Badger v. MacGillivray

2016 UT App 109THE UTAH COURT OF APPEALS
SHAUNA BADGER,
Appellant,
v.
DUSTIN MACGILLIVRAY,
Appellee.
Per Curiam Decision
No. 20150065-CA
Filed May 26, 2016
Fourth District Court, Provo Department
The Honorable Samuel D.McVey
No. 090402559
Shauna Badger, Appellant Pro Se
Evan A. Schmutz and Cole L. Bingham, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and KATE
A. TOOMEY.
PER CURIAM:
¶1 Shauna Badger appeals the district court’s order granting
a motion to enforce a settlement agreement. During the appeal,
this court temporarily remanded the case to the district court to
make findings of fact on whether Badger “knowingly or
recklessly committed fraud on this court by filing documents
that contain material misrepresentations about the contents of
records from the Provo Police Department.” This court retained
jurisdiction to impose any sanctions. We now address both the
appeal and sanctions.
Badger v. MacGillivray
APPEAL OF ORDER ENFORCING SETTLEMENT
¶2 “The decision of a trial court to summarily enforce a
settlement agreement will not be reversed on appeal unless it is
shown that there was an abuse of discretion.” Goodmansen v.
Liberty Vending Sys., Inc., 866 P.2d 581, 584 (Utah Ct. App. 1993)
(citations and internal quotation marks omitted). “The trial court
has the power to enter a judgment enforcing a settlement
agreement if it is an enforceable contract.” Id. “*A+ settlement
agreement may be summarily enforced by motion in the court of
the original action.” Tracy-Collins Bank and Trust Co. v.
Travelstead, 592 P.2d 605, 607 (Utah 1979). “If a written
agreement is intended to memorialize an oral contract, a
subsequent failure to execute the written document does not
nullify the oral contract.” Lawrence Constr. Co. v. Holmquist, 642
P.2d 382, 384 (Utah 1982).
¶3 The settlement negotiations at issue here were conducted
via text messages delivered over the parties’ cell phones. The
district court found, in part,
In the text messages, [Badger] clearly
communicated an offer to settle and fully
compromise and resolve all claims by Defendant’s
payment of $25,000 now and $2,500 within one
year. Defendant [Dustin MacGillivray] clearly and
timely repeated those terms and communicated his
unequivocal acceptance of *Badger’s+ offer.
[Badger] added one more term regarding remedies
on default. [MacGillivray] clearly and
unequivocally communicated his acceptance of the
additional term. [Badger] communicated her
agreement by texting “ok.”
¶4 MacGillivray’s counsel prepared a written settlement
agreement, which Badger refused to sign. The district court
found that
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the sole reason for Badger’s rejection and refusal to
perform was a claim that her text contained a
“typo” and that she meant to state she would settle
for two payments of $25,000, one now and one a
year later, but she made a unilateral mistake and
accidentally texted $2,500.
The district court found that based upon the communications
between the parties, Badger did not make a mistake in sending a
clear written offer to settle for $25,000 now and $2,500 in one
year. The court further found that even if Badger had made a
unilateral mistake in communicating her final offer, she “did not
exercise ordinary diligence in sending her final offer to make
sure it was correct, or in reviewing *MacGillivray’s+ repeat of the
terms of that offer and agreeing that such terms constituted an
agreement to settle.” After stating the terms of the settlement,
the district court also found that sufficient consideration
supported the agreement.
¶5 Badger’s first claim on appeal was that the district court
erred by ruling that the settlement discussions constituted a
legally binding contract “in a summary proceeding under the
authority of Tracy-Collins Bank & Trust Co. v. Travelstead, 592
P.2d, 605, 607 (Utah 1967).” Badger’s apparent claim is that
Tracy-Collins did not apply because there was already a
judgment for a liquidated amount in the underlying case and the
settlement occurred during post-judgment proceedings to
enforce the judgment. This claim lacks merit. The only
proposition for which Badger cited Tracy-Collins was that the
motion could be resolved in a summary proceeding. The district
court did not err in resolving the case in summary proceedings
under the circumstances.
¶6 Badger next claims that the district court erred in finding
that MacGillivray gave “legally sufficient consideration.” In
sum, Badger claims that because she had a judgment for a
liquidated sum against MacGillivray, payment of any smaller
amount was insufficient consideration. MacGilivray argues that
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this issue was not preserved. Badger counters that the claim was
preserved in her opposition to the motion to enforce the
settlement agreement, which included her assertion that because
MacGillivray “already owes this amount and because *he+ has
offered to pay substantially less than the amount owing, [he] has
not offered any consideration to [Badger] that would make the
contract binding.” Badger preserved only this argument.
¶7 Badger’s argument is essentially that because she has a
judgment, any settlement that involves payment of less than the
full judgment amount is “void” for lack of consideration.
“*E+ven if a claim is undisputed and liquidated, parties can still
discharge their obligations through accord and satisfaction. In
such instances, however, parties must support the accord with
separate consideration.” Estate Landscape & Snow Removal
Specialists, Inc. v. Mountain States Tel. & Tel. Co., 844 P.2d 322, 326
(Utah 1992). Badger’s argument that only the full amount of the
judgment can be sufficient consideration lacks merit. In
Sugarhouse Finance Company v. Anderson, 610 P.2d 1369 (Utah
1980), the plaintiff held a judgment that had been outstanding
for over two years when the defendant agreed to pay a smaller
amount immediately. The supreme court stated,
This was something defendant had no legal
obligation to do; by law, plaintiff could only move
by levy of execution against property already
owned by the defendant−plaintiff could not legally
require defendant to incur additional obligations to
satisfy the judgment. By so doing, defendant
deliberately incurred the detriment of surrendering
his right to limit plaintiff’s ability to obtain
satisfaction of the underlying judgment, and
bestowed upon plaintiff the benefit of immediate
payment by means of the incurrence of additional
indebtedness. We hold such action to constitute
sufficient consideration to support the accord
negotiated by the parties.
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Id. at 1373 (citation omitted). Similarly, at the time of the
settlement negotiations between Badger and MacGillivray,
Badger had obtained a writ of execution and seized personal
property allegedly owned by MacGillivray. MacGillivray
requested a hearing because he disputed that all of the seized
property was subject to execution. The district court set a
hearing date. Prior to that time, the parties reached the
settlement. As in Sugarhouse Finance, MacGillivray could have
required Badger to limit her recovery to the seized property, but
he accepted her offer to make an immediate payment of $25,000
and an additional smaller payment in one year. As in Sugarhouse
Finance, MacGillivray incurred an obligation that he was not
required to incur, and the settlement was supported by sufficient
consideration.
¶8 Badger’s final argument is that the district court’s order is
not consistent with the oral ruling. This argument lacks merit
because she has not demonstrated a material difference between
the oral ruling and the order the district court signed.
Furthermore, Badger failed to preserve this argument, because
she did not raise the claimed disparities in the trial court to allow
that court to review and resolve them. In sum, the district court
did not abuse its discretion in enforcing the settlement
agreement.
SANCTIONS
¶9 This court now addresses the reserved issue of whether to
impose sanctions based upon the district court’s findings of fact
on the temporary remand from this court. Our order asked the
district court to make
findings of fact on whether Shauna Badger
knowingly or recklessly committed fraud on this
court by filing documents that contain material
misrepresentations about the contents of records
from the Provo Police Department regarding an
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investigation in the year 2010 of allegations of
witness tampering by [opposing counsel] and the
results of that investigation, which may include
falsely reporting that witness tampering charges
were approved by the Utah County Attorney and
that [opposing counsel] was summoned, cited,
arrested, booked, and/or photographed.
¶10 The district court held an evidentiary hearing on March 9
and March 29, 2016, before issuing detailed findings of fact and
an order on March 30, 2016. That resolution concluded the
proceedings on remand and returned jurisdiction to this court.
Having determined that Badger had not provided a credible
explanation for the inclusion of a two-page “arrest report” in her
filings, the district court stated,
The Court finds Badger knew filing the two page
arrest record could potentially mislead the Court of
Appeals. She knew the record was not in the Provo
City files and was not included by Detective
Gibson in his affirmation. She also knew over five
years ago there was no arrest of [opposing counsel]
or any other action taken against him by law
enforcement and prosecution than to investigate
her complaint and reject it as a basis for
prosecution or arrest. She knew she represented
falsely the arrest record was true and correct when
she filed it in the Court of Appeals (and with this
Court in 2014). She falsely represented the two
page report as being a genuine record of the Provo
police department when she in fact doctored the
attachments to Detective Gibson’s and Provo City’s
GRAMA response. These activities were performed
with an improper intent to inflame prejudice
against [opposing counsel] and satisfy her feelings
against him in an attempt to help her case.
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The district court concluded that Badger knowingly filed
factually erroneous materials in both this court and the district
court.1
¶11 Based upon the district court’s detailed and pointed
findings of fact, we impose a monetary sanction on Badger in the
amount of attorney fees representing the reasonable value of
MacGillivray’s counsel’s time spent in connection with the
motion to strike, including proceedings before this court and
before the district court on temporary remand involving the
motion to strike Badger’s opening and reply briefs; the
December 10, 2015 hearing before this court on that motion;
preparation for and attendance at the hearing before the district
court on March 9 and March 29, 2016; and the preparation and
entry of the March 30, 2016 findings of fact and order.
CONCLUSION
¶12 ¶For the foregoing reasons, we affirm the district court’s
order enforcing the settlement agreement. In addition, we
remand to the district court for a determination of an award of
attorney fees representing the reasonable value of MacGillivray’s
counsel’s time attributable to Badger’s improper filing and
related conduct, as more fully described in the preceding
paragraph of this decision.
1. Our order of temporary remand was without prejudice to the
district court’s imposition of any sanctions based upon filings
made in the district court. The district court reserved ruling on
its own sanctions for the improper 2014 filing in that court until
after remittitur.
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