Cox v. Armstrong Construction Inc.

2025 UT App 91

THE UTAH COURT OF APPEALS

ITZEL COX AND BAUDELIO COVARRUBIAS,
Appellees,
v.
ARMSTRONG CONSTRUCTION, INC.,
Appellant.

Opinion
No. 20240560-CA
Filed June 12, 2025

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 200903803

Paul W. Jones, Attorney for Appellant
Itzel Cox, Appellee Pro Se
Douglas C. Shumway and Gavin Wenzel,
Attorneys for Appellee Baudelio Covarrubias

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.

ORME, Judge:

¶1 Armstrong Construction, Inc. (Armstrong) challenges
Baudelio Covarrubias’s intervention in a suit between Armstrong
and its former customer, Itzel Cox. Because we conclude that,
given his assigned right to redeem, Covarrubias had an interest in
the property that was the subject of the suit, we affirm the district
court’s grant of his motion to intervene.

BACKGROUND

¶2 Cox hired Armstrong to construct a duplex on a lot she
owned (the Property). The relationship soured, and Cox
Cox v. Armstrong Constr.

eventually filed a complaint alleging that Armstrong had
negligently breached its “duty to properly perform construction
services,” provided “substandard work,” filed a wrongful lien on
the Property, and defamed her in pleadings before the Utah
Division of Professional Licensing.

¶3 Armstrong counterclaimed, asserting that Cox had
breached the construction contract in failing to pay for
Armstrong’s work, breached the covenant of good faith and fair
dealing in improperly terminating Armstrong based on false
claims, and commercially disparaged Armstrong. Armstrong
then filed a motion for summary judgment on its counterclaims.
And Armstrong later filed a second motion for summary
judgment on Cox’s claims.

¶4 In the meantime, Cox deeded the Property to Covarrubias,
which she later claimed she did in satisfaction of a $150,000 debt
she owed him. But Covarrubias then transferred the Property to
himself and Cox as tenants in common.

¶5 The district court eventually granted summary judgment
to Armstrong on both motions, simultaneously dismissing Cox’s
claims. The day after the court entered its summary judgment
ruling, Cox transferred her ownership interest in the Property
back to Covarrubias, once again leaving him the sole owner.

¶6 The court then entered final judgment in favor of
Armstrong in the amount of $146,475.01, including attorney fees.
When Cox failed to pay the judgment, Armstrong filed an ex parte
motion asking the district court to schedule a hearing and order
Cox to “attend and answer under oath questions about” her assets
that could be used to collect on the judgment. The court granted
the motion, but Cox failed to appear at the hearing. After being
held in contempt, Cox eventually filed a document titled
“Answers to Questions About Judgment Debtor’s Property” in

20240560-CA 2 2025 UT App 91
Cox v. Armstrong Constr.

which she claimed to have meager savings, substantial debt, and
a “Right to purchase interest” in the Property.

¶7 Armstrong then applied for a writ of execution on the
Property. At the ensuing execution sale, Armstrong, the only
bidder, made a credit bid of $5,000 “for all the right, title, claim
and interest of said Itzel Cox in and to” the Property. The
certificate of the execution sale provided that the Property
remained “subject to redemption in lawful money of the United
States of America, pursuant to the statute in such cases made and
provided.” At a later hearing, Armstrong noted it had purchased
“the equitable interest of Itzel Cox” in this sale. The sale left a
remaining balance on the judgment, which now totaled
$155,291.31, including accrued interest.

¶8 Two months later, Cox emailed Armstrong’s counsel
asking, “Can you prepare the certificate of redemption so I can
drop off the funds of redemption?” Counsel responded,
“Armstrong will not redeem the property to you.” After noting
that Cox had “evaded providing . . . financial information” and
claimed to have limited income, Armstrong’s counsel said, “Yet
you now claim that you have come up with $5,300 to redeem your
interest in [the Property]???” He then asked, “Where did you get
this money from?” and reminded her that she still owed
Armstrong “over $150,000” under the court’s final judgment.

¶9 Cox then transferred her remaining “rights, title, claim,
and interest” in the Property to Covarrubias, noting that her
equitable interest in the Property—i.e., the asserted right to
purchase it—had been sold to Armstrong but certifying that, as a
“defendant,” under rule 69C(b) of the Utah Rules of Civil
Procedure she was “entitled to redeem” the Property. The transfer
document stated, “For the avoidance of any doubt, by the transfer
to Mr. Covarrubias made herein, and for good and valuable
consideration, Mr. Covarrubias is authorized to redeem the above
real property in my place as a successor in interest.”

20240560-CA 3 2025 UT App 91
Cox v. Armstrong Constr.

¶10 Covarrubias then attempted to redeem the Property,
sending the amount of the sale price plus interest to Armstrong’s
counsel as required for redemption. See Utah R. Civ. P. 69C(e)
(“The price to redeem is the sale price plus six percent.”).
Armstrong refused to honor Covarrubias’s attempted
redemption, and Covarrubias filed a motion to intervene in the
proceeding between Armstrong and Cox to enforce his
redemption right. After a hearing on the motion, the court ruled,
“By virtue of the assignment from Ms. Cox of her redemption
right to Mr. Covarrubias, [he has the] right to redeem.” The court
also stated, “Nothing was shown or was found to show that a
right of redemption could not be assigned.” Based on the assigned
right to redeem, the court allowed Covarrubias to intervene and
ordered that he be allowed to redeem the Property.

ISSUES AND STANDARDS OF REVIEW

¶11 On appeal, Armstrong raises several issues related to the
district court’s grant of Covarrubias’s motion to intervene. “A
ruling on a motion to intervene encompasses several types of
analysis, each subject to a different standard of review.” In re John
Edward Phillips Family Living Trust, 2022 UT App 12, ¶ 23, 505 P.3d
1127 (quotation simplified). “As a general matter, the factual
findings underpinning an intervention ruling are subject to a
clearly erroneous standard while the district court’s legal
conclusions are reviewed for correctness.” Id. (quotation
simplified). “We review for correctness the district court’s
determination of whether the intervenor has claimed an interest
relating to the property or transaction which is the subject of the
action.” Id. (quotation simplified). And “we review with some
deference the district court’s ultimate decision to grant or deny a
motion to intervene.” Id. (quotation simplified).

20240560-CA 4 2025 UT App 91
Cox v. Armstrong Constr.

ANALYSIS

¶12 Armstrong argues that Covarrubias did not have a right to
intervene in its suit against Cox. Rule 24(a) of the Utah Rules of
Civil Procedure provides,

On timely motion, the court must permit anyone to
intervene who:

(1) is given an unconditional right to intervene
by a statute; or

(2) claims an interest relating to the property or
transaction that is the subject of the action, and
is so situated that disposing of the action may as
a practical matter impair or impede the movant’s
ability to protect its interest, unless existing
parties adequately represent that interest.

Here, the district court concluded, “By virtue of the assignment
from Ms. Cox of her redemption right to Mr. Covarrubias,” he had
the “right to redeem” and “[n]othing was shown or was found to
show that a right of redemption could not be assigned.” Because
Covarrubias had a right to redeem the Property, the court
concluded that he had “an interest relating to the property or
transaction that is the subject of the action,” and, accordingly,
granted his motion to intervene. Armstrong argues that
Covarrubias did not have a right to redeem the Property. But
Armstrong concedes, “If he does, then” rule “24(a)(2) would
apply.” Thus, the viability of Armstrong’s argument turns on
whether Covarrubias had a right to redeem.1

1. As Covarrubias points out, the “Statement of the Issues” section
of Armstrong’s principal brief does not provide the “standard of
(continued…)

20240560-CA 5 2025 UT App 91
Cox v. Armstrong Constr.

¶13 Armstrong asserts that the right to redeem could not be
assigned to Covarrubias because the right was not assignable and
even if it were, the execution sale extinguished it. 2 We disagree.

I. Redemption Rights Are Assignable

¶14 “The right of redemption from a sheriff’s sale is a statutory
right,” and the “procedures for exercising the right to redemption
are set out in rule 69C of the Utah Rules of Civil Procedure.” Pyper

appellate review with supporting authority” or “citation to the
record showing that the [issues were] preserved for review,” as
required by rule 24(a)(5) of the Utah Rules of Appellate
Procedure. But other sections of Armstrong’s brief provide the
standard of review and record citations from which we are
satisfied that these issues were preserved. See In re B.D., 2024 UT
App 104, ¶ 37 n.9, 556 P.3d 86 (acknowledging an appellant’s
failure to demonstrate, with citation to the record per rule 24(a)(5),
that the issues he raised on appeal were preserved,
but nonetheless addressing the merits because “the rest of [his]
brief . . . contain[ed] plenty of citations to the record” that made it
“obvious that [he] preserved his main appellate argument”). And
though one issue in particular may be unpreserved, because that
issue is easily resolved in Covarrubias’s favor, we choose to
address it anyway. See infra note 2. We thus “exercise our
discretion and address the merits” of Armstrong’s claims. Salt
Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84,
¶ 101, 299 P.3d 990.

2. Covarrubias argues that Armstrong failed to preserve any claim
about whether the right to redeem is assignable. But, as explained
in note 1, “because we can easily dispose of” the merits of this
claim, “we choose to exercise our prerogative to simply assume
that” the claim was “preserved and proceed to consideration of
the merits.” State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415,
cert. denied, 496 P.3d 718 (Utah 2021).

20240560-CA 6 2025 UT App 91
Cox v. Armstrong Constr.

v. Bond, 2011 UT 45, ¶ 14, 258 P.3d 575. Under rule 69C, “Real
property subject to redemption may be redeemed by the
defendant or by a creditor having a lien on the property junior to
that on which the property was sold or by their successors in
interest.” Utah R. Civ. P. 69C(b) (emphasis added). We have
previously held that the phrase “successors in interest” “clearly
include[s] assignees.” Tech-Fluid Services, Inc. v. Gavilan Operating,
Inc., 787 P.2d 1328, 1331 n.3 (Utah Ct. App. 1990) (quotation
simplified), overruled on other grounds by Grazer v. Jones, 2012 UT
58, 289 P.3d 437. And in laying out the redemption procedure, rule
69C requires the party seeking redemption to “serve on the
purchaser: (1) a certified copy of the judgment or lien under which
the redemptioner claims the right to redeem; (2) an assignment,
properly acknowledged if necessary to establish the claim; and (3) an
affidavit showing the amount due on the judgment or lien.” Utah
R. Civ. P. 69C(c) (emphasis added). Thus, the rule plainly
provides that the right to redeem is assignable.

¶15 Caselaw confirms this. See Tech-Fluid Services, 787 P.2d at
1332 (recognizing that the holder of the redemption right “could
properly assign that right” to a third party and affirming that
third party’s redemption as proper). See also Grazer v. Jones, 2011
UT App 51, ¶¶ 3, 16, 249 P.3d 1000 (holding that an assignee
properly exercised its right to redeem), aff’d, 2012 UT 58, 289 P.3d
437; Granada, Inc. v. Tanner, 712 P.2d 254, 255–56 (Utah 1985)
(same). We thus conclude that redemption rights are assignable
under Utah law.

II. Execution Sale Did Not Extinguish Redemption Right

¶16 Armstrong argues that even if a right to redeem is
assignable, nothing was actually assigned to Covarrubias
because—as Armstrong sees it—the right to redeem was sold to it
in the execution sale, leaving Cox with nothing to assign. Not so.

20240560-CA 7 2025 UT App 91
Cox v. Armstrong Constr.

¶17 The certificate of the execution sale noted that the Property
would be sold to Armstrong “for the sum of $5,000.00, which was
the highest bid made for all the right, title, claim and interest of
said Itzel Cox.” But the certificate explicitly noted that the
Property was still “subject to redemption . . . pursuant to the
statute in such cases made and provided.” In her subsequent
assignment of that right to Covarrubias, Cox certified that as a
“defendant,” under rule 69C(b) she was “entitled to redeem” the
Property. And she clarified that by virtue of this assignment,
Covarrubias was “authorized to redeem” the Property “in [her]
place as a successor in interest.” This was all entirely accurate. Far
from being extinguished by the execution sale, the redemption
right arose as a result of the execution sale. See Tech-Fluid Services,
Inc. v. Gavilan Operating, Inc., 787 P.2d 1328, 1332 (Utah Ct. App.
1990) (“The right to redeem is such that it can only be exercised
after property has been sold at a foreclosure sale, and only those
with an interest in the property at the time of the sale (or their
successors in interest) have a right to redeem.”) (emphasis added),
overruled on other grounds by Grazer v. Jones, 2012 UT 58, 289 P.3d
437. Thus, the right to redeem was not included in the “right, title,
claim and interest” sold to Armstrong. Cox obtained the right to
redeem the Property at the time of the sale, which she then
transferred to Covarrubias.

¶18 In view of this, as Armstrong concedes, this means
Covarrubias had “an interest relating to the property or
transaction that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or
impede” his “ability to protect” his interest. See Utah R. Civ. P.
24(a)(2). Thus, the district court properly granted Covarrubias’s
motion to intervene. 3

3. Curiously, although the deeds were written and seemingly
comply with the statute of frauds, Armstrong also argues that the
(continued…)

20240560-CA 8 2025 UT App 91
Cox v. Armstrong Constr.

CONCLUSION

¶19 Because Covarrubias had the right to redeem the Property,
he had an interest relating to the property involved in the suit
between Armstrong and Cox, and the district court properly
permitted him to intervene. We affirm. 4

three deeds conveying the Property back and forth between Cox
and Covarrubias violated the statute of frauds. But this appeal
concerns only the right to redeem, which was transferred to
Covarrubias in a separate assignment, the validity of which
Armstrong does not challenge on statute-of-frauds grounds.

4. Covarrubias seeks an award of attorney fees under rule 33 of
the Utah Rules of Appellate Procedure for Armstrong’s “frivolous
appeal.” But this “sanction for bringing a frivolous appeal is
applied only in egregious cases, lest there be an improper chilling
of the right to appeal erroneous lower court decisions.”
Staszkiewicz v. Thomas, 2024 UT App 183, ¶ 23 n.3, 562 P.3d 723
(quotation simplified), cert. denied, 568 P.3d 260 (Utah 2025). While
Armstrong’s appeal was ultimately without merit, we cannot say
that it was so “egregious” as to warrant such a sanction, and we
thus decline to award attorney fees. See id.

20240560-CA 9 2025 UT App 91