2016 UT App 183

THE UTAH COURT OF APPEALS

HEARTWOOD HOME HEALTH & HOSPICE LLC,

Appellant,

v.

RITA HUBER AND GLENNA MOLYNEUX,

Appellees.

Opinion

No. 20140883-CA

Filed September 1, 2016

Third District Court, Salt Lake Department

The Honorable John Paul Kennedy

No. 120907379

Gary R. Guelker and Janet I. Jenson, Attorneys

for Appellant

Robert H. Wilde and Michael S. Wilde, Attorneys

for Appellees

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE

KATE A. TOOMEY and SENIOR JUDGE JUDITH M. BILLINGS 

concurred.

1

ORME, Judge:

¶1 Heartwood Home Health & Hospice LLC appeals from 

the district court’s order imposing sanctions against it under rule 

11 of the Utah Rules of Civil Procedure.2 Although other claims 

 

1. Senior Judge Judith M. Billings sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(6).

2. Heartwood challenges the rule 11 sanctions, which the district 

court ordered on June 20, 2014. But as the appellees point out, 

the notice of appeal cited an August 21, 2014 order that awarded 

(continued...)
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remained pending, Heartwood promptly appealed the rule 11 

sanctions, claiming that Clark v. Booth, 821 P.2d 1146 (Utah 1991), 

required the early appeal. See id. at 1148. After Heartwood filed 

its notice of appeal, but before briefing, the Utah Supreme Court 

issued its opinion in Migliore v. Livingston Financial, LLC, 2015 UT 

9, 347 P.3d 394. Migliore repudiated Clark. Id. ¶ 21. Because 

Migliore governs this case, we dismiss the appeal for lack of 

jurisdiction.

BACKGROUND

¶2 The appellees in this case, Rita Huber and Glenna 

Molyneux (collectively, Appellees), were both employees of 

Heartwood until sometime in 2012, when they left their jobs to 

join one of Heartwood’s competitors. On October 24, 2012, 

Heartwood sued Appellees, their new employer, and a third 

former Heartwood employee. Heartwood alleged breach of 

contract, breach of the duty of loyalty, breach of the duty of 

confidentiality, intentional interference with contract, and 

entitlement to injunctive relief. Appellees and the other 

defendants brought counterclaims and a third-party complaint, 

alleging interference with economic relations, defamation, and 

violations of the Fair Labor Standards Act.

 

(...continued)

the appellees attorney fees. The appellees argue that the August 

21, 2014 order only concerned the award of attorney fees and 

therefore that we should not review the earlier order in which 

the court determined whether rule 11 sanctions were warranted. 

In light of our conclusion that neither order constitutes an 

appealable order, we need not resolve this issue. See Utah R. 

App. P. 3(a); Utah R. Civ. P. 54(a).
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¶3 For nearly a year after Heartwood filed the initial 

complaint, the parties conducted discovery. During discovery, 

Heartwood’s president’s deposition was taken.

¶4 In light of that deposition, Appellees’ counsel drafted and

served Heartwood’s counsel with a ‚Rule 11 Motion and 

Memorandum‛ and cover letter. The cover letter described the 

rule 11 ‚safe harbor provisions,‛ which require rule 11 claimants 

to notify the opposing party of an intended rule 11 motion 

twenty-one days before filing it to allow the opposing party an 

opportunity to rectify the alleged improprieties. See Utah R. Civ. 

P. 11(c)(1)(A). The proffered motion would seek sanctions if 

Appellees were not dismissed from the lawsuit, Appellees 

insisting that Heartwood lacked a ‚factual or legal basis‛ for its 

claims against them. After the safe-harbor period expired and 

Heartwood did not dismiss Appellees, they filed the rule 11 

motion along with a motion for summary judgment, seeking 

dismissal of all claims against them. The parties agreed that the 

rule 11 motion should be decided after the summary judgment 

motion. The district court later granted summary judgment to

Appellees, and shortly thereafter, it granted Appellees’ rule 11 

motion in a June 20, 2014 order. In its order the court also 

requested that Appellees submit a fee affidavit, and it granted 

Appellees an award of attorney fees in an August 21, 2014 order. 

Heartwood appealed the August 21, 2014 order on September 

19, 2014. See supra note 2. Heartwood’s claims against the other 

defendants are still pending in the district court, as are 

Appellees’ counterclaims and third-party complaint.

¶5 On January 27, 2015, the Utah Supreme Court issued 

Migliore v. Livingston Financial, LLC, 2015 UT 9, 347 P.3d 394. 

Citing Migliore, Appellees then submitted a motion for summary 

disposition, asserting that we lack jurisdiction because rule 11 

‚does not relieve Heartwood from the final judgment rule.‛ We 

denied that motion but asked the parties, who had not yet 
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submitted their appellate briefs, to address in their briefing

whether Migliore governed this appeal.

ANALYSIS

¶6 Heartwood claims that the district court’s imposition of 

rule 11 sanctions against it, ‚based on *the court’s+ determination 

that Heartwood had failed to produce sufficient facts to 

withstand the defendants’ summary judgment motion,‛ was 

erroneous when ‚Heartwood had a good faith belief that there 

was significant circumstantial evidence to support its claims.‛

Because we lack jurisdiction to hear Heartwood’s appeal, we do 

not reach this issue.

¶7 With limited exceptions, a party who is entitled to an 

appeal may take that appeal only from ‚final orders and 

judgments.‛ Utah R. App. P. 3(a). And we generally lack 

‚jurisdiction over an appeal unless it is taken from a final 

judgment.‛ Loffredo v. Holt, 2001 UT 97, ¶ 10, 37 P.3d 1070. This 

principle promotes judicial economy by preventing piecemeal 

appellate litigation. See id. ¶ 14; ProMax Dev. Corp. v. Raile, 2000 

UT 4, ¶ 15, 998 P.2d 254. ‚To be final, the trial court’s order . . . 

must dispose of all . . . claims [in] an action.‛ Bradbury v. Valencia, 

2000 UT 50, ¶ 10, 5 P.3d 649. Here, there has been no final 

judgment, as none of the three orders—the order granting 

summary judgment to Appellees, the order finding a rule 11 

violation, or the order awarding attorney fees as a sanction—

were final by their terms nor were they certified as final, see Utah 

R. Civ. P. 54(b), and claims are still pending below. Heartwood 

does not contend otherwise, but it insists that we have 

jurisdiction under an exception to the final judgment rule that 

allows rule 11 matters to be treated independently from the rest 

of the case.

¶8 Until the Supreme Court’s decision in Migliore, the timing 

for appeals of rule 11 sanctions was governed by Clark v. Booth, 
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821 P.2d 1146 (Utah 1991). According to Clark, a rule 11 motion 

‚ha*d+ no relationship to the disposition of the case on its 

merits.‛ Id. at 1148. Thus, rule 11 sanctions were collateral and 

could be appealed independently from the merits of the case. See 

id. To that end, Heartwood cited Clark in support of its claim that 

‚orders imposing Rule 11 sanctions must be appealed separately 

via a separate appellate action.‛

¶9 But in Migliore, the Utah Supreme Court expressly 

repudiated Clark, and determined that, because motions for rule 

11 sanctions are ‚requests for attorney fees,‛ we should apply 

the rule from ProMax. See Migliore, 2015 UT 9, ¶ 21. According to 

ProMax, judicial economy requires ‚an appellant to appeal all 

issues, including an award of attorney fees, in a single notice of 

appeal.‛ 2000 UT 4, ¶ 15 (citation and internal quotation marks 

omitted). And Migliore ‚extend*ed+ ProMax to apply to requests 

for rule 11 sanctions raised before or contemporaneously with 

the entry of a final appealable judgment.‛ 2015 UT 9, ¶ 20. But 

because Migliore issued after Heartwood had filed its appeal, we 

must consider whether Migliore applies to this case. We conclude 

that it does.

¶10 As a general rule, an overruling decision—i.e., a decision 

by a court rejecting or repudiating a rule previously announced 

by that same court—applies retroactively unless the decision 

expressly limits the application of the new rule to ‚future cases 

arising from fact situations occurring after the announcement of 

the new rule.‛ S.R. Shapiro, Annotation, Prospective or Retroactive 

Operation of Overruling Decision, 10 A.L.R.3d 1371, § 1[a] (1966). 

In Utah, when our Supreme Court issues an overruling decision, 

‚[t]he general rule of retroactivity is that the ruling of a court is 

deemed to state the true nature of the law both retrospectively 

and prospectively.‛ Monarrez v. Utah Dep’t of Transp., 2016 UT 10, 

¶ 28, 368 P.3d 846 (citation and internal quotation marks 

omitted). Perhaps obviously, such an alteration (or new 

characterization) of the common law ‚applies retroactively to the 
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parties who seek it.‛ SIRQ, Inc. v. The Layton Cos., 2016 UT 30, 

¶ 6. But less obviously, when ‚other cases pending on appeal‛ 

address the same issue, the parties in those cases ‚are also 

entitled to the benefit of such a change in the law,‛ even where 

the new standard ‚was not handed down until after trial,‛ so 

long as there is no effective challenge to the application of the 

new law.3Id.

¶11 Under ‚the modern view,‛ however, Utah courts often

consider ‚relevant judicial policies‛ in deciding the retroactive 

operation of a change in the common law. See Van Dyke v. 

Chappell, 818 P.2d 1023, 1025 (Utah 1991). In such circumstances,

it is the parties’ burden to demonstrate the need for prospective 

application only. See Monarrez, 2016 UT 10, ¶ 28. To this end, the 

 

3. Generally, parties are protected from the retroactive 

application of newly enacted legislation unless the Legislature 

expressly states otherwise or if an exception applies. Waddoups v. 

Noorda, 2013 UT 64, ¶ 6, 321 P.3d 1108. One such wellestablished exception is that laws that only affect procedure

apply retroactively. See id. ¶ 8. While this is not the preferred 

approach to determining retroactive application of changes to 

the common law, see S.R. Shapiro, Annotation, Prospective or 

Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371, 

§ 5[a] (1966), by analogy, the principles informing this approach 

also suggest that retroactive application would be appropriate 

here. The rule under consideration is purely procedural as it 

impacts only the timing of Heartwood’s appeal and does not 

affect Heartwood’s ability to appeal or its likelihood of success in 

future appeals. See Waddoups, 2013 UT 64, ¶ 8 (‚However, laws 

which merely pertain to and prescribe the practice and 

procedure or the legal machinery by which the substantive law 

is determined or made effective are procedural and may be 

given retrospective effect.‛) (brackets, citation, and internal 

quotation marks omitted).
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party seeking to avoid retroactive application of the new law 

‚must *make+ a showing of ‘justifiable reliance on the prior state 

of the law’ or that ‘the retroactive operation of the new law may 

otherwise create an undue burden.’‛ Id. (quoting Van Dyke, 818 

P.2d at 1025). See also SIRQ, 2016 UT 30, ¶ 6 (applying an 

overruling decision to a pending appeal because the parties did 

not challenge its applicability); Loyal Order of Moose, # 259 v. 

County Board of Equalization, 657 P.2d 257, 265 (Utah 1982) 

(‚Where overruled law has been justifiably relied upon or where 

retroactive operation creates a burden, the court, in its discretion, 

may prohibit retroactive operation of the overruling decision.‛).

¶12 Here, Heartwood challenges the applicability of Migliore, 

but it points us to no law contradicting the general rule favoring 

retroactivity. And Heartwood has made no ‚showing‛ of its 

justifiable reliance on Clark, nor has it shown that our application 

of Migliore would cause an undue hardship. See Monarrez, 2016 

UT 10, ¶ 28. Instead, the entirety of its argument on this point

consists of a brief footnote stating that ‚the Migliore decision was 

published approximately five months after the district court 

entered its Rule 11 Judgment in this matter. Therefore, [Clark] 

still applied at the time Heartwood filed its Notice of Appeal and 

the Rule 11 Judgment should be treated separately from the 

underlying lawsuit.‛ This ‚bare assertion‛ provides us with no 

basis upon which to depart from the general rule. See Monarrez, 

2016 UT 10, ¶ 28 (citation and internal quotation marks omitted). 

In other words, Heartwood simply has not meaningfully 

challenged the retroactive application of Migliore, see SIRQ, 2016 

UT 30, ¶ 6, and we therefore conclude that the Migliore rule 

applies to this case.

CONCLUSION

¶13 Migliore governs the timing of Heartwood’s appeal. And 

because it requires that attorney fee awards, including those 

awards imposed as rule 11 sanctions, must be raised in a single 
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20140883-CA 8 2016 UT App 183

appeal after entry of a final judgment, see Migliore v. Livingston 

Financial, LLC, 2015 UT 9, ¶ 21, 347 P.3d 394, Heartwood’s 

appeal is premature, and we are jurisdictionally barred from 

reaching its merits.4 Accordingly, we dismiss the appeal without 

prejudice to the filing of a timely appeal after the entry of a final, 

appealable judgment.

 

4. Paradoxically, application of the Migliore rule, which advances 

the cause of judicial efficiency across the board, actually impedes 

it here. The narrow issue on appeal has been briefed and argued. 

We could decide the issue now and spare the parties the burden 

of rebriefing and, perhaps, rearguing the issue. And we would 

spare the Utah Supreme Court, or, more likely, another panel of 

this court, from having to come up to speed on the issue raised 

in the instant appeal. Unfortunately, because the final judgment 

rule is jurisdictional and not discretionary, we are powerless to 

decide the merits of the appeal for the sake of convenience.