Livingston Financial, LLC v. Migliore

2013 UT App 58_________________________________________________________
THE UTAH COURT OF APPEALS
LIVINGSTON FINANCIAL, LLC,
Plaintiff and Appellee,
v.
CHARLES MIGLIORE,
Defendant and Appellant.
Per Curiam Decision
No. 20120551‐CA
Filed March 7, 2013
Third District, Tooele Department
The Honorable Robert Adkins
No. 090301264
Ronald Ady, Attorney for Appellant
Christopher J. Rogers, Attorney for Appellee
Before JUDGES ORME, THORNE, and ROTH.
PER CURIAM:
¶1 Charles Migliore filed a notice of appeal in June 2012 from
an order entered on January 14, 2010, an order entered on Decem‐
ber 16, 2011, and an order entered on May 23, 2012, which awarded
attorney fees to Plaintiff Livingston Financial, LLC (Livingston).
Insofar as Migliore appeals the January 14, 2012 order and the
December 16, 2011 order, we dismiss the appeal for lack of
jurisdiction because the notice of appeal was untimely as to those
orders. We have jurisdiction to consider an appeal from the order
granting Livingston’s Verified Motion for Attorney Fees, and we
affirm that order.
Livingston Financial, LLC v. Migliore
¶2 The January 14, 2010 order granting Livingston summary
judgment was final and appealable. Migliore did not file a timely
appeal or a motion that would toll the time for appeal under rule
4(b) of the Utah Rules of Appellate Procedure. See Utah R. App. P.
4(b). A notice of appeal “shall be filed with the clerk of the trial
court within 30 days after the date of entry of the judgment or
order appealed.” Utah R. App. P. 4(a). We lack jurisdiction to
consider an appeal of the January 14, 2010 order.
¶3 In November 2011, Migliore filed a “renewed motion to set
aside void judgment” (the renewed motion). The district court
denied that motion in a December 16, 2011 ruling. A rule 60(b)
motion does not toll the time for appeal from a final judgment
under rule 4(b), but an order denying relief under rule 60(b) is an
appealable order. See Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950,
970 (Utah Ct. App. 1989) (“It is well settled under Utah law [that]
an order denying relief under Rule 60(b) is a final appealable
order.”). Migliore did not file a timely notice of appeal from the
final order denying the renewed motion, and we lack jurisdiction
over an appeal of the December 2011 ruling. Migliore’s contention
that the order denying the renewed motion did not become final
until entry of the award of attorney fees to Livingston on its
subsequent motion is without merit. The December 2011 ruling
fully resolved the motion then before the court and was final and
appealable. Livingston sought its attorney fees in a subsequent
motion to augment the 2010 judgment under rule 73 of the Utah
Rules of Civil Procedure.
¶4 On January 3, 2012, Livingston filed its motion for attorney
fees incurred in opposing Migliore’s post‐judgment actions,
including multiple motions to set aside the judgment. The motion
relied upon rule 73 and Utah Code section 78B‐5‐825. Utah Code
section 78B‐5‐825(1) states, “In civil actions, the court shall award
reasonable attorney fees to a prevailing party if the court deter‐
mines that the action or defense to the action was without merit
and not brought or asserted in good faith . . . .” Utah Code Ann.
§ 78B‐5‐825(1) (LexisNexis 2012); see also Utah R. Civ. P. 73 (contain‐
20120551‐CA 2 2013 UT App 58Livingston Financial, LLC v. Migliore
ing requirements for a request to augment a judgment with an
award of attorney fees). We review a district court’s grant of
attorney fees under section 78B‐5‐825 as a mixed question of law
and fact. See Gallegos v. Lloyd, 2008 UT App 40, ¶ 6, 178 P.3d 922.
We review the district court’s conclusion that an action is without
merit for correctness. See id. We review the factual finding that an
action was not brought or asserted in good faith under a clearly
erroneous standard. See id.
¶5 In the December 16, 2011 ruling on the renewed motion, the
district court ruled both that the motion was without merit and
was frivolous. That reasoning was incorporated in the May 12, 2012
order granting Livingston attorney fees. In the December 2011
ruling, the district court reviewed the procedural history of the
case, which was initiated in July 2009 to collect a credit card debt.
Migliore filed a motion for more definite statement, which attached
a copy of the summons and complaint he had received. In response
to the motion for more definite statement, Livingston provided a
copy of a recent bank statement. Migliore failed to respond to
discovery, including requests for admission. The statements that
were the subject of the requests were deemed admitted. After
Livingston moved for summary judgment, Migliore filed an
untimely opposing affidavit, asserting that he had tendered
payment for the debt in July 2008, but he provided no evidentiary
support. Migliore also moved to dismiss the complaint, claiming
that he had not been served with the summons and complaint,
despite having attached a copy of the summons and complaint to
his earlier motion for more definite statement. In January 2010, the
district court granted summary judgment and denied the motion
to dismiss.
¶6 On January 22, 2010, Migliore filed a motion to reconsider
seeking to set aside the judgment under rule 60(b)(1) of the Utah
Rules of Civil Procedure, claiming that (1) he did not answer the
complaint because he was waiting for a more definite statement
and because he was committed to a mental hospital; (2) he did not
respond to discovery because he forgot he had been served with
20120551‐CA 3 2013 UT App 58Livingston Financial, LLC v. Migliore
the summons and complaint; and (3) he failed to attend a January
4, 2010 pretrial conference because he misread the notice. At a
hearing on his rule 60(b)(1) motion, Migliore claimed that the debt
was not his. After Livingston produced numerous statements to
verify the debt, the district court gave Migliore an opportunity to
provide any proof that the debt was not his, and Migliore stated he
had no proof to support that assertion. The district court denied the
motion because Migliore had not demonstrated “mistake, inadver‐
tence, surprise, or excusable neglect” under rule 60(b)(1). The court
noted that Migliore did not contact the court to request a continu‐
ance based upon his alleged hospitalization.
¶7 In November 2011—approximately twenty‐two months after
entry of the summary judgment—Migliore’s current counsel
appeared and filed the renewed motion. The renewed motion
claimed that the judgment was void because Migliore was de‐
prived of notice, denied the right to oppose Livingston’s claims,
and denied a fair opportunity to submit evidence. The district court
rejected the claims, first ruling that Migliore was not deprived of
notice because he attached the summons and complaint to his own
motion for a more definite statement. The district court ruled that
Migliore also was not deprived of either the right to oppose
Livingston’s claims or a fair opportunity to submit evidence.
Migliore failed to respond to discovery because he claimed to have
forgotten that he was served with the summons and complaint.
Nevertheless, the district court did not enter judgment as a
discovery sanction or based upon default. Although he had
claimed that the debt was not his, Migliore’s affidavit opposing
summary judgment claimed that he had paid the debt, but
provided no proof. He failed to appear at the January 4, 2010
pretrial hearing, claiming he misread the notice. He was given
another opportunity to present any evidence supporting his claim
that the debt was not his at a hearing on his first rule 60(b) motion,
but he conceded that he had no evidentiary support. The district
court found that the renewed motion was without merit and
denied the motion. The December 2011 ruling admonished
Migliore for filing a “frivolous” renewed motion and ordered him
20120551‐CA 4 2013 UT App 58Livingston Financial, LLC v. Migliore
to show cause within twenty days of the ruling “why he should not
be subject to sanctions pursuant to Rule 11(b)(1), (3)–(4).”
¶8 Livingston filed the verified motion seeking attorney fees
based upon section 78B‐5‐825 on January 3, 2011. In response,
Migliore reargued the claims from the renewed motion and failed
to address section 78B‐5‐825 or acknowledge the district court’s
December 2011 ruling that the renewed motion was both without
merit and frivolous. In the May 12, 2012 order awarding attorney
fees, the district court found that Livingston prevailed in the
matter; that the renewed motion to set aside the judgment was
frivolous for the reasons stated in the December 2011 ruling; and
that the renewed motion was brought to hinder and/or delay
Livingston in collecting on the judgment. After finding that the
affidavit of Livingston’s counsel was sufficient and the fees sought
were reasonable, the district court awarded Livingston $5,035 in
attorney fees. Thus, the district court made the required findings to
support an award under section 78B‐5‐825. See Hermes Assocs. v.
Park’s Sportsman, 813 P.2d 1221, 1225 (Utah Ct. App. 1991) (stating
that the statute requires that the party seeking fees must prevail,
the claim asserted by the opposing party must be without merit,
and the claim must not be asserted in good faith).
¶9 We conclude that the district court’s findings that Livingston
was the prevailing party on the postjudgment motions to set aside
the judgment and that those motions were without merit are both
correct. See Gallegos v. Lloyd, 2008 UT App 40, ¶ 6, 178 P.3d 922(stating that we review a finding that the action was without merit
for correctness). We next consider whether the district court’s
ruling that the renewed motion was not asserted in good faith was
clearly erroneous. See id.A party acts in bad faith when he brings an action
and either (1) lacks an honest belief in the propriety
of the activities in question, (2) intends to take uncon‐
scionable advantage of others, or (3) intends to or has
20120551‐CA 5 2013 UT App 58Livingston Financial, LLC v. Migliore
knowledge of the fact that his actions will hinder,
delay, or defraud others.
Blum v. Dahl, 2012 UT App 198, ¶ 9, 283 P.3d 963 (citations and
internal quotation marks omitted). “A finding of bad faith is
upheld when there is sufficient evidence in the record to support
a finding that at least one of these three factors applies.” Id. The
district court found that the renewed motion was brought to hinder
or delay Livingston’s ability to collect on its judgment. Migliore
filed the renewed motion almost two years after the entry of the
summary judgment that he did not appeal. An obvious result of
filing the renewed motion was to further delay Livingston’s
ongoing efforts to collect on the judgment. Under the circum‐
stances, the district court’s finding of bad faith was supported by
sufficient evidence and is not clearly erroneous. Therefore, we
affirm the May 12, 2012 order awarding attorney fees under section
78B‐5‐825.
¶10 In the December 2011 ruling, the district court also required
Migliore to respond to an order to show cause why he should not
be sanctioned under rule 11 of the Utah Rules of Civil Procedure
for filing a frivolous renewed motion. In ruling on Migliore’s
objection to the proposed order on Livingston’s motion for attorney
fees, the district court clarified that it did not consider the order to
show cause at the March 5, 2012 hearing. The court stated,
Upon further consideration, the Court finds that the
sum of $5,035.00 for Plaintiff’s attorney fees is a
sufficient sanction for Defendant’s most recent
motion to set aside. There will be no future order to
show cause hearing or any other sanction against
Defendant or counsel for Defendant regarding the
most recent motion to set aside.
As Migliore successfully contended, the May 12, 2012 order did not
include a ruling on the merits of the order to show cause. The
December 2011 ruling also admonished Migliore and his counsel
20120551‐CA 6 2013 UT App 58Livingston Financial, LLC v. Migliore
for “their overly aggressive tactics in dealing with the Court and its
personnel.” Migliore and his counsel argue that the admonishment
is itself a sanction that should be set aside on appeal, relying upon
the court’s reference to “any other sanction” in the above‐quoted
statement. The clear import of that language was that the district
court deemed the attorney fees award to suffice as a sanction for
filing the frivolous motion that was the subject of the order to show
cause, so there was no need to impose an additional sanction under
rule 11. It is not clear that the admonishment regarding interaction
with court personnel was a subject of the order to show cause.
However, because the order to show cause was not addressed in
the May 12, 2012 order and was effectively withdrawn by the
district court, and because we lack jurisdiction over an appeal of
the December 2011 ruling, we conclude that this claim is beyond
the scope of the appeal and we do not consider it.
¶11 We dismiss the appeal for lack of jurisdiction insofar as
Migliore seeks to appeal the January 14, 2012 summary judgment
and the December 16, 2011 ruling denying the renewed motion to
set aside the judgment. We affirm the May 12, 2012 order awarding
attorney fees to Livingston. Livingston seeks an award of attorney
fees incurred on appeal. “When a party who received attorney fees
below prevails on appeal, the party is also entitled to fees reason‐
ably incurred on appeal.” Golden Meadows Prop., LC v. Strand, 2010
UT App 258, ¶ 13, 241 P.3d 371. Accordingly, we award Livingston
attorney fees and costs incurred on appeal and remand the case to
the district court for determination of the amount of attorney fees
and costs reasonably incurred on appeal.
20120551‐CA 7 2013 UT App 58