Boyle v. Clyde Snow & Sessions PC

2016 UT App 114

THE UTAH COURT OF APPEALS

THOMAS D. BOYLE,
Appellant,
v.
CLYDE SNOW & SESSIONS PC,
Appellee.

Opinion
No. 20140820-CA
Filed May 26, 2016

Third District Court, West Jordan Department
The Honorable Barry G. Lawrence
No. 090400630

Thomas D. Boyle, Appellant Pro Se
Jeffery S. Williams, Attorney for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.

TOOMEY, Judge:

¶1 Thomas D. Boyle represented Dawn Woodson in a
wrongful death action while he was employed by the law firm
Clyde Snow & Sessions PC (Clyde Snow) and then later by
Prince Yeates & Geldzahler (Prince Yeates). After six years of
litigation the parties reached a settlement. Clyde Snow asserted a
lien on a portion of the settlement funds for attorney fees. Prince
Yeates interpleaded a portion of the settlement, and the district
court awarded those funds to Clyde Snow. Boyle appeals the
district court’s order awarding the money to Clyde Snow.
Because we determine Clyde Snow did not properly intervene,
we conclude the district court lacked jurisdiction to award it
attorney fees. We therefore reverse.
 Boyle v. Clyde Snow & Sessions

BACKGROUND

¶2 In 2007, fifteen-year-old Caleb Jensen died while
participating in a wilderness therapy program. His mother,
Dawn Woodson, retained Clyde Snow to represent her in a
wrongful death action. Boyle was lead counsel on the case.
Woodson signed a contingency-fee agreement specifying that
Clyde Snow would retain forty percent of any recovery. The
agreement stated: ‚[Y]ou agree that [Clyde Snow] shall have a
lien on any claim, suit or recovery for fees, costs and expenses
arising out of or related to this Agreement and to the claims to
which this Agreement relates.‛ The agreement further provided
that if Woodson discharged the firm, ‚*Clyde Snow+ shall be
compensated for the reasonable value of the Firm’s services.‛

¶3 In June 2010, three years after the case began, Boyle left
Clyde Snow and joined Prince Yeates, and Woodson opted to
have her case follow him there. Clyde Snow then filed a notice of
its attorney lien. While he was with Prince Yeates, Boyle
continued to represent Woodson until the case settled.

¶4 On May 30, 2013, the parties to the wrongful death suit
informed the district court that they had reached a settlement
agreement and successfully moved to vacate the trial dates. In
early June, the defendants moved to dismiss the plaintiffs’
claims with prejudice. But in late June, before the court made a
decision regarding the defendants’ motion to dismiss, Clyde
Snow filed a restated notice of its attorney lien and ‚object*ed+ to
the dismissal of [the underlying action] until the issues raised by
the Attorney’s Lien ha[d] been resolved.‛

¶5 The court held a telephonic hearing regarding the
defendants’ motion to dismiss in July 2013, and addressed Clyde
Snow’s objection to dismissal. During the hearing, Blake S.
Atkin, on behalf of Boyle and Prince Yeates, expressed their
intent to object to Clyde Snow’s attorney lien. The defendants
expressed concerns about keeping the case open, explaining that

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there was a confidentiality agreement in the settlement and that
they were ‚concerned that an ongoing dispute between two . . .
well known law firms in this valley [was] likely to attract some
attention.‛ The defendants also pointed out that Utah Code
section 38-2-7(4) ‚provides that an attorney can enforce a lien
either by intervening in a pending action, which [Clyde Snow]
has not . . . done yet, or by filing a separate legal action.‛ They
ultimately expressed that they thought it would ‚be a lot fairer
to the defendants to dismiss this action,‛ ‚to close out this case,‛
and to have Clyde Snow file a separate suit against Prince Yeates
or Boyle. Clyde Snow responded that it should not have to forgo
its option to intervene. The court ruled it would dismiss
Woodson’s claims and keep the case open for the limited
purpose of resolving Clyde Snow’s attorney lien, reasoning that
it did not make ‚a whole lot of sense to initiate a new lawsuit.‛
The court further ordered Prince Yeates and Clyde Snow to file
briefs regarding their positions on the attorney lien (Position
Statements) and ordered them to undergo mediation. It added
that no other briefing would be allowed.

¶6 Woodson later filed a motion to ‚nullify‛ Clyde Snow’s
lien, arguing that Clyde Snow failed to follow the statutory
requirements for perfecting a lien.1 She also argued Clyde Snow
had not properly intervened as a party in the action and thus
had not invoked the court’s jurisdiction to enforce the lien. This

1. The identity of Atkin’s client is not clear. On August 9, 2013,
Atkin filed a notice of appearance for Woodson and filed
Woodson’s motion to ‚nullify‛ Clyde Snow’s attorney lien. But
that same day, Prince Yeates filed its Position Statement,
indicating Atkin was representing Boyle and would be filing a
separate Position Statement. Atkin also purported to represent
Boyle and Prince Yeates at the July 2013 hearing. Although
Clyde Snow points out the inconsistency, no one argues that it
was improper. Because the motion caption identified Woodson
as the plaintiff, and Atkin as her attorney, we accept it as her
motion.

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motion was never submitted for decision, and the court therefore
did not address it. Woodson did not participate further in the
case.

¶7 After the court dismissed the underlying action, Clyde
Snow, Prince Yeates, and Boyle engaged extensively with each
other over the disputed attorney fees. Prince Yeates filed its
Position Statement explaining that the dispute involved Clyde
Snow, Boyle, and another attorney who worked on the case, but
not Prince Yeates. Prince Yeates disclaimed any interest in the
funds and informed the court that it had set aside funds in trust
as security for any interest Clyde Snow might have.

¶8 Clyde Snow’s Position Statement argued that the
underlying case originated with Clyde Snow through a
contingency fee agreement with Woodson and that it was
entitled to receive the reasonable value for the services it
provided. It also disputed Woodson’s motion to nullify, arguing
the motion was based on ‚the false assumption that Clyde
Snow’s representation . . . was terminated for cause.‛

¶9 In January 2014, Clyde Snow filed another restated notice
of its lien, and Boyle requested an evidentiary hearing. Prince
Yeates filed a motion asking to ‚interplead‛ the disputed funds
into a court account. Clyde Snow consented, and Boyle
responded by disputing the amount to be interpleaded. The
court granted Prince Yeates’s motion. After the funds were
interpleaded, Clyde Snow filed a document, titled ‚First
Amended Complaint Regarding Entitlement to Interpled Funds
and Response to Any Crossclaim,‛ asserting its claim to the
settlement funds. Boyle answered Clyde Snow’s purported
complaint, arguing the firm should not receive any of the funds
because it had mismanaged the case.2 Boyle also gave an account

2. Boyle also asserted a purported counterclaim which was later
dismissed.

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of the troubled history he had with Clyde Snow during his
employment with, and exit from, that firm.

¶10 In April 2014, Boyle moved to dismiss Clyde Snow’s
purported complaint because it failed to intervene as required by
rule 24 of the Utah Rules of Civil Procedure. The district court
denied Boyle’s motion, concluding that Clyde Snow was a
‚proper interpleader party‛ and any procedural objection
regarding the requirement to file a formal motion to intervene
‚had been resolved by prior court orders‛ and ‚the
establishment of an interpleader‛ account. It further explained
that Clyde Snow had ‚substantially complied‛ with the
requirement to intervene, and any objection Boyle might have
had was waived ‚based on the substantial process and other
events that ha*d+ occurred‛ since the dismissal of the underlying
case. The court ultimately awarded all of the interpleaded funds
to Clyde Snow.

¶11 Boyle appeals.

ANALYSIS

¶12 Boyle presents this case as an appeal taken as a matter of
right under Utah Code section 78A-3-102(3)(j), and both parties
to the appeal focus their arguments on the merits of the district
court’s decisions. But we see more fundamental jurisdictional
and procedural problems with this appeal. Neither Boyle nor
Clyde Snow formally intervened in the action below and, aside
from their interest in being paid for representing Woodson,
neither has a stake in the subject matter of the underlying action.
Utah appellate courts have held ‚that persons or entities that are
not parties to a proceeding are not entitled to an appeal of right.‛
See Utah Down Syndrome Found., Inc. v. Utah Down Syndrome
Ass’n, 2012 UT 86, ¶ 9, 293 P.3d 241. Our courts have also held
that a district court’s order ‚‘in favor of a person who is not a
party to the action or proceeding is void because the court has no
jurisdiction to make it.’‛ See Ostler v. Buhler, 1999 UT 99, ¶ 7, 989

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P.2d 1073–74 (quoting Openshaw v. Openshaw, 12 P.2d 364, 365
(Utah 1932)). Subject matter jurisdiction is not a matter of the
court’s discretion, see Crump v. Crump, 821 P.2d 1172, 1173–74
(Utah Ct. App. 1991), and ‚*a+ lack of jurisdiction can be raised at
any time by either party or by the court,‛ see Utah Down
Syndrome Found., 2012 UT 86, ¶ 7 (citation and internal quotation
marks omitted). Accordingly, as a threshold matter, we must
determine whether Clyde Snow properly intervened in the
underlying action to enforce its attorney lien. If it did not, the
district court had no jurisdiction and any order based on
motions made by and for the interests of the non-parties are
void. See Ostler, 1999 UT 99, ¶ 7. Whether Clyde Snow properly
intervened in the underlying action or whether the parties
waived any objection to Clyde Snow’s participation in the case
present questions of law, which are reviewed for correctness. Id.
¶ 5.

I. Intervention

¶13 An attorney seeking to enforce an attorney lien must do
so either ‚by filing a separate legal action‛ or ‚by moving to
intervene in a pending legal action.‛ Utah Code Ann.
§ 38-2-7(4)(a) (LexisNexis 2014). This section does not confer an
unconditional right to intervene. See Bishop v. Quintana, 2005 UT
App 509U, para. 5. Instead, a person desiring to intervene must
submit a ‚timely application‛ and ‚shall serve a motion to
intervene upon the parties as provided in Rule 5.‛ Utah R. Civ.
P. 24(a)–(c); see also Ostler, 1999 UT 99, ¶ 7 (explaining that the
use of the term ‚shall‛ means ‚that, absent waiver by the parties,
non-parties must adhere to the procedural requirements of Rule
24(c) in order to intervene in an action‛).

¶14 Generally, a motion to intervene is timely only ‚if it is
filed before the final settlement of all issues by all parties, and
before entry of judgment or dismissal.‛ See Supernova Media, Inc.
v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶¶ 24–26,
297 P.3d 599 (emphasis added) (citations and internal quotation
marks omitted); see also Gardiner v. Taufer, 2014 UT 56, ¶ 18, 342

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P.3d 269; Parduhn v. Bennett, 2005 UT 22, ¶ 15, 112 P.3d 495;
Jenner v. Real Estate Servs., 659 P.2d 1072, 1074 (Utah 1983);
Skypark Airport Ass’n v. Jensen, 2011 UT App 230, ¶ 3, 262 P.3d
432; Fisher v. Fisher, 2003 UT App 91, ¶ 20, 67 P.3d 1055. The
Utah Supreme Court has explained that ‚courts are reluctant to
make exceptions to [this] general rule and do so only upon a
strong showing of entitlement and justification.‛ Jenner, 659 P.2d
at 1073–74 (citations omitted). It also has explained that allowing
intervention post-judgment is disfavored because it tends ‚to
prejudice the rights of existing parties‛ and can interfere with
the ‚orderly processes of the court.‛3 Id.; accord Parduhn, 2005 UT
22, ¶ 15. Thus, ‚absent waiver by the parties, non-parties must
adhere to the procedural requirements‛ of rule 24 of the Utah
Rules of Civil Procedure to timely intervene in an action. Ostler,
1999 UT 99, ¶ 7.

¶15 Here, Clyde Snow did not file a timely motion to
intervene. First, the only filing on behalf of Clyde Snow
submitted before the parties’ settlement was a notice of Clyde
Snow’s lien. After the parties’ settlement but before the court
dismissed Woodson’s claims, Clyde Snow filed a restated notice
of its attorney lien and an objection to the parties’ motion to
dismiss the case, which stated that ‚Clyde Snow reserve*d+ its

3. Indeed, the Utah Supreme Court has noted that this rule is
consistent with its instruction that, absent ‚‘special
circumstances,’‛ an attorney lien should be enforced in a
separate action. Ostler v. Buhler, 1999 UT 99, ¶ 9 n.3, 989 P.2d
1073 (quoting Midvale Motors, Inc. v. Saunders, 442 P.2d 938, 941
(Utah 1968)); see also Dahl v. Dahl, 2015 UT 79, ¶ 211 n.33
(advising an attorney to file a separate suit to recover fees);
Neilson v. Neilson, 780 P.2d 1264, 1271 (Utah Ct. App. 1989)
(explaining that generally attorney liens ‚may not be foreclosed
by way of the attorney’s request for that relief in the original
action; instead, counsel must bring a separate action against the
client to determine the amount of the fee and foreclose the lien‛).

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statutory right to intervene.‛ But Clyde Snow never actually
moved to intervene in the pending action.

¶16 Second, even if we construed Clyde Snow’s objection as a
deficient attempt to intervene, it was not filed in a timely
fashion. See Supernova Media, 2013 UT 7, ¶ 24. Clyde Snow filed
its objection on June 28, 2013, weeks after the actual parties had
settled and resolved their dispute, after the parties’ motion to
dismiss the case with prejudice, and after the court granted the
parties’ motion to vacate the trial dates. The record shows that
the court’s only reason for not dismissing and closing the case
was Clyde Snow’s improper objection; no other issues between
the parties remained unresolved in the underlying action when
Clyde Snow objected to the parties’ motion to dismiss. See
Skypark Airport Ass’n, 2011 UT App 230, ¶¶ 3–7 & n.2 (holding
that the trial court did not err by denying a non-party’s motion
to intervene as untimely when the non-party filed its motion
after the verdict but before judgment was entered). Thus, unless
the parties waived their right to object to Clyde Snow’s
intervention, its failure to timely intervene means it was not a
party when it filed its motion and the court lacked jurisdiction to
order distribution of the disputed settlement funds. See Ostler v.
Buhler, 1999 UT 99, ¶¶ 7–8, 989 P.2d 1073.

II. Waiver

¶17 Waiver is the only exception to the procedural
requirements for intervention under rule 24 of the Utah Rules of
Civil Procedure. See id. ¶ 7. Parties to an action may waive the
formal intervention requirements by implicitly or explicitly
allowing a non-party’s consistent participation in a pending
action. See Utah Ass’n of Counties v. Tax Comm’n, 895 P.2d 825, 827
(Utah 1995) (holding that a party waived its right to object to a
non-party’s intervention because the non-party significantly
participated in the proceedings, including conducting cross-
examinations, without objection); Utah Ass’n of Counties v. Tax
Comm’n, 895 P.2d 819, 820–21 (Utah 1995) (holding that a party
waived its right to challenge a non-party’s intervention because

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the nonparty had ‚participated throughout the entire‛
proceeding without objection). But see Ostler, 1999 UT 99, ¶¶ 7–9
(holding that, even though the party failed to respond to a non-
party’s motions for two years, the party did not waive his right
to object to the non-party’s intervention); Fisher, 2003 UT App 91,
¶ 19 (holding that the parties did not waive the intervention
requirement because one party objected to the non-party’s
participation in the action and the non-party did not attempt to
participate until after judgment was entered). But, as the Utah
Supreme Court noted in Ostler, in cases where the court has
recognized waiver, the parties to the action allowed ‚the non-
party to intervene not only by failing to object to the non-party’s
presence but also by failing to object to the non-party’s actual
participation in the underlying action.‛ Ostler, 1999 UT 99, ¶ 8.

¶18 Under similar circumstances, in Ostler v. Buhler, the Utah
Supreme Court held that a trial court’s order to distribute
settlement funds directly to an attorney was void because the
attorney failed to properly intervene prior to judgment. 1999 UT
99, ¶ 9, 989 P.2d 1073. In that case, an employee sued a former
employer for civil rights violations. Id. ¶ 2. After the parties
reached a settlement, the employee’s attorney filed a notice of a
lien for attorney fees and filed a motion asking the court to
deposit settlement funds in a court account. Id. Two years later,
he filed a motion requesting that the court pay him directly,
which the court granted. Id. ¶ 3. The employee then objected,
arguing the ‚court lacked jurisdiction to enter an order in favor
of a non-party.‛ Id. ¶ 4.

¶19 On appeal, the attorney argued that the employee’s
failure to object to his motion for two years constituted waiver.
Id. ¶ 6. The Utah Supreme Court disagreed, clarifying that this
was not a case in which the employee or the former employer,
the parties to the action, allowed the attorney to participate. Id.
¶¶ 7–9. Rather, the court explained, ‚the case between the
parties had ended before [the attorney] attempted to intervene,‛
and it saw ‚no reason to require a party to respond to a non-
party’s post-judgment motions at the risk of having those non-

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parties treated as proper interveners.‛ Id. ¶ 9. It stated that ‚*the
attorney’s+ motions were post-judgment motions that in no way
affected the merits of the underlying action, its settlement, or its
dismissal.‛ Id. Accordingly, the court held ‚that *the employee’s+
failure to respond to *the attorney’s+ post-judgment motions did
not constitute a waiver of his right to object to the trial court’s
attorney fees order,‛ and that because ‚*the attorney+ was not a
party, . . . the trial court lacked jurisdiction to order distribution
of settlement proceeds to him.‛ Id.

¶20 Here, Clyde Snow did not engage in any of the
underlying action or proceedings on its own behalf and, except
for its interest in being paid for its work in representing
Woodson, it had no stake in the subject matter. See id.; see also
Interstate Land Corp. v. Patterson, 797 P.2d 1101, 1107–08 (Utah Ct.
App. 1990) (requiring the interest of a party seeking to intervene
as a matter of right to be ‚a direct claim upon the subject matter
of the action such that the applicant will either gain or lose by
direct operation of the judgment to be rendered‛). Further, aside
from filing a notice of the attorney lien, Clyde Snow filed
nothing on its own behalf until after the parties’ claims had been
settled and they had filed stipulated motions to dismiss the case.

¶21 Similar to Ostler, this is not a case where the parties
implicitly allowed Clyde Snow to participate in the underlying
action; instead, the record shows the parties objected to its
participation. See Fisher v. Fisher, 2003 UT App 91, ¶ 19, 67 P.3d
1055 (holding that the parties did not waive the intervention
requirement because they challenged the non-party’s
participation in a motion to quash). At the telephonic hearing on
Clyde Snow’s objection to the parties’ motion to dismiss, the
defendants voiced their concerns about the court keeping the
case open to resolve the attorney lien dispute. They stated, ‚It
would certainly . . . be a lot fairer . . . to dismiss this action, to
close out this case . . . otherwise [we] are going to continue to be
at least peripherally involved in this matter.‛ The court
responded, ‚If I were to enter an order dismissing all claims
against your client with prejudice, however, simply leaving open

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the issue of the attorney’s lien, wouldn’t that get you what you
needed?‛ The defendants replied, ‚Your Honor. I just think that
it would be cleaner the other way.‛ The defendants later
explained,

[We] simply want[] to . . . avoid any publicity on
this matter . . . . And we would be concerned that
an ongoing dispute between two . . . well known
law firms in this valley is likely to attract some
attention. And if *the defendants’ names are+
attached in some manner to this ongoing dispute
between these giants of the bar that [we are] going
to be dragged in, however peripherally, in a way
that [we have] paid to not be.

After the defendants expressed their concerns and objections to
Clyde Snow’s participation, the court asked if anybody had ‚a
strong objection‛ to keeping the case open, and no one replied.
The court then decided to keep the case open for the sole
purpose of resolving Clyde Snow’s attorney lien issue.

¶22 In doing so, the court inappropriately allowed Clyde
Snow to derail resolution of the case by objecting to the parties’
stipulated agreement to dismiss Woodson’s claims. The court
continuously referenced Clyde Snow and Boyle as parties even
though neither had intervened as a party in this case. Although
the actual parties did not reply when the court asked if anyone
strongly objected to Clyde Snow’s participation, any further
objections from the defendants would have been futile. Further,
the court’s decision put the actual parties in an untenable
situation: they either had to object to Clyde Snow’s presence at
the risk of transforming Clyde Snow from non-party status to
that of a party or refrain from objecting at the risk of having the
court rule in a manner contrary to their interests. See Oster, 1999
UT 99, ¶ 9 (explaining that a party’s response to a non-party’s
post-judgment motions puts the party ‚at the risk of having
those non-parties treated as proper parties‛). Because Clyde

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Snow did not timely move to intervene and the parties did not
waive the procedural requirements by allowing Clyde Snow to
participate in the litigation, we conclude it was not a party to the
underlying action, and the court therefore erred when it held the
underlying case open for the sole purpose of resolving the
disputes of non-parties.

¶23 Generally, ‚[a] court cannot go out of its appointed sphere
and make orders with respect to persons, who are strangers to its
proceedings.‛ Rolando v. District Court of Salt Lake City, 271 P.
225, 226 (Utah 1928); see also Neilson v. Neilson, 780 P.2d 1264,
1271 (Utah Ct. App. 1989) (explaining that trial courts have no
authority to render decisions on issues presented by non-parties
and that if they do, those decisions will have no force or effect).
Rather, ‚*u+nder our rules, it is the service of process, the
affirmative act of filing suit, or the act of seeking to intervene as
a party that subjects one to the jurisdiction of the courts.‛ Utah
Down Syndrome Found., Inc. v. Utah Down Syndrome Ass’n, 2012
UT 86, ¶ 18, 293 P.3d 241. And ‚the law is clear that
‘acquiescence of the parties is insufficient to confer jurisdiction
on the court.’‛ Id. ¶ 24 (quoting Bradbury v. Valencia, 2000 UT 50,
¶ 8, 5 P.3d 649). Accordingly, because Clyde Snow, Boyle, and
Prince Yeates were not parties to the underlying action, the court
lacked jurisdiction to make orders with respect to their interests.
See Neilson, 780 P.2d at 1271 (explaining that it would be
improper for the trial court to grant a request to enforce an
attorney lien, if the attorney is not a party to the underlying
case). Therefore, the court’s orders stemming from Clyde Snow’s
motions are void, including its decision to keep the case open
based on Clyde Snow’s objection and its orders based on Prince
Yeates’s interpleader motion.4

4. The district court denied Boyle’s motion to dismiss,
concluding that ‚Clyde Snow *was+ a proper interpleader
party.‛ And, on appeal, Clyde Snow asserts that when ‚the
district court approved the establishment of an interpleader
(continued<)

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¶24 Finally, because neither Clyde Snow nor Boyle were
parties to the underlying action, they are not entitled to an
appeal as of right. See Utah Down Syndrome Found., 2012 UT 86,
¶ 9 (explaining that ‚persons or entities that are not parties to a
proceeding are not entitled to an appeal as of right‛ and, instead,
‚an extraordinary writ is the vehicle pursuant to which‛ non-
parties can properly challenge a court order (citation and
internal quotation marks omitted)). We therefore lack
jurisdiction to review Boyle’s and Clyde Snow’s arguments
regarding the merits of the district court’s determinations.

(