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Orton v. Brunson
IN THE UTAH COURT OF APPEALS
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Glen and Marion Orton, personally and as Trustees of the Glen Orton Allegro
Motor Home Trust,
Plaintiffs and Appellees,

v.
Arlan Brunson; Lynn Brunson; Ryland Brunson; Gaynor Brunson; Brunson Brothers,
Inc.; and Does I through X,
Defendants and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020363-CA

F I L E D
(October 17, 2003)


Fourth District, Provo Department
The Honorable Anthony W. Schofield
Attorneys: Larry L. Whyte, Salt Lake City, for Appellant
Nathan K. Fisher, St. George, for Appellees
Before Judges Billings, Greenwood, and Orme.
BILLINGS, Associate Presiding Judge:
Arlan Brunson appeals the district court's order granting partial summaryjudgment in favor of Glen and Marion Orton, personally, and as trustees of theGlen Orton Allegro Motor Home Trust (collectively, the Ortons). We affirm.
First, Brunson asserts the district court erred in granting summary judgmentbecause "[i]ndividually, Marion Orton has no standing" to assert claims againstBrunson. Brunson contends Glen Orton was deceased "[a]t the time th[e] actionwas commenced" and because "Marion Orton reserved no rights to the motor home .. . she is not a real party in interest as required by . . . the Utah Rules ofCivil Procedure." See Utah R. Civ. P. 17. However, the record reflects thatGlen and Marion Orton, personally, and in their capacity as trustees, jointlyfiled a complaint in this case on May 4, 1998--well before Glen Orton's deathin February 1999. Thereafter, the district court granted the Orton's motion tosubstitute Glen Orton's personal representative as a plaintiff. See Utah R. Civ. P. 25(a)(1). Accordingly, we hold the district court did not err inconcluding the Ortons had standing to pursue their claims.
Next, Brunson contends the district court erred in granting summary judgmentbecause genuine issues of material fact exist as to whether or not Brunsonbreached his contractual obligation to repay the note. Brunson argues he wasreleased from his repayment obligation when, "subsequent to the initial sales
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Orton v. Brunson
transaction," and "in connection with a revision of the [original] contract ofsale," the Ortons executed a bill of sale that "constitut[ed] an accord andsatisfaction." Brunson's argument is without merit.
Nothing in the bill of sale releases Brunson from his contractual obligationsto repay the note.(1) At most, the warranty contained in the bill of salewarranted only that at the time of sale, the motor home was unencumbered by anyclaim or lien held by a third party. Moreover, the note was not secured by thetitle to the motor home and therefore could not constitute a lien for purposesof the bill of sale. Finally, other language in the bill of sale indicates theOrtons conveyed the motor home to Brunson in exchange for "ten dollars andother valuable consideration"--namely Brunson's promise to repay the note. Insum, the bill of sale in this case does not constitute an accord andsatisfaction. See Bennion v. LeGrand Johnson Constr. Co., 701 P.2d 1078, 1082(Utah 1985). Hence, the district court correctly determined that no genuineissues of material fact exist as to Brunson's contractual obligations and hissubsequent breach of contract.
Finally, the note contains a provision requiring Brunson to pay "all costs andexpenses of collection [in the event of default] including . . . attorney[]fee[s]." See R.T. Nielson Co. v. Cook, 2002 UT 11,

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