Livingston Financial, LLC v. Migliore
299 P.3d 620
Utah Ct. App.2013Background
- Migliore filed a notice of appeal in June 2012 from three orders: Jan 14, 2010; Dec 16, 2011; and May 23, 2012 awarding Livingston attorney fees.
- The court dismissed Migliore’s appeal as to the Jan 14, 2010 and Dec 16, 2011 orders for lack of jurisdiction due to untimely filings.
- The court has jurisdiction to review the May 12, 2012 order granting attorney fees and affirms that order.
- The Jan 14, 2010 order granting Livingston summary judgment was final and appealable, but Migliore did not timely appeal or toll time under Rule 4(b).
- Migliore’s November 2011 renewed motion to set aside void judgment was denied in Dec 2011; that decision was final and appealable, but Migliore did not timely appeal the Dec 2011 ruling.
- Livingston sought attorney fees under Rule 73 and Utah Code Ann. § 78B-5-825, arguing the action was without merit and not brought in good faith; the district court awarded $5,035 in fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Jan 14, 2010 and Dec 16, 2011 orders are timely on appeal | Migliore contends the orders should be appealable. | Livingston argues untimeliness deprives review. | Appeal of Jan 14, 2010 and Dec 16, 2011 orders dismissed for lack of jurisdiction. |
| Whether the district court properly awarded attorney fees under §78B-5-825 | Migliore challenges the fee award as unsupported. | Livingston shows prevailing party, lack of merit, and bad faith. | May 12, 2012 order affirming the attorney fee award upheld. |
| Whether the renewed motion to set aside was filed in bad faith | Migliore asserts not filed in bad faith. | Livingston claims renewed motion delayed collection and was frivolous. | District court correctly found the renewed motion frivolous; bad-faith finding supports fees. |
| Whether the admonishment related to Rule 11 sanctions was properly addressed on appeal | Migliore argues admonishment is an appealable sanction. | The sanction issue was not properly before the court. | Claim is beyond the scope of the appeal; no separate Rule 11 sanction ruling on appeal. |
Key Cases Cited
- Hermes Assocs. v. Park’s Sportsman, 813 P.2d 1225 (Utah 1991) (statutory/fee-shifting prerequisites for fee awards)
- Gallegos v. Lloyd, 178 P.3d 922 (Utah Ct. App. 2008) (mixed question of law and fact for fees; merit)
- Blum v. Dahl, 2012 UT App 198, 283 P.3d 963 (Utah Ct. App. 2012) (bad-faith standard for fee rulings)
- Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950 (Utah Ct. App. 1989) (rule 60(b) and finality; denial of relief as appealable order)
- Golden Meadows Prop., LC v. Strand, 241 P.3d 371 (Utah Ct. App. 2010) (fee-shifting on appeal; prevailing party fees on appeal)