Migliore v. Livingston Financial, LLC
2015 UT 9
| Utah | 2015Background
- Livingston Financial sued Migliore on a credit agreement; Migliore (pro se) did not answer but filed a motion for a more definite statement and later imperfect discovery responses.
- Livingston moved for summary judgment based on deemed admissions under Utah R. Civ. P. 36; the district court deemed admissions and entered summary judgment, disposing of Rule 73 fee claim.
- Migliore first moved for reconsideration under Rule 60(b), alleging lack of notice and mental hospitalization; the district court denied that motion.
- Nearly two years later Migliore (with counsel) filed a renewed Rule 60(b) motion arguing the judgment was void for lack of due process; the district court denied it as untimely/meritless and called the motion frivolous, issuing an order to show cause re: Rule 11 sanctions.
- Livingston moved for statutory attorney fees under Utah Code § 78B-5-825; the district court awarded fees, withdrew the Rule 11 show-cause order as duplicative, and Migliore appealed only after the fee order.
- The court of appeals dismissed Migliore’s appeals of the summary judgment and the Rule 60(b) denial for lack of jurisdiction but affirmed the statutory-fee award; the Utah Supreme Court granted certiorari.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the denial of the renewed Rule 60(b) motion was a final, appealable order | Migliore: order was not final because the district court had not resolved attorney fees and had an outstanding show-cause re: Rule 11 | Livingston: the Rule 60(b) denial was final when entered; fee request was a subsequent, separate motion | Court: not final — pending show-cause (and prejudgment fee requests) precluded finality; appeals court erred on jurisdiction |
| Whether a pending Rule 11 show-cause/prejudgment fee request defeats finality like other attorney-fee requests | Migliore: ProMax logic (resolve fees before appeal) should extend to Rule 11 show-cause | Livingston: Rule 11 is collateral and should not affect finality | Court: extends ProMax — pending Rule 11 or fee requests render order nonfinal to avoid piecemeal appeals |
| Whether the renewed Rule 60(b)(4) motion established the original judgment was void for lack of due process | Migliore: he lacked notice/opportunity (hospitalization, confusion, name mix-up) making the judgment void and not time-barred | Livingston: Migliore had actual notice and opportunities (summons, discovery received); motion was meritless delay tactic | Court: Migliore had notice and opportunity; judgment not void; Rule 60(b) relief improper; denial affirmed |
| Whether attorney fees under Utah Code § 78B-5-825 were properly awarded | Migliore: renewed motion was not shown to be in bad faith; insufficient findings to support bad-faith award | Livingston: the renewed motion was meritless, filed two years later to delay collection — supports fee award | Court: two-part statutory test met — motion was without merit and district court’s bad-faith finding was supported; fee award affirmed |
Key Cases Cited
- ProMax Dev. Corp. v. Raile, 998 P.2d 254 (Utah 2000) (finality rule: resolve attorney-fee requests before appeal to avoid piecemeal appeals)
- Mascaro v. Davis, 741 P.2d 938 (Utah 1987) (order denying Rule 60(b) relief is generally final and appealable)
- Loffredo v. Holt, 37 P.3d 1070 (Utah 2001) (an appeal lies only from a final judgment; attorney-fee requests can affect finality)
- Judson v. Wheeler RV Las Vegas, L.L.C., 270 P.3d 456 (Utah 2012) (judgment is void only for lack of jurisdiction or deprivation of due process)
- United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (U.S. 2010) (due process satisfied where party had actual notice despite imperfect service)
- Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (U.S. 1990) (Rule 11 sanctions treated as collateral to merits under federal law)
- Valcarce v. Fitzgerald, 961 P.2d 305 (Utah 1998) (bad-faith standard for fee awards: subjective intent factors)