Windsor Mobile Estates, LLC; Henry Berry; and Affordable Concepts, LLC, Appellees,
Donnie Sweazey, Appellant.
District Court, West Jordan Department The Honorable Bruce C.
Lubeck No. 140400967
W. Steffensen, Attorney for Appellant
Miles Lebaron and Tyler J. Jensen, Attorneys for Appellee
Windsor Mobile Estates, LLC
A. Woodbury, Attorney for Appellees Henry Berry and
Affordable Concepts, LLC
Gregory K. Orme authored this Opinion, in which Judges David
N. Mortensen and Ryan M. Harris concurred.
Donnie Sweazey appeals the dismissal of his claims for
failure to prosecute. We affirm.
On January 27, 2014, Windsor Mobile Estates, LLC, filed a
complaint for unlawful detainer against Scott Wilson for
failure to pay rent on a lot in its mobile home park. At the
time, Wilson did not reside in the mobile home on the lot in
question. Rather, Michelle Southard and Michael Oyler owned
and resided in the mobile home. Wilson never filed an answer
to Windsor's complaint, and the district court entered an
order of restitution on February 7, 2014, ordering any
occupants off the premises.
On February 21, 2014, Appellant Donnie Sweazey sought to
intervene as a defendant, claiming to be the rightful owner
of the mobile home, and he was granted leave to do so. The
court then ordered a stay of execution until ownership of the
mobile home could be determined and directed that the mobile
home remain on the lot until further notice.
On April 30, 2014, Sweazey filed what he titled a third-party
complaint, alleging that he had purchased the home from
Southard and Oyler for $9, 000 on February 10, 2014, by
putting down all of $20 as a deposit, with $8, 980 of the
purchase price still owing. In his third-party complaint,
Sweazey named as third-party defendants Appellee Henry Berry
and his company, Affordable Concepts, LLC (collectively,
Berry). He also asserted claims against Windsor, Oyler, and
Southard. Answering the third-party complaint, Berry claimed
he purchased the home from Oyler after Oyler represented to
him that he had discussed selling the home to
Sweazey but that no deal had been finalized.
Early on in the case, in April 2014, the district court
stated that an evidentiary hearing was required to determine
ownership of the mobile home. However, none of the parties
requested an evidentiary hearing on the matter. Sweazey
claims to have asked for a hearing and points to various
filings, but there is no record of him filing a request to
submit any relevant motion for decision, as required by rule
7(g) of the Utah Rules of Civil Procedure. Without such a
request the court will ordinarily not take action on its own
initiative. Seven months later, in December 2014, the court
reiterated the need for an evidentiary hearing, but again no
party properly moved the court to hold one-or so the court
concluded, noting also that "[w]hatever claim is made
that something was filed is eviscerated by the fact that even
if a motion was filed, no Request to Submit was ever filed
concerning that motion."
In his third-party complaint, Sweazey sought damages for an
alleged breach of contract by Southard and Oyler,
interference with contractual relations and defamation by
Berry, and conspiracy and conversion by Berry and Windsor.
Sweazey's attempt to bring claims against Berry and
Windsor by using a third-party complaint was not proper, even
though Sweazey saw the need to bring additional parties into
the action. This mistake-the misuse of a third-party
action-is a common one, and we take this opportunity to
remind practitioners of the quite limited proper usage of
Under rule 14(a) of the Utah Rules of Civil Procedure, a
third-party complaint is used by a defendant to "bring
in [a] third party" "who is or may be liable to him
for all or part of the plaintiff's claim against
him." Utah R. Civ. P. 14(a). Thus, "[a] third-party
claim may be asserted under Rule 14(a)[ ] only when the third
party's liability is in some way dependent on the outcome
of the main claim or when the third party is secondarily
liable to the defending party." 6 Charles A. Wright
& Arthur R. Miller, Federal Practice &
Procedure § 1446, at 413-15 (3d ed. 2018).
"The secondary or derivative liability notion is
central," and thus a third-party complaint is the proper
means for asserting claims against parties not named in the
original complaint on such rationales as "indemnity,
subrogation, [or] contribution." Id. at 415-21.
"The crucial characteristic of a Rule 14 claim is that
[the] defendant is attempting to transfer to the third-party
defendant the liability asserted against defendant by the
original plaintiff." Id. at 431-32.
Sweazey was attempting no such thing. He was asserting
ownership of the mobile home. As against Oyler, Southard, and
Berry, he did not claim that any liability imposed on him by
Windsor should be passed on to them. Instead, he asserted
independent claims against them-claims that were not
dependent on any liability he might have to Windsor. And of