Davis v. Ritter

----ooOoo----

Steven C. Davis,
Plaintiff and Appellant,

v.

Lee Ritter, Susan Ritter,
and Darwin C. Fisher,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990060-CA

F I L E D
March 23, 2000
  2000 UT App 84 -----

Fourth District, Provo Department
The Honorable Gary D. Stott

Attorneys:
Mary Ann Hansen, Provo, for Appellant
Byron L. Smith, Orem, for Appellees

-----

Before Judges Bench, Davis, and Garff.(1)

DAVIS, Judge:

Plaintiff Steven C. Davis appeals the trial court's entry of summary judgment dismissing his suit against defendants Lee Ritter, Susan Ritter, and Darwin Fisher.(2) We affirm.

"'In reviewing a grant of summary judgment, we consider the facts in the light most favorable to the nonmoving party, here the appellant[].'" Hebertson v. Bank One, Utah, N.A., 1999 UT App 342, ¶2, 383 Utah Adv. Rep. 15 (quoting Parker v. Dodgion, 971 P.2d 496, 496-97 (Utah 1998)) (alteration in original). "'"Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Because the question of whether summary judgment is appropriate is a question of law, we accord no deference to the trial court.'" Id. at ¶6 (citations omitted).

Davis asserts there exists a genuine issue of material fact that he was the party in interest, precluding summary judgment on these grounds. In particular, Davis argues that his and Richard C. Coxson's affidavits, together with LeRoy Townsend's assignment, show that before this action was commenced on August 13, 1993, he had become the real party in interest by oral assignment. We disagree.

Rule 17(a) requires that "[e]very action shall be prosecuted in the name of the real party in interest." Utah R. Civ. P. 17(a). The undisputed facts show that the investor in INCI which would have claims arising from improprieties in that investment, is the Townsend Family Trust. The $250,000 payment was drawn on the trust's checking account and was signed by the trustee in his capacity as trustee and the stock certificate was issued to the trust. Davis has not shown directly or by inference via exhibit, affidavit, or otherwise, that the trust's rights were assigned to either Davis or LeRoy Townsend in his individual capacity.

Hence, the August 30, 1993 assignment does not establish that Davis was the party in interest when he filed the August 13, 1993 complaint. Like other "legally significant writings," we construe the assignment by looking to its plain language. Magnesium Corp. v. Air Quality Bd., 941 P.2d 653, 659 (Utah Ct. App. 1997). The assignment occurred after the suit was commenced and by its plain language--i.e., providing that "LeRoy Townsend . . . hereby assigns" (emphasis added)--purports to contemporaneously assign an interest to Davis, rather than merely memorialize a prior verbal assignment. More importantly, however, the assignment concerns only LeRoy Townsend's individual interests, omitting any mention of the trust. Consequently, by its plain language, the assignment does not affect any interest of the trust and, because LeRoy Townsend had no individual interest related to the investment, the assignment was ineffective to transfer any such interest to Davis.(3)

Similarly, the affidavits of Coxson and Davis do not support a reasonable inference that Davis had acquired the trust's claims. Coxson's statements, that when he was retained he "was aware of the agreement and assignment between Mr. Townsend and Mr. Davis," and that during a December 1993 telephone call Townsend and Davis affirmed that Townsend's interests had been transferred, fails to show there ever was a transfer of the trust's interests. Likewise, Davis's affidavit may support that an assignment occurred before he filed this action, but that assignment was only between Davis and Townsend, as an individual; Davis's affidavit does not support any inference that he acquired the trust's interest. Accordingly, we conclude that based on the affidavits and exhibits, Davis has not shown there exists any genuine issue of material fact precluding summary judgment on the ground that he was not the real party in interest.(4)

Davis further argues that he should have been permitted to substitute Townsend as trustee, and thus the trust, in this action as the real party in interest. Rule 17(a) provides in pertinent part:

No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Utah R. Civ. P. 17(a). In Estate of Haro v. Haro, 887 P.2d 878 (Utah Ct. App. 1994), however, this court explained that this part of Rule 17(a), allowing substitution of the real party in interest instead of dismissal, "contemplates that the party bringing suit has the capacity to sue on behalf of the 'real party in interest.'" Id. at 880. We explained that "[i]f the suit is brought by a party that does not have the capacity to sue on behalf of the 'real party in interest,' the suit is a nullity." Id. Here, because Davis had no capacity to bring suit on behalf of the Townsend Family Trust, his suit is a nullity. There simply "remain[s] no cause of action in which to substitute parties." Id. Consequently, the court did not err in granting summary judgment dismissing Davis's suit without first affording Davis the opportunity to substitute the real party in interest.

Affirmed.(5)
 
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Regnal W. Garff,
Senior Judge

1. Senior Judge Regnal W. Garff sitting by special appointment pursuant to Utah Code Ann. § 78-2-4(2) (1996); Utah Code Jud. Admin. R3-108(4).

2. Although defendants moved for dismissal pursuant to Rule 12(b)(6) of the Utah Rules of Civil Procedure, because the court considered matters outside the pleadings, its order is properly viewed as granting summary judgment. See Utah R. Civ. P. 12(b), 56(c); DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 838 n.3 (Utah 1996); Hebertson v. Bank One, Utah, N.A., 1999 UT App 342, ¶5, 383 Utah Adv. Rep. 15.

3. Because the assignment omits any mention of the trust, this is not the case where the body of the assignment fully purported to assign the trust's interest but erroneously identified the party enabled to make the assignment or where the trustee failed to sign in that capacity although he was identified as such. SeePride Exploration, Inc. v. Marshall Exploration, Inc., 798 F.2d 864, 866 (5th Cir. 1986). Consequently, Davis's reliance on Pride Exploration is misplaced. See also id. ("'Regardless of the form of the signature, the body must show that it is the act of the corporation.'") (citation omitted).

4. We also reject Davis's claim that equity requires the finding of a valid transfer because denial of Davis's right to bring this action would work an unjust enrichment. Because such claim is dependent on Davis being the real party in interest, which he is not, we find such claim to be without merit.

5. Because we conclude the trial court correctly granted defendants' motion for summary judgment, we do not address Davis's claims that it erred in not granting his motion for summary judgment.