Orton v. Brunson

Orton v. Brunson

IN THE UTAH COURT OF APPEALS

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Glen and Marion Orton, personally and as Trustees of the Glen Orton Allegro Motor Home Trust,
Plaintiffs and Appellees,

v.

Arlan Brunson; Lynn Brunson; Ryland Brunson; Gaynor Brunson; Brunson Brothers, Inc.; and Does I through X,
Defendants and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020363-CA

F I L E D
(October 17, 2003)

2003 UT App 344

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Fourth District, Provo Department

The Honorable Anthony W. Schofield

Attorneys: Larry L. Whyte, Salt Lake City, for Appellant

Nathan K. Fisher, St. George, for Appellees

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Before Judges Billings, Greenwood, and Orme.

BILLINGS, Associate Presiding Judge:

Arlan Brunson appeals the district court's order granting partial summary judgment in favor of Glen and Marion Orton, personally, and as trustees of the Glen Orton Allegro Motor Home Trust (collectively, the Ortons). We affirm.

First, Brunson asserts the district court erred in granting summary judgment because "[i]ndividually, Marion Orton has no standing" to assert claims against Brunson. Brunson contends Glen Orton was deceased "[a]t the time th[e] action was commenced" and because "Marion Orton reserved no rights to the motor home . . . she is not a real party in interest as required by . . . the Utah Rules of Civil Procedure." See Utah R. Civ. P. 17. However, the record reflects that Glen and Marion Orton, personally, and in their capacity as trustees, jointly filed a complaint in this case on May 4, 1998--well before Glen Orton's death in February 1999. Thereafter, the district court granted the Orton's motion to substitute Glen Orton's personal representative as a plaintiff. See Utah R. Civ. P. 25(a)(1). Accordingly, we hold the district court did not err in concluding the Ortons had standing to pursue their claims.

Next, Brunson contends the district court erred in granting summary judgment because genuine issues of material fact exist as to whether or not Brunson breached his contractual obligation to repay the note. Brunson argues he was released from his repayment obligation when, "subsequent to the initial sales transaction," and "in connection with a revision of the [original] contract of sale," the Ortons executed a bill of sale that "constitut[ed] an accord and satisfaction." Brunson's argument is without merit.

Nothing in the bill of sale releases Brunson from his contractual obligations to repay the note.(1) At most, the warranty contained in the bill of sale warranted only that at the time of sale, the motor home was unencumbered by any claim or lien held by a third party. Moreover, the note was not secured by the title to the motor home and therefore could not constitute a lien for purposes of the bill of sale. Finally, other language in the bill of sale indicates the Ortons conveyed the motor home to Brunson in exchange for "ten dollars and other valuable consideration"--namely Brunson's promise to repay the note. In sum, the bill of sale in this case does not constitute an accord and satisfaction. See Bennion v. LeGrand Johnson Constr. Co., 701 P.2d 1078, 1082 (Utah 1985). Hence, the district court correctly determined that no genuine issues of material fact exist as to Brunson's contractual obligations and his subsequent breach of contract.

Finally, the note contains a provision requiring Brunson to pay "all costs and expenses of collection [in the event of default] including . . . attorney[] fee[s]." See R.T. Nielson Co. v. Cook, 2002 UT 11,¶17, 40 P.3d 1119. We therefore affirm the district court's award of costs and attorney fees to the
Ortons and remand for the district court to determine additional costs and reasonable attorney fees incurred on appeal.

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Judith M. Billings,

Associate Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge

1. As the Ortons observe, this argument seems "disingenuous inasmuch as the undisputed facts clearly establish that for seven years after [Brunson] received the [b]ill of [s]ale he continued to make monthly payments on the [n]ote."