Curry v. Kilgore

Curry v. Kilgore

IN THE UTAH COURT OF APPEALS

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Annabelle M. Curry, for herself and as trustee of the Annabelle M. Curry Family Living Trust,

Plaintiff and Appellant,

v.

Tod N. Kilgore; Linda Kilgore; Clair L. Phillips; Lois D. Phillips; Chris Wolcott; Lewis, Wolcott & Dornbush, L.L.C.; Susan Shaw; Wardley Corporations; Antone G. Frandsen; and Stewart Title Guaranty Company,

Defendants and Appellees.

AMENDED MEMORANDUM DECISION1

(Not For Official Publication)
 

Case No. 20030536-CA
 

F I L E D
(April 15, 2004)
 

2004 UT App 112

 

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Third District, Sandy Department

The Honorable Denise P. Lindberg

Attorneys: Charles A. Schultz, Brigham City, for Appellant

Scott O. Mercer and Ryan B. Hancey, Salt Lake City, for Appellees Kilgore and Phillips

John B. Wilson and Laura S. Scott, Salt Lake City, for Appellee Stewart Title Guaranty Company

J. David Pearce and Scott R. Sabey, Salt Lake City, for Appellees Wardley Corporation and Susan Shaw

Paul M. Halliday Jr. and Paul M. Halliday, Salt Lake City, for Appellee Antone G. Frandsen

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Before Judges Jackson, Orme, and Thorne.

PER CURIAM:

Annabelle Curry (Curry) appeals from the dismissal of their complaint and from various interlocutory orders. Appellees seek summary disposition of the appeal.

At all times, the real party in interest was the Trustee of the Annabelle M. Curry Family Trust (Trust) as the purchaser and title holder of the real property that is the subject of the action. Curry twice discharged counsel, and on at least three occasions during the period from July 12, 2002 until dismissal of the case on May 19, 2003, she was advised that she could not represent the Trust - or more precisely, the interests of the Trust beneficiaries - as a pro se litigant and must retain a licensed attorney to do so. The trial court repeatedly advised Curry to retain counsel to represent the Trust, allowed adequate time for her to do so, and advised Curry of the consequences of failing to retain counsel and to move the case forward. No party to this appeal challenges, nor did they below, the general accuracy of the trial court's position on the issue. See Zeigler v. Nickel, 64 Cal. App. 4th 545, 75 Cal. Rptr. 2d 312 (1998) (holding nonattorney trustee who represents the trust in court is representing interests of beneficiaries and engaged in unauthorized practice of law); Tradewinds Hotel, Inc. v. Cochran, 799 P.2d 60 (Haw. Ct. App. 1990) (same); Black Acres Pure Trust v. Fahnlander, 443 N.W.2d 604 (Neb. 1989) (per curiam) (same); see also Lundahl v. Quinn, 2003 UT 11,¶¶6-7, 67 P.3d 1000 (discussing prohibition of pro se litigant "to represent the legal interests of other persons").

The memorandum opposing summary disposition mischaracterizes the record. It focuses only on a final three-day continuance granted at the request of prospective counsel to allow that counsel to review the file and determine whether to enter an appearance. As such, the memorandum does not acknowledge that Curry had been notified on three earlier occasions that the Trust must be represented by a licensed attorney. In addition, a signed minute entry of April 2, 2003, notified Curry that the Trust's failure to appear with counsel at a scheduling conference to be held five weeks later would result in dismissal of the case. Although it is correct that Curry could not compel counsel to represent the Trust, she twice terminated the services of the attorney who initiated the case.

Curry does not dispute that dismissal of the case without prejudice may have been proper because she was unable to obtain counsel to represent the Trust within the time ordered by the trial court. A dismissal under rule 41(b) of the Utah Rules of Civil Procedure operates as an adjudication on the merits, unless the court otherwise specifies. See Utah R. Civ. P. 41(b). Curry asserts that the dismissal with prejudice was improper because she did not have the ability to comply with the court's order by obtaining counsel within the specified time. The case was pending for over three years, Curry twice fired the attorney who filed the case, and she was advised by the court on at least three occasions prior to dismissal to retain counsel for the Trust. Finally, the affidavits attached to the opposing memorandum filed in this court were not submitted to the district court for consideration prior to dismissal of the case. Instead, they were attached to a motion to reconsider filed simultaneously with the notice of appeal, as is also reflected by their dates.(2) These affidavits were not considered by the district court in reaching its decision to dismiss the case, and will not be considered by this court for the first time on appeal. See Ong Int'l v. 11th Ave. Corp., 850 P.2d 447, 455 n.1 (Utah 1993) (declining to consider arguments not first presented to trial court). The motion to reconsider has not been ruled upon by the court.

We affirm the district court's dismissal of the case with prejudice.

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge

1. This Amended Memorandum Decision replaces the Memorandum Decision in Case No. 20030536-CA issued on March 18, 2004.

2. The motion to reconsider was filed simultaneously with the notice of appeal. It was not a timely motion under either rule 52 or 59 of the Utah Rules of Civil Procedure and did not toll the time for appeal under rule 4(b) of the Utah Rules of Appellate Procedure. Filing the material after dismissal and appeal did not make it a part of the record for an appeal from the dismissal.