Migliore v. Livingston Fin., LLC

• Decision Date: 27 January 2015
• Docket Number: No. 20130337.,20130337.
• Citation: Migliore v. Livingston Fin., LLC, 2015 UT 9, 347 P.3d 394 (Utah 2015)
• Parties: Charles MIGLIORE, Petitioner, v. LIVINGSTON FINANCIAL, LLC, Respondent.
• Court: Utah Supreme Court

347 P.3d 394

2015 UT 9

Charles MIGLIORE, Petitioner

v.LIVINGSTON FINANCIAL, LLC, Respondent.

No. 20130337.

Supreme Court of Utah.

Jan. 27, 2015.

Rehearing Denied March 20, 2015.

Ronald Ady, Salt Lake City, for petitioner.

Christopher J. Rogers, Salt Lake City, for respondent.

Justice PARRISHauthored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice NEHRING, Justice DURHAM, and Justice LEE joined.

Justice PARRISH, opinion of the Court:

INTRODUCTION

¶ 1 On certiorari, petitionerCharles Migliore argues that the court of appeals erred when it held that it lacked jurisdiction to consider his challenge to the district court's denial of his renewed rule 60(b)motion due to his failure to file a timely notice of appeal.Mr. Migliore also argues that the court of appeals erred in affirming the district court's award of attorney fees pursuant to section 78B–5–825 of the Utah Code.

¶ 2We hold that the court of appeals erred when it concluded that it lacked jurisdiction to review the district court's denial of Mr. Migliore's renewed rule 60(b) motion.In the interest of judicial economy, we exercise our discretion to reach the merits of the claim and hold that Mr. Migliore's renewed rule 60(b) motion was improper and without merit.We therefore reach the same result as the court of appeals.We also affirm the court of appeals' award of attorney fees pursuant to Utah Code section 78B–5–825.

BACKGROUND

¶ 3This case involves a debt collection action arising from a credit agreement between U.S. Bank and Mr. Migliore.In July 2009, Livingston Financial, LLC(Livingston), as assignee for U.S. Bank, brought suit against Mr. Migliore for breach of the credit agreement.The complaint also included a claim for reasonable attorney fees based on the contractual agreement generating the debt, or alternatively under Utah Rule of Civil Procedure 73.Mr. Migliore appeared pro se in the action, but did not file an answer to the complaint.Instead, Mr. Migliore responded with a motion for a more definite statement.

¶ 4 Thereafter, Livingston served its first discovery requests on Mr. Migliore.Mr. Migliore objected to each of Livingston's requests for admission and responded that he“lack[ed] the knowledge or information sufficient to admit or deny, therefore denie[d] the same.”Livingston then moved for summary judgment on the basis that Mr. Migliore's failure to properly respond resulted in the requests being “deemed admitted” pursuant to rule 36 of the Utah Rules of Civil Procedure.SeeUtah R. Civ. P. 36(a)(1)(2009).

¶ 5 The version of rule 36 in effect at the time stated that a “matter is admitted unless, within thirty days after service of the request, ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection.”Id.36(a)(2).Though Mr. Migliore had objected, in writing, to each of Livingston's requests, rule 36 also specified that a party could not “give lack of information or knowledge as a reason for failure to admit or deny unless he state[d] that he ha[d] made reasonable inquiry and that the information known or readily obtainable by him [was] insufficient to enable him to admit or deny.”Id.Because Mr. Migliore had relied on a lack of knowledge, but had failed to specify that he had undertaken a reasonable inquiry, Livingston argued that he had not properly responded to its requests for admission.The district court agreed, deemed the requests admitted, and granted Livingston's motion for summary judgment.The district court's summary judgment order fully disposed of the issues before the court, including Livingston's request for attorney fees pursuant to rule 73 of the Utah Rules of Civil Procedure.

¶ 6 Mr. Migliore thereafter filed a motion to reconsider summary judgment and requested a hearing pursuant to rule 60(b) of the Utah Rules of Civil Procedure.Mr. Migliore asserted that he had failed to answer Livingston's summons and complaint because he was waiting for a response to his earlier motion for a more definite statement and because he had been committed to a mental hospital shortly after being served with the complaint.He further asserted that he had not properly responded to Livingston's discovery requests because he“had forgotten about the Summons and Complaint served months earlier” and had “made a mistake of assuming there had been no initial service.”In his motion to reconsider, Mr. Migliore argued for the first time that the credit account at issue was not his.He asserted that the debt might belong to his father, who shares his same name, but he offered no evidence to support that assertion.Following briefing, the district court held a hearing and denied Mr. Migliore's motion to reconsider.

¶ 7 For nearly two years, the status of the case remained unchanged.Then Mr. Migliore filed through counsel a renewed motion to set aside void judgment pursuant to rule 60(b) of the Utah Rules of Civil Procedure.In his renewed motion, Mr. Migliore argued that the district court's summary judgment order was void because Mr. Migliore had been denied due process of law.Specifically, Mr. Migliore argued that he was denied notice and an opportunity (1) to respond to Livingston's complaint, (2) to respond to all of Livingston's arguments in favor of summary judgment, (3) to rectify the deficiencies in his responses to Livingston's requests for admission, and (4) to be heard on whether his discovery lapses were willful.Finally, Mr. Migliore argued that he had been denied due process because there was no evidence to support summary judgment in Livingston's favor.

¶ 8The district court denied the renewed motion.Specifically, the district court noted that Mr. Migliore had failed to demonstrate why his renewed motion was timely under rule 60(b), which requires parties to file within a “reasonable time ... after the judgment, order, or proceeding was entered.”Utah R. Civ. P. 60(b).The district court also noted that it reviewed the prior summary judgment proceedings and found that Mr. Migliore had received notice of Livingston's claims and had several opportunities to present evidence to counter those claims.The court ultimately concluded that Mr. Migliore had “failed to present any basis to preclude granting summary judgment in [Livingston's] favor” and denied the renewed rule 60(b) motion.

¶ 9 Not only did the district court find that the renewed motion was “without any merit,” it admonished Mr. Migliore for filing it, characterizing it as “frivolous.”Then, on its own initiative, the court issued an order to show cause as to why Mr. Migliore should not be subject to rule 11 sanctions.See id.11(c).Finally, the court admonished both Mr. Migliore and his counsel for “their overly aggressive tactics in dealing with the Court and its personnel,” referring to an altercation that occurred when Mr. Migliore and his counsel“verbally accosted” a clerk due to difficulties they were having with the court's e-filing system.Mr. Migliore did not appeal from that order.

¶ 10 Two weeks after entry of the district court's combined order, Livingston moved for attorney fees pursuant to section 78B–5–825 of the Utah Code, which directs the court to “award reasonable attorney fees to a prevailing party if the court determines that the action ... was without merit and not brought or asserted in good faith.”Mr. Migliore responded to the district court's order to show cause and opposed Livingston's motion for attorney fees.The district court held a hearing on Livingston's motion for fees in which it found that Livingston was entitled to a fee award.Specifically, it found that Livingston was the prevailing party, that Mr. Migliore's renewed rule 60(b) motion was without merit, and that the motion was brought with the goal of hindering or delaying Livingston's efforts to collect on the judgment.The district court thereafter issued its final written order granting Livingston's request for attorney fees.Contemporaneously, it issued a memorandum decision withdrawing its order to show cause concerning the rule 11 sanctions, reasoning that the award of fees pursuant to section 78B–5–825 was “a sufficient sanction.”

¶ 11 Mr. Migliore filed a notice of appeal that purported to challenge the original grant of summary judgment, the denial of the renewed rule 60(b) motion, and the order granting Livingston an award of attorney fees.The notice was filed more than thirty days from the original summary judgment order and the denial of the renewed rule 60(b) motion, but within thirty days from the order awarding fees.

¶ 12The court of appeals issued a per curiam opinion in which it dismissed both the appeal of the original summary judgment order and the order denying the renewed rule 60(b) motion on the basis that it lacked jurisdiction.Livingston Fin., LLC v. Migliore,2013 UT App 58, ¶ 1, 299 P.3d 620.It held that both the original summary judgment order and the order denying the renewed rule 60(b) motion were final appealable orders and that Mr. Migliore had not filed a timely notice of appeal pursuant to rule 4 of the Utah Rules of Appellate Procedure.Id.¶¶ 2–3.In so doing, the court of appeals rejected Mr. Migliore's contention that the order denying the renewed rule 60(b) motion did not become final until entry of Livingston's attorney fee award.It concluded that the initial order “fully resolved the motion then before the court” and that “Livingston sought its attorney fees in a subsequent motion.”Id.¶ 3.

¶ 13 Because it concluded that it lacked jurisdiction to consider Mr. Migliore's challenge to the original summary judgment order and the order denying the renewed rule 60(b) motion, the court of appeals addressed only the merits of his challenge to the award of attorney fees.It held that the district court's factual findings were sufficient to support the award of fees.Specifically, it held that a meritless motion filed nearly two years after issuance...