Iota v. Davco Management Company ( 2016 )

2016 UT App 231THE UTAH COURT OF APPEALS
IOTA LLC AND CALIFORNIA BENEFIT INC.,
Appellees,
v.
DAVCO MANAGEMENT COMPANY LC AND DAVID FISHER,
Appellants.
Opinion
No. 20130552-CA
Filed November 25, 2016
Fifth District Court, St. George Department
The Honorable James L. Shumate
No. 080502981
Darwin C. Fisher, Attorney for Appellants
Paul D. Veasy, Alan S. Mouritsen, and Douglas C.
Naftz, Attorneys for Appellees
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and KATE A. TOOMEY concurred.1
ROTH, Judge:
¶1 This case returns to us after we vacated a contempt
judgment and remanded to the district court in Iota, LLC v. Davco
Mgmt. Co. (Iota I), 2012 UT App 218, 284 P.3d 681. That decision
was based on a procedural defect, and on remand Iota LLC and
California Benefit Inc. (collectively, Iota) cured the defect. The
district court entered a new contempt judgment, from which
1. After hearing the arguments, Judge James Z. Davis passed
away and did not participate in the consideration of this case.
Judge Kate A. Toomey, having reviewed the briefs and listened
to a recording of the oral arguments, substituted for Judge Davis
and participated fully in this decision.
Iota v. Davco Management Company
Davco Management Company LC and David Fisher2
(collectively, Davco) now appeal. We affirm.
BACKGROUND
¶2 A full account of the background in this case is available
in Iota I, 2012 UT App 218, ¶¶ 2–9. In summary, Davco
contracted with Iota for the purchase of two apartment
complexes in St. George, Utah. The sale was owner-financed and
Davco executed a promissory note to Iota for each property, both
with maturity dates in December 2007. Payment of the notes was
secured by trust deeds for each property. Among other things,
the trust deeds granted Iota a security interest in the form of an
assignment of the rents and other sources of revenue associated
with the apartments on the two properties in the event of a
default.
¶3 By September of 2008, the promissory notes were long
past due and negotiations to resolve the defaults had proved
unsuccessful. Davco stopped making payments on the notes,
which triggered foreclosure on the properties and this lawsuit.
During the initial stage of this suit, Iota moved ex parte for an
order requiring Davco to deposit all apartment rents into court.
The motion was based on Utah Rule of Civil Procedure 67,
which provides that a court may order a party to deposit with
the clerk of court ‚any money or other thing‛ that is shown by
admissions in the pleadings or ‚upon the examination of a
party,‛ to belong to or be ‚due to another party.‛
¶4 The district court issued an order on November 5, 2008
(the Ex Parte Order) requiring Davco Management and Fisher to
2. Although David Fisher is not listed as an appellant on the
caption of the opening brief in this case, the notice of appeal
listed both Davco Management and Fisher as appellants, and
counsel’s signature block confirms that he represents both Davco
Management and Fisher.
20130552-CA 2 2016 UT App 231Iota v. Davco Management Company
deposit with the court all rents collected. Davco was properly
served and neither filed an objection nor moved to have it set
aside. Davco Management, through Fisher, collected and
retained apartment rental payments and other revenue from
September 2008 until the foreclosure sale was completed in
February 2009. However, Davco deposited money with the court
only once, in August 2009, when it remitted $33,805.33. The
single deposit was considerably less than the amount Davco had
collected after the Ex Parte Order was entered, and Davco made
the deposit only after ‚the Court made clear [in a hearing
attended by Fisher] its displeasure with Davco’s and David
Fisher’s failure to pay collected rents . . . into the Court.‛
¶5 Following the foreclosure sale of the properties, Iota
sought deficiency judgments against Davco and to recover the
rents and other revenue that Davco collected between September
1, 2008, and February 20, 2009. In addition, Iota argued in its trial
brief that both Davco Management and Fisher should be held in
contempt for failing to comply with the Ex Parte Order. Davco
responded to the contempt argument by challenging the court’s
contempt jurisdiction on the basis that Iota had failed to file an
affidavit of the facts constituting contempt as required by Utah
Code subsection 78B-6-302(2). Davco also moved to have the Ex
Parte Order struck, asserting that the trial court failed to comply
with Utah Rule of Civil Procedure 67 in issuing it. The court
denied both motions.
¶6 Iota prevailed at trial on its breach of contract and
deficiency claims and successfully urged the court to hold Davco
Management and Fisher in contempt for failing to comply with
the Ex Parte Order. The court entered deficiency judgments
against Davco (calculated as the difference between the proceeds
of the trustee’s sale and the unpaid balance of the promissory
notes) and awarded Iota its attorney fees. The district court
made two other rulings relevant to the current appeal. First, it
concluded that Davco’s failure to remit rents and other revenues
to Iota after it defaulted on the promissory notes was a violation
of the trust deeds’ requirement to do so. Second, it held both
20130552-CA 3 2016 UT App 231Iota v. Davco Management Company
Davco Management and Fisher in contempt for their failure to
comply with the Ex Parte Order. The court entered a separate
contempt judgment in the amount of $71,119.17 for revenues
withheld, plus attorney fees.
¶7 In Iota I, this court affirmed the deficiency judgments.
However, we vacated the contempt judgment against Davco
Management and Fisher. Our decision turned on the
requirement that, ‚[w]hen the contempt is not committed in the
immediate view and presence of the court or judge, an affidavit .
. . shall be presented . . . of the facts constituting the contempt.‛
Utah Code Ann. § 78B-6-302(2) (LexisNexis 2012). We
determined that Iota never filed an affidavit, and as a
consequence, ‚we reverse*d+ the trial court’s contempt rulings
against Davco and Fisher for lack of jurisdiction and remand[ed]
to the trial court for additional proceedings, on the contempt
matter only . . . .‛ Iota I, 2012 UT App 218, ¶ 40. Further,
‚because we reverse*d+ the contempt rulings on jurisdictional
grounds, we determine[d] that any error relating to the trial
court’s Ex Parte Order was harmless‛ and therefore did not
address Davco’s challenges to the order on the merits. Id.¶8 On remand, Iota filed an affidavit in support of its
allegations of contempt against Davco, and the district court
scheduled an evidentiary hearing to address the matter. At the
hearing, the court took notice of the evidence, facts, and orders
of the court from the prior contempt proceedings, ‚except for
those portions reversed by [this court in Iota I+.‛ In addition,
Fisher testified for Davco Management as its managing member
and on his own behalf, and Iota presented the testimony of its
officer, Richard T. Murset.3 At the conclusion of the hearing, the
district court again held both Davco Management and Fisher in
contempt based on a review of Iota I, briefing and testimony
3. Murset is a managing member of Iota LLC and vice president
of California Benefit Inc.
20130552-CA 4 2016 UT App 231Iota v. Davco Management Company
from the postappeal hearing, and evidence from the prior
proceedings.
¶9 In its second contempt order, the district court concluded
that the affidavit filed by Iota satisfied the statute’s requirement
and that the jurisdictional issue identified in Iota I had thus been
satisfied. The court also concluded that the collateral bar
doctrine precluded Davco from arguing that the Ex Parte Order
was improperly issued:
Davco and David Fisher violated Utah Code
Annotated § 78B-6-301 by knowingly disobeying
this Court’s Ex Parte Order in failing to turn over
the rents to the court clerk for further disposition
by Order of this Court. David Fisher, on behalf of
himself and his company, Davco, has knowingly
and wrongfully retained the security deposits and
has failed to deliver those amounts to Iota . . . to
apply towards Plaintiffs’ debt obligations.
The district court found Davco Management and Fisher in
contempt and entered judgment against both in the sum of
$116,025.02, which included the amount of the withheld rents
and other revenues as well as Iota’s attorney fees incurred in the
contempt proceedings both before and after Iota I. Davco
appeals.
ANALYSIS
¶10 Davco raises multiple challenges to the district court’s
decision finding Davco Management and Fisher in contempt for
failure to comply with the Ex Parte Order. Specifically, Davco
contends that the district court either erred or abused its
discretion by: (1) holding Davco in contempt based on an
unclear and ambiguous Ex Parte Order; (2) awarding Iota
damages; (3) finding Davco in contempt of court; (4) affirming
its prior judgment for contempt; (5) awarding Iota its attorney
20130552-CA 5 2016 UT App 231Iota v. Davco Management Company
fees and costs incurred in the preremand proceedings; (6)
finding that the Order was valid and lawful; (7) denying Davco’s
motion to strike the Order; (8) taking judicial notice of all the
facts, orders, and documents from the principal case; and (9)
denying Davco the opportunity to present evidence showing
that Iota’s calculation of the withheld rents was wrong.
¶11 The issues fall into three categories: those challenging the
validity of the Ex Parte Order, those challenging the district
court’s finding that Davco was in contempt for violating the Ex
Parte Order, and those challenging the district court’s award of
attorney fees to Iota. We address them in that order.
I. The Validity of the Ex Parte Order
¶12 Davco asserts that the Ex Parte Order was invalid and
unenforceable because it failed to comply with rule 67 of the
Utah Rules of Civil Procedure and, as a consequence, the district
court should have struck it.4 We first consider whether the
district court properly concluded that the collateral bar doctrine
blocked Davco’s motion to strike the Ex Parte Order; only if that
decision was incorrect need we consider the merits of Davco’s
argument that the order was invalid. The applicability of the
collateral bar doctrine presents a question of law that we review
for correctness. Cf. PC Riverview LLC v. Cao, 2016 UT App 178,
¶ 5 n.3, 381 P.3d 1185. We agree with the district court that the
collateral bar doctrine precludes Davco from waiting until after
it violated the Ex Parte Order to challenge its validity.
A. The Collateral Bar Doctrine
¶13 ‚Under the collateral bar doctrine, a party may not
challenge a district court’s order by violating it. Instead, he must
move to vacate or modify the order, or seek relief in [an
appellate court+.‛ United States v. Cutler, 58 F.3d 825, 832 (2d Cir.
4. This description of Davco’s contentions encompasses both its
sixth and seventh arguments on appeal.
20130552-CA 6 2016 UT App 231Iota v. Davco Management Company
1995). ‚If he fails to do either, ignores the order, and is held in
contempt, he may not challenge the order unless it was
transparently invalid or exceeded the district court’s
jurisdiction.‛ Id.¶14 On remand, Iota restarted the contempt proceeding by
filing the affidavit required to correct the procedural problem we
identified in Iota I. The district court held an evidentiary hearing
to consider anew whether Davco should be held in contempt for
failure to deposit rents in violation of the Ex Parte Order. At that
hearing, the court considered Davco’s motion to strike the Ex
Parte Order based on the argument that the order failed to
comply with the requirements of Utah Rule of Civil Procedure
67. In its written ruling the court found that, after the Ex Parte
Order was entered and served on Davco Management and
Fisher in November 2008, neither ‚filed an objection‛ nor
‚moved to have *the order+ set aside.‛ It also found that Davco
thereafter failed to deposit collected rents into the court as the Ex
Parte Order required until August 7, 2009, when Davco
deposited $33,805.33 in response to the court’s expressed
‚displeasure with Davco’s . . . failure to pay.‛ The court further
noted that Davco did not ‚raise[] a challenge to the validity of
the Ex Parte Order until the time of trial, almost eighteen months
after the Ex Parte Order was issued and after the order had
already been violated.‛ Because they ‚chose to ignore the Ex
Parte Order‛ rather than bring a timely challenge to its validity,
the district court determined that Davco’s ‚challenge[] to the
Court’s order of contempt [is] barred by the collateral bar
doctrine.‛
¶15 Utah appellate courts have not addressed the collateral
bar doctrine in modern times, other than nonbinding dicta in Iota
I, 2012 UT App 218, ¶¶ 37–38, 284 P.3d 681.5 However, our
5. In Iota I, Judge Davis offered guidance on the collateral bar
doctrine to the district court. 2012 UT App 218, ¶¶ 37–38, 284
P.3d 681. However, Judges Voros and McHugh did not join in
(continued<)
20130552-CA 7 2016 UT App 231Iota v. Davco Management Company
supreme court acknowledged the fundamentals of the doctrine
as early as 1932 in Utah Power & Light Co. v. Richmond Irrigation
Co., 13 P.2d 320, 324 (Utah 1932) (‚A party may question the
order which he is charged with refusing to obey, only insofar as
he can show it to be absolutely void . . . .‛ (citation and internal
quotation marks omitted)). And several years later in Liquor
Control Commission v. McGillis, the supreme court stated that ‚the
mere fact that an [order] was not justified by the facts of the
particular case or was erroneous or improvident in any way is
no defense‛ to violating the order. 65 P.2d 1136, 1141 (Utah
1937). Based on these acknowledgments, we are convinced that
the collateral bar doctrine applies in Utah even if our precedent
has not explicitly used that term, and we look to other courts for
guidance on the application of this widely recognized doctrine.
¶16 ‚The orderly and expeditious administration of justice by
the courts requires that ‘an order issued by a court with
jurisdiction over the subject matter and person must be obeyed
by the parties until it is reversed by orderly and proper
proceedings.’‛ Maness v. Meyers, 419 U.S. 449, 459 (1975)
(quoting United States v. United Mine Workers of Am., 330 U.S. 258,
293 (1947)). The collateral bar doctrine follows directly from that
premise; the doctrine ‚provides that a party may not challenge a
court’s order by violating it.‛ 17 C.J.S. Contempt § 24 (2016).
Indeed, the legitimacy of the judicial process itself would be
jeopardized if parties were free to determine for themselves
when and how to obey court orders. See id. (noting that the
collateral bar rule ‚advances important societal interests in an
orderly system of government, respect for the judicial process
and the rule of law, and the preservation of civil order‛ to
‚protect the authority of the courts when they address close
questions and to create a strong incentive for parties to follow
(2016 UT App 231Iota v. Davco Management Company
the orderly process of law‛). In this sense, ‚*t+he collateral bar
rule is a cornerstone of a system of orderly and efficient
adjudication.‛ In re Establishment Inspection of Hern Iron Works,
Inc., 881 F.2d 722, 730 (9th Cir. 1989).
¶17 The collateral bar doctrine underscores the principle that
‚no man can be judge in his own case.‛ Walker v. City of
Birmingham, 388 U.S. 307, 320 (1967) (holding that petitioners,
who deliberately violated an injunction without first attempting
to dissolve it, were properly convicted of criminal contempt).
Thus, a party is foreclosed from making a private determination
that a court’s order need not be obeyed because it is legally
incorrect. See Maness, 419 U.S. at 458 (‚Persons who make private
determinations of the law and refuse to obey an order generally
risk criminal contempt even if the order is ultimately ruled
incorrect.‛). Rather, ‚*i+t is for the court of first instance to
determine the question of the validity of the law, and until its
decision is reversed for error by orderly review . . . , its orders
based on its decision are to be respected, and disobedience of
them is contempt of its lawful authority.‛ United Mine Workers,
330 U.S. at 294. The policy advanced by this doctrine is
fundamental: ‚*R+espect for judicial process is a small price to
pay for the civilizing hand of law, which alone can give abiding
meaning to constitutional freedom.‛ Walker, 388 U.S. at 321.
¶18 Although the collateral bar doctrine has not been adopted
in Utah by name, its underlying principle is clearly
acknowledged. As our supreme court put it, ‚disobedience of an
order made by a court within its jurisdiction and power is a
contempt *even if+ the order *is+ clearly erroneous.‛ Liquor
Control Comm'n, 65 P.2d at 1140 (citation and internal quotation
marks omitted). That bedrock principle accords with other
aspects of Utah law, such as the ethical responsibility of
attorneys to obey court orders: ‚The rules of ethics dictate that
attorneys may not protest adverse rulings by violating them in
the name of zealous advocacy. The proper method for contesting
an adverse ruling is to appeal it, not to violate it.‛ State v. Clark,
2005 UT 75, ¶ 36, 124 P.2d 235. In other words, it is well
20130552-CA 9 2016 UT App 231Iota v. Davco Management Company
recognized that respect for judicial authority is essential to the
orderly functioning of the judicial branch, and the collateral bar
doctrine is a natural corollary. Accordingly, we conclude that the
district court was justified in applying the doctrine in response
to Davco’s late challenge to the validity of the Ex Parte Order.
B. Application of the Collateral Bar Doctrine
¶19 Davco does not contest the district court’s determination
that Davco violated the Ex Parte Order for nearly eighteen
months without challenging it. Rather, Davco argues that the
collateral bar doctrine does not apply here because the order was
beyond the district court’s jurisdiction and was transparently
invalid. We disagree.
1. The District Court’s Jurisdiction
¶20 The collateral bar doctrine requires a party to heed a valid
court order unless and until it is reversed by orderly judicial
proceedings. However, an order is not valid if the order
‚exceeded the district court’s jurisdiction.‛ United States v. Cutler,
58 F.3d 825, 832 (2d Cir. 1995). Stated affirmatively, the court
must be operating within its jurisdiction for an order to be valid.
Liquor Control Comm'n v. McGillis, 65 P.2d 1136, 1140 (Utah 1937);
see also United States v. United Mine Workers of Am., 330 U.S. 258,
293 (1947) (indicating that only ‚an order issued by a court with
jurisdiction over the subject matter and person must be
obeyed‛). This follows naturally from the essential nature of
jurisdiction—without subject matter jurisdiction over a case and
personal jurisdiction over a party, a court is literally powerless.
E.g., State v. Rhinehart, 2007 UT 61, ¶ 19, 167 P.3d 1046(discussing subject matter jurisdiction). See generally 56 Am. Jur.
2d Motions, Rules, and Orders § 47 (2016) (explaining that subject
matter jurisdiction and personal jurisdiction are necessary
prerequisites to establishing a court’s authority). Thus, the
collateral bar doctrine acknowledges an essential exception: if a
court lacks either subject matter or personal jurisdiction, then its
orders are unenforceable and need not be followed. Otherwise,
they must. As a result, the only way a party can successfully
20130552-CA 10 2016 UT App 231Iota v. Davco Management Company
attack an order ‚which he is charged with refusing to obey‛ is if
the party can ‚show it to be absolutely void.‛ Liquor Control
Comm'n, 65 P.2d at 1140–41 (citing Utah Power & Light Co. v.
Richmond Irrigation Co., 13 P.2d 320, 324 (Utah 1932)).
¶21 This distinction—between orders that are void for lack of
jurisdiction (or, void ab initio) and those that are merely
voidable based on error—makes a difference. ‚Errors other than
lack of jurisdiction render the judgment merely voidable, and a
voidable judgment can only be challenged on direct appeal.‛
Bangerter v. Petty, 2010 UT App 49, ¶ 8, 228 P.3d 1250 (citation
and internal quotation marks omitted) (distinguishing between
void and voidable in the property context). Thus, an order
issued by a court lacking jurisdiction is void and differs in kind
from an order issued in error by a court with jurisdiction, which
is merely voidable. A void order may be attacked collaterally at
any time because the court was powerless to issue it in the first
place; the collateral bar doctrine does not apply. On the other
hand, a voidable order may only be challenged directly; the
doctrine precludes an untimely attack on its validity. For
purposes of this case, that means that we need only determine if
the district court lacked subject matter or personal jurisdiction
when it issued the Ex Parte Order. If it lacked either, then the Ex
Parte Order was void ab initio and no contempt could lie.
Otherwise, the Ex Parte Order was at best voidable, and a
challenge made after violating it would be untimely and amount
to a collateral attack precluded by the collateral bar doctrine.
¶22 Here, there is no dispute that the court had subject matter
jurisdiction over the case as well as personal jurisdiction over
Davco at the time the Ex Parte Order was entered. ‚In
determining whether a court has subject matter jurisdiction, we
focus on whether the court has authority over the general class
of cases to which the particular case at issue belongs, rather than
on the specific facts presented by any individual case.‛ In re
adoption of Baby E.Z., 2011 UT 38, ¶ 33, 266 P.3d 702. This case
was a civil matter within the general jurisdiction of the district
court. Utah Const. art. VIII, § 5; Utah Code Ann. § 78A-5-102(1)
20130552-CA 11 2016 UT App 231Iota v. Davco Management Company
(LexisNexis 2012); see also Utah Code Ann. § 78A-2-201
(LexisNexis 2012) (allowing courts to ‚control in furtherance of
justice the conduct of . . . persons in any manner connected with
a judicial proceeding‛). Personal jurisdiction was proper because
the suit related to real estate located in Utah. Utah Code Ann.
§ 78B-3-205 (LexisNexis 2012) (listing ‚the ownership, use, or
possession of any real estate situated in this state‛ as sufficient to
confer personal jurisdiction). In addition, both Davco
Management and Fisher were properly served with process and,
later, with the Ex Parte Order itself. Finally, Utah Code section
78A-2-201, as well as Utah Rule of Civil Procedure 67, authorize
district courts to enter orders of the Ex Parte Order’s kind.
¶23 Davco’s argument that the ‚specific facts presented‛ by
Iota were legally insufficient to support the Ex Parte Order does
not implicate the court’s essential jurisdiction over the subject
matter of the case or personal jurisdiction over the parties.
Rather, it is simply a claim that the court erred in applying a rule
of procedure. Accordingly, we conclude that the Ex Parte Order
was not void ab initio and Davco’s untimely challenge to its
validity was barred by the collateral bar doctrine.
2. Transparently Invalid Orders
¶24 Davco also argues that the Ex Parte Order fits into an
exception to the collateral bar rule because it so obviously failed
to meet the requirements of Utah Rule of Civil Procedure 67 that
it was transparently invalid. In support of the transparently
invalid exception, Davco points us to United States v. Terry,
which notes that ‚[a]n order is transparently invalid when the
issuing court ‘is acting so far in excess of its authority that it has
no right to expect compliance and no interest is protected by
requiring compliance.’‛ 802 F. Supp. 1094, 1101 (S.D.N.Y. 1992)
(quoting In re Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir.
1986)). This exception is described elsewhere as well: ‚A limited
exception to the collateral bar rule is made in those extremely
rare cases where the order may be transparently invalid.‛ 17
C.J.S. Contempt § 24 (2016). But the exception comes with a
significant proviso that limits its application: ‚As a general rule,‛
20130552-CA 12 2016 UT App 231Iota v. Davco Management Company
if there was ‚any pretense to validity at the time *the order+ was
issued, the reviewing court should enforce the collateral bar
rule.‛ Terry, 802 F. Supp. at 1101 (citation and internal quotation
marks omitted).
¶25 It is difficult to see a meaningful distinction between the
void ab initio exception discussed above and a transparent
invalidity exception that requires the disputed order ‚to have
had *no+ pretense to validity at the time it was issued.‛ See
United States v. Mourad, 289 F.3d 174, 178 (1st Cir. 2002). But
whatever legal daylight there may be between the two
exceptions in concept, application of a separate transparent
invalidity exception seems foreclosed by our supreme court,
which has plainly stated that ‚disobedience of an order made by
a court within its jurisdiction and power is a contempt, [even if]
the order [is] clearly erroneous.‛ Liquor Control Comm'n, 65 P.2d
at 1140 (citation and internal quotation marks omitted). The
supreme court underscored this point when it stated:
A party may question the order which he is
charged with refusing to obey, only insofar as he
can show it to be absolutely void; he cannot be
heard to say that it is merely erroneous, however
flagrant it may appear to be since judgments of
courts cannot be attacked collaterally for mere
irregularities.
Utah Power & Light Co. v. Richmond Irrigation Co., 13 P.2d 320, 324
(Utah 1932) (citation and internal quotation marks omitted). In
the apparent absence of any intervening shift in approach, the
mere passage of time since the court made these
pronouncements does not diminish their claim on our allegiance.
¶26 In any event, we do not need to decide whether Utah
would recognize a separate transparently invalid exception
because Davco has not complied with a condition precedent to
its invocation. A party who seeks the protection of this exception
‚must make some good faith effort to seek emergency relief from
20130552-CA 13 2016 UT App 231Iota v. Davco Management Company
the appellate court‛ before violating the subject order. United
States v. Cutler, 58 F.3d 825, 832 (2d Cir. 1995) (citation and
internal quotation marks omitted). Davco did not do that here.6
¶27 In sum, because the order was well within the district
court’s subject matter jurisdiction, and because Davco took no
action to challenge the Ex Parte Order before violating it, we see
no error in the district court’s determination that the collateral
bar doctrine prevented Davco from challenging the validity of
the Ex Parte Order in the contempt proceeding.
II. The District Court’s Contempt Decision
¶28 Davco next argues that the district court abused its
discretion by finding Davco in contempt for violating the Ex
Parte Order. The arguments challenge both the substantive
merits of the district court’s decision and the regularity of the
6. And even if we were to reach the merits of Davco’s
transparent invalidity argument, the result would not be a close
call. The arguments that Davco now makes about the Ex Parte
Order’s invalidity focus on the legal requirements of Utah Rule
of Civil Procedure 67 and whether the Ex Parte Order was
justified under the circumstances. But even if the court erred in
granting issuing the order, a question we do not decide here, it is
neither manifest nor obvious from the contents of the order
itself. The Ex Parte Order simply directs Davco to deposit the
same rents into court that Davco was already obligated to pay to
Iota under the trust deeds after default. Such an order is not on
its face an unusual exercise of judicial authority; it certainly does
not fit within the rare category of court orders which can be said
to have no pretense to validity or were issued so far in excess of
the court’s authority that it had no right to expect compliance.
Indeed, Davco itself concedes on appeal that it ‚believed the Ex
Parte Order to be valid until shortly before the trial began‛ and
did not modify that view until long after it had violated the
order.
20130552-CA 14 2016 UT App 231Iota v. Davco Management Company
postremand process by which the court reached its decision.7 On
the merits, Davco argues that the district court had no basis for a
contempt finding, first, because the language of the Ex Parte
Order was unclear and ambiguous about what was required,
and second, Davco could not comply with the order based on
Davco’s reasonable interpretation of the order. Regarding the
post-remand contempt proceedings, Davco contends that the
district court improperly affirmed its prior contempt order,
which had been overturned in Iota I and (apparently in the
alternative) that the court erred in taking judicial notice of
evidence and findings from the prior proceedings to support its
contempt finding on remand.
¶29 ‚*An appellate court’s+ review of a contempt citation
involves two questions: first, whether the underlying order is
lawful; and second, whether the party’s conduct in violating the
order constitutes contempt of court.‛ Utah Farm Prod. Credit
Ass’n v. Labrum, 762 P.2d 1070, 1074 (Utah 1988). On the
lawfulness question, we have already determined that Davco is
barred from challenging the validity of the Ex Parte Order after
violating it. On the conduct question, to hold Davco in contempt
the court had to find that Davco ‚knew what was required, had
the ability to comply, and intentionally failed or refused to do
so.‛ Summer v. Summer, 2012 UT App 159, ¶ 8, 280 P.3d 451(citation and internal quotation marks omitted). ‚When the
contempt is not committed in the immediate view and presence
of the court or judge, we review a district court’s findings of fact
for clear error and apply a correction of error standard to our
review of the district court’s legal determinations.‛ Valerios Corp.
v. Macias, 2015 UT App 4, ¶ 10, 342 P.3d 1127 (citation and
internal quotation marks omitted).
7. Davco attacks the district court’s contempt holding in issues
one, three, four, and eight of its opening brief.
20130552-CA 15 2016 UT App 231Iota v. Davco Management Company
A. Davco’s Challenge to the Ex Parte Order and Contempt
Judgment
¶30 Davco argues that the district court ‚abused its discretion
by finding Davco and Mr. Fisher in contempt of court.‛8 This
argument rests on Davco’s contention that the Ex Parte Order
was ambiguous and that Davco reasonably interpreted it to
apply only to rent money Davco had in hand when the order
issued and not to rents collected thereafter. Based on this
interpretation, Davco claims that it was impossible to comply
because it had no rent money in its possession on the date the Ex
Parte Order issued and, as a result, it could not have
intentionally violated the order. The district court concluded,
however, that the language of the Ex Parte Order was
unambiguous—it required Davco to deposit in court all rents
collected from the properties after the order’s date—and that
Davco understood what the order required but chose to disobey
it. We find no fault with the district court’s determination.
¶31 The Ex Parte Order states that ‚Defendants Davco
Management Company LC and David Fisher shall deposit all
rents collected from the real property . . . with the clerk of the
court.‛ Davco argues that the term ‚rents collected‛ is
susceptible to several reasonable interpretations, only one of
which would make Davco’s failure to deposit rents a violation of
the order, thus leaving Davco with a ‚reasonable basis for
doubt‛ regarding its responsibilities.9 Cf. Salt Lake City v.
8. Davco addresses this point in issues one and three of its
opening brief.
9. On appeal, Davco addresses each word in this phrase
separately, asserting that each is ambiguous in its own right. But
Davco never asserted the distinct ambiguity of the word ‚rents‛
in the district court. Therefore, Davco’s separate argument about
the ambiguity of ‚rents‛ on appeal is not preserved and we do
not address it. See Patterson v. Patterson, 2011 UT 68, ¶ 17, 266
(continued<)
20130552-CA 16 2016 UT App 231Iota v. Davco Management Company
Dorman-Ligh, 912 P.2d 452, 455 (Utah Ct. App. 1996) (‚To be
enforced, an order must be sufficiently specific and definite as to
leave no reasonable basis for doubt regarding its meaning.‛).
Davco proposes that the term ‚rents collected‛ could have three
plausible meanings: (1) all rents collected from the time Davco
purchased the apartment complexes to the date of the Ex Parte
Order; (2) all rents from the date Davco stopped payments on
the Promissory Notes to the date of the Ex Parte Order; or (3) all
rents collected from the time the Ex Parte Order was entered to
the termination of the lawsuit or rescission of the order.
¶32 Under the first two readings, the court’s directive applied
only to a snapshot in time—rents Davco physically held at the
moment the Ex Parte Order issued—and thus, Davco reasons, it
could not have violated the order because it had no rents in hand
at that precise moment. Davco asserts that it reasonably
understood its obligation to deposit rents with the court to apply
(2016 UT App 231Iota v. Davco Management Company
only to rents it possessed at the time of the order because the Ex
Parte Order stated that it applied to ‚all rents collected,‛ using
the past-tense form of ‚collect.‛ Davco therefore contends the
word ‚collected‛ is ambiguous as used in the Ex Parte Order,
and that the court erred by interpreting it to unambiguously
apply prospectively.
¶33 Generally, we interpret language in judicial documents in
the same way we interpret contract language. See Williams v.
Miller, 794 P.2d 23, 26 (Utah Ct. App. 1990) (‚If the language of a
judgment is obscure or ambiguous, the rules that apply to the
construction of ambiguous contracts apply.‛). ‚An order is
ambiguous if it is subject to two plausible constructions.‛
Progressive Acquisition, Inc. v. Lytle, 806 P.2d 239, 243 (Utah Ct.
App. 1991). But ‚words and phrases do not qualify as
ambiguous simply because one party seeks to endow them with
a different interpretation according to his or her own interests.‛
Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 17, 133 P.3d 428. Rather,
‚[t]o be ambiguous, both interpretations must be plausible in the
context of the *order+ as a whole.‛ Merrick Young Inc. v. Wal-Mart
Real Estate Bus. Trust, 2011 UT App 164, ¶ 18, 257 P.3d 1031.
Therefore, we look both at the language of the Ex Parte Order
‚as a whole and to the circumstances, nature, and purpose of the
[order]‛ to determine its meaning. Peirce v. Peirce, 2000 UT 7,
¶ 19, 994 P.2d 193.
¶34 Davco has not persuaded us that the phrase ‚rents
collected‛ in the Ex Parte Order can be reasonably read to
exclude those rents it collected after the order’s entry. The
district court stated,
the Court understands this order to mean as of the
fourth of November, 2008—actually, as of service
upon Mr. David Fisher, that the rents collected on
those two properties thereafter would be paid into
the clerk of the court. I think that’s the plain
reading of the order. It does not have the lengthy
language in it that an insurance company might
20130552-CA 18 2016 UT App 231Iota v. Davco Management Company
want in their policies, but it’s pretty direct and
pretty clear from the Court’s order.
We agree with the district court. The Ex Parte Order provides
that Davco ‚shall deposit all rents collected . . . .‛ In context,
reading this phrase to include rents already collected but to
exclude rents yet to be collected is not plausible because the
order contains no language limiting its application to rents
already collected, previously collected, or heretofore collected.
And rents that will be received in the future fall naturally within
the meaning of ‚collected,‛ which the court used in its adjectival
form—meaning ‚gathered together‛10—rather than as a past-
tense rendition of the verb ‚to collect.‛ Thus, while the term
includes rents already collected and in hand, it also plainly
encompasses rents that may be collected in the future. This
reading is reinforced by language in the same paragraph
providing that ‚*t+his order shall remain in effect during the
pendency of this action, or until further order of the Court.‛
Given this clear description of the time frame in which the order
would hold sway, ‚rents collected‛ cannot reasonably be
interpreted to exclude rents that will be ‚collected‛
prospectively, that is, ‚during the pendency‛ of the case. In
other words, the Ex Parte Order required Davco to hand money
over to the court every time it collected rent, not just to hand
over rent money it had already collected and had in hand on
whatever day the order happened to arrive.11
10. Collected, Merriam-Webster.com, http://www.merriam-
webster.com/dictionary/collected [https://perma.cc/PP87-65V9].
11. This interpretation was applied by the district court, which
calculated the contempt damages as the amount of money that
Davco improperly collected between being served with the Ex
Parte Order and the foreclosure sale. The court did not find that
Davco had previously collected rent money in hand at the time
of the Ex Parte Order.
20130552-CA 19 2016 UT App 231Iota v. Davco Management Company
¶35 Additionally, another provision of the Ex Parte Order
required all tenants of the two apartment properties to ‚deposit
their rent checks with the clerk of the court . . . until further
order of the court.‛ It is impossible to reconcile Davco’s
contention that the Ex Parte Order did not require it to deposit
‚rents collected‛ from tenants during the pendency of the
litigation with the tenants’ ongoing obligation to pay rents to the
court. That is, no reasonable interpretation of the Ex Parte Order
as a whole can allow Davco to treat rent money as having
escaped the reach of the order simply because a tenant happened
(whether through ignorance, inadvertence, or confusion) to pay
rent to Davco instead of depositing it with the court. Cf. Peterson
& Simpson v. IHC Health Services, Inc., 2009 UT 54, ¶ 13, 217 P.3d
716 (explaining that ‚we look for a reading that harmonizes the
provisions and avoids rendering any provision meaningless‛
(citation and internal quotation marks omitted)).
¶36 Further, Davco’s own actions belie its argument that it did
not understand what the Ex Parte Order required. For example,
in March of 2009, after Iota had reacquired the two apartment
properties at the foreclosure sale, Davco signed a Stipulated
Order stating that ‚*t+he Ex Parte Order required that Defendant
and the tenants pay rents to the Court ‘during the pendency of
this action or until further order of the Court.’‛ The Stipulated
Order went on to say that, as a result of the foreclosure sale,
‚there is no longer a need for rents to be paid directly to the
Court during the pendency of this action.‛ This language
strongly suggests that Davco understood the Ex Parte Order just
as the court later interpreted it. And some months later in
response to the district court’s admonishment at a hearing in
August 2009, Davco paid almost $34,000 into court for rents
collected after November 2008 without raising any claim that the
Ex Parte Order was not prospective in nature.
¶37 Thus, we agree with the district court’s conclusion that
‚*t+he language of the Ex Parte Order was clear and
unequivocal.‛ The Ex Parte Order was not ambiguous, and the
court did not abuse its discretion when it concluded that Davco
20130552-CA 20 2016 UT App 231Iota v. Davco Management Company
‚knew what was required, had the ability to comply, and
intentionally failed or refused to do so.‛ Summer v. Summer, 2012
UT App 159, ¶ 8, 280 P.3d 451 (citation and internal quotation
marks omitted). In addition, the court’s determination that
Davco understood the requirements of the Ex Parte Order and
knowingly disobeyed it is fully supported by the record.
B. The District Court’s Proceedings
1. The District Court’s Treatment of the Preremand
Contempt Judgment
¶38 The district court’s contempt decision on remand
included the statement, ‚The prior Judgment for contempt
against Davco and David Fisher stands and is affirmed.‛ Davco
contends that the district court erred in simply reaffirming a
decision that had been vacated by this court on appeal in Iota I.
But Davco’s argument ignores context, and the context in which
the district court’s statement appears shows that the court did
not simply reaffirm the prior vacated judgment. In full, the
paragraph containing the sentence relied on by Davco states:
Further, the Court’s Ex Parte Order was valid and
enforceable even if Defendants could challenge it.
The prior judgment against Davco and David Fisher
stands and is affirmed. This Court had both subject
matter and personal jurisdiction to issue the Ex
Parte Order. The language of the Ex Parte Order
was clear and unequivocal that rents were to be
deposited with the Clerk of the Court and the Ex
Parte Order remained in effect during the
pendency of this action, or until further order of
the Court.
(Emphasis added.) This paragraph responds to Davco’s
arguments on remand that it could not and should not be held in
contempt; it is not a simple affirmance of the prior judgment.
And the surrounding paragraphs of the court’s decision support
20130552-CA 21 2016 UT App 231Iota v. Davco Management Company
that conclusion—they show a judge engaging in renewed
analysis of the evidence and the law and concluding again that
Davco was in contempt for violation of the Ex Parte Order. Thus,
it is apparent that by saying ‚*t+he prior judgment . . . stands and
is affirmed,‛ the court was not expressing an intention to
resurrect the judgment that we vacated in Iota I. Rather, the court
was simply reaffirming the substantive merit of its earlier
conclusions about the validity of the Ex Parte Order in response
to renewed arguments from Davco. Indeed, on remand the
district court held a new evidentiary hearing and considered
new briefing and arguments from the parties, as well as
additional testimony. Accordingly, because the district court did
not purport to simply reinstate the prior contempt judgment,
Davco’s arguments on appeal rest on a faulty premise and
consequently fail.
2. Judicial Notice of the Preremand Contempt Proceedings
¶39 On remand, Iota requested that the district court take
judicial notice of significant portions of the preremand contempt
proceedings. The court agreed and, in addition to taking judicial
notice of the specific documents and proceedings that Iota
enumerated, the court stated that all aspects of the initial
contempt proceedings ‚except for those portions reversed by the
Court of Appeals are the law of the case.‛ Davco argues that ‚the
trial court abused its discretion in taking judicial notice of all the
facts, orders, and documents in the principal case,‛ including the
prior ‚Findings of Fact and Conclusions of Law, all of [the]
Exhibits, all of its orders, depositions, affidavits, and all
pleadings, etc.‛12
12. The district court used both ‚judicial notice‛ and ‚law of the
case‛ in describing its consideration of preremand proceedings.
Although there is a difference in meaning between those terms
of art, the distinction is irrelevant here because Davco’s
argument does not assail the propriety of the district court’s
(continued<)
20130552-CA 22 2016 UT App 231Iota v. Davco Management Company
¶40 The general rule is that ‚*c]ourts may take judicial notice
of the records and prior proceedings in the same case.‛ Riche v.
Riche, 784 P.2d 465, 468 (Utah Ct. App. 1989); see also State v.
Shreve, 514 P.2d 216, 217 (Utah 1973) (noting that judicial notice
of prior proceedings is appropriate ‚insofar as those records are
a part of the matter before the court‛). A court may take judicial
notice of prior proceedings on its own accord, Utah R. Evid.
201(c)(1), and is required to take judicial notice of adjudicative
facts ‚if a party requests it and the court is supplied with the
necessary information,‛ id. R. 201(c)(2). Furthermore rule 201(d)
states, ‚The court may take judicial notice at any stage of the
proceeding.‛ Davco argues the district court erred in taking
judicial notice of aspects of the prior proceedings on two
grounds: first, the contempt proceeding on remand was a
separate case not properly the subject of judicial notice and,
second, the earlier proceedings were null and void, so there were
no valid records to consider.
¶41 Davco’s first contention is unpersuasive given that this
court specifically ordered a ‚remand to the trial court for
additional proceedings*+ on the contempt matter‛ in Iota I. 2012
UT App 218, ¶ 40, 284 P.3d 681. It is difficult to conceive of
‚additional proceedings‛ in the same case and on the same
subject matter amounting to a ‚different case‛ for purposes of
judicial notice.
¶42 Equally unpersuasive is Davco’s contention that the
district court’s judicial notice of the preremand contempt
(2016 UT App 231Iota v. Davco Management Company
proceedings was improper because the earlier proceedings were
null and void. Davco’s argument rests on the unstated premise
that, when we vacated ‚the trial court’s contempt rulings against
Davco and Fisher for lack of jurisdiction,‛ id. ¶ 40, we were
talking about subject matter jurisdiction in its fundamental
sense—the court’s essential authority to act in the area of the law
at issue. We were not. Rather, we used the term ‚jurisdiction‛ in
the broader procedural sense, where a court’s ability to conduct
a particular proceeding or grant a specific remedy—otherwise
within its authority—is curtailed because a legal requirement
has not been fulfilled.
¶43 That conclusion is apparent in our analysis in Iota I, which
turned on an element of the contempt statute in Utah Code
section 78B‐6‐302(2). Id. ¶¶ 34–35. There, we held that Iota’s
contempt efforts were not ‚sufficient under the statute to confer
jurisdiction‛ because no supporting affidavit had been filed. In
essence, we used ‚jurisdiction‛ as shorthand to indicate a
procedural problem—the unsatisfied affidavit element of the
statute—which prevented the court from acting under the
circumstances, not to indicate that the court lacked jurisdiction
over the subject matter of the prior contempt proceeding. And
while we, like other courts, sometimes use ‚jurisdiction‛ as a
generic term, the difference between procedural jurisdiction and
the subject matter jurisdiction essential to a court’s exercise of its
bedrock authority is critical.
¶44 ‚Subject matter jurisdiction concerns a court’s power to
hear a case. ‘A court has subject matter jurisdiction if the case is
one of the type of cases the court has been empowered to
entertain by the constitution or statute from which the court
derives its authority.’‛ State v. Smith, 2014 UT 33, ¶ 18, 344 P.3d
573 (quoting Myers v. State, 2004 UT 31, ¶ 16, 94 P.3d 211); see also
20 Am. Jur. 2d Courts § 68 (2016) (‚Subject matter jurisdiction
does not depend on the particular parties in the case or on the
manner in which they have stated their claims . . . .‛). Put
simply, subject matter jurisdiction concerns a court’s broad
authority to hear the sort of case before it, whereas Iota I’s use of
20130552-CA 24 2016 UT App 231Iota v. Davco Management Company
the term ‚jurisdiction‛ simply expressed its concern about the
district court’s ability to reach a decision or grant given relief
when a procedural prerequisite—submission of a supporting
affidavit—had not been met. Cf. 14302 Marina San Pablo Place
SPE, LLC v. VCP-San Pablo, Ltd., 92 So. 3d 320, 321 (Fla. Dist. Ct.
App. 2012) (per curiam) (Ray, J., concurring) (‚This species of
jurisdiction . . . has also been referred to as ‘procedural
jurisdiction,’ meaning a court’s authority to act in a particular
case.‛ (footnote omitted)); In re J.J., 855 N.E.2d 851, 855 (‚In a
court that possesses subject-matter jurisdiction, procedural
irregularities . . . affect the court’s jurisdiction over the particular
case and render the judgment voidable, not void.‛).
¶45 Here, Iota’s failure to file an affidavit as required by the
contempt statute falls into the second category. The lack of an
affidavit did nothing to divest the court of subject matter
jurisdiction over the prior contempt proceeding; contempt
proceedings under Utah Code section 78B‐6‐301 are clearly
within a district court’s subject matter jurisdiction. Instead, the
problem was procedural in nature. Our holding in Iota I meant
merely that the court could not legally enter the contempt
judgment because a condition precedent to the contempt
process—the filing of an appropriate affidavit—had not
occurred.13 Thus, the contempt judgment from the first
proceeding was voidable on procedural grounds rather than
void for lack of subject matter jurisdiction, and our decision in
Iota I cannot be read more broadly. Because Davco’s argument
rests on the incorrect premise that the contempt proceedings
were void for want of essential jurisdiction, we are not
persuaded that the district court erred in taking judicial notice of
the preremand contempt proceedings.
13. On remand, Iota filed the Murset Affidavit, dated September
12, 2012, which the court found was sufficient to meet the
statutory requirements. Davco has not challenged this decision.
20130552-CA 25 2016 UT App 231Iota v. Davco Management Company
¶46 In sum, we conclude that the language of the Ex Parte
Order was unambiguous and supported the district court’s
contempt determination. Also, Davco has not demonstrated that
the court’s proceedings on remand were improper. The court did
not simply affirm its prior decision, and the court’s judicial
notice of the prior proceedings fit well within a district court’s
purview under Utah law.
III. Damages and Attorney Fees
¶47 Davco challenges the district court’s award of damages
and attorney fees on three grounds: first, that the court should
not have awarded damages at all; second, that the court
improperly denied Davco the opportunity to rebut Iota’s
damages calculation; and third, that the court erred in awarding
attorney fees for the preremand contempt proceedings.14 We
address each in turn and review all three under an abuse of
discretion standard, as Davco urges. E.g., Valerios Corp. v. Macias,
2015 UT App 4, ¶ 11, 342 P.3d 1127 (‚We review a district court’s
entry of contempt sanctions for an abuse of discretion.‛).
A. Davco’s Challenge to the District Court’s Damages Award
¶48 Davco argues that the trial court should not have
awarded Iota damages at all. The crux of this contention appears
to be the principle that money damages can only be issued in a
contempt proceeding ‚[i]f an actual loss or injury to a party in an
action . . . is caused by the contempt.‛ In re Cannatella, 2006 UT App
89, ¶ 7, 132 P.3d 684 (citation and internal quotation marks
omitted); see also Utah Code Ann. § 78B-6-311(1) (LexisNexis
Supp. 2016). Relying on that point, Davco asserts that ‚the cause
of *Iota’s+ injury is the failure by Davco to assign rents to *Iota+,‛
not Davco’s failure to obey the Ex Parte Order. As we
understand it, Davco’s contention is that the Ex Parte Order
14. Davco raises these arguments in issues two, five, and nine of
its opening brief.
20130552-CA 26 2016 UT App 231Iota v. Davco Management Company
simply restated the obligation Davco already had under the trust
deeds themselves to deliver assigned rents to Iota after default
on the notes. Thus, according to Davco, Iota was damaged in the
first instance by Davco’s breach of the trust deed obligations,
and any failure to deposit the rents in court in accordance with
the Ex Parte Order was simply incidental. Under this reasoning,
the court could not award damages in the amount of withheld
rents because any loss of that sort was a result of Davco’s breach
of the trust deeds’ assignments of rents, not contempt of the Ex
Parte Order.
¶49 This argument rests on Davco’s attempt to treat the Ex
Parte Order as simply a replication of Davco’s preexisting
obligations under the trust deeds. We reject that characterization
for several reasons, chief among them the crucial distinction
between obligations arising under private contracts and those
arising from a court’s exercise of its authority to control the
proceedings in a case before it. See Utah Code Ann. § 78A-2-201
(LexisNexis 2012) (granting every court the power to ‚control in
furtherance of justice the conduct of its ministerial officers, and
of all other persons in any manner connected with a judicial
proceeding before it in every matter‛).
¶50 Under the deeds of trust, Davco had a private contractual
obligation to pay over rents to Iota after default, and that
obligation existed independent of any court proceeding. But
once the court ordered that rents be deposited with the clerk, the
Ex Parte Order itself established an obligation distinct and
independent from any trust deed requirement because
disobedience of a court order implicates the authority of the
judiciary and transcends the private contractual interests of the
parties from which the order arose. See id. Indeed, this is why
courts are given contempt powers in the first place: ‚One of the
most important and essential powers of a court is the authority
to protect itself against those who disregard its dignity and
authority.‛ 17 Am. Jur. 2d Contempt § 1 (2016). Thus, by design
and necessity a court’s orders are of different substance and of
higher dignity than private contract rights.
20130552-CA 27 2016 UT App 231Iota v. Davco Management Company
¶51 In this case, the Ex Parte Order also created duties
separate and distinct from any obligation that Davco already
had under the trust deed. As soon as it was entered and served,
the Ex Parte Order became a second layer of obligation that
superseded any preexisting or contemporaneous responsibility.
In addition to the fact that the Ex Parte Order became
preeminent on entry, it also materially changed Davco’s
obligation.
¶52 Under the assignment of rents in the deeds of trust, after
default Davco was required to pay rents it received from tenants
directly to Iota. But under the Ex Parte Order, Davco was to pay
the rents to the clerk of court. The clerk in effect served as an
escrow agent to preserve during the litigation the contractual
benefit of Davco’s pledge of rents as security under the trust
deeds. Thus, by ignoring the Ex Parte Order, Davco denied Iota
the benefit of having the court receive and hold the pledged
rents for safekeeping. Instead, this ready source of direct
recovery on the future judgment in Iota’s favor was never
funded as the court required and Iota thus lost the most
immediate and effective assurance of the benefit of Davco’s
assignment of rents under the trust deeds. That is, Iota’s injury
from Davco’s noncompliance with the Ex Parte Order was
different from any related injury suffered from Davco’s breach of
the assignment under the trust deeds. Because Davco did not
deposit all the rents with the clerk as directed, Iota lost the
benefit of immediately recovering at least that portion of its
judgment—many tens of thousands of dollars. Instead, Iota must
now collect from Davco through the considerably more
complicated, costly, and uncertain process for collecting on its
judgment.
¶53 Davco also seems to argue, under similar reasoning, that
Fisher cannot be individually liable for damages because Davco
Management, not Fisher, caused the damage by not fulfilling its
obligation to pay over rents under the trust deeds. Again, we
disagree. The Ex Parte Order named both Davco Management
and Fisher, who were both parties to the case at that time. And
20130552-CA 28 2016 UT App 231Iota v. Davco Management Company
even though Fisher was later dismissed from the suit, ‚*c+learly,
a trial court has the power to hold nonparties in contempt if
those parties conspire to frustrate a lawful order of the court.‛
Crank v. Utah Judicial Council, 2001 UT 8, ¶ 25, 20 P.3d 307. Both
Davco Management and Fisher were bound by the Ex Parte
Order, and Fisher, as the member-manager, was the person who
physically collected and then retained the rents that should have
been deposited with the court. Therefore, both Davco
Management and Fisher violated the Ex Parte Order.15
¶54 For these reasons we cannot agree that the Ex Parte Order
had no greater significance than to simply restate Davco’s
existing obligations. We conclude that the district court properly
awarded damages to Iota. Further, we are not persuaded that the
district court improperly found Fisher in contempt or
improperly included him as a party to the contempt judgment.
B. Davco’s Challenge to the District Court’s Calculation of
Damages
¶55 Davco argues that the district court abused its discretion
by denying Davco permission ‚to present evidence showing that
*Iota’s+ calculation of the amount of rents allegedly withheld
*was+ wrong.‛ Specifically, Davco suggests that the district court
15. Davco’s arguments might be more persuasive if the contempt
judgment provided Iota with a double recovery, but the district
court ensured that would not happen. The original deficiency
judgment included a component representing the rents and
other revenues assigned under the trust deeds but not paid over
by Davco between default and foreclosure. The contempt
judgment appeared to overlap the deficiency judgment with
respect to those rents and revenues accruing after the date of the
Ex Parte Order. The court however prevented a windfall to Iota
when it ordered that any damages Iota recovered under the
contempt judgment would offset amounts owed under the
deficiency judgment.
20130552-CA 29 2016 UT App 231Iota v. Davco Management Company
improperly allowed ‚security deposits, late fees, utility
payments, and other payments to be part of ‘rents.’‛
¶56 In support, Davco supplies us with bare citations to the
record related to the court’s decision on this point but does not
provide us with any legal authority or analysis. Davco’s
complete analysis is the assertion that ‚the trial court erred in
denying Davco and Mr. Fisher their right to attack *Iota’s+
calculation of damages‛ because ‚the acts of the trial court, the
Judgment, the Findings of Fact and the Conclusions of Law are
void and the substantive rights of Davco and Mr. Fisher have not
been affected.‛
¶57 We do not understand from Davco’s argument how the
‚acts of the trial court . . . are void,‛ unless the assertion refers to
Davco’s argument in other contexts that the preremand
contempt proceedings were void because the court lacked
jurisdiction over them, a position we have already rejected. Nor
is it apparent how void actions or ‚the substantive rights of
Davco and Mr. Fisher *not having+ been affected‛ should lead us
to conclude that the district court erred in making an evidentiary
ruling at the postremand hearing.
¶58 Without any legal basis or reasoned analysis from Davco
explaining how the court’s evidentiary decision was wrong, it is
impossible for us to conclude that the court abused its discretion.
Where, as here, ‚the overall analysis of the issue is so lacking as
to shift the burden of research and argument to the reviewing
court,‛ we decline to address this issue further and consequently
the district court’s evidentiary ruling stands. Ortega v. Ridgewood
Estates LLC, 2016 UT App 131, ¶ 25, 379 P.3d 18 (citation and
internal quotation marks omitted); Broderick v. Apartment Mgmt.
Consultants, LLC, 2012 UT 17, ¶ 11, 279 P.3d 391 (explaining that
‚*appellate courts+ have discretion to not address an
inadequately briefed argument‛ (citation and internal quotation
marks omitted)).
20130552-CA 30 2016 UT App 231Iota v. Davco Management Company
C. Davco’s Challenge to the District Court’s Attorney Fees
Award
¶59 After again finding Davco in contempt on remand, the
district court awarded Iota all its contempt-related attorney fees
and costs, including those incurred before our reversal and
remand in Iota I. Davco argues that the district court’s attorney
fees award was incorrect for several reasons: (1) Iota was not
entitled to fees incurred in the original contempt proceeding
because it was void; (2) it was improper to award Iota fees for
the contempt proceeding overturned on appeal; (3) Iota did not
apportion or separate its fees correctly; (4) the court allowed Iota
to double bill; (5) Iota’s fees were unreasonable; and (6) the court
improperly allowed costs for photocopying, telephone calls, and
postage. ‚Whether attorney fees are recoverable in an action is a
question of law, which we review for correctness.‛ Home Abstract
& Title Co. v. Am. Pension Services, Inc., 2012 UT App 165, ¶ 2, 282
P.3d 1015 (citation and internal quotation marks omitted). But
‚the trial court has broad discretion in determining what
constitutes a reasonable fee, and we will consider that
determination against an abuse-of-discretion standard.‛ Dixie
State Bank v. Bracken, 764 P.2d 985, 991 (Utah 1988).
¶60 The contempt statute allows the aggrieved party to
recover its ‚costs and expenses.‛ Utah Code Ann. § 78B-6-311(1)
(LexisNexis Supp. 2016). ‚The ‘costs and expenses’ described in
this section include ‘the attorney fees the damaged party
incurred.’‛ Utah Telecomm. Open Infrastructure Agency v. Hogan,
2013 UT App 8, ¶ 31, 294 P.3d 645 (citation omitted); see also
Clarke v. Clarke, 2012 UT App 328, ¶ 29, 292 P.3d 76 (‚Damages
incurred due to another’s contemptuous conduct may include
related attorney fees.‛). Therefore, we agree with the district
court that it had the power to award fees.
1. Fees Awarded from the Original Proceeding
¶61 On remand, the district court awarded Iota all the
attorney fees and costs it incurred in the contempt proceedings
before Iota I. The court did not take new evidence on those fees
20130552-CA 31 2016 UT App 231Iota v. Davco Management Company
but apparently relied on Iota’s original submissions in support of
the court’s earlier attorney fee award. Davco argues that the
court’s award of fees from the preremand proceeding was
improper ‚*b+ecause the trial court did not have subject matter
jurisdiction for the contempt charges.‛ Therefore, according to
Davco, ‚all other acts of the trial court for the contempt charge in
the principal case, including the awarding of attorney fees and
costs, are void.‛ Davco also contends, apparently in the
alternative, that the preremand proceedings were ‚a separate
case.‛ Therefore, Iota ‚had to have its [attorney fees] records
introduced in evidence at the evidentiary hearing . . . for the trial
court to consider them‛ and that Iota ‚failed to introduce‛ such
records.
¶62 Both arguments fail for the reasons we have previously
stated. First, the district court had subject matter jurisdiction
over this case, both before and after remand, and the original
contempt proceedings were therefore not void. And while it is
true that this court vacated the court’s first contempt judgment
in Iota I, we did not disturb any of the associated evidence or
factual findings that led to the judgment. See Iota I, 2012 UT App
218, ¶ 40, 284 P.3d 681. That is, all the evidence and attorney fee
records that supported the original judgment remained intact,
even though the judgment itself was vacated.
¶63 Second, the proceedings before and after remand were
part of the same case. As we explained above, except for the
vacated judgment, the court properly took judicial notice of the
proceedings before remand, including all the documents and
other evidence from the earlier contempt proceedings. As a
result, Iota was not required to again submit its attorney fee
evidence from the original contempt proceeding—all of that
information was properly before the court. Accordingly, we are
not persuaded that the trial court erred by relying on these in
awarding attorney fees for the preremand contempt
proceedings.
20130552-CA 32 2016 UT App 231Iota v. Davco Management Company
2. Fees Awarded for the Motion for Contempt
¶64 After Iota I, on September 17, 2012, Iota restarted the
contempt proceedings by filing an affidavit as required by
statute and again moving the district court to find Davco
Management and Fisher in contempt. Davco contends that Iota is
‚not entitled to attorney fees for *that+ motion for contempt‛
because ‚the trial court denied *Iota’s+ motion.‛ In support,
Davco points out that, in early 2013, the court purportedly
denied a motion for contempt, and according to Davco, the
motion that the court denied was Iota’s postremand motion from
2012. Davco asserts that awarding attorney fees based on a
denied motion is an abuse of discretion. We would agree, but the
record does not support Davco’s assertion.
¶65 The district court did enter an order denying a motion for
contempt in early 2013 as Davco contends, but the court stated
that the denial applied to a motion ‚filed on September 27,
2010.‛ Thus, whatever motion the court purported to deny was
not the pending motion on remand filed in 2012.16 And even if
the court had actually denied the pending 2012 motion for
contempt, that denial was meaningless in the broader context of
the remanded proceedings considered as a whole. On remand,
the court received new briefing on the contempt issue and
conducted a new evidentiary hearing as we have previously
discussed. The court then entered a new contempt judgment.
Thus, even assuming the court had denied the 2012 motion
16. The record is not clear what motion the court intended to
deny with its 2013 order because no motion for contempt was
filed in the original proceeding on September 27, 2010. However,
the court vacated its original contempt judgment pursuant to our
decision in Iota I on the very same day at roughly the same time.
Thus, it is probable that both actions were simply judicial
housekeeping in response to our Iota I decision and the
erroneous date reference was simply a clerical error. Davco has
not attempted to explain the discrepancies.
20130552-CA 33 2016 UT App 231Iota v. Davco Management Company
rather than some other motion as Davco contends, the denial
would have had no meaningful effect because the court
ultimately granted Iota’s contempt motion after further
proceedings. And the court’s attorney fees award for
postremand contempt proceedings was clearly based on that
process and the court’s ultimate decision, rendering the 2012
denial essentially anomalous, if not a nullity.
¶66 Davco also claims that Iota’s ‚motion for contempt was
not warranted by existing law.‛ As we understand it, Davco
contends that it was denied due process because, ‚*b+y filing the
motion for contempt, [Iota] denied Davco and Mr. Fisher of the
right to counsel, the right to confront witness[es], and the right
to offer testimony.‛ Davco, however, does not explain why the
motion was not warranted by law or how it violated due
process.17 Indeed, the record shows that Davco not only had the
opportunity to confront witnesses and offer testimony, but that
Davco in fact did all of those things, and was represented by
counsel when it did so at the contempt hearing. Therefore, we
conclude that awarding attorney fees based on the motion for
contempt was within the court’s discretion and did not violate
Davco’s right to due process.
17. The list of rights Davco claims it was denied includes those
primarily guaranteed to criminal defendants. The Sixth
Amendment to the United States Constitution guarantees
criminal defendants the right to counsel and the right to confront
witnesses. Article I, section 12 of the Utah Constitution
guarantees criminal defendants the right to counsel, to confront
witnesses, and to testify on their own behalf. Davco does not
explain how these rights apply to this civil case, or how the mere
filing of a motion by an adverse party could work a denial of
these rights.
20130552-CA 34 2016 UT App 231Iota v. Davco Management Company
3. The Evidentiary Basis for the Attorney Fees Award
¶67 Davco also asserts that Iota did not properly apportion or
separate out nonrecoverable fees, that it double billed on some
fees, and that the fees were altogether unreasonable. Although it
cites one case to support the basic proposition that recoverable
fees must be separated from nonrecoverable ones, Davco’s brief
contains no record citations that would allow us to understand
its contention as applied to the facts of this case. Likewise, the
double billing portion of the brief provides no record or legal
citation, nor does it attempt to explain what constitutes
impermissible double billing or how we could check for it now.
For instance, Davco appears to argue that two attorneys working
together on a project is per se double billing, but collaboration is
a common practice in litigation and is not a basis for rejecting an
attorney fees request standing alone. Davco also asserts that the
fees award was unreasonable because Iota billed more than
seventeen hours to oppose Davco’s motion to strike the Ex Parte
Order. Again, this section of Davco’s brief does not cite to the
record and offers only the conclusory allegations that Iota ‚did
not perform any new legal work‛ and instead ‚copied their prior
pleadings.‛
¶68 As explained above, we do not address issues that are
inadequately briefed. See supra ¶¶ 55–57. Because Davco
supplied no reasoned analysis based on legal authority for its
assertion that the fees were unreasonable, we decline to further
address these points. See Broderick v. Apartment Mgmt.
Consultants, LLC., 2012 UT 17, ¶ 11, 279 P.3d 391 (explaining that
‚*appellate courts+ have discretion to not address an
inadequately briefed argument‛ (citation and internal quotation
marks omitted)).
4. Accounting for the Costs Awarded
¶69 Finally, Davco asserts that the court improperly awarded
Iota the costs of photocopying, long-distance calls, and postage.
We again conclude that Davco has failed to ‚do the heavy
lifting‛ required for us to reach the merits of its argument. State
20130552-CA 35 2016 UT App 231Iota v. Davco Management Company
v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448. For instance, Davco
uses Stevensen 3rd East, LC v. Watts to support the proposition
that copying, phone calls, and postage are not the proper subject
of an award of costs. 2009 UT App 137, ¶ 68, 210 P.3d 977.
However, Watts only mentions photocopying, not phone calls
and postage, and Davco itself explains that the Watts decision
arose under Utah Rule of Civil Procedure 54, not under the
contempt statute, which was the basis for the judgment here. The
contempt statute provides that the court may order payment of
‚a sum of money sufficient to indemnify and satisfy the
aggrieved party’s costs and expenses.‛ Utah Code Ann. § 78B-6-
311(1) (LexisNexis Supp. 2016).
¶70 Without more explanation from Davco, we are not
persuaded that the facially dissimilar phrases ‚a sum of money
sufficient to indemnify and satisfy the aggrieved party’s costs
and expenses‛ under the contempt statute should be interpreted
to mean the same thing as ‚those fees which are required to be
paid to the court and to witnesses‛ under rule 54. Compare id.,
with Watts, 2009 UT App 137, ¶ 63 (defining ‚costs‛ for purposes
of rule 54). As a consequence, we are not persuaded that the
district court erred in awarding costs to Iota.
IV. Attorney Fees on Appeal
¶71 As a final matter, we address Iota’s request for an award
of attorney fees and costs on appeal. ‚The general rule is that
when a party who received attorney fees below prevails on
appeal, the party is also entitled to fees reasonably incurred on
appeal.‛ Utah Dep't of Social Services v. Adams, 806 P.2d 1193,
1197 (Utah Ct. App. 1991); see also Utah Transit Auth. v.
Greyhound Lines, Inc., 2015 UT 53, ¶ 64, 355 P.3d 947 (‚We have
recognized in the context of statutory attorney fee awards that
when a party is entitled to attorney fees below and prevails on
appeal, that party is also entitled to fees reasonably incurred on
appeal.‛ (citation and internal quotation marks omitted)). We
therefore award Iota the reasonable attorney fees incurred on
appeal and remand to the district court to determine the
appropriate amount.
20130552-CA 36 2016 UT App 231Iota v. Davco Management Company
CONCLUSION
¶72 We affirm the district court on all issues. The court
correctly applied the collateral bar doctrine and did not abuse its
discretion in finding contempt, in calculating damages, in
entering a judgment against Davco for violation of the Ex Parte
Order, or in awarding attorney fees. We also conclude that Iota
is entitled to the attorney fees required to defend this appeal, in
the amount to be determined by the district court on remand.
20130552-CA 37 2016 UT App 231