author: HAGEN, Judge:

text:
    Yan ROSS and Randi Wagner, Appellees, v. Michael BARNETT, Appellant.
    No. 20160652-CA
    Court of Appeals of Utah.
    Filed September 20, 2018
    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.
    Opinion
   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 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

¶ 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 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 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). Two weeks later, on June 20, 2012, 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 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."

¶ 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.

¶ 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.

¶ 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."

¶ 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 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 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. But "[t]he 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, 2004 WL 2069551 (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. 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 (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, 2004 WL 170357 (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. But in issue four, 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 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 , 85 Utah 440, 39 P.2d 748 (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 , 12 Utah 411, 43 P. 109, 111 (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 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 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 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 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. 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 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.

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 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.

      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.

      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 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.

      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.

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

      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.

      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.

      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.

      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 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[.]").

      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.


source: Caselaw Access Project

license: Public Domain

text:
    Yan ROSS and Randi Wagner, Appellees, v. Douglas R. SHORT, Appellant.
    No. 20151055-CA
    Court of Appeals of Utah.
    Filed September 20, 2018
    Douglas R. Short, Appellant Pro Se.
    John H. Bogart, Attorney for Appellees.
    Judge Diana Hagen authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.
    Opinion
   HAGEN, Judge:

¶1 Appellant Douglas R. Short appeared as an attorney for an intervenor in supplemental proceedings to enforce a judgment. Short has faced multiple sanctions based on his improper conduct as an attorney in those proceedings. This appeal concerns the most recent sanctions imposed by the district court, ordering Short to pay the attorney fees that Appellees, Yan Ross and Randi Wagner, incurred in responding to a series of motions that lacked a legal or factual basis or were submitted for an improper purpose. Short appeals the district court's final judgment awarding sanctions totaling $27,981.07, plus interest, as well as the denial of his subsequent motions to vacate that judgment. We affirm and award Appellees the costs and attorney fees incurred in defending this appeal.

BACKGROUND

¶2 In January 2009, Ross and Wagner moved for a writ of execution to enforce a judgment against Global Fraud Solutions (GFS). Michael K. Barnett, the general manager of GFS, intervened, claiming that he personally owned the assets subject to the writ. Short appeared as legal counsel for Barnett.

¶3 On December 30, 2014, as a result of Short's performance as counsel in these proceedings, the district court granted Ross and Wagner's motion for sanctions under rule 11 of the Utah Rules of Civil Procedure (the Sanctions Order). In an attempt to "compensate [Ross and Wagner] as well as deter Mr. Short," the district court directed Ross and Wagner's attorney to submit "an affidavit of attorney fees and a proposed order ... detailing the amount incurred in responding to the subject motions." The court imposed the sanctions under rule 11 and its " 'inherent power to impose monetary sanctions on attorneys who by their conduct thwart the court's scheduling and movement of cases through the court.' " (Quoting Maxwell v. Woodall , 2014 UT App 125, ¶ 6, 328 P.3d 869.)

¶4 As directed, Ross and Wagner's attorney, John H. Bogart, filed a declaration (the Bogart Declaration) regarding attorney fees within ten days. Short filed no opposition, and Ross and Wagner moved to submit the matter for decision. The district court found that the attorney fees were reasonable, granted relief in the amount requested, and invited Ross and Wagner to submit a proposed order reflecting the ruling.

¶5 Ross and Wagner served Short with a proposed order regarding the fees request. Again, Short filed no objection to the proposed order, and Ross and Wagner submitted the order for signature once the time for filing objections had passed. On February 9, 2015, the court entered the final order as proposed, awarding attorney fees in the amount of $27,981.07 (the Fees Order).

¶6 Short failed to pay the award, and Ross and Wagner moved for entry of judgment. They served Short with a proposed, final judgment assessing interest on the original award. Once Short's deadline to file an objection had passed, Ross and Wagner moved to submit the motion for entry of judgment. That same day, Short moved for an extension of time to file an opposition. The court granted a two-day extension. When Short failed to file an opposition within that timeframe, Ross and Wagner again submitted the matter for signature. The district court entered the judgment as proposed on July 2, 2015 (the Judgment).

¶7 On September 30, 2015, Short filed two motions to vacate the Judgment under rule 60(b) of the Utah Rules of Civil Procedure. On November 12, 2015, the district court denied both motions by order. Short then filed a motion to vacate the November 12 order. On November 30, 2015, the district court denied that motion as well.

¶8 Short filed this appeal challenging the Judgment and both the November 12 and 30 orders denying his motions to vacate.

ISSUES AND STANDARDS OF REVIEW

¶9 Short raises three issues on appeal. First, Short argues that the district court should have granted his rule 60(b) motion for relief from the Judgment. "We review a Rule 60(b) motion for abuse of discretion." Golden Meadows Props. , LC v. Strand , 2010 UT App 258, ¶ 3, 241 P.3d 371.

¶10 Second, Short contends that the district court improperly refused to reconsider its prior decisions. "As long as the case has not been appealed and remanded, reconsideration of an issue before a final judgment is within the sound discretion of the district court." IHC Health Services, Inc. v. D & K Mgmt., Inc. , 2008 UT 73, ¶ 27, 196 P.3d 588. Accordingly, "[w]e 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.

¶11 Third, Short argues that the Judgment is void because the district court lacked subject matter jurisdiction to impose sanctions against him. "The determination of whether a court has subject matter jurisdiction is a question of law[.]" Wasatch County v. Tax Comm'n , 2009 UT App 221, ¶ 4, 217 P.3d 270 (quotation simplified).

ANALYSIS

I. Motions to Vacate

¶12 The district court did not abuse its discretion in denying Short's rule 60(b) motions to vacate the Judgment. Rule 60(b) of the Utah Rules of Civil Procedure allows a court to "set aside a final judgment for reasons such as mistake, newly discovered evidence, or fraud." Honie v. State , 2014 UT 19, ¶ 87, 342 P.3d 182. Short argues that the court should have granted the motions on two grounds: (1) the Judgment was not final, because "[t]here are several missing Rule 7(f)(2) orders" and (2) the Judgment was based on fraud or mistake. The district court acted within its discretion in rejecting both arguments.

A. Finality

¶13 Short argues that the district court should have granted him relief from judgment under rule 60(b) because the Judgment was "not a final appealable judgment." Short argues that "there are several missing Rule 7(f)(2) orders" and that "[a]ll Rule 7(f)(2) orders must be entered for the 'Judgment' to be final." Short does not connect this argument to rule 60(b) or explain why it would entitle him to relief from the Judgment. Even assuming that failure to comply with rule 7(f)(2) constitutes a "mistake" or "other reason justifying relief" under rule 60(b), the district court correctly ruled that the Judgment complied with rule 7(f)(2).

¶14 Under the version of the Utah Rules of Civil Procedure in effect at the time, rule 7(f)(2) provided:

Unless the court approves the proposed order submitted with an initial memorandum, or unless otherwise directed by the court, the prevailing party shall, within 21 days after the court's decision, serve upon the other parties a proposed order in conformity with the court's decision. Objections to the proposed order shall be filed within 7 days after service. The party preparing the order shall file the proposed order upon being served with an objection or upon expiration of the time to object.

Utah R. Civ. P. 7(f)(2) (2014). Both the Fees Order and the Judgment fully complied with this rule. Both proposed orders were served on Short and he was afforded time to respond. He failed to file an objection to either proposed order, even after obtaining an extension with respect to the Judgment. After the expiration of the time to object, Ross and Wagner filed motions to submit, and both orders were entered in the form in which they were proposed. Neither order left any issues open for resolution, making them both final, appealable orders. See Cheves v. Williams , 1999 UT 86, ¶ 52, 993 P.2d 191 (explaining that postjudgment orders are subject to their own test of finality based on the substance and effect of those orders).

¶15 Although the Judgment fully complied with rule 7(f)(2) and was otherwise final and appealable, Short argues that the Judgment was not final, because the Sanctions Order "clearly was not a final Rule 7(f)(2) order." But the Sanctions Order did not purport to be a final order. As the district court noted in denying Short's rule 60(b) motion, the order "expressly state[d] that one thing remained to be completed-a declaration requesting fees to be filed for counsel for [Ross and Wagner]." Once this contemplated action was accomplished, the district court entered a final judgment. Short offers no authority for his argument that the Sanctions Order had to be reduced to a rule 7(f)(2) order before the Judgment could be considered final.

¶16 Relatedly, Short argues that the Judgment was not final, because there were no final orders issued on what he characterizes as "precursor motions," or, put differently, rulings he believes "must be finalized before one could logically and properly conclude that Counsel has violated Rule 11." Again, Short cites no authority for this proposition. Not only is his argument unsupported, it runs contrary to the doctrine of merger of judgments. Under this doctrine, "once final judgment is entered, all preceding interlocutory rulings that were steps towards final judgment merge into the final judgment and become appealable at that time." Butler v. Corporation of President of Church of Jesus Christ of Latter-Day Saints , 2014 UT 41, ¶ 24 n.6, 337 P.3d 280 (quotation simplified).

¶17 Short has not identified any mistake in the Judgment or any other reason for granting relief. Consequently, he cannot establish that the district court abused its discretion in denying his rule 60(b) motion based on lack of finality.

B. Fraud or Mistake

¶18 Similarly, the district court did not abuse its discretion when it denied relief from the Judgment on the grounds of fraud or mistake. Short argues that the Bogart Declaration misstated the amount of attorney fees incurred because it included fees associated with litigating the rule 11 motion for sanctions. The Sanctions Order granted attorney fees incurred in responding to the "subject motions," which Short interprets to mean only the underlying motions found to be in violation of rule 11.

¶19 In denying the rule 60(b) motion, the district court found that the Bogart Declaration was not misleading, because it reflected a reasonable reading of the Sanctions Order. The court had directed Bogart to submit "an affidavit of attorney fees and a proposed order ... detailing the amount incurred in responding to the subject motions." The district court found that Bogart reasonably interpreted the Sanctions Order as encompassing the "costs and fees incurred in preparing and arguing the motions for sanctions and otherwise responding to [Short's] improper and abusive filings." Therefore, the court found that "there was no misrepresentation or fraud in Mr. Bogart's Declaration."

¶20 Because rule 60(b) relief is subject to the court's discretion, the district court also considered "the fairness of providing the requested relief." The court noted that Short did not file any objection to the Bogart Declaration despite ample opportunity to do so. In fact, the district court noted that it "waited an extra two weeks after the Fee Request was submitted to allow for any objections," but "[n]one was filed." The court concluded that the requested relief was inappropriate when "Short had every opportunity to oppose the Motions for Sanctions and the Fee Request and did not oppose either of them."

¶21 "A trial court has discretion in determining whether a movant has shown rule 60(b) grounds, and this court will reverse the trial court's ruling only when there has been an abuse of discretion." Swallow v. Kennard , 2008 UT App 134, ¶ 19, 183 P.3d 1052 (quotation simplified). Here, the district court determined that the Judgment was not a product of fraud or mistake, because the Bogart Declaration was a plausible interpretation of the Sanctions Order. In addition, the court determined that granting the requested relief would be inappropriate where Short waited until after the final judgment was entered before claiming that the declaration was misleading. Short has not established that either determination amounted to an abuse of discretion. Because Short failed to show grounds for relief from the Judgment, we affirm the court's denial of the rule 60(b) motion.

II. Reconsideration of Prior Decisions

¶22 Short contends that the district court improperly refused to reconsider prior decisions made by a predecessor judge. This same argument was raised in the companion appeal, Ross v. Barnett , 2018 UT App 179, 436 P.3d 306, which we also decide today. For the reasons fully set forth in that opinion, the district court acted well within its discretion in declining to reconsider issues already decided against Barnett. Id. ¶¶ 37-41. In any event, Short has not explained why he would have standing to challenge adverse decisions relating to his client in this separate appeal challenging rule 11 sanctions against him personally.

¶23 The only argument Short makes relevant to this appeal is that the district court had an obligation to retry the motion for sanctions and make its own findings of fact and conclusions of law as to why each of Short's challenged filings lacked an adequate factual or legal basis. Short raised this issue in his motion to vacate the Judgment when he argued that the predecessor judge had not made adequate findings to support the imposition of sanctions, leaving that task to the new judge. See Utah R. Civ. P. 11(c)(3) ("When imposing sanctions, the court will describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.").

¶24 The district court properly declined to revisit the adequacy of the findings because a final order had been entered on that issue. "Trial courts have clear discretion to reconsider and change their position with respect to any orders or decisions as long as no final judgment has been rendered." Brookside Mobile Home Park, Ltd. v. Peebles , 2002 UT 48, ¶ 18, 48 P.3d 968. But the district court expressly found that a final judgment had been entered regarding the rule 11 sanctions. As the district court correctly observed, "[i]n the context of post-judgment proceedings, orders may become final and subject to appeal seriatum. So long as the order fully disposes of the matter(s) to which it is addressed, it is final for purposes of appeal." See Barnett , 2018 UT App 179, ¶ 20, 436 P.3d 306. Although the Sanctions Order itself "expressly state[d] that one thing remained to be completed-a declaration of fees to be filed by counsel for Plaintiffs," the Fees Order left no issues unresolved and constituted a final, appealable order. Short failed to file a timely appeal and was not entitled to bypass the appellate process by asking the district court to review a prior decision that had been reduced to a final, appealable order.

III. Authority to Impose Sanctions

¶25 Finally, Short challenges the district court's authority to enter the Judgment. Short's principal argument rests on the faulty premise that the district court lacked "jurisdiction to adjudicate any question of ownership between Barnett and GFS in these supplemental proceedings." Therefore, Short argues, the district court had no "inherent or rule 11 authority to sanction counsel in proceedings it ha[d] no judicial authority to conduct." For the reasons set forth in Ross v. Barnett , 2018 UT App 179, 436 P.3d 306, the district court had jurisdiction over these supplemental proceedings in which Barnett elected to intervene. Id. ¶¶ 25-32.

¶26 In any event, the district court's authority over an attorney appearing before the court is not dependent on the court's jurisdiction over the underlying action or over the party the attorney represents. Under rule 11, any attorney or party who files a pleading, written motion, or other paper to the court is subject to sanctions for violating the rule. See Utah R. Civ. P. 11(b), (c). In addition, the court has "inherent power to control the conduct of attorneys and litigants whose actions interfered with the administration of justice and resulted in wasted time and effort by opposing counsel." Maxwell v. Woodall , 2014 UT App 125, ¶ 7, 328 P.3d 869 (quotation simplified).

¶27 For the same reasons, we reject Short's argument that the district court lacked subject matter jurisdiction to enter a judgment against him because he is not a "party" to the case. Short's argument ignores the language of rule 11, which expressly authorizes courts to impose sanctions, not just against parties, but against attorneys who violate the rule. See Utah R. Civ. P. 11. It also ignores the court's well-established inherent authority and power to sanction attorneys:

The summary jurisdiction which the court has over its attorneys as officers of the court is inherent, continuing, and plenary and ought to be assumed and exercised not only to maintain and protect the integrity and dignity of the court, to secure obedience to its rules and process, and to rebuke interference with the conduct of its business, but also to control and protect its officers, including attorneys.

Griffith v. Griffith , 1999 UT 78, ¶ 13, 985 P.2d 255 (quotation simplified). In light of this authority, Short's contention that a court lacks jurisdiction to enter a judgment of sanctions against an attorney is baseless.

IV. Attorney Fees

¶28 Ross and Wagner request their attorney fees incurred in responding to this appeal. Under rule 33 of the Utah Rules of Appellate Procedure, if the court determines an appeal taken "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). 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. R. 33(b).

¶29 We agree with Ross and Wagner that this appeal is not simply meritless but part of a "long-standing pattern of abusive and obstructive conduct." The never-ending and duplicative filings in this case, including the filing of seven separate appeals, appear designed to make this litigation prohibitively expensive. And we cannot escape the conclusion that this particular appeal is an effort by Short to gain time while he avoids paying the sanctions ordered by the district court.

¶30 We thus grant Ross and Wagner's request and remand to the district court to calculate the reasonable amount of attorney fees and costs that they incurred in connection with this appeal.

CONCLUSION

¶31 The district court acted within its discretion in denying Short's motions to vacate the Judgment and in declining to reconsider its prior decisions. We also reject Short's challenge to the district court's jurisdiction given the court's well-established authority to impose sanctions against attorneys appearing before it. Accordingly, we affirm and remand for an award of attorney fees and costs incurred by Ross and Wagner in defending this appeal.

      The time to appeal the Judgment was not tolled by Short's rule 60(b) motion, because it was filed more than twenty-eight days after the Judgment was entered. See Utah R. App. P. 4 (b)(1)(e). Because he did not file an appeal within thirty days of the Judgment, see id. 4(a), we have jurisdiction to review only the denial of the rule 60(b) motion. 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.").

      Short also contends that the district court lacked jurisdiction to order him to pay a nonparty attorney directly. While the Fees Order directed Short to "pay to [Bogart's law firm] the amount of $27,981.07," the Judgment does not contain such a directive. Instead, the Judgment from which Short appeals orders that "Plaintiffs recover from Douglas R. Short $27,981.07," plus interest.


author: ORME, Judge: MORTENSEN, Judge (concurring):

text:
    STATE of Utah, Appellee, v. Billy Lee ROHWEDDER, Appellant.
    No. 20150357-CA
    Court of Appeals of Utah.
    Filed September 20, 2018
    Opinion
   ORME, Judge:

¶1 Defendant Billy Lee Rohwedder appeals his convictions for theft by receiving stolen property, failure to respond to an officer's signal to stop, and failure to signal. Defendant argues that his right to a speedy trial was violated, that he was prejudiced by the trial court's requirement that he wear leg restraints during trial, and that he was denied his rights both to self-representation and the effective assistance of counsel. We affirm.

BACKGROUND

¶2 One evening in December 2011, an officer on patrol saw Defendant driving a vehicle that had been reported stolen. The officer followed Defendant and activated his lights and siren, signaling Defendant to pull over. Defendant refused to stop and instead accelerated to a high speed. The officer, unable to safely pursue Defendant, initiated a neighborhood containment plan to prevent Defendant from getting away. As the officer began reconnoitering the neighborhood, he observed the stolen car abandoned on the road with the driver's door open and the engine still running. Soon after, another officer found Defendant half a block from the abandoned car, sweating and out of breath. A third officer with a dog that had tracked Defendant from the abandoned car also approached Defendant. Defendant was arrested and charged with the previously named offenses.

¶3 In January 2014, a jury convicted Defendant of all three charges. On appeal, we summarily reversed his convictions because the trial court had failed to address Defendant's multiple requests to represent himself. On remand, Defendant again sought to represent himself, but he insisted that he would not waive his right to the assistance of counsel unless the trial court either granted him the use of a law library or the assistance of standby counsel. The trial court granted his request for the assistance of standby counsel. The court clarified that Defendant would be representing himself and was responsible for his own defense. Standby counsel's role was limited to assisting Defendant in securing witnesses and in accessing relevant legal materials. Shortly before trial, Defendant complained that standby counsel was not serving his interests and that he did not believe he was "being properly represented." He also complained that standby counsel was not providing him with the information or evidence he requested and had failed to help him locate the witnesses he wished to subpoena.

¶4 Also during pretrial hearings, Defendant raised concerns about wearing leg restraints in view of the jury. Defendant proposed that he wear a taser vest as an alternative to leg restraints. However, the bailiff explained to the court that courtroom security procedures do not allow criminal defendants to wear only a taser vest. Rather, the protocol calls for such vests to be worn in addition to leg restraints. The court agreed that Defendant could not only wear a taser vest. To allay Defendant's concerns of prejudice, the trial court suggested that both Defendant and the prosecutor remain seated during trial. Defendant rejected this suggestion, preferring to walk about the courtroom as best he could in leg restraints. Defendant's case on remand proceeded expeditiously to trial with the exception of one continuance-at Defendant's request-to locate additional evidence and witnesses. After a two-day trial in April 2015, a jury convicted Defendant of all three charges. Defendant again appeals, and we affirm.

ISSUES AND STANDARDS OF REVIEW

¶5 Defendant raises three issues on appeal. First, he argues that the trial court denied his constitutional right to a speedy trial. "We review the issue of whether a defendant was deprived of his right to a speedy trial for correctness." State v. Hawkins , 2016 UT App 9, ¶ 68, 366 P.3d 884. Next, Defendant argues that the court unfairly prejudiced him by requiring him to wear leg restraints in view of the jury. Whether a defendant was denied his constitutional rights to a fair trial and the presumption of innocence is reviewed for correctness. State v. Madsen , 2002 UT App 345, ¶ 4, 57 P.3d 1134. And finally, Defendant argues that the trial court violated his rights to self-representation and to the effective assistance of counsel. We consider these claims, "raised for the first time on appeal," as "present[ing] a question of law," State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162, which we evaluate for correctness, State v. Pedockie , 2006 UT 28, ¶ 23, 137 P.3d 716.

ANALYSIS

I. Trial Delay

¶6 The Sixth Amendment to the United States Constitution guarantees a defendant the right to a speedy trial. U.S. Const. amend. VI. In determining whether a criminal defendant has been deprived of the right to a speedy trial, we consider four factors: the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). But the length of delay is the "triggering mechanism," and "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id. Whether a delay is presumptively prejudicial depends on "the peculiar circumstances of the case," id. at 530-31, 92 S.Ct. 2182, because for "serious, more complex crimes, a greater period of delay will be tolerated," State v. Cornejo , 2006 UT App 215, ¶ 27, 138 P.3d 97 (brackets, citation, and internal quotation marks omitted). Typically, courts view "delays approaching one year [as] presumptively prejudicial." United States v. Larson , 627 F.3d 1198, 1208 (10th Cir. 2010). See Doggett v. United States , 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

¶7 Here, Defendant points to the time from when he was originally charged right up until his second trial, which exceeded three years. He argues that this delay is presumptively prejudicial. But in his first appeal, Defendant asked this court for a new trial, which he received. In cases of retrial, other courts have declined to include all the time that has passed from the original charge to the second trial, considering only the time period between the appellate mandate reversing a conviction and the retrial. See, e.g., Icgoren v. State , 103 Md.App. 407, 653 A.2d 972, 978 (1995) ; Mitchell v. State , 572 So.2d 865, 870-71 (Miss. 1990) ; State v. Kula , 254 Neb. 962, 579 N.W.2d 541, 546 (1998) ; Soffar v. State , No. AP-75, 2009 WL 3839012, at *39 (Tex. Crim. App. Nov. 18, 2009) (per curiam). Given that "[i]t has long been the rule that when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events" without running afoul of the Sixth Amendment's right to a speedy trial, United States v. Ewell , 383 U.S. 116, 121, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), we are inclined to follow the lead of those courts. Defendant's case returned to the trial court on November 12, 2014, and the first day of his retrial was April 7, 2015. The time between these two dates was a period of only 146 days, which Defendant has not shown is presumptively prejudicial under the circumstances of this case. See Larson , 627 F.3d at 1208. Cf. Cornejo , 2006 UT App 215, ¶ 27, 138 P.3d 97 (concluding that 315 days was "potentially, but not necessarily, prejudicial") (citation and internal quotation marks omitted).

¶8 Because Defendant's claim of a speedy trial violation falls short of being even "presumptively prejudicial," we have no occasion to consider the other Barker factors. We therefore conclude that the trial court did not deprive Defendant of his right to a speedy trial.

II. Leg Restraints

¶9 Defendant contends that the trial court unfairly prejudiced him by requiring him to wear leg restraints in the presence of the jury. "It is well established that a principal ingredient of due process is that every criminal defendant is entitled to a fair and impartial trial." State v. Mitchell , 824 P.2d 469, 473 (Utah Ct. App. 1991) (brackets, citation, and internal quotation marks omitted). It can be "inherently prejudicial" to "visibly shackl[e] a defendant" because "it suggests to the minds of jurors that he is guilty." State v. Madsen , 2002 UT App 345, ¶ 8, 57 P.3d 1134. Still, a trial court may physically restrain a criminal defendant "to prevent an escape, resort to violence, or disruption of the trial." Mitchell , 824 P.2d at 473.

¶10 The question of whether Defendant actually presented any of those risks is not at issue in this appeal. Instead, Defendant argues that there were ways the trial court could have minimized the risk of prejudice even if it was necessary to restrain him. Defendant was restrained using shackles that would lock "if someone stands up abruptly or moves." To ensure the jury could not see Defendant's leg restraints, the trial court offered to have everyone at counsel table remain seated, including the prosecutor, and for curtains to be hung from the tables to conceal everyone's legs. But Defendant rejected the trial court's offer, insisting confining everyone to counsel table would signal the jury that Defendant was shackled. And he wished to move about freely during trial. He therefore made the choice to forgo the everyone-remain-seated option and preserve his ability to get up and move around during trial.

¶11 To conclude that the use of visible restraints was inherently prejudicial, it has to be clear that "the trial court created [the] inherently prejudicial situation." State v. Daniels , 2002 UT 2, ¶ 20, 40 P.3d 611. Had Defendant accepted the trial court's offer to have everyone at counsel table remain seated, the jury would have been none the wiser that he was physically restrained. Defendant therefore created his own prejudicial situation, and accordingly, we conclude that the trial court did not err in requiring Defendant to wear leg restraints during his trial.

III. Standby Counsel

¶12 Defendant contends, seemingly inconsistently, that both his right to self-representation and his right to the effective assistance of counsel were violated when "his standby counsel failed to ... provide him access to relevant legal materials [and] ... subpoena witnesses." There are two mutually exclusive rights guaranteed by the Sixth Amendment: the right to the assistance of counsel and the right to self-representation. State v. Bakalov , 1999 UT 45, ¶ 15, 979 P.2d 799.

¶13 When a criminal defendant invokes the right to self-representation, he waives his right to the assistance of counsel. State v. Frampton , 737 P.2d 183, 187 (Utah 1987). Before allowing a criminal defendant to represent himself, a trial court must ensure that the "waiver is a voluntary one which is knowingly and intelligently made" by making the defendant "aware of the dangers and disadvantages of self-representation." Id. (citation and internal quotation marks omitted). Once "[t]he choice to represent oneself" is made, "a pro se criminal defendant relinquishes many of the traditional benefits associated with the right to counsel," including "full access to legal materials, when the defendant remains in custody pending trial." State v. Drobel , 815 P.2d 724, 736 (Utah Ct. App. 1991) (citation and internal quotation marks omitted).

¶14 Defendant sought to represent himself, but he refused, as he put it, to "sign[ ] away imperative rights" absent assurances he would have access to a law library or the assistance of "back-up counsel." The trial court allowed him to represent himself and also made standby counsel available to him. But the court clarified that Defendant would be "primarily responsible for things" and "responsible for being able to comply with all the expectations." While Defendant does not dispute that his waiver of the right to counsel was knowing and voluntary, he denies that he waived the right to the assistance of counsel in toto, arguing that he "did not entirely self-represent" because his standby counsel played the role of "co-counsel" during his trial.

¶15 Courts have traditionally appointed standby counsel "to aid the accused if and when the accused requests help" and "to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Faretta v. California , 422 U.S. 806, 834-35 n.46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Particularly, standby counsel assists "the pro se defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task, such as introducing evidence or objecting to testimony." McKaskle v. Wiggins , 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). But the appointment of standby counsel "does not alter a party's pro se status." In re C.C. , 2011 UT App 99, ¶ 7 n.2, 250 P.3d 1038. "Precedent is clear. Defendants who knowingly and intelligently waive their right to assistance of counsel must be allowed to conduct their own defense." State v. Bakalov , 862 P.2d 1354, 1355 (Utah 1993) (per curiam). The "choice of self-representation often results in detrimental consequences to the defendant," Bakalov , 1999 UT 45, ¶ 15, 979 P.2d 799, but "a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel,' " Frampton , 737 P.2d at 189 (quoting Faretta , 422 U.S. at 834-35 n.46, 95 S.Ct. 2525 ). Standby counsel acts only to "protect the rights of accused persons foolishly trying to defend themselves" and to "vindicate the process itself" by promoting fairness in the criminal justice system. Mayberry v. Pennsylvania , 400 U.S. 455, 468, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) (Burger, C.J., concurring) (internal quotation marks omitted).

¶16 Some courts using this type of "hybrid representation" have muddied the waters of the Sixth Amendment by allowing standby counsel to take on more of the role of counsel during the course of a trial, such as making opening statements and closing arguments, suggesting legal arguments to the defendant, or presenting legal arguments on the defendant's behalf. We recognize that there can be value in appointing standby counsel to assist a pro se defendant who lacks adequate access to the resources necessary to present his defense or to help the defendant with questions of procedure and protocol in the courtroom. But pro se defendants cannot have it both ways; they cannot invoke the right to self-representation and later claim they were denied the right to the effective assistance of counsel. Nor does a pro se defendant have "a constitutional right to choreograph special appearances by counsel." McKaskle , 465 U.S. at 183, 104 S.Ct. 944.

¶17 But neither does it follow that standby counsel may shirk his or her responsibilities with impunity. Counsel does not evade the obligation to adhere to the Rules of Professional Conduct when appointed as standby counsel. And while the Sixth Amendment does not set a baseline standard for standby counsel's performance, the Due Process Clause does. See Snyder v. Massachusetts , 291 U.S. 97, 116, 54 S.Ct. 330, 78 L.Ed. 674 (1934) ("Due process of law requires that the proceedings shall be fair, but ... [i]t is fairness with reference to particular conditions or particular results."), overruled on other grounds by Malloy v. Hogan , 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). See also Estelle v. Williams , 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) ("Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience."). It would violate due process for a pro se defendant who lacks access to legal materials to be provided standby counsel who subsequently fails to assist the defendant in securing items reasonably requested by the defendant. When standby counsel is appointed, that attorney assumes particular duties in assisting a self-represented criminal defendant, and counsel must discharge those duties.

¶18 Defendant characterizes his standby counsel's role as an active one, and he suggests that this active role brought with it a duty on the part of standby counsel to ensure Defendant "was able to accomplish the tasks he needed." But the record does not reflect that standby counsel took on such an active role in Defendant's defense. Even Defendant concedes that standby counsel was only being used as "a law library" and to help "secure [two] witnesses' presence at [trial]." Moreover, the trial court appointed standby counsel to "act as a resource" out of concern that Defendant did not have access to legal materials. Standby counsel clarified that he could be used "as a resource if there [was] a specific request regarding specific cases[,] ... specific treatises, Utah Rules of Criminal Procedure, code, etc." Standby counsel's role was limited to helping Defendant get legal materials, with the single additional responsibility of assisting Defendant with subpoenaing witnesses. To show that standby counsel failed to perform those duties, Defendant's claim must be supported by the record. "Where the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will be construed in favor of a finding that counsel performed effectively ... [which] is consistent ... with the general rule that record inadequacies result in an assumption of regularity on appeal." State v. Litherland , 2000 UT 76, ¶ 17, 12 P.3d 92.

¶19 Here, the record is unclear as to what, exactly, standby counsel did and did not do to assist Defendant. First, Defendant maintains that standby counsel was intended to serve more in the role of co-counsel, but the record does not support this claim. Defendant clarified with the trial court on multiple occasions that he was representing himself and would conduct his own defense. Over the course of trial, standby counsel was limited to helping Defendant with legal research and securing witnesses. Second, the record is silent as to whether standby counsel meaningfully discharged these duties. Even Defendant acknowledges that "[t]he record is silent as to the conversation between [Defendant] and his standby counsel as to counsel's actions" in providing Defendant the access he needed to legal materials and "the record is silent as to ... what efforts counsel made to locate ... witnesses." As standby counsel was limited to these two specific duties and the record is silent as to whether standby counsel faithfully discharged them, we assume that standby counsel did what Defendant asked of him and have no occasion to further consider this issue.

CONCLUSION

¶20 We conclude that there was no violation of Defendant's speedy trial right in convening his second trial. The trial court did not err when it required Defendant to wear leg restraints during his trial because any prejudice resulting therefrom was attributable to Defendant. We also conclude that standby counsel's conduct violated neither Defendant's right to self-representation nor his right to the effective assistance of counsel. We therefore affirm Defendant's convictions.

MORTENSEN, Judge (concurring):

¶21 I completely concur in the majority opinion. I write separately only to suggest a mechanism whereby the expectations between a pro se defendant and appointed standby counsel can be addressed and more clearly establish whether a voluntary and knowing waiver of counsel has occurred. To be sure, the appointment of standby counsel can introduce an element of uncertainty for appointed counsel in gauging the extent to which counsel can comfortably interject herself into the proceedings. At the same time, unrealistic expectations of a pro se defendant may arise when the function and role of standby counsel is not clear. Accordingly, where standby counsel is appointed, the trial court should strongly consider entering a formal order outlining the parameters of the expected representation.

¶22 As the majority opinion acknowledges, our supreme court, in State v. Frampton , 737 P.2d 183 (Utah 1987), addressed the implications inherent in respecting an accused's right to conduct her own defense. In Frampton , the court affirmed the convictions of a defendant who had represented himself and concluded that the defendant had knowingly and voluntarily waived his right to counsel. In reaching this conclusion, the court painstakingly reviewed the record in order to verify that the defendant's waiver of his Sixth Amendment right to counsel had been knowingly, intelligently, and voluntarily made. Id . at 187-89. However, the court in Frampton also noted that generally ascertaining that a defendant is knowingly, intelligently, and voluntarily waiving his right to counsel "can only be elicited after penetrating questioning by the trial court." Id . at 187. Indeed, our supreme court pointed trial courts to a scripted colloquy from the Bench Book for United States District Court Judges, outlining questions which might be asked to verify that a defendant understands the significant right being waived and how that waiver might be applied in the real-world setting of a trial court. Id . at 187 n.12. Similarly, when appointing standby counsel, trial courts would do well to enter a formal order appointing standby counsel. See Arkansas v. Robbins , 335 Ark. 380, 985 S.W.2d 293, 294 (1998) (noting that the trial court appointed standby counsel "with specific instructions as to their duties in that role"); New Mexico v. Vincent , 137 N.M. 462, 112 P.3d 1119, 1125 (App. 2005) (affirming where the trial court explained that standby counsel "is just there to answer questions that [the defendant] might have and not [to] keep [defendant] from making a mistake").

¶23 In another example, our supreme court remanded a case to the trial court to conduct a "searching" colloquy of a defendant to ensure that the defendant understood the risks of self-representation. See generally State v. Bakalov , 862 P.2d 1354 (Utah 1993) (per curiam). The Utah Supreme Court remarked, "The court is also urged to appoint standby counsel to preserve [the defendant's] right to self-representation and to preclude subsequent claims of lack of waiver or ineffective assistance of counsel." Id . at 1355. Like the searching questions required in Bakalov , a formal order of appointment of standby counsel serves to both highlight the risks attendant in a defendant representing himself and set expectations and parameters, which can be recurrently reviewed by a pro se defendant as well as standby counsel. Further, a formal order of appointment ensures that a defendant appreciates the truly binary nature of the decision between self-representation and representation by counsel: it is either one or the other.

¶24 Such an order appointing standby counsel, in addition to parameters specific to a case, might include language such as:

In summary of the warnings that have previously been made to Defendant in open court, and unless and until Defendant expressly invokes the right to counsel and relinquishes his status as pro se counsel:
A. Any witnesses in any hearing or trial will be questioned by Defendant, not his standby counsel.
B. Any arguments made in open court will be made by Defendant, not his standby counsel.
C. Any statements made by Defendant in court can be used against him in this or any other proceeding.
D. Defendant will continually be responsible for compliance with the Utah Rules of Criminal Procedure, the Utah Rules of Civil Procedure, and the Utah Rules of Evidence.
E. The court cannot give any legal advice to Defendant, including advice on how to try this case, hold a hearing, or otherwise proceed in this matter.
F. Standby counsel's role is to act as a resource and is not appointed to keep Defendant from making mistakes.
G. Standby counsel may assist Defendant in obtaining legal resources, but standby counsel is not expected to conduct research for Defendant.
H. In the court's opinion, Defendant would be better served by being represented by an attorney. However, Defendant has elected to knowingly, intelligently, and voluntarily waive his right to counsel.

      When reviewing an appeal from a jury verdict, "we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict. We recite the facts accordingly." State v. Shepherd , 1999 UT App 305, ¶ 2, 989 P.2d 503 (citation and internal quotation marks omitted).

      We reject Defendant's argument that if everyone at counsel table remained seated, the jury would immediately guess that the root cause for this arrangement was Defendant's being restrained as a security risk, as opposed to there being some other explanation, such as a physical disability or a judicial preference for informality in the courtroom.

      As outlined in State v. Frampton , 737 P.2d 183 (Utah 1987), the trial court should conduct "a colloquy on the record" that not only ascertains the validity of a right to counsel waiver, but also "insures that defendants understand the risks of self-representation." Id. at 187. As more fully explained in Judge Mortensen's concurring opinion, if a defendant elects to represent himself and the trial court chooses to appoint standby counsel, it follows that the trial court should also advise defendants of the limits of standby counsel's duties and how those limits affect a defendant's decision to represent himself. Cf. id. ("[T]he defendant should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.") (citation and internal quotation marks omitted).

      We recognize that a few courts have held that ineffective assistance of counsel claims can be brought when standby counsel fails to perform competently. See People v. Bloom , 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698, 718 (1989) (en banc) ("[A] self-represented defendant must show that [standby] counsel failed to perform competently within the limited scope of the duties assigned to or assumed by counsel.") (emphasis omitted); Downey v. People , 25 P.3d 1200, 1204 (Colo. 2001) (en banc) (concluding that there is a claim for ineffective assistance of counsel when standby counsel "exceeds his role as advisory counsel").

      Pro se defendants have a fundamental right to access court resources, and under this right, they must be provided with "adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith , 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Defendant did not have access to a law library because the jail in which he was housed did not have one. However, the jail did have a paralegal that would pull requested sources for inmates. But Defendant never requested help from the available paralegal. Standby counsel's duty was to assist him in a comparable way, namely, by pulling the research materials Defendant needed. And "[i]t is well established that providing legal counsel is a constitutionally acceptable alternative to a prisoner's demand to access a law library." United States v. Taylor , 183 F.3d 1199, 1204 (10th Cir. 1999).

      Defendant sought to fill the void in the record with a rule 23B motion to remand. See Utah R. App. P. 23B. This motion was denied because Defendant failed to include specific facts and details supporting his claims of ineffective assistance of counsel. See id. R. 23B(b) ("The motion shall include or be accompanied by affidavits alleging facts not fully appearing in the record on appeal that show the claimed deficient performance of the attorney. The affidavits shall also allege facts that show the claimed prejudice suffered by the appellant as a result of the claimed deficient performance.").

      Even if Defendant had established that standby counsel failed to discharge his duties, it is doubtful that we could conclude the failure was prejudicial, warranting yet another trial for Defendant. Defendant maintains that standby counsel failed to procure witnesses or obtain evidence or legal research on his behalf, but he never demonstrates why this was prejudicial to his case. He alludes to one witness as being "the person he was going to meet the evening the police arrested him," but there is no indication as to what this witness or any other witnesses would have testified. He also fails to show how the outcome of the trial would have been different had he been given access to the reference materials he requested.