BACT Limited Partnership v. Binks

2013 UT App 197
_________________________________________________________

THE UTAH COURT OF APPEALS

BACT LIMITED PARTNERSHIP,
Plaintiff and Appellee,
v.
MARY ANN BINKS; CRAIG BINKS; AUSTIN BINKS; FREEDOM
INDEPENDENT, LLC; AND ARROWWOOD PROPERTIES, LLC,
Defendants and Appellants.

Per Curiam Decision
No. 20120706‐CA
Filed August 1, 2013

Third District, Salt Lake Department
The Honorable Paul G. Maughan
No. 110904110

David O. Black, Attorney for Appellants
Richard F. Ensor and Michael C. Barnhill,
Attorneys for Appellee

Before JUDGES ORME, DAVIS, and MCHUGH.

PER CURIAM:

¶1 Mary Ann Binks, Craig Binks, Austin Binks, Freedom
Independent, LLC, and Arrowwood Properties, LLC (collectively,
the Binkses) appeal the trial court’s entry of judgment against
them. We affirm.

¶2 In 2010, BACT Limited Partnership (BACT) obtained a
judgment for approximately $211,000 against Mary Ann Binks. In
the course of attempting to collect that judgment, BACT discovered
that Mary Ann Binks had transferred substantially all of her assets
to companies managed by her son, Austin. The transfers were
made after the trial court had announced its decision but before the
formal judgment was entered.
BACT Limited Partnership v. Binks

¶3 BACT filed the current suit in a further effort to collect
judgment. BACT alleged claims for fraudulent transfer and civil
conspiracy. The complaint alleged that the Binkses conspired to
conceal assets from BACT and hinder collection efforts by the
transfers of property.

¶4 BACT served discovery requests on the Binkses in June 2011.
The Binkses did not respond to the discovery requests. Over the
course of several months and despite two court orders requiring
them to provide discovery, the Binkses failed to fully respond to
the requests. As a result, in March 2012, BACT filed a motion for
sanctions pursuant to rule 37(e) of the Utah Rules of Civil
Procedure.

¶5 The trial court granted the motion for sanctions. Pursuant to
rule 37(e)(2), the court deemed the allegations in the complaint to
be established and prohibited the Binkses from opposing the
claims.1 Utah R. Civ. P. 37(e)(2). With the claims for fraudulent
transfer and civil conspiracy established, the trial court entered
judgment against the Binkses jointly and severally for the amount
of the judgment in the initial case. The Binkses appeal.

¶6 The Binkses assert that there was no proof of the amount of
damages and, therefore, the trial court should have held an
evidentiary hearing to determine damages under rule 55 of the
Utah Rules of Civil Procedure before entering judgment. Rule 55
states, “If, in order to enable the court to enter judgment or to carry
it into effect, it is necessary to take an account or to determine the
amount of damages . . . the court may conduct such hearings . . . as
it deems necessary and proper.” Utah R. Civ. P. 55(b)(2). Under the

1. The Binkses do not challenge the imposition of the sanctions
under rule 37(e)(2), which had the effect of deeming the allegations
admitted and prohibiting any challenge to the claims. Accordingly,
the allegations in the complaint form the undisputed factual basis
in this case.

20120706‐CA 2 2013 UT App 197
BACT Limited Partnership v. Binks

plain language of rule 55, the court is not required to hold a
hearing regarding damages when default is entered; rather, it is
within the court’s discretion to hold a hearing if the amount of
damages is not easily ascertained without additional evidence.

¶7 The Binkses have not shown that the trial court abused its
discretion by not holding an evidentiary hearing where the court
awarded damages in an amount identified in the complaint that
was the undisputed amount of the prior judgment against Mary
Ann Binks. Considering the allegations in the complaint as true, the
fraudulent conveyances and the civil conspiracy to conceal assets
prevented BACT from collecting the prior judgment, an established
sum. As a result, it was within the trial court’s discretion to enter
that prior judgment amount as the damages in this case without a
hearing.

¶8 The Binkses also argue that the cause of action for civil
conspiracy was not sufficiently pleaded in the complaint. Civil
conspiracy is comprised of five elements: “(1) a combination of two
or more persons, (2) an object to be accomplished, (3) a meeting of
the minds on the object or course of action, (4) one or more
unlawful, overt acts, and (5) damages as a proximate result
thereof.” Pohl v. Webelhuth, 2008 UT 89, ¶ 29, 201 P.3d 944. On
review of the complaint, the allegations were sufficient to plead a
cause of action for civil conspiracy. The Binkses combined to act
with the objective of concealing assets from a creditor by means of
fraudulent transfers of property, the properties were actually
transferred, and BACT incurred damages as a result because it was
unable to collect on its outstanding judgment, an amount certain.
Allegations to meet each element of civil conspiracy were
presented in the complaint.

¶9 Affirmed.

20120706‐CA 3 2013 UT App 197