Mendenhall v. Summerwood Investments

2024 UT App 45

THE UTAH COURT OF APPEALS

DEBRA MENDENHALL AND GARY MENDENHALL,
Appellants,
v.
SUMMERWOOD INVESTMENTS, LLC; SUMMERWOOD CONDO
PARTNERS, LLC; SUMMERWOOD CORPORATION, INC.; HANDS ON
CAPITAL, INC.; AND BME ENTERPRISES, LLC,
Appellees.

Opinion
No. 20210144-CA
Filed April 4, 2024

Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 090401280

Bruce M. Pritchett, Jonathan R. Rudd, and
Jeremy C. Sink, Attorneys for Appellants
Robert G. Crockett, Tanner J. Bean, Mark F. James,
and Mitchell A. Stephens, Attorneys for Appellees

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1 Debra and Gary Mendenhall appeal from the district
court’s denial of their motion to intervene in this litigation, which
arises out of an agreement between Summerwood Condo
Partners, LLC (Condo Partners) and business entities previously
owned by Trevor and Linda Woolf. The Mendenhalls also appeal
from the district court’s dismissal of the underlying action. We
conclude that the Mendenhalls’ appeal from the order denying
their motion to intervene was untimely. We further conclude that
the Mendenhalls lack standing to appeal from the dismissal of the
underlying action. Accordingly, we dismiss the appeal.
Mendenhall v. Summerwood Investments

BACKGROUND

¶2 The Mendenhalls and the Woolfs are cousins. In 2003, the
Mendenhalls loaned money to the Woolfs to assist the Woolfs in
financing a condominium complex. At the time, the Woolfs
owned two holding companies, Summerwood Corporation, Inc.
and Hands On Capital, Inc. (collectively, Hands On), which in
turn owned Summerwood Investments, LLC (Summerwood).
Summerwood owned the condominium complex.

¶3 In 2008, Condo Partners, an unrelated entity, entered an
agreement to purchase Summerwood from Hands On (the
Purchase Agreement). The sale closed that same year. At the time
of the sale, the Woolfs still owed the Mendenhalls a substantial
amount of money on their loan. The Purchase Agreement,
however, included provisions under which Hands On might
receive title to three condominium units. The Woolfs assert that
the value of those units was roughly equal to the amount they
owed the Mendenhalls and that they, as owners of Hands On,
intended to use those units to pay their debt to the Mendenhalls.
In the end, however, Condo Partners did not transfer title to any
condominium units to Hands On.

¶4 The Woolfs then recorded a notice of interest against
several condominium units, and Condo Partners and
Summerwood (collectively, Condo Partners) responded by filing
a Verified Petition to Nullify Wrongful Lien, thereby initiating
this litigation. The Woolfs filed an answer. They also (as
counterclaim petitioners), together with Hands On (as a third-
party petitioner), asserted claims against Condo Partners for,
among other things, an order requiring Condo Partners to convey
to them three condominium units or the value of three
condominium units. Additionally, the Woolfs at some point
drafted and signed a document purporting to assign from Hands
On to the Mendenhalls “a 100% undivided interest, other rights

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Mendenhall v. Summerwood Investments

and titles in Three (3) of the Condominium Units described in [the
Purchase Agreement]” (the Assignment).

¶5 After this litigation commenced, the Woolfs filed for
bankruptcy, and eventually the bankruptcy court approved the
sale of Hands On to BME Enterprises, LLC (BME Enterprises).
Apparently aware that Hands On, under its new ownership,
intended to settle and dismiss this litigation, thereby ending any
chance for the Woolfs to obtain the three condominium units and
thereby pay their debt to the Mendenhalls, the Mendenhalls filed
a motion to intervene, asking the court to substitute them in as the
real parties in interest in place of the Woolfs and Hands On. In
support of their motion, the Mendenhalls produced the
Assignment, which (as already noted) purports to have
transferred “a 100% undivided interest, other rights and titles in
Three (3) of the Condominium Units described in [the Purchase
Agreement]” from Hands On to the Mendenhalls.

¶6 Condo Partners opposed the motion, arguing that the
Woolfs and Hands On’s claims had not been assigned to the
Mendenhalls but, instead, had been acquired by BME Enterprises
when it purchased the Woolfs’ interest in Hands On out of the
bankruptcy estate. Then BME Enterprises filed its own motion to
intervene, asking to be substituted in as the real party in interest
in place of the Woolfs. The district court granted BME Enterprises’
motion and substituted it in as the real party in interest in place of
the Woolfs. The court also provisionally granted the Mendenhalls’
motion to intervene so that they could litigate the issue of whether
Hands On’s interest in the Purchase Agreement and claims
arising under the Purchase Agreement had been conveyed to
them by the Assignment.

¶7 Following discovery, Condo Partners moved for summary
judgment on the Mendenhalls’ motion to intervene, arguing that
the Assignment was not valid and that, even if it was, it conveyed
to the Mendenhalls only proceeds of the Purchase Agreement—

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Mendenhall v. Summerwood Investments

i.e., whatever condominium units Hands On actually received—
and, therefore, that the Mendenhalls lacked standing to intervene.
The Mendenhalls opposed summary judgment, arguing that the
Assignment was valid and clearly conveyed more than just
proceeds of the Purchase Agreement. The district court denied
Condo Partners’ motion for summary judgment, and the case
proceeded to a bench trial on the issues related to the
Mendenhalls’ intervention.

¶8 After the trial, the district court entered an order on
January 15, 2021, vacating its prior provisional order of
intervention and ultimately denying the Mendenhalls’ motion to
intervene. Then on January 21, 2021, based on a settlement
agreement between the parties to the underlying action—Condo
Partners, Hands On, and BME Enterprises (collectively, the
Appellees)—the court issued a judgment dismissing the
underlying action with prejudice.

¶9 On February 19, 2021, the Mendenhalls filed a notice of
appeal from both the January 15 order denying their motion to
intervene and the January 21 judgment dismissing the underlying
action. Following initial briefing and oral argument on appeal,
this court asked the Mendenhalls and the Appellees for
supplemental briefing. With their supplemental brief, the
Appellees filed a motion to dismiss the appeal, arguing that this
court lacks jurisdiction. 1 The Mendenhalls submitted no response
to the Appellees’ motion to dismiss.

ISSUES AND STANDARD OF REVIEW

¶10 We first address the jurisdictional issues raised by the
Appellees. See Living Rivers v. Executive Dir. of the Utah Dep’t of

1. “A lack of jurisdiction can be raised by the court or either party
at any time.” A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323,
325 (Utah 1991) (cleaned up).

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Mendenhall v. Summerwood Investments

Env’t Quality, 2017 UT 64, ¶ 26, 417 P.3d 57 (“Before we consider
the arguments before us on appeal, we must evaluate [the
jurisdictional issue].”); Employers’ Reinsurance Fund v. Utah Labor
Comm’n, 2013 UT App 139, ¶ 6, 304 P.3d 470 (per curiam) (“It is a
court’s first duty to determine if it has jurisdiction.”). “Whether
appellate jurisdiction exists is a question of law, which we review
for correctness.” First Nat’l Bank of Layton v. Palmer, 2018 UT 43,
¶ 5, 427 P.3d 1169 (cleaned up). Because we conclude that we do
not have jurisdiction, we need not identify, and may not address,
the other issues raised on appeal. See Employers’ Reinsurance Fund,
2013 UT App 139, ¶ 6 (“If the court concludes that it does not have
jurisdiction, it retains only the authority to dismiss the action.”
(cleaned up)).

ANALYSIS

¶11 The Appellees contend that to the extent the Mendenhalls
appeal from the January 15, 2021 order denying their motion to
intervene, the Mendenhalls’ notice of appeal is untimely and,
thus, does not confer jurisdiction on this court. The Appellees
further contend that to the extent the Mendenhalls appeal from
the January 21, 2021 judgment dismissing the underlying action,
the Mendenhalls, as non-parties, “have no standing.” We address
each of the Appellees’ contentions in turn.

I. The Mendenhalls’ Appeal from the Denial of Their Motion to
Intervene

¶12 The Utah Supreme Court has long held that “an order
denying a motion to intervene is a final disposition of the claims
asserted by the applicant for intervention and is appealable.”
Millard County v. Utah State Tax Comm’n ex rel. Intermountain Power
Agency, 823 P.2d 459, 461 (Utah 1991); see also Tracy v. University of
Utah Hosp., 619 P.2d 340, 342 (Utah 1980) (“An order which denies
an application for intervention, with prejudice, does make
final disposition of the claims and assertions of the applicant,

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Mendenhall v. Summerwood Investments

and is therefore appealable.”); Commercial Block Realty Co. v. U.S.
Fid. & Guar. Co., 28 P.2d 1081, 1082 (Utah 1934) (“[A] judgment
denying the right to intervene is appealable.”). A notice of appeal
“must be filed with the clerk of the trial court within 30 days after
the date of entry of the judgment or order appealed from.” Utah
R. App. P. 4(a). And “[f]ailure to file a timely notice of appeal
deprives this court of jurisdiction over the appeal.” Pruett v.
Anderson, 2013 UT App 33, ¶ 7, 296 P.3d 797 (per curiam), cert.
denied, 308 P.3d 536 (Utah 2013). The case of Carrier v. Salt Lake
County Planning Commission, 2003 UT App 30U (per curiam),
illustrates the application of these principles in cases such as this. 2

¶13 In Carrier, the district court denied a motion to intervene.
Id. para. 2. Months later, it entered summary judgment on the
underlying claims. Id. The applicant for intervention then filed a
notice of appeal from the denial of its motion to intervene. Id. The
applicant’s notice of appeal was filed “within thirty days after
entry of the summary judgment, but more than thirty days after
denial of his motion to intervene.” Id. Because the appeal from the
denial of the motion to intervene was not filed within thirty days
of the order denying intervention, this court summarily dismissed
the appeal from the denial of the motion to intervene on the
grounds that the appeal was untimely and, thus, that this court
lacked jurisdiction. Id. paras. 3‒4; see also Tracy, 619 P.2d at 342
(concluding that failure to perfect an appeal from an order
denying intervention “goes to the jurisdiction” of the appellate
court).

2. Although Carrier is a memorandum decision deemed not for
official publication, this court’s memorandum decisions have
“precedential authority” and are “automatically part of the law of
this state, unless and until contravened by [the Utah Supreme
Court], the legislature, or the people through the processes
authorized for the making of new law.” Grand County v. Rogers,
2002 UT 25, ¶ 16, 44 P.3d 734.

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Mendenhall v. Summerwood Investments

¶14 The relevant facts here are identical to the relevant facts in
Carrier. As the district court did with the applicants for
intervention in Carrier, the district court here denied the
Mendenhalls’ motion to intervene. The district court entered its
order dismissing the Mendenhalls’ motion to intervene on
January 15, 2021. Then, like the applicants for intervention in
Carrier, the Mendenhalls did not file their notice of appeal until
more than thirty days after entry of the order denying their
motion to intervene—on February 19, 2021. Accordingly, as with
the notice of appeal in Carrier, we must conclude that the
Mendenhalls’ notice of appeal was not timely filed as to the order
denying intervention. See 2003 UT App 30U, paras. 3‒4. And
because the notice of appeal was not timely in relation to the order
denying intervention, we lack jurisdiction to consider the
Mendenhalls’ appeal from that order and must dismiss it. See id.

II. The Mendenhalls’ Appeal from the Order Dismissing the Case

¶15 The Mendenhalls also appeal from the district court’s order
dismissing the underlying action. But because the district court
ultimately denied the Mendenhalls’ motion to intervene, the
Mendenhalls were not parties to the underlying action when the
action was dismissed. And “persons or entities that are not parties
to a proceeding are not entitled to an appeal as of right.” Utah
Down Syndrome Found., Inc. v. Utah Down Syndrome Ass’n, 2012 UT
86, ¶ 9, 293 P.3d 241. Thus, when a non-party appeals, we are
without jurisdiction and must dismiss the appeal. See Weber
County v. Ogden Trece, 2013 UT 62, ¶ 28, 321 P.3d 1067 (“Since none
of the so-called appellants are parties to the case, they are not
entitled to an appeal as of right.”); Utah Down Syndrome Found.,
Inc., 2012 UT 86, ¶ 32 (dismissing the appeal because “as a
nonparty, [the appellant] was not entitled to an appeal as of
right”); Brigham Young Univ. v. Tremco Consultants, Inc., 2005 UT
19, ¶ 46, 110 P.3d 678 (noting that “nonparties . . . cannot appeal
the . . . order”), overruled on other grounds by Madsen v. JPMorgan
Chase Bank, 2012 UT 51, 296 P.3d 671.

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Mendenhall v. Summerwood Investments

CONCLUSION

¶16 The Mendenhalls appeal from the order denying their
motion to intervene and from the judgment dismissing the
underlying action. Their appeal from the order denying their
motion to intervene was untimely because it was not filed until
more than thirty days after the district court’s entry of that order.
Moreover, as nonparties to the underlying action, the
Mendenhalls lack standing to appeal from the judgment
dismissing that action. For these reasons, this court lacks
jurisdiction, and we dismiss the Mendenhalls’ appeal.

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