BYU v. Tremco

2007 UT 17
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Brigham Young University, 	No. 20040744
Plaintiff and Appellee,
v.
Tremco Consultants, Inc., aka
Tremco Legal Solutions, Inc.,
SoftSolutions, Inc.,
and John Does 1-10,
Defendants and Appellants.
Kenneth W. Duncan, Lee A. Duncan,
KWD Associates, L.C., and Julee
Associates, L.C., 	F I L E D
Movants to Intervene
and Appellants. 	February 2, 2007
---
Fourth District, Provo Dep’t
The Honorable Gary D. Stott
No. 960400497
Attorneys: 	Steven W. Call, Michael D. Mayfield, Herschel J.
Saperstein, Benjamin J. Kotter, Salt Lake City, for
plaintiff
Eric K. Schnibbe, Salt Lake City, for defendant
Tremco
Neil R. Sabin, Salt Lake City, for defendant
SoftSolutions
Clark R. Nielsen, Salt Lake City, for movants
---
NEHRING, Justice:
¶1 	In this appeal, we review and reject Brigham Young
University’s latest attempt to satisfy a money judgment from
persons and entities other than its judgment debtor,
SoftSolutions, Inc. (SoftSolutions). 	In Brigham Young University
v. Tremco Consultants, Inc., 2005 UT 19, 110 P.3d 678, we held
that Brigham Young University (BYU) could not summarily extend
liability to Tremco Consultants, Inc. (Tremco) for its

No. 20040744 	2
SoftSolutions judgment. 	Today, we reject BYU’s attempt to
collect the SoftSolutions judgment from the officers and
directors of SoftSolutions and related entities that we will
collectively refer to as “Duncan et al.” 	We hold that BYU could
not pursue Duncan et al. for SoftSolutions’ debt using only post-
judgment collection procedures because those procedures did not
afford those individuals a constitutionally permissible degree of
due process of law.
¶2 	The factual background, issues, analysis, and result of
this appeal were foreshadowed in Tremco, 2005 UT 19. 	To those
who may desire a more panoramic view of the history of this
conflict, we commend to them our prior opinion for factual and
analytical detail that complements the summary of facts to which
we now turn.
¶3 	In the early 1980s, BYU developed a software product
which used an algorithm called “D-Search.” 	The strength of the
software was its indexing and information retrieval capabilities,
which could be used to improve database applications. 	Between
1987 and 1990, BYU entered into a series of licensing agreements
with SoftSolutions that allowed SoftSolutions to use BYU’s
D-Search software technology in exchange for royalty payments.
¶4 	In 1992, SoftSolutions transferred the licensed
technology to its wholly owned subsidiary, SoftSolutions
Technology Corporation (STC). 	Thereafter, SoftSolutions was
dissolved by the state of Utah for failing to file an annual
report. 	Two years later, WordPerfect acquired the STC stock.
The shareholders of STC were three limited liability companies,
KWD Associates, AST Associates, and Julee Associates, which
collectively received approximately $13.5 million from
WordPerfect in exchange for the STC stock.
¶5 	Prior to its purchase of the STC stock, WordPerfect
knew of and wished to be insulated from a simmering royalty
dispute between SoftSolutions and BYU over the D-Search software.
However, before the stock sale took place, Tremco signed an
indemnification agreement with STC. 	Under its terms, Tremco
agreed to pay for any obligations that STC might incur from the
SoftSolutions-BYU royalty dispute.
¶6 	In 1995, after SoftSolutions had dissolved and
WordPerfect had purchased the STC stock, an arbitrator awarded
BYU $1,672,467 in its royalty dispute with SoftSolutions. 	The
parties charged with wrapping up the affairs of SoftSolutions
challenged the arbitrator’s decision. 	The district court
confirmed the arbitration award; and on appeal, we affirmed the

1 We have held that post-judgment collections proceedings
are separate and independent from the action that yielded the
judgment that the collection action seeks to satisfy. 	See Cheves
v. Williams, 1999 UT 86, ¶ 52, 993 P.2d 191.
3 	No. 20040744
damages portion of the district court’s ruling. 	Softsolutions,
Inc. v. Brigham Young Univ., 2000 UT 46, 1 P.3d 1095.
¶7 	With its SoftSolutions judgment in hand, BYU turned its
attention to collecting it. 	BYU pursued the collection
procedures available to judgment creditors under the Utah Rules
of Civil Procedure. 	BYU discovered that SoftSolutions had no
assets. 	Therefore, BYU sued Tremco to establish Tremco’s
liability under the indemnification agreement. 	At BYU’s behest,
the district court consolidated BYU’s collection action against
SoftSolutions with the Tremco litigation.
¶8 	The consolidation of these actions created an unusual
hybrid court creature: 	part collection action and part
traditional civil action against Tremco. 	SoftSolutions had seen
its day in court to defend against the merits of BYU’s claims
come and go. 	It appeared in the district court solely as a
judgment debtor. 1 	SoftSolutions appeared in this status disarmed
with most of the due process protections it had possessed before
BYU acquired the judgment against it.
¶9 	By contrast, Tremco was fully armed with due process
rights, which it tried to use without success to turn away BYU’s
claims. 	The district court granted BYU’s motion for summary
judgment against Tremco, resulting in the entry of an order dated
June 13, 2002. 	The order included the court’s determination that
Tremco was liable to pay the 1998 SoftSolutions judgment. 	In
reaching this result, the district court embraced each of BYU’s
four theories: 	(1) that Tremco, STC, and SoftSolutions had
carried on a common, joint business as an association under Utah
Rule of Civil Procedure 17(d); (2) that Tremco was liable to BYU
for the judgment against SoftSolutions because Tremco had entered
into an indemnity agreement with STC and BYU was a third-party
beneficiary of that agreement; (3) that Tremco aided a fraudulent
transfer of SoftSolutions assets to STC; and (4) that Tremco was
in privity with SoftSolutions and was therefore liable for the
SoftSolutions judgment under the doctrine of res judicata.
¶10 	Contemporaneously with its quest for summary judgment
against Tremco in the civil action, BYU sought an order in
supplemental proceedings in its collection action pursuant to the
version of rule 69 of the Utah Rules of Civil Procedure then in

2 In 2002, Utah Rule of Civil Procedure 69(s) allowed
property “in the possession of the judgment debtor or any other
person” to be applied toward the satisfaction of a judgment debt.
Today, Utah Rule of Civil Procedure 69 has been repealed and
replaced with a reformulated requirement governing both pre- and
post-judgment seizures of property under Utah Rule of Civil
Procedure 64.
No. 20040744 	4
effect. 2 	Rule 69 governed the collection procedures, principally
the procedures for executing on property of a judgment debtor,
available to a judgment creditor.
¶11 	BYU claimed that using its legal theories as the
rationale and rule 69 as the vehicle, it was entitled to execute
against the property of Duncan et al. to satisfy the
SoftSolutions judgment. 	BYU brought back the rule 17(d) business
association theory that it deployed against Tremco and coupled it
with new theories. 	First, it utilized Utah Code Ann. § 16-10a-
1408 (prohibiting distribution of assets to shareholders of a
dissolved corporation until corporate debts are paid); second, it
relied on two of our cases: 	Murphy v. Crosland, 915 P.2d 491
(Utah 1996), and Steenblik v. Litchfield, 906 P.2d 872 (Utah
1995), for the proposition that corporate officers are personally
liable for the obligations of dissolved or suspended
corporations. 	It then sought to advance its theory with the aid
of rule 69(s), which authorized execution against the property of
a judgment debtor that was in the possession of someone else.
¶12 	The district court was persuaded that BYU’s theories
had merit and entered a supplemental order dated July 10, 2002,
(July 2002 supplemental order), extending liability for the
SoftSolutions judgment to Duncan et al. as “associates of the
unincorporated association.” 	The district court also found
Duncan et al. to have received proceeds from the sale of the STC
stock. 	It adopted BYU’s view that SoftSolutions continued to
“own” the software throughout its odyssey through STC, the
WordPerfect purchase of that stock, and the distribution of the
sale proceeds among Duncan et al.
¶13 	After the district court entered the July 2002
supplemental order, SoftSolutions and Duncan et al. each filed
post-judgment motions seeking to vacate, alter, and/or amend the
supplemental order. 	Duncan et al., which found themselves facing
an execution on their assets, despite having never been joined as
parties, also moved to intervene. 	In July 2003, the district
court held a hearing on these motions. 	The district court orally
denied each motion, noting that the collection procedures pursued
by BYU did not offend Duncan et al.’s rights to due process of

5 	No. 20040744
law. 	The district court did not reduce its oral ruling to a
written order until August 2004, well after the appeal was
underway that resulted in our Tremco decision in May 2005.
¶14 	Testing the reach of the July 2002 supplemental order,
BYU obtained writs of execution on two parcels of real property
situated in Wasatch County, Utah. 	One of these parcels was held
in the name of Rannoch, L.L.C., while Carie, L.L.C. held the
second property. 	BYU asserted that these properties were
traceable to Duncan et al. because they were purchased by KWD--a
former shareholder of STC and beneficiary of the stock sale to
WordPerfect that was controlled by Duncan et al.--with
WordPerfect proceeds and then were transferred to Rannoch and
Carie respectively without consideration.
¶15 	In Tremco, we held that none of BYU’s four theories
could lawfully extend liability for the SoftSolutions judgment to
Tremco. 	Consequently, we reversed the district court’s grant of
summary judgment against Tremco and vacated the June 13, 2002
order. 	We declined, however, to reach the challenges to the
district court’s imposition of liability on Duncan et al. because
they were not named parties in any action before the district
court, and we therefore did not acquire jurisdiction to take up
their appeal. 	Tremco, 2005 UT 19, ¶¶ 45-49. 	Moreover, we
determined that we lacked jurisdiction to consider whether the
district court erred when it denied Duncan et al.’s motion to
intervene because that ruling had yet to be memorialized in a
written order.
¶16 	In the aftermath of Tremco, BYU continued to assert its
right to execute on the assets of Duncan et al., including the
Wasatch County properties because the July 2002 supplemental
order continued in force with respect to those persons and
entities. 	Duncan et al. have now properly invoked our
jurisdiction under Utah Code section 78-2-2(3)(j) by appealing
the district court’s August 2004 orders to deny their motions to
intervene; to stay supplemental proceedings; and to vacate,
alter, and/or amend the July 2002 supplemental order and all
rulings prior thereto.
ANALYSIS
I. 	THE DENIAL OF DUNCAN ET AL.’S MOTION TO INTERVENE
¶17 	In Brigham Young University v. Tremco Consultants,
Inc., 2005 UT 19, 110 P.3d 678, we declined to take up the claims
of Duncan et al. because they were not parties to the litigation
from which the appeal was taken. 	At the time of the Tremco

3 The denial of a motion to intervene is an appealable
order. 	See Tracy v. Univ. of Utah Hosp., 619 P.2d 340, 341-42
(Utah 1980).
Accordingly, when the district court reduces
to writing its oral ruling denying the motion
to intervene filed by the Duncan individuals
and entities, that order will be subject to
appeal. 	That appeal, however, will present
issues distinct from those regarding the
validity of the supplemental order itself,
which the Duncan individuals and entities
have attempted to raise here.
Tremco, 2005 UT 19, ¶ 46 & n.7.
No. 20040744 	6
appeal, Duncan et al. had unsuccessfully attempted to intervene
in the Tremco lawsuit, but the district court had not yet entered
an order memorializing that ruling. 	We observed that a written
order denying a motion to intervene would be final and
appealable. 	We also indicated that the issues presented by an
appeal from a denied attempt to intervene are distinct from those
inherent in a challenge to the propriety of the district court’s
July 2002 supplemental order. 3
¶18 	The order denying Duncan et al.’s motion to intervene
is now before us. 	The merits of the district court’s decision to
deny intervention to Duncan et al. are of not any particular
consequence to this appeal. 	Rather, the order provided Duncan et
al. the means to invoke this court’s jurisdiction. 	Thus,
although we took pains in Tremco to note that an appeal from the
denial of Duncan et al.’s motion to intervene “will present
issues distinct from those regarding the validity of the
supplemental order itself,” Tremco, 2005 UT 19, ¶ 46 n.7, the
question of whether the district court erred when it denied
Duncan et al. leave to intervene merges with our review of Duncan
et al.’s challenge based on the denial of due process of law.
¶19 	Despite its subordinate role in our ruling, we hold
that the district court exceeded its discretion when it rejected
Duncan et al.’s motion to intervene. 	The district court
misapplied the intervention standards set out in Utah Rule of
Civil Procedure 24 because the inability of Duncan et al. to
participate as a party contributed materially to the
unconstitutional deprivation of Duncan et al.’s right to due
process of law. 	As we will discuss shortly, the deprivation of
Duncan et al.’s property occurred in the July 2002 supplemental
order, and any later participation could not rectify a lack of
earlier involvement.

7 	No. 20040744
¶20 	While we stand by the proposition that issues related
to the application of rule 24 are distinct from those raised by
the July 2002 supplemental order (and the ruling denying Duncan
et al.’s motion to vacate, alter, and/or amend that order), the
due process deprivations visited upon Duncan et al. by the
supplemental order infected the district court’s ruling on
intervention. 	We therefore find little to be gained by remanding
this matter to the district court with instructions to allow
Duncan et al. to intervene in a proceeding that we have, in the
course of reaching our holding on intervention, determined to be
an unconstitutional violation of due process.
II. 	THE JULY 2002 SUPPLEMENTAL ORDER IS VACATED
¶21 	Duncan et al. also appeal from the district court’s
denial of their motion brought under Utah Rule of Civil Procedure
59 to vacate, alter, and/or amend the July 2002 supplemental
order. 	Our analysis of this argument, like our assessment of the
district court’s denial of Duncan et al.’s motion to intervene,
inevitably leads us into an inquiry into the due process
implications of the district court’s treatment of the rule 59
motion.
¶22 	By the time Duncan et al. were extended the opportunity
to participate in a hearing on their motion to vacate, alter,
and/or amend the July 2002 supplemental order, BYU had already
persuaded the district court that it could collect its
SoftSolutions judgment from others, including Duncan et al. 	When
Duncan et al. were invited to the starting line, the race was all
but over. 	In its May 2002 order in the Tremco lawsuit, the
district court had ruled that SoftSolutions, STC, and Tremco had
conducted business as an unincorporated association and,
therefore, BYU could cast its collection net beyond named parties
to the lawsuit pursuant to rule 17(d). 	It ruled that STC
acquired the D-Search license from SoftSolutions through a
fraudulent transfer and based on this finding authorized BYU to
execute on the proceeds of the STC stock sale to WordPerfect.
Finally, it had already entered its July 2002 supplemental order,
which built on the district court’s prior rulings and extended
them to Duncan et al.
¶23 	Every motion to vacate, alter, and/or amend a judgment
brought under rule 59 asks a court to undo its work, an
invitation that no judge greets with enthusiasm. 	One commentator
has aptly described a party bringing a rule 59 motion as a
supplicant who has “hat-in-hand and heart-in-throat when he or
she argues a post-trial motion.” 	H. James Clegg, Post-Trial
Motions, 8 Utah B.J. 48, 48 (November 1995). 	This apprehension

No. 20040744 	8
is well-founded. 	As our court of appeals has observed, “[o]nce
the judge has decided, the system assumes he or she has decided
correctly and would decide the same way again.” 	Salt Lake City
Corp. v. James Constructors, Inc., 761 P.2d 42, 44 n.5 (Utah Ct.
App. 1988).
¶24 	We are therefore unpersuaded that the July 2003 hearing
on the rule 59 motion restored to Duncan et al. any meaningful
measure of the due process that they had been denied by being
foreclosed from participating in the events that led to the entry
of the July 2002 supplemental order. 	This supplemental order is,
therefore, the order to which we will direct our attention in
evaluating the due process claims of Duncan et al.
III. 	DUNCAN ET AL. WERE DENIED DUE PROCESS OF LAW PRIOR TO THE
JULY 2002 SUPPLEMENTAL ORDER
¶25 	BYU urges us to turn away the challenge to the district
court’s denial of the rule 59 motion because Duncan et al. have
failed to marshal evidence or otherwise demonstrate that the
factual findings set out in the district court’s ruling denying
the rule 59 motion or the July 2002 supplemental order were
clearly erroneous. 	This emphasis is misplaced. 	Our assessment
of whether Duncan et al. were denied due process in these
proceedings has little to do with the factual findings made by
the district court or the merits of BYU’s legal theories.
Instead, our focus is directed to what process was due Duncan et
al. before liability could attach to them under each of BYU’s
theories. 	The district court’s factual findings are at most
incidental to this task. 	In this instance, the issue of whether
Duncan et al. were afforded adequate due process is a question of
law which we will explore without extending deference to the
district court. 	“[I]ssues, including . . . due process, are
questions of law which we review for correctness.” 	D.A. v. State
(State ex rel. S.A.), 2001 UT App 307, ¶ 8, 37 P.3d 1166
(internal quotation marks omitted); see also 	State v. Holland,
921 P.2d 430, 433 (Utah 1996) (“[T]he ultimate question of
whether the trial court strictly complied with constitutional and
procedural requirements . . . is a question of law that is
reviewed for correctness.”).
¶26 	Moreover, the July 2002 supplemental order was granted
summarily. 	The district court found that
[n]o opposition to the motion was made by
anyone on behalf of SoftSolutions, Inc. and
therefore the dispositive facts set forth in
BYU’s memoranda in support of the motion are

9 	No. 20040744
deemed admitted pursuant to Rule 4-501(2)(B)
of the Utah Rules of Judicial Administration
and/or pursuant to Rule 56 of the Utah Rules
of Civil Procedure.
To the extent that our nondeferential due process analysis
requires us to review the facts, we will do so guided by our
standards for reviewing appeals from summary judgment and indulge
inferences emanating from the facts in a manner favorable to
Duncan et al. 	Spor v. Crested Butte Silver Mining, Inc., 740
P.2d 1304 (Utah 1987).
¶27 	In Tremco, 2005 UT 19, 110 P.3d 678,, we expressed
“serious concerns” over whether the July 2002 supplemental order
that authorized BYU to execute against the property of Duncan et
al. satisfied the requirements of due process of law. 	Owing to
jurisdictional impediments, we did not explore the grounds for
our concern in that appeal. 	With jurisdiction no longer an
issue, we now examine those concerns and find them to have been
well-founded. 	Duncan et al. were denied their requisite measure
of due process of law when the district court extended liability
to them for the SoftSolutions judgment under the provisions of
the July 2002 supplemental order.
¶28 	No principle is more fundamental to the integrity of a
society that claims allegiance to the rule of law than the
principle that a person may not be deprived of his property
without first being afforded due process of law. 	This guarantee
is enshrined in both the United States Constitution and the
Constitution of Utah. 	U.S. Const. amend. XIV, § 1; Utah Const.
art. I, § 7. 	That due process of law is owed in every instance
is a self-evident proposition. 	Measuring the amount of process
that is due in any particular setting is more difficult.
Nevertheless, “[w]e long ago succinctly summarized the
fundamental features of due process, observing that it requires
that notice be given to the person whose rights are to be
affected. 	It hears before it condemns, proceeds upon inquiry,
and renders judgment only after trial.” 	Pangea Techs., Inc. v.
Internet Promotions, Inc., 2004 UT 40, ¶ 8, 94 P.3d 257 (internal
quotation marks omitted). 	The bare essentials of due process
thus mandate adequate notice to those with an interest in the
matter and an opportunity for them to be heard in a meaningful
manner. 	See Chen v. Stewart, 2004 UT 82, ¶ 68, 100 P.3d 1177.
¶29 	The Utah Rules of Civil Procedure owe their existence
to the constitutional guarantee of due process of law. 	They
“[are] designed to provide a pattern of regularity of procedure
which the parties and the courts [can] follow and rely upon.”

No. 20040744 	10
Gillett v. Price, 2006 UT 24, ¶ 13, 135 P.3d 861 (brackets in
original) (internal quotation marks omitted). 	Our rules of civil
procedure lend operational expression to the abstract
constitutional promise of due process. 	To those who pursue civil
actions in conformity with the rules of civil procedure, we
extend the right 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.
¶30 	The same process is not, however, due everyone who
comes before the court. 	A judgment debtor appears in court
having consumed his ration of due process and with his property
exposed in summary proceedings. 	Accordingly, our due process
analysis must begin by determining what process was due Duncan et
al. 	The due process issue presented to us and our analysis of it
rest on a framework of two procedural facts. 	First, Duncan et
al. were not named parties in any of the iterations of this case,
not the original action BYU brought against SoftSolutions, not
the lawsuit BYU brought against Tremco, and not in the
litigation’s final consolidated formulation. 	Second, nowhere in
the vastness of the record of these cases does BYU state a cause
of action against any of the Duncan individuals or entities.
Rather BYU presumes that Duncan et al. merely stand in the shoes
of the true judgment debtor--SoftSolutions. 	Nevertheless, Duncan
et al. face the coerced deprivation of property which they claim
to be theirs, not SoftSolutions, without ever having a civil
action brought against them.
¶31 	In most instances, the guarantee of due process
prohibits the enforcement of a money judgment against a person
who has not been designated a party or served with process.
Richards v. Jefferson County, 517 U.S. 793, 798 (1996). 	Absent
due process, a court wields no power over an individual because a
court only acquires jurisdiction over a party through proper
service of process, which provides notice to the defendant that
he is being sued and that he must appear and defend himself.
Myers v. Interwest Corp., 632 P.2d 879, 880 (Utah 1981).
Although Duncan et al. have clearly been aware of litigation
swirling about them for some time, they have never been called
upon to defend their interests in the manner afforded a defendant
in a civil action.
¶32 	BYU counters by insisting that Duncan et al. are not
entitled to be “true” defendants. 	They have little or no
personal interest in the outcome of this case, BYU claims, and
thus are owed a correspondingly small amount of due process. 	BYU
essentially argues that Duncan et al. have been mere caretakers

11 	No. 20040744
of SoftSolutions’ property and as such are entitled to process no
greater than BYU’s judgment debtor, SoftSolutions.
¶33 	BYU specifically argues that Duncan et al. were part of
an unincorporated association with SoftSolutions and therefore
the court may disregard the corporate forms of the various
entities controlled by Duncan et al. 	This would mean that, for
debt collection purposes, Duncan et. al are the functional
equivalent of SoftSolutions and are therefore liable for the
SoftSolutions judgment debt. 	According to BYU, Duncan et al. are
not newcomers to the court, entitled to the full spectrum of due
process, but mere stand-ins for SoftSolutions--an entity which
has already received due process. 	Alternatively, BYU argues that
several legal theories lead to the conclusion that Duncan et al.
are merely possessors, and not owners, of SoftSolutions’
property. 	Thus they have no legal interest in the outcome of
this action and are not entitled to any amount of due process.
¶34 	Under the two presuppositions, BYU posits Duncan et al.
sustained no shortfall of due process for two reasons: 	(1) the
district judge remedied any due process shortcomings when he
provided SoftSolutions and Duncan et al. a hearing on their
motions to vacate, alter, and/or amend the July 2002 supplemental
order and (2) Duncan et al. were not entitled to due process
because BYU was simply pursuing property of SoftSolutions that
could be traced to Duncan et al.
¶35 	We have already rejected BYU’s first justification on
the grounds that the hearing on Duncan et al.’s rule 59 motion
took place in an environment in which critical
considerations--like burden of proof--were distorted to the
advantage of BYU. 	Duncan et al. were entitled at a minimum to a
forum in which BYU was obliged to carry its burden of proof on
the merits of its theories, which supposedly extended liability
to Duncan et al. 	Duncan et al. were never presented this
opportunity.
¶36 	We will take up BYU’s second justification in the
context of the legal theories advanced by BYU to extend liability
for the SoftSolutions judgment to Duncan et al. 	Of particular
relevance to our inquiry is whether BYU’s legal theories could be
pursued through the judgment debt collection procedures set out
in 69(s) of our Rules of Civil Procedure, which appears to permit
a judgment creditor to reach the assets of persons not named as
parties to the lawsuit that yielded the judgment.
¶37 	Property in the possession of an unnamed party to a
lawsuit may fall prey to a judgment creditor under two general

No. 20040744 	12
principles. 	The first focuses on the relationship between the
judgment debtor and the non-party target of the collection
action. 	Where the identities of debtor and the third party merge
in the eyes of the law, liability for the judgment may extend to
the third party. 	Alter ego and allied rationales for
disregarding the corporate form are the most prominent examples
of legal doctrines of this type. 	The second principle directs
its attention to the character of the target property. 	An action
which alleges that a judgment debtor has fraudulently transferred
property to a third party is an example of a circumstance in
which the destination of property rather than the identity of
parties results in an extension of liability beyond the named
judgment debtor. 	However, we are aware of no cause of action
derived from either principle that can be enforced against an
unnamed party in a post-judgment collection action.
¶38 	Alter ego is a common law doctrine deeply rooted in our
corporate law jurisprudence. 	See, e.g., Smith v. Grand Canyon
Expeditions Co., 2003 UT 57, 84 P.3d 1154; Amoss v. Bennion, 420
P.2d 47, 49 (Utah 1966); In re Madsen’s Estate, 259 P.2d 595
(Utah 1953). 	Our legislature has codified the law governing
fraudulent transfers, providing detailed and comprehensive
guidance regarding both substantive elements of fraudulent
transfers and procedural prerequisites, such as a statute of
limitations specific to fraudulent transfers.
¶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.
McBride-Williams v. Huard, 2004 UT 21, 94 P.3d 175 (stating that
a civil action is commenced under rule 3 of the Utah Rules of
Civil Procedure by filing a complaint with the court or by
serving a summons on the defendant with a copy of the complaint).
¶40 	Such a cause of action must then be prosecuted in a
civil action commenced by the filing of a complaint and including
the right of a defendant to receive service of process, conduct
discovery, enjoy the protections afforded by a trial--including a
jury trial and the allocation of the burden of proof--and the
right to appeal. 	Duncan et al. never received these protections.
¶41 	While the failure of a party in a civil action to
comply with one or more of the rules of civil procedure will not
necessarily result in a constitutional deprivation of due

13 	No. 20040744
process, a violation of due process does occur if a court permits
a cause of action that should properly be prosecuted as a civil
action to proceed under those rules promulgated to assist in the
collection efforts of a judgment creditor.
¶42 	As we have noted, the full measure of process is not
due everyone. 	Once a judgment has been entered against a party,
he is exposed to a deprivation of his property with few
opportunities to object or seek judicial intervention on his
behalf. 	An opportunity for due process mischief arises when a
judgment creditor attempts to utilize collection procedures to
acquire property that is not in the control of the judgment
debtor or in which a non-party claims an interest. 	These
circumstances almost inevitably invite a conflict between the
rights of the judgment creditor, who believes that he is entitled
to have his judgment satisfied with dispatch, and the target of
the execution, who likely believes otherwise. 	This conflict is
on display here.
¶43 	Although BYU never asserted a claim of alter ego
against Duncan et al., it persuaded the district court that it
should disregard the corporate form of SoftSolutions. 	The
district court extend individual liability to Duncan et al. under
the provisions of rule 17(d) of the Utah Rules of Civil
Procedure, which renders associates in an unincorporated business
association liable for a judgment entered against the
association. 	In Tremco, we held that rule 17(d) is not
substantive in nature and does not create a cause of action which
could result in the imposition of personal liability. 	Based on
this interpretation of rule 17(d), we reversed the district court
extension of liability to Tremco on rule 17(d) grounds. 	Tremco,
2005 UT 19, ¶ 18. 	We reaffirm that interpretation today and
reverse the district court’s use of rule 17(d) to justify
imposing liability for the SoftSolutions judgment on Duncan et
al. in the July 2002 supplemental order.
¶44 	The district court also attempted to rely on rule 69(s)
to justify its determination that BYU was entitled to recover its
SoftSolutions judgment from Duncan et al. 	This provision, since
repealed, permitted the court to “order any property of a
judgment debtor, not exempt from execution, in the possession of
the debtor or other person, or due to the judgment debtor, to be
applied towards the satisfaction of the judgment.” 	Utah R. Civ.
P. 69(s) (2002).
¶45 	The premise that underlay this grant of authority to
execute against property in the possession of someone other than
the judgment debtor is that the targeted property was, in fact,
property belonging to the judgment debtor. 	Rule 69(h)(1)

No. 20040744 	14
recognized the possibility that the party who held the property
subject to execution might object to the execution and extended
to him the right to challenge the validity of the writ of
execution. 	This provision was not intended, however, to provide
an alternative form of summary adjudication of claims that would
otherwise be required to be prosecuted as civil actions. 	Thus,
to the extent that the district court grounded its extension of
liability to Duncan et al. in the July 2002 supplemental order on
a theory of fraudulent transfer or alter ego, those rulings are
in error because each constitutes a cause of action cognizable at
law or equity subject to the full array of due process associated
with a civil action.
¶46 	BYU’s final theory for extending liability to Duncan et
al. is one based upon Utah Code section 16-10a-1408 and is
likewise not amenable to adjudication in a summary collection
proceeding. 	Section 16-10a-1408 provides that “[a] claim
[against a dissolved corporation] may be enforced . . . against
the shareholders of the dissolved corporation, if the assets have
been distributed in liquidation.” 	Utah Code Ann. § 16-10a-1408
(2005). 	This provision codifies the equitable theory known as
the “trust fund” doctrine. 	19 Am. Jur. 2d Corporations § 2419
(1986). 	Under this theory, the “assets of a dissolved
corporation become a trust fund against which the corporation’s
creditors have a claim.” 	Id.
¶47 	Contrary to BYU’s preferred interpretation, section 16-
10a-1408 does not authorize the enforcement of claims in a
summary collection proceeding. 	In fact, the use of supplemental
collection procedures is expressly rejected in section 16-10a-
1407(4)(b). 	This provision directs the enforcement of a claim
against a shareholder of a dissolved corporation to be pursued in
“any civil action.” 	As discussed above, a civil action means a
proceeding subject to the full spectrum of due process
safeguards. 	We do not believe that the legislature intended, or
that our constitution would permit, an enforcement proceeding
against a non-party shareholder to take place in the setting of a
post-judgment collection effort.
CONCLUSION
¶48 	Having concluded that Duncan et al. were denied due
process of law, we vacate the July 2002 supplemental order.
Although we also hold that the district court erred when it
denied Duncan et al.’s motion to intervene and to vacate, alter,
and/or amend the July 2002 supplemental order, by vacating the
supplemental order, we have extinguished any proceeding which may
merit remand and the need for intervention by Duncan et al.

15 	No. 20040744
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¶49 	Chief Justice Durham, Justice Parrish, Judge McHugh,
and Judge Atherton concur in Justice Nehring’s opinion.
¶50 	Having disqualified themselves, Associate Chief Justice
Wilkins and Justice Durrant do not participate herein; Court of
Appeals Judge Carolyn B. McHugh and District Judge Judith S.H.
Atherton sat.