This opinion is subject to revision before final

publication in the Pacific Reporter.

2017 UT 57

IN THE

SUPREME COURT OF THE STATE OF UTAH

THOMAS D. BOYLE,

Respondent,

v.

CLYDE SNOW & SESSIONS, P.C.,

Petitioner.

No. 20160621-SC

Filed August 29, 2017

On Certiorari to the Utah Court of Appeals

Attorneys:

Jeffrey S. Williams, Salt Lake City, for petitioner

Thomas D. Boyle, Fruit Heights, Scott R. Hoyt, Salt Lake City, for 

respondent

Third District, Salt Lake

The Honorable James D. Gardner

No. 090400630

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE HIMONAS, 

and JUSTICE PEARCE joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 This case was filed and litigated for years as a wrongful 

death action. It has now devolved to a dispute over attorney fees. 

The fee dispute is between Thomas Boyle, who represented the 

plaintiff in the wrongful death action, and the law firms with 
BOYLE v. CLYDE SNOW & SESSIONS

Opinion of the Court

2

which he was affiliated (Clyde Snow & Sessions, P.C. and later 

Prince Yeates & Geldzahler, P.C.). 

¶2 The wrongful death action settled after six years of 

litigation. And in the wake of the settlement—but prior to 

dismissal or final judgment—one of the law firms (Clyde Snow) 

asserted a lien against a portion of the settlement funds based on 

its claim for attorney fees. The procedural and substantive 

propriety of the Clyde Snow claim was litigated over the course of 

about a year in the district court. Ultimately, the district court 

upheld the viability of that claim and entered an order awarding a 

portion of the settlement funds as fees to Clyde Snow. 

¶3 The court of appeals reversed that order on appeal. It 

concluded that Clyde Snow had failed to intervene in the manner 

required by law, that the parties had not waived any objection to 

the defects in intervention, and thus that the district court lacked 

jurisdiction to award attorney fees to Clyde Snow. 

¶4 We reverse. Like the district court, we conclude that Boyle 

waived any objection to procedural deficiencies in Clyde Snow’s 

intervention. Boyle effectively acquiesced in the litigation over 

fees and even advanced his own competing claim to fees. And we 

hold that in these circumstances any objection to the procedural 

deficiencies in Clyde Snow’s intervention was waived by Mr. 

Boyle. 

I

¶5 The underlying wrongful death action began in 2007 when 

the plaintiff retained Clyde Snow. Thomas Boyle was the lead 

attorney in the wrongful death action between 2007 and 2010. In 

June 2010, Boyle left Clyde Snow and joined Prince Yeates. And 

the plaintiff elected to have the claim follow Boyle to Prince 

Yeates. On July 7, 2010, Clyde Snow filed a notice of lien relating 

to its representation of plaintiff until June 2010. 

¶6 Three years later, on June 28, 2013 the parties to the 

underlying dispute filed a motion to dismiss the case with 

prejudice in light of a settlement. That same day, Clyde Snow filed 

an objection to dismissal and restated its notice of lien.
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Opinion of the Court

3

¶7 On July 15, 2013 the district court held a telephonic hearing 

on the motion to dismiss and Clyde Snow’s objection. At the 

hearing the defendants in the underlying action opposed deciding 

the attorney lien issue in the same action. In their view the 

attorney lien should be the subject of a separate lawsuit. Boyle, 

however, did not oppose deciding the attorney lien issue in the 

underlying action. And the district court concluded that it would 

dismiss the underlying claims with prejudice but retain 

jurisdiction to decide the attorney lien action.

¶8 The district court ordered the parties to mediate the 

attorney lien issue, so the parties filed position statements and 

participated in mediation between August 2013 and January 2014. 

On January 27, the parties filed a notice that the mediation had 

been unsuccessful. And on January 30 Prince Yeates filed a 

motion to interplead the disputed settlement funds and sought to 

be dismissed from the attorney lien action. While Boyle objected 

to the amount to be interpleaded, he did not otherwise object to 

interpleading the funds. And on March 27, 2014, the court granted 

the motion to interplead funds and determined that Prince Yeates 

had no further liability to any of the parties claiming an interest in 

the disputed funds. 

¶9 Clyde Snow then filed a complaint, asserting a right to

foreclose on its attorney lien against the interpleaded funds. Two 

weeks later, Boyle filed a motion to dismiss, asserting that Clyde 

Snow had failed to properly intervene under Utah Rule of Civil 

Procedure 24. Boyle also answered the complaint and 

counterclaimed against Clyde Snow. Clyde Snow responded with 

its own motion to dismiss Boyle’s counterclaims.

¶10 The district court held a hearing on the two motions to 

dismiss. The court denied Boyle’s motion to dismiss on the 

ground that Boyle had waived his right to object to the propriety 

of intervention based on his concessions at the hearing, the 

untimeliness of his motion, and his conduct in litigating his 

interest in the disputed settlement funds. The parties then 

proceeded to litigate the attorney lien claim. The district court 

ultimately awarded the interpleaded funds to Clyde Snow. Boyle 

appealed. 
BOYLE v. CLYDE SNOW & SESSIONS

Opinion of the Court

4

¶11 On appeal the court of appeals reversed the district court’s 

determination that the rule 24 intervention issue had been 

waived. The court held that the defendants in the underlying 

action had properly preserved an objection to intervention. And 

the court held that neither Boyle nor Clyde Snow had timely 

intervened or complied with rule 24. Because none of the parties 

on appeal had ever properly become parties, the court of appeals 

held that the district court lacked jurisdiction to decide any of the 

issues relating to the attorney lien or interpleader. Accordingly, 

the court reversed the district court, noting that it may be possible 

for Clyde Snow to pursue its attorney lien claim in a separate 

proceeding. Clyde Snow petitioned for a writ of certiorari. We 

granted the petition. 

¶12 We review the court of appeals’ opinion for correctness. 

State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673, abrogated on other 

grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. Yet we note 

that the “correctness of the court of appeals’ decision turns, in 

part, on whether it accurately reviewed the [district] court’s 

decision under the appropriate standard of review.” Id. (internal 

quotation marks omitted) (quoting State v. Levin, 2006 UT 50, ¶ 15, 

144 P.3d 1096).

II

¶13 We assume (without resolving) the correctness of the court 

of appeals’ determination that Clyde Snow failed to file a proper, 

timely motion to intervene in the district court. Yet we reverse 

because we disagree with its disposition of the waiver question. 

We conclude that Boyle waived any objection to the propriety of 

Clyde Snow’s intervention by essentially acquiescing in the 

litigation over the merits of the firm’s fee claim and by actively 

advancing his own competing claim to an award of fees. 

¶14 The court of appeals found fault in the district court’s 

decision to “allow[] Clyde Snow to derail resolution of the case by 

objecting to the parties’ stipulated agreement to dismiss” the 

underlying wrongful death action. Boyle v. Clyde Snow & Sessions

PC, 2016 UT App 114, ¶ 22, 378 P.3d 98. It objected to the lower 

court’s reference to “Clyde Snow and Boyle as parties even 

though neither had intervened as a party in this case.” Id. And 
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Opinion of the Court

5

although it acknowledged that “the actual parties did not reply 

when the court asked if anyone strongly objected to Clyde Snow’s 

participation,” it nonetheless declined to find waiver because it 

thought that “any further objections from the defendants would 

have been futile.” Id.

¶15 The notion of futility of “further objections” is an apparent 

reference to issues that arose in the July 2013 telephonic hearing 

on the motion to dismiss the case in light of the parties’ settlement 

of the underlying wrongful death action. At that time Clyde Snow 

stated its intent to assert a lien for attorney fees and to litigate its 

fee claim in the pending case. Defense counsel responded by 

raising the concern that further publicity about an ongoing, 

pending action could be detrimental to the defendants. Defense 

counsel’s view was that it would be “more expedient” and “a lot 

fairer to the defendants to dismiss this action [and] to close out 

this case”—and let the “Clyde Snow law firm file [a separate]

action [for fees] without involving” the wrongful death 

defendants, “which otherwise are going to continue to be at least 

peripherally involved in this matter.” The district court then 

proposed “to enter an order dismissing all claims” against the 

wrongful death defendants “with prejudice,” while “simply 

leaving open the issue of the attorney’s lien.” And when the court 

asked whether that would get the wrongful death defendants 

“what [they] needed,” defense counsel responded with “I think 

so” and the caveat that “it would be cleaner the other way.” 

¶16 This may well have been enough to preserve an objection

to Clyde Snow’s intervention by the wrongful death defendants. In 

this context, moreover, we can understand the court of appeals’ 

conclusion that “any further objections from the defendants would 

have been futile.” Boyle, 2016 UT App 114, ¶ 22 (emphasis added). 

But that only means that the wrongful death defendants 

preserved the right to challenge Clyde Snow’s intervention on 

appeal. And that is beside the point because the wrongful death 

defendants accepted Clyde Snow’s intervention and accepted the 

judgment before us in these proceedings. They never filed any 

appeal.
BOYLE v. CLYDE SNOW & SESSIONS

Opinion of the Court

6

¶17 The only appellant in these proceedings is Mr. Boyle. So the 

question is not whether “the actual parties” to the wrongful death 

action preserved an objection to Clyde Snow’s intervention—that

objection was waived when those parties failed to file an appeal. 

The question is whether Boyle (the appellant) preserved an 

objection. And with that clarification, we think it clear that the 

propriety of Clyde Snow’s intervention was waived in the district 

court and not properly preserved for appeal.

¶18 Boyle waived any objection to the procedural correctness of 

Clyde Snow’s intervention in the wrongful death case. He did so 

(a) by acquiescing in Clyde Snow’s assertion of a lien and right to 

recover fees from the proceeds of the settlement; and (b) by 

asserting his own right to recover fees from those proceeds. In the 

initial telephonic hearing, Boyle, unlike the underlying 

defendants, did not object to Clyde Snow’s request that the 

attorney lien claim be decided in the pending action. Following

the hearing, Boyle participated in the court-ordered mediation. 

And when mediation failed, Boyle agreed in principle that the 

disputed funds should be interpleaded in the pending action, 

disputing only the amount that should be deposited.

¶19 This is more than enough to amount to waiver of Boyle’s 

objection to the court’s decision to leave the wrongful death case 

“open for the sole and limited purpose of determining Clyde 

Snow’s attorney’s fees lien.” Boyle not only acquiesced in Clyde 

Snow’s attempts to recover fees from the settlement proceeds, he

even asserted his own right to fees. And given that background, it 

could hardly have come as a surprise to Boyle for the district 

judge to state—as he did in the June 10, 2014 hearing—that 

Boyle’s acts over “nine months” seemed clearly to amount to 

waiver or acquiescence. 

¶20 In fact this did not seem to come as a surprise to Boyle. At 

that hearing Boyle conceded that he did not have a “solid answer” 

to the judge’s pushback and acknowledged that if he “were in [the 

court’s] position,” he “would probably agree” that there was a 

waiver. 
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Opinion of the Court

7

¶21 We likewise agree. We find ample grounds for the district 

court’s determination of waiver of any objection by Boyle to Clyde 

Snow’s intervention in this wrongful death action. And we 

accordingly reverse the court of appeals without reaching the 

question of the procedural correctness of Clyde Snow’s 

intervention.1

III

¶22 We reverse the court of appeals on the ground that Mr. 

Boyle waived any objection to Clyde Snow’s intervention in this 

case. That conclusion requires a remand to the court of appeals—

to give the court an opportunity to reach questions it did not 

reach previously (going to the merits of Boyle’s challenge to the 

district court’s decision, for example). 

 

1 Our holding also steers us clear of a further question decided 

by the court of appeals—that the wrongful death defendants’ 

actions do not amount to waiver under the standards set forth in 

our decision in Ostler v. Buhler, 1999 UT 99, 989 P.2d 1073. We do 

not reach that question because we conclude that the waiver at 

issue is that of Boyle, not of the wrongful death defendants. And 

that observation also avoids a responsive point advanced by 

Clyde Snow in its briefing—that the standards set forth in Ostler

have been overtaken by statute. Compare Ostler, 1999 UT 99, ¶ 9 

n.3 (noting the prevailing rule that attorney liens must be raised in 

a separate proceeding absent “special circumstances” (quoting 

Midvale Motors, Inc. v. Saunders, 442 P.2d 938, 941 (Utah 1968))),

with UTAH CODE § 38-2-7(4)(a) (affording an attorney the right to 

“enforce a lien under this section by . . . moving to intervene in a 

pending legal action”).