2016 UT App 109

THE UTAH COURT OF APPEALS

SHAUNA BADGER,

Appellant,

v.

DUSTIN MACGILLIVRAY,

Appellee.

Per Curiam Decision

No. 20150065-CA

Filed May 26, 2016

Fourth District Court, Provo Department

The Honorable Samuel D.McVey

No. 090402559

Shauna Badger, Appellant Pro Se

Evan A. Schmutz and Cole L. Bingham, Attorneys

for Appellee

Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and KATE 

A. TOOMEY.

PER CURIAM:

¶1 Shauna Badger appeals the district court’s order granting 

a motion to enforce a settlement agreement. During the appeal, 

this court temporarily remanded the case to the district court to 

make findings of fact on whether Badger “knowingly or 

recklessly committed fraud on this court by filing documents 

that contain material misrepresentations about the contents of 

records from the Provo Police Department.” This court retained 

jurisdiction to impose any sanctions. We now address both the 

appeal and sanctions. 
Badger v. MacGillivray

20150065-CA 2 2016 UT App 109

APPEAL OF ORDER ENFORCING SETTLEMENT

¶2 “The decision of a trial court to summarily enforce a 

settlement agreement will not be reversed on appeal unless it is 

shown that there was an abuse of discretion.” Goodmansen v. 

Liberty Vending Sys., Inc., 866 P.2d 581, 584 (Utah Ct. App. 1993) 

(citations and internal quotation marks omitted). “The trial court 

has the power to enter a judgment enforcing a settlement 

agreement if it is an enforceable contract.” Id. “*A+ settlement 

agreement may be summarily enforced by motion in the court of 

the original action.” Tracy-Collins Bank and Trust Co. v. 

Travelstead, 592 P.2d 605, 607 (Utah 1979). “If a written 

agreement is intended to memorialize an oral contract, a 

subsequent failure to execute the written document does not 

nullify the oral contract.” Lawrence Constr. Co. v. Holmquist, 642 

P.2d 382, 384 (Utah 1982). 

¶3 The settlement negotiations at issue here were conducted 

via text messages delivered over the parties’ cell phones. The 

district court found, in part, 

In the text messages, [Badger] clearly 

communicated an offer to settle and fully 

compromise and resolve all claims by Defendant’s 

payment of $25,000 now and $2,500 within one 

year. Defendant [Dustin MacGillivray] clearly and 

timely repeated those terms and communicated his 

unequivocal acceptance of *Badger’s+ offer. 

[Badger] added one more term regarding remedies 

on default. [MacGillivray] clearly and 

unequivocally communicated his acceptance of the 

additional term. [Badger] communicated her 

agreement by texting “ok.”

¶4 MacGillivray’s counsel prepared a written settlement 

agreement, which Badger refused to sign. The district court 

found that 
Badger v. MacGillivray

20150065-CA 3 2016 UT App 109

the sole reason for Badger’s rejection and refusal to 

perform was a claim that her text contained a 

“typo” and that she meant to state she would settle 

for two payments of $25,000, one now and one a 

year later, but she made a unilateral mistake and 

accidentally texted $2,500.

The district court found that based upon the communications 

between the parties, Badger did not make a mistake in sending a 

clear written offer to settle for $25,000 now and $2,500 in one 

year. The court further found that even if Badger had made a 

unilateral mistake in communicating her final offer, she “did not 

exercise ordinary diligence in sending her final offer to make 

sure it was correct, or in reviewing *MacGillivray’s+ repeat of the 

terms of that offer and agreeing that such terms constituted an 

agreement to settle.” After stating the terms of the settlement, 

the district court also found that sufficient consideration 

supported the agreement. 

¶5 Badger’s first claim on appeal was that the district court 

erred by ruling that the settlement discussions constituted a 

legally binding contract “in a summary proceeding under the 

authority of Tracy-Collins Bank & Trust Co. v. Travelstead, 592 

P.2d, 605, 607 (Utah 1967).” Badger’s apparent claim is that 

Tracy-Collins did not apply because there was already a 

judgment for a liquidated amount in the underlying case and the 

settlement occurred during post-judgment proceedings to 

enforce the judgment. This claim lacks merit. The only 

proposition for which Badger cited Tracy-Collins was that the 

motion could be resolved in a summary proceeding. The district 

court did not err in resolving the case in summary proceedings 

under the circumstances. 

¶6 Badger next claims that the district court erred in finding 

that MacGillivray gave “legally sufficient consideration.” In 

sum, Badger claims that because she had a judgment for a 

liquidated sum against MacGillivray, payment of any smaller 

amount was insufficient consideration. MacGilivray argues that 
Badger v. MacGillivray

20150065-CA 4 2016 UT App 109

this issue was not preserved. Badger counters that the claim was 

preserved in her opposition to the motion to enforce the 

settlement agreement, which included her assertion that because 

MacGillivray “already owes this amount and because *he+ has 

offered to pay substantially less than the amount owing, [he] has 

not offered any consideration to [Badger] that would make the 

contract binding.” Badger preserved only this argument. 

¶7 Badger’s argument is essentially that because she has a 

judgment, any settlement that involves payment of less than the 

full judgment amount is “void” for lack of consideration. 

“*E+ven if a claim is undisputed and liquidated, parties can still 

discharge their obligations through accord and satisfaction. In 

such instances, however, parties must support the accord with

separate consideration.” Estate Landscape & Snow Removal 

Specialists, Inc. v. Mountain States Tel. & Tel. Co., 844 P.2d 322, 326 

(Utah 1992). Badger’s argument that only the full amount of the 

judgment can be sufficient consideration lacks merit. In 

Sugarhouse Finance Company v. Anderson, 610 P.2d 1369 (Utah 

1980), the plaintiff held a judgment that had been outstanding 

for over two years when the defendant agreed to pay a smaller 

amount immediately. The supreme court stated,

This was something defendant had no legal 

obligation to do; by law, plaintiff could only move 

by levy of execution against property already 

owned by the defendant−plaintiff could not legally 

require defendant to incur additional obligations to 

satisfy the judgment. By so doing, defendant 

deliberately incurred the detriment of surrendering 

his right to limit plaintiff’s ability to obtain 

satisfaction of the underlying judgment, and 

bestowed upon plaintiff the benefit of immediate 

payment by means of the incurrence of additional 

indebtedness. We hold such action to constitute 

sufficient consideration to support the accord 

negotiated by the parties.
Badger v. MacGillivray

20150065-CA 5 2016 UT App 109

Id. at 1373 (citation omitted). Similarly, at the time of the 

settlement negotiations between Badger and MacGillivray, 

Badger had obtained a writ of execution and seized personal 

property allegedly owned by MacGillivray. MacGillivray 

requested a hearing because he disputed that all of the seized 

property was subject to execution. The district court set a 

hearing date. Prior to that time, the parties reached the 

settlement. As in Sugarhouse Finance, MacGillivray could have 

required Badger to limit her recovery to the seized property, but 

he accepted her offer to make an immediate payment of $25,000 

and an additional smaller payment in one year. As in Sugarhouse 

Finance, MacGillivray incurred an obligation that he was not 

required to incur, and the settlement was supported by sufficient 

consideration.

¶8 Badger’s final argument is that the district court’s order is 

not consistent with the oral ruling. This argument lacks merit 

because she has not demonstrated a material difference between 

the oral ruling and the order the district court signed. 

Furthermore, Badger failed to preserve this argument, because 

she did not raise the claimed disparities in the trial court to allow 

that court to review and resolve them. In sum, the district court 

did not abuse its discretion in enforcing the settlement 

agreement.

SANCTIONS

¶9 This court now addresses the reserved issue of whether to 

impose sanctions based upon the district court’s findings of fact 

on the temporary remand from this court. Our order asked the 

district court to make

findings of fact on whether Shauna Badger 

knowingly or recklessly committed fraud on this 

court by filing documents that contain material 

misrepresentations about the contents of records 

from the Provo Police Department regarding an 
Badger v. MacGillivray

20150065-CA 6 2016 UT App 109

investigation in the year 2010 of allegations of 

witness tampering by [opposing counsel] and the 

results of that investigation, which may include 

falsely reporting that witness tampering charges 

were approved by the Utah County Attorney and 

that [opposing counsel] was summoned, cited, 

arrested, booked, and/or photographed.

¶10 The district court held an evidentiary hearing on March 9 

and March 29, 2016, before issuing detailed findings of fact and 

an order on March 30, 2016. That resolution concluded the 

proceedings on remand and returned jurisdiction to this court. 

Having determined that Badger had not provided a credible 

explanation for the inclusion of a two-page “arrest report” in her 

filings, the district court stated, 

The Court finds Badger knew filing the two page 

arrest record could potentially mislead the Court of 

Appeals. She knew the record was not in the Provo 

City files and was not included by Detective 

Gibson in his affirmation. She also knew over five 

years ago there was no arrest of [opposing counsel] 

or any other action taken against him by law 

enforcement and prosecution than to investigate 

her complaint and reject it as a basis for 

prosecution or arrest. She knew she represented 

falsely the arrest record was true and correct when 

she filed it in the Court of Appeals (and with this 

Court in 2014). She falsely represented the two 

page report as being a genuine record of the Provo 

police department when she in fact doctored the 

attachments to Detective Gibson’s and Provo City’s 

GRAMA response. These activities were performed 

with an improper intent to inflame prejudice 

against [opposing counsel] and satisfy her feelings 

against him in an attempt to help her case.
Badger v. MacGillivray

20150065-CA 7 2016 UT App 109

The district court concluded that Badger knowingly filed 

factually erroneous materials in both this court and the district 

court.1

¶11 Based upon the district court’s detailed and pointed 

findings of fact, we impose a monetary sanction on Badger in the 

amount of attorney fees representing the reasonable value of 

MacGillivray’s counsel’s time spent in connection with the 

motion to strike, including proceedings before this court and 

before the district court on temporary remand involving the 

motion to strike Badger’s opening and reply briefs; the 

December 10, 2015 hearing before this court on that motion; 

preparation for and attendance at the hearing before the district 

court on March 9 and March 29, 2016; and the preparation and 

entry of the March 30, 2016 findings of fact and order.

CONCLUSION

¶12 ¶For the foregoing reasons, we affirm the district court’s 

order enforcing the settlement agreement. In addition, we 

remand to the district court for a determination of an award of 

attorney fees representing the reasonable value of MacGillivray’s 

counsel’s time attributable to Badger’s improper filing and 

related conduct, as more fully described in the preceding 

paragraph of this decision.

 

1. Our order of temporary remand was without prejudice to the 

district court’s imposition of any sanctions based upon filings 

made in the district court. The district court reserved ruling on 

its own sanctions for the improper 2014 filing in that court until 

after remittitur.