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

                              2017 UT 57

                                IN THE
      SUPREME COURT OF THE STATE OF UTAH
                         THOMAS D. BOYLE,
                           Respondent,
                                     v.
                   CLYDE SNOW & SESSIONS, P.C.,
                           Petitioner.

                          No. 20160621-SC
                       Filed August 29, 2017


           On Certiorari to the Utah Court of Appeals


                              Attorneys:
         Jeffrey S. Williams, Salt Lake City, for petitioner
Thomas D. Boyle, Fruit Heights, Scott R. Hoyt, Salt Lake City, for
                         respondent


                    Third District, Salt Lake
                The Honorable James D. Gardner
                        No. 090400630


ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE HIMONAS,
                   and JUSTICE PEARCE joined.


 ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
  ¶1 This case was filed and litigated for years as a wrongful
death action. It has now devolved to a dispute over attorney fees.
The fee dispute is between Thomas Boyle, who represented the
plaintiff in the wrongful death action, and the law firms with
                 BOYLE v. CLYDE SNOW & SESSIONS
                       Opinion of the Court

which he was affiliated (Clyde Snow & Sessions, P.C. and later
Prince Yeates & Geldzahler, P.C.).
   ¶2 The wrongful death action settled after six years of
litigation. And in the wake of the settlement—but prior to
dismissal or final judgment—one of the law firms (Clyde Snow)
asserted a lien against a portion of the settlement funds based on
its claim for attorney fees. The procedural and substantive
propriety of the Clyde Snow claim was litigated over the course of
about a year in the district court. Ultimately, the district court
upheld the viability of that claim and entered an order awarding a
portion of the settlement funds as fees to Clyde Snow.
  ¶3 The court of appeals reversed that order on appeal. It
concluded that Clyde Snow had failed to intervene in the manner
required by law, that the parties had not waived any objection to
the defects in intervention, and thus that the district court lacked
jurisdiction to award attorney fees to Clyde Snow.
  ¶4 We reverse. Like the district court, we conclude that Boyle
waived any objection to procedural deficiencies in Clyde Snow’s
intervention. Boyle effectively acquiesced in the litigation over
fees and even advanced his own competing claim to fees. And we
hold that in these circumstances any objection to the procedural
deficiencies in Clyde Snow’s intervention was waived by Mr.
Boyle.
                                 I
  ¶5 The underlying wrongful death action began in 2007 when
the plaintiff retained Clyde Snow. Thomas Boyle was the lead
attorney in the wrongful death action between 2007 and 2010. In
June 2010, Boyle left Clyde Snow and joined Prince Yeates. And
the plaintiff elected to have the claim follow Boyle to Prince
Yeates. On July 7, 2010, Clyde Snow filed a notice of lien relating
to its representation of plaintiff until June 2010.
 ¶6 Three years later, on June 28, 2013 the parties to the
underlying dispute filed a motion to dismiss the case with
prejudice in light of a settlement. That same day, Clyde Snow filed
an objection to dismissal and restated its notice of lien.



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                       Opinion of the Court

  ¶7 On July 15, 2013 the district court held a telephonic hearing
on the motion to dismiss and Clyde Snow’s objection. At the
hearing the defendants in the underlying action opposed deciding
the attorney lien issue in the same action. In their view the
attorney lien should be the subject of a separate lawsuit. Boyle,
however, did not oppose deciding the attorney lien issue in the
underlying action. And the district court concluded that it would
dismiss the underlying claims with prejudice but retain
jurisdiction to decide the attorney lien action.
  ¶8 The district court ordered the parties to mediate the
attorney lien issue, so the parties filed position statements and
participated in mediation between August 2013 and January 2014.
On January 27, the parties filed a notice that the mediation had
been unsuccessful. And on January 30 Prince Yeates filed a
motion to interplead the disputed settlement funds and sought to
be dismissed from the attorney lien action. While Boyle objected
to the amount to be interpleaded, he did not otherwise object to
interpleading the funds. And on March 27, 2014, the court granted
the motion to interplead funds and determined that Prince Yeates
had no further liability to any of the parties claiming an interest in
the disputed funds.
  ¶9 Clyde Snow then filed a complaint, asserting a right to
foreclose on its attorney lien against the interpleaded funds. Two
weeks later, Boyle filed a motion to dismiss, asserting that Clyde
Snow had failed to properly intervene under Utah Rule of Civil
Procedure 24. Boyle also answered the complaint and
counterclaimed against Clyde Snow. Clyde Snow responded with
its own motion to dismiss Boyle’s counterclaims.
  ¶10 The district court held a hearing on the two motions to
dismiss. The court denied Boyle’s motion to dismiss on the
ground that Boyle had waived his right to object to the propriety
of intervention based on his concessions at the hearing, the
untimeliness of his motion, and his conduct in litigating his
interest in the disputed settlement funds. The parties then
proceeded to litigate the attorney lien claim. The district court
ultimately awarded the interpleaded funds to Clyde Snow. Boyle
appealed.


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                       Opinion of the Court

  ¶11 On appeal the court of appeals reversed the district court’s
determination that the rule 24 intervention issue had been
waived. The court held that the defendants in the underlying
action had properly preserved an objection to intervention. And
the court held that neither Boyle nor Clyde Snow had timely
intervened or complied with rule 24. Because none of the parties
on appeal had ever properly become parties, the court of appeals
held that the district court lacked jurisdiction to decide any of the
issues relating to the attorney lien or interpleader. Accordingly,
the court reversed the district court, noting that it may be possible
for Clyde Snow to pursue its attorney lien claim in a separate
proceeding. Clyde Snow petitioned for a writ of certiorari. We
granted the petition.
  ¶12 We review the court of appeals’ opinion for correctness.
State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673, abrogated on other
grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. Yet we note
that the “correctness of the court of appeals’ decision turns, in
part, on whether it accurately reviewed the [district] court’s
decision under the appropriate standard of review.” Id. (internal
quotation marks omitted) (quoting State v. Levin, 2006 UT 50, ¶ 15,
144 P.3d 1096).
                                 II
   ¶13 We assume (without resolving) the correctness of the court
of appeals’ determination that Clyde Snow failed to file a proper,
timely motion to intervene in the district court. Yet we reverse
because we disagree with its disposition of the waiver question.
We conclude that Boyle waived any objection to the propriety of
Clyde Snow’s intervention by essentially acquiescing in the
litigation over the merits of the firm’s fee claim and by actively
advancing his own competing claim to an award of fees.
  ¶14 The court of appeals found fault in the district court’s
decision to “allow[] Clyde Snow to derail resolution of the case by
objecting to the parties’ stipulated agreement to dismiss” the
underlying wrongful death action. Boyle v. Clyde Snow & Sessions
PC, 2016 UT App 114, ¶ 22, 378 P.3d 98. It objected to the lower
court’s reference to “Clyde Snow and Boyle as parties even
though neither had intervened as a party in this case.” Id. And


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although it acknowledged that “the actual parties did not reply
when the court asked if anyone strongly objected to Clyde Snow’s
participation,” it nonetheless declined to find waiver because it
thought that “any further objections from the defendants would
have been futile.” Id.
  ¶15 The notion of futility of “further objections” is an apparent
reference to issues that arose in the July 2013 telephonic hearing
on the motion to dismiss the case in light of the parties’ settlement
of the underlying wrongful death action. At that time Clyde Snow
stated its intent to assert a lien for attorney fees and to litigate its
fee claim in the pending case. Defense counsel responded by
raising the concern that further publicity about an ongoing,
pending action could be detrimental to the defendants. Defense
counsel’s view was that it would be “more expedient” and “a lot
fairer to the defendants to dismiss this action [and] to close out
this case”—and let the “Clyde Snow law firm file [a separate]
action [for fees] without involving” the wrongful death
defendants, “which otherwise are going to continue to be at least
peripherally involved in this matter.” The district court then
proposed “to enter an order dismissing all claims” against the
wrongful death defendants “with prejudice,” while “simply
leaving open the issue of the attorney’s lien.” And when the court
asked whether that would get the wrongful death defendants
“what [they] needed,” defense counsel responded with “I think
so” and the caveat that “it would be cleaner the other way.”

  ¶16 This may well have been enough to preserve an objection
to Clyde Snow’s intervention by the wrongful death defendants. In
this context, moreover, we can understand the court of appeals’
conclusion that “any further objections from the defendants would
have been futile.” Boyle, 2016 UT App 114, ¶ 22 (emphasis added).
But that only means that the wrongful death defendants
preserved the right to challenge Clyde Snow’s intervention on
appeal. And that is beside the point because the wrongful death
defendants accepted Clyde Snow’s intervention and accepted the
judgment before us in these proceedings. They never filed any
appeal.




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                 BOYLE v. CLYDE SNOW & SESSIONS
                      Opinion of the Court

  ¶17 The only appellant in these proceedings is Mr. Boyle. So the
question is not whether “the actual parties” to the wrongful death
action preserved an objection to Clyde Snow’s intervention—that
objection was waived when those parties failed to file an appeal.
The question is whether Boyle (the appellant) preserved an
objection. And with that clarification, we think it clear that the
propriety of Clyde Snow’s intervention was waived in the district
court and not properly preserved for appeal.

  ¶18 Boyle waived any objection to the procedural correctness of
Clyde Snow’s intervention in the wrongful death case. He did so
(a) by acquiescing in Clyde Snow’s assertion of a lien and right to
recover fees from the proceeds of the settlement; and (b) by
asserting his own right to recover fees from those proceeds. In the
initial telephonic hearing, Boyle, unlike the underlying
defendants, did not object to Clyde Snow’s request that the
attorney lien claim be decided in the pending action. Following
the hearing, Boyle participated in the court-ordered mediation.
And when mediation failed, Boyle agreed in principle that the
disputed funds should be interpleaded in the pending action,
disputing only the amount that should be deposited.

  ¶19 This is more than enough to amount to waiver of Boyle’s
objection to the court’s decision to leave the wrongful death case
“open for the sole and limited purpose of determining Clyde
Snow’s attorney’s fees lien.” Boyle not only acquiesced in Clyde
Snow’s attempts to recover fees from the settlement proceeds, he
even asserted his own right to fees. And given that background, it
could hardly have come as a surprise to Boyle for the district
judge to state—as he did in the June 10, 2014 hearing—that
Boyle’s acts over “nine months” seemed clearly to amount to
waiver or acquiescence.

  ¶20 In fact this did not seem to come as a surprise to Boyle. At
that hearing Boyle conceded that he did not have a “solid answer”
to the judge’s pushback and acknowledged that if he “were in [the
court’s] position,” he “would probably agree” that there was a
waiver.



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                       Opinion of the Court

  ¶21 We likewise agree. We find ample grounds for the district
court’s determination of waiver of any objection by Boyle to Clyde
Snow’s intervention in this wrongful death action. And we
accordingly reverse the court of appeals without reaching the
question of the procedural correctness of Clyde Snow’s
intervention.1

                                 III

  ¶22 We reverse the court of appeals on the ground that Mr.
Boyle waived any objection to Clyde Snow’s intervention in this
case. That conclusion requires a remand to the court of appeals—
to give the court an opportunity to reach questions it did not
reach previously (going to the merits of Boyle’s challenge to the
district court’s decision, for example).




 1  Our holding also steers us clear of a further question decided
by the court of appeals—that the wrongful death defendants’
actions do not amount to waiver under the standards set forth in
our decision in Ostler v. Buhler, 1999 UT 99, 989 P.2d 1073. We do
not reach that question because we conclude that the waiver at
issue is that of Boyle, not of the wrongful death defendants. And
that observation also avoids a responsive point advanced by
Clyde Snow in its briefing—that the standards set forth in Ostler
have been overtaken by statute. Compare Ostler, 1999 UT 99, ¶ 9
n.3 (noting the prevailing rule that attorney liens must be raised in
a separate proceeding absent “special circumstances” (quoting
Midvale Motors, Inc. v. Saunders, 442 P.2d 938, 941 (Utah 1968))),
with UTAH CODE § 38-2-7(4)(a) (affording an attorney the right to
“enforce a lien under this section by . . . moving to intervene in a
pending legal action”).


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