Utah Telecommunication Open Infrastructure Agency v. Hogan

2013 UT App 8_________________________________________________________
THE UTAH COURT OF APPEALS
UTAH TELECOMMUNICATION OPEN INFRASTRUCTURE AGENCY,
aka UTOPIA,
Plaintiff and Appellee,
v.
CHRIS HOGAN,
Defendant and Appellant.
Opinion
No. 20110629‐CA
Filed January 10, 2013
Third District, Salt Lake Department
The Honorable Joseph C. Fratto Jr.
No. 110909414
Steve S. Christensen, Craig L. Pankratz, and Samuel J. Sorensen,
Attorneys for Appellant
Eric C. Olson and Stephen W. Geary, Attorneys for Appellee
JUDGE CAROLYN B. MCHUGH authored this Opinion,
in which JUDGES JAMES Z. DAVIS
and WILLIAM A. THORNE JR. concurred.
McHUGH, Judge:
¶1 Chris Hogan appeals from the trial court’s denial of his
motion for attorney fees and its refusal to hold Utah Telecommuni‐
cation Open Infrastructure Agency (UTOPIA) in contempt. We
affirm in part, and reverse and remand in part.
Utah Telecommunication v. Hogan
BACKGROUND
¶2 UTOPIA and Hogan entered into a two‐year Agreement for
Professional Services (the Agreement) on May 12, 2009.1 The
Agreement outlined the scope of Hogan’s duties and included a
confidentiality provision, stating, “[Hogan] understands that the
Services performed for UTOPIA are confidential and [Hogan]
agrees to maintain such confidentiality. This [provision] shall
survive the termination of this Agreement.” On March 17, 2011,
UTOPIA informed Hogan that it did not intend to renew the
Agreement and offered to pay him the remaining amount due
“with no further services rendered.” Hogan responded on March
21, 2011, with a brief letter from his attorney attached to a draft
complaint alleging breach of contract, breach of the covenant of
good faith and fair dealing, wrongful discharge, and promissory
estoppel. On March 24, 2011, UTOPIA provided Hogan with a
formal “Notice of Expiration of Professional Services Agreement.”
The same day, Hogan made a settlement proposal stating that he
was “acutely aware that public scrutiny spurred by members of the
media threatens to destroy the work of UTOPIA. Although his
lawsuit may be necessary to redress Mr. Hogan’s rights under the
contract . . . he would prefer to resolve this case without public
scrutiny.” The letter included a list of Hogan’s specific grievances
and “a list of . . . requirements” to be met in order to avoid a
lawsuit.
¶3 In a letter responding to the settlement proposal, UTOPIA
described Hogan’s settlement conditions as “extravagant de‐
mands” and stated, “What Mr. Hogan attempts in proposing this
extravagant course, at least as he frames the matter and perceives
UTOPIA’s interests and vulnerabilities, go by the names of ‘black‐
mail’ and ‘extortion.’” UTOPIA also stated its intent to enforce the
1. Although the Agreement inconsistently indicates that it “will
continue for twelve (24) months,” the parties do not dispute that
the contract was expected to continue for two years.
20110629‐CA 2 2013 UT App 8Utah Telecommunication v. Hogan
Agreement’s confidentiality provision. Hogan’s next correspon‐
dence states that he did not intend to “extort or blackmail
UTOPIA” but that if his “objectives” were not met, he would file a
lawsuit to “protect the public trust by exposing what he believes is
mismanagement.” He further predicted that “[i]f the media, which
has already been critical of UTOPIA, learns of the lawsuit, it will
recommence its assault on UTOPIA.”
¶4 On April 18, 2011, UTOPIA filed a complaint seeking to
permanently enjoin “Hogan from disclosing any information
obtained during the course of rendering services under the
Agreement.” In addition, UTOPIA requested a declaration that the
Agreement would expire on May 13, 2011, and that UTOPIA had
no obligation to renew the Agreement or to compensate Hogan
beyond the expiration date. UTOPIA simultaneously filed an ex
parte motion seeking a temporary restraining order and a prelimi‐
nary injunction to prevent Hogan from releasing confidential
information during the pendency of the action. UTOPIA also filed
a motion to seal the record of the litigation.2 In a supporting
affidavit, UTOPIA indicated that “Hogan has threatened to
publicly disclose this confidential information; [that] Hogan has
already compiled this information in the form of the letters and
draft complaint”; and that UTOPIA would be irreparably harmed
if Hogan were to release the information.
¶5 Following an ex parte hearing on April 18, 2011, the trial
court issued a temporary restraining order and an order sealing the
record of the case and scheduled an evidentiary hearing to
determine whether to issue a preliminary injunction. One day
before the evidentiary hearing, Hogan filed a lawsuit against
UTOPIA in federal court, which described Hogan’s allegations of
mismanagement. The trial court proceeded with the scheduled
2. UTOPIA attached as exhibits to the complaint the Agreement
and communications between UTOPIA and Hogan, including
Hogan’s draft complaint.
20110629‐CA 3 2013 UT App 8Utah Telecommunication v. Hogan
evidentiary hearing and declined to issue the preliminary injunc‐
tion. In denying the injunction, the trial court stated, “It appears
that all of the information that [Hogan] . . . threatened to disclose,
is not prevented by this contractual provision, ” that it would be
adverse to the public interest to enjoin Hogan from filing a claim,
and that UTOPIA would be unlikely to prevail on the merits of its
complaint. After declining to issue the preliminary injunction, the
trial court set a subsequent hearing to determine whether to unseal
the record. Prior to that scheduled hearing, the parties stipulated
that the record could be unsealed. However, no order unsealing the
record was entered at that time. On April 27, UTOPIA filed a
motion to dismiss its complaint and to withdraw its motion to seal
the record, which the trial court had previously granted. Mean‐
while, Hogan filed a motion for $17,246 in attorney fees with a
supporting affidavit. He also submitted a motion to strike
UTOPIA’s notice of dismissal in order to keep the attorney fee
issue open.
¶6 On May 1, 2011, KSL.com published an article that quoted
UTOPIA’s response to Hogan’s settlement offer in which UTOPIA
had characterized Hogan’s settlement demands as “extortion” and
“blackmail.” The article opened with the statement, “Chris Hogan
. . . is being accused of extortion in court documents . . . .” The
letter, which UTOPIA had submitted to the court as Exhibit E,
remained under seal at the time, pursuant to the trial court’s order.
On May 8, 2011, Hogan filed a motion to seal Exhibit E, but to
otherwise unseal the record. In support, Hogan attached an
affidavit in which he claimed that UTOPIA had leaked sealed
documents, including Exhibit E, to the author of the KSL.com
article3 and to the author of another article published on May 2,
2011, on www.fiercetelecom.com. Hogan alleged that both articles
“misrepresent[ed] facts, inaccurately attribute[d] statements to
3. The affidavit identifies the author as Richard Burwash, which
Hogan later discovered was a pseudonym under which West
Valley City Mayor Mike Winder had written the article.
20110629‐CA 4 2013 UT App 8Utah Telecommunication v. Hogan
[Hogan], and misquote[d] statements made in documents which
were filed with UTOPIA’s pleadings.” Hogan subsequently filed
a Motion for Order to Show Cause (the Motion), arguing that
UTOPIA should be held in contempt for releasing the sealed
documents to third parties. In a supporting affidavit, Hogan stated
that similar allegations of extortion had appeared in other articles.
He also asserted, “[UTOPIA] appears to have aggressively mount‐
ed a negative campaign against me in the media using this sealed
information. . . . This egregious smear campaign will likely make
it impossible to find work for the foreseeable future.”
¶7 Following a May 16, 2011 hearing, the trial court ordered
that the entire record be unsealed, including Exhibit E. The trial
court also struck from the record as immaterial the two paragraphs
in Exhibit E relating to blackmail and extortion (the Stricken
Language) under rule 10(h) of the Utah Rules of Civil Procedure.
¶8 Thereafter, at a June 13, 2011 hearing on the issues of
contempt and attorney fees, Hogan argued that UTOPIA should be
held in contempt because it had “unilaterally . . . leaked” the
Stricken Language, knowing that the record was sealed. UTOPIA
asserted that it had released the Stricken Language only after it had
withdrawn its motion to seal the record and after Hogan had filed
the federal complaint which “quotes from and characterizes the
State action.” The trial court declined to hold UTOPIA in contempt.
¶9 Hogan next argued that he was entitled to attorney fees both
because the complaint was brought without merit and in bad faith
and because he had been wrongfully enjoined. The trial court
declined to award Hogan attorney fees because “the inference . . .
that the prevailing party is entitled to their attorney’s fees is not
merited.” The trial court further ruled that the action was not
frivolous or brought in bad faith because it was “an action based on
contract.” Hogan now appeals.
20110629‐CA 5 2013 UT App 8Utah Telecommunication v. Hogan
ISSUES AND STANDARDS OF REVIEW
¶10 Hogan first claims that he is entitled to attorney fees under
section 78B‐5‐825 of the Utah Code and under rule 65A of the Utah
Rules of Civil Procedure. Generally, “‘[w]hether attorney fees are
recoverable in an action is a question of law, which we review for
correctness.’” Anderson & Karrenberg v. Warnick, 2012 UT App 275,
¶ 8, 289 P.3d 600 (quoting Valcarce v. Fitzgerald, 961 P.2d 305, 315
(Utah 1998)). When reviewing a denial of fees under section 78B‐5‐
825, “[t]he ‘without merit’ determination is a question of law, and
therefore we review it for correctness.” Jeschke v. Willis, 811 P.2d
202, 203–04 (Utah Ct. App. 1991) (interpreting Utah Code Ann.
§ 78‐27‐56 (Michie Supp. 1990) (current version at id. § 78B‐5‐825
(LexisNexis 2012))). “A finding of bad faith is a question of fact and
is reviewed by this court under the ‘clearly erroneous’ standard.”
Id. at 204.
¶11 Hogan next challenges the trial court’s refusal to hold
UTOPIA in contempt. “On review of both criminal and civil
proceedings, we accept the trial court’s findings of fact unless they
are clearly erroneous.” Von Hake v. Thomas, 759 P.2d 1162, 1172
(Utah 1988), superseded on other grounds as stated in State v. Hurst,
821 P.2d 467, 470 (Utah Ct. App. 1991). UTOPIA argues that Hogan
lacks standing to challenge the trial court’s decision not to hold
UTOPIA in contempt. Standing is a jurisdictional question, which
“we have an ‘independent obligation’ to resolve.” Summer v.
Summer, 2012 UT App 159, ¶ 12, 280 P.3d 451 (mem.) (quoting In re
Adoption of Baby E.Z., 2011 UT 38, ¶ 36, 266 P.3d 702).
ANALYSIS
I. Attorney Fees
¶12 Hogan challenges the trial court’s denial of his request for
attorney fees under two separate theories. First, Hogan claims he
is entitled to attorney fees under section 78B‐5‐825 of the Utah
20110629‐CA 6 2013 UT App 8Utah Telecommunication v. Hogan
Code, alleging that UTOPIA’s request for a preliminary injunction
was frivolous and brought in bad faith. See Utah Code Ann. § 78B‐
5‐825 (LexisNexis 2012). Hogan also contends that the trial court
erred in denying him attorney fees incurred to defend against the
preliminary injunction under rule 65A of the Utah Rules of Civil
Procedure.
A. Attorney Fees Under Section 78B‐5‐825
¶13 “[T]he court shall award reasonable attorney fees to a
prevailing party if the court determines that the action or defense
to the action was without merit and not brought or asserted in good
faith.”4 Utah Code Ann. § 78B‐5‐825(1) (LexisNexis 2012) (emphasis
added). The bad faith determination must be made independently
of the without merit determination.5 Still Standing Stable, LLC v.
Allen, 2005 UT 46, ¶ 12, 122 P.3d 556. Thus, in order to succeed on
his claim, Hogan must first demonstrate that the trial court erred
in its conclusion that UTOPIA’s complaint was not without merit.
¶14 “A claim is without merit if it is ‘frivolous,’ is ‘of little
weight or importance having no basis in law or fact,’ or ‘clearly
[lacks a] legal basis for recovery.’” Wardley Better Homes & Gardens
v. Cannon, 2002 UT 99, ¶ 30, 61 P.3d 1009 (alteration in original)
(quoting Cady v. Johnson, 671 P.2d 149, 151 (Utah 1983)). The trial
4. UTOPIA argues that because it voluntarily dismissed its
complaint, rule 41(a)(1) of the Utah Rules of Civil Procedure
precludes a prevailing party determination. We need not reach this
issue because we conclude that the trial court did not err in its
determination that the complaint was not frivolous. See infra
¶¶ 17–18.
5. Although it differentiated between the standards for good faith
and merit, the trial court’s determination of the action’s merit was
based on the same reasoning as its determination that UTOPIA did
not bring the action in bad faith.
20110629‐CA 7 2013 UT App 8Utah Telecommunication v. Hogan
court concluded that because UTOPIA had relied on the Agree‐
ment’s confidentiality provision, the action was based on the
express terms of the contract and was therefore not without merit.
Hogan argues that this conclusion is erroneous because UTOPIA’s
claim for specific performance, which sought to enforce the
confidentiality provision, violated his constitutional rights. Hogan
further asserts that the information UTOPIA sought to protect was
part of the public record, that the confidentiality clause was
unenforceable, and that UTOPIA presented no facts in support of
its argument that Hogan had threatened to disclose confidential
information. UTOPIA counters that Hogan’s arguments go to the
ultimate outcome of the suit, not whether the action was based in
law or fact.
¶15 Many of Hogan’s arguments that UTOPIA’s claim for
specific performance lacked merit are focused on UTOPIA’s
alleged “purpose” of interfering with his right to file suit. While the
“purpose” behind UTOPIA’s action is relevant to whether UTOPIA
acted in bad faith, it is not relevant to whether the action lacked
merit. See Gallegos v. Lloyd, 2008 UT App 40, ¶ 15, 178 P.3d 922 (“A
finding of bad faith must be based on at least one of the following
three factors: ‘(i) The party lacked an honest belief in the propriety
of the activities in question; (ii) the party intended to take uncon‐
scionable advantage of others; or (iii) the party intended to or acted
with the knowledge that the activities in question would hinder,
delay, or defraud others.’” (quoting Valcarce v. Fitzgerald, 961 P.2d
305, 316 (Utah 1998))).
¶16 In contrast, Hogan’s argument that UTOPIA clearly lacked
a legal basis for recovery because the Agreement was unenforce‐
able does challenge the merit of the action. Hogan asserts that the
information UTOPIA sought to protect was available to the public
under state law and that as a result, UTOPIA could not enforce the
20110629‐CA 8 2013 UT App 8Utah Telecommunication v. Hogan
confidentiality provision of the Agreement.6 While Hogan asserts
that this should have been obvious to UTOPIA, the only authority
he cites in favor of the proposition that the contract is unenforce‐
able under state law is from Pennsylvania. The absence of Utah law
on this point supports the trial court’s refusal to award attorney
fees. Cf. Matthews v. Olympus Constr., LC (In re Olympus Const., LC),
2009 UT 29, ¶ 31, 215 P.3d 129 (declining to find that a claim was
frivolous where the challenge to the statutory authority to raise the
claim was an issue of first impression). While the trial court ruled
that UTOPIA was not likely to prevail on the merits, it did not
conclude that the action had no basis in law or fact. Contrary to
Hogan’s suggestion, there is nothing inconsistent in those posi‐
tions. Under the Agreement, Hogan agreed that “the Services
performed for UTOPIA are confidential” and he agreed “to
maintain such confidentiality.”7 See Utah Code Ann. § 63G‐2‐305
(LexisNexis Supp. 2012) (enumerating several records as “pro‐
tected” and therefore exempt from the presumption that govern‐
ment records are public). The trial court correctly noted that its
ultimate ruling against UTOPIA did not change the fact that
UTOPIA’s initial action against Hogan was based on a reasonable
interpretation of the Agreement and therefore had a basis in
contract.
¶17 Hogan additionally argues that UTOPIA’s claim for
declaratory relief lacked merit because the expiration of the
Agreement was not in dispute and because he “never requested to
6. The Government Records Access and Management Act
(GRAMA) is Utah’s open records act that makes government
records available to the public by written request, unless exempted.
See Utah Code Ann. §§ 63G‐2‐101 to ‐901 (LexisNexis 2011 & Supp.
2012).
7. The trial court made no formal ruling on the merits because
UTOPIA dismissed its complaint after the trial court declined to
issue a preliminary injunction.
20110629‐CA 9 2013 UT App 8Utah Telecommunication v. Hogan
recover” beyond the expiration date. Although Hogan raised this
argument to the trial court, it did not rule on this issue, instead
basing its ruling on the contract underlying UTOPIA’s claim for
injunctive relief. Furthermore, UTOPIA correctly notes that
Hogan’s draft complaint seeks to extend the Agreement through a
claim of promissory estoppel. Specifically, the draft complaint
alleges that UTOPIA “led Hogan to understand that the contract
would be renewed” for another year and that he was entitled to
$138,000 in anticipated wages. Accordingly, the claim for declara‐
tory relief was justified by Hogan’s draft complaint.
¶18 Because the trial court was correct that UTOPIA’s action had
merit, we need not consider whether the action was brought in bad
faith. See Utah Code Ann. § 78B‐5‐825 (LexisNexis 2012) (requiring
that an action be both filed in bad faith and without merit before
attorney fees may be assessed). Hogan’s claim for attorney fees
under section 78B‐5‐825 fails because UTOPIA’s action was not
both without merit and brought in bad faith. See id.
B. Attorney Fees Under Rule 65A
¶19 Alternatively, Hogan argues that he is entitled to the
attorney fees incurred in defending against the preliminary
injunction under rule 65A of the Utah Rules of Civil Procedure. The
rule provides,
The amount of security [generally
provided to secure a temporary re‐
straining order or preliminary injunc‐
tion] shall not establish or limit the
amount of costs, including reasonable
attorney fees incurred in connection
with the restraining order or prelimi‐
nary injunction, or damages that may
be awarded to a party who is found to
20110629‐CA 10 2013 UT App 8Utah Telecommunication v. Hogan
have been wrongfully restrained or
enjoined.
Utah R. Civ. P. 65A(c)(2).
¶20 Hogan argues that the trial court erred in denying him fees
under rule 65A because he successfully defended against the
preliminary injunction at a hearing on the merits of the injunction.
His affidavit supporting the motion for attorney fees indicates that
“$1,919.00 in attorney fees [were] related to the temporary restrain‐
ing order” and “$4,825.00 . . . [were] related to the opposition to
application for preliminary injunction, the hearing on the applica‐
tion[,] and preparation of the order on the hearing.” In denying
Hogan fees, the trial court stated that “the inference . . . that the
prevailing party is entitled to their attorney’s fees is not merited.”
UTOPIA concedes that, contrary to the trial court’s ruling, Hogan
is entitled to attorney fees “in theory” but argues that we should
affirm because there was no actual harm to Hogan. Specifically,
UTOPIA asserts that Hogan “failed to carry his burden of demon‐
strating what (if any) fees were actually recoverable.”
¶21 “‘If . . . it is found that the injunction was wrongfully issued,
the enjoined party has an action for costs and damages incurred as
a result of the wrongfully issued injunction.’” IKON Office Solutions,
Inc. v. Crook, 2000 UT App 217, ¶ 12, 6 P.3d 1143 (omission in
original) (emphasis omitted) (quoting Mountain States Tel. & Tel. Co.
v. Atkin, Wright & Miles, Chartered, 681 P.2d 1258, 1262 (Utah 1984)).
“An injunction is wrongfully issued and recovery on the bond is
permissible if it is finally determined that the applicant was not
entitled to the injunction.” Mountain States, 681 P.2d at 1262. Where,
as here, a temporary restraining order is issued and a party
successfully “fight[s] the wrongful enjoinder by preventing it from
continuing as a preliminary injunction, . . . the temporary restrain‐
ing order will dissolve, either by its own terms or by order of the
court, and the party will have successfully eliminated the wrongful
enjoinder.” See IKON Office Solutions, 2000 UT App 217, ¶ 13. Thus,
“the attorney fees and costs that a party incurs in this type of
20110629‐CA 11 2013 UT App 8Utah Telecommunication v. Hogan
defense are the result of the wrongful injunction and that party
may be awarded attorney fees and costs.”8 Id.
¶22 However, wrongfully enjoined parties are entitled to only
“those attorney fees which would not have been incurred but for
the application for, and issuance of, the preliminary injunction.
Fees which would have been incurred anyway, in the course of [the
underlying litigation, ] are not recoverable under Rule 65A.” Tholen
v. Sandy City, 849 P.2d 592, 597 (Utah Ct. App. 1993) (citation and
internal quotation marks omitted); see also Beard v. Dugdale, 741
P.2d 968, 969 (Utah Ct. App. 1987) (mem.) (“[T]he award of
attorney fees should have been limited only to the hours spent by
respondents’ counsel as a result of the wrongfully issued injunc‐
tion.”). Thus, “[t]he fees a party incurs in showing that its oppo‐
nent is unlikely to succeed on the merits [of the underlying lawsuit]
will typically be fees that the party would have incurred in
litigating the underlying lawsuit.” IKON Office Solutions, 2000 UT
App 217, ¶ 20. Although
in most cases, opposition to enjoinder
will include showing that the moving
party is unlikely to prevail on the un‐
derlying claim, fees and costs may be
incurred in addressing the other
grounds for injunctive relief set out in
8. We decline to consider UTOPIA’s argument that fees are not
merited because its “conduct in seeking an expedited resolution of
this issue likely saved both sides the substantial attorney fees
incurred in lengthy litigation.” Because rule 65A of the Utah Rules
of Civil Procedure includes no requirement of a trial on the merits
and UTOPIA has cited no authority to support this proposition, we
do not consider this argument. See Utah R. App. P. 24(a)(9), (b)
(“The argument shall contain the contentions and reasons of the
[appellee] with respect to the issues presented . . . with citations to
the authorities, statutes, and parts of the record relied on.”).
20110629‐CA 12 2013 UT App 8Utah Telecommunication v. Hogan
Rule 65A(e), or any other matters not
incurred in litigating the underlying
lawsuit.
Id. ¶ 21 (citation and internal quotation marks omitted); see also
Utah R. Civ. P. 65A(e) (stating the grounds required for issuing a
preliminary injunction).
¶23 UTOPIA argues that we should affirm the trial court’s denial
of fees because “the entire evidentiary hearing [on the merits of the
preliminary injunction] consisted of evidence that otherwise would
have been elicited in a trial upon the merits [of the underlying
lawsuit].” Additionally, UTOPIA claims that Hogan did not
“apportion or separate out the recoverable fees from the
nonrecoverable ones.” See Eggett v. Wasatch Energy Corp., 2004 UT
28, ¶ 36, 94 P.3d 193. Contrary to UTOPIA’s assertion, Hogan filed
an affidavit that allocates attorney fees among specific tasks.
Because the trial court ruled that Hogan was not entitled to any
fees, it did not consider the amount of attorney fees available under
rule 65A. We therefore remand to the trial court to determine the
amount of attorney fees, if any, that should be awarded to Hogan
under rule 65A of the Utah Rules of Civil Procedure.
¶24 Hogan also seeks attorney fees on appeal. Hogan is entitled
to attorney fees on appeal only if he is awarded attorney fees in the
trial court. See Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998).
If, on remand, the trial court determines that Hogan is entitled to
attorney fees under rule 65A of the Utah Rules of Civil Procedure,
the trial court should also determine the “‘fees [Hogan] reasonably
incurred on appeal’” for the issues on which he prevailed. See id.(quoting Utah Dep’t of Soc. Servs. v. Adams, 806 P.2d 1193, 1197
(Utah Ct. App. 1991)). If the trial court determines that Hogan is
entitled to attorney fees, “some adjustment may be necessary so
that [he does] not recover fees attributable to issues on which [he]
did not prevail.” Id. We therefore remand to the trial court for
consideration of whether Hogan is entitled to attorney fees under
20110629‐CA 13 2013 UT App 8Utah Telecommunication v. Hogan
rule 65A and, if so, for a calculation of fees that Hogan reasonably
incurred on appeal of that issue.
II. Contempt
¶25 Next, Hogan challenges the trial court’s refusal to hold
UTOPIA in contempt for releasing the Stricken Language to the
media while it was under seal. See Utah Code Ann. § 78B‐6‐301(5)
(LexisNexis 2012) (stating that “disobedience of any lawful
judgment, order or process of the court” is “contempt[] of the
authority of the court”). The trial court ruled that no evidentiary
hearing was needed to determine whether UTOPIA had acted in
contempt because the issue had become moot when the court
unsealed the record and because the order to seal related only to
the court clerk. Hogan argues that the trial court’s reasoning was
erroneous and that we should remand for the trial court to decide
the matter “under a proper legal standard.”
¶26 As a threshold matter, UTOPIA argues that we should
decline to address this argument because Hogan lacks standing to
challenge the trial court’s decision. “[I]n Utah, as in the federal
system, standing is a jurisdictional requirement.” Brown v. Division
of Water Rights, 2010 UT 14, ¶ 12, 228 P.3d 747. We must therefore
determine whether Hogan has standing to challenge the trial
court’s contempt decision.
“On appeal, a party whose standing is
challenged must show that he or she
had standing under the traditional test
in the original proceeding before the
district court. In addition, an appellant
generally must show both that he or
she was a party or privy to the action
below and that he or she is aggrieved
by that court’s judgment.”
20110629‐CA 14 2013 UT App 8Utah Telecommunication v. Hogan
Chen v. Stewart, 2005 UT 68, ¶ 50, 123 P.3d 416 (quoting Society of
Prof’l Journalists v. Bullock, 743 P.2d 1166, 1171 (Utah 1987)). The
traditional standing test requires a party to “‘allege that he or she
has suffered or will imminently suffer an injury that is fairly
traceable to the conduct at issue such that a favorable decision is
likely to redress the injury.’” Id. (quoting Provo City Corp. v.
Thompson, 2004 UT 14, ¶ 9, 86 P.3d 735).
¶27 Because Hogan appeals the trial court’s contempt determi‐
nation, the conduct relevant to Hogan’s standing is the trial court’s
refusal to hold UTOPIA in contempt, not UTOPIA’s release of
sealed information to the media. See Summer v. Summer, 2012 UT
App 159, ¶ 13, 280 P.3d 451 (mem.) (citing Chen, 2005 UT 68,
¶¶ 48–54). Thus, “[i]n determining whether [Hogan] ‘will immi‐
nently suffer an injury that is fairly traceable’ to the trial court’s
decision to not hold [UTOPIA] in contempt, we must consider the
effect that the contempt order will have on [Hogan].” See id. ¶ 14(quoting Chen, 2005 UT 68, ¶ 50).
¶28 In doing so, we first consider the nature of the contempt
order. “A contempt order is criminal if its purpose is to vindicate
the court’s authority, as by punishing an individual for disobeying
an order, even if the order arises from civil proceedings.” Von Hake
v. Thomas, 759 P.2d 1162, 1168 (Utah 1988), superseded on other
grounds as stated in State v. Hurst, 821 P.2d 467, 470 (Utah Ct. App.
1991). In contrast, “[a] contempt order is civil if it has a remedial
purpose, either to coerce an individual to comply with a court
order given for the benefit of another party or to compensate an
aggrieved party for injuries resulting from the failure to comply
with an order.” Id. However, when reviewing the nature of a
contempt order, we look not only to its stated purpose but to the
character of the sanction as well. See generally International Union,
United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827–28 (1994).
¶29 Neither the trial court, nor either party, has addressed
whether the contempt order would have been civil or criminal in
nature. Nonetheless, the distinction between civil and criminal
20110629‐CA 15 2013 UT App 8Utah Telecommunication v. Hogan
contempt is relevant to our analysis because “a party will generally
not have standing to appeal a trial court’s failure to hold another
party in criminal contempt because the only proper objective of
criminal contempt is as punishment to vindicate the authority of a
court.” Summer, 2012 UT App 159, ¶ 14 (citation and internal
quotation marks omitted). On the other hand, “where a party
challenges a court’s failure to hold another party in civil contempt
. . . standing is dependent on whether the failure to do so directly
affects the moving party’s interests in the litigation.” Id. Accord‐
ingly, we must first determine the nature of the contempt
proceedings.
¶30 In the Motion and at the hearing, Hogan’s argument
emphasized that UTOPIA should be held in contempt as punish‐
ment for its past conduct of “disclosing documents to third parties
that are currently under seal.” Hogan’s affidavit supporting the
Motion states that UTOPIA’s alleged media campaign against him
would likely result in rendering him unable to find employment.
The Motion calls for “sanctions” against UTOPIA, “including but
not limited to [Hogan’s] attorney’s fees incurred in this action.” At
the hearing, Hogan argued that UTOPIA’s conduct “caused
damage, but that’s not necessarily the point of [the] hearing. The
point . . . is that they had an order. They knew the order. They
didn’t have to go out and leak the information, but they did.”
Hogan asserted that the court should award attorney fees “as the
sanction for the contempt.” At oral argument, Hogan again argued
that attorney fees should have been awarded “to punish [UTOPIA]
for violating the court order.”
¶31 The only indication that the Motion sought civil contempt
was that Hogan’s requested relief was for attorney fees. Utah’s
statutory scheme allows a court discretion to sanction a party held
in contempt with a fine or jail sentence. See Utah Code Ann. § 78B‐
6‐310 (LexisNexis 2012). Additionally, if the contempt causes “an
actual loss or injury to a party . . . the court, in lieu of or in addition
to the fine or imprisonment, may order the person proceeded
against to pay the party aggrieved a sum of money sufficient to
20110629‐CA 16 2013 UT App 8Utah Telecommunication v. Hogan
indemnify him and to satisfy his costs and expenses.” See id. § 78B‐
6‐311. The “costs and expenses” described in this section include
“the attorney fees the damaged party incurred.” See Foreman v.
Foreman, 176 P.2d 144, 151 (Utah 1946) (interpreting Utah Code
Ann. § 104‐45‐11 (Callaghan & Co. 1943) (current version at id.
§ 78B‐6‐311 (LexisNexis 2012))).
¶32 Requests for attorney fees, when made under section 78B‐6‐
311 of the Utah Code, are considered civil in nature. See Davidson
v. Munsey, 80 P. 743, 745 (Utah 1905) (holding that actions seeking
attorney fees under the predecessor to section 78B‐6‐311 were civil
in nature (interpreting Rev. St. 1898 § 3368 (Young, Smith & Lee
1898) (current version at Utah Code Ann. § 78B‐6‐311 (LexisNexis
2012)))). However, Hogan did not request his fees under this
section in the trial court,9 and Utah courts have not squarely
addressed whether attorney fees awarded as a contempt sanction
necessarily indicate that the contempt proceeding is civil, rather
than criminal. Cf. In re Whitmore, 35 P. 524, 526 (Utah 1894)
(deciding, under territorial law, that a court could impose costs in
addition to a fine for criminal contempt); Dickman Family Props.,
Inc. v. White, 2012 UT App 299, ¶¶ 10, 13 (mem.) (indicating that a
“request for an award of attorney fees” suggests that a “contempt
proceeding might have a civil purpose,” but declining to reach the
unpreserved issue of whether the trial court abused its discretion
9. Hogan also argues, for the first time on appeal, that he is entitled
to attorney fees for prosecuting the order to show cause. See Utah
Code Ann. § 78B‐6‐311 (LexisNexis 2012) (allowing an award of
“costs and expenses” to a party who suffers “an actual loss or
injury” as a result of another’s contempt). We do not consider this
statutory argument for attorney fees because Hogan did not raise
it before the trial court. See 438 Main St. v. Easy Heat, Inc., 2004 UT
72, ¶ 51, 99 P.3d 801 (“[I]n order to preserve an issue for appeal[,]
the issue must be presented to the trial court in such a way that the
trial court has an opportunity to rule on that issue.” (alterations in
original) (citation and internal quotation marks omitted)).
20110629‐CA 17 2013 UT App 8Utah Telecommunication v. Hogan
by classifying a contempt action as criminal). Indeed, it is unclear
whether attorney fees are authorized as a contempt sanction when
not awarded as compensation for an actual loss or injury to a party.
See Mellor v. Cook, 597 P.2d 882, 884 (Utah 1979) (“[W]e are aware
of no provision authorizing an additional penalty of attorney’s
fees.” (interpreting Utah Code Ann. § 78‐32‐10 (Michie 1987)
(current version at id. § 78B‐6‐310 (LexisNexis 2012)))).
¶33 Except for his specific claim for attorney fees as a sanction,
Hogan’s request, and the relief that would have been granted,
appear to be criminal in nature. Hogan requested an order “to
vindicate the court’s authority,” which he acknowledged would
not necessarily result in the enforcement of the civil judgment. Cf.
Von Hake v. Thomas, 759 P.2d 1162, 1168 (Utah 1988), superseded on
other grounds as stated in State v. Hurst, 821 P.2d 467, 470 (Utah Ct.
App. 1991). Thus, if the trial court had held UTOPIA in contempt,
it would not have been to coerce UTOPIA to obey the order sealing
the record, which had since been lifted, nor would it have served
to compensate Hogan for any “actual loss or injury” caused by
UTOPIA’s conduct. Instead, a contempt finding would have
allowed the trial court to sanction UTOPIA for past conduct and to
vindicate the court’s own authority. As a result, the contempt
proceedings were criminal in nature and Hogan lacks standing to
challenge the trial court’s ruling on appeal.
CONCLUSION
¶34 We affirm the trial court’s denial of Hogan’s motion for
attorney fees under section 78B‐5‐825 because the trial court did not
err in determining that UTOPIA did not file its action without
merit. Additionally, Hogan lacks standing to challenge the trial
court’s refusal to hold UTOPIA in contempt. Finally, we reverse the
trial court’s determination that Hogan was not entitled to attorney
fees under rule 65A of the Utah Rules of Civil Procedure. We
remand on that issue for further proceedings consistent with this
opinion.
20110629‐CA 18 2013 UT App 8Utah Telecommunication v. Hogan
¶35 Affirmed in part; reversed and remanded in part.
____________________
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