2013 UT App 204
_________________________________________________________
THE UTAH COURT OF APPEALS
IRVING PLACE ASSOCIATES,
Plaintiff and Appellant,
v.
628 PARK AVE, LLC,
Defendant and Appellee.
Opinion
No. 20120031‐CA
Filed August 15, 2013
Third District, Silver Summit Department
The Honorable Keith A. Kelly
No. 100500068
Ronald G. Russell and Rodger M. Burge, Attorneys
for Appellant
Bruce H. Shapiro and Andrew M. Wadsworth,
Attorneys for Appellee
JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGE
GREGORY K. ORME concurred. JUDGE WILLIAM A. THORNE JR.
dissented, with opinion.
DAVIS, Judge:
¶1 Irving Place Associates (Irving Place) appeals from the
district court’s ruling that 628 Park Ave, LLC (628 Park Ave)
possesses a valid judgment lien on certain real property (the
Property) owned by Irving Place. We affirm.
BACKGROUND
¶2 In September 2008, 628 Park Ave filed an action in district
court against various defendants, including James P. Ring. The
causes of action against Ring included breach of the terms of a
Irving Place v. 628 Park Ave
promissory note and breach of a lease. The district court entered a
default judgment against Ring on December 11, 2008, in the
amount of $150,144. Litigation continued against the other
defendants, and 628 Park Ave did not seek to have the default
judgment against Ring certified as a final judgment pursuant to
rule 54(b) of the Utah Rules of Civil Procedure. At the time that the
default judgment was entered, Ring was the record owner of the
Property, which consists of a condominium unit located in the
Sundial Lodge at the Canyons condominium project in Summit
County, Utah.
¶3 On December 18, 2008, 628 Park Ave recorded a copy of the
default judgment against Ring.1 See generally Utah Code Ann.
§§ 78B‐5‐201 to ‐202 (LexisNexis 2012) (providing for the creation
of a judgment lien against real property by recordation of a
judgment). The default judgment identified Ring by name but did
not contain any other identifying information. 628 Park Ave claims
to have also simultaneously submitted to the recorder’s office a
separate information statement containing additional information
as specified in Utah Code section 78B‐5‐201, such as Ring’s date of
birth and last‐known address. See id. § 78B‐5‐201(4)(b). However,
it is undisputed that the default judgment as recorded did not
actually include a separate information statement.
¶4 Irving Place acquired the Property from Ring by way of a
warranty deed on March 31, 2009, and recorded the deed on April
2, 2009. Irving Place asserts that, at the time of recording, it was not
aware of any claim of a judgment lien by 628 Park Ave and
understood that it was taking the Property free and clear of all liens
and encumbrances.
¶5 On November 5, 2009, 628 Park Ave successfully obtained
an augmented judgment against Ring in the amount of $498,204.
628 Park Ave recorded the augmented judgment on November 20,
1. All of the recorded documents referenced in this opinion were
recorded in the Summit County Recorder’s Office.
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2009. This time, however, 628 Park Ave also recorded a separate
information statement containing the identifying information
described in Utah Code section 78B‐5‐201(4)(b). On December 11,
2009, 628 Park Ave obtained a writ of execution on the augmented
judgment, directing the sale of all of Ring’s non‐exempt real
property. Based on Ring’s ownership of the Property at the time
that the original default judgment was recorded, 628 Park Ave
sought to sell the Property at a sheriff’s sale pursuant to the writ of
execution.
¶6 One day prior to the scheduled January 28, 2010 sheriff’s
sale, Irving Place initiated this action to invalidate 628 Park Ave’s
claimed judgment lien against the Property. The district court
enjoined the sheriff’s sale pending resolution of Irving Place’s
complaint, and both Irving Place and 628 Park Ave filed motions
for summary judgment on the issue of the validity of the judgment
lien.
¶7 Irving Place argued that the recording of the original default
judgment against Ring did not create a judgment lien against the
Property because the default judgment was not a final judgment at
the time it was recorded. Irving Place also argued that no lien was
created because as of the date Irving Place acquired the Property
from Ring, neither the default judgment itself nor a separate
recorded information statement contained the identifying
information required by Utah Code section 78B‐5‐201(6). The
district court rejected these arguments, concluding that a final
judgment was not necessary to create a judgment lien and that the
recorded default judgment sufficiently identified Ring by name.
The district court granted summary judgment validating 628 Park
Ave’s judgment lien against the Property in the amount of the
original default judgment.2 Irving Place appeals.
2. The district court rejected 628 Park Ave’s attempt to obtain a
judgment lien in the greater amount reflected in the augmented
judgment against Ring.
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ISSUES AND STANDARD OF REVIEW
¶8 Irving Place argues on appeal that the district court erred in
concluding that a judgment need not be a final judgment to create
a judgment lien under Utah Code sections 78B‐5‐201 and ‐202.
Irving Place also argues that the district court erred in concluding
that a recorded judgment satisfies section 78B‐5‐201(4)(a)’s
requirement that it include “the information identifying the
judgment debtor” so long as it states the name of the judgment
debtor. “We review questions of statutory interpretation for
correctness, affording no deference to the district court’s legal
conclusions.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50,
¶ 12, 267 P.3d 863 (citation and internal quotation marks omitted).
ANALYSIS
I. Finality of Judgment
¶9 Irving Place first argues that the district court erred when it
concluded that a final judgment was not required to create a
judgment lien under Utah Code sections 78B‐5‐201 and ‐202. We
agree with the district court that the plain language of those
sections does not require a final judgment for the creation of a
judgment lien.
¶10 Utah Code sections 78B‐5‐201 and ‐202 govern the creation
of judgment liens in the state of Utah. See Utah Code Ann. §§ 78B‐
5‐201 to ‐202 (LexisNexis 2012). Both sections utilize the term
“judgment” multiple times, but neither contains the term “final
judgment.” See id. In analyzing sections 78B‐5‐201 and ‐202, the
district court concluded that the legislature’s
use of the term “judgment” as opposed to “final
judgment” indicates that there is no requirement that
a judgment be final for the purposes of creation of a
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judgment lien. Had the Legislature intended that a
judgment be final in order for a judgment lien to be
created, the Legislature could have simply used the
term “final judgment,” rather than “judgment.”
We find this reasoning to be persuasive, and we affirm the district
court’s conclusion on this issue. Cf. Thorpe v. Washington City, 2010
UT App 297, ¶ 15, 243 P.3d 500 (“We presume that the Legislature
consciously selected the term ‘civil action’ and intended that it be
used in accordance with its common and accepted meaning.”);
State v. Ewell, 883 P.2d 1360, 1364 (Utah Ct. App. 1993) (Jackson, J.,
concurring) (“If the legislature had intended the word ‘convicted’
to include the sentencing portion of the criminal procedure, it
would have used the term ‘sentenced’ twice rather than ‘sentenced’
and then ‘convicted.’”).
¶11 In reaching the conclusion that a judgment lien can be
created by a nonfinal judgment, we note that the legislature has
used the specific term “final judgment” in lieu of the more general
term “judgment” elsewhere in Title 78B of the Utah Code. See, e.g.,
Utah Code Ann. § 78B‐11‐129(1)(f) (LexisNexis 2012) (“An appeal
may be taken from . . . a final judgment entered pursuant to this
chapter.”); id. § 78B‐5‐828(1)(c) (“‘Ultimately prevail on the merits’
means, in the final judgment, the court rules in the plaintiff’s favor
on at least one cause of action.”). We also note that while a nonfinal
judgment is sufficient for the creation of a lien, the lien may not be
enforced through a writ of execution until the judgment has
become final.3 See Utah R. Civ. P. 64E(a) (“A writ of execution is
available to seize property in the possession or under the control of
the defendant following entry of a final judgment or order requiring
the delivery of property or the payment of money.” (emphasis
3. The district court recognized as much, ordering that “[t]he
judgment lien created by the recording of the Original Judgment
may be executed upon once it has been certified as a final judgment
in the underlying Ring Lawsuit.”
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added)); cf. Kitches & Zorn, LLC v. Yong Woo Kim, 2005 UT App 164,
¶ 14 n.3, 112 P.3d 1210 (“[R]ule 69 is inapplicable to this appeal,
which addresses only whether Plaintiffs had a lien. Rule 69 deals
with the execution of writs, not the creation of liens or the Registry
of Judgments.” (citing Utah R. Civ. P. 69 (repealed November 1,
2004))).
¶12 In sum, we agree with the district court that a final judgment
is not required for the creation of a judgment lien under Utah Code
sections 78B‐5‐201 and ‐202. We therefore affirm that portion of the
district court’s summary judgment order.
II. Required Identifying Information
¶13 Irving Place also argues that the district court erred in
concluding that 628 Park Ave’s recorded judgment satisfied Utah
Code section 78B‐5‐201(4)(a)’s requirement that the judgment
include “the information identifying the judgment debtor” because
the judgment identified Ring, the judgment debtor, only by name.
See Utah Code Ann. § 78B‐5‐201(4)(a). Irving Place argues that
when read in the context of the statute as a whole, “the information
identifying the judgment debtor” necessarily refers to the much
more detailed information specified in section 78B‐5‐201(4)(b). See
id. § 78B‐5‐201(4)(b) (specifying the information that must be
contained in a separate information statement, including a
judgment debtor’s last‐known address and, if known, the debtor’s
Social Security number, date of birth, and driver license number).
¶14 Utah Code section 78B‐5‐201(3)(a) provides that for
judgments entered on or after July 1, 2002, “the judgment or an
abstract of judgment” must be “recorded in the office of the county
recorder in which the real property of the judgment debtor is
located” in order to create a lien against the judgment debtor’s real
property. Id. § 78B‐5‐201(3)(a). Section 78B‐5‐201(4) further requires
that the recording include identifying information for the judgment
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debtor either on the judgment or abstract itself or on a separate
information statement:
[A]ny judgment or abstract of judgment that is
recorded in the office of a county recorder after July
1, 2002, shall include:
(a) the information identifying the judgment debtor
on the judgment or abstract of judgment; or
(b) a copy of the separate information statement of
the judgment creditor that contains:
(i) the correct name and last‐known address of
each judgment debtor and the address at which each
judgment debtor received service of process;
(ii) the name and address of the judgment
creditor;
(iii) the amount of the judgment as filed in the
Registry of Judgments;
(iv) if known, the judgment debtor’s Social
Security number, date of birth, and driver’s license
number if a natural person; and
(v) whether or not a stay of enforcement has
been ordered by the court and the date the stay
expires.
Id. § 78B‐5‐201(4) (emphasis added).
¶15 Here, it is undisputed that 628 Park Ave’s recorded
judgment did not include a separate information statement
pursuant to subsection (4)(b). Therefore, the judgment would
create a lien upon Ring’s real property only if it “include[d] the
information identifying the judgment debtor on the judgment,”
Utah Code Ann. § 78B‐5‐201(4)(a) (LexisNexis 2012). The district
court concluded that because of the disjunctive “or” between
subsections (4)(a) and (4)(b), a judgment creditor need satisfy only
one of the subsections. The district court further concluded that the
recorded judgment repeatedly identified Ring as the subject of the
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judgment and that the recorded judgment satisfied subsection 4(a)
“because it is clear that the judgment debtor is identified in the
Original Judgment itself.”
¶16 We agree with the district court that the statute’s use of the
word “or” clearly indicates that an information statement
identifying the information listed in subsection (4)(b) is not
necessary where the judgment or abstract of judgment contains
“the information identifying the judgment debtor,” id. § 78B‐5‐
201(4)(a). The question, then, is what minimum identifying
information must be included on the judgment in order for it to
satisfy subsection (4)(a). While the phrase “the information
identifying the judgment debtor,” id., is by no means a model of
clarity, we disagree with Irving Place’s assertion that the extensive
information outlined in subsection (4)(b) must be provided in order
for a creditor to create a judgment lien under subsection (4)(a).
¶17 Even the information identified in subsection (4)(b) is not
strictly required. Most of that information may be left off of a
separate information statement where it is unknown or
unavailable. The “debtor’s Social Security number, date of birth,
and driver’s license number,” specifically, are required only “if
known.” Id. § 78B‐5‐201(4)(b)(iv). Section 78B‐5‐201(5) also suggests
that the other information identified in section 78B‐5‐201(4) must
be included only “if known or available to the judgment creditor
from its records, its attorney’s records, or the court records in the
action in which the [judgment] was entered” and that the absence
of that information may be excused by a statement indicating that
it “is unknown or unavailable.” Id. § 78B‐5‐201(5). Thus, the statute
clearly contemplates the creation of judgment liens even in the face
of limited identifying information.4 Given that the information
4. We also question whether the legislature would intentionally
impose a strict requirement that extensive personal information be
included on a recorded document in light of its apparent concern
for personal privacy in other areas. See, e.g., Utah Code Ann. § 63G‐
(continued...)
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Irving Place v. 628 Park Ave
outlined in subsection (4)(b) is not strictly required even where a
separate information statement is necessary, we agree with the
district court that the information on the judgment identifying Ring
by name was sufficient to create a valid lien.
CONCLUSION
¶18 We hold that Utah Code section 78B‐5‐201 imposes no
requirement that a judgment be a final judgment for purposes of
creating a judgment lien. We also hold that a party’s name
contained in a recorded judgment is sufficient identifying
information to create a valid judgment lien under Utah Code
section 78B‐5‐201(4). Accordingly, we affirm the district court’s
ruling that 628 Park Ave possesses a judgment lien against the
Property.
THORNE, Judge (dissenting):
¶19 I agree with the majority opinion’s conclusion that a
judgment lien may be created by a nonfinal judgment pursuant to
Utah Code sections 78B‐5‐201 and 78B‐5‐202. However, I disagree
with the majority opinion as to its conclusion that a judgment
recorded without an included copy of a separate information
statement need only identify a judgment debtor by name in order
to create a judgment lien against real property. To the contrary,
section 78B‐5‐201(4) enumerates the specific pieces of information
that must be included on either the judgment itself or an included
4. (...continued)
2‐302(1) (LexisNexis Supp. 2012) (declaring that the portion of
voter registration that includes the voter’s driver license and social
security numbers is a private record); cf. Utah R. Jud. Admin. 4‐
202.02(4)(I) (identifying court records of a party’s driver license
number, social security number, and other information as private).
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or later‐recorded separate information statement before a lien
against real property is created. It is undisputed that the judgment
628 Park Ave recorded does not contain the required information,
and I would reverse the district court’s ruling that the recorded
judgment created a lien against the Property. For these reasons, I
respectfully dissent from the majority opinion.
¶20 As of July 1, 2002, the recording of a judgment may create a
lien against the judgment debtor’s real property as soon as the
judgment, or an abstract thereof, is recorded in the office of the
county recorder in which the real property is located. See Utah
Code Ann. § 78B‐5‐201(3)(a) (LexisNexis 2012); id. § 78B‐5‐202(7);
Kitches & Zorn, LLC, v. Yong Woo Kim, 2005 UT App 164, ¶ 13, 112
P.3d 1210 (“[A]fter July 1, 2002, a person seeking a lien on real
property need only file in the office of the county recorder.”).
However, the recorded judgment or abstract must also be
accompanied by certain identifying information. See Utah Code
Ann. § 78B‐5‐201(4). This information may either be included on
the judgment or abstract itself or included together with the
judgment or abstract on a separate information statement. See id.
¶21 The requirement that additional identifying information be
recorded along with the recorded judgment or abstract of judgment
is set out in Utah Code section 78B‐5‐201(4)–(6). Section 78B‐5‐
201(4) provides,
[A]ny judgment or abstract of judgment that is
recorded in the office of a county recorder after July
1, 2002, shall include:
(a) the information identifying the judgment debtor
on the judgment or abstract of judgment; or
(b) a copy of the separate information statement of
the judgment creditor that contains:
(i) the correct name and last‐known address of
each judgment debtor and the address at which each
judgment debtor received service of process;
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(ii) the name and address of the judgment
creditor;
(iii) the amount of the judgment as filed in the
Registry of Judgments;
(iv) if known, the judgment debtor’s Social
Security number, date of birth, and driver’s license
number if a natural person; and
(v) whether or not a stay of enforcement has
been ordered by the court and the date the stay
expires.
Id. § 78B‐5‐201(4). Section 78B‐5‐201(5) permits a notation on the
separate information statement that the otherwise required
information is unknown or unavailable, so long as the information
is not “known or available to the judgment creditor from its
records, its attorney’s records, or the court records in the action in
which the judgement was entered.” Id. § 78B‐5‐201(5)(a). Finally,
section 78B‐5‐201(6) addresses the situation where a recorded
judgment or abstract of judgment does not include “the debtor
identifying information as required in Subsection (4).” Id. § 78B‐5‐
201(6)(a). In such cases, the recorded judgment “is not a lien” until
a separate information statement is recorded “in compliance with
Subsections (4) and (5)” and which “shall include” the additional
information listed in section 78B‐5‐201(6)(b) identifying the
recorded judgment to which the statement relates. Id. § 78B‐5‐
201(6)(a)–(b) (emphasis added).
¶22 Here, it is undisputed that 628 Park Ave’s recorded
judgment did not include a separate information statement
pursuant to section 78B‐5‐201(4)(b).5 Therefore, the judgment
5. 628 Park Ave represented to the district court that it had
prepared a separate information statement to be included with the
recorded judgment but that the separate statement was somehow
not recorded. While this fact is irrelevant to the legal analysis at
(continued...)
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would only create a lien upon Ring’s real property if it included
“the information identifying the judgment debtor on the
judgment.” Id. § 78B‐5‐201(4)(a). The district court concluded that,
because of the disjunctive “or” between subsections (4)(a) and
(4)(b), a judgment creditor need only satisfy one or the other. The
district court further concluded that the recorded judgment
repeatedly identified Ring as the subject of the judgment and that
the recorded judgment therefore satisfied subsection 4(a) “because
it is clear that the judgment debtor is identified in the Original
Judgment itself.”
¶23 I have no disagreement with the district court’s conclusion
that a judgment creditor may create a lien against real property by
recording either a judgment that includes “the information
identifying the judgment debtor on the judgment,” see id. § 78B‐5‐
201(4)(a), or a judgment that includes an adequate separate
information statement, see id. § 78B‐5‐201(4)(b). However, this does
not answer the question of what identifying information must be
included on the face of a judgment to satisfy section 78B‐5‐
201(4)(a). The district court implicitly ruled that a judgment
satisfies section 78B‐5‐201(4)(a) so long as it sufficiently identifies
the judgment debtor by name, and the majority opinion expressly
adopts that interpretation. However, reading the statute as a whole,
I cannot agree. See generally Archuleta v. St. Mark’s Hosp., 2009 UT
36, ¶ 8, 238 P.3d 1044 (stating that “we must read the plain
language of the statute as a whole” and “construe provisions in
harmony with other provisions in the same statute and with other
statutes under the same and related chapters” (citation and internal
quotation marks omitted)).
¶24 Looking first at the plain language of the statute, I
acknowledge that the legislature could have more clearly defined
the phrase “the information identifying the judgment debtor on the
5. (...continued)
hand, it does suggest that 628 Park Ave did not believe that
recording the judgment alone was sufficient to create a lien.
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judgment.” See Utah Code Ann. § 78B‐5‐201(4)(a) (LexisNexis
2012). Nevertheless, the legislature did not merely require
“information identifying the judgment debtor” to be included on
the judgment, but rather “the information identifying the judgment
debtor,” implying that specific identifying information is required.
See id. (emphasis added). Such specific identifying information is
immediately identified in the very next subsection, which describes
the information that must be included on a separate information
statement should a recorded judgment not already contain
adequate information on its face. See id. § 78B‐5‐201(4)(b). Reading
section 78B‐5‐201(4)(a) in conjunction with section 78B‐5‐201(4)(b),
I can only conclude that “the information identifying the judgment
debtor” that must be included on a judgment recorded under
section 78B‐5‐201(4)(a) is the very same information that is required
on a separate information statement when included with a
judgment recorded under section 78B‐5‐201(4)(b).6
¶25 This interpretation also serves to give meaning to each part
of the statute and avoids “‘rendering portions of the statute
superfluous.’” See Paar v. Stubbs, 2005 UT App 310, ¶ 6, 117 P.3d
1079 (quoting LKL Assocs., Inc. v. Farley, 2004 UT 51, ¶ 7, 94 P.3d
6. I acknowledge that, pursuant to section 78B‐5‐201(4)(b) as
modified by section 78B‐5‐201(5), it is conceivable that a judgment
lien could be created by way of a separate information statement
that contains little or no substantive information due to the
unavailability of that information. However, this hypothetical
separate information statement would still have to include the
statement that any omitted information was “unknown or
unavailable,” along with the implicit representation that the
information is “not known or available to the judgment creditor
from its records, its attorney’s records, or the court records in the
action in which the judgment was entered.” Utah Code Ann. § 78B‐
5‐201(5)(a)–(b) (LexisNexis 2012). My interpretation of section 78B‐
5‐201(4)(a) merely holds that subsection to these same minimal
standards, which were important enough to the legislature that it
enumerated them in the statute.
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279). Nearly every judgment identifies its subject or subjects by
name, and if the legislature intended the recording of a judgment
including simply the name of the judgment debtor to create a lien,
it would have had little need to specify that the recorded judgment
must also include “the information identifying the judgment
debtor.”7 Further, as nearly every recorded judgment would satisfy
a requirement that it identify the judgment debtor by name, there
would be little reason to include section 78B‐5‐201(6), which
requires the subsequent recording of a separate information
statement in order to qualify as a lien when a recorded judgment
does not include “the debtor identifying information as required in
Subsection (4).” Utah Code Ann. § 78B‐5‐201(6)(a).
¶26 Finally, this court should avoid interpreting statutes in such
a manner as to render an absurd result. See State v. Jeffries, 2009 UT
57, ¶ 8, 217 P.3d 265 (“To avoid an absurd result, we endeavor to
discover the underlying legislative intent and interpret the statute
accordingly.”). It is clear that one overall purpose of sections 78B‐5‐
201 and ‐202 is to ensure that judgment liens against real property
are discoverable by purchasers and others interested in establishing
the title status of real property. To that end, judgments must be
recorded in the county in which a judgment debtor’s real property
is located and must include information identifying the judgment
debtor.8 While the required information may be included either on
7. Indeed, if the legislature intended “the information identifying
the judgment debtor” to simply mean “the name of the judgment
debtor,” it could have stated that a judgment recorded under
section 78B‐5‐201(4)(a) shall include “the name of the judgment
debtor.”
8. I am not unconcerned with the privacy issues raised in note 4 of
the majority opinion, particularly in light of the current focus on
preventing identity theft. However, privacy is not absolute, and the
current judgment of the legislature is that the certainty required of
(continued...)
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the judgment itself or on an included separate information
statement, see Utah Code Ann. § 78B‐5‐201(4), I see no indication
that the legislature intended the required information to differ
depending on whether a judgment creditor records only the
judgment or the judgment and a separate information statement.
To the contrary, it seems absurd to me that a judgment lien created
by recording a judgment with an information statement would
require the specific, detailed information enumerated in section
78B‐5‐201(4)(b), while a judgment not containing the same
information and recorded by itself would be sufficient to create a
lien under section 78B‐5‐201(4)(a) so long as it merely contained the
name of the judgment debtor.9
¶27 For these reasons, I interpret the language “the information
identifying the judgment debtor” in Utah Code section 78B‐5‐
201(4)(a) to mean the same specific information identified in section
78B‐5‐201(4)(b). Applying that interpretation to this case, it is clear
that 628 Park Ave’s recording of the default judgment against Ring
did not create a judgment lien against Ring’s real property because
the recorded judgment did not include the required information
either on its face or on an included separate information
statement.10 Further, 628 Park Ave failed to cure this deficiency by
8. (...continued)
matching judgment liens with the appropriate real property
outweighs the affected privacy interests of judgment debtors.
9. In light of the rule announced in the majority opinion, I see no
reason why anyone would bother with preparing and recording a
separate information statement complying with the requirements
of Utah Code section 78B‐5‐201(4)(b) when recording the judgment
alone is sufficient to create a lien against the real property of any
named judgment debtor.
10. I reserve for another day any opinion on whether a judgment
lien might ever be created through substantial compliance with the
(continued...)
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recording a separate information statement pursuant to section
78B‐5‐201(6) prior to Ring’s transfer of the Property to Irving Place.
Accordingly, I would reverse the district court’s ruling that 628
Park Ave possesses a valid judgment lien against the Property, and
I respectfully dissent from the majority opinion.
10. (...continued)
requirements of Utah Code section 78B‐5‐201(4)–(6), as the present
case clearly demonstrates complete noncompliance with the
statute’s requirements.
20120031‐CA 16 2013 UT App 204