Allen v. Smedley

Allen v. Smedley

IN THE UTAH COURT OF APPEALS
 

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Francessa W. Summers Allen and Richard R. Medsker,

Plaintiffs and Appellees,

v.

Dale T. Smedley, Helen B. Smedley, Smedley Family Investment Company,
Edwin M. Higley, Afton C. Higley, and John Does 1-5,

Defendants.

______________________________

Lynn A. Jenkins,

Intervenor, Defendant, and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020653-CA
 

F I L E D
(November 12, 2004)
 

2004 UT App 408

 

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First District, Brigham City Department

The Honorable Gordon J. Low

Attorneys: Lynn A. Jenkins, Bountiful, Appellant Pro Se

Richard R. Medsker and Mark H. Stratford, Ogden, and Philip R. Hughes, Bountiful, for Appellees

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Before Judges Davis, Greenwood, and Jackson.

GREENWOOD, Judge:

    Pro se intervenor Lynn Jenkins appeals the trial court's judgment granting title in a parcel of property to the plaintiffs. We affirm.

    Jenkins first argues that the trial court erred by ruling that Jenkins could not raise a statute of limitations defense to the trustee's sale because this defense was waived by Jenkins's predecessor in interest. "The trial court's application of a statute of limitations presents a question of law which we review for correctness." Estes v. Tibbs, 1999 UT 52,¶4, 979 P.2d 823. Specifically, Jenkins contends that the trustee's foreclosure sale was invalid because it was held beyond the seven year statute of limitations, see Utah Code Ann. § 78-12-6 (2002), and therefore, was void under Utah Code section 57-1-34. See Utah Code Ann. § 57-1-34 (2002).(1)

    The trustee's foreclosure sale took place in February 1998. Notice of the sale was given to both of Jenkins's predecessors in interest, the Smedleys and the Higleys. Neither chose to object to the foreclosure sale or raise the statute of limitations defense in section 57-1-34. "Statute of limitations defenses are affirmative defenses and are waived unless properly raised." Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 677 (Utah 1997); see also Keller v. Southwood N. Med. Pavilion, 959 P.2d 102, 106 (Utah 1998) ("A party waives a statute of limitations defense by failing to raise it in a responsive pleading or by motion before submitting a responsive filing."). Thus, the trial court correctly concluded that the Higleys "failed to preclude [the sale] so that they either waived the statute or they and their assigns are now precluded from asserting it because of laches and estoppel."(2)

    Jenkins next argues that the trial court erred by concluding that Dale and Helen Smedley's signing of the trust deed as individuals properly encumbered the property on behalf of their family partnership, the Smedley Family Investment Company (SFIC). We review a trial court's legal conclusions for correctness. See A.K. & R. Whipple Plumbing & Heating v. Aspen Constr., 1999 UT App 87,¶11, 977 P.2d 518.

    Utah Code section 48-1-6 provides that "[e]very partner is an agent of the partnership for the purposes of its business, and the act of every partner . . . binds the partnership." Utah Code Ann. § 48-1-6 (2001). Moreover, Utah Code section 48-1-7, provides that "[w]here title to real property is in the name of the partnership a conveyance executed by a partner in his own name passes the equitable interest of the partnership . . . ." Id. § 48-1-7 (2001).

    The 1983 Amended Certificate of Limited Partnership filed with the state on behalf of SFIC noted that a partnership agreement had been signed in 1978, thereby indicating that the family partnership existed prior to the time the Smedleys executed the trust deed and promissory note to Allen. Without documentation of the original limited partnership, the trial court found that "if a limited partnership is attempted but not successfully formed, a general partnership may result." Because the Smedleys were listed as the partners on the 1983 Amended Certificate of Limited Partnership, any partnership formed in 1978 would, at a minimum, constitute a general partnership with the Smedleys acting as general partners. Consequently, the Smedleys had the authority to execute the Allen mortgage in their individual names and in doing so, encumber the partnership property. Therefore, the trial court correctly concluded that
the Smedleys were general partners with the proper authority to encumber the partnership property.

    Affirmed.

______________________________

Pamela T. Greenwood, Judge

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WE CONCUR:

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James Z. Davis, Judge

______________________________

Norman H. Jackson, Judge

1. Utah Code section 57-1-34 states:

The trustee's sale of property under a trust deed shall be made, or an action to foreclose a trust deed as provided by law for the foreclosure of mortgages on real property shall be commenced, within the period prescribed by law for the commencement of an action on the obligation secured by the trust deed.

Utah Code Ann. § 57-1-34 (2002).

2. We also note that after the foreclosure sale, neither the Smedleys nor the Higleys possessed any ownership interest in the property. Under Utah Code section 57-1-28(2),

[t]he trustee's deed shall operate to convey to the purchaser . . . the trustee's title and all right, title, interest, and claim of the trustor and his successors in interest and of all persons claiming by, through, or under them, . . . in and to such property acquired by the trustor or his successors in interest subsequent to the execution of the trust deed . . . .

Utah Code Ann. § 57-1-28(3) (2002) (emphasis added). By virtue of the sale, any ownership interest the Higleys had in the property ceased to exist. See Western Beverage Co. of Provo v. Hansen, 98 Utah 332, 339, 96 P.2d 1105, 1108-09 (Utah 1939) ("The title of the owner is extinguished and . . . clear title goes to the new owner."). Therefore, when the Higleys attempted to convey the property by warranty deed to Jenkins in July 2000, the Higleys had no ownership interest to convey.