Ross v. Short

• Decision Date: 20 September 2018
• Docket Number: No. 20151055-CA,20151055-CA
• Citation: 436 P.3d 318
• Parties: Yan ROSS and Randi Wagner, Appellees, v. Douglas R. SHORT, Appellant.
• Court: Utah Court of Appeals

436 P.3d 318

Yan ROSS and Randi Wagner, Appellees,

v.Douglas R. SHORT, Appellant.

No. 20151055-CA

Court of Appeals of Utah.

Filed September 20, 2018

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.

Opinion

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.

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).

¶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.

¶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 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 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).

¶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 ...