Wolferts v. Wolferts, 2013 UT App 235, No.
20110646-CA (October 3, 2013)
ISSUES:
Contempt, Preservation of Issues for Appeal
Judge
Thorne,
Appellant Sonja Michelle Wolferts (Mother) appeals from three of the district court’s orders: the May 5, 2010 order enforcing contempt provisions; the Findings of Fact, Conclusions of Law, and Order of Modification modifying child custody; and the Ruling and Order on Petitioner’s Request for Fees and Costs awarding attorney fees and costs to Appellee Brian Wolferts (Father). We affirm.
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1.
The
Court sets forth the background of this case.
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2-6.
The
Court sets forth the issues and standards of review.
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7-9.
Mother argues that the district court erred when it punished her for contempt of court without conducting an evidentiary hearing. . . .
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10.
. . . Because Mother never sought to call any witnesses or to testify at the contempt hearing, we do not agree with Mother that the commissioner deprived her of her right to confront witnesses or to testify on her own behalf before finding her in contempt. Instead, Mother merely failed to call her own witnesses or to testify herself. Cf. Gardiner v. York, 2010 UT App 108, ¶ 44, 233 P.3d 500 . . .
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13.
In addition to this failure, Mother did not object or otherwise inform the district court of any dissatisfaction with the contempt proceeding conducted by the commissioner, i.e., that the commissioner had failed to conduct an evidentiary hearing. “A recommendation of a court commissioner is the order of the court until modified by the court.” Utah R. Civ. P. 108(a). Because Mother did not object to the contempt proceeding procedure, the district court accepted the commissioner’s recommendation and countersigned the contempt order. Based on these circumstances, we cannot conclude that Mother was denied an opportunity to fully address the contempt allegations against her.
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14.
The
Court rejects Mother’s alternative arguments because they were inadequately
briefed.
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15-17.
Mother claims that the district court abused its discretion by striking her pleading as a sanction for her failure to comply with a custody evaluation order. Mother maintains that the court-ordered custody evaluation is not a discovery order and therefore the court had authority to enforce the custody evaluation order only through contempt proceedings, which authority she asserts does not allow a court to strike pleadings and enter a default against a noncompliant party. In the alternative, Mother argues that even if the custody evaluation order is considered a discovery order, the court abused its discretion by failing to notify her in advance that any violation of the custody evaluation order could result in a discovery sanction. Father counters that Mother failed to preserve these arguments in the district court.
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18.
. . . Because Mother neither preserved her arguments related to whether the district court abused its discretion by striking her pleading, as a sanction for contempt of court, nor timely asserted any exception to the preservation rule on appeal, we do not consider these issues further.
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20.
Mother next argues that the district court deprived her of her constitutional right to testify and present evidence at the hearing to determine the best interests of the Children. Father urges this court to uphold the court’s modification of the divorce decree, arguing that Mother waived her right to testify and invited error by her conduct and counsel’s statements affirmatively representing that Mother would not be prejudiced by her inability to call witnesses and to testify on her own behalf at the best interests hearing. We decline to consider whether Mother waived or invited any error because we conclude, instead, that Mother failed to preserve the issue.
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21.
. . . Although Mother requested that she be permitted to call her own witnesses and testify herself at the best interests hearing, she did not assert that she had a constitutional right to do so, nor did she argue she would be prejudiced by such a restriction. As such, Mother did not present her constitutional argument to the district court in such a way that it had an opportunity to rule on that issue. . . . Mother does not assert any exceptions to the preservation rule. As a result, we do not consider Mother’s constitutional argument.
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22.
The
Court awards Father his attorney fees for the appeal.
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23.
Westmont Maintenance v.
Vance, 2013 UT App 236, No. 20120369-CA (October 3, 2013)
Judge
Thorne,
Westmont Maintenance Corporation and Westmont Mirador, LLC (collectively Westmont) appeal from the district court’s order dismissing their defamation complaint against attorney Dwayne A. Vance and imposing sanctions against Westmont in the amount of $2,600 to be paid to Vance to compensate him for the time he spent defending the case on his own behalf. We affirm.
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1.
The
Court sets forth the background of this case.
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2-9.
The judicial proceedings privilege is an absolute privilege protecting attorneys and others involved in litigation against suits arising from statements made related to the litigation. See Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997) . . . “To establish the judicial proceeding privilege, the statements must be (1) made during or in the course of a judicial proceeding; (2) have some reference to the subject matter of the proceeding; and (3) be made by someone acting in the capacity of judge, juror, witness, litigant, or counsel.” Krouse v. Bower, 2001 UT 28, ¶ 8, 20 P.3d 895 (citation and internal quotation marks omitted). Westmont’s specific arguments against the application of the privilege in this case focus on the first and second prongs of this test.
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13.
. . . “[T]he publication of defamatory matter by an attorney is protected not only when made in the institution of proceeding or in the conduct of litigation before a judicial tribunal, but in conferences and in communications preliminary thereto.” Id. (emphasis added) (citation and internal quotation marks omitted). It is clear that Vance’s statements regarding the contested second lease pertained to an existing legal dispute between the Shurtliffs and Westmont that ultimately ripened into formal litigation. Vance’s final letter expressly stated that the parties’ dispute would have to be resolved in court. Cf. id. . . . Further, the forgery question was actually litigated in the Shurtliff–Westmont case, resulting in a determination that there was no evidence that Westmont forged the lease. Under these circumstances, we agree with the district court that Vance’s communications were made “preliminary to a proposed judicial proceeding” and were therefore “made during or in the course of a judicial proceeding” for purposes of the privilege. Id.
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15.
Westmont also argues that the allegedly defamatory statements in Vance’s letters lack “some reference to the subject matter of the proceeding.” Id. ¶ 8 (citation and internal quotation marks omitted). The thrust of Westmont’s argument in this regard is that the Shurtliffs never alleged a formal claim of forgery, fraud, or extortion in the subsequent Shurtliff–Westmont litigation. However, “[a] statement need not be relevant or pertinent to the judicial proceeding from an evidentiary point of view for the privilege to apply.” DeBry v. Godbe, 1999 UT 111, ¶ 16, 992 P.2d 979. Rather, “[s]tatements are relevant for purposes of the privilege if they simply have ‘some relationship to the cause or subject matter involved.’” Krouse, 2001 UT 28, ¶ 12 (quoting DeBry, 1999 UT 111, ¶ 16). In this case, Vance’s statements relate broadly to the overall dispute between the Shurtliffs and Westmont and specifically to the question of whether the second lease was valid. This is sufficient to satisfy the requirement that statements “have some reference to the subject matter of the proceeding.” Id. ¶ 8 (citation and internal quotation marks omitted).
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16.
Westmont also challenges the district court’s award of $2,600 in sanctions against it to compensate Vance for the time he spent defending himself in this matter. Westmont argues that the district court erred in awarding Vance his own attorney fees because he failed to request such fees in his motion to dismiss and because Utah law prohibits attorney fee awards to licensed attorneys for representing themselves pro se. Westmont also argues that the award cannot be upheld as a sanction because the district court failed to give Westmont notice and an opportunity to respond, in violation of its due process rights.
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18.
. . . the district court did not award Vance prevailing party attorney fees, but rather awarded those fees to Vance as a sanction against Westmont. This is suggested by the district court’s oral ruling, but any doubt was removed by the dismissal order’s specific language awarding fees “[p]ursuant to the Court’s inherent power to sanction.” Thus, Westmont’s only argument on appeal that actually challenges the basis for the district court’s attorney fee award is Westmont’s argument that the district court violated Westmont’s due process rights by imposing sanctions without giving Westmont notice and an opportunity to respond.
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20.
We conclude that Westmont failed to preserve its due process issue for appeal because it failed to apprise the district court that the court had erred by imposing sanctions without the required notice and hearing. . . . Westmont’s failure to raise the issue to the district court despite multiple appropriate opportunities to do so constitutes a waiver of that issue, and we decline to address it on appeal. . . .
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21.
In re K.J., 2013 UT App 237, No.
20111113-CA (October 3, 2013)
ISSUES:
Termination of Parental Rights
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