North Park Holdings v. Duke RentalNorth Park Holdings v. Duke Rental
Joseph M. Chambers, Attorney for Appellant
Matthew N. Evans and Jacob G. Roberts, Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.
Opinion
HARRIS, Judge:
¶1 North Park Holdings LLC (North Park) sued an adjoining landowner, Duke Rental Co. LLC (Duke), in an attempt to resolve a dispute about the scope of an easement Duke holds over North Park‘s property. But the district court dismissed North Park‘s complaint as a sanction for North Park‘s failure to meet the court‘s specific deadline for it to pay a roughly $8,000 attorney fees award that the court had ordered earlier in the case related to a lis pendens that North Park had placed on Duke‘s property.
¶2 North Park appeals both the dismissal of its lawsuit as well as the propriety of the attorney fees award. It asserts that the district court had no jurisdiction—due to the temporary pendency of an interlocutory appeal—to issue the sanctions order dismissing its complaint. And it complains that the court‘s underlying fees award was improper because the court abused its discretion in determining that North Park had no substantial justification for filing the lis pendens. We disagree with North Park on both counts and therefore affirm the court‘s orders.
BACKGROUND
¶3 North Park owns property that is bordered on the south and west by Duke‘s property. Historically, Duke‘s property consisted of two separate parcels, one of which—the western one, which would have been otherwise landlocked—had been granted an easement over an eighteen-foot-wide corridor of North Park‘s parcel for the purpose of ingress and egress. The easement runs along the south edge of North Park‘s property, along the boundary with Duke‘s southern parcel. Duke‘s predecessor-in-interest purchased both the western and the southern parcels and combined them, and it later conveyed the larger unified parcel to Duke. Because the southern parcel was never landlocked, Duke‘s combined larger parcel is not landlocked.
¶4 For many years, a fence existed on or near the southern boundary of North Park‘s property, where that parcel abuts Duke‘s property. Just north of that fence sits the eighteen-foot corridor of North Park‘s property that is subject to the Duke easement. Duke took steps to develop its combined parcel, and the relevant municipality informed Duke that, in order to undertake the type of development it wanted, it needed a thirty-foot-wide access lane. Without seeking North Park‘s permission, Duke proceeded to tear down the historical fence that had existed between its property and North Park‘s, and it created a thirty-foot-wide access lane that consisted of twelve feet of its own property plus the eighteen feet on the North Park side of the line that is subject to the easement.
¶5 North Park objected to Duke‘s actions and later sued Duke, asserting that Duke had trespassed on its property and that it had improperly used and expanded its easement. Specifically, North Park sought (1) “a declaration that it has a recognized property interest in the fence,” (2) damages for trespass, (3) attorney fees, and (4) an injunction requiring Duke to restore the fence and preventing Duke from “expanding” the easement to benefit the entire unified parcel. A few months after filing its complaint, North Park filed a lis pendens on Duke‘s property, asserting that the lawsuit it had filed “affects the title to, or the right to possession of,” Duke‘s property.
¶6 Later, Duke asked North Park, in a written letter between counsel, to “immediately remove the lis pendens,” asserting that North Park had “absolutely no interest in [Duke‘s] property” and that, if the lis pendens were not removed soon, Duke would file a motion asking the court to remove it and
¶7 After a hearing, the district court granted Duke‘s motion, issuing a written order that “release[d] the lis pendens if it [was] not already released,” and stating in an oral ruling that North Park “did not act with substantial justification in filing the lis pendens because the litigation relates to the scope of [Duke‘s] easement, not Duke‘s title to or possession of [its] real property.” Later, the court issued a separate order granting Duke‘s request for attorney fees, and in that same order it dismissed several—but not all—of North Park‘s causes of action on summary judgment. The court later quantified that attorney fees award, ordering North Park to pay Duke $8,130.50.
¶8 About two months then went by, and North Park took no action to pay the awarded attorney fees, apparently believing that it had no obligation to pay until after entry of a final judgment, either in the case as a whole or as to the fees specifically. Duke then filed a motion for an order requiring North Park to show cause why it should not be held in contempt for not complying with the order commanding it to pay attorney fees to Duke. North Park filed a lengthy memorandum in opposition to the motion, asserting (among other things) that “no enforcement of the order can take place until the case is concluded and the judgment is a final judgment.” After full briefing and oral argument, the court declined Duke‘s invitation to hold North Park in contempt, finding that North Park‘s failure to comply with its order was not willful. But the court entered another order—dated June 2, 2023—clarifying that its intent in entering the original attorney fees order was that the order “was to be complied with as a final judgment.” Indeed, it stated that its earlier order commanding North Park to pay attorney fees was to be considered “a final judgment . . . in accordance with Rule 54(b) of the Utah Rules of Civil Procedure.” And it gave North Park a specific deadline by which it must pay the attorney fees: July 24, 2023.
¶9 Thereafter, North Park filed an appeal from the June 2 order, but it did not seek any stay of the court‘s order commanding it to pay the fees by July 24. At that point, the district court case was not over; indeed, at least one of North Park‘s causes of action remained pending. But North Park considered the June 2 order immediately appealable pursuant to rule 54(b). A few weeks later, on August 31, this court dismissed North Park‘s appeal, concluding that the order “was improperly certified under rule 54(b).”
¶10 While North Park‘s rule 54(b) appeal was pending in this court, July 24 came and went, and North Park failed to pay Duke the amount ordered. On August 2, Duke filed another motion for an order requiring North Park to show cause why it should not be held in contempt for not paying the ordered attorney fees. Duke asserted that North Park‘s continued failure to pay the fees—even after the court‘s second order and the imposition of a deadline—constituted a knowing and willful violation of the court‘s order. As a possible contempt sanction, Duke proposed that the court “enter default against” North Park. Despite being served with a copy of the motion, North Park filed no opposition to it. After the time for the filing of any opposition memorandum had passed, Duke submitted its motion for decision, and it submitted a proposed order holding North Park in contempt of court for refusing to pay the attorney fees award, and stating that, as a sanction, its complaint be stricken and all of its remaining claims be “dismissed with prejudice.” About a week later, on August 28, after receiving no objection to the proposed order from North Park, the district court signed the order, finding that North Park “willfully and knowingly refused to comply” with the court‘s order and sanctioning North Park by striking its complaint and dismissing all of its causes of action that remained pending.
ISSUES AND STANDARDS OF REVIEW
¶11 North Park now appeals, and it challenges two different rulings made by the district court. First, it challenges the court‘s order dismissing its remaining claims1 as a sanction for its failure to comply with the attorney fees order. As we explain later, North Park failed to preserve any non-jurisdictional objection to that order. And we review its jurisdictional challenge for correctness. See Summerhaze Co. v. Federal Deposit Ins. Corp., 2014 UT 28, ¶ 8, 332 P.3d 908 (“Whether a district court has subject matter jurisdiction is a question of law and we review the district court‘s determination for correctness.” (cleaned up)).
¶12 Second, North Park challenges the district court‘s attorney fees order, asserting that the award of fees was improper. In this case, that question turns on whether North Park “acted with substantial justification” in filing the lis pendens against Duke‘s property. See
ANALYSIS
I. The Sanctions Order
¶13 North Park‘s first challenge is to the district court‘s August 28 order dismissing its remaining claims as a sanction for its failure to comply with the court‘s order commanding it to pay attorney fees to Duke.
¶14 We note at the outset that North Park—by failing to lodge any opposition to Duke‘s second motion for an order to show cause—has failed to preserve for our review any non-jurisdictional objection to the court‘s sanctions order. “Our preservation requirement is well-settled: we require parties to have raised and argued before the district court the issue that they raise and argue before us on appeal, and if a party does not, it has failed to preserve the issue.” True v. Utah Dep‘t of Transp., 2018 UT App 86, ¶ 23, 427 P.3d 338 (cleaned up). A party seeking review of an unpreserved issue “must establish the applicability of one of the preservation exceptions to persuade an appellate court to reach that issue.” Id. ¶ 29 (cleaned up). And here, at least with regard to non-jurisdictional objections, North Park does not assert that any of the exceptions to our preservation rules apply.
¶15 But North Park can assert subject-matter-jurisdiction-based objections to the sanctions order, even if those objections are unpreserved. See In re adoption of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702 (“One exception to the preservation requirement is subject matter jurisdiction. Because subject matter jurisdiction goes to the heart of a court‘s authority to hear a case, . . . it is not subject to waiver and may be raised at any time, even if first raised on appeal.“). In this vein, it asserts that the sanctions order is jurisdictionally infirm because, at the time that order was entered, North Park‘s rule 54(b) appeal was still pending, a fact that North Park believes deprived the district court of subject matter jurisdiction to enter the sanctions order. We disagree.
¶16 To be sure, a district court “loses jurisdiction over the matters on appeal”
¶17 In this case, the district court certified only the attorney fees award for immediate appealability. Under these circumstances, the court retained jurisdiction over all remaining claims in the case, including North Park‘s substantive claims that had survived the earlier summary judgment ruling. For this reason alone, the court had jurisdiction to consider whether to dismiss those claims as a sanction for North Park‘s behavior.
¶18 Moreover, even with regard to the fees order that had been certified for appeal, the district court retained jurisdiction to consider issues related to enforcement of that order. Even after an appeal is filed, a district court “retains the power to act on collateral matters,” Thorp, 2021 UT App 118, ¶ 38 (cleaned up), including—absent imposition of a stay of enforcement—matters involving the enforcement of the judgment that is the subject of the appeal, see, e.g., Mardanlou v. Ghaffarian, 2015 UT App 128, ¶ 19, 351 P.3d 114. Our caselaw “distinguishes between enforcing a judgment and amending or altering a judgment.” Id. While a judgment that is the subject of an appeal “is no longer open to any amendment, revision, [or] modification” by a district court while that appeal remains pending, district courts “possess jurisdiction to enforce” the judgment. Id. (cleaned up); see also Cheves v. Williams, 1999 UT 86, ¶ 46, 993 P.2d 191 (stating that, “[i]n order to stay enforcement of a judgment pending appeal,” a litigant must “apply to the [district] court for a stay,” and that without such a stay, “the judgment is immediately enforceable“);
¶19 For all of these reasons, we conclude that—the rule 54(b) appeal notwithstanding—the district court retained jurisdiction over North Park‘s remaining claims as well as jurisdiction to consider matters related to enforcement of the attorney fees order, and that it therefore had jurisdiction to enter the August 28 sanctions order. On that basis, we reject North Park‘s jurisdictional objection and affirm the sanctions order, including that order‘s dismissal of all of North Park‘s remaining claims.
¶20 North Park‘s second challenge is to the attorney fees order that it attempted to appeal earlier. It is entitled to appeal that order now, because all of the remaining claims have been resolved and a final order has been entered. The court entered the attorney fees order after concluding that North Park had improperly filed a lis pendens on Duke‘s property, and after finding that North Park had not “acted with substantial justification” in doing so. North Park challenges the court‘s attorney fees award, but it does not challenge the amount or the reasonableness of the award. Instead, North Park asserts that no award should have been entered in the first place because, in its view, it acted with substantial justification in placing the lis pendens on Duke‘s property. Thus, we understand North Park‘s challenge to be limited to the court‘s “substantial justification” finding, which (as noted, supra ¶ 12) we will disturb only if we conclude that it is clearly erroneous. For the reasons discussed, we conclude that North Park has not carried its burden of persuading us that the court‘s finding was clearly erroneous.
¶21 Under Utah law, “[a]ny party to” a lawsuit filed in Utah “that affects the title to, or the right to possession of, real property may file a notice of pendency of action” and “record a copy of the notice . . . with the county recorder in the county where the property . . . is located.”
¶22 After a lis pendens has been filed, any party to the lawsuit or any “person with an interest in the real property affected by the notice” may file a motion asking the court “to release the notice.”
¶23 In this case, North Park filed a lis pendens against Duke‘s property, asserting that the parties’ lawsuit regarding the scope of Duke‘s easement over North Park‘s property was a lawsuit “that affect[ed] the title to, or the right to possession of,” Duke‘s real property.
¶24 North Park now challenges the “substantial justification” finding. In support of its challenge, it asserts that Duke had no right to expand the scope of its easement to benefit its entire combined parcel (rather than just its western parcel). But it nowhere attempts to rebut or engage with Duke‘s assertion—and the district court‘s key determination—that, even assuming Duke overburdened its easement over North Park‘s property, a lawsuit about the scope of that easement does not impact “title to, or the right to possession of,” Duke‘s property. See
¶26 Such is the situation here. On appeal, North Park focuses the entirety of its argument on its assertion that Duke‘s expanded use of the easement “overburdens the servient estate as a matter of law.” However, the issue before us on appeal involves more than mere assessment of the scope of the easement and whether Duke overburdened it; rather, the overarching issue is whether North Park had a substantial justification for filing the lis pendens. For purposes of our analysis, we assume—without deciding—that Duke did overburden its easement. But it does not necessarily follow, from that proposition, that North Park had the right to file a lis pendens on Duke‘s property; indeed, the district court determined that litigation about the scope of Duke‘s easement over North Park‘s property did not concern the title to, or the possession of, Duke‘s property. And here on appeal, North Park makes no effort to engage with that determination. Its failure to make that effort compels us to conclude that North Park has not carried its burden of persuading us that the district court‘s reasoning was incorrect. We therefore affirm the court‘s determination on that basis.3
CONCLUSION
¶27 We affirm the district court‘s sanctions order because the court had jurisdiction to enter it and because North Park failed to preserve any non-jurisdictional objections to it. And we affirm the court‘s attorney fees order because North Park has not carried its burden, here on appeal, of demonstrating that the district court‘s “substantial justification” determination was clearly erroneous.