American United v. Murray

2022 UT App 105THE UTAH COURT OF APPEALS
AMERICAN UNITED FAMILY OF CREDIT UNIONS,
Appellee,
v.
JASON MURRAY,
Appellant.
Opinion
No. 20200903-CA
Filed August 25, 2022
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 160905326
D. Scott Crook, Attorney for Appellant
Joseph A. Skinner, Attorney for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUSTICE JILL M. POHLMAN and JUDGE RYAN M. HARRIS concurred.1
TENNEY, Judge:
¶1 After Jason Murray defaulted on over $60,000 in loans from
American United Family of Credit Unions (American United),
American United sued Murray to collect. Murray and American
United soon agreed to a stipulated settlement that contained,
among other things, a payment schedule, an attorney fee
provision, and a Confession of Judgment under which American
1. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
American United v. Murray
United could later obtain an ex parte judgment against Murray if
he didn’t comply with the payment schedule.
¶2 Murray defaulted on the payment schedule within a
month of the settlement, so American United obtained a judgment
against Murray pursuant to the Confession of Judgment. But
despite its efforts, American United had considerable difficulty
collecting. After four years of effort, American United filed a
motion to augment the judgment to account for the attorney fees
that it had incurred in its collection efforts. At that point, Murray
filed a motion asking the court to set aside the judgment. The
district court denied Murray’s motion, and it also augmented the
attorney fees award to include the fees that American United had
incurred over the previous two years.
¶3 Murray now challenges both rulings. For the reasons set
forth below, we affirm.
BACKGROUND
Stipulation and Confession of Judgment
¶4 Jason Murray began borrowing money from American
United in 2013. Through what the parties have referred to as Note
I, Murray borrowed $55,091.83, and he used a Mercedes Benz to
secure that note. Through what the parties have referred to as
Note II, Murray borrowed $8,800. Murray also opened two credit
cards with American United, and those cards are referred to in the
record as Visa Card I and Visa Card II.
¶5 Murray failed to timely repay American United for the
notes or his credit card debts. In August 2016, American United
filed a complaint against Murray for, among other things, breach
of the contracts underlying Note I, Note II, Visa Card I, and Visa
Card II. Through an attorney, Murray answered American
United’s complaint.
20200903-CA 2 2022 UT App 105American United v. Murray
¶6 In October 2016, the parties agreed to a “Stipulated and
Conditional Confession of Judgment” (the Stipulation). There, the
parties agreed that the Stipulation was an effort “to avoid the
time, expense, and potential uncertainty of progressing” with
American United’s lawsuit against Murray. The parties further
agreed that the Stipulation was intended “to resolve their
differences upon the terms and conditions stated” in the
Stipulation.
¶7 The Stipulation outlined the outstanding amounts that
Murray owed under Note I, Note II, Visa Card I, and Visa Card II,
as well as the amount of attorney fees that American United had
incurred “in connection with this matter.” Then, in a separate
section titled “Confession of Judgment,” the Stipulation stated,
“Murray agrees to pay American United the sum of $74,871.91
(which sum includes the total amount due under Note I, Note II,
Visa Card I and Visa Card II, plus attorney fees and costs
incurred).”
¶8 The Confession of Judgment also set forth a payment
schedule, and it further stated that if Murray didn’t follow the
schedule, Murray “stipulate[d] to entry of judgment in favor of
American United in the amount of $74,871.91, less any amounts
actually paid by Murray . . . together with interest accruing on the
Judgment Amount at the rates corresponding to” the two notes
and the two Visa credit cards. Note I and Note II were attached to
the Stipulation, and the corresponding interest rate for each was
listed in the notes themselves. The contracts underlying the two
Visa credit cards were also attached to the Stipulation. The
interest rates for the cards were not identified in those respective
contracts; instead, those contracts stated that Murray would be
subject to rates that had previously been provided in a “Credit
Card Account Opening Disclosure.”
¶9 The Confession of Judgment also included a provision that
we’ll refer to as the Waiver of Notice provision. This provision
20200903-CA 3 2022 UT App 105American United v. Murray
provided that if Murray failed to keep up with the payment
schedule, American United would “be entitled to immediately file
this Confession of Judgment with the Court via an ex-parte
motion and affidavit identifying the specific default and the
appropriate Judgment Amount, without any further notice to
Murray, and to the entry of a judgment against Murray for the
total Judgment Amount.”
¶10 In a final section of the Stipulation that was titled
“Additional Provisions,” Murray “represent[ed] and warrant[ed]
that he has had sufficient opportunity to review this Confession
of Judgment, either individually or through counsel of his
choosing, and that he has voluntarily entered into this Confession
of Judgment for its stated purpose.” The Stipulation then
contained electronic signatures from both American United’s
CEO and Murray, with an additional notation indicating that
Murray’s original signature was on file.2
Murray’s Default and the Parties’ Subsequent Motions
¶11 Murray defaulted less than a month after he agreed to the
Stipulation. Shortly after his default, American United filed an ex
parte motion and affidavit with the district court seeking a
judgment against Murray according to the terms of the
2. It is somewhat unclear from the record whether Murray’s
counsel actively participated in the negotiation of the Stipulation
and its accompanying Confession of Judgment. The Stipulation
makes no mention of counsel having done so. But on the other
hand, Murray’s counsel signed it as a notary, and Murray also
specifically represented that he’d had the opportunity to review
the document “either individually or through counsel of his
choosing.” In any event, what ultimately matters for our
resolution is that Murray has never argued that he did not have
the opportunity to review the document with his counsel or that
the electronic signature at its end was not his.
20200903-CA 4 2022 UT App 105American United v. Murray
Stipulation and the Confession of Judgment. In November 2016,
the district court entered a judgment (the Judgment) against
Murray “for the confessed amount of $74,871.91, plus attorney’s
fees of $1,032.00 and costs of $2.00, for a total judgment of
$75,905.91, together with interest accruing at the contract rates
corresponding to Note I, Note II, Visa Card I and Visa Card II.” A
couple of weeks after the Judgment was entered, the district court
entered an Abstract of Judgment, which outlined the principal
amount and attorney fees for the Judgment and stated the
corresponding interest rates for Note I, Note II, Visa Card I, and
Visa Card II. The court’s docket notes that the judge signed the
abstract on December 5, 2016.
¶12 Over the next four years, American United tried to enforce
the Judgment against Murray. Its efforts included a writ of
replevin to repossess the Mercedes Benz, several writs of
garnishment, and various other litigation tools. Despite these
efforts, the notes and Visa credit card debts were still not fully
paid off.
¶13 In August 2020, Murray moved to set aside the Judgment
pursuant to rule 60(b)(4) of the Utah Rules of Civil Procedure,
which provides for relief from judgment when “the judgment is
void.”3 In that motion, Murray made two main arguments.
¶14 Murray first argued that the Judgment had not complied
with rule 58A(i) of the Utah Rules of Civil Procedure. That rule
states that when a confession of judgment is statutorily
authorized, “the party seeking the judgment must” (among other
requirements) file a statement “that the specified sum is due or to
3. Murray also moved to set aside the Judgment under rule
60(b)(6) of the Utah Rules of Civil Procedure. The district court
denied that part of his motion as untimely. Murray doesn’t
challenge that denial on appeal, so we don’t discuss that aspect of
his motion in this opinion.
20200903-CA 5 2022 UT App 105American United v. Murray
become due.” Utah R. Civ. P. 58A(i). Murray argued that because
the Confession of Judgment did not include “the interest rates for
the loans” under Visa Card I or Visa Card II, the Confession of
Judgment had not identified the “specified sum” that he owed as
required by rule 58A(i). From this, Murray asked the court to
grant him relief under rule 60(b)(4), arguing that the error
rendered the Judgment “void in its entirety.”
¶15 Murray’s next argument was more complicated, and it
essentially involved three interdependent parts. According to
Murray: (i) the Utah Consumer Credit Code (UCCC) prohibits
creditors and debtors from entering into confessions of judgment,
see Utah Code Ann. § 70C-2-201 (LexisNexis 2020), so the
Confession of Judgment that he (a debtor) had entered into with
American United (his creditor) was “void”; (ii) “[b]ecause the
Confession of Judgment was unenforceable,” his “waiver of his
right to notice and opportunity to respond” (i.e., the Waiver of
Notice provision) “was also unenforceable”; and as a result, (iii)
the “entry of the Judgment without notice to Mr. Murray violated
his due process rights” because the Judgment was entered in
reliance on the “unenforceable” Waiver of Notice provision.
¶16 A few weeks after Murray filed his motion to set aside the
Judgment, American United filed a motion to augment the
Judgment, asking the court to award it the attorney fees that it had
incurred in its prolonged collection efforts. American United
supported this motion with an affidavit and itemized timesheets.
¶17 The court accepted briefing from the parties on both
Murray’s motion to set aside the Judgment and American
United’s motion to augment the Judgment. In Murray’s
opposition to the motion to augment, he argued that American
United was required to have filed a separate motion to augment
alongside each of its collection efforts during the previous four
years. After a hearing, the district court issued a written order in
which it denied Murray’s motion to set aside the Judgment and
20200903-CA 6 2022 UT App 105American United v. Murray
partially granted American United’s motion to augment the
Judgment.
¶18 With respect to Murray’s motion to set aside the Judgment,
the court disposed of Murray’s rule 58A(i) argument by
emphasizing that the “Utah Supreme Court has made clear that a
judgment is not void merely because it is erroneous.” (Quotation
simplified.) Citing a prior supreme court decision, the district
court held that a judgment is instead void only where “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.” (Quotation simplified.) Since the court was not
persuaded “that the alleged failure to comply with Rule 58A
would result in” a lack of subject matter jurisdiction or a denial of
due process, it “decline[d] to set aside the Judgment” based on the
alleged failure to specify the exact sum Murray owed.
¶19 The court also rejected Murray’s due process argument,
concluding that his due process right to notice was not violated
because he “was served with process on the underlying credit
obligation” before entering into the Stipulation. The court
emphasized that Murray “appeared in the lawsuit, was
represented by counsel, and answered American United’s
complaint.” The court thus concluded that, even if there was some
infirmity in the Waiver of Notice provision, Murray had not been
deprived of his due process rights. As a result, the court held that
the Judgment was not void under rule 60(b)(4) of the Utah Rules
of Civil Procedure.
¶20 Turning to American United’s motion to augment the
Judgment, the district court noted that rule 73(f) of the Utah Rules
of Civil Procedure allows a party to augment its award of attorney
fees “within a reasonable time after the fees were incurred.” The
court then determined “that American United’s request for
attorney fees and costs that it incurred more than two years before
the Motion for Fees was filed was not brought within a reasonable
20200903-CA 7 2022 UT App 105American United v. Murray
time,” so it “disallow[ed]” “attorney fees and costs incurred by
American United prior to August 31, 2018.” But the court also
concluded that American United’s request for fees incurred
during the prior two years was filed within a reasonable time, so
it awarded American United those fees.
¶21 Murray timely appealed both the denial of his motion to
set aside the Judgment and the district court’s partial grant of
American United’s motion to augment the Judgment. In doing so,
Murray also moved to stay the Judgment pending his appeal, and
the district court granted that motion.
ISSUES AND STANDARDS OF REVIEW
¶22 Murray challenges the district court’s denial of his motion
to set aside the Judgment on two grounds. First, Murray argues
that the Judgment was void under rule 60(b)(4) of the Utah Rules
of Civil Procedure because the Confession of Judgment was not
compliant with the requirements set forth in rule 58A(i) of the
Utah Rules of Civil Procedure. Second, Murray argues that the
Waiver of Notice provision was infirm because of a UCCC
violation and that, without a valid waiver of notice, he was
deprived of the notice guaranteed by due process, thereby
rendering the Judgment void under rule 60(b)(4) for this
additional reason. Both arguments implicate our rules of civil
procedure, and we “review a district court’s interpretation and
application of our rules of civil procedure for correctness.” Sanders
v. Sanders, 2021 UT App 122, ¶ 4, 502 P.3d 1230. To the extent that
Murray’s second argument turns on an interpretation of his due
process right to notice, we review that issue for correctness as
well. See State v. Liti, 2015 UT App 186, ¶ 9, 355 P.3d 1078.
¶23 Murray also challenges the district court’s partial grant of
American United’s motion to augment the Judgment to award
additional attorney fees. As explained below, Murray’s specific
challenge turns on an interpretation of our rules of civil
20200903-CA 8 2022 UT App 105American United v. Murray
procedure. We accordingly review this issue for correctness too.
See Sanders, 2021 UT App 122, ¶ 4.
ANALYSIS
I. Motion to Set Aside the Judgment
¶24 Murray argues that the district court should have granted
his motion to set aside the Judgment. Murray’s motion was filed
pursuant to rule 60(b)(4) of the Utah Rules of Civil Procedure,
which allows a court to “relieve a party . . . from a judgment” if
“the judgment is void.” As he did below, Murray argues that the
Judgment was void for two reasons: first, it violated rule 58A(i) of
our rules of civil procedure; and second, the Confession of
Judgment and its Waiver of Notice provision were invalid under
the UCCC, so the court’s entry of the Judgment based thereon
deprived him of due process. We disagree on both fronts.
A. Rule 58A(i)
¶25 Murray first argues that the Judgment is “void because of
its failure to comply with Rule 58A of the Utah Rules of Civil
Procedure.” In Murray’s view, the Confession of Judgment
violated rule 58A(i) because it did not include “the interest rates
for the loans, particularly Visa Card I or Visa Card II.” But we
need not decide whether there was a rule 58A(i) violation because,
even if there was, this alleged violation does not render the
Judgment void for purposes of rule 60(b)(4).
¶26 As noted, a party can obtain relief under rule 60(b)(4) by
showing that “the judgment is void.” Utah R. Civ. P. 60(b)(4). For
purposes of rule 60(b)(4), our supreme court has directed us to
“narrowly construe the concept of a void judgment in the interest
of finality.” Migliore v. Livingston Fin., LLC, 2015 UT 9, ¶ 26, 347
P.3d 394. According to the supreme court, a “judgment is not void
merely because it is erroneous.” Id. (quotation simplified).
20200903-CA 9 2022 UT App 105American United v. Murray
Instead, “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.” Id. (quotation simplified); accord Judson v. Wheeler RV Las
Vegas, LLC, 2012 UT 6, ¶ 18, 270 P.3d 456.4
¶27 Given this, the relevant question is whether the alleged
failure to include a “specified sum” in the Confession of Judgment
as required by rule 58A(i) deprived either the district court of
jurisdiction or Murray of due process. It did not.
¶28 First, on the question of jurisdiction, Migliore held that
under Utah’s rule 60(b)(4), a judgment is void “if the court that
rendered it lacked jurisdiction of the subject matter or parties.”
2015 UT 9, ¶ 26 (quotation simplified). Our courts have since
construed rule 60(b)(4)’s jurisdiction component as encompassing
challenges to both personal jurisdiction and subject matter
jurisdiction. See, e.g., In re Estate of Willey, 2016 UT 53, ¶¶ 14, 20–
38, 391 P.3d 171; Sanders v. Sanders, 2021 UT App 122, ¶¶ 11–12,
4. The supreme court based this limitation, in part, on a treatise
that discussed the similarly worded federal rule 60(b)(4). See
Migliore v. Livingston Fin., LLC, 2015 UT 9, ¶ 26, 347 P.3d 394(citing 11 Charles Alan Wright & Arthur R. Miller, Federal Practice
& Procedure § 2862 (3d ed. 2012)). Consistent with Migliore’s
narrow view of what voidness means under the state rule, the
United States Supreme Court has held that for purposes of the
federal rule, “a motion under Rule 60(b)(4) is not a substitute for
a timely appeal.” United Student Aid Funds, Inc. v. Espinosa, 559
U.S. 260, 270 (2010). Instead, “a void judgment is one so affected
by a fundamental infirmity that the infirmity may be raised even
after the judgment becomes final.” Id. And the Court further
stressed that the “list of such infirmities is exceedingly short;
otherwise, Rule 60(b)(4)’s exception to finality would swallow the
rule.” Id.20200903-CA 10 2022 UT App 105American United v. Murray
502 P.3d 1230; Knight Adjustment Bureau v. Funaro, 2021 UT App
65, ¶¶ 20–21, 495 P.3d 221.
¶29 Murray has not suggested that the court lacked personal
jurisdiction over him. And as for subject matter jurisdiction,
Murray has provided us with no authority establishing that a rule
58A(i) error deprives a court of subject matter jurisdiction. As a
result, he has failed to carry his burden of persuasion as to this
argument, and we could reject it for this reason alone. See Bank of
Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196. But in any event,
we see no basis for accepting it. “Subject matter jurisdiction is a
narrow concept” that, in relevant part, refers to the court’s power
to “adjudicate a class of cases.” Knight Adjustment Bureau, 2021 UT
App 65, ¶ 16 (quotation simplified). But Utah “district courts are
courts of general jurisdiction” and have “general power to hear
all matters civil and criminal so long as they are not excepted in
the Utah Constitution and not prohibited by law.” In re adoption of
B.B., 2017 UT 59, ¶ 143, 417 P.3d 1 (Lee, A.C.J., opinion of the court
on this issue) (quotation simplified). Even if it’s true that rule
58A(i) requires the inclusion of the interest rate in a Confession of
Judgment, we see no basis for concluding that a failure to do so
would somehow deprive the court of its power to adjudicate the
class of cases to which such a suit belongs. Subject matter
jurisdiction therefore was not implicated.
¶30 Second, the alleged error also did not deprive Murray of
the notice guaranteed by due process. In this context, 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.’” Migliore, 2015 UT 9, ¶ 27 (quoting United Student Aid
Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010)). The United States
Supreme Court’s decision in United Student Aid Funds is
instructive. There, the Court considered a case in which the
plaintiff had failed “to serve [the defendant] with a summons and
complaint,” and the Court acknowledged that this failure
20200903-CA 11 2022 UT App 105American United v. Murray
“deprived [the defendant] of a right granted by a procedural
rule.” United Student Aid Funds, 559 U.S. at 272. But even so, the
Court held that this deprivation “did not amount to a violation of
[the defendant’s] constitutional right to due process” because the
party “received actual notice of the filing and contents” at issue
with sufficient time to raise any objection. Id. (emphasis in
original). Because of this, the Court affirmed the denial of a
motion filed under the similar federal rule 60(b)(4). Id.¶31 We reach the same conclusion here. Murray has pointed to
what is arguably a technical defect—namely, that while the
amounts that he owed were identified in the Confession of
Judgment, the interest rates were not. But Murray knew that the
Confession of Judgment didn’t contain those rates, and yet he
signed the Stipulation that they were attached to anyway. He
therefore received notice of the very defect at issue in time to have
objected to it, so due process was satisfied.
¶32 In short, we agree with the district court that Murray has
not shown that the alleged defect in the Confession of Judgment
either deprived the court of jurisdiction or Murray of notice of the
applicable interest rates. As a result, the district court did not err
in denying Murray’s motion to set aside the Judgment under rule
60(b)(4) on this basis.
B. Alleged UCCC Violation and Due Process
¶33 As noted, Murray’s second voidness argument has three
sequential parts: (i) he argues that the UCCC prohibits debtors
and creditors from entering into confessions of judgment; (ii) he
then argues that because the Confession of Judgment was
statutorily prohibited, the Waiver of Notice provision in the
Confession of Judgment was likewise invalid; and (iii) from this,
Murray claims that because there was no valid waiver of notice,
his due process rights were violated when American United later
relied on the Confession of Judgment to obtain the Judgment
through an ex parte motion.
20200903-CA 12 2022 UT App 105American United v. Murray
¶34 We start with a note about what is (and is not) at issue here.
As discussed, Migliore held that rule 60(b)(4) voidness can be
established through either a lack of jurisdiction or a deprivation
of due process. 2015 UT 9, ¶ 26. And while discussing this UCCC-
derived argument in the opening brief, Murray did make passing
reference to subject matter jurisdiction. But his argument focused
on due process. And in his reply brief, Murray faulted American
United for “spend[ing] significant time in [its] briefing arguing
about subject-matter jurisdiction,” stating that his “arguments
have always been rooted in the ineffectiveness of the confession
of judgment at issue to properly waive his right to due process.”
In light of this, we understand Murray to be relying solely on the
due process component of rule 60(b)(4) for his UCCC-derived
argument, so we analyze his claim accordingly. On that front, we
reject Murray’s argument because Murray had actual notice of the
Confession of Judgment in time to have raised any objection to it.
¶35 Again, “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.” Migliore, 2015 UT 9, ¶ 27 (quotation simplified).
And due process is satisfied when a defendant has “actual notice
of all” the claims against him, as well as “ample opportunity to
submit evidence in his defense.” Id.; see also United Student Aid
Funds, 559 U.S. at 272 (explaining that “actual notice” “more than
satisfie[s] [a defendant’s] due process rights”).
¶36 Murray clearly had “actual notice” of the claims against
him. After being served with American United’s complaint,
Murray answered it with the assistance of counsel and asserted
eight affirmative defenses. And more to the point of what’s at
issue here, Murray also had actual notice of the Confession of
Judgment. Again, the Confession of Judgment was part of the
Stipulation, and Murray negotiated, agreed to, and signed the
Stipulation. Moreover, at the close of the Stipulation, Murray
specifically “represent[ed] and warrant[ed] that he has had
20200903-CA 13 2022 UT App 105American United v. Murray
sufficient opportunity to review this Confession of Judgment”
and “that he ha[d] voluntarily entered into this Confession of
Judgment for its stated purpose.”
¶37 Again, a “judgment is not void merely because it is
erroneous,” Migliore, 2015 UT 9, ¶ 26 (quotation simplified), and
a rule 60(b)(4) motion likewise “is not a substitute for a timely
appeal,” United Student Aid Funds, 559 U.S. at 270. If Murray
believed that the Confession of Judgment was legally prohibited
by the UCCC, he could have declined to sign the Stipulation. But
what’s at issue here is a due-process-derived lack-of-notice
argument under rule 60(b)(4). And on this, it’s clear that Murray
had actual notice of the Confession of Judgment and ample
opportunity to object to its terms. See Migliore, 2015 UT 9, ¶ 27. He
therefore has not shown that the Judgment that was obtained
from it violated his due process right to notice. As a result, the
court did not err in denying this aspect of Murray’s rule 60(b)(4)
motion.
II. Motion to Augment the Judgment
¶38 After the district court denied Murray’s motion to set aside
the Judgment, it partially granted American United’s motion to
augment the prior attorney fees award to include fees that it had
incurred while attempting to collect on the Judgment.5 The court
based its decision on rule 73(f) of the Utah Rules of Civil
Procedure, under which a party may seek to augment a prior
attorney fees award “within a reasonable time after the fees were
incurred.” Murray now challenges that decision, arguing that the
court applied the wrong test. According to Murray, this case was
governed by the more particular timing provision that is set forth
5. As noted, American United asked for fees stemming from the
previous four years of collection efforts, but the court only
granted the request with respect to the prior two years. American
United has not challenged that aspect of the court’s decision.
20200903-CA 14 2022 UT App 105American United v. Murray
in rule 73(f)(3). And according to Murray, under rule 73(f)(3),
American United was required to file a motion to augment each
time it pursued any post-judgment enforcement action.
¶39 Rule 73 sets forth an intricate set of interrelated timing
rules, and Murray’s argument turns on an inference that he draws
from some of the language that is found in one of its subparts. The
applicable language from the rule and its implicated subparts is
as follows:
• Rule 73(a) states that “[a]ttorney fees must be claimed by
filing a motion for attorney fees no later than 14 days after
the judgment is entered, except as provided in paragraph (f) of
this rule.”
• Rule 73(f)’s initial language states that “[a]ttorney fees
awarded under this rule may be augmented upon
submission of a motion . . . within a reasonable time after the
fees were incurred, except as provided in paragraphs (f)(1),
(f)(2) and (f)(3).”
• Rule 73(f)(3) is titled “Post Judgment Collections.” It states
that when a “party has established its entitlement to
attorney fees” under rule 73 “and subsequently” applies
for a listed writ or files a listed motion, “the party may
request as part of its application for a writ or its motion that
the party’s judgment be augmented according to the
following schedule.” It then sets forth the “Attorney Fees
Allowed” under that schedule, with the allotted fees
ranging from $25 to $75.
• Finally, rule 73(f)(4) is titled “Fees in Excess of the
Schedule.” It states that “[i]f a party seeks attorney fees in
excess of the amounts set forth in paragraphs (f)(1), (f)(2), or
(f)(3), the party shall comply with paragraphs (a) through
(c) of this rule.”
20200903-CA 15 2022 UT App 105American United v. Murray
Utah R. Civ. P. 73 (emphases added).
¶40 Murray’s argument is that because American United was
seeking to augment the award to recover fees incurred after the
Judgment, it could only do so under rule 73(f)(3). Murray then
argues that because that rule allows a party to request
augmentation “as part of its application for a writ or its motion,”
American United was required to have filed a motion to augment
alongside each enforcement action.
¶41 We have some doubt as to whether Murray is correct about
this, primarily because Murray is overlooking the applicable verb.
Rule 73(f)(3) doesn’t say that a party “must” request augmented
fees “as part of its application for a writ or . . . motion”; rather, the
rule says that a party “may” do so. Murray has provided no
authority stating that within the rule 73(f)(3) context, an
augmentation request must be filed contemporaneously with the
writ or motion at issue.6
6. Our recent decision in Diversified Striping Systems Inc. v. Kraus,
2022 UT App 91, is not to the contrary. There, we held that a party
was not entitled to augmented fees under rule 73(f)(3) where the
request for augmented fees “was not properly made as part of an
application for a writ or a motion.” Diversified Striping Systems Inc.,
2022 UT App 91, ¶ 101 (quotation simplified). But the party in
question had not filed an application for a writ or one of the
motions identified in rule 73(f)(3). As noted, however, such a writ
or a motion is the predicate for an augmented fee request under
rule 73(f)(3), which is why the party was not entitled to fees under
it. We didn’t hold, however, that if a party is entitled to
augmented fees under that rule, the party must file such a request
alongside each enforcement action, as opposed to also being
permitted to request augmented attorney fees in a separate filing
later.
20200903-CA 16 2022 UT App 105American United v. Murray
¶42 In any event, we need not definitively decide this issue
here because we agree with American United’s assertion that this
isn’t a rule 73(f)(3) case. Rule 73(f)(3) states that a party “may”
request fees “according to” a listed “schedule” that is then laid out
in a chart. But American United didn’t request fees pursuant to
the rule 73(f)(3) schedule. Rather, it requested fees far in excess of
that schedule, which means that the timeliness of its request must
be evaluated under rule 73(f)(4), the provision that governs “Fees
in Excess of the Schedule.”
¶43 Admittedly, things get somewhat circular here. As noted,
rule 73(f)(4) states that “[i]f a party seeks attorney fees in excess of
the amounts set forth” in paragraph (f)(3), “the party shall comply
with paragraphs (a) through (c) of this rule.” Rule 73(a) then states
that the party has “14 days after the judgment is entered” to file
such a request, “except as provided in paragraph (f).” And
“paragraph (f)” then states that a party must file such a request
“within a reasonable time after the fees were incurred, except as
provided in paragraph[] . . . (f)(3),” thus potentially bringing
things back to rule 73(f)(3) (and Murray’s proposed requirement
that fee augmentation requests must be made alongside each
enforcement action).
¶44 But the problem with Murray’s argument is that rule
73(f)(3) states that it only applies to requests for fees under its
listed fee schedule. And this limitation is reinforced by the fact
that rule 73(f)(4) states that it governs requests for “fees in excess
of the schedule.” The import of this here is that because American
United did not request fees under the rule 73(f)(3) fee schedule,
rule 73(f)’s “except as . . .” clause was not triggered. So as a result,
the timing sequence described above stopped at rule 73(f),
meaning that American United’s augmentation request was
simply required to have been made “within a reasonable time
after the fees were incurred.”
20200903-CA 17 2022 UT App 105American United v. Murray
¶45 We see no textual basis for concluding that when an
augmentation request is governed by rule 73(f)’s “reasonable
time” requirement, there is a categorical rule under which the
request must be made at the same time as the writ or motion to
which it is linked. We instead take the rule at its word:
“reasonable time” means “reasonable time.” And as with other
reasonableness determinations, such a determination would
naturally turn on the circumstances of the case. Indeed, as noted
by the district court below, in “cases like this where there are
ongoing collection efforts, it may not make sense for the party
seeking fees to bring a motion to augment for each batch of work
immediately after incurring fees.”
¶46 As indicated above, the district court evaluated the
circumstances of this case and drew the “reasonableness” line at
two years, finding that it was “unreasonable” for American
United “to wait more than two years to seek fees.” Notably,
Murray hasn’t challenged the court’s reasonableness
determination on appeal, instead resting on his assertion that
American United was categorically required by rule to have filed
a motion to augment each time it filed an enforcement action.
Because we have now rejected that argument, we therefore affirm
that order.7
7. Murray also argues that a particular term from the Confession
of Judgment required American United to support any
augmentation request with a supporting affidavit, and he then
claims that American United “never once filed an attorney fee
affidavit supporting the increased attorney fee amounts.” But
contrary to Murray’s claim, American United did file an affidavit
with its motion to augment, and its affidavit included several
pages of itemized time entries supporting its request. This final
argument is based on a false premise, so we reject it.
20200903-CA 18 2022 UT App 105American United v. Murray
III. Attorney Fees on Appeal
¶47 Finally, American United requests its attorney fees
incurred on appeal. “When a party who received attorney fees
below prevails on appeal, the party is also entitled to fees
reasonably incurred on appeal.” Crane-Jenkins v. Mikarose, LLC,
2016 UT App 71, ¶ 28, 371 P.3d 49 (quotation simplified).
¶48 Because American United received its attorney fees below,
and because American United prevailed on appeal, American
United is entitled to its attorney fees “reasonably incurred on
appeal.” Id. (quotation simplified). We accordingly grant
American United’s request for attorney fees and “remand to the
district court to calculate [American United’s] reasonable fees on
appeal consistent with this decision.” Id.CONCLUSION
¶49 For the reasons set forth above, we affirm the decisions at
issue. First, Murray has not shown that the Judgment was void
under rule 60(b)(4) of the Utah Rules of Civil Procedure. And
second, Murray’s challenge to the order augmenting the attorney
fees award is not supported by the governing rule.
¶50 Because American United prevailed in the proceedings
below and has prevailed on appeal, we remand to the district
court for the limited purpose of awarding fees reasonably
incurred in this appeal.
20200903-CA 19 2022 UT App 105