Ross v. Barnett

2018 UT App 179

THE UTAH COURT OF APPEALS

YAN ROSS AND RANDI WAGNER,
Appellees,
v.
MICHAEL BARNETT,
Appellant.

Opinion
No. 20160652-CA
Filed September 20, 2018

Third District Court, Salt Lake Department
The Honorable John Paul Kennedy and Ryan M. Harris
No. 070915820

Douglas R. Short, Attorney for Appellant
John H. Bogart, Attorney for Appellees

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.

HAGEN, Judge:

¶1 Appellant Michael Barnett asks this court to review
fourteen issues arising from supplemental proceedings in which
attorney Douglas R. Short represented Barnett as an intervenor.
In the underlying case, plaintiffs Yan Ross and Randi Wagner
obtained a judgment against defendant Global Fraud Solutions
(GFS). When Ross and Wagner sought a writ of execution
against GFS’s assets, GFS claimed that some of the assets were
owned by its general manager, Barnett, and thus were not
subject to execution to satisfy the judgment against GFS. Barnett
filed a motion to intervene and a motion to quash the writ of
execution. The district court granted the motion to intervene.
Following an evidentiary hearing on the motion to quash, the
district court found that Barnett was not credible and that the
 Ross v. Barnett

assets were the property of GFS. The district court denied the
motion to quash and enjoined Barnett from dissipating the
assets. The court made those rulings in September 2008.

¶2 During the ten years that followed, Barnett and Short
continually attacked those rulings. Among other things, Barnett
denied intervening as a party in the case, challenged the court’s
jurisdiction, disputed the court’s recollection of its September
2008 rulings, ignored the court’s decisions by raising the same
rejected arguments over and over again, and filed several
appeals that he failed to prosecute.

¶3 We have appellate jurisdiction over only a limited
number of issues raised on appeal. As to those issues, we reject
Barnett’s challenges and conclude that they are neither
grounded in fact nor on a good faith legal argument.
Accordingly, we affirm the district court’s ruling and remand for
an award of Ross and Wagner’s costs and attorney fees incurred
in defending this appeal.

BACKGROUND 1

¶4 In 2007, Ross and Wagner sued GFS for failure to repay an
unsecured loan, or debenture, and for breach of contract. With
respect to the first cause of action concerning the debenture, the
district court granted partial summary judgment in favor of Ross

1. This condensed summary of the proceedings below does not
do justice to the voluminous record in this case. Over the
past ten years, Barnett has inundated the district court with
repetitive filings, attempting to resurrect issues previously
decided. In addition, Barnett has filed seven different
appeals, most of which were dismissed based on his refusal to
comply with this court’s rules.

20160652-CA 2 2018 UT App 179
 Ross v. Barnett

and Wagner, awarding them the unpaid principal of $47,000,
plus interest, costs, and attorney fees.

¶5 Ross and Wagner sought a writ of execution against GFS’s
“tangible and intangible business assets” to satisfy the judgment.
GFS objected, claiming that certain assets were exempt from
execution because they were “owned by another person.” One
asset in particular was at issue—a bank account in the name of
The Institute of Fraud Risk Management (the TIFRM Account).
At a hearing on September 15, 2008, the district court found that
the TIFRM Account was the property of GFS and enjoined
dissipation of the account. As to GFS’s objection to the writ of
execution, the district court continued the evidentiary hearing to
September 25, 2008.

¶6 Before the evidentiary hearing, Barnett, the general
manager of GFS, filed a motion to intervene. Barnett also filed a
motion to quash the writ of execution, claiming that he, not GFS,
owned the assets subject to the writ.

¶7 At the evidentiary hearing on September 25, 2008, the
district court granted Barnett’s motion to intervene. After
hearing witness testimony, reviewing the exhibits submitted,
and considering counsels’ arguments, the district court ruled
“that the Assets were and are the property of Defendant GFS
and were not and are not owned by Intervenor Barnett.” The
court’s ruling was based on a finding that Barnett’s testimony
asserting ownership of the assets “was evasive and inconsistent
and not credible.” Additionally, the court made the following
findings of fact:

[T]he Court finds that the asset in this case is the
asset of GFS based upon the statements by Mr.
Barnett to the effect that he is GFS and based on
other indications that are set forth in the exhibits
that were introduced today including the sworn

20160652-CA 3 2018 UT App 179
 Ross v. Barnett

statement filed with the Court, including the
repeated statements in the various documents and
emails that have been presented.

The court continued the injunction issued on September 15 and
further enjoined Barnett from diverting funds from the TIFRM
Account.

¶8 Shortly thereafter, Ross and Wagner filed a motion for a
permanent injunction and a finding of contempt against Barnett,
claiming, among other things, that he was dissipating GFS’s
assets. Barnett’s attorney withdrew as counsel, and Short entered
a “special appearance” on behalf of Barnett. In addition to
objecting to Ross and Wagner’s pending motion, Short moved—
yet again—to quash the writ of execution on the grounds that
the assets belonged to Barnett personally.

¶9 On January 27, 2009, the district court held a hearing at
which Barnett challenged whether the court had jurisdiction
over him and whether the assets subject to execution belonged to
him or GFS. The court ruled that “Intervenor Barnett is a party in
this action and that the Court has jurisdiction over him, as a
result of the prior formal Motion for Intervention filed in this
action by Mr. Barnett through his previous attorney.” The court
also reiterated its finding from the prior evidentiary hearing that
the assets subject to execution are the property of GFS, not
Barnett.

¶10 Ross and Wagner prepared a written order memorializing
the January 27, 2009 ruling, but it was not entered until June 6,
2012 (the June 2012 Order). 2 Two weeks later, on June 20, 2012,

2. Barnett objected to the proposed June 2012 Order, claiming
that the court had not made any substantive rulings during the
January 27, 2009 hearing. Before the court could rule on Barnett’s
(continued…)

20160652-CA 4 2018 UT App 179
 Ross v. Barnett

Barnett filed a motion to reconsider or amend the June 2012
Order (the June 2012 Motion). The next day, Barnett filed a
motion for clarification, asking whether the court intended the
June 2012 Order to be final and appealable. Neither side ever
filed a notice to submit these motions for decision.

¶11 On December 18, 2012, the district court scheduled a
hearing on all pending motions. Before the hearing, Ross and
Wagner filed a memorandum in opposition to Barnett’s second
motion to quash the writ of execution, which they had filed on
January 27, 2009. Ross and Wagner filed a notice to submit
Barnett’s motion for decision, after which Barnett moved to
strike the opposition as untimely. Barnett also filed a motion to
strike the June 2012 Order on the grounds that it had been
entered by the court before considering Barnett’s objections. No
notice to submit that motion for decision was filed.

¶12 At the hearing on all pending motions held on February 7,
2013, the court denied Barnett’s motion to quash the writ of
execution as well as his motion to strike Ross and Wagner’s
opposition. In a subsequent written order entered on May 6,
2013 (the May 2013 Order), the court reiterated that it had

(…continued)
objection, however, Barnett filed a series of motions aimed at
disqualifying the district judge. Those motions were referred to
other judges for decision, along with a motion for rule 11
sanctions against Barnett filed by Ross and Wagner. The district
court deferred further action in this case until those matters were
decided. The order granting rule 11 sanctions was entered on
February 10, 2012. The following month, the court “directed the
parties to submit any outstanding unsigned orders.” At that
point, Ross and Wagner resubmitted the written order
memorializing the January 2009 hearing and the court entered
the order without objection.

20160652-CA 5 2018 UT App 179
 Ross v. Barnett

previously found, on September 15, 2008, that the assets
belonged to GFS and had later reaffirmed that finding on
numerous occasions, including the September 25, 2008 hearing,
the January 27, 2009 hearing, and in the June 2012 Order. The
court concluded that Barnett’s arguments “are a rehashing of
arguments previously considered and rejected by this Court”
and “[n]o good reason was set out for reconsideration.” 3

¶13 On May 31, 2013, Barnett filed a rule 52 motion to amend
the May 2013 Order. In his supporting memorandum, Barnett
again challenged the district court’s finding that GFS owned the
assets at issue “because any such purported finding of
ownership lacks any factual evidentiary support in the record.”
He also reiterated his argument that the June 2012 Order was
improperly entered over his objections. 4

¶14 Following a hearing, the district court signed a minute
entry order dated August 16, 2013, denying Barnett’s motion and
citing him for contempt. The court reiterated its earlier rulings,
including that (1) the “Court has had and continues to have
personal jurisdiction over” Barnett, who, “through his personal
appearance and through counsel, submitted to the jurisdiction of
the Court in 2008”; (2) the court “has subject matter jurisdiction
over this matter” because it “has inherent authority to enforce its
orders”; and (3) the court had ruled as far back as 2008 that the
challenged assets belonged to GFS.

3. The court also granted summary judgment in favor of Ross
and Wagner on their second cause of action for breach of
contract. A final order was entered on March 26, 2013, awarding
them $20,000, along with interest, costs, and attorney fees.

4. At this point, another round of motions to disqualify the
district court judge ensued, resulting in additional delays.

20160652-CA 6 2018 UT App 179
 Ross v. Barnett

¶15 Undeterred by this sixth adverse ruling on the ownership
of the assets, Barnett filed another series of motions asking for,
among other things, an amended judgment or a new trial. On
January 24, 2014, the district court struck the filings as “riddled
with ‘redundant, immaterial, impertinent or scandalous
matter.’” (Quoting Utah R. Civ. P. 10(h).) In addition, the court
ruled that “because the arguments raised in Barnett’s Rule 59
Motion have already been raised and rejected by the Court
previously, the Court sees no reason to reconsider its prior
rulings.” 5

¶16 Several years later, after the original judge retired and a
different judge had been assigned to the case, Barnett informed
the court that the June 2012 Motion was still outstanding. The
district court set a briefing schedule on the June 2012 Motion and
ultimately denied it in an order signed June 21, 2016 (the 2016
Ruling). The district court ruled:

By letting the Motion lie fallow for some four
years, Barnett essentially asks this Court to sit as an
appellate court and review a cold record for

5. Again, the proceedings were delayed. Ross and Wagner filed a
motion to reduce the previously ordered rule 11 sanctions to
judgment. When neither Barnett nor his attorney, Short,
appeared at the order to show cause hearing, the district court
held both in contempt. This touched off another series of
motions, which included a renewed effort by Barnett to
disqualify the district court judge as well as three motions by
Ross and Wagner seeking sanctions against Short. Proceedings
were stayed until the presiding judge determined that the
motion to disqualify was “unsupported by credible evidence
and based largely on adverse rulings and decisions.” Once the
stay was lifted, the district court granted Ross and Wagner’s
motions for sanctions against Short.

20160652-CA 7 2018 UT App 179
 Ross v. Barnett

alleged errors of law made by a different district
court judge. In the Court’s view, this is the proper
role of an appellate court on application through a
timely notice of appeal; it is not the proper role of
this Court on an obsolete motion filed four years
ago under Rule 52 or Rule 59 . . . . The considerable
time that has elapsed between when the motion
was filed and now renders the Motion stale. The
proceedings that have transpired in the interim
reinforce the point, and further militate against
considering the Motion nearly four years after it
was filed.

Among other things, the district court noted that Barnett had
unreasonably delayed in submitting the June 2012 Motion for
decision, had effectively challenged the rulings in the June 2012
Order through subsequent motions that the predecessor judge
rejected, and had filed multiple appeals purporting to challenge
the predecessor judge’s rulings, all of which were dismissed. The
court recognized its discretion to reconsider orders entered by a
previous judge, but it declined “to exercise its discretion to
undertake that reconsideration.”

¶17 Barnett and Short filed this appeal on July 20, 2016.

ANALYSIS

I. Appellate Jurisdiction

¶18 Barnett attempts to raise fourteen issues relating to
myriad rulings made throughout the protracted history of this
case. We have jurisdiction to review only those rulings from
which a timely notice of appeal was filed. Reisbeck v. HCA Health
Services of Utah, Inc., 2000 UT 48, ¶ 5, 2 P.3d 447 (“Failure to file a
timely notice of appeal deprives this court of jurisdiction over
the appeal.”). An appeal “shall be filed with the clerk of the trial

20160652-CA 8 2018 UT App 179
 Ross v. Barnett

court within 30 days after the date of entry of the judgment or
order appealed from.” Utah R. App. P. 4(a). “It is axiomatic in
this jurisdiction that failure to timely perfect an appeal is a
jurisdictional failure requiring dismissal of the appeal.” A.S. v.
R.S., 2017 UT 77, ¶ 35 n.12, 416 P.3d 465 (quotation simplified).

¶19 Here, the notice of appeal was filed on July 20, 2016. Only
a single order falls within the preceding thirty-day period—the
2016 Ruling issued on June 21, 2016. Two of the fourteen issues
on appeal arise from the 2016 Ruling. In issues one and three,
Barnett challenges the merits of the 2016 Ruling, arguing that the
district court improperly raised “staleness sua sponte” and
abused its discretion in refusing “to entertain challenges to the
alleged mistakes by its predecessor.” Because Barnett timely
appealed these two issues within thirty days of that ruling, we
have jurisdiction to address those issues.

¶20 All of the remaining issues relate to district court rulings
made before 2016, for which the time to file a notice of appeal
has long since run. Nonetheless, Barnett claims that his time to
file a notice of appeal was not triggered by these earlier rulings,
because they were not final, appealable judgments. 6 But “[t]he

6. We note that Ross and Wagner have argued, and the district
court agreed, that the prior rulings were final and appealable no
later than March 26, 2013, when partial judgment was entered on
Ross and Wagner’s only remaining cause of action. But the
underlying action against GFS and “the subsequent action
seeking enforcement of that judgment are separate proceedings,
each resulting in separate judgments that are then individually
subject to the rules of appellate procedure concerning appeals.”
Cheves v. Williams, 1999 UT 86, ¶ 52, 993 P.2d 191. Therefore, we
agree with Barnett that the March 26, 2013 partial judgment is
irrelevant to when the prior rulings in the supplemental
proceedings became final and appealable.

20160652-CA 9 2018 UT App 179
 Ross v. Barnett

final judgment rule does not preclude review of postjudgment
orders.” Cahoon v. Cahoon, 641 P.2d 140, 142 (Utah 1982). Instead,
postjudgment orders “are independently subject to the test of
finality, according to their own substance and effect.” Id. “Where
the effect of a postjudgment order is to determine substantial
rights and end the litigation regarding a specific issue in a
[supplemental] proceeding, the order will be a final order for
purposes of appeal.” Colleli v. Colleli, 2004 UT App 318U, para. 2
(per curiam).

¶21 During the course of these supplemental proceedings, the
district court issued multiple orders relating to the issues now on
appeal. Barnett has not undertaken an analysis of the substance
and effect of the district court’s earlier orders, instead claiming
that Ross and Wagner bear “the burden to prove the existence of
a final, appealable, supplemental order/judgment that was not
timely appealed.” But “[w]hen a jurisdictional question arises,
the burden to establish it rests upon the party asserting that
jurisdiction exists.” Thompson v. Jackson, 743 P.2d 1230, 1232 n.2
(Utah Ct. App. 1987) (per curiam). Barnett has not carried that
burden here.

¶22 We need not analyze the substance and effect of each of
the earlier orders, because we conclude that the time for filing a
notice of appeal on issues four through fourteen began to run no
later than January 24, 2014. 7 In a signed minute order dated
August 16, 2013, the court rejected Barnett’s challenges to subject
matter and personal jurisdiction (issues four and five);
reaffirmed its rulings made at the September 25, 2008 hearing

7. Issue two asks us to remand to the district court for a
determination of whether the June 2012 Order was final and
appealable. Because we conclude that the time for filing a notice
of appeal has long since run on all issues relating to the June
2012 Order, issue two is moot.

20160652-CA 10 2018 UT App 179
 Ross v. Barnett

(issues six, seven, eight, and nine); and held Barnett in contempt
(issues ten, eleven, twelve, and fourteen). The denial of Barnett’s
motion to disqualify the judge from making those rulings (issue
eleven) also became appealable at that time. See Johnson v.
Johnson, 2004 UT App 13U, para. 4 (per curiam) (explaining that
a motion to disqualify a judge from a pending matter becomes
appealable once a final and appealable order is issued on that
pending matter). The August 16, 2013 order determined the
substantial rights of the parties and resolved all issues at stake in
the supplemental proceedings. See Colleli, 2004 UT App 318U,
para. 2. Accordingly, by its substance and effect, it was a final,
appealable order.

¶23 Barnett filed a timely rule 59 motion for an amended
judgment or new trial, thereby tolling the time for appeal until
the court entered an order on the motion. See Utah R. Civ. P. 59;
Utah R. App. P. 4(b)(1)(C). On January 24, 2014, the district court
struck the rule 59 motion for failure to comply with the Utah
Rules of Civil Procedure but ruled that, “even if the Court were
to consider the motion, Barnett would not be entitled to relief.”
The order did not contemplate any further action on these issues
and expressly stated, “No additional order is necessary.” When
the court issued the order on the rule 59 motion, the thirty-day
period for filing a notice of appeal began to run and would have
expired on February 24, 2014. See B.A.M. Dev., LLC v. Salt Lake
County, 2012 UT 26, ¶ 10, 282 P.3d 41.

¶24 The notice of appeal filed on July 20, 2016, was untimely
as to issues two and four through fourteen.8 But in issue four,

8. Barnett did file a notice of appeal within the thirty day period,
but that was a different appeal from the one now before us. On
February 21, 2014, Barnett filed a timely notice of appeal from
the January 24, 2014 order, “in an abundance of caution to
preserve any and all rights of appeal” in the event that the order
(continued…)

20160652-CA 11 2018 UT App 179
 Ross v. Barnett

Barnett asserts that the district court lacked subject matter
jurisdiction over the ownership dispute in these supplemental
proceedings. “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 re adoption of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702
(quotation simplified). Accordingly, we address that threshold
issue first.

II. Subject Matter Jurisdiction

¶25 Barnett contends that the district court lacked subject
matter jurisdiction to determine who owned the assets subject to
execution. “We review jurisdictional issues for correctness.” In re
A.J.B., 2017 UT App 237, ¶ 12, 414 P.3d 552.

¶26 This appeal arises from supplemental proceedings to
enforce a judgment against GFS. There is no dispute that the
district court had subject matter jurisdiction over the causes of
action brought by Ross and Wagner against GFS, as it was a civil
matter within the general jurisdiction of the district court. See
Utah Const. art. VIII, § 5; Utah Code Ann. § 78A-5-102(1)
(LexisNexis 2012). In the underlying action, the court granted

(…continued)
was determined to be final and appealable. But Barnett failed to
perfect the appeal by filing a timely docketing statement. After
giving Barnett two additional opportunities to file a docketing
statement and warning that failure to do so would result in the
case being submitted for dismissal, this court dismissed the
appeal pursuant to rule 3(a). See Utah R. App. P. 3(a) (“Failure of
an appellant to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal, but is
ground only for such action as the appellate court deems
appropriate, which may include dismissal of the appeal[.]”).

20160652-CA 12 2018 UT App 179
 Ross v. Barnett

partial summary judgment for Ross and Wagner and entered
judgment against GFS.

¶27 The proceedings at issue in this case began when Ross
and Wagner sought a writ of execution on that judgment.
District court judges have subject matter jurisdiction to “issue all
extraordinary writs and other writs necessary to carry into effect
their orders, judgments, and decrees.” Utah Code Ann. § 78A-5-
102(2); see also Mardanlou v. Ghaffarian, 2015 UT App 128, ¶ 19,
351 P.3d 114 (“District courts possess jurisdiction to enforce a
final judgment.”). Plainly, the district court had subject matter
jurisdiction over these supplemental proceedings involving a
writ of execution.

¶28 Nevertheless, Barnett claims that the court lacked subject
matter jurisdiction “to adjudicate ownership disputes involving
non-parties.” The most recent case Barnett cites for this
proposition is Cleverly v. District Court, 39 P.2d 748 (Utah 1935),
which noted, “[W]here an interest is claimed in the property by a
party not a party to the record or proceedings, . . . the court in
supplementary proceedings is without jurisdiction to determine
the conflicting claims.” Id. at 751 (citing Wallace, Smuin & Co. v.
McLaughlin, 43 P. 109, 111 (Utah 1895)). The court explained that
supplementary proceedings “are not well adapted to litigate
conflicting claims to property nor to determine disputed
questions of fact, particularly where third parties claim an
interest in the property.” Id. The court questioned whether it was
possible, “in this summary way, without an opportunity to be
heard, and in the absence of some of the parties, without issues,
for the court or referee to determine the questions of fact which
ought to be heard only in regular actions, and perhaps before a
jury.” McLaughlin, 43 P. at 111.

¶29 We question whether this legal proposition survived the
adoption of the Utah Rules of Civil Procedure. Those rules
specifically provide a mechanism by which a third person can

20160652-CA 13 2018 UT App 179
 Ross v. Barnett

assert a claim to property subject to a writ. Utah R. Civ. P.
64(e)(1). Under rule 64(e)(1), “[a]ny person claiming an interest
in the property [that is the subject of a writ] has the same rights
and obligations as the [party against whom judgment has been
entered] with respect to the writ.” “If a person claiming an
interest in the property is named by the plaintiff and served with
the writ and accompanying papers, then that person shall
exercise those rights and obligations within the same time
allowed the party against whom judgment has been entered.”
Jordan Constr., Inc. v. Federal Nat’l Mortgage Ass’n, 2017 UT 28,
¶ 33, 408 P.3d 296 (quotation simplified).

¶30 In any event, Barnett’s claim of ownership is readily
distinguishable from the type of conflicting claims that Cleverly
and McLaughlin considered ill-suited for resolution in a
supplemental proceeding. Most importantly, this case does not
involve a nonparty without an opportunity to be heard. The
district court granted Barnett’s motion to intervene, making
Barnett a party to the supplemental proceedings with the same
rights as the original parties. See 59 Am. Jur. 2d Parties § 224
(2018). Since becoming a party, Barnett had notice and a right to
be heard at every stage in the proceedings.

¶31 In addition, this case does not involve an actual
controversy between Barnett and GFS that might best be
resolved in a separate lawsuit. Instead, the district court found
that, in effect, “[Barnett] is GFS.” Even the cases on which
Barnett relies recognize that

where it is clearly apparent to the court that there
is a simulated controversy, and that there is
absolutely no foundation for an adverse claim
to the property in controversy, and where the
assertion of such a claim would be so clearly
a pretense and evidence of fraud as to be
tantamount to a disclaimer of interest, then the

20160652-CA 14 2018 UT App 179
 Ross v. Barnett

court can order its application to the judgment
creditors’ demand.

McLaughlin, 43 P. at 111. Here, the court was not asked to litigate
claims between Barnett and GFS but only to determine whether
Barnett’s claim of ownership was mere pretense.

¶32 Given that Barnett elected to intervene in this case and the
district court granted his motion to do so, we have no difficulty
determining that the court’s subject matter jurisdiction over
these supplemental proceedings encompassed the authority to
decide Barnett’s adverse claim.

III. The 2016 Ruling

¶33 As previously noted, the notice of appeal was timely with
respect to only the 2016 Ruling. Two of the issues raised on
appeal relate to this ruling. First, Barnett argues that the district
court erred when it raised a “staleness” issue sua sponte. Second,
Barnett argues that the district court “abused its discretion by
refusing to entertain challenges to alleged mistakes by its
predecessor.” We construe the 2016 Ruling as denying
reconsideration of earlier rulings made by the originally
assigned judge. “We 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.

¶34 First, in denying the June 2012 Motion, the district court
concluded that “the Motion has been rendered stale by
the unreasonable delay in submitting it for decision, combined
with the interim rulings by [the predecessor judge] and the
appellate courts.” Barnett claims that Ross and Wagner never
raised this “staleness” issue and that “this surprise ruling
unconstitutionally denied Barnett his due process right to notice
and the opportunity to be heard thereon, and deprived him of a

20160652-CA 15 2018 UT App 179
 Ross v. Barnett

fair hearing before a fair, impartial tribunal since the court was
basically ruling favorably on its own argument.”

¶35 Although Ross and Wagner may not have used the term
“stale” in their opposition to the June 2012 Motion, they raised
each of the arguments underlying the court’s decision. The court
based its conclusion that the June 2012 Motion was “stale” or
“obsolete” on several factors, including that Barnett had
unreasonably delayed in submitting the motion for decision and
that the same issues raised in the motion had been raised and
ruled upon as part of subsequent motions. In opposition to the
June 2012 Motion, Ross and Wagner argued, among other
things, that the motion was “too late” and that “all of the
arguments have been raised in previous papers and decided
against Barnett in multiple orders.” Barnett had ample notice of
these arguments and opportunity to respond.

¶36 Second, Barnett argues that the district court refused to
address the June 2012 Motion on the merits based on the
mistaken premise that it would be acting as an appellate court
and reviewing the rulings of its predecessor. To the contrary, the
district court expressly recognized that “it has the discretion to
reconsider orders entered by a judge who previously managed
this same calendar.” However, the court declined “to exercise its
discretion to undertake that reconsideration.”

¶37 The district court acted well within its discretion in
declining to reach the merits of the June 2012 Motion. Although
there was no ruling specifically on the June 2012 Motion, Barnett
raised the same arguments in subsequent motions and those
arguments were rejected by the predecessor judge. As the
district court noted, the predecessor judge entered the May 2013
Order that reiterated the findings made in the June 2012 Order.
Barnett filed a motion to amend in which he “assailed the
common determinations between the May 2013 Order and the
June 2012 Order, and specifically challenged the propriety of the

20160652-CA 16 2018 UT App 179
 Ross v. Barnett

June 2012 Order.” In August 2013, the court “expressly rejected
Barnett’s arguments regarding the June 2012 Order.” As a result,
the predecessor judge “more or less did deny” the June 2012
Motion. Because the issues raised in the June 2012 Motion had
already been considered and rejected, Barnett was, in effect,
asking the court to reconsider the prior ruling.

¶38 “Whether to reconsider a prior ruling is ordinarily within
the sound discretion of the district court[.]” Colony Ins. Co. v.
Human Ensemble, LLC, 2013 UT App 68, ¶ 6, 299 P.3d 1149.
However, there are three situations in which the court is
required “to reconsider a matter: (1) when there has been an
intervening change of authority; (2) when new evidence has
become available; or (3) when the court is convinced that its
prior decision was clearly erroneous and would work a manifest
injustice.” Blackmore v. L & D Dev. Inc., 2016 UT App 198, ¶ 31,
382 P.3d 655 (quotation simplified). Barnett recognizes that there
has been no intervening change in the law or the discovery of
new evidence, but he argues that the district court had a duty to
revisit the prior decisions because they were clearly erroneous
and would work a manifest injustice.

¶39 Barnett gives three examples of “plain error” relating to
the June 2012 Order. 9 He argues that the predecessor judge
disregarded his lack of subject matter jurisdiction; mistakenly
believed that he had personal jurisdiction over Barnett; and
relied on his “flawed personal recollections of what happened in
September 2008, rather than simply read[ing] the transcripts,”
forcing Barnett and Short to “repeatedly defend against frivolous
claims [that] they have not complied with mythical orders.”
Because we have already rejected Barnett’s challenges to the

9. Barnett also argues plain error concerning the order on rule 11
sanctions, but that ruling was not timely appealed and is
therefore not before the court.

20160652-CA 17 2018 UT App 179
 Ross v. Barnett

district court’s subject matter and personal jurisdiction, he
cannot establish plain error in that regard.

¶40 As to the claim that the district court mistakenly recalled
its earlier rulings and held Barnett in contempt of a “mythical
order,” the record does not support this assertion. The minute
entry and transcripts of the hearing on September 15, 2008,
reflect that the district court enjoined the removal or transfer of
funds from the TIFRM Account. The transcript from the hearing
on September 25, 2008, includes express findings that Barnett’s
testimony was not credible and that the TIFRM Account was the
property of GFS. The court ruled that it would “extend that
[September 15] injunction” and “further enjoin any additional
expenditure of funds.” Barnett’s assertion that no such rulings
were made is yet another attempt to rewrite the history of this
case. Because Barnett failed to establish plain error that would
work a manifest injustice, the district court was not required to
reconsider the prior ruling on the issues raised in the June 2012
Motion.

¶41 The circumstances of this case strongly militated against
reconsideration. As the district court found, Barnett
unreasonably delayed seeking a ruling on the June 2012
Motion. We agree with the district court’s assessment that it
would be unfair and a poor use of judicial resources to allow a
party to “lie in the weeds for four years and then reactivate a
stale motion to reconsider once a different judge is managing
the docket.” In addition, Barnett failed to file a timely appeal
from either the September 2008 or the June 2012 Order. Both
the unreasonable delay and the failure to seek timely
interlocutory review of the challenged rulings weigh against
reconsidering them. The district court properly exercised
its discretion in declining to reach the merits of the June
2012 Order, and Barnett has established no basis for disturbing
that decision.

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 Ross v. Barnett

IV. Attorney Fees

¶42 Ross and Wagner seek attorney fees on appeal. Under
rule 33 of the Utah Rules of Appellate Procedure, if the court
determines an appeal “is either frivolous or for delay, it shall
award just damages, which may include single or double costs,
as defined in Rule 34, and/or reasonable attorney fees, to the
prevailing party.” Utah R. App. P. 33(a). A frivolous appeal “is
one that is not grounded in fact, not warranted by existing law,
or not based on a good faith argument to extend, modify, or
reverse existing law.” Id. R. 33(b). An appeal “interposed for the
purpose of delay is one interposed for any improper purpose
such as to harass, cause needless increase in the cost of litigation,
or gain time that will benefit only the party filing the appeal.” Id.

¶43 We conclude that this appeal is frivolous and interposed
for the purpose of delay. Barnett has made no attempt to show
how his notice of appeal was timely as to the majority of rulings
challenged on appeal and has made no good-faith argument as
to why we might exercise appellate jurisdiction over those
issues. Moreover, the challenges to the 2016 Ruling distort the
record and are yet another attempt to relitigate issues long since
decided. The central issues in this case were decided in
September 2008 when the district court found that the assets
were the property of GFS, denied the motion to quash the writ of
execution, and enjoined Barnett from dissipating the assets. The
ten years of litigation since that time, including the present
appeal, are a blatant attempt to delay enforcement of those
rulings by repeatedly raising the same challenges and refusing to
accept the court’s rejection of those arguments.

¶44 We grant Ross and Wagner their reasonable costs and
attorney fees on appeal. Because we find that the abusive
litigation strategy in this case is attributable to counsel, we order
that the fees and costs be paid by Short. See id. R. 33(a)
(providing that this “court may order that the damages be paid

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 Ross v. Barnett

by the party or by the party’s attorney”). We remand to the
district court to calculate the reasonable amount of attorney fees
and costs incurred by Ross and Wagner in connection with this
appeal.

CONCLUSION

¶45 We reject Barnett’s challenges to the district court’s
subject matter jurisdiction. Apart from this jurisdictional issue,
we have appellate jurisdiction over only Barnett’s challenge to
the 2016 Ruling, and that ruling was well within the district
court’s discretion. Because we conclude that this appeal was
frivolous and for the purposes of delay, we order Short to pay
Ross and Wagner’s reasonable costs and attorney fees incurred
on appeal and remand to the district court to calculate the
amount of the award.

20160652-CA 20 2018 UT App 179