Utah

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Gildea v. Guardian Title Company of Utah,
970 P.2d 1265 (Utah 11/24/1998)

Utah Supreme Court

No. 970500

970 P.2d 1265, 1998.UT.42025, 357 Utah Adv. Rep. 7

November 24, 1998

BRUCE GILDEA AND SHIRLYNN GILDEA, PLAINTIFFS AND APPELLANTS,

v.

GUARDIAN TITLE COMPANY OF UTAH, MURPHY, TOLBOE & MABEY, A PROFESSIONAL LAW PARTNERSHIP, L. BENSON MABEY, RANDALL N. DAY, AND JOHN C. SITTNER, DEFENDANTS AND APPELLEES.

Attorneys: William D. Marsh, Salt Lake City, for plaintiffs Stephen B. Mitchell, Salt Lake City, for Guardian Title Co. and Day L. Benson Mabey, Salt Lake City, for Mabey and Sittner

The opinion of the court was delivered by: Russon, Justice

This opinion is subject to revision before final publication in the Pacific Reporter.

Third District, Dep't I The Honorable William A. Thorne

INTRODUCTION

Bruce and Shirlynn Gildea appeal from a summary judgment dismissing their causes of action against the above-named defendants. The Gildeas sued John C. Sittner for filing, in bad faith, a lawsuit against them to foreclose a judgment lien against their real property when Sittner had already received a monetary award for the lien as his share of the distribution to creditors in Mr. Gildea's bankruptcy. The Gildeas, in the same lawsuit, named the above additional defendants, alleging breach of fiduciary duty, fraud, conspiracy to defraud, and negligent misrepresentation. The district court granted summary judgment, dismissing all causes of action against all defendants with prejudice. We affirm.

FACTS

In November of 1985, John C. Sittner, represented by attorney L. Benson Mabey, obtained a judgment against Bruce Gildea and others in the amount of $30,598.35, which judgment constituted a lien against Mr. Gildea's property. In January of 1986, Mr. Gildea filed for bankruptcy. Sittner, again through his attorney Mabey, filed a proof of claim based on his judgment with the bankruptcy court. Sittner filed as an unsecured creditor and later received payment of $4,032.99 as his share of the distribution to the unsecured creditors. In December of 1987, the bankruptcy court entered a discharge of debtor order releasing Mr. Gildea from all personal liability for debts existing on the date of the commencement of his bankruptcy. However, the judgment lien was not set aside by any order of the bankruptcy court and remained a matter of record. In June of 1993, despite having received $4,032.99 for the judgment, Sittner (again through Mabey) sued the Gildeas, seeking to foreclose on the judgment lien against the Gildeas' real property.

The Gildeas had purchased that property in 1981 from Joy Hale pursuant to a uniform real estate contract. In 1992, Karen Schriever, Mrs. Gildea's

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