certification to the Utah Court of Appeals

          Second District, Farmington The Honorable Robert J. Dale No. 090700547

          James K. Tracy, Stacy J. McNeill, Brigman Lee Harman, Salt Lake City, for respondents and cross-petitioners

          Jeffrey L. Silvestrini, Bradly M. Strassberg, Salt Lake City, for petitioner and cross-respondent

          Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce and Justice Petersen joined.

          OPINION

          DURRANT CHIEF JUSTICE.

         Introduction

         ¶1 In this case, the plaintiffs asserted various claims against a number of defendants. The district court addressed these claims in its August 4, 2014 amended order of final judgment. Both parties appealed to the court of appeals, which issued a decision. We granted certiorari to address the merits of this case. But we cannot do so because we conclude that the district court's order was not a final judgment. The court's order was not a final judgment because the court failed to dispose of the plaintiffs' civil conspiracy claim against two defendants-Gavin Dickson and Trump Security, LLC. Accordingly, we dismiss this appeal for lack of jurisdiction and vacate the court of appeals' decision.

         Background

         ¶2 In setting forth the background of this appeal, we limit our discussion of the "facts necessary to explain our conclusion."[1]

         ¶3 The Muir Second Family Limited Partnership (the Muir Partnership or Partnership) was organized on December 30, 1993, and continued until it was administratively dissolved on May 3, 2007. Two years after the dissolution, Nicholas Muir, the former general partner of the defunct Partnership, entered into a note and trust deed with TNE on behalf of the Muir Partnership in order to secure a loan for $435, 000. As collateral for the loan, TNE recorded the trust deed against a pair of apartment buildings owned by the Partnership. Prior to the execution of the TNE trust deed, Mr. Muir did not disclose to TNE that the Muir Partnership had been administratively dissolved.

         ¶4 He claimed that the loan was necessary to remove an encumbrance on the apartments, a trust deed, which was secured by a promissory note owed to Trump Security. In fact, this transaction was a sham. There was no promissory note nor was there a trust deed. And the sole member of Trump Security was Gavin Dickson, who, along with Mario Naujoks, assisted Mr. Muir in his scheme.

         ¶5 After TNE disbursed the funds, the sham encumbrance was released and the apartment buildings were transferred between successive business entities owned by the Muir family, the last being Wittingham, LLC. Mr. Dickson, acting on behalf of Trump Security, then directed that the TNE funds be used for purposes that did not benefit the Partnership. When Mr. Muir's family discovered the sham encumbrance and misappropriation of the TNE funds, Wittingham, LLC, the Muir Partnership, and Dorothy Jeanne Muir (collectively, Plaintiffs) commenced this action, seeking to have the TNE trust deed declared void. Plaintiffs also sought to recover damages from a number of defendants, including TNE, Trump Security, Mr. Dickson, and Mr. Naujoks, for their alleged roles in the fraudulent scheme.

         ¶6 In their complaint, Plaintiffs asserted twenty-five causes of actions. Of these, Plaintiffs alleged four separate causes of action against Mr. Dickson and Trump Security-conversion, fraud, slander of title, and alter ego. They also alleged a civil conspiracy claim against "[a]ll defendants," including TNE, Mr. Dickson, Trump Security, and Mr. Naujoks.

         ¶7 On July 10, 2012, the district court granted partial summary judgment in favor of TNE, Bruce J. Malcom, Maureen H. Malcolm, and Daniel J. Torkelson (collectively, the TNE Defendants) on several causes of action. Specifically, the court dismissed with prejudice Plaintiffs' civil conspiracy cause of action against the TNE Defendants.[2]

         ¶8 During the course of the trial, the district court issued a certificate of default against Mr. Dickson and Trump Security, as well as a sanction of default judgment against Mr. Naujoks, but never formally entered an order of default judgment against any of the three parties until its July 23, 2013 memorandum decision. In that decision, the court acknowledged that it "ha[d] previously entered the defaults of [Mr. Dickson and Trump Security] and Mario Naujoks" and explained that "Plaintiffs presented evidence regarding their claims against [Mr. Dickson and Trump Security]." The court concluded that Plaintiffs had "established their entitlement to an award of actual damages against [Mr. Dickson and Trump Security] in the amount of $292, 500.00 on their claims."[3]

         ¶9 The district court then outlined which of Plaintiffs' causes of action it was granting judgment on against Mr. Dickson and Trump Security. The court granted judgment in favor of Plaintiffs and against Mr. Dickson and Trump Security on their conversion, fraud, slander of title, and alter ego causes of action. But the court said nothing about Plaintiffs' civil conspiracy cause of action against Mr. Dickson and Trump Security.

         ¶10 In the same decision, however, the court apparently did dismiss the civil conspiracy cause of action against Mr. Naujoks. There, the court held that Plaintiffs "presented insufficient evidence on their claims to support judgment against Mario Naujoks." And so it dismissed with prejudice "each of Plaintiffs' Causes of Action against Mario Naujoks." Thus, in the July 23, 2013 memorandum decision, the district court granted default judgment against Mr. Dickson and Trump Security on all claims except civil conspiracy, but it refused to grant default judgment against Mr. Naujoks on all claims brought against him.

         ¶11 After post-trial proceedings, the district court issued its August 04, 2014 amended final order of judgment-the operative final order before us. There, the district court went to great lengths to dispose of each of the causes of action asserted by the parties before it. The court walked through all twenty-five causes of action brought by Plaintiffs. It reiterated its holding in its July 23, 2013 memorandum decision-that Plaintiffs' conversion, fraud, slander of title, and alter ego causes of action against Mr. Dickson and Trump Security were granted in the amount of $585, 000 (compensatory plus punitive damages). But on Plaintiffs' civil conspiracy claim the court merely reiterated its July 12, 2012 order-that "Plaintiffs' Twenty-Second Cause of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.