Ross v. Short

2018 UT App 178THE UTAH COURT OF APPEALS
YAN ROSS AND RANDI WAGNER,
Appellees,
v.
DOUGLAS R. SHORT,
Appellant.
Opinion
No. 20151055-CA
Filed September 20, 2018
Third District Court, Salt Lake Department
The Honorable John Paul Kennedy and Ryan M. Harris
No. 070915820
Douglas R. Short, Appellant Pro Se
John H. Bogart, Attorney for Appellees
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.
HAGEN, Judge:
¶1 Appellant Douglas R. Short appeared as an attorney for
an intervenor in supplemental proceedings to enforce a
judgment. Short has faced multiple sanctions based on his
improper conduct as an attorney in those proceedings. This
appeal concerns the most recent sanctions imposed by the
district court, ordering Short to pay the attorney fees that
Appellees, Yan Ross and Randi Wagner, incurred in responding
to a series of motions that lacked a legal or factual basis or were
submitted for an improper purpose. Short appeals the district
court’s final judgment awarding sanctions totaling $27,981.07,
plus interest, as well as the denial of his subsequent motions to
vacate that judgment. We affirm and award Appellees the costs
and attorney fees incurred in defending this appeal.
Ross v. Short
BACKGROUND
¶2 In January 2009, Ross and Wagner moved for a writ of
execution to enforce a judgment against Global Fraud Solutions
(GFS). Michael K. Barnett, the general manager of GFS,
intervened, claiming that he personally owned the assets subject
to the writ. Short appeared as legal counsel for Barnett.
¶3 On December 30, 2014, as a result of Short’s performance
as counsel in these proceedings, the district court granted Ross
and Wagner’s motion for sanctions under rule 11 of the Utah
Rules of Civil Procedure (the Sanctions Order). In an attempt to
“compensate [Ross and Wagner] as well as deter Mr. Short,” the
district court directed Ross and Wagner’s attorney to submit “an
affidavit of attorney fees and a proposed order . . . detailing the
amount incurred in responding to the subject motions.” The
court imposed the sanctions under rule 11 and its “‘inherent
power to impose monetary sanctions on attorneys who by their
conduct thwart the court’s scheduling and movement of cases
through the court.’” (Quoting Maxwell v. Woodall, 2014 UT App
125, ¶ 6, 328 P.3d 869.)
¶4 As directed, Ross and Wagner’s attorney, John H. Bogart,
filed a declaration (the Bogart Declaration) regarding attorney
fees within ten days. Short filed no opposition, and Ross and
Wagner moved to submit the matter for decision. The district
court found that the attorney fees were reasonable, granted relief
in the amount requested, and invited Ross and Wagner to
submit a proposed order reflecting the ruling.
¶5 Ross and Wagner served Short with a proposed order
regarding the fees request. Again, Short filed no objection to the
proposed order, and Ross and Wagner submitted the order for
signature once the time for filing objections had passed. On
February 9, 2015, the court entered the final order as proposed,
awarding attorney fees in the amount of $27,981.07 (the Fees
Order).
20151055-CA 2 2018 UT App 178Ross v. Short
¶6 Short failed to pay the award, and Ross and Wagner
moved for entry of judgment. They served Short with a
proposed, final judgment assessing interest on the original
award. Once Short’s deadline to file an objection had passed,
Ross and Wagner moved to submit the motion for entry of
judgment. That same day, Short moved for an extension of time
to file an opposition. The court granted a two-day extension.
When Short failed to file an opposition within that timeframe,
Ross and Wagner again submitted the matter for signature. The
district court entered the judgment as proposed on July 2, 2015
(the Judgment).
¶7 On September 30, 2015, Short filed two motions to vacate
the Judgment under rule 60(b) of the Utah Rules of Civil
Procedure. On November 12, 2015, the district court denied both
motions by order. Short then filed a motion to vacate the
November 12 order. On November 30, 2015, the district court
denied that motion as well.
¶8 Short filed this appeal challenging the Judgment and both
the November 12 and 30 orders denying his motions to vacate.
ISSUES AND STANDARDS OF REVIEW
¶9 Short raises three issues on appeal. First, Short argues that
the district court should have granted his rule 60(b) motion for
relief from the Judgment. “We review a Rule 60(b) motion for
abuse of discretion.” 1 Golden Meadows Props., LC v. Strand, 2010
UT App 258, ¶ 3, 241 P.3d 371.
1. The time to appeal the Judgment was not tolled by Short’s rule
60(b) motion, because it was filed more than twenty-eight days
after the Judgment was entered. See Utah R. App. P. 4 (b)(1)(e).
Because he did not file an appeal within thirty days of the
(continued…)
20151055-CA 3 2018 UT App 178Ross v. Short
¶10 Second, Short contends that the district court improperly
refused to reconsider its prior decisions. “As long as the case has
not been appealed and remanded, reconsideration of an issue
before a final judgment is within the sound discretion of the
district court.” IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008
UT 73, ¶ 27, 196 P.3d 588. Accordingly, “[w]e review a district
court’s decision to reconsider an earlier decision for an abuse of
discretion.” Jordan Constr., Inc. v. Federal Nat’l Mortgage Ass’n,
2017 UT 28, ¶ 22, 408 P.3d 296.
¶11 Third, Short argues that the Judgment is void because the
district court lacked subject matter jurisdiction to impose
sanctions against him. “The determination of whether a court
has subject matter jurisdiction is a question of law[.]” Wasatch
County v. Tax Comm’n, 2009 UT App 221, ¶ 4, 217 P.3d 270(quotation simplified).
ANALYSIS
I. Motions to Vacate
¶12 The district court did not abuse its discretion in denying
Short’s rule 60(b) motions to vacate the Judgment. Rule 60(b) of
the Utah Rules of Civil Procedure allows a court to “set aside a
final judgment for reasons such as mistake, newly discovered
evidence, or fraud.” Honie v. State, 2014 UT 19, ¶ 87, 342 P.3d 182.
Short argues that the court should have granted the motions on
two grounds: (1) the Judgment was not final, because “[t]here
(…continued)
Judgment, see id. 4(a), we have jurisdiction to review only the
denial of the rule 60(b) motion. Reisbeck v. HCA Health Services of
Utah, Inc., 2000 UT 48, ¶ 5, 2 P.3d 447 (“Failure to file a timely
notice of appeal deprives this court of jurisdiction over the
appeal.”).
20151055-CA 4 2018 UT App 178Ross v. Short
are several missing Rule 7(f)(2) orders” and (2) the Judgment
was based on fraud or mistake. The district court acted within its
discretion in rejecting both arguments.
A. Finality
¶13 Short argues that the district court should have granted
him relief from judgment under rule 60(b) because the Judgment
was “not a final appealable judgment.” Short argues that “there
are several missing Rule 7(f)(2) orders” and that “[a]ll
Rule 7(f)(2) orders must be entered for the ‘Judgment’ to be
final.” Short does not connect this argument to rule 60(b) or
explain why it would entitle him to relief from the Judgment.
Even assuming that failure to comply with rule 7(f)(2)
constitutes a “mistake” or “other reason justifying relief” under
rule 60(b), the district court correctly ruled that the Judgment
complied with rule 7(f)(2).
¶14 Under the version of the Utah Rules of Civil Procedure in
effect at the time, rule 7(f)(2) provided:
Unless the court approves the proposed order
submitted with an initial memorandum, or unless
otherwise directed by the court, the prevailing
party shall, within 21 days after the court’s
decision, serve upon the other parties a proposed
order in conformity with the court’s decision.
Objections to the proposed order shall be filed
within 7 days after service. The party preparing the
order shall file the proposed order upon being
served with an objection or upon expiration of the
time to object.
Utah R. Civ. P. 7(f)(2) (2014). Both the Fees Order and the
Judgment fully complied with this rule. Both proposed orders
were served on Short and he was afforded time to respond. He
failed to file an objection to either proposed order, even after
20151055-CA 5 2018 UT App 178Ross v. Short
obtaining an extension with respect to the Judgment. After the
expiration of the time to object, Ross and Wagner filed motions
to submit, and both orders were entered in the form in which
they were proposed. Neither order left any issues open for
resolution, making them both final, appealable orders. See Cheves
v. Williams, 1999 UT 86, ¶ 52, 993 P.2d 191 (explaining that
postjudgment orders are subject to their own test of finality
based on the substance and effect of those orders).
¶15 Although the Judgment fully complied with rule 7(f)(2)
and was otherwise final and appealable, Short argues that the
Judgment was not final, because the Sanctions Order “clearly
was not a final Rule 7(f)(2) order.” But the Sanctions Order did
not purport to be a final order. As the district court noted in
denying Short’s rule 60(b) motion, the order “expressly state[d]
that one thing remained to be completed—a declaration
requesting fees to be filed for counsel for [Ross and Wagner].”
Once this contemplated action was accomplished, the district
court entered a final judgment. Short offers no authority for his
argument that the Sanctions Order had to be reduced to a rule
7(f)(2) order before the Judgment could be considered final.
¶16 Relatedly, Short argues that the Judgment was not final,
because there were no final orders issued on what he
characterizes as “precursor motions,” or, put differently, rulings
he believes “must be finalized before one could logically and
properly conclude that Counsel has violated Rule 11.” Again,
Short cites no authority for this proposition. Not only is his
argument unsupported, it runs contrary to the doctrine of
merger of judgments. Under this doctrine, “once final judgment
is entered, all preceding interlocutory rulings that were steps
towards final judgment merge into the final judgment and
become appealable at that time.” Butler v. Corporation of President
of Church of Jesus Christ of Latter-Day Saints, 2014 UT 41, ¶ 24 n.6,
337 P.3d 280 (quotation simplified).
20151055-CA 6 2018 UT App 178Ross v. Short
¶17 Short has not identified any mistake in the Judgment or
any other reason for granting relief. Consequently, he cannot
establish that the district court abused its discretion in denying
his rule 60(b) motion based on lack of finality.
B. Fraud or Mistake
¶18 Similarly, the district court did not abuse its discretion
when it denied relief from the Judgment on the grounds of fraud
or mistake. Short argues that the Bogart Declaration misstated
the amount of attorney fees incurred because it included fees
associated with litigating the rule 11 motion for sanctions. The
Sanctions Order granted attorney fees incurred in responding to
the “subject motions,” which Short interprets to mean only the
underlying motions found to be in violation of rule 11.
¶19 In denying the rule 60(b) motion, the district court found
that the Bogart Declaration was not misleading, because it
reflected a reasonable reading of the Sanctions Order. The court
had directed Bogart to submit “an affidavit of attorney fees and a
proposed order . . . detailing the amount incurred in responding
to the subject motions.” The district court found that Bogart
reasonably interpreted the Sanctions Order as encompassing the
“costs and fees incurred in preparing and arguing the motions
for sanctions and otherwise responding to [Short’s] improper
and abusive filings.” Therefore, the court found that “there was
no misrepresentation or fraud in Mr. Bogart’s Declaration.”
¶20 Because rule 60(b) relief is subject to the court’s discretion,
the district court also considered “the fairness of providing the
requested relief.” The court noted that Short did not file any
objection to the Bogart Declaration despite ample opportunity to
do so. In fact, the district court noted that it “waited an extra two
weeks after the Fee Request was submitted to allow for any
objections,” but “[n]one was filed.” The court concluded that the
requested relief was inappropriate when “Short had every
20151055-CA 7 2018 UT App 178Ross v. Short
opportunity to oppose the Motions for Sanctions and the Fee
Request and did not oppose either of them.”
¶21 “A trial court has discretion in determining whether a
movant has shown rule 60(b) grounds, and this court will
reverse the trial court’s ruling only when there has been an
abuse of discretion.” Swallow v. Kennard, 2008 UT App 134, ¶ 19,
183 P.3d 1052 (quotation simplified). Here, the district court
determined that the Judgment was not a product of fraud or
mistake, because the Bogart Declaration was a plausible
interpretation of the Sanctions Order. In addition, the court
determined that granting the requested relief would be
inappropriate where Short waited until after the final judgment
was entered before claiming that the declaration was misleading.
Short has not established that either determination amounted to
an abuse of discretion. Because Short failed to show grounds for
relief from the Judgment, we affirm the court’s denial of the
rule 60(b) motion.
II. Reconsideration of Prior Decisions
¶22 Short contends that the district court improperly refused
to reconsider prior decisions made by a predecessor judge. This
same argument was raised in the companion appeal, Ross v.
Barnett, 2018 UT App 179, which we also decide today. For the
reasons fully set forth in that opinion, the district court acted
well within its discretion in declining to reconsider issues
already decided against Barnett. Id. ¶¶ 37–41. In any event, Short
has not explained why he would have standing to challenge
adverse decisions relating to his client in this separate appeal
challenging rule 11 sanctions against him personally.
¶23 The only argument Short makes relevant to this appeal is
that the district court had an obligation to retry the motion for
sanctions and make its own findings of fact and conclusions of
law as to why each of Short’s challenged filings lacked an
adequate factual or legal basis. Short raised this issue in his
20151055-CA 8 2018 UT App 178Ross v. Short
motion to vacate the Judgment when he argued that the
predecessor judge had not made adequate findings to support
the imposition of sanctions, leaving that task to the new judge.
See Utah R. Civ. P. 11(c)(3) (“When imposing sanctions, the court
will describe the conduct determined to constitute a violation of
this rule and explain the basis for the sanction imposed.”).
¶24 The district court properly declined to revisit the
adequacy of the findings because a final order had been entered
on that issue. “Trial courts have clear discretion to reconsider
and change their position with respect to any orders or decisions
as long as no final judgment has been rendered.” Brookside Mobile
Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 18, 48 P.3d 968. But the
district court expressly found that a final judgment had been
entered regarding the rule 11 sanctions. As the district court
correctly observed, “[i]n the context of post-judgment
proceedings, orders may become final and subject to appeal
seriatum. So long as the order fully disposes of the matter(s) to
which it is addressed, it is final for purposes of appeal.” See
Barnett, 2018 UT App 179, ¶ 20. Although the Sanctions Order
itself “expressly state[d] that one thing remained to be
completed—a declaration of fees to be filed by counsel for
Plaintiffs,” the Fees Order left no issues unresolved and
constituted a final, appealable order. Short failed to file a timely
appeal and was not entitled to bypass the appellate process by
asking the district court to review a prior decision that had been
reduced to a final, appealable order.
III. Authority to Impose Sanctions
¶25 Finally, Short challenges the district court’s authority to
enter the Judgment. Short’s principal argument rests on the
faulty premise that the district court lacked “jurisdiction to
adjudicate any question of ownership between Barnett and GFS
in these supplemental proceedings.” Therefore, Short argues, the
district court had no “inherent or rule 11 authority to sanction
counsel in proceedings it ha[d] no judicial authority to conduct.”
20151055-CA 9 2018 UT App 178Ross v. Short
For the reasons set forth in Ross v. Barnett, 2018 UT App 179, the
district court had jurisdiction over these supplemental
proceedings in which Barnett elected to intervene. Id. ¶¶ 25–32.
¶26 In any event, the district court’s authority over an
attorney appearing before the court is not dependent on the
court’s jurisdiction over the underlying action or over the party
the attorney represents. Under rule 11, any attorney or party
who files a pleading, written motion, or other paper to the court
is subject to sanctions for violating the rule. See Utah R. Civ. P.
11(b), (c). In addition, the court has “inherent power to control
the conduct of attorneys and litigants whose actions interfered
with the administration of justice and resulted in wasted time
and effort by opposing counsel.” Maxwell v. Woodall, 2014 UT
App 125, ¶ 7, 328 P.3d 869 (quotation simplified).
¶27 For the same reasons, we reject Short’s argument that the
district court lacked subject matter jurisdiction to enter a
judgment against him because he is not a “party” to the case.
Short’s argument ignores the language of rule 11, which
expressly authorizes courts to impose sanctions, not just against
parties, but against attorneys who violate the rule. See Utah R.
Civ. P. 11. It also ignores the court’s well-established inherent
authority and power to sanction attorneys:
The summary jurisdiction which the court has over
its attorneys as officers of the court is inherent,
continuing, and plenary and ought to be assumed
and exercised not only to maintain and protect the
integrity and dignity of the court, to secure
obedience to its rules and process, and to rebuke
interference with the conduct of its business, but
also to control and protect its officers, including
attorneys.
Griffith v. Griffith, 1999 UT 78, ¶ 13, 985 P.2d 255 (quotation
simplified). In light of this authority, Short’s contention that a
20151055-CA 10 2018 UT App 178Ross v. Short
court lacks jurisdiction to enter a judgment of sanctions against
an attorney is baseless. 2
IV. Attorney Fees
¶28 Ross and Wagner request their attorney fees incurred in
responding to this appeal. Under rule 33 of the Utah Rules of
Appellate Procedure, if the court determines an appeal taken “is
either frivolous or for delay, it shall award just damages, which
may include single or double costs, as defined in Rule 34, and/or
reasonable attorney fees, to the prevailing party.” Utah R. App.
P. 33(a). An appeal “interposed for the purpose of delay is one
interposed for any improper purpose such as to harass, cause
needless increase in the cost of litigation, or gain time that will
benefit only the party filing the appeal.” Id. R. 33(b).
¶29 We agree with Ross and Wagner that this appeal is not
simply meritless but part of a “long-standing pattern of abusive
and obstructive conduct.” The never-ending and duplicative
filings in this case, including the filing of seven separate appeals,
appear designed to make this litigation prohibitively expensive.
And we cannot escape the conclusion that this particular appeal
is an effort by Short to gain time while he avoids paying the
sanctions ordered by the district court.
¶30 We thus grant Ross and Wagner’s request and remand to
the district court to calculate the reasonable amount of attorney
fees and costs that they incurred in connection with this appeal.
2. Short also contends that the district court lacked jurisdiction to
order him to pay a nonparty attorney directly. While the Fees
Order directed Short to “pay to [Bogart’s law firm] the amount
of $27,981.07,” the Judgment does not contain such a directive.
Instead, the Judgment from which Short appeals orders that
“Plaintiffs recover from Douglas R. Short $27,981.07,” plus
interest.
20151055-CA 11 2018 UT App 178Ross v. Short
CONCLUSION
¶31 The district court acted within its discretion in denying
Short’s motions to vacate the Judgment and in declining to
reconsider its prior decisions. We also reject Short’s challenge to
the district court’s jurisdiction given the court’s well-established
authority to impose sanctions against attorneys appearing before
it. Accordingly, we affirm and remand for an award of attorney
fees and costs incurred by Ross and Wagner in defending this
appeal.
20151055-CA 12 2018 UT App 178