Gilbert v. Third Dist Ct JJs, 379 P.3d 1263

Background

Utah Down Syndrome Foundation sued a splinter group (Utah Down Syndrome Association) and several former officers/directors (Individual Defendants) for conversion, misappropriation, and breach of fiduciary duty after the defendants allegedly retained Foundation funds, accounts, and trade identity.
In May 2007 the district court entered an injunction (Injunction) finding the Individual Defendants had no authority to act in the Foundation’s name and restraining access to the Foundation’s bank accounts; counsel for the defendants withdrew and did not appeal.
Donald D. Gilbert Jr., who later represented the Association and some Individual Defendants, was alleged to have accepted payments from Foundation accounts subject to the Injunction; the Foundation moved for disgorgement.
In 2008 the court entered a disgorgement judgment against Gilbert for $30,000 (Disgorgement Order); Gilbert never paid and later faced professional discipline.
Gilbert separately sought to vacate the Disgorgement Order (Motion to Vacate) and later relief from judgment based on a 2009 settlement; district court denied relief, Gilbert sought appellate review and extraordinary relief at various times but repeatedly delayed and failed to intervene when instructed.
The Utah Supreme Court denied Gilbert’s 2015 petition for extraordinary relief, primarily because of unreasonable delay and because he had available remedies (intervention and direct appeal) that he did not pursue.

Issues

Issue	Gilbert's Argument	Respondents' Argument	Held
Jurisdiction to enter Disgorgement Order against Gilbert who was not a named party	Disgorgement order is void for lack of personal jurisdiction; Gilbert was not served or a formal party	District court had jurisdiction over funds and attorney who knowingly accepted funds in violation of Injunction	Court declined relief; did not reach merits due to delay and procedural failures
Validity/scope of the 2007 Injunction restraining access to Foundation funds	Injunction exceeded court’s authority and deprived Gilbert of due process when applied to him	Injunction properly identified and restrained funds; Gilbert had duty to avoid accepting those funds	Court denied extraordinary relief given Gilbert’s untimely challenges and failure to appeal earlier
Denial of 2010 Motion to Vacate (procedural/due process claim)	Denial violated due process because Gilbert was a nonparty and lacked notice/ability to defend	Gilbert, as counsel and recipient, was aware of Injunction and subject to court’s continuing jurisdiction over the funds	Relief denied; delays and failure to follow available procedures preclude extraordinary relief
Denial of 2014 Motion for Relief from Judgment (failure to seek intervention)	Gilbert refused to intervene to preserve his jurisdictional challenge; intervention would have waived his defense	Gilbert could have intervened and preserved personal jurisdiction defense in his initial pleading; intervention was a plain, speedy, adequate remedy	Court refused extraordinary relief: Gilbert had an adequate remedy (intervene and appeal) and unreasonably delayed pursuing extraordinary relief

Key Cases Cited

State v. Barrett, 127 P.3d 682 (Utah 2005) (factors for granting extraordinary relief and two-step analysis)
Utah Down Syndrome Found., Inc. v. Utah Down Syndrome Ass’n, 293 P.3d 241 (Utah 2012) (nonparty must intervene or seek extraordinary relief; guidance on preserving jurisdictional defenses)
State v. Henriod, 131 P.3d 232 (Utah 2006) (discretionary nature of extraordinary relief)
Snow, Christensen & Martineau v. Lindberg, 299 P.3d 1058 (Utah 2013) (scope of appellate discretion in extraordinary relief)
Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Lindberg, 238 P.3d 1054 (Utah 2010) (laches can bar untimely extraordinary petitions)
Cox v. Laycock, 345 P.3d 689 (Utah 2015) (consideration of urgency and timing in granting extraordinary relief)
Anderson v. Baker, 296 P.2d 283 (Utah 1956) (extraordinary relief is not a vehicle for general review)
Renn v. Utah State Bd. of Pardons, 904 P.2d 677 (Utah 1995) (timeliness requirement for petitions under rule 65B)