2021 UT 25

IN THE

SUPREME COURT OF THE STATE OF UTAH

ALARM PROTECTION TECHNOLOGY, LLC

Appellee,

v.

RYAN BRADBURN,

Appellant.

No. 20190154

Heard October 14, 2020

Filed July 1, 2021

On Direct Appeal

Third District, Salt Lake

The Honorable Keith Kelly

No. 170901374

Attorneys:

Erik A. Olson, Jason R. Hull, Trevor C. Lang, Salt Lake City,

for appellee

Kamron Keele, Chicago, IL, for appellant

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court

in which JUSTICE PEARCE joined. CHIEF JUSTICE DURRANT,

JUSTICE HIMONAS and JUSTICE PETERSEN concur

with exception to section III.

JUSTICE PETERSEN authored a concurring opinion

in which CHIEF JUSTICE DURRANT and JUSTICE HIMONAS joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 This is one of two pending cases in which a former sales 

representative of Alarm Protection Technology (APT) seeks to 

challenge a set of steps taken by APT to insulate itself from claims 

for unpaid compensation. The challenged steps include APT’s

payment of an advance in exchange for the execution of a 

confession of judgment, the entry of a judgment by confession, 

the issuance of a writ of execution against the sales 

representative’s claims for unpaid commissions, APT’s purchase 
ALARM PROTECTION TECHNOLOGY v. BRADBURN

Opinion of the Court

2

of those claims at a constable sale, and APT’s substitution as 

plaintiff on the claims against APT.

¶2 In this case, Ryan Bradburn asserts that APT’s actions 

illegally and unfairly deprived him of the right to assert his claims 

for commissions owed to him by APT. Yet several elements of 

Bradburn’s sweeping challenge to APT’s “scheme”1 are not 

properly presented for our review. The sole question presented 

goes to the district court’s denial of Bradburn’s motion for return 

of excess proceeds and unused property from APT’s purchase of 

his claims. We affirm the denial of that motion. In so doing, we 

reject Bradburn’s argument that APT was required to establish the 

value of his claims before executing on them and purchasing 

them at the constable sale, to presume (absent such proof) that the 

true value of the claims was established in the allegations of 

Bradburn’s complaint, and to return to Bradburn “excess 

proceeds” or “unused property” calculated on the basis of those 

allegations.

I

¶3 Bradburn worked as a sales representative for APT from 

2013 to 2015. During that period, he entered into written 

agreements under which APT agreed to pay him advances 

against future compensation2 and Bradburn agreed to secure 

repayment of any unearned advances by executing a promissory 

note and confession of judgment.3

______________________________________________________________________________

1 We put “scheme” in quotes throughout this opinion to reflect 

the terminology used in Bradburn’s briefing. In so doing we 

recognize that APT objects to the term as a loaded one. And we 

take no position on the question whether the shoe fits. That 

question is not presented for our review.

2 In his briefs on appeal, Bradburn asserts that he never 

received “advances” despite APT’s promise to provide them. APT 

claims that it in fact paid advances. We do not resolve this conflict 

because it is not presented for our review and not necessary to our 

decision.

3 See UTAH R. CIV. P. 58A(i) (providing for entry of “judgment 

by confession” if “authorized by statute”); UTAH CODE § 78B-5-205 

(authorizing entry of “judgment by confession . . . without action, 

(continued . . .)
Cite as: 2021 UT 25

Opinion of the Court

3

¶4 Bradburn signed one such agreement in December 2014. 

Under that agreement APT agreed to advance Bradburn $24,000 

and Bradburn executed a promissory note and confession of 

judgment in that amount. Bradburn’s relationship with APT 

ended a few months later—in June 2015. And a few years after 

that a dispute arose as to the parties’ financial obligations to each 

other.

¶5 On March 1, 2017, Bradburn filed an action in Fourth 

District Court alleging that APT and related parties owed him 

$348,434 in unpaid commissions and were also liable for treble 

damages (total damages of $1.1 million) and attorney fees under 

the Sales Representative Commission Payment Act, Utah Code 

§§ 34-44-101–302. Later that same day, APT filed the $24,000 

confession of judgment (signed by Bradburn in 2013) in Third 

District Court. Bradburn filed no objection, and a judgment by 

confession was entered on May 10, 2017.

¶6 APT then took steps toward collecting on the judgment 

by confession. In May 2017, it filed an application for a writ of 

execution, seeking to seize Bradburn’s claims in the filed Fourth 

District case and to have them sold at a constable sale. The 

requested writ described the property as follows:

a. All rights, claims, interests, and choses in 

action that the judgment debtor has in the action 

entitled Ryan Bradburn v. Alarm Protection Technology, 

LLC, et al., Fourth District Court, Provo, Case No. 

170400290. Value Unknown.

b. All rights, claims, interests, and choses in 

action that the judgment debtor may have against 

Alarm Protection Technology, LLC, Alder Holdings, 

LLC, Alder Protection Holdings, LLC, Adam 

Schanz, their subsidiary, affiliates, officers, 

principals, employees, agents, attorneys, or staff. 

Value Unknown.

¶7 In July 2017, Bradburn filed a motion to quash the 

requested writ, asserting that APT’s “scheme” deprived him of 

______________________________________________________________________________

either for money due or to become due . . . in the manner 

prescribed by law”).
ALARM PROTECTION TECHNOLOGY v. BRADBURN

Opinion of the Court

4

due process and that it violated public policy. The district court 

denied the motion to quash. It concluded that Utah law 

authorized APT to execute on Bradburn’s claims and that doing 

so was not against public policy. But the court stayed execution of 

Bradburn’s claims to allow him to file a motion to set aside the 

judgment by confession under rule 60(b) of the Utah Rules of 

Civil Procedure.

¶8 Bradburn did not appeal the denial of his motion to 

quash. Instead he filed a motion to vacate the judgment under 

rule 60(b). In that motion Bradburn asserted various challenges to 

APT’s use of the confession of judgment to acquire his claims. The 

district court denied the motion to vacate the judgment after a 

two-day evidentiary hearing. It noted that Bradburn had 

“acknowledged that he had been given sufficient time to review 

the promissory note and confession of judgment before he signed 

them,” and “acknowledged, and [APT’s] records demonstrated,

that he had received at least $24,000 in advancements or expenses 

paid on his behalf by [APT].” It also found that there was 

“sufficient evidence to determine that [Bradburn] voluntarily 

stopped working for [APT] on or about June 5, 2015.” And it 

denied the motion to vacate in light of these determinations.

¶9 Again Bradburn did not appeal, and APT served 

Bradburn with a notice of constable sale under the writ of 

execution. After the required publication notice, a constable sale 

was held on February 20, 2018. APT appeared at the sale and 

purchased the claims on a credit bid of $2,500. And it then filed a 

partial satisfaction of judgment, providing an accounting of the 

sale proceeds and indicating that the $2,500 bid was allocated to 

constable fees of $497.28 and $2002.72 toward the $24,000 

judgment.

¶10 Bradburn sought to challenge this allocation under a 

“motion for return of excess proceeds and unused property from 

constable sale.” In that motion, Bradburn asserted that APT was 

liable to return to him the sum of “just under” $1.1 million, which 

he calculated by assigning a $1.1 million value (the amount 

pleaded in his complaint) to the claims asserted in the Fourth 

District action and subtracting the amount owed on the judgment 

by confession.

¶11 Bradburn withdrew this motion after briefing had already 

been submitted and just before a scheduled oral argument. But 
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Opinion of the Court

5

three months later he refiled an identical motion.4 The district 

court denied the renewed motion. It held that Bradburn had 

identified no basis for his assertion that there were excess 

“proceeds” or “property” to be delivered to Bradburn after the 

constable sale. The court based this determination on the only 

“evidence before the court” of the value of the claims—the 

certificate of constable sale and the accounting in APT’s 

satisfaction of judgment. Because those documents showed that 

the claims were purchased for $2,500 and that $497.28 was 

allocated to costs, the court held that there were “no ‘proceeds’ 

left because the judgment was not paid in full” and “there was no 

‘remaining property [or] proceeds’ to deliver to [Bradburn].”

¶12 The district court also rejected Bradburn’s attempt to 

assert objections under the motion for return of proceeds that 

should have been raised in connection with his earlier motion to 

quash the writ of execution. It noted that the writ of execution had 

“listed the estimated value of the property as ‘unknown,’” and 

observed that Bradburn had failed to “challenge the writ on that 

basis.” In fact, the court noted that Bradburn had agreed that the 

value of his property was “unknown” given that the claims had 

not been adjudicated. And it concluded that this further 

supported its denial of Bradburn’s motion.

¶13 Lastly, the district court also rejected Bradburn’s assertion 

that either APT or the constable bore some sort of burden to 

present an expert or other valuation of the property. The court 

found “nothing in the rules that requires a creditor to hire an 

expert witness to value property before it is sold.” Alternatively, 

the court emphasized that there was “no evidence in the record” 

to support Bradburn’s assertion that his claims “were worth 

anywhere near $1 million.” The only evidence of value in the 

record came from the highest bid at the constable sale, and 

Bradburn had made no showing that he was “entitled to any 

credit to his judgment other than the $2500 credit bid less the 

amount kept by the constable for noticing and holding the sale.”

¶14 Bradburn then filed this appeal, insisting that APT was 

“required under Utah law . . . to estimate the value” of the 

______________________________________________________________________________

4 The timeliness of the refiled motion is not presented for our 

review.
ALARM PROTECTION TECHNOLOGY v. BRADBURN

Opinion of the Court

6

property that was the subject of the writ of execution, and asserts 

that he is entitled to a payment of “excess proceeds” based on the 

alleged value of the claims set forth on the face of the complaint in 

the Fourth District Court ($1.1 million).

¶15 Bradburn preserved only a narrow objection in the 

district court proceedings before us on this appeal—in his motion 

for return of excess proceeds. And we see no reason to disagree 

with the district court’s decision denying that motion—much less 

to reverse under the governing standard of review. See Utah Dep't 

of Transp. v. G. Kay, Inc., 2003 UT 40, ¶ 5, 78 P.3d 612 (we review 

findings of fact for clear error and conclusions of law for 

correctness).

II

¶16 Bradburn’s motion for return of excess proceeds was both 

procedurally barred and groundless. And our affirmance of the 

decision to deny it forecloses a range of other claims raised in 

Bradburn’s briefing.

¶17 In advancing his motion for return of excess proceeds, 

Bradburn cited rule 64(f)(3) of the Utah Rules of Civil Procedure, 

which directs the court to “order any remaining property and 

proceeds of sales delivered to the defendant” upon discharge of a 

writ, and rule 69B(e), which provides for the “order” in which the 

property is to be applied under an “accounting” of a constable 

sale, “up to the amount due or the value of the property, 

whichever is less.” Bradburn views the referenced “value” of the 

property as its “true value.” And he deems the judgment 

creditor’s burden of advancing proof of such value to be implicit 

in the duty to provide an “accounting” of a constable sale. 

Because APT failed to present such evidence, Bradburn asked the 

district court to presume that the “value” of his claims must have 

been the amount he placed on them in the complaint filed in the 

Fourth District. And with that in mind, Bradburn claimed that 

there were remaining “proceeds of the sale” of his claims that he 

was entitled to receive under rule 69B(e).

¶18 The district court denied this motion as either 

procedurally barred or substantively meritless. The procedural 

bar holding focused on the fact that the alleged burden to produce 

evidence of value was ultimately aimed at the writ of execution, 

not the constable sale. The writ of execution had “listed the 

estimated value of the property as ‘unknown,’” and Bradburn 
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Opinion of the Court

7

failed to “challenge that writ on that basis.” As to the merits, the 

district court found “nothing in the rules that requires a creditor 

to hire an expert witness to value property before it is sold,” and 

no basis in the record for valuing the property at anything other 

than the successful credit bid of $2,500. We agree with both of 

these grounds5 and accordingly affirm.

A

¶19 Bradburn’s motion for return of excess proceeds was 

procedurally misdirected. The motion was rooted in the notion 

that APT bore a burden of producing evidence of value in support 

of its writ of execution. Yet as the district court noted, Bradburn 

failed to advance that argument at the procedural point at which 

it was in play—in a reply to or motion to quash the writ of 

execution.6 Bradburn did file a motion to quash the writ. But he 

didn’t make this argument in that motion, and in any event he 

filed no appeal from the denial of that motion.

______________________________________________________________________________

5 APT has challenged the sufficiency of Bradburn’s briefing on 

the merits, inviting us to affirm on inadequate briefing grounds—

on the basis of a determination that Bradburn’s briefs presented 

no “reasoned analysis” supported by any “citations to legal 

authority.” We reject this invitation. Bradburn’s legal analysis is 

admittedly scant. And the absence of analysis rooted in case law

certainly cuts against the persuasiveness of Bradburn’s position.

See State v. Nielsen, 2014 UT 10, ¶ 34, 326 P.3d 645 (explaining that 

our assessment of the adequacy of briefing is simply a 

“component of our evaluation of the case on its merits”). But 

Bradburn has cited and argued on the basis of another form of 

“legal authority”—the language of our rules of civil procedure. 

Such authority is ultimately unpersuasive, but we decline to 

resolve the case on the mere basis of inadequate briefing.

6 Bradburn’s challenge to the writ of execution was in a motion 

to quash. APT raised no objection to the procedural propriety of 

such motion. It did not assert, for example, that Bradburn was 

somehow barred because he failed to submit a “reply” to the writ 

of execution within 14 days under rule 64E(d) of the Utah Rules of 

Civil Procedure. And this question is likewise not raised in the 

briefing in this case. For these reasons we do not pursue this 

question further here.
ALARM PROTECTION TECHNOLOGY v. BRADBURN

Opinion of the Court

8

¶20 For this reason the district court was right to deny 

Bradburn’s motion as procedurally barred. There is a 

fundamental mismatch between the substance of Bradburn’s 

argument and the procedural basis for his challenge (and appeal). 

And that is fatal to his position.

B

¶21 Bradburn has also failed to establish a substantive basis 

for his motion in any event.7 Nothing in the terms or structure of 

our rules establishes a burden of a judgment creditor to introduce

affirmative proof of the property’s “true value.” And there is

likewise no basis in our rules for a court to assume that the selfserving value placed on the property by its owner is its “true 

value,” and no ground for concluding that the district court was 

required to calculate the availability of excess proceeds or unused 

property on that basis.

¶22 Our rules implicitly—but quite clearly—establish a 

different mechanism for calculating the value of the property and 

the availability of “remaining proceeds.” Value and proceeds are

established under our rules by the amount paid “at auction to the 

highest bidder.” UTAH R. CIV. P. 69B(d). This is clear from the 

requirement that the constable “sell only so much property as is 

necessary to satisfy the amount due.” Id. A constable will know 

the amount due on the judgment and the amount paid by the 

highest bidder but will have no basis for calculating the “true 

value” of the sold property. And the requirement to sell only the 

property “necessary to satisfy the amount due” is thus 

incompatible with Bradburn’s position.

______________________________________________________________________________

7 Bradburn’s appeal seeks to challenge APT’s application for 

the writ of execution on the ground that it failed to give an 

adequate statement of the “estimated value of the property” to be 

executed, as required under rule 64E(b)(2) of the Utah Rules of 

Civil Procedure. But Bradburn preserved no such challenge in the 

district court. In fact he agreed in the district court that the 

property value was “unknown.” It is not obvious, moreover, how 

any deficiency in the statement of “unknown” value would affect 

Bradburn’s principal claim that he was entitled to a return of 

excess proceeds or unused property.
Cite as: 2021 UT 25

Opinion of the Court

9

¶23 As Bradburn has noted, a plaintiff may be required to 

“deliver an accounting of the sale.” Id. 69B(e). And rule 69B(e) 

prescribes the “order” in which the proceeds of the property are 

to be distributed, “up to the amount due or the value of the 

property, whichever is less”: first to pay the “costs” of the sale, 

then to pay the plaintiff on the judgment, and last to “deliver to 

the defendant the remaining property and proceeds of the sale.”

Id. Yet rule 69B(e) yields no basis for treating the referenced 

“value” as a value established by the plaintiff—much less for 

assuming that the defendant’s own view of its value should 

control. In context, our rules’ reference to “value” is to the marketbased indication of value established by our rules—in the amount 

paid by the “highest bidder” at the constable sale.

¶24 Nowhere do our rules require a judgment creditor to 

carry a burden of proving the “true” value of property that is 

subject to a constable sale. And they don’t provide for property to 

be valued based on the self-serving valuation of a judgment 

debtor. Our rules protect a judgment debtor’s interests in other 

ways. They allow the judgment debtor to challenge a writ of 

execution on a “reply” and request for an evidentiary hearing, id.

64E(d), to participate in the constable sale, id. 69B(d), and to 

request an accounting and seek “remaining proceeds” or 

“remaining property,” id. 69B(e). Our rules are detailed and 

comprehensive. Because they say nothing about any requirement 

that the judgment creditor put on evidence of value of the 

property, the clear implication is that the judgment debtor is 

protected in other ways—and that the property is valued (for 

purposes of the 69B(e) right to “remaining proceeds”) not by any 

kind of evidence that is to be presented prior to the sale but by the 

purchase price at the constable sale.

¶25 This is confirmed by a body of case law establishing a 

remedy for setting aside a constable sale. Our cases have long 

held that a judgment debtor has a right to file a motion to set 

aside a constable sale under a “sliding scale” showing of “gross 

inadequacy” of the purchase price and “irregularities during the 

sale that contributed to the inadequacy of price.” Pyper v. Bond,

2011 UT 45, ¶¶ 2, 15, 258 P.3d 575; Pender v. Dowse, 265 P.2d 644, 

648 (Utah 1954). The burden of proof falls to the moving party on 

such motion—the judgment debtor. See Pyper, 2011 UT 45, ¶ 2, 19.

And that burden is quite incompatible with the burden that 

Bradburn would have us impose on the judgment creditor.
ALARM PROTECTION TECHNOLOGY v. BRADBURN

Opinion of the Court

10

¶26 For these reasons we conclude that there was no 

substantive basis for Bradburn’s motion for return of excess 

proceeds. The property in question was valued in the manner set 

forth in our rules—by the amount paid by the “highest bidder” at 

the constable sale. And based on that value, there were no excess 

proceeds or unused property to be returned to Bradburn.

¶27 We thus affirm the denial of the motion for return of 

excess proceeds on two alternative grounds. We find it not just 

procedurally barred but also without merit.

III

¶28 Justice Petersen has authored a thoughtful opinion 

concurring in the above analysis while also identifying grounds 

for possible amendments to our rules of civil procedure going 

forward. I commend the concurrence for its careful consideration 

and analysis of an important set of issues. I decline to concur in 

the opinion, however, because I prefer to let the rule amendment 

process play out in the normal course instead of announcing my 

views in advance in a published opinion.

IV

¶29 Bradburn has not established a basis for reversal of the 

district court’s decision to deny Bradburn’s motion for return of 

excess proceeds. We affirm on that basis.

¶30 In so doing, we note that the briefing on this and the 

other related case has highlighted some points in our rules of 

procedure that could be framed more clearly, and that might 

merit further revision to avoid potential pitfalls going forward. 

With this in mind, we anticipate the need to invite our advisory 

committee on the civil rules to examine some of the rules at issue 

in these cases.

¶31 We also deny APT’s request for an award of its attorney 

fees under rule 33(a) of the Utah Rules of Appellate Procedure. 

Bradburn’s position fails on its merits. But we see no basis for 

concluding that it is either “frivolous” or “for delay.” And we 

deny the request for fees on that basis.
Cite as: 2021 UT 25

PETERSEN, J., concurring

11

JUSTICE PETERSEN, concurring:

¶32 This is one of two companion cases that raise similar legal 

issues. See Alarm Prot. Tech. v. Crandall, 2021 UT 26. In both cases, I 

concur in the majority opinion. I agree that there was no error in 

the district court’s denial of the specific motions at issue here. And 

more generally, it seems that our rules of civil procedure do not 

prohibit Alarm Protection Technology (APT) from doing what it 

did in these cases—executing upon its former sales representatives’ 

claims against APT and extinguishing those claims before they 

could be adjudicated. See Bradburn v. Alarm Prot. Tech., LLC, 2019 

UT 33, ¶¶ 13–17, 449 P.3d 20; Crandall, 2021 UT 26, ¶ 25 (“[W]e are 

not suggesting that Crandall had a silver bullet available but failed 

to fire it.”). But I write separately because Appellants’ arguments, 

while not successful in this litigation, have persuaded me that we 

should consider whether our rules should permit such a practice.

¶33 In the two related cases involving Appellee APT, 

Appellants Ryan Bradburn and Nathan Crandall have a number of 

things in common. Both worked as sales representatives for APT. 

After leaving their positions, both alleged that APT had failed to 

pay them commissions they had earned. They both sued APT in the 

district court under Utah’s Sales Representative Commission 

Payment Act (Commission Act), UTAH CODE §§ 34-44-101–302. But 

neither of them has had their claims adjudicated on the merits 

because APT purchased their civil cases and extinguished them.

¶34 APT’s ability to effectively immunize itself from these sales 

representatives’ Commission Act claims was the culmination of a 

series of steps taken by APT, beginning with how APT paid 

advances to the sales representatives. When APT paid the sales 

representatives advances against future compensation, it required 

the sales representatives to sign both a promissory note and a 

confession of judgment.8 A confession of judgment is a potent tool 

for a creditor. It is a written statement, signed and verified by the 

debtor, that authorizes the creditor to enter judgment against the 

debtor for a specified sum of money. Id. § 78B-5-205; UTAH R. CIV.

P. 58A(i). Under Utah law, a creditor can enter a confession of 

______________________________________________________________________________

8 The Appellants both assert that they did not receive the 

advances that APT claims it paid them. We have not resolved this 

dispute because it is not before us.
ALARM PROTECTION TECHNOLOGY v. BRADBURN

PETERSEN, J., concurring

12

judgment in court “without action.”9 UTAH CODE § 78B-5-205. Once 

it is signed by the court, the creditor has a judgment against the 

debtor for the amount due and can then use certain Utah Rules of 

Civil Procedure to collect on the judgment.

¶35 Here, after Bradburn and Crandall sued APT for unpaid 

commissions, APT filed in the district court a confession of 

judgment against each man, signed by them years earlier when 

they were sales representatives. Specifically, Bradburn filed his suit 

against APT two years after he stopped selling for them, in March 

2017. The same day, APT filed the instant confession of judgment 

against Bradburn, specifying that he owed the company $24,000 for 

advances it had paid him in 2013. Crandall also filed suit against 

APT in 2017, over three years after he stopped selling for them. 

Within months, APT filed the instant confession of judgment 

specifying that Crandall owed APT $15,000 for advances it paid 

him around four years earlier.

¶36 Once APT obtained these judgments against the 

Appellants, APT quickly turned to the civil rules to begin collection 

efforts. On the day the court signed the judgment against Bradburn, 

APT moved for a writ of execution. See UTAH R. CIV. P. 64E(a). 

APT’s writ identified Bradburn’s Commission Act claim against 

APT as the property it wished to seize. Under rule 64E, the court 

granted the writ. Likewise, APT moved for a writ of execution on 

Crandall’s Commission Act claim against APT. That writ was also 

granted.

¶37 Once a creditor obtains a writ under rule 64E, the civil rules 

provide for an officer to seize the property on behalf of the creditor. 

Id. 69A. The rules then explain how the property is to be sold at 

auction. Id. 69B. Here, APT attended the auction and purchased 

Bradburn’s civil case, in which he alleged $348,434 in unpaid 

commissions, for a $2,500 credit bid. Through the same process, it 

______________________________________________________________________________

9 The statute provides that a “judgment by confession may be 

entered without action, either for money due or to become due or to 

secure any person against contingent liability on behalf of the 

defendant, or both, in the manner prescribed by law. The judgment 

may be entered in any court having jurisdiction for like amounts.” 

UTAH CODE § 78B-5-205.
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PETERSEN, J., concurring

13

purchased Crandall’s civil case, in which he alleged $47,876 in 

unpaid commissions, for a $3,500 credit bid.

¶38 Now the owner of the cases against it, APT substituted 

itself as the plaintiff in both actions. See id. 25(c). It then moved to 

dismiss both cases, which the respective district courts granted, 

thereby terminating the Commission Act claims against itself.

¶39 In doing so, APT has not violated any civil rule. In fact, we 

have expressly held that our rules of civil procedure permit 

judgment creditors to execute upon and extinguish claims against 

the creditor. We have held in general that a cause of action 

constitutes “property” upon which a judgment creditor may 

execute. See Cougar Canyon Loan, LLC v. Cypress Fund, LLC, 2020 UT 

28, ¶ 12, 466 P.3d 171; Applied Med. Techs., Inc. v. Eames, 2002 UT 18, 

¶ 13, 44 P.3d 699; Snow, Nuffer, Engstrom & Drake v. Tanasse, 1999

UT 49, ¶ 9, 980 P.2d 208. Our reasoning was initially based upon 

the language of civil rule 69(f), which stated that a sheriff shall 

“execute the writ [of execution] against the non-exempt property of 

the judgment debtor by levying on a sufficient amount of property 

. . . collecting or selling the choses in action and selling the other 

property in the manner set forth herein.” Tanasse, 1999 UT 49, ¶ 9 

(first alteration in original) (emphasis added) (citation omitted); see 

also Eames, 2002 UT 18, ¶¶ 11–13. We defined a “chose in action” as 

“a claim or debt upon which a recovery may be made in a lawsuit. 

It is not a present possession, but merely a right to sue; it becomes a 

‘possessory thing’ only upon successful completion of a lawsuit.” 

Tanasse, 1999 UT 49, ¶ 9 (quoting Chose in Action, BARRON’S LAW 

DICTIONARY 71 (3d ed. 1991)). We noted that the term “chose in 

action” in rule 69 was used “without restriction of any sort.” Id. 

¶ 10 (citation omitted). And we therefore viewed “rule 69 to 

encompass all choses in action.” Id.

¶40 Rule 69(f), as relied upon in Tanasse and Eames, no longer 

exists.10 However, we have concluded that “choses in action remain 

amenable to execution” under our current rules. Cougar Canyon, 

2020 UT 28, ¶ 11 n.7 (citation omitted) (internal quotation marks 

______________________________________________________________________________

10 Notably, the current language of the corresponding rule of 

civil procedure no longer references “choses in action.” See UTAH R.

CIV. P. 69A.
ALARM PROTECTION TECHNOLOGY v. BRADBURN

PETERSEN, J., concurring

14

omitted) (concluding that rules 64 and 64E include choses of action 

within the “property” subject to a writ of execution).11

¶41 We have recognized one exception to this general rule. We 

have prohibited attorneys and law firms from executing upon

former clients’ malpractice actions against them. Tanasse, 1999 UT 

49, ¶ 12 (“[W]e reverse the court of appeals’ determination that the 

very law firm against which a malpractice claim is brought may 

purchase the cause of action.”). We so held for policy reasons, 

noting that “[t]his question is one that this court is particularly 

suited to decide, because the public policy concerns at issue closely 

touch on our regulatory and supervisory responsibilities over the 

practice of law.” Id. We observed that allowing a law firm to 

execute upon a malpractice claim against it had two problems: it 

effectively denied the plaintiff the right to a trial on his claims, and 

the appropriate value of the legal malpractice claim would never be 

fairly determined. Id. ¶¶ 13–14. We acknowledged that both 

problems “are present in every situation in which a judgment 

creditor seeks to execute on an action pending against it.” Id. ¶ 15. 

But we expressly did not address this more general question. Id.

¶ 16 n.3.

¶42 We have since declined requests to extend this exception to 

other circumstances. See, e.g., Cougar Canyon, 2020 UT 28, ¶¶ 10–21; 

Eames, 2002 UT 18, ¶¶ 14, 21. Most relevant here, we have held that 

a judgment creditor may execute upon legal claims pending against 

the creditor. Eames, 2002 UT 18, ¶ 13.12 We held that such a practice 

did not violate the open courts clause of the Utah Constitution. Id.

¶¶ 15–18. And we concluded that the specific facts of that case did 

not present a sufficient public policy basis to justify departing from 

our civil rules. Id. ¶ 21.

______________________________________________________________________________

11 “Choses in action” also are not identified as exempt property 

under Utah statutory law. UTAH CODE § 78B-5-505.

12 Eames also relied upon former rule 69(f). In that case, we 

reasoned that “[g]iven that choses in action are amenable to 

execution under rule 69(f), it follows that a defendant can purchase 

claims, i.e., choses in action, pending against itself and then move 

to dismiss those claims.” Applied Med. Techs., Inc. v. Eames, 2002 UT 

18, ¶ 13, 44 P.3d 699.
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PETERSEN, J., concurring

15

¶43 Even so, the facts here and in other cases make it difficult 

to deny the collateral damage done to justice. Here, the very entity 

that Appellants accuse of injuring them is able to take over their 

civil cases and terminate them. It is true that APT has a valid 

money judgment against both Appellants. But Appellants allege 

that APT owes them money as well, and they will never receive a 

fair accounting on the merits.

¶44 Moreover, the statutory scheme enacted by the legislature 

in the Sales Representative Commission Payment Act is completely 

thwarted. The Commission Act has specific provisions to ensure 

that companies (referred to as “principals” in the statute) abide by 

its terms: It voids any attempt of a principal to require sales 

representatives to waive their rights under the Act or agree to be 

bound by the laws of another state, and it provides for triple 

damages if the principal fails to pay the sales representative earned 

commissions. UTAH CODE §§ 34-44-104, -301(2). Most importantly, it 

expressly contemplates situations like the one here, where a sales 

representative alleges that the principal failed to pay earned 

commissions, and the principal alleges that the sales representative 

owes the principal money. Id. § 34-44-301(1). In calculating 

damages under the Commission Act, the sum of unpaid 

commissions owed to the sales representative is offset by any 

money the sales representative owes the principal. Id. § 34-44-

301(2)(a)(ii). The remaining amount, plus attorney fees and court 

costs, is then tripled and due to the sales representative. Id. § 34-44-

301(2). Yet rule 64E of the Utah Rules of Civil Procedure, along 

with APT’s use of judgments of confession to pay its sales 

representatives, has allowed APT to avoid these clear provisions of 

the Commission Act.

¶45 A federal appellate case provides another example of the 

damage that can be done to the legal process when judgment 

creditors execute upon and terminate claims in which they are 

defendants. In RMA Ventures California v. SunAmerica Life Ins. Co., 

576 F.3d 1070 (10th Cir. 2009), the defendants prevailed on 

summary judgment in the district court. Id. at 1071. The plaintiff 

appealed. Id. at 1072. Meanwhile, the district court granted the 

defendants’ motion for attorney fees and entered a corresponding 

judgment for the defendants of over $87,000. Id. The defendants

obtained a writ of execution to enforce the judgment. Id. Following 

Utah state procedure, the defendants (through the Salt Lake City 

Deputy Constable) noticed for sale the plaintiff’s right to its 
ALARM PROTECTION TECHNOLOGY v. BRADBURN

PETERSEN, J., concurring

16

pending claims against the defendants, including the plaintiff’s 

right to appeal. Id. The defendants purchased the cause of action, 

and then argued in the Tenth Circuit that the plaintiff no longer 

had standing because they now owned the plaintiff’s claims. Id. at 

1072–73. The Tenth Circuit acceded to this argument, but not 

without remarking that “the circumstances of this case present a 

degree of discomfort.” Id. at 1075. Judge Lucero described the 

problem a bit more forcefully in a separate concurring opinion:

It is with considerable understatement that the 

majority acknowledges the “degree of discomfort” 

presented by this case. . . . By executing on a 

subsidiary judgment, SunAmerica has extinguished 

RMA’s right to appeal the very merits determination 

that served as the predicate for the subsidiary 

judgment in the first place. If we were to reach the 

merits and reverse the district court’s decision, 

however, there is little doubt that RMA would be 

entitled to relief from the subsidiary attorneys’ fee 

judgment. . . . RMA will not have the opportunity to 

pursue its merits appeal . . . . As a matter of public 

policy, I doubt the wisdom of a rule that readily 

places the right to appeal on an auction block. More 

troublesome still is a rule permitting a defendant to 

purchase its opponent’s appellate rights, thereby 

extinguishing a plaintiff’s claim. “[A defendant] 

obviously has no intention to litigate a claim against 

itself.” Today’s decision thus incentivizes Utah 

defendants to attempt an end run around merits 

determinations by purchasing a plaintiff’s right to 

appeal. This incentive is at its zenith when it is most 

offensive—in those cases in which a defendant 

believes it would likely lose the merits appeal.

Id. at 1076–77 (Lucero, J., concurring) (fourth alteration in original) 

(quoting Tanasse, 1999 UT 49, ¶ 13).

¶46 Clearly, permitting judgment creditors to execute upon 

claims in which they are defendants can result in severe collateral 

damage to the legal process and the presumption that claims 

should be fairly adjudicated on the merits. Our rules currently 

permit this. But we should consider whether our rules should 

permit such a practice. Judgment creditors like APT have the legal 

right to a sum of money. We have civil rules to assist them in 
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PETERSEN, J., concurring

17

collecting that money. But the right to collect a sum certain does not 

include the right to immunity from suit or dismissal of an 

otherwise valid legal claim against the creditor. We should consider

whether our civil rules could be modified to address this situation 

in a way that still assists creditors in collecting on judgments, but 

better protects the legal process from unnecessary harm. I am not 

pre-judging what the solution might be. I propose only that we 

refer this issue to our civil rules committee for study and 

consideration.