Migliore v. Livingston Financial, LLC ( 2015 )


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  •                  -This opinion is subject to revision before final
    publication in the Pacific Reporter
    
    2015 UT 9
    IN THE
    S UPREME C OURT OF THE S TATE OF U TAH
    CHARLES MIGLIORE ,
    Petitioner,
    v.
    LIVINGSTON FINANCIAL, LLC,
    Respondent.
    No. 20130337
    Filed January 27, 2015
    On Certiorari to the Utah Court of Appeals
    Third District, Tooele Dep’t
    The Honorable Robert W. Adkins
    No. 090301264
    Attorneys:
    Ronald Ady, Salt Lake City, for petitioner
    Christopher J. Rogers, Salt Lake City, for respondent
    JUSTICE PARRISH authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING ,
    JUSTICE DURHAM , and JUSTICE LEE joined.
    JUSTICE PARRISH , opinion of the Court:
    INTRODUCTION
    ¶1 On certiorari, petitioner Charles Migliore argues that the
    court of appeals erred when it held that it lacked jurisdiction to
    consider his challenge to the district court’s denial of his renewed
    rule 60(b) motion due to his failure to file a timely notice of appeal.
    Mr. Migliore also argues that the court of appeals erred in affirming
    the district court’s award of attorney fees pursuant to section 78B-5-
    825 of the Utah Code.
    ¶2 We hold that the court of appeals erred when it concluded
    that it lacked jurisdiction to review the district court’s denial of Mr.
    Migliore’s renewed rule 60(b) motion. In the interest of judicial
    economy, we exercise our discretion to reach the merits of the claim
    MIGLIORE v. LIVINGSTON FIN ., LLC
    Opinion of the Court
    and hold that Mr. Migliore’s renewed rule 60(b) motion was
    improper and without merit. We therefore reach the same result as
    the court of appeals. We also affirm the court of appeals’ award of
    attorney fees pursuant to Utah Code section 78B-5-825.
    BACKGROUND
    ¶3 This case involves a debt collection action arising from a
    credit agreement between U.S. Bank and Mr. Migliore. In July 2009,
    Livingston Financial, LLC (Livingston), as assignee for U.S. Bank,
    brought suit against Mr. Migliore for breach of the credit agreement.
    The complaint also included a claim for reasonable attorney fees
    based on the contractual agreement generating the debt, or
    alternatively under Utah Rule of Civil Procedure 73. Mr. Migliore
    appeared pro se in the action, but did not file an answer to the
    complaint. Instead, Mr. Migliore responded with a motion for a
    more definite statement.
    ¶4 Thereafter, Livingston served its first discovery requests on
    Mr. Migliore. Mr. Migliore objected to each of Livingston’s requests
    for admission and responded that he “lack[ed] the knowledge or
    information sufficient to admit or deny, therefore denie[d] the
    same.” Livingston then moved for summary judgment on the basis
    that Mr. Migliore’s failure to properly respond resulted in the
    requests being “deemed admitted” pursuant to rule 36 of the Utah
    Rules of Civil Procedure. See UTAH R. CIV . P. 36(a)(1) (2009).
    ¶5 The version of rule 36 in effect at the time stated that a
    “matter is admitted unless, within thirty days after service of the
    request, . . . the party to whom the request is directed serves upon
    the party requesting the admission a written answer or objection.”
    
    Id. 36(a)(2). Though
    Mr. Migliore had objected, in writing, to each
    of Livingston’s requests, rule 36 also specified that a party could not
    “give lack of information or knowledge as a reason for failure to
    admit or deny unless he state[d] that he ha[d] made reasonable
    inquiry and that the information known or readily obtainable by him
    [was] insufficient to enable him to admit or deny.” 
    Id. Because Mr.
    Migliore had relied on a lack of knowledge, but had failed to specify
    that he had undertaken a reasonable inquiry, Livingston argued that
    he had not properly responded to its requests for admission. The
    district court agreed, deemed the requests admitted, and granted
    Livingston’s motion for summary judgment. The district court’s
    summary judgment order fully disposed of the issues before the
    court, including Livingston’s request for attorney fees pursuant to
    rule 73 of the Utah Rules of Civil Procedure.
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                           Opinion of the Court
    ¶6 Mr. Migliore thereafter filed a motion to reconsider
    summary judgment and requested a hearing pursuant to rule 60(b)
    of the Utah Rules of Civil Procedure. Mr. Migliore asserted that he
    had failed to answer Livingston’s summons and complaint because
    he was waiting for a response to his earlier motion for a more
    definite statement and because he had been committed to a mental
    hospital shortly after being served with the complaint. He further
    asserted that he had not properly responded to Livingston’s
    discovery requests because he “had forgotten about the Summons
    and Complaint served months earlier” and had “made a mistake of
    assuming there had been no initial service.” In his motion to
    reconsider, Mr. Migliore argued for the first time that the credit
    account at issue was not his. He asserted that the debt might belong
    to his father, who shares his same name, but he offered no evidence
    to support that assertion. Following briefing, the district court held
    a hearing and denied Mr. Migliore’s motion to reconsider.
    ¶7 For nearly two years, the status of the case remained
    unchanged. Then Mr. Migliore filed through counsel a renewed
    motion to set aside void judgment pursuant to rule 60(b) of the Utah
    Rules of Civil Procedure. In his renewed motion, Mr. Migliore
    argued that the district court’s summary judgment order was void
    because Mr. Migliore had been denied due process of law.
    Specifically, Mr. Migliore argued that he was denied notice and an
    opportunity (1) to respond to Livingston’s complaint, (2) to respond
    to all of Livingston’s arguments in favor of summary judgment, (3)
    to rectify the deficiencies in his responses to Livingston’s requests
    for admission, and (4) to be heard on whether his discovery lapses
    were willful. Finally, Mr. Migliore argued that he had been denied
    due process because there was no evidence to support summary
    judgment in Livingston’s favor.
    ¶8 The district court denied the renewed motion. Specifically,
    the district court noted that Mr. Migliore had failed to demonstrate
    why his renewed motion was timely under rule 60(b), which
    requires parties to file within a “reasonable time . . . after the
    judgment, order, or proceeding was entered.” UTAH R. CIV . P. 60(b).
    The district court also noted that it reviewed the prior summary
    judgment proceedings and found that Mr. Migliore had received
    notice of Livingston’s claims and had several opportunities to
    present evidence to counter those claims. The court ultimately
    concluded that Mr. Migliore had “failed to present any basis to
    preclude granting summary judgment in [Livingston’s] favor” and
    denied the renewed rule 60(b) motion.
    3
    MIGLIORE v. LIVINGSTON FIN ., LLC
    Opinion of the Court
    ¶9 Not only did the district court find that the renewed
    motion was “without any merit,” it admonished Mr. Migliore for
    filing it, characterizing it as “frivolous.” Then, on its own initiative,
    the court issued an order to show cause as to why Mr. Migliore
    should not be subject to rule 11 sanctions. See 
    id. 11(c). Finally,
    the
    court admonished both Mr. Migliore and his counsel for “their
    overly aggressive tactics in dealing with the Court and its
    personnel,” referring to an altercation that occurred when Mr.
    Migliore and his counsel “verbally accosted” a clerk due to
    difficulties they were having with the court’s e-filing system. Mr.
    Migliore did not appeal from that order.
    ¶10 Two weeks after entry of the district court’s combined
    order, Livingston moved for attorney fees pursuant to section 78B-5-
    825 of the Utah Code, which directs the court to “award reasonable
    attorney fees to a prevailing party if the court determines that the
    action . . . was without merit and not brought or asserted in good
    faith.” Mr. Migliore responded to the district court’s order to show
    cause and opposed Livingston’s motion for attorney fees. The
    district court held a hearing on Livingston’s motion for fees in which
    it found that Livingston was entitled to a fee award. Specifically, it
    found that Livingston was the prevailing party, that Mr. Migliore’s
    renewed rule 60(b) motion was without merit, and that the motion
    was brought with the goal of hindering or delaying Livingston’s
    efforts to collect on the judgment. The district court thereafter issued
    its final written order granting Livingston’s request for attorney fees.
    Contemporaneously, it issued a memorandum decision
    withdrawing its order to show cause concerning the rule 11
    sanctions, reasoning that the award of fees pursuant to section 78B-5-
    825 was “a sufficient sanction.”
    ¶11 Mr. Migliore filed a notice of appeal that purported to
    challenge the original grant of summary judgment, the denial of the
    renewed rule 60(b) motion, and the order granting Livingston an
    award of attorney fees. The notice was filed more than thirty days
    from the original summary judgment order and the denial of the
    renewed rule 60(b) motion, but within thirty days from the order
    awarding fees.
    ¶12 The court of appeals issued a per curiam opinion in which
    it dismissed both the appeal of the original summary judgment
    order and the order denying the renewed rule 60(b) motion on the
    basis that it lacked jurisdiction. Livingston Fin., LLC v. Migliore, 
    2013 UT App 58
    , ¶ 1, 
    299 P.3d 620
    . It held that both the original summary
    judgment order and the order denying the renewed rule 60(b)
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                           Opinion of the Court
    motion were final appealable orders and that Mr. Migliore had not
    filed a timely notice of appeal pursuant to rule 4 of the Utah Rules
    of Appellate Procedure. 
    Id. ¶¶ 2–3.
    In so doing, the court of appeals
    rejected Mr. Migliore’s contention that the order denying the
    renewed rule 60(b) motion did not become final until entry of
    Livingston’s attorney fee award. It concluded that the initial order
    “fully resolved the motion then before the court” and that
    “Livingston sought its attorney fees in a subsequent motion.” 
    Id. ¶ 3.
         ¶13 Because it concluded that it lacked jurisdiction to consider
    Mr. Migliore’s challenge to the original summary judgment order
    and the order denying the renewed rule 60(b) motion, the court of
    appeals addressed only the merits of his challenge to the award of
    attorney fees. It held that the district court’s factual findings were
    sufficient to support the award of fees. Specifically, it held that a
    meritless motion filed nearly two years after issuance of the
    judgment was implicitly brought for the purpose of “further
    delay[ing] Livingston’s ongoing efforts to collect on the judgment.”
    
    Id. ¶ 9.
    Accordingly, the court of appeals affirmed Livingston’s
    award of fees under section 78B-5-825 of the Utah Code and further
    awarded Livingston its fees and costs incurred on appeal. 
    Id. ¶14 We
    granted certiorari on two questions: (1) whether the
    court of appeals erred in determining it lacked jurisdiction over the
    appeal of the summary judgment order1 and renewed rule 60(b)
    motion and (2) whether the court of appeals erred in affirming the
    district court’s award of attorney fees. We have jurisdiction
    pursuant to section 78A-3-102(3)(a) of the Utah Code.
    STANDARD OF REVIEW
    ¶15 “On certiorari, we review for correctness the decision of the
    court of appeals, not the decision of the trial court.” Ramsay v. Kane
    Cnty. Human Res. Special Serv. Dist., 
    2014 UT 5
    , ¶ 7, 
    322 P.3d 1163
    (internal quotation marks omitted). “The correctness of the court of
    appeals’ decision turns, in part, on whether it accurately reviewed
    the trial court’s decision under the appropriate standard of review.”
    State v. Levin, 
    2006 UT 50
    , ¶ 15, 
    144 P.3d 1096
    . “Whether appellate
    1
    In his reply brief to this court, Mr. Migliore abandoned his
    appeal of the original summary judgment order. Thus, he “appeals
    only the . . . order denying his [renewed r]ule 60(b) motion, and the
    . . . attorney fees order.”
    5
    MIGLIORE v. LIVINGSTON FIN ., LLC
    Opinion of the Court
    jurisdiction exists is a question of law which we review for
    correctness, giving no deference to the decision below.” Pledger v.
    Gillespie, 
    1999 UT 54
    , ¶ 16, 
    982 P.2d 572
    .
    ANALYSIS
    I. THE COURT OF APPEALS HAD JURISDICTION TO REVIEW
    THE DISTRICT COURT’S DENIAL OF MR. MIGLIORE’S
    RENEWED RULE 60(b) MOTION
    ¶16 Mr. Migliore argues that the court of appeals erred when
    it determined that it lacked jurisdiction to consider the district
    court’s order denying Mr. Migliore’s renewed rule 60(b) motion.
    Though Mr. Migliore did not file a notice of appeal within thirty
    days of entry of that order, he maintains that the order was not a
    final appealable order because it did not fully resolve the issues
    between the parties. Specifically, Mr. Migliore argues that it was not
    final because it did not dispose of Livingston’s request for attorney
    fees or the order to show cause as to potential rule 11 sanctions.
    Accordingly, the first issue we must consider is whether the district
    court’s order denying the renewed rule 60(b) motion was final and
    appealable.
    ¶17 Utah appellate courts do not “have jurisdiction over an
    appeal unless it is taken from a final judgment.” Loffredo v. Holt,
    
    2001 UT 97
    , ¶ 10, 
    37 P.3d 1070
    ; see also UTAH R. APP. P. 3(a) (“An
    appeal may be taken from . . . all final orders and judgments . . . .”).
    “For an order to constitute a final judgment, it must end the
    controversy between the litigants.” Loffredo, 
    2001 UT 97
    , ¶ 12; see also
    Bradbury v. Valencia, 
    2000 UT 50
    , ¶ 10, 
    5 P.3d 649
    (“To be final, the
    trial court’s order . . . must dispose of all . . . claims to an action.”).
    “It is well settled that an order denying relief pursuant to Rule 60(b)
    is generally a final appealable order.” Mascaro v. Davis, 
    741 P.2d 938
    ,
    946 (Utah 1987). Thus, the district court’s order would generally be
    appealable. But the question before us is whether the district court’s
    sua sponte order to show cause or Livingston’s subsequent request
    for attorney fees pursuant to section 78B-5-825 of the Utah Code
    rendered the order nonfinal and therefore not appealable.
    ¶18 For the reasons discussed below, we hold that the district
    court’s sua sponte order to show cause precluded entry of final
    judgment until the court resolved it. As a result, the order denying
    the renewed rule 60(b) motion was not final and appealable until the
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                            Opinion of the Court
    district court finally resolved the pending order to show cause.2
    ¶19 We previously adopted a rule that a judgment is not final
    until resolution of any outstanding requests for attorney fees.
    ProMax Dev. Corp. v. Raile, 
    2000 UT 4
    , ¶ 12, 
    998 P.2d 254
    . We
    reasoned that judicial economy is best served “by enabl[ing] an
    appellant to appeal all issues, including an award of attorney fees,
    in a single notice of appeal.” 
    Id. ¶¶ 14–15
    (alteration in original)
    (internal quotation marks omitted). In so reasoning, we expressly
    rejected the contrary federal rule, under which a decision on the
    merits of the case is final regardless of any pending request for
    attorney fees. 
    Id. ¶ 13
    (rejecting the federal rule announced in
    Budinich v. Becton Dickinson & Co., 
    486 U.S. 196
    (1988)).
    ¶20 Mr. Migliore urges us to extend the ProMax rule to the
    context of pending rule 11 sanctions contemplated in an otherwise
    final order. He argues that the logic underlying the ProMax rule is
    equally applicable to rule 11 sanctions in this context. We agree. A
    party appealing a judgment on the merits is also likely to appeal any
    rule 11 sanctions imposed by the court. Thus, requiring a party to
    separately appeal the imposition of rule 11 sanctions would
    necessitate piecemeal appeals, a needlessly wasteful endeavor.
    Accordingly, we extend ProMax to apply to requests for rule 11
    sanctions raised before or contemporaneously with the entry of a
    final appealable judgment.3
    ¶21 We are aware that we have previously referred to rule 11
    sanctions as a collateral matter that have “no relationship to the
    disposition of the case on its merits.” Clark v. Booth, 
    821 P.2d 1146
    ,
    1148 (Utah 1991). In Clark, we held that the imposition of rule 11
    sanctions did not affect the finality of a decree of foreclosure. 
    Id. Our reasoning
    there paralleled that of the federal courts, which hold
    that the imposition of rule 11 sanctions is a collateral issue that has
    2
    Because we hold that the district court’s order to show cause
    precluded entry of final judgment on the order denying the renewed
    rule 60(b) motion, Livingston’s subsequent request for attorney fees
    is best characterized as a prejudgment request for fees. And our
    precedent establishes that a prejudgment request for attorney fees
    must be resolved prior to the entry of a final appealable order. See
    Loffredo v. Holt, 
    2001 UT 97
    , ¶ 13, 
    37 P.3d 1070
    .
    3
    A judgment that is final and appealable when entered does not
    lose that status as a result of a subsequently filed motion for rule 11
    sanctions.
    7
    MIGLIORE v. LIVINGSTON FIN ., LLC
    Opinion of the Court
    no effect on the finality of a judgment on the merits. Id.; see also
    Cooter & Gell v. Hartmarx Corp., 
    496 U.S. 384
    , 395–96 (1990) (“Like the
    imposition of costs, attorney’s fees, and contempt sanctions, the
    imposition of a Rule 11 sanction is not a judgment on the merits of
    an action. Rather, it requires the determination of a collateral
    issue . . . .”). But we decided Clark prior to ProMax. In light of our
    holding in ProMax, and our rejection of the federal rule in that case,
    we hereby repudiate the approach taken in Clark. The ProMax rule
    applies to all requests for attorney fees, including pending requests
    for rule 11 sanctions, whether instigated by the court or the parties.
    ¶22 The district court’s order denying the renewed rule 60(b)
    motion was not final and appealable until the district court resolved
    the pending order to show cause. Thus, we hold that the court of
    appeals erred when it determined that it lacked jurisdiction to
    consider the denial of Mr. Migliore’s renewed rule 60(b) motion. In
    the interest of judicial economy, we elect to exercise our discretion
    to consider the merits, rather than remanding the case to the court
    of appeals.
    II. THE DISTRICT COURT CORRECTLY DENIED MR.
    MIGLIORE’S RENEWED RULE 60(b) MOTION
    ¶23 The basis of Mr. Migliore’s renewed rule 60(b) motion was
    that he was denied due process of law in the original summary
    judgment proceedings and that the judgment was therefore void.
    Specifically, Mr. Migliore argued that he was deprived of notice,
    denied the opportunity to respond to Livingston’s claims, and
    denied a fair opportunity to submit evidence.
    ¶24 Rule 60(b)(4) of the Utah Rules of Civil Procedure allows
    a party to seek relief from “a final judgment, order, or proceeding”
    if “the judgment is void.” A rule 60(b) motion must normally be
    brought within ninety days after the judgment was entered. See
    UTAH R. CIV . P. 60(b). “But where the judgment is void . . . the time
    limitations of [r]ule 60(b) have no application.” Garcia v. Garcia, 
    712 P.2d 288
    , 290 (Utah 1986) (reversing denial of rule 60(b) motion
    when underlying judgment was void for want of service); see also
    CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 11 FEDERAL PRACTICE
    AND PROCEDURE § 2862 (3d ed. 2012) (“[T]here is no time limit on an
    attack on a judgment as void.”). Thus, though Mr. Migliore’s
    renewed rule 60(b) motion was brought nearly two years after entry
    of summary judgment, it is not time barred.
    ¶25 Normally, the district court’s denial of a rule 60(b) motion
    is reviewed for abuse of discretion. Johnson v. Johnson, 
    2010 UT 28
    ,
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                            Opinion of the Court
    ¶ 6, 
    234 P.3d 1100
    . But the district court has no discretion with
    respect to a void judgment because the determination that a
    judgment is void implicates the court’s jurisdiction. See Jackson
    Const. Co. v. Marrs, 
    2004 UT 89
    , ¶ 8, 
    100 P.3d 1211
    . Accordingly, “the
    propriety of [the] jurisdictional determination, and hence the
    decision not to vacate, becomes a question of law upon which we do
    not defer to the district court.” Johnson, 
    2010 UT 28
    , ¶ 6 (internal
    quotation marks omitted); accord Hukill v. Okla. Native Am. Domestic
    Violence Coal., 
    542 F.3d 794
    , 797 (10th Cir. 2008) (“Where [r]ule
    60(b)(4) is properly invoked, relief is not a discretionary matter; it is
    mandatory and, accordingly, our review is de novo.” (citation
    omitted) (internal quotation marks omitted)).
    ¶26 Turning to the merits of the rule 60(b) denial, we narrowly
    construe the concept of a void judgment in the interest of finality.
    Brimhall v. Mecham, 
    494 P.2d 525
    , 526 (Utah 1972). “A judgment is
    not void merely because it is erroneous.” WRIGHT & MILLER, supra,
    § 2862. Rather, a “judgment is void under rule 60(b)(4) if the court
    that rendered it lacked jurisdiction of the subject matter or parties,
    or the judgment was entered without the notice required by due
    process.” Judson v. Wheeler RV Las Vegas, L.L.C., 
    2012 UT 6
    , ¶ 18, 
    270 P.3d 456
    (internal quotation marks omitted). Mr. Migliore did not
    challenge the district court’s jurisdiction. As such, his renewed rule
    60(b)(4) challenge relied solely on the argument that summary
    judgment was rendered in violation of his due process rights.
    ¶27 “Due process requires notice reasonably calculated, under
    all the circumstances, to apprise interested parties of the pendency
    of the action and afford them an opportunity to present their
    objections.” United Student Aid Funds, Inc. v. Espinosa, 
    559 U.S. 260
    ,
    272 (2010) (internal quotation marks omitted) (holding that due
    process was satisfied when a party had actual notice, despite not
    being properly served with summons and complaint). The record
    demonstrates that Mr. Migliore had actual notice of all of
    Livingston’s claims and ample opportunity to submit evidence in his
    defense. Mr. Migliore attached a copy of the summons and
    complaint to his motion for a more definite statement,
    demonstrating that he was on notice of Livingston’s claims.
    Moreover, Mr. Migliore received Livingston’s discovery requests.
    He responded to the requests for admission by denying them on the
    basis that he lacked the information to answer. As to Livingston’s
    interrogatories and requests for production, Mr. Migliore stated in
    his first rule 60(b) motion that he simply “forgot” to respond because
    the summons and complaint had been served “months earlier” and
    9
    MIGLIORE v. LIVINGSTON FIN ., LLC
    Opinion of the Court
    he had “made a mistake of assuming there had been no initial
    service.” Thus, the evidence on the record clearly indicates that Mr.
    Migliore had notice of Livingston’s claims and an opportunity to
    respond.
    ¶28 It was only after the district court entered summary
    judgment that Mr. Migliore raised the possibility that the credit
    account at issue might belong to his father. And although Mr.
    Migliore attempted to excuse his failure to participate in discovery
    by asserting that he had been hospitalized shortly after being served
    with Livingston’s complaint, there is no evidence in the record that
    Mr. Migliore contacted the district court to request an extension or
    that his illness was so severe that he was unable to do so. See Black’s
    Title, Inc. v. Utah State Ins. Dep’t, 
    1999 UT App 330
    , ¶ 10, 
    991 P.2d 607
    (noting that a party cannot demonstrate excusable neglect under rule
    60(b) merely by claiming illness).
    ¶29 In summary, Mr. Migliore’s renewed rule 60(b) challenge
    merely reflects his disagreement with the underlying merits of the
    original summary judgment determination. He provides nothing to
    support his claim that the underlying judgment was void. Rule
    60(b) does not provide an alternative vehicle for challenging the
    merits of a judgment that are more properly addressed through
    normal appellate review. Rather, a judgment is void only if the
    rendering court lacked authority. And there is no basis here for
    concluding that Mr. Migliore was deprived of his due process rights
    to notice of, or an opportunity to respond to, Livingston’s claims.
    Accordingly, we affirm the district court’s denial of Mr. Migliore’s
    renewed rule 60(b) motion. We now turn to Mr. Migliore’s claim
    that the court of appeals erred when it affirmed the district court’s
    award of attorney fees pursuant to section 78B-5-825 of the Utah
    Code.
    III. THE COURT OF APPEALS CORRECTLY AFFIRMED THE
    DISTRICT COURT’S AWARD OF FEES
    ¶30 When reviewing an award of attorney fees under section
    78B-5-825 of the Utah Code, we apply a statutorily mandated, two-
    part test. Matthews v. Olympus Const., L.C. (In re Olympus Const.,
    L.C.), 
    2009 UT 29
    , ¶ 29, 
    215 P.3d 129
    . Section 78B-5-825 provides that
    “[i]n civil actions, the court shall award reasonable attorney fees to
    a prevailing party if the court determines that the action or defense
    to the action was without merit and not brought or asserted in good
    faith.” “Whether a claim is without merit is a question of law and
    we review it for correctness.” In re Discipline of Sonnenreich, 
    2004 UT 10
                              Cite as: 
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                            Opinion of the Court
    3, ¶ 45, 
    86 P.3d 712
    (internal quotation marks omitted) (reviewing an
    award of fees under the precursor to section 78B-5-825). Whether a
    claim was brought in good faith is a question of fact that we review
    for clear error. 
    Id. The court
    of appeals affirmed the award of fees
    because it concluded that Mr. Migliore’s renewed rule 60(b) motion
    was without merit and brought in bad faith. We agree and affirm.4
    A. Mr. Migliore’s Renewed Rule 60(b) Motion Was Without Merit
    ¶31 “To determine whether a claim is without merit, we look
    to whether it was frivolous or of little weight or importance having
    no basis in law or fact.” Matthews, 
    2009 UT 29
    , ¶ 30 (internal
    quotation marks omitted). As discussed above, the basis of Mr.
    Migliore’s renewed rule 60(b) motion was that the original summary
    judgment order was void for lack of due process. But Mr. Migliore
    had actual notice of Livingston’s claims against him and ample
    opportunity to present evidence in his defense. See supra ¶¶ 27–29.
    Mr. Migliore’s renewed rule 60(b) motion reflects nothing more than
    his disagreement with the propriety of the original summary
    judgment ruling. And we have already established that mistakes in
    the underlying proceedings are insufficient to render a judgment
    void. Because we conclude that there was no factual basis upon
    which Mr. Migliore could claim that he lacked notice or an
    opportunity to be heard, we affirm the district court’s conclusion
    that his renewed rule 60(b) motion was without merit.
    4
    The court of appeals has previously held that courts may not
    award attorney fees pursuant to section 78B-5-825 on the basis of a
    frivolous motion. Dahl v. Harrison, 
    2011 UT App 389
    , ¶ 42, 
    265 P.3d 139
    . Rather, it has reasoned that the “plain language of section
    78B-5-825 expressly limits the award of attorney fees to situations
    where a party prevails with regard to an ‘action.’” 
    Id. (noting that
    “‘action’ is a term of art, basically meaning a lawsuit, and a
    motion—an optional part of a lawsuit—clearly does not equate to an
    ‘action’”). Though this holding would seem to preclude an award
    of statutory fees for the filing of a frivolous rule 60(b) motion, Mr.
    Migliore did not raise such an argument below. Neither did he raise
    a plain error claim here. See State v. Peterson, 
    881 P.2d 965
    , 968 (Utah
    Ct. App. 1994) (refusing to consider a claim when party did not
    argue plain error). Accordingly, we express no opinion with regard
    to the applicability of section 78B-5-825 to frivolous motions.
    11
    MIGLIORE v. LIVINGSTON FIN ., LLC
    Opinion of the Court
    B. Mr. Migliore’s Claim Was Not Brought in Good Faith
    ¶32 The second requirement for a statutory award of attorney
    fees is that the action was brought in bad faith. UTAH CODE § 78B-5-
    825; In re Discipline of Sonnenreich, 
    2004 UT 3
    , ¶ 48. A finding of bad
    faith requires “a factual determination of a party’s subjective intent.”
    Valcarce v. Fitzgerald, 
    961 P.2d 305
    , 315–16 (Utah 1998). To find that
    a party acted in bad faith, the court must conclude that at least one
    of the following factors existed:
    (i) The party lacked an honest belief in the propriety of
    the activities in question; (ii) the party intended to take
    unconscionable advantage of others; or (iii) the party
    intended to or acted with the knowledge that the
    activities in question would hinder, delay, or defraud
    others.
    
    Id. at 316.
    We will uphold a district court’s factual determination of
    bad faith “if there is sufficient evidence in the record to support a
    finding that at least one of these three factors applies.” Still Standing
    Stable, LLC v. Allen, 
    2005 UT 46
    , ¶ 13, 
    122 P.3d 556
    .
    ¶33 The district court found that Mr. Migliore’s renewed rule
    60(b) motion “was brought to hinder or delay [Livingston] in the
    efforts to collect” on its judgment. Mr. Migliore argues that the
    district court failed to make sufficient factual findings on the record
    to support this conclusion. But we do not require specific factual
    findings to support an award of fees under section 78B-5-825. See
    
    Valcarce, 961 P.2d at 316
    . In Valcarce, the district court found that the
    claim was pursued for “no other apparent reason than to harass [the
    opposing party] and/or to drive up the costs of litigation.” 
    Id. (internal quotation
    marks omitted). Though the district court failed
    to make further factual findings, we affirmed its award of fees
    because there was evidence from which the court could have
    reasonably come to its conclusion. 
    Id. ¶34 Similarly,
    in this case, there was evidence in the record
    from which the district court could have concluded that Mr. Migliore
    brought his renewed rule 60(b) motion for the purpose of hindering
    Livingston’s efforts to collect on its judgment. Mr. Migliore waited
    nearly two years to bring a collateral challenge to a judgment he
    never directly appealed. And the renewed rule 60(b) motion lacked
    any legal or factual basis. See supra ¶ 31. We agree with the court of
    appeals that an “obvious result of filing the renewed motion was to
    12
    Cite as: 
    2015 UT 9
                            Opinion of the Court
    further delay Livingston’s ongoing efforts to collect on the
    judgment.” Livingston Fin., LLC v. Migliore, 
    2013 UT App 58
    , ¶ 9, 
    299 P.3d 620
    .
    ¶35 Mr. Migliore also suggests that the district court could not
    infer that he brought the renewed motion to delay Livingston’s
    collection efforts because Livingston’s efforts were not, in fact,
    delayed. In particular, Mr. Migliore notes that Livingston continued
    to pursue collection, even after the renewed motion was filed. But
    Mr. Migliore’s argument misstates the applicable standard. The
    relevant inquiry concerns the moving party’s subjective intent to
    delay or hinder, not whether the party succeeded in doing so. See
    
    Valcarce, 961 P.2d at 315
    –16. The district court could have
    reasonably concluded that Mr. Migliore’s renewed motion, filed
    without legal merit and in light of Livingston’s active efforts to
    collect its judgment, was intended to delay those efforts.
    ¶36 On these facts, the district court’s finding of bad faith was
    not clearly erroneous. Because we agree that Mr. Migliore’s
    renewed rule 60(b) motion was without merit and because the
    district court’s factual finding of bad faith was supported by
    sufficient evidence, we hold that the court of appeals correctly
    affirmed the award of fees.
    CONCLUSION
    ¶37 The court of appeals erred when it concluded that it lacked
    jurisdiction to consider the denial of Mr. Migliore’s renewed rule
    60(b) motion. The district court’s order to show cause as to why Mr.
    Migliore should not be subject to sanctions precluded entry of a final
    appealable order. Accordingly, the district court’s order did not
    become final until the court resolved the order to show cause, and
    Mr. Migliore’s appeal was therefore timely.
    ¶38 Though the court of appeals did not reach the merits of Mr.
    Migliore’s challenge, in the interests of judicial economy, we exercise
    our discretion and address them here. We hold that the district
    court did not err when it denied Mr. Migliore’s renewed rule 60(b)
    motion because there was no factual or legal basis from which to
    conclude that the original summary judgment determination was
    void for want of due process. We therefore conclude that the court
    of appeals did not err when it affirmed the district court’s award of
    attorney fees pursuant to section 78B-5-825 of the Utah Code.
    13
    

Document Info

Docket Number: 20130337

Judges: Parrish, Durrant, Nehring, Durham, Lee

Filed Date: 1/27/2015

Precedential Status: Precedential

Modified Date: 3/2/2024