This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 25

IN THE

SUPREME COURT OF THE STATE OF UTAH

GREGORY N. JONES,

Appellant/Cross-Appellee,

v.

MACKEY PRICE THOMPSON & OSTLER, MACKEY PRICE, LLC,

RANDALL A. MACKEY, and GIFFORD W. PRICE,

Appellees/Cross-Appellants.

No. 20170604

Heard October 4, 2019

Filed May 14, 2020

On Direct Appeal

Third District, Salt Lake County

The Honorable Richard D. McKelvie

No. 060911956

Attorneys:

James D. Gilson, Lyndon R. Bradshaw, Cole P. Crowther, 

Salt Lake City, for appellant/cross-appellee

Gifford W. Price, Salt Lake City, for appellees/cross-appellants

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court,

in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS,

JUSTICE PETERSEN, and JUDGE POHLMAN joined. 

Having recused himself, JUSTICE PEARCE does not participate herein; 

COURT OF APPEALS JUDGE JILL M. POHLMAN sat.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 This appeal arises out of a longstanding dispute between 

attorney Gregory Jones and his former law firm, Mackey Price 

Thompson & Ostler, P.C. (MPTO), over the distribution of litigation 

proceeds. Jones claims a right to some of the fees collected by the 

firm in personal injury cases arising out of the use of the diet drug 
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

2

known as Fen-Phen. Jones has asserted claims for quantum 

meruit/unjust enrichment, breach of fiduciary duty, and fraudulent 

transfer. He also claims a right to an award of punitive damages and 

seeks to impose a constructive trust on the funds held by MPTO.

¶2 In 2017, after nearly ten years of litigation (including a 

previous appeal to this court), a jury entered a $647,090 verdict

against MPTO on a quantum meruit/unjust enrichment theory. But 

the district court dismissed Jones’s claims for breach of fiduciary 

duty, fraudulent transfer, and punitive damages after MPTO filed a 

motion for directed verdict. It also rejected Jones’s request for a 

constructive trust. 

¶3 After trial, the district court concluded that the judgment 

properly extended to a second entity, Mackey Price, LLC—an entity 

that the district court deemed a successor in interest to MPTO under 

rule 25 of the Utah Rules of Civil Procedure. Yet the district court 

denied Jones’s request to extend joint and several liability (under an 

alter ego theory) against Randall Mackey and Gifford Price

individually and against a third entity—Mackey Price Law, a Utah 

corporation. And it declined Jones’s request to conclude, in postjudgment proceedings, that Mackey, Price, and Mackey Price Law 

had violated Utah’s LLC and corporation statutes.

¶4 On this appeal, Jones challenges the dismissal of several of 

his claims on directed verdict, the denial of his request for a 

constructive trust, and the refusal to entertain his alter ego and 

statutory violation claims in post-judgment proceedings. On 

cross-appeal, MPTO challenges the jury verdict on the quantum 

meruit/unjust enrichment claim on the ground that the expert 

witness testimony that supported it should have been excluded. 

Mackey Price, LLC also cross-appeals, asserting that the district 

court lacked jurisdiction to add it to the judgment as a successor in 

interest to MPTO.

¶5 We affirm the directed verdict on the fiduciary duty claim

but reverse the dismissal of the fraudulent transfer and punitive 

damages claims and reverse and remand for further proceedings on 

Jones’s request for imposition of a constructive trust. We also affirm 

the denial of Jones’s alter ego and statutory claims against Mackey, 

Price, and Mackey Price Law because such claims cannot be asserted 

in post-judgment proceedings under Brigham Young University v.

Tremco Consultants, Inc., 2007 UT 17, 156 P.3d 782. And we uphold 

the jury verdict on the quantum meruit/unjust enrichment claim on 

the ground that the district court did not abuse its discretion in 

admitting the testimony of Jones’s expert witness. 
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Opinion of the Court

3

¶6 Finally, we clarify and limit the reach of our decision in 

Tremco. We conclude that the district court had the authority to 

consider a rule 25 motion for substitution—to add Mackey Price,

LLC as a successor to MPTO—in post-verdict proceedings. But we 

nonetheless reverse and remand on the ground that Mackey Price,

LLC was entitled to contest the merits of the proposed substitution

once the district court rejected its jurisdictional arguments. 

I. BACKGROUND

A. The Dispute and Jones’s First Appeal

¶7 In 1992 Randall Mackey and Gifford Price formed a 

professional corporation to conduct their law practice. Their firm has 

had various names over the years but was known as Mackey Price 

Thompson & Ostler, P.C., during the period relevant to this case. We

refer to it herein as MPTO.

¶8 Two attorneys associated with MPTO, Jeffrey Thompson 

and Russell Skousen, initiated a Fen-Phen program with MPTO to 

litigate claims arising from the fallout surrounding the beleaguered 

weight-loss pill. Jones also worked for MPTO and focused on 

Fen-Phen cases from 2002 to May 2005. At that time, Jones developed

dissociative amnesia, which severely impaired his memory and 

prevented him from continuing his work. The Fen-Phen cases 

eventually generated over $1 million in fees for MPTO. After Jones 

claimed to be entitled to some of the Fen-Phen funds, MPTO

deposited the fee checks into its trust account and agreed as a 

“professional courtesy” to let Jones know if any of the funds were to 

be distributed.

¶9 Jones sued MPTO over these funds in July 2006, asserting

various claims for relief. MPTO distributed the Fen-Phen funds in 

December of that year, purportedly to avoid incurring large tax 

liabilities. MPTO paid $328,261 to Thompson and Skousen, $165,000 

to Jones, $175,484 each to Mackey and Price, and the rest to other 

MPTO creditors. Yet Jones maintained that he was entitled to a 

larger share of the funds. In February 2007, he successfully amended 

his complaint to add claims for breach of fiduciary duty and 

fraudulent transfer.

¶10 Jones’s suit against MPTO, Mackey, Price, Thompson, 

Skousen, and various Thompson and Skousen limited liability 

companies reached us in 2015. At that time, we affirmed the district 

court’s dismissal of Jones’s contract claim, as well as his quantum 

meruit and fraudulent transfer claims against Mackey, Price, 

Thompson, Skousen, and the LLCs. Jones v. Mackey Price Thompson &
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

4

Ostler (Jones I), 2015 UT 60, ¶¶ 4–5, 355 P.3d 1000. But we reversed 

the district court’s denial of Jones’s request for a jury trial, ruling that 

Jones was entitled to a jury on his quantum meruit/unjust 

enrichment claim against MPTO. Id. ¶ 5.

B. MPTO’s Trial Objections

¶11 A trial followed. In the course of the proceedings, MPTO 

objected several times to the testimony offered by Jones’s expert 

witness, John Hansen. In part, MPTO objected that Hansen’s trial 

drawings, use of notes, and some aspects of his methodology were 

not previously disclosed under rule 26 of the Utah Rules of Civil 

Procedure and therefore should be excluded from the jury’s 

consideration. The district court overruled these objections. MPTO 

also objected to Hansen testifying as to what considerations typically 

went into a fee-splitting agreement, asserting that they were 

irrelevant in light of the dismissal of Jones’s contract claim. The 

district court also overruled these objections, citing another portion 

of our Jones I decision.

C. MPTO’s Motion for Directed Verdict

¶12 Before the case was submitted to the jury, MPTO sought

directed verdict on several of Jones’s claims, including his claims 

that MPTO’s December 2006 transfers breached a fiduciary duty to 

Jones and were fraudulent under the Utah Fraudulent Transfer Act. 

The district court entered directed verdict against Jones on his claims 

for breach of fiduciary duty and fraudulent transfer and his request 

for punitive damages.

¶13 Jones opposed MPTO’s motion. On the fiduciary duty claim,

he argued that rule 1.15 of the Utah Rules of Professional Conduct 

and MPTO’s alleged agreement to place the funds in a “segregated 

account” indicated that MPTO owed Jones a fiduciary duty. Jones 

asserted that MPTO had violated that duty by leaving him out of the 

process that gave Mackey and Price “much more than they 

deserved” and paid others who “didn’t do anything on . . . FenPhen.” The district court disagreed, ruling that no statute created an 

independent duty to Jones and that while the Utah Rules of 

Professional Conduct might be evidence of a fiduciary duty, they

cannot in and of themselves create such a duty.

¶14 In defending his fraudulent transfer claim, Jones focused on 

several factors laid out in the Utah Fraudulent Transfer Act. He 

argued that Mackey and Price had received payments “far in excess” 

of the reasonable value of their services, that they knew that the 

$165,000 paid to Jones was “woefully inadequate,” and that MPTO 
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Opinion of the Court

5

had paid the paltry sum to frustrate Jones’s ability to prosecute his 

case. But the district court weighed the various factors laid out in the 

statute differently. And it concluded that there was insufficient 

evidence for a jury to find by clear and convincing evidence that 

MPTO acted with actual intent to hinder, delay, or defraud Jones. In 

particular, the court emphasized its belief that MPTO transferred the 

funds only to avoid tax liability and that Jones was not actually 

harmed by the transfer.

¶15 With respect to his request for punitive damages, Jones 

asserted that MPTO had acted in blatant disregard of his rights and 

thus he was entitled to punitive damages on both his fiduciary duty 

and fraudulent transfer claims. The district court again disagreed,

ruling that there was no evidence of “malicious intent” on the part of 

MPTO.

D. The Verdict and Jones’s Request for a Constructive Trust

¶16 On March 7, 2017 a jury awarded Jones a $647,090 verdict 

against MPTO on his remaining claims. Jones quickly proposed that 

the district court impose a constructive trust to assist him in 

obtaining satisfaction of the judgment. MPTO objected, arguing that 

Jones I precluded the possibility of a constructive trust (an equitable 

remedy) on Jones’s quantum meruit claim (a legal claim). The district 

court agreed with MPTO and denied Jones’s request to impose a 

constructive trust in connection with the judgment. 

E. Jones’s Rule 25 Motion and MPTO’s JNOV Motion

¶17 The post-verdict proceedings continued when Jones sought

to hold another Mackey and Price entity responsible for the 

judgment and MPTO asked the district court to reconsider its 

decisions on the admissibility of Hansen’s expert testimony. 

¶18 Prior to and during trial, Mackey and Price had maintained 

a website for the newly named “Mackey Price & Mecham” at the 

web address www.mackeyprice.com. The firm listed a phone 

number and described itself as a “business law firm” comprised of 

four attorneys: Mackey, Price, and two others. But just two days after 

the jury verdict, on March 9, 2017, Mackey and Price formed Mackey 

Price, LLC. The LLC’s Certificate of Organization listed the same 

address as MPTO’s, naming Mackey as the registered agent and 

Mackey and Price as co-managers. Mackey and Price also transferred 

its website to Mackey Price, LLC, which listed the same phone 
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

6

number as before and again described itself as a “business law firm” 

comprised of the same four attorneys.1

¶19 In June 2017 the district court held argument on Jones’s 

proposed form of judgment. The court expressed concern that MPTO 

had reorganized as Mackey Price, LLC to avoid paying the judgment 

and wondered whether MPTO was engaged in a game of “legal 

whack-a-mole.” At the conclusion of the hearing, the district court 

gave MPTO the opportunity to submit a brief on whether Mackey 

Price, LLC should be joined as a party under rule 21 of the Utah 

Rules of Civil Procedure. MPTO availed itself of that opportunity, 

asserting that rule 21 did not obviate the requirement for the court to 

exercise personal jurisdiction via service of a summons and 

complaint. For its part, Mackey Price, LLC made a special 

appearance for the limited purpose of contesting the court’s 

jurisdiction. Neither entity addressed the allegation that Mackey 

Price, LLC had been formed to avoid the judgment. The district court 

entered a judgment against MPTO, including Mackey Price, LLC in 

the judgment’s definition of MPTO without any findings of fact or 

conclusions of law explaining the basis for that decision.

¶20 A few weeks later, Mackey and Price executed security 

agreements in favor of themselves on behalf of Mackey Price, LLC,

whereby Mackey and Price acquired a secured interest in the LLC’s

personal and fixture property, inventory, equipment, instruments, 

and other assets in exchange for legal work. Mackey and Price 

contend that these security agreements justify their decision to pay 

themselves rather than the judgment.

¶21 Jones filed a notice of appeal from the initial judgment on

July 27, 2017. Thereafter, the district court heard argument on 

MPTO’s motion for judgment notwithstanding the verdict (JNOV), 

which asserted that Jones’s expert witness testimony should have 

been excluded on the grounds that elements of his testimony had not 

been disclosed prior to trial and that it was contrary to law and

established facts. MPTO reiterated the objections it made at trial. It

_____________________________________________________________

1 Price later testified that he and Mackey immediately began

practicing law and billing their clients through the LLC. It “was 

made clear to the clients” which business “was going forward,” and 

that services “would be coming from the LLC.” Price also confirmed 

that Mackey Price, LLC had been substituted on the lease at Mackey 

Price & Mecham’s office and begun operating out of the same space.
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Opinion of the Court

7

further alleged that previous rulings regarding MPTO’s agreements 

with Thompson and Skousen meant that MPTO’s payments to 

Thompson and Skousen could not properly be considered part of the 

benefit Jones had conferred on MPTO. On September 22, 2017, the

district court denied MPTO’s JNOV motion. But in the same order, it 

concluded that its decision to extend the judgment to include

Mackey Price, LLC as a judgment debtor was void under Brigham

Young University v. Tremco Consultants, Inc., 2007 UT 17, 156 P.3d 782. 

It ordered Jones to prepare an amended judgment and remove

Mackey Price, LLC. In so doing, however, the court invited Jones to 

serve and move to join Mackey Price, LLC under rule 21 or 25 of the 

Utah Rules of Civil Procedure.

¶22 Jones filed a motion to do just that and served Mackey Price, 

LLC with rule 4 notice.2 MPTO and Mackey Price, LLC both filed 

memoranda in opposition to Jones’s motion. Once again, Mackey 

Price, LLC made its case in a special appearance. MPTO and Mackey 

Price, LLC first argued that the district court lacked subject matter 

jurisdiction to rule on the motion. They claimed that once the district 

court had denied MPTO’s JNOV motion on September 22, Jones’s 

July 27 notice of appeal kicked in, shifting jurisdiction to this court. 

They also argued that the district court lacked personal jurisdiction 

over Mackey Price, LLC.

¶23 On November 22, 2017, the district court granted Jones’s 

motion without oral argument and again joined Mackey Price, LLC 

as a party to the judgment, this time under civil rules 21 and 25. In so 

doing, the district court ruled that it retained jurisdiction because no 

amended judgment had been entered; in the absence of a final 

judgment, any notice of appeal was premature. The court also ruled 

that it had personal jurisdiction over Mackey Price, LLC because 

Jones had served the LLC in accordance with rule 4. In joining 

Mackey Price, LLC, the district court noted that it was odd that a 

party facing a significant judgment (like MPTO) would oppose the 

joinder of another party if the two really were separate entities. It 

also stated that if Mackey Price, LLC had disputed the factual 

allegations, the court would have held an evidentiary hearing to 

determine whether Mackey Price, LLC was in fact a successor to 

MPTO. But since Mackey Price, LLC focused “entirely on procedural 

_____________________________________________________________

2 Around this time, MPTO filed a notice of appeal from the 

district court’s denial of its JNOV motion.
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

8

issues,” the court found that it was entitled to grant Jones’s motion 

once those procedural arguments were rejected.3

¶24 On December 1, 2017 the district court entered an amended 

judgment that included Mackey Price, LLC as a judgment debtor.

Thereafter, Mackey Price, LLC filed a petition for extraordinary 

relief.

F. Jones’s Effort to Extend Liability to Mackey Price Law

¶25 In January 2018 Mackey and Price formed a third entity, 

Mackey Price Law. Mackey and Price are the sole shareholders, 

officers, and directors of Mackey Price Law. Once again, Mackey 

serves as the registered agent. Moreover, Mackey and Price executed 

additional security agreements, under which they acquired a secured 

interest in “All Assets” of Mackey Price Law.

¶26 Jones had initially filed a motion asking the court to rule

that MPTO, Mackey, Price, and Mackey Price, LLC were abusing the 

state’s corporation and LLC statutes and that the parties were alter 

egos of one another. Upon discovering the creation of Mackey Price 

Law, Jones filed a supplemental motion asking the court to find that 

Mackey Price Law was also an alter ego and jointly and severally 

liable for the amended judgment. Following a hearing, the district 

court relied on Tremco and refused to hear Jones’s new claims for

fraudulent transfer, alter ego, and statutory violations in postjudgment proceedings, or to add Mackey Price Law to the judgment.

G. The Appeal and Cross-Appeal

¶27 The parties thereafter filed their appeals and cross-appeals, 

which we consider below. In Part II we consider the arguments 

raised by Jones on his direct appeal. In Part III we take up the issues 

on cross-appeal. And in Part IV we synthesize the basis for our 

decision in order to clarify the questions presented on remand.

_____________________________________________________________

3 The district court acknowledged that Mackey had filed a 

declaration disputing whether certain assets were in fact transferred 

from MPTO to Mackey Price, LLC, but concluded that “Mackey’s 

testimony fails to challenge the central allegation in the Motion: that 

Mackey Price, LLC is simply a continuation of Defendant Mackey 

Price Thompson & Ostler.”
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Opinion of the Court

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II. JONES’S DIRECT APPEAL

¶28 On direct appeal, Jones challenges the district court’s 

(A) entry of a partial directed verdict; (B) denial of a right to seek a 

constructive trust in support of the judgment; and (C) refusal to 

allow him to assert his fraudulent transfer, alter ego, and statutory 

violations claims in post-judgment proceedings. We affirm in part 

and reverse in part.

A. Directed Verdict

¶29 Jones first challenges the district court’s decision to take the 

issues of breach of fiduciary duty, fraudulent transfer, and punitive 

damages away from the jury. We “review[] trial court rulings on 

motions for directed verdict for correctness.” Arnold v. Grigsby, 2018 

UT 14, ¶ 10, 417 P.3d 606.

¶30 A directed verdict is in order “[i]f a party has been fully 

heard on an issue during a jury trial and the court finds that a 

reasonable jury would not have a legally sufficient evidentiary basis 

to find for the party on that issue.” Id. (alteration in original) 

(quoting UTAH R. CIV. P. 50(a)(1)). We affirm the entry of directed 

verdict on the fiduciary duty claim but reverse on the fraudulent 

transfer and punitive damages claims.

1. Fiduciary Duty

¶31 Jones claims that he was the beneficiary of a trust 

relationship and that MPTO owed him a fiduciary duty under 

(i) general trust principles, (ii) Utah Rule of Professional Conduct 

1.15(e), and (iii) the “law of the case” doctrine. We disagree and 

affirm the district court’s dismissal of this claim on MPTO’s motion 

for directed verdict.

¶32 Jones first asserts that there was evidence that a trust was 

created when MPTO placed the Fen-Phen funds in its trust account. 

He claims that he was a beneficiary of that trust because MPTO 

knew he claimed an interest in the Fen-Phen proceeds and allegedly 

agreed to segregate the funds “on that basis.” Jones claims support 

for this view in the fact that MPTO ultimately paid him a portion of 

the Fen-Phen funds. Thus, in Jones’s view, MPTO, as trustee,

breached a fiduciary duty to him when it decided “what portion 

Jones was entitled” to “rather than awaiting the jury’s verdict.” The 

alleged breach is in MPTO “selfishly” paying Mackey and Price “and 

[its] creditors the disputed remaining portion” prior to the resolution 

of Jones’s claims.
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

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¶33 We affirm because we find no evidence of a

trustee-beneficiary relationship between Jones and MPTO. Trusts 

and corresponding fiduciary relationships are generally created by 

contract, statute, judicial decree, or some manifestation of an intent

to create a trust.

4 Jones’s situation matches none of these scenarios, 

and he has not identified a basis for an exception to the general rule.

¶34 Granted, MPTO notified Jones that it had placed the 

disputed funds in its trust account and would inform him of any 

decision to distribute funds “reasonably in advance of any 

distribution actually being made.” But Jones cites no record basis for 

the conclusion that MPTO intended to make or did make a binding

agreement of any kind, let alone a binding agreement to hold the 

funds until after the resolution of the case, or to give notice before 

making distributions. Jones can likewise point to no statute or 

judicial decree that created a trustee-beneficiary relationship.

¶35 We find no authority for the proposition that a party can 

unilaterally create a trust and make himself a beneficiary of that trust 

by the simple expedient of claiming an interest in a pot of money

and having another agree to keep him apprised of any distributions.

Such a rule would press holders of disputed funds into fiduciary 

service without their knowledge or consent. That is not the law. And 

for these reasons we find no basis in general trust principles for a 

trustee-beneficiary relationship between Jones and MPTO.

¶36 Second, Jones argues that Utah Rule of Professional Conduct 

1.15(e) “supports” a finding of a fiduciary duty. Rule 1.15(e) states 

that “[w]hen in the course of representation a lawyer is in possession 

of property in which two or more persons (one of whom may be the 

lawyer) claim interests, the property shall be kept separate by the 

lawyer until the dispute is resolved.” According to Jones, this means

that a factfinder could determine that a fiduciary relationship arose 

_____________________________________________________________

4 See UTAH CODE § 75-7-401(1)(b) (“A trust may be created by . . . 

declaration by the owner of property that the owner holds 

identifiable property as trustee . . . .”); id. § 75-7-402(1)(b) (“A trust is 

created only if . . . the settlor indicates an intention to create the trust 

or a statute, judgment, or decree authorizes the creation of a trust 

. . . .”); 24 AM. JUR. PL. & PR. FORMS Trusts § 2 (2020) (“Although 

technical words, such as ‘trust’ or ‘trustee,’ are not required in order 

to create the trust, the intention to create a trust must nevertheless be 

apparent.”).
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Opinion of the Court

11

once MPTO knew the ownership of the funds was disputed and 

agreed to hold them in a trust account.

¶37 But as Jones himself acknowledges, rule 1.15(e) can only 

support a finding of fiduciary duty—it can’t create one. The “Utah 

Rules of Professional Conduct are not designed to create a basis for 

civil liability.” Archuleta v. Hughes, 969 P.2d 409, 414 (Utah 1998). Nor 

do the rules create a legal presumption that a duty has been 

breached. Id. Without a basis in general trust principles, rule 1.15(e) 

alone cannot support Jones’s breach of fiduciary duty claim.

¶38 Finally, Jones argues that the “law of the case” doctrine 

mandates a finding of fiduciary duty. This doctrine states that “a 

decision made on an issue during one stage of a case” is sometimes 

“binding in successive stages of the same litigation.” IHC Health

Servs., Inc. v. D. & K. Mgmt., Inc., 2008 UT 73, ¶ 26, 196 P.3d 588

(citation omitted). Jones contends that the district court had already 

determined at the summary judgment stage that Mackey and Price 

owed him a fiduciary duty. And he asserts that that determination 

should have bound the district court moving forward.

¶39 But the district court made no such finding. Instead, the 

court simply concluded, in response to a motion for summary 

judgment, that “a fact finder could determine that fiduciary duties 

were voluntarily assumed” and “could determine that Rule 1.15(e) 

would apply.” (Emphases added.) These were not determinations 

that a fiduciary duty in fact existed. In any event, the district court 

statements were subject to reconsideration by a successor judge. As 

we recently clarified, the law of the case leaves a successor judge

broad discretion to revisit any “nonfinal decision entered 

previously.” Build, Inc. v. Utah Dep’t of Transp., 2018 UT 34, ¶ 27, 428 

P.3d 995.

¶40 Because neither general trust principles, rule 1.15(e), nor the 

law-of-the-case doctrine supports a finding that MPTO owed Jones a 

fiduciary duty, we affirm the district court’s entry of partial directed 

verdict on Jones’s claim for breach of fiduciary duty.

2. Fraudulent Transfer

¶41 Jones next challenges the dismissal of his fraudulent transfer 

claim, arguing that there was sufficient evidence for the jury to find 

that MPTO had acted with actual intent to hinder, delay, or defraud 

Jones when it distributed the Fen-Phen funds. In dismissing this 

claim, the district court went through the list of factors that the 

Fraudulent Transfer Act sets forth for determining a defendant’s 

“actual intent.” These include whether the transfer was to an insider, 
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

12

whether the debtor retained possession or control of the property 

after the transfer, and whether the transfer was concealed or made 

after the threat of a lawsuit. UTAH CODE § 25-6-5(2) (2016).5 Based on

these factors, the district court concluded that “no reasonable jury 

could make a determination [by clear and convincing evidence] that 

there was a violation of the Fraudulent Transfer Act or that these 

transfers took place [with] an intent to hinder, delay, or defraud 

anyone.”

¶42 The district court first acknowledged that some of the 

transfer in question was to insiders Mackey and Price, who thus 

retained possession or control of some of the funds. But the court 

also found that the transfer was disclosed (not concealed), that the 

transfer didn’t consist of substantially all of MPTO’s assets, and that 

MPTO didn’t abscond, conceal assets, become insolvent, make the 

transfer before or after a substantial debt was incurred, or transfer 

essential assets—all of which weighed in favor of the defendants. 

Because the suit “was filed well in advance of the transfer,” the 

district court said that it did not matter that the defendants had been 

sued before they made the transfer. In addition, the district court 

stated that it didn’t think it “weigh[ed] in favor of either party” 

whether Mackey and Price had received their portion of the funds as 

reasonable consideration (even if that fact was in dispute) since the 

defendants “certainly believe[d]” that it was a reasonable 

distribution. Lastly, the district court relied heavily on the notion

that “the only credible evidence in the record with respect to this 

transfer [wa]s that the defendants became aware of a potential tax 

liability.” The district court concluded that there was “no evidence to 

contravene the position of the defendants that they transferred this 

money solely in order to avoid paying the taxes on it,” and thus no 

way for a jury to conclude that MPTO’s transfers were fraudulent.

¶43 We disagree and reverse. Before reaching the merits, we 

address two threshold questions raised in the briefing on this appeal. 

_____________________________________________________________

5 We cite the 2016 version of the fraudulent transfer statute 

throughout, though it is unclear which version of the statute the 

district court applied in its March 2017 analysis. Because the statute 

remained the same from the time Jones added the fraudulent 

transfer claim to his complaint (February 2007) to the time the court 

entered directed verdict (March 2017), it does not matter which 

version we cite so long as we do not use the amended version that 

went into effect in May 2017. See infra ¶¶ 46–50.
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Opinion of the Court

13

We first conclude that a “mixed motive” is sufficient to establish an 

“actual intent” to hinder, delay, or defraud under the Fraudulent 

Transfer Act. We then hold that Jones was required to establish such 

actual intent by clear and convincing evidence. With these premises 

in mind, we conclude that there was sufficient evidence in the trial 

record for a jury to find by clear and convincing evidence that there 

was a fraudulent transfer in this case. 

a. Mixed motive

¶44 We begin by clarifying the governing legal standard on a 

question that has been decided in other states but never in Utah. The 

question is whether “actual intent” to hinder, delay, or defraud 

requires proof that such intent was the sole or primary purpose of 

the defendant, or whether proof of a “mixed motive” is sufficient. 

We conclude that there is no requirement that the intent to hinder, 

delay, or defraud be the sole or even primary motive of the 

defendant. This follows from the text of the statute, which requires 

proof only that a defendant act “with actual intent” to hinder, delay, 

or defraud. UTAH CODE § 25-6-5(1)(a) (2016). It would add an 

unstated qualifier to require that a defendant acting “with actual 

intent” act solely or primarily with that actual intent. And such an 

addition is foreclosed by our canons of interpretation.6

¶45 Utah cases have not addressed this “mixed motive” 

question directly. But they have spoken of an actual intent to hinder, 

delay, or defraud when interpreting the Fraudulent Transfer Act or 

its variants.7 And courts in other jurisdictions have interpreted 

_____________________________________________________________

6 See Nevares v. M.L.S., 2015 UT 34, ¶ 34, 345 P.3d 719 (rejecting an 

interpretation of a statute on the ground that it ran afoul of the canon 

against “read[ing] into the statute a limitation not expressly stated 

on its face”); Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 18, 248 P.3d 

465 (declining to “add conditions . . . that are not set forth expressly 

by legislation”).

7 See, e.g., Butler v. Wilkinson, 740 P.2d 1244, 1261 (Utah 1987) 

(interpreting the Utah Fraudulent Conveyance Act to mean that “the 

defendant must have an actual fraudulent intent” (emphasis added));

Selvage v. J.J. Johnson & Assocs., 910 P.2d 1252, 1261–62 (Utah Ct. App. 

1996) (stating repeatedly that there was enough evidence to infer “an 

actual intent to hinder, delay or defraud” in part because one 

witness testified that, “part of the decision regarding the date for 

placing Johnson into bankruptcy was to allow the one-year statute of

(continued . . .)
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

14

parallel language of the Uniform Fraudulent Transfer Act in the 

same way—holding that actual intent to hinder, delay, or defraud 

may be established on the ground that at least one of the defendant’s 

motives was an impermissible one.8 We agree with these holdings

and disagree with the contrary view endorsed in other jurisdictions.

9

We conclude that a plaintiff may carry her burden of showing that a 

defendant had actual intent to hinder, delay, or defraud without 

_____________________________________________________________

limitation to expire,” and thus the defendant’s actions “indicated an

intentional attempt to hinder, delay or defraud rather than merely a 

bona fide purpose to reduce Johnson’s debt to [defendant]” 

(emphases added)).

8 See, e.g., In re Blatstein, 192 F.3d 88, 97 (3d Cir. 1999) (“Our 

inquiry under [the Pennsylvania UFTA] is whether [the] [debtor] 

intended to hinder or delay a creditor. If he did, he had the intent 

penalized by the statute notwithstanding any other motivation he 

may have had for the transfer.” (third alteration in original) (citation 

omitted)); In re Tronox Inc., 503 B.R. 239, 279 (Bankr. S.D.N.Y. 2013) 

(holding that Oklahoma’s fraudulent transfer law does not require 

the plaintiff to show that the “main or only purpose of the transfer 

was defendant’s actual intent to damage a creditor” (citation and 

internal quotation marks omitted)); In re Stanley, 384 B.R. 788, 799 

(Bankr. S.D. Ohio 2008) (ruling that under Ohio’s UFTA, “‘[a]ctual 

intent’ may be present whether the transfer was motivated entirely 

or merely in part by a desire to hinder, delay or defraud creditors”);

Bertram v. WFI Stadium, Inc., 41 A.3d 1239, 1247 (D.C. 2012) (“[E]ven 

if a debtor has at least one non-fraudulent motive for a transaction, 

the additional motive of effecting the transaction to hinder a creditor 

‘is a sufficient ground for an unassailable conclusion [of] . . . 

fraudulent intent.’” (second and third alterations in original) 

(citation omitted).

9 See, e.g., Tindall v. H & S Homes, LLC, 757 F. Supp. 2d 1339, 1364 

(M.D. Ga. 2011) (“The facts here suggest that . . . Defendants’ 

dominant intent appears to have been to hinder, delay or defraud 

Plaintiff . . . . ‘[Actual] intent will be found if the circumstances 

indicate that the main or only purpose of the transfer was to prevent a 

lawful creditor from collecting a debt.’” (emphases added) (citations 

omitted)); In re Schneider, 417 B.R. 907, 915 (Bankr. N.D. Ill. 2009) (“If 

the primary motivation for the transfer is based on fraudulent intent, 

other motivations may be urged, but they are irrelevant.” (emphasis 

added)).
Cite as: 2020 UT 25

Opinion of the Court

15

showing that it was the defendant’s sole or primary motivation.

Thus, the question is whether there existed a legally sufficient 

evidentiary basis for a reasonable jury to conclude that MPTO made 

the payments from its trust account with an actual intent to hinder, 

delay, or defraud Jones.

b. Standard of proof

¶46 We next consider what standard of proof Jones was required 

to meet on his fraudulent transfer claim. The standard is clearly set 

forth in the statute as it stands today. See UTAH CODE § 25-6-202. 

Under the current version of the statute (effective May 2017), a 

transfer made with “actual intent to hinder, delay, or defraud” is not 

“fraudulent” but merely “voidable.” Id. § 25-6-202(1). And a claim 

under this provision requires proof only by a “preponderance of the 

evidence.” Id. § 25-6-202(3).

¶47 But this altered the operative burden of proof under Utah 

law. The pre-2017 statute treated all transfers made with “actual 

intent to hinder, delay, or defraud” as “fraudulent.” See UTAH CODE 

§ 25-6-5(1) (2016). Under the old statute, any “transfer made or 

obligation incurred by a debtor is fraudulent as to a creditor[] . . . if 

the debtor made the transfer or incurred the obligation[] . . . with 

actual intent to hinder, delay, or defraud any creditor of the debtor.” 

Id. (emphasis added). And under Utah law, a claim of fraud must be 

proven by clear and convincing evidence.10

¶48 This highlights an important distinction between the 2017 

statute and the one it amended. Under the pre-2017 law, the plaintiff 

bore the burden of proving all claims asserting intent to hinder, 

_____________________________________________________________

10 See Daines v. Vincent, 2008 UT 51, ¶ 38, 190 P.3d 1269 (“To 

prevail on a claim of fraudulent inducement, [the plaintiff] must 

present clear and convincing evidence . . . .”); Armed Forces Ins. Exch.

v. Harrison, 2003 UT 14, ¶ 27, 70 P.3d 35 (“[F]raud is a wrong of such 

nature that it must be shown by clear and convincing proof and will 

not lie in mere suspicion or innuendo.” (alteration in original) 

(citation and internal quotation marks omitted)); Lundstrom v. Radio

Corp. of Am., 405 P.2d 339, 341 (Utah 1965) (same); Ferrell v. Wiswell, 

143 P. 582, 583–84 (Utah 1914) (“We have no right to overlook the 

wholesome rule that where deeds or contracts are sought to be 

vacated . . . upon the ground of fraud and deceit, the burden of 

proving the alleged fraud is upon him who asserts it; moreover, that 

the fraud must be established by clear and convincing evidence.”).
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

16

delay, or defraud by clear and convincing evidence. But under the 

statute that went into effect in May 2017, the plaintiff bears the 

burden of proving such claims only by a preponderance of evidence.

¶49 This triggers the question of which version of the statute 

applies. And that implicates standards set forth in our decision in 

State v. Clark, 2011 UT 23, 251 P.3d 829. Under Clark “we apply the 

law as it exists at the time of the event regulated by the law in 

question.” Id. ¶ 13. “On matters of substance the parties’ primary 

rights and duties are dictated by the law in effect at the time of their 

underlying primary conduct (e.g., the conduct giving rise to a 

criminal charge or civil claim).” Id. ¶ 14. “Thus, if a law regulates a 

breach of contract or a tort, we apply the law as it exists . . . at the 

time of the event giving rise to [the] cause of action.” Id. ¶ 13. “When 

it comes to the parties’ procedural rights and responsibilities, 

however, the relevant underlying conduct is different: the relevant 

occurrence for such purposes is the underlying procedural act (e.g., 

filing a motion or seeking an appeal).” Id. ¶ 14. “The law governing 

th[e] [relevant] procedural occurrence is thus the law in effect at the 

time of the procedural act . . . .” Id.

¶50 We have not decided whether a statute altering the standard

of proof in a civil proceeding is substantive or procedural. Nor have 

we decided whether a statute effecting such change can or should be 

applied retroactively.11 And we need not do so here. The statute 

lowering the standard of proof to a preponderance of evidence was 

not in effect until May 2017. By then, all the relevant events even 

arguably regulated by the statute—whether the substantive 

“primary conduct” giving rise to the alleged fraudulent transfer 

(December 2006), or the procedural filing of the relevant pleadings 

(February 2007) and presentation of proof at trial (March 2017)—had 

already taken place. For that reason there is no basis for application 

of the new statute to this case. And Jones was thus required to prove 

his claim for fraudulent transfer by clear and convincing evidence.

_____________________________________________________________

11 In criminal proceedings, we have held that “statutes which 

‘alter the degree, or lessen the amount or measure, of the proof 

which was made necessary to conviction when the crime was 

committed’” may not be applied retroactively. See State v. Schreuder, 

726 P.2d 1215, 1218 (Utah 1986) (citation omitted). But that decision 

was based on the Ex Post Facto Clauses of the federal and state 

constitutions, id., not the framework laid out in State v. Clark, 2011 

UT 23, 251 P.3d 829.
Cite as: 2020 UT 25

Opinion of the Court

17

c. Application of the law to the facts in the record

¶51 We may reverse the district court’s decision dismissing 

Jones’s fraudulent transfer claim if we find that the jury had a 

“legally sufficient evidentiary basis” to find for Jones on this claim. 

UTAH R. CIV. P. 50(a)(1). Under the standards set forth above, we 

must decide whether there was a sufficient basis for a reasonable 

jury to find by clear and convincing evidence that MPTO had an 

actual intent to hinder or delay Jones in seeking his share of the 

funds. We reverse because we conclude that there was sufficient 

evidence in the record for a reasonable jury to so conclude.

¶52 The district court leaned heavily on its finding that “the only 

credible evidence in the record with respect to this transfer is that the 

defendants became aware of a potential tax liability.” Conversely, 

the court stated that there was “no evidence to contravene the 

position of the defendants that they transferred this money solely in 

order to avoid paying the taxes on it.” We see the record differently. 

The court may have been correct to suggest that the only direct

evidence of MPTO’s motives went to tax avoidance. But 

circumstantial evidence may also be considered. And we think there 

was ample circumstantial evidence in the record to support a jury 

determination (by clear and convincing evidence) that at least one of 

MPTO’s motives was to hinder or delay Jones.

¶53 The district court also cited the fact that Jones had filed his 

lawsuit several months before MPTO made the transfer. But this 

would not have prevented the jury from drawing a negative 

inference from the fact that, “before the transfer was made or 

obligation was incurred, the debtor had been sued or threatened 

with suit.” UTAH CODE § 25-6-5(2)(d) (2016). The fact that Jones filed 

his lawsuit several months before the transfer doesn’t categorically 

exonerate the defendants’ motivations. A reasonable jury could have 

found that the fact the defendants were being sued cut in favor of 

Jones. And given that the jury verdict awarded Jones virtually all the 

Fen-Phen litigation funds, a reasonable jury could have decided that 

the large transfers to Mackey and Price did not constitute “the value 

of the consideration . . . reasonably equivalent to the value of the 

asset transferred.” Id. § 25-6-5(2)(h). That too would have weighed in 

favor of Jones.

¶54 We also think the district court placed too much weight on 

MPTO’s supposed tax motivations. A reasonable jury could have 

wondered why there was no written or paid advice regarding the 

alleged tax problem—a potential weakness that Jones probed at trial. 

A reasonable jury also could have found Mackey and Price to be 
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

18

lacking credibility in general. At trial, Jones’s attorney tried to 

uncover exactly how Mackey and Price arrived at the $165,000 figure 

for Jones, as they did not involve Jones in their calculations. Price 

testified that in calculating how many of the Fen-Phen funds to send

Jones, he and Mackey took into account damages that Jones caused 

the firm in his handling of two specific cases. But Mackey testified to 

just the opposite. Mackey said they did not take into account the fact 

that Jones’s work had been “deficient” in certain cases. A reasonable 

jury could have discounted Mackey’s and Price’s testimony in light 

of this contradiction. At a minimum, a reasonable jury could have 

concluded that Mackey and Price were being less than forthcoming 

on the issue, as they failed to offer any kind of concrete formula for 

MPTO’s payment to Jones and repeatedly insisted that they were 

simply trying to “be fair to Mr. Jones” by looking at “various 

factors.”

¶55 Any jury may be less inclined to find for a party whose 

credibility is called into question. But Mackey’s and Price’s 

credibility on this point was especially important. While MPTO’s tax 

fears might adequately explain why MPTO distributed the funds 

when it did, they do nothing to explain why MPTO paid out the sums

it did or why it chose to pay the entities it did. The decision to pay 

Mackey, Price, and other creditors decreased the amount of FenPhen funds in MPTO’s possession, and thus how much and how 

quickly Jones could reasonably expect to recover in the event of a 

favorable outcome at trial. If the jury believed that MPTO paid Jones 

based on a reasonable, good-faith determination of what it believed 

Jones was owed, the jury likely would have found that MPTO 

simply made the transfers with the intent to avoid taxes and pay off 

creditors. But if the jury believed that MPTO was trying to lowball 

Jones and divest itself of the rest of the funds, the jury very well 

could have inferred that MPTO was also trying to put itself in a 

position where it no longer had what Jones claimed (and MPTO 

believed) he was owed.

¶56 MPTO’s failure to explain its calculation of Jones’s payment, 

as well as its possible offset for Jones’s alleged mishandling of cases,

make it more likely that MPTO also acted to hinder or delay Jones in 

his efforts to recover his share of the Fen-Phen fees. We hold that 

there was sufficient evidence for a reasonable jury to conclude by 

clear and convincing evidence that MPTO acted with actual intent to 

hinder or delay Jones. And we accordingly reverse the directed 

verdict on this claim.
Cite as: 2020 UT 25

Opinion of the Court

19

3. Punitive Damages

¶57 Jones next challenges the district court’s dismissal of his 

claim for punitive damages. By statute, punitive damages are 

generally available “only if compensatory or general damages are 

awarded and it is established by clear and convincing evidence that 

the acts or omissions of the tortfeasor are the result of willful and 

malicious or intentionally fraudulent conduct, or conduct that 

manifests a knowing and reckless indifference toward, and a 

disregard of, the rights of others.” UTAH CODE § 78B-8-201(1)(a); id.

§ 78-18-1(1)(a) (2006). In rejecting Jones’s request for punitive 

damages, the district court relied on the notion that there was “no 

evidence of malice” on MPTO’s part. We reverse in light of our 

decision to reinstate the fraudulent transfer claim. With the

fraudulent transfer claim in place, Jones is entitled to pursue his 

claim for punitive damages.

B. Constructive Trust

¶58 Jones also challenges the district court’s ruling denying his 

request for the imposition of a constructive trust. In the proceedings 

below, Jones asserted that he had established all the prerequisites for 

the imposition of a constructive trust. The district court declined to 

reach that question, however, because it concluded that our ruling in 

Jones I “specifically rejected the availability of a constructive trust as 

a potential remedy” in this case.

¶59 We concede that there was a degree of imprecision in our 

discussion in Jones I on this point. But we clarify that our analysis in 

Jones I did not foreclose the possibility of a constructive trust in this 

case and remand to allow the district court to decide in the first 

instance whether Jones has established the preconditions for the 

imposition of a constructive trust.

¶60 In Jones I we held that Jones had a right to a jury trial 

because he sought “only money damages” and requested a “legal 

remedy, not an equitable one.” 2015 UT 60, ¶ 51, 355 P.3d 1000. With 

this in mind, the district court thought that Jones was seeking to 

move the goalposts on remand. It thought it unfair to allow Jones to 

“seek[] to obtain an equitable remedy (a constructive trust)” after 

convincing this court that “his claim seeks a legal remedy (monetary 

relief).”

¶61 We can see how the district court could read our Jones I

opinion in this way. But our analysis in Jones I, though not as precise 

as it might have been, was not an indication that Jones could not 

seek the imposition of a constructive trust. In Jones I we held only 
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

20

that the quantum meruit/unjust enrichment claim itself was legal in 

nature. In the briefing in Jones I, Jones never proffered an intent to 

forgo an equitable remedy in the aid of the collection on his legal 

claim. Indeed, we noted that Jones was not just asserting a claim for 

quantum meruit/unjust enrichment but also “ask[ing] the court to 

hold the fees received by Mackey Price in constructive trust.” Id. ¶ 51 

n.58. And our analysis did not foreclose the availability of such 

relief; the question was simply not presented to us.

¶62 We thus conclude that Jones I does not categorically 

foreclose Jones from seeking the imposition of a constructive trust. 

Our case law supports the availability of equitable remedies in 

support of the collection of damages on a legal claim. See Ong Int’l

(U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 457 (Utah 1993); see also

RESTATEMENT (THIRD) OF RESTITUTION & UNJUST ENRICHMENT § 4 

cmt. d (AM. LAW INST. 2011). Constructive trusts, moreover, have 

properly been imposed to aid in collecting on a legal claim.12 And 

that is all that Jones has asked for here.

¶63 We reverse on that basis. In so doing we are not endorsing 

the propriety of a constructive trust in the circumstances of this case. 

See Wilcox v. Anchor Wate, Co., 2007 UT 39, ¶ 34, 164 P.3d 353 

(identifying factors for consideration in the imposition of a 

constructive trust). We leave the resolution of that question for the 

district court on remand.

C. New Claims in Post-Judgment Proceedings

¶64 Jones’s last contention is his challenge to the district court’s

determination that he could not prosecute his claims for fraudulent 

transfer, alter ego, and statutory violations in post-judgment

proceedings. The district court held that such claims were foreclosed 

under our decision in Brigham Young University v. Tremco Consultants,

Inc., 2007 UT 17, 156 P.3d 782. We agree and affirm.

_____________________________________________________________

12 See Butler, 740 P.2d at 1253, 1262 (ruling that plaintiffs were 

entitled to a constructive trust on their fraudulent conveyance claim 

to prevent defendants from unjustly enriching themselves from 

proceeds not yet received from a land sale); RESTATEMENT (THIRD) OF 

RESTITUTION & UNJUST ENRICHMENT § 4 cmt. e, illus. 9–10 (AM. LAW 

INST. 2011) (endorsing the availability of a constructive trust in 

connection with a claim for collection of embezzled funds).
Cite as: 2020 UT 25

Opinion of the Court

21

¶65 Tremco involved a plaintiff who sought to execute a 

judgment on the assets of persons not named as parties to the 

lawsuit or judgment. Id. ¶¶ 12–13, 36. In that case, the court held that 

claims founded on “alter ego” and “fraudulent transfer” are “civil 

action[s] that must be prosecuted in the manner prescribed in the 

Utah Rules of Civil Procedure, commencing with the filing of a 

summons and complaint and not the abbreviated post-judgment 

collection procedures of rule 69.” Id. ¶ 39. “In light of the status 

conferred through the development of the common law and 

legislative action upon alter ego and fraudulent transfer” claims, a 

plaintiff may not seek to advance these claims in post-judgment

proceedings in an attempt to extend liability for a judgment to new

parties. Id.; see also id. ¶ 45. Instead, such claims must be initiated and 

litigated in the ordinary course under our rules of civil procedure, 

with rights of discovery, motion practice, trial, etc. Id. ¶ 40.

¶66 Jones seeks to distinguish this case on the ground that he is 

invoking rules 21 and 25 of the Utah Rules of Civil Procedure in an 

attempt to “substitute” Mackey, Price, and Mackey Price Law as 

“successors” to MPTO. In support of this view, Jones notes that the 

district court has already allowed Mackey Price, LLC to be 

substituted as a successor entity under rules 21 and 25. Jones claims 

that his bid to add Mackey, Price, and Mackey Price Law is no 

different.

¶67 We disagree. The proceedings seeking to add Mackey Price,

LLC as a party to the judgment are distinct from the proceedings at 

issue here. See infra ¶¶ 91–93. When Jones sought to extend the 

judgment to Mackey Price, LLC he was asserting only that Mackey 

Price, LLC was a successor to MPTO that should be substituted in as 

a named party to the judgment. But the proceedings seeking to add 

Mackey, Price, and Mackey Price Law were different. There, Jones 

asserted new, substantive common-law and statutory claims—

fraudulent transfer, alter ego, and other statutory violations—against 

an unnamed, unjoined party. These are precisely the kinds of claims 

that cannot be asserted in post-judgment proceedings under Tremco.

¶68 We affirm on this basis.13 Jones’s claims against Mackey, 

Price, and Mackey Price Law are separate civil actions with 

_____________________________________________________________

13 For reasons explained below, see infra ¶¶ 89–90, the district 

court may have also lacked jurisdiction to allow Jones to assert new 

claims for liability against Mackey, Price, and Mackey Price Law. 

Jones’s July 27, 2017 notice of appeal became effective, and generally 

(continued . . .)
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

22

common-law or statutory status triggering the need to initiate new 

proceedings in accordance with the Utah Rules of Civil Procedure. 

Jones has no right to bypass the protections of our rules by tacking 

on a brand-new claim in the abbreviated mechanism of a 

post-judgment proceeding. This was our holding in Tremco and we 

stand by it here. Jones has identified no persuasive basis for 

distinguishing our precedent or for departing from it, and we thus 

reinforce Tremco and affirm on that basis.

III. CROSS-APPEALS

¶69 Both MPTO and Mackey Price, LLC raise claims on 

cross-appeal: (A) MPTO challenges the district court’s decision to 

allow Jones’s expert witness to testify in support of his quantum 

meruit/unjust enrichment claim; and (B) Mackey Price, LLC asserts 

that the district court erred in adding it as a party to the judgment 

under rules 21 and 25 of the Utah Rules of Civil Procedure. We 

affirm in part and reverse in part.

A. MPTO’s Cross-Appeal

¶70 MPTO challenges the district court’s decision allowing the 

jury to consider expert testimony from John Hansen, the expert 

witness called by Jones in support of his claim for quantum 

meruit/unjust enrichment. In pretrial proceedings, Jones had 

produced an expert witness report for Hansen under the 

then-applicable version of rule 26 of the Utah Rules of Civil 

_____________________________________________________________

deprived the court of jurisdiction over most matters, when the 

district court entered its amended final judgment on December 1, 

2017, see infra ¶¶ 89–90—before the district court denied Jones’s 

request to assert new claims of liability against these parties.

Despite the notice of appeal, however, the district court retained 

jurisdiction over certain post-judgment proceedings. See Garver v.

Rosenberg, 2014 UT 42, ¶ 10 n.12, 347 P.3d 380. So the court retained 

the power to decide whether it was appropriate to allow Jones to 

assert new claims for liability against Mackey, Price, and Mackey 

Price Law. It had jurisdiction to determine its own jurisdiction. In 

rejecting Jones’s attempt to assert new claims for liability, the district 

court was effectively concluding that such claims could not properly 

be asserted within a post-judgment proceeding. That would hold 

both as a matter of jurisdiction and under Tremco.
Cite as: 2020 UT 25

Opinion of the Court

23

Procedure.14 MPTO had also had the opportunity to depose Hansen. 

But at trial in 2017, MPTO made objections (some clearer than 

others) that suggested it believed that Hansen’s testimony was going 

beyond the scope of the testimony forecast in the report and 

deposition and should be foreclosed on that basis. Specifically, 

MPTO objected to Hansen’s drawing during his testimony, use of 

handwritten notes, and alleged reliance on information and 

methodology not cited in his initial report and deposition. The 

district court overruled all of MPTO’s objections regarding 

inadequate disclosure, although at one point the district judge

appeared to indicate that he had not read Hansen’s report. MPTO 

also argued that since Jones no longer had a contract claim, Hansen 

could not testify as to what types of considerations typically go into 

a fee-splitting arrangement. The district court overruled this latter 

point by citing our decision in Jones I.

¶71 After trial in its JNOV motion, MPTO also objected to the 

admissibility of Hansen’s testimony on the ground that it was 

foreclosed by prior summary judgment rulings that suggested that 

the funds MPTO paid to Thompson and Skousen never properly 

belonged to MPTO. MPTO argued that these funds therefore could 

not be considered part of the benefit Jones conferred on MPTO.

Again, the district court rejected MPTO’s arguments.

¶72 MPTO contends that the quantum meruit/unjust 

enrichment jury verdict cannot stand without Hansen’s testimony. 

And it seeks to overturn the verdict on the above grounds. We 

review the district court’s determinations on the admissibility of 

expert testimony for abuse of discretion, Northgate Vill. Dev., LC v.

City of Orem, 2019 UT 59, ¶ 14, 450 P.3d 1117, and affirm.

1. Adequacy of Jones’s Pretrial Disclosures

¶73 The 2006 version of rule 26(a)(3)(B) of the Utah Rules of 

Civil Procedure stated that an expert report should contain “the 

subject matter on which the expert is expected to testify; the 

substance of the facts and opinions to which the expert is expected to 

testify; [and] a summary of the grounds for each opinion.” As the 

_____________________________________________________________

14 Here, the adequacy of Jones’s pretrial disclosures is judged by 

the standard applicable at the time he was required to make them. 

See supra ¶ 49.
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

24

language suggests, this was not a demanding standard.15

Nonetheless, MPTO argues that Hansen’s testimony was 

inadequately disclosed because his trial testimony strayed too far 

from his expert report and deposition. We disagree.

¶74 At trial, MPTO was not always clear about the precise 

nature of its objections—or even about the fact that it was making a 

rule 26 objection. And the imprecisions in MPTO’s objections had an 

effect on the district court’s stated grounds for its rulings. Yet MPTO

did object at least twice that Hansen was straying from his report. 

And in the context in which the objections were raised, we affirm the 

district court’s rulings.

¶75 MPTO’s first objection—to Hansen making an illustration to 

help convey what he was saying—clearly lacked merit. Hansen was 

simply mapping out what he was explaining, not introducing a new 

exhibit or document. It was in this context that the district court 

indicated that it “ha[d]n’t seen the report and ha[d]n’t seen the 

exhibit” that Hansen was in the process of drawing.16 The district 

court’s statement made sense in this context. This was not an 

admission by the court that it had no basis for assessing the viability 

of any of MPTO’s objections. It was an acknowledgement that the 

expert was entitled to make an illustration expanding on the 

testimony in his report, and on that point we agree.

_____________________________________________________________

15 The Advisory Committee Notes to the new rule 26 illustrate 

how the old rule operated in practice: “[B]ecause experts often were 

allowed to deviate from the opinions disclosed, attorneys typically 

would take the expert’s deposition to ensure the expert would not 

offer ‘surprise’ testimony at trial, thereby increasing rather than 

decreasing the overall cost. The amendments seek to remedy this 

and other costs associated with expert discovery by, among other 

things, allowing the opponent to choose either a deposition of the 

expert or a written report, but not both; in the case of written reports, 

requiring more comprehensive disclosures, signed by the expert, and 

making clear that experts will not be allowed to testify beyond what 

is fairly disclosed in a report . . . .”

16 MPTO did specifically raise the objection that “[t]here’s 

nothing in [his report] about the fee split with any clients[,]” but this 

was also in the context of the objection to Hansen’s illustration. And 

again we affirm the decision to overrule that objection.
Cite as: 2020 UT 25

Opinion of the Court

25

¶76 MPTO’s next objection was to Hansen’s discussion of 

Thompson’s and Skousen’s affiliation with “national class counsel.”

But after the district court struck Hansen’s initial answer, MPTO 

dropped the matter. To be sure, MPTO also challenged Hansen’s 

alleged reliance on documents not disclosed in his report, including 

Hansen’s use of some last-minute notes on the stand. But these notes 

didn’t stray from the substance of Hansen’s prior disclosures, and 

the judge marked Hansen’s notes as an exhibit for MPTO’s counsel 

to use. As for Hansen’s other supposed reliance on information “not 

in the report,” Hansen’s testimony was based on what he had heard 

others testify at trial. The district court was well within its rights to 

overrule MPTO’s vague objections on these points.17

¶77 MPTO claims that the district court never conducted a 

proper rule 26 analysis because it incorrectly relied on Jones I to 

excuse Hansen’s “new,” inadequately disclosed testimony. But the 

record belies this. At trial, MPTO’s main—and continuing—objection 

apparently went to Hansen’s discussion of fee-splitting 

arrangements in general. MPTO’s counsel argued that Hansen’s 

testimony on this point was inappropriate since there was “no 

agreement” between Jones and MPTO and the trial was focused on 

Jones’s quantum meruit/unjust enrichment claim. It was in this 

context that the district court finally quoted from Jones I and 

reasoned that “[t]o the extent that the [Utah] Supreme Court has 

given me some leeway or some discretion in allowing an expert 

witness or evidence regarding the other appropriate factors, that’s 

what Mr. Hansen is doing. . . . I believe that this not only is 

appropriate but, basically, is what the Supreme Court has ordered 

me to allow.” We affirm that ruling. The district court was simply 

making the point that even though there was no contract between 

Jones and MPTO, it was appropriate for Hansen to testify about 

what factors usually went into fee-splitting agreements because 

those factors were relevant for determining the reasonable value of 

Jones’s services. It was not ruling that Jones I allowed Jones to skirt 

_____________________________________________________________

17 MPTO also cross-examined Hansen extensively about specific 

figures that were not in his report, repeatedly invoking the Utah 

Rules of Civil Procedure. But haranguing a witness on 

cross-examination about the plaintiff’s obligations under the rules is 

not the same as making a specific rule 26 objection for the district 

court to rule on.
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

26

rule 26 pretrial disclosure requirements regarding Hansen’s 

testimony.

¶78 The district court’s ruling on MPTO’s JNOV motion 

confirms that the court relied on Hansen’s testimony at trial and not

on Jones I in overruling MPTO’s rule 26 objections. In that ruling the 

court said that it was “not persuaded that Mr. Hansen strayed from 

the substance of his expert report at trial,” but rather found that “Mr. 

Hansen testified consistent with his pretrial disclosures.”

¶79 We agree. Hansen’s report stated that it was based on his 

“evaluation and professional opinion” and his experience as a law 

firm shareholder, practicing attorney in the Salt Lake area for 

twenty-five years, former managing partner of a law firm, and 

former president of the Utah Chapter of the Federal Bar Association.

It explained that he has specific knowledge and experience with 

personal injury claims, contingency fees, and fee allocations between 

multiple attorneys. It also named factors that Hansen took into 

account in concluding that Jones was entitled to 80 percent of the 

Fen-Phen fees. These factors included Jones’s unique employment 

standing, personal expenses, commitment, leadership, time, and 

origination. In his deposition, Hansen likewise highlighted his 

professional experience with contingency fee cases and fee-splitting 

between attorneys, including how fee splits often depend on the 

circumstances surrounding the representation. He said that he 

arrived at the 80 percent figure “based on [his] experience in dealing 

with contingency fees and fair resolution” and factors such as 

risk-taking, leadership, commitment, out-of-pocket expenses, and 

work distribution.

¶80 MPTO asserts that Hansen’s trial testimony “deviated 

materially” from these pretrial disclosures because he used terms 

like “standard practices in the community” and “community 

standards” and gave more specific percentage breakdowns and 

dollar figures. But Hansen’s testimony included numerous 

references to his experience with contingency fee and fee-splitting 

cases, based on his personal practice and observations during the 

course of his professional career. The bulk of his testimony 

concerned the factors listed in his report. All Hansen did at trial was 

lump these factors into discrete categories (risks, resources, and 

responsibilities). The same factors still led to the same 80 percent

determination.

¶81 Hansen’s experience, methodology, and opinions were all 

highlighted in his report and deposition. MPTO was thus on notice 

about the substance of Hansen’s trial testimony. There is no undue 
Cite as: 2020 UT 25

Opinion of the Court

27

surprise when experts summarize factors listed in their report into 

succinct groupings or use slightly different terminology. We hold 

that Hansen’s testimony was properly admitted and that Jones’s 

disclosure of Hansen’s expert testimony was adequate under the 

then-applicable rule 26 of the Utah Rules of Civil Procedure.

2. Hansen’s Inclusion of the Thompson & Skousen Payment

¶82 In post-trial proceedings, MPTO also contended that 

Hansen’s testimony should have been excluded because it was 

contrary to established facts. Specifically, MPTO argued that 

Hansen’s testimony was deficient because it included MPTO’s 

payment to Thompson & Skousen as part of the reasonable value of 

Jones’s services. According to MPTO, past rulings had “created a 

‘ceiling’ on Plaintiff’s damages . . . that Mr. Hansen failed to account 

for.”

¶83 The district court was not bound by past district court 

judges’ summary judgment rulings. See Build, Inc. v. Utah Dep’t of

Transp., 2018 UT 34, ¶¶ 30–31, 428 P.3d 995. In any case, the past 

rulings concerned whether Jones could pursue a claim against 

Thompson & Skousen for the payment it received from MPTO. But 

whether Jones has a claim against Thompson & Skousen has nothing 

to do with how much benefit Jones conferred on MPTO. MPTO 

asserts that not accounting for the Thompson & Skousen payment 

means that MPTO ultimately lost $59,000 processing the Fen-Phen 

suits. This, MPTO, argues, contradicts Jones’s theory that MPTO was 

unjustly enriched. But whether MPTO made a good deal when all is 

said and done does not affect the value of the benefit that MPTO 

received from Jones. Like the district court, this court “does not view 

as unreasonable Mr. Hansen’s decision to use the total amount 

received by Defendants as the starting point for Plaintiff’s quantum

meruit claim.”

¶84 We have even less trouble affirming on this point because

MPTO could have presented evidence of the Thompson & Skousen 

payment to the jury and argued that Jones’s damages should be 

reduced accordingly. But it chose not to. In fact, it affirmatively

prevented the jury from hearing evidence of the Thompson & 

Skousen payment. Having kept evidence of the payment from the 

jury, MPTO cannot now complain that the jury didn’t account for it 

in its calculations.

¶85 Hansen’s testimony was adequately disclosed. It was not

contrary to law or established facts. Because Hansen’s testimony was 

properly admitted, the jury’s verdict was based on sufficient 

evidence and not contrary to law. We affirm the district court’s 
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

28

admission of Hansen’s testimony and its denial of MPTO’s JNOV 

motion.

B. Mackey Price, LLC’s Cross-Appeal

¶86 Mackey Price, LLC challenges the district court’s authority 

to add it to the judgment as a successor in interest to MPTO. A lower 

court’s interpretation of the rules of civil procedure is a question of 

law we review for correctness. Belnap v. Howard, 2019 UT 9, ¶ 7, 437 

P.3d 355. We reverse in part and remand. We conclude that the 

district court retained jurisdiction at the time it considered Jones’s 

substitution motion and had the authority to use post-verdict

proceedings to determine whether Mackey Price, LLC should be 

added as a successor in interest under rules 21 and 25 of the Utah 

Rules of Civil Procedure. But we reverse on the ground that the

district court was required, after it rejected Mackey Price, LLC’s 

jurisdictional challenges, to afford Mackey Price, LLC an

opportunity to challenge the assertion that it was in fact a successor 

to MPTO.

1. Jurisdiction over Post-Verdict Proceedings

¶87 Mackey Price, LLC argues that the district court lost “subject 

matter jurisdiction” once it denied the JNOV motion on September 

22, 2017.

18 On that date, Mackey Price, LLC claims that Jones’s July 

27 notice of appeal became effective and stripped the district court of 

jurisdiction over the case. And for that reason Mackey Price, LLC 

claims that the district court had no authority to add it to the 

judgment on November 16, 2017.

¶88 The district court ruled that it retained jurisdiction over the 

case because an amended judgment—which the district court had 

also ordered in its September 22 ruling—had yet to be entered. For 

that reason, the district court concluded that there was still no final 

judgment to effectively appeal.

¶89 We agree with the district court. Granted, the general rule is 

that “jurisdiction transfers from the district court to the appellate 

court” for most matters “[o]nce a notice of appeal is filed.” Garver v. 

Rosenberg, 2014 UT 42, ¶ 10, 347 P.3d 380. But this general rule is 

_____________________________________________________________

18 Mackey Price, LLC acknowledges that the district court 

retained jurisdiction to rule on its rule 50(b) JNOV motion, filed July 

27, 2017. See UTAH R. APP. P. 4(b)(1)(A) (listing a rule 50(b) motion as 

one that tolls the time for parties to appeal a judgment).
Cite as: 2020 UT 25

Opinion of the Court

29

subject to important exceptions

19—including the principle that “a 

premature notice of appeal does not effectuate a transfer of 

jurisdiction to review the merits of a case.” Id. ¶ 15. And a notice of 

appeal is premature (and thus ineffective) if it is filed before the 

entry of final judgment. See id. ¶ 12 (“[J]urisdiction transfers from the 

district court to the appellate court only where: (1) the district court 

has . . . announced its decision, and a subsequent final judgment is

entered in conformity with the announcement; and (2) the appealing 

party files a timely notice of appeal.” (emphases added)).

¶90 In its September 22 ruling, the district court rejected MPTO’s 

JNOV motion and explicitly directed Jones to prepare an amended 

judgment (at that time, to remove Mackey Price, LLC). At that point, 

Jones’s July 27 notice of appeal was premature, and the district court 

retained jurisdiction. See id. ¶ 10 (“[A]n untimely notice may ‘trigger 

stern consequences,’ precluding the appellate court from exercising 

jurisdiction.” (citation omitted)). When the district court granted 

Jones’s motion to re-add Mackey Price, LLC to the judgment on 

November 16, there still had been no appealable “final judgment . . . 

entered in conformity with the announcement” the district court had 

made in its September 22 ruling. It was not until December 1 that the 

district court entered a final, amended judgment. So it was not until 

that date that Jones’s July 27 notice of appeal became effective and 

deprived the district court of jurisdiction over most matters. See

UTAH R. APP. P. 4(c) (“A notice of appeal filed after the 

announcement of a decision, judgment, or order but before entry of 

the judgment or order shall be treated as filed after such entry and 

on the day thereof.”). On that basis we conclude that the district 

court retained jurisdiction to decide Jones’s rule 21/25 motion on 

November 16.

_____________________________________________________________

19 Our cases also recognize another exception that could 

potentially apply here—district courts retain jurisdiction over some 

post-judgment proceedings, including “orders relating to 

enforcement of a judgment when a judgment is not stayed pending 

appeal.” Garver v. Rosenberg, 2014 UT 42, ¶ 10 n.12, 347 P.3d 380. A 

proper motion for substitution of a successor entity could 

conceivably fall within a district court’s jurisdiction over certain 

post-judgment proceedings. See supra ¶ 68 n.13. We need not decide 

the matter here, however, because we conclude that the notice of 

appeal did not become effective until after the challenged decision.
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

30

2. Substitution Under Rules 21 and 25

¶91 “In case of any transfer of interest,” rule 25 provides that an 

“action may be continued by or against the original party, unless the 

court upon motion directs the person to whom the interest is 

transferred to be substituted in the action or joined with the original 

party.” UTAH R. CIV. P. 25(c). Under the terms of the rule, the party 

seeking to add a successor entity need only “serve the motion and 

any notice of hearing . . . upon persons not parties in the manner 

provided in Rule 4 for the service of a summons.” Id. 25(a)(1), (c). So 

substitution is available under rule 25 after service of a motion, 

notice of a hearing, and appropriate proceedings on the question of 

whether the new party is an entity “to whom the [original party’s] 

interest is transferred.” Id. 25(c). Such a motion, moreover, may be 

filed after a jury verdict. See id. 21 (“Parties may be dropped or 

added by order of the court on motion of any party or of its own 

initiative at any stage of the action and on such terms as are just.” 

(emphasis added)).

20 These rules thus provide authority for a court 

_____________________________________________________________

20 Rule 21 ostensibly deals with the “[m]isjoinder and 

[n]on-joinder of [p]arties,” while rule 25 handles the more specific 

process of “[s]ubstitution.” But the rules clearly overlap. See UTAH R.

CIV. P. 25(c) (allowing a successor interest to be “substituted in the 

action or joined with the original party” (emphasis added)); id. 21 

(allowing parties to be generally “dropped or added”). Importantly, 

moreover, rule 25(a)(1) places a ninety-day time limit only on the 

substitution of successors for deceased parties. And that implies that 

there is no similar time limit on substitutions of successors in 

interest. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 107 

(2012) (“The expression of one thing implies the exclusion of 

others.”).

Federal authorities applying a parallel federal rule agree. Because 

federal rule 25(c) is “wholly permissive,” a leading federal treatise 

holds that “there is no time limit on moving to substitute under its 

provisions”—so long as the district court otherwise retains 

jurisdiction. See 7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE & PROCEDURE § 1958 (3d ed. 2018); id. (noting that 

the “most significant feature” of the nearly identical federal rule

25(c) is that it “does not require that anything be done after an 

interest has been transferred,” because “[t]he action may be 

continued by or against the original party, and the judgment will be 

binding on the successor in interest even though the successor is not 

(continued . . .)
Cite as: 2020 UT 25

Opinion of the Court

31

to add a party to a judgment as a successor in interest to a party to 

the original proceedings—even after the jury has returned a verdict.

¶92 Where mere substitution of a successor entity is sought, 

there is no requirement that the plaintiff initiate a new proceeding by 

service of a summons and complaint. Brigham Young University v.

Tremco Consultants, Inc., 2007 UT 17, ¶ 39, 156 P.3d 782, is 

distinguishable. Tremco, as noted above, see supra ¶¶ 64–68, requires 

an entirely new proceeding where the plaintiff is asserting a new 

common-law or statutory claim—like alter ego or fraudulent 

transfer—that seeks to establish freestanding, independent liability 

for a new party. 2017 UT 17, ¶ 39 (“In light of the status conferred 

through the development of the common law and legislative action 

upon alter ego and fraudulent transfer, it is apparent that a claim 

founded on either theory is a civil action that must be prosecuted in 

the manner prescribed in the Utah Rules of Civil Procedure, 

commencing with the filing of a summons and complaint and not 

the abbreviated post-judgment collection procedures of rule 69.”).

The domain of rule 25 substitution is different. Here we are dealing 

not with a new cause of action with its own separate elements but 

the extension of liability on an entity properly joined to the suit as a

successor to the existing defendant. As noted, rule 25 specifically 

allows for a more truncated process under the umbrella of the initial 

proceeding, requiring only that a party seeking to add an alleged 

successor “serve the motion and any notice of hearing” under rule 4. 

UTAH R. CIV. P. 25(a)(1), (c).

¶93 We reject Mackey Price, LLC’s jurisdictional arguments on 

this basis.21 Because Jones was seeking to add Mackey Price, LLC as 

_____________________________________________________________

named”). The federal counterpart to our rule 25(c) has thus been 

deemed to allow for substitution not just post-verdict, but 

post-judgment (usually where necessary to facilitate enforcement of a 

judgment). See, e.g., Negrón-Almeda v. Santiago, 579 F.3d 45, 52 (1st 

Cir. 2009); Luxliner P.L. Exp., Co. v. RDI/Luxliner, Inc., 13 F.3d 69, 70 

(3d Cir. 1993); Panther Pumps & Equip. Co., Inc. v. Hydrocraft, Inc., 566 

F.2d 8, 23 (7th Cir. 1977); TFG–Indiana, L.P. v. Hanco, Inc., No. 2:12–

cv–00146 DN, 2014 WL 6473108, at *1 (D. Utah Nov. 18, 2014).

21 We also reject Mackey Price, LLC’s suggestion that adding a 

successor entity to a judgment under rules 21 and 25 runs afoul of 

“due process.” Our opinion in Brigham Young University v. Tremco

Consultants, Inc., does suggest that the unnamed parties in that case 

were “denied their requisite measure of due process of law when the 

(continued . . .)
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

32

a successor entity to MPTO, we hold that Jones was not required to 

initiate a new proceeding against Mackey Price, LLC by service of a 

summons and complaint. Jones was entitled to seek substitution of 

Mackey Price, LLC for MPTO under rules 21 and 25.

3. Default of Mackey Price, LLC

¶94 Our conclusion that rule 25 substitution is available in 

post-verdict proceedings does not exhaust all of Mackey Price, LLC’s 

challenges to the proceedings below. Mackey Price, LLC also claims 

that it was entitled to be heard on the merits—on whether it was in 

_____________________________________________________________

district court extended liability to them.” 2007 UT 17, ¶ 27, 156 P.3d 

782. But Tremco nowhere held that the substitution of a successor 

entity is a violation of the Due Process Clause of the Utah 

Constitution. Quite the contrary. Our holding in Tremco was rooted 

in the language and structure of our rules of civil procedure. See id.

¶ 29 (holding that a party “who pursue[s] civil actions in conformity 

with the rules of civil procedure” is presumptively entitled “to 

invoke the coercive power of the state to seize property or to 

command a party to conform its conduct to the court’s decrees”).

The problem in Tremco was the plaintiff’s failure to pursue civil 

litigation in conformance with our rules. While we made general 

reference to the principle of “due process,” we never established any 

freestanding constitutional right. Instead we held that “[o]ur rules of 

civil procedure lend operational expression” to the “abstract” 

promise of “due process” and are “‘designed to provide a pattern of 

regularity of procedure which the parties and the courts [can] follow 

and rely upon.’” Id. (second alteration in original) (citation omitted).

We reiterate those principles here. Mackey Price, LLC’s rights to 

due process are given “operational expression” in our rules of civil 

procedure. Those rights are adequately protected by the fair and 

proper application of rules 21 and 25. And Mackey Price, LLC has 

provided no basis for the establishment of a “due process” right that 

provides greater protections than those established in our civil rules. 

See Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 100, 416 P.3d 

663 (explaining that the content of “general, abstract” constitutional 

principles like the Due Process Clause must be based on how the 

founding generation would have understood those principles); In re

Discipline of Steffensen, 2016 UT 18, ¶ 7, 373 P.3d 186 (“[T]he Due 

Process Clause is not a free-wheeling constitutional license for courts 

to assure fairness on a case-by-case basis.”).
Cite as: 2020 UT 25

Opinion of the Court

33

fact a successor entity to MPTO. On this point we agree, and reverse 

and remand.

¶95 Because Mackey Price, LLC was not a party to the original 

proceedings, the district court required Jones to serve the motion on 

the LLC pursuant to rule 4. Jones did so. That was all the notice to 

which Mackey Price, LLC was entitled. But the district court never 

required that Jones demonstrate that Mackey Price, LLC was in fact a 

successor in interest to MPTO. Instead, the district court considered 

a memorandum submitted by Mackey Price, LLC and defaulted the 

LLC on the ground that its memo challenged only “procedural 

issues” that the district court found unavailing:

To the extent Mackey Price, LLC had disputed the 

factual allegations for joinder, the Court was prepared 

to schedule an evidentiary hearing to resolve the 

disputes. But Mackey Price, LLC does not dispute the 

factual allegations and, instead, focuses its opposition 

entirely on procedural issues. The Court has now 

resolved the procedural arguments against Mackey 

Price, LLC. And because Mackey Price, LLC raised no 

argument or opposition to the merits of the Motion, 

there remains nothing to litigate. Accordingly, the 

Court determines that Plaintiff is entitled to all relief 

requested in the Motion.

¶96 This was error. Mackey Price, LLC was entitled to appear 

specially and challenge the district court’s jurisdiction and then 

argue the merits of the rule 25 motion if and when the district court 

rejected its procedural challenge. Mackey Price, LLC was not 

required to immediately address the merits of the rule 25 motion, as 

the district court suggested, or to affirmatively request an 

evidentiary hearing for disposition on the merits, as Jones suggests 

on appeal. As a threshold matter of procedure, Mackey Price, LLC 

had every right to make a special appearance and to challenge the 

court’s jurisdiction. Once the district court rejected that challenge, it 

should have given Mackey Price, LLC an opportunity to be heard on 

the merits.22

_____________________________________________________________

22 In fairness to the district court, this procedure is not clearly set 

forth in our rules or case law. We reverse nonetheless, however, 

because the prescribed procedure reflects the threshold nature of the 

(continued . . .)
JONES v. MACKEY PRICE THOMPSON & OSTLER

Opinion of the Court

34

¶97 The procedure for challenging the attachment of a non-party 

as a successor in interest under rule 25 may thus find a parallel in 

that for filing a rule 12(b) motion. When a party contests a court’s 

jurisdiction under rule 12(b), it is not required to affirmatively 

preserve the right to argue the merits of the underlying claim. It may 

simply make its 12(b) argument, receive an adverse ruling from the 

district court, and then contest the merits. This is the notion of a 

special appearance that is baked into rule 12. See UTAH R. CIV. P.

12(a)(1) (“If the court denies the [Rule 12] motion . . . the responsive 

pleading shall be served within 14 days after notice of the court’s 

action.” (emphasis added)); see also id. 12(d) (“The defenses 

specifically enumerated (1)-(7) in subdivision (b) of this rule, 

whether made in a pleading or by motion . . . shall be heard and 

determined before trial on application of any party, unless the court 

orders that the hearings and determination thereof be deferred until 

the trial.” (emphasis added)). And we believe that such a process is 

appropriate in the context of a rule 25 substitution motion as well—a 

point that our advisory committee may wish to take up in a 

proposed amendment to this rule.

¶98 This principle should have governed here. Once the district 

court determined that it had jurisdiction over Mackey Price, LLC, it 

should have required Jones to show that Mackey Price, LLC was in 

fact a successor in interest to MPTO. The district court should not 

have taken Mackey Price, LLC’s silence during a special appearance 

as a concession or endorsement of Jones’s position. We reverse and 

remand for a resolution of Mackey Price, LLC’s status on the 

merits—under procedures deemed appropriate by the district court 

on remand.

IV. CONCLUSION

¶99 We reverse the dismissal of Jones’s fraudulent transfer and 

punitive damages claims, the decision that a constructive trust was

categorically unavailable, and the default determination that Mackey 

Price, LLC was a successor in interest to MPTO. But we affirm the 

district court in all other respects and remand for further 

proceedings consistent with this opinion.

_____________________________________________________________

jurisdictional inquiry and parallels how our civil rules handle 

analogous procedural matters.