2016 UT App 231

THE UTAH COURT OF APPEALS

IOTA LLC AND CALIFORNIA BENEFIT INC.,

Appellees,

v.

DAVCO MANAGEMENT COMPANY LC AND DAVID FISHER,

Appellants.

Opinion

No. 20130552-CA

Filed November 25, 2016

Fifth District Court, St. George Department

The Honorable James L. Shumate

No. 080502981

Darwin C. Fisher, Attorney for Appellants

Paul D. Veasy, Alan S. Mouritsen, and Douglas C. 

Naftz, Attorneys for Appellees

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES

J. FREDERIC VOROS JR. and KATE A. TOOMEY concurred.

1

ROTH, Judge:

¶1 This case returns to us after we vacated a contempt 

judgment and remanded to the district court in Iota, LLC v. Davco 

Mgmt. Co. (Iota I), 2012 UT App 218, 284 P.3d 681. That decision 

was based on a procedural defect, and on remand Iota LLC and 

California Benefit Inc. (collectively, Iota) cured the defect. The 

district court entered a new contempt judgment, from which 

 

1. After hearing the arguments, Judge James Z. Davis passed 

away and did not participate in the consideration of this case. 

Judge Kate A. Toomey, having reviewed the briefs and listened 

to a recording of the oral arguments, substituted for Judge Davis 

and participated fully in this decision.
Iota v. Davco Management Company

20130552-CA 2 2016 UT App 231

Davco Management Company LC and David Fisher2

(collectively, Davco) now appeal. We affirm.

BACKGROUND

¶2 A full account of the background in this case is available 

in Iota I, 2012 UT App 218, ¶¶ 2–9. In summary, Davco 

contracted with Iota for the purchase of two apartment 

complexes in St. George, Utah. The sale was owner-financed and 

Davco executed a promissory note to Iota for each property, both 

with maturity dates in December 2007. Payment of the notes was 

secured by trust deeds for each property. Among other things, 

the trust deeds granted Iota a security interest in the form of an 

assignment of the rents and other sources of revenue associated 

with the apartments on the two properties in the event of a 

default.

¶3 By September of 2008, the promissory notes were long 

past due and negotiations to resolve the defaults had proved 

unsuccessful. Davco stopped making payments on the notes, 

which triggered foreclosure on the properties and this lawsuit. 

During the initial stage of this suit, Iota moved ex parte for an 

order requiring Davco to deposit all apartment rents into court. 

The motion was based on Utah Rule of Civil Procedure 67, 

which provides that a court may order a party to deposit with 

the clerk of court ‚any money or other thing‛ that is shown by 

admissions in the pleadings or ‚upon the examination of a 

party,‛ to belong to or be ‚due to another party.‛

¶4 The district court issued an order on November 5, 2008

(the Ex Parte Order) requiring Davco Management and Fisher to 

 

2. Although David Fisher is not listed as an appellant on the 

caption of the opening brief in this case, the notice of appeal 

listed both Davco Management and Fisher as appellants, and 

counsel’s signature block confirms that he represents both Davco 

Management and Fisher.
Iota v. Davco Management Company

20130552-CA 3 2016 UT App 231

deposit with the court all rents collected. Davco was properly

served and neither filed an objection nor moved to have it set 

aside. Davco Management, through Fisher, collected and 

retained apartment rental payments and other revenue from 

September 2008 until the foreclosure sale was completed in 

February 2009. However, Davco deposited money with the court 

only once, in August 2009, when it remitted $33,805.33. The

single deposit was considerably less than the amount Davco had 

collected after the Ex Parte Order was entered, and Davco made 

the deposit only after ‚the Court made clear [in a hearing 

attended by Fisher] its displeasure with Davco’s and David 

Fisher’s failure to pay collected rents . . . into the Court.‛ 

¶5 Following the foreclosure sale of the properties, Iota 

sought deficiency judgments against Davco and to recover the 

rents and other revenue that Davco collected between September

1, 2008, and February 20, 2009. In addition, Iota argued in its trial 

brief that both Davco Management and Fisher should be held in 

contempt for failing to comply with the Ex Parte Order. Davco

responded to the contempt argument by challenging the court’s 

contempt jurisdiction on the basis that Iota had failed to file an 

affidavit of the facts constituting contempt as required by Utah 

Code subsection 78B-6-302(2). Davco also moved to have the Ex 

Parte Order struck, asserting that the trial court failed to comply 

with Utah Rule of Civil Procedure 67 in issuing it. The court 

denied both motions.

¶6 Iota prevailed at trial on its breach of contract and 

deficiency claims and successfully urged the court to hold Davco 

Management and Fisher in contempt for failing to comply with 

the Ex Parte Order. The court entered deficiency judgments 

against Davco (calculated as the difference between the proceeds 

of the trustee’s sale and the unpaid balance of the promissory 

notes) and awarded Iota its attorney fees. The district court 

made two other rulings relevant to the current appeal. First, it 

concluded that Davco’s failure to remit rents and other revenues 

to Iota after it defaulted on the promissory notes was a violation 

of the trust deeds’ requirement to do so. Second, it held both 
Iota v. Davco Management Company

20130552-CA 4 2016 UT App 231

Davco Management and Fisher in contempt for their failure to 

comply with the Ex Parte Order. The court entered a separate 

contempt judgment in the amount of $71,119.17 for revenues 

withheld, plus attorney fees.

¶7 In Iota I, this court affirmed the deficiency judgments.

However, we vacated the contempt judgment against Davco

Management and Fisher. Our decision turned on the 

requirement that, ‚[w]hen the contempt is not committed in the 

immediate view and presence of the court or judge, an affidavit . 

. . shall be presented . . . of the facts constituting the contempt.‛ 

Utah Code Ann. § 78B-6-302(2) (LexisNexis 2012). We 

determined that Iota never filed an affidavit, and as a 

consequence, ‚we reverse*d+ the trial court’s contempt rulings 

against Davco and Fisher for lack of jurisdiction and remand[ed] 

to the trial court for additional proceedings, on the contempt 

matter only . . . .‛ Iota I, 2012 UT App 218, ¶ 40. Further,

‚because we reverse*d+ the contempt rulings on jurisdictional 

grounds, we determine[d] that any error relating to the trial 

court’s Ex Parte Order was harmless‛ and therefore did not 

address Davco’s challenges to the order on the merits. Id.

¶8 On remand, Iota filed an affidavit in support of its 

allegations of contempt against Davco, and the district court 

scheduled an evidentiary hearing to address the matter. At the 

hearing, the court took notice of the evidence, facts, and orders 

of the court from the prior contempt proceedings, ‚except for 

those portions reversed by [this court in Iota I+.‛ In addition, 

Fisher testified for Davco Management as its managing member 

and on his own behalf, and Iota presented the testimony of its 

officer, Richard T. Murset.3 At the conclusion of the hearing, the 

district court again held both Davco Management and Fisher in 

contempt based on a review of Iota I, briefing and testimony 

 

3. Murset is a managing member of Iota LLC and vice president 

of California Benefit Inc.
Iota v. Davco Management Company

20130552-CA 5 2016 UT App 231

from the postappeal hearing, and evidence from the prior 

proceedings.

¶9 In its second contempt order, the district court concluded 

that the affidavit filed by Iota satisfied the statute’s requirement 

and that the jurisdictional issue identified in Iota I had thus been 

satisfied. The court also concluded that the collateral bar 

doctrine precluded Davco from arguing that the Ex Parte Order 

was improperly issued:

Davco and David Fisher violated Utah Code 

Annotated § 78B-6-301 by knowingly disobeying 

this Court’s Ex Parte Order in failing to turn over 

the rents to the court clerk for further disposition 

by Order of this Court. David Fisher, on behalf of 

himself and his company, Davco, has knowingly 

and wrongfully retained the security deposits and 

has failed to deliver those amounts to Iota . . . to 

apply towards Plaintiffs’ debt obligations.

The district court found Davco Management and Fisher in 

contempt and entered judgment against both in the sum of 

$116,025.02, which included the amount of the withheld rents 

and other revenues as well as Iota’s attorney fees incurred in the 

contempt proceedings both before and after Iota I. Davco 

appeals.

ANALYSIS

¶10 Davco raises multiple challenges to the district court’s 

decision finding Davco Management and Fisher in contempt for 

failure to comply with the Ex Parte Order. Specifically, Davco 

contends that the district court either erred or abused its 

discretion by: (1) holding Davco in contempt based on an 

unclear and ambiguous Ex Parte Order; (2) awarding Iota 

damages; (3) finding Davco in contempt of court; (4) affirming 

its prior judgment for contempt; (5) awarding Iota its attorney 
Iota v. Davco Management Company

20130552-CA 6 2016 UT App 231

fees and costs incurred in the preremand proceedings; (6) 

finding that the Order was valid and lawful; (7) denying Davco’s 

motion to strike the Order; (8) taking judicial notice of all the 

facts, orders, and documents from the principal case; and (9) 

denying Davco the opportunity to present evidence showing 

that Iota’s calculation of the withheld rents was wrong.

¶11 The issues fall into three categories: those challenging the 

validity of the Ex Parte Order, those challenging the district 

court’s finding that Davco was in contempt for violating the Ex 

Parte Order, and those challenging the district court’s award of 

attorney fees to Iota. We address them in that order.

I. The Validity of the Ex Parte Order

¶12 Davco asserts that the Ex Parte Order was invalid and 

unenforceable because it failed to comply with rule 67 of the 

Utah Rules of Civil Procedure and, as a consequence, the district 

court should have struck it.4 We first consider whether the 

district court properly concluded that the collateral bar doctrine 

blocked Davco’s motion to strike the Ex Parte Order; only if that 

decision was incorrect need we consider the merits of Davco’s 

argument that the order was invalid. The applicability of the 

collateral bar doctrine presents a question of law that we review 

for correctness. Cf. PC Riverview LLC v. Cao, 2016 UT App 178, 

¶ 5 n.3, 381 P.3d 1185. We agree with the district court that the 

collateral bar doctrine precludes Davco from waiting until after 

it violated the Ex Parte Order to challenge its validity.

A. The Collateral Bar Doctrine

¶13 ‚Under the collateral bar doctrine, a party may not 

challenge a district court’s order by violating it. Instead, he must 

move to vacate or modify the order, or seek relief in [an 

appellate court+.‛ United States v. Cutler, 58 F.3d 825, 832 (2d Cir. 

 

4. This description of Davco’s contentions encompasses both its 

sixth and seventh arguments on appeal.
Iota v. Davco Management Company

20130552-CA 7 2016 UT App 231

1995). ‚If he fails to do either, ignores the order, and is held in 

contempt, he may not challenge the order unless it was 

transparently invalid or exceeded the district court’s 

jurisdiction.‛ Id.

¶14 On remand, Iota restarted the contempt proceeding by 

filing the affidavit required to correct the procedural problem we 

identified in Iota I. The district court held an evidentiary hearing 

to consider anew whether Davco should be held in contempt for 

failure to deposit rents in violation of the Ex Parte Order. At that 

hearing, the court considered Davco’s motion to strike the Ex 

Parte Order based on the argument that the order failed to 

comply with the requirements of Utah Rule of Civil Procedure

67. In its written ruling the court found that, after the Ex Parte 

Order was entered and served on Davco Management and 

Fisher in November 2008, neither ‚filed an objection‛ nor 

‚moved to have *the order+ set aside.‛ It also found that Davco 

thereafter failed to deposit collected rents into the court as the Ex 

Parte Order required until August 7, 2009, when Davco 

deposited $33,805.33 in response to the court’s expressed 

‚displeasure with Davco’s . . . failure to pay.‛ The court further 

noted that Davco did not ‚raise[] a challenge to the validity of 

the Ex Parte Order until the time of trial, almost eighteen months 

after the Ex Parte Order was issued and after the order had 

already been violated.‛ Because they ‚chose to ignore the Ex 

Parte Order‛ rather than bring a timely challenge to its validity, 

the district court determined that Davco’s ‚challenge[] to the 

Court’s order of contempt [is] barred by the collateral bar 

doctrine.‛

¶15 Utah appellate courts have not addressed the collateral 

bar doctrine in modern times, other than nonbinding dicta in Iota 

I, 2012 UT App 218, ¶¶ 37–38, 284 P.3d 681.

5 However, our 

 

5. In Iota I, Judge Davis offered guidance on the collateral bar 

doctrine to the district court. 2012 UT App 218, ¶¶ 37–38, 284 

P.3d 681. However, Judges Voros and McHugh did not join in 

(continued<)
Iota v. Davco Management Company

20130552-CA 8 2016 UT App 231

supreme court acknowledged the fundamentals of the doctrine 

as early as 1932 in Utah Power & Light Co. v. Richmond Irrigation

Co., 13 P.2d 320, 324 (Utah 1932) (‚A party may question the 

order which he is charged with refusing to obey, only insofar as 

he can show it to be absolutely void . . . .‛ (citation and internal 

quotation marks omitted)). And several years later in Liquor 

Control Commission v. McGillis, the supreme court stated that ‚the 

mere fact that an [order] was not justified by the facts of the 

particular case or was erroneous or improvident in any way is 

no defense‛ to violating the order. 65 P.2d 1136, 1141 (Utah 

1937). Based on these acknowledgments, we are convinced that 

the collateral bar doctrine applies in Utah even if our precedent 

has not explicitly used that term, and we look to other courts for 

guidance on the application of this widely recognized doctrine.

¶16 ‚The orderly and expeditious administration of justice by 

the courts requires that ‘an order issued by a court with 

jurisdiction over the subject matter and person must be obeyed 

by the parties until it is reversed by orderly and proper 

proceedings.’‛ Maness v. Meyers, 419 U.S. 449, 459 (1975) 

(quoting United States v. United Mine Workers of Am., 330 U.S. 258, 

293 (1947)). The collateral bar doctrine follows directly from that 

premise; the doctrine ‚provides that a party may not challenge a 

court’s order by violating it.‛ 17 C.J.S. Contempt § 24 (2016). 

Indeed, the legitimacy of the judicial process itself would be 

jeopardized if parties were free to determine for themselves 

when and how to obey court orders. See id. (noting that the 

collateral bar rule ‚advances important societal interests in an 

orderly system of government, respect for the judicial process 

and the rule of law, and the preservation of civil order‛ to 

‚protect the authority of the courts when they address close 

questions and to create a strong incentive for parties to follow 

 

(<continued)

his concurrence, which thus did not become the opinion of this 

court. Id. ¶ 42 (Voros, J., concurring in part and writing for the 

majority in part).
Iota v. Davco Management Company

20130552-CA 9 2016 UT App 231

the orderly process of law‛). In this sense, ‚*t+he collateral bar 

rule is a cornerstone of a system of orderly and efficient 

adjudication.‛ In re Establishment Inspection of Hern Iron Works, 

Inc., 881 F.2d 722, 730 (9th Cir. 1989).

¶17 The collateral bar doctrine underscores the principle that 

‚no man can be judge in his own case.‛ Walker v. City of 

Birmingham, 388 U.S. 307, 320 (1967) (holding that petitioners, 

who deliberately violated an injunction without first attempting 

to dissolve it, were properly convicted of criminal contempt). 

Thus, a party is foreclosed from making a private determination 

that a court’s order need not be obeyed because it is legally 

incorrect. See Maness, 419 U.S. at 458 (‚Persons who make private 

determinations of the law and refuse to obey an order generally 

risk criminal contempt even if the order is ultimately ruled 

incorrect.‛). Rather, ‚*i+t is for the court of first instance to 

determine the question of the validity of the law, and until its 

decision is reversed for error by orderly review . . . , its orders 

based on its decision are to be respected, and disobedience of 

them is contempt of its lawful authority.‛ United Mine Workers, 

330 U.S. at 294. The policy advanced by this doctrine is 

fundamental: ‚*R+espect for judicial process is a small price to 

pay for the civilizing hand of law, which alone can give abiding 

meaning to constitutional freedom.‛ Walker, 388 U.S. at 321.

¶18 Although the collateral bar doctrine has not been adopted 

in Utah by name, its underlying principle is clearly 

acknowledged. As our supreme court put it, ‚disobedience of an 

order made by a court within its jurisdiction and power is a 

contempt *even if+ the order *is+ clearly erroneous.‛ Liquor 

Control Comm'n, 65 P.2d at 1140 (citation and internal quotation 

marks omitted). That bedrock principle accords with other 

aspects of Utah law, such as the ethical responsibility of 

attorneys to obey court orders: ‚The rules of ethics dictate that 

attorneys may not protest adverse rulings by violating them in 

the name of zealous advocacy. The proper method for contesting 

an adverse ruling is to appeal it, not to violate it.‛ State v. Clark, 

2005 UT 75, ¶ 36, 124 P.2d 235. In other words, it is well 
Iota v. Davco Management Company

20130552-CA 10 2016 UT App 231

recognized that respect for judicial authority is essential to the 

orderly functioning of the judicial branch, and the collateral bar 

doctrine is a natural corollary. Accordingly, we conclude that the 

district court was justified in applying the doctrine in response 

to Davco’s late challenge to the validity of the Ex Parte Order.

B. Application of the Collateral Bar Doctrine

¶19 Davco does not contest the district court’s determination

that Davco violated the Ex Parte Order for nearly eighteen 

months without challenging it. Rather, Davco argues that the 

collateral bar doctrine does not apply here because the order was 

beyond the district court’s jurisdiction and was transparently 

invalid. We disagree.

1. The District Court’s Jurisdiction

¶20 The collateral bar doctrine requires a party to heed a valid 

court order unless and until it is reversed by orderly judicial 

proceedings. However, an order is not valid if the order 

‚exceeded the district court’s jurisdiction.‛ United States v. Cutler, 

58 F.3d 825, 832 (2d Cir. 1995). Stated affirmatively, the court 

must be operating within its jurisdiction for an order to be valid. 

Liquor Control Comm'n v. McGillis, 65 P.2d 1136, 1140 (Utah 1937);

see also United States v. United Mine Workers of Am., 330 U.S. 258, 

293 (1947) (indicating that only ‚an order issued by a court with 

jurisdiction over the subject matter and person must be 

obeyed‛). This follows naturally from the essential nature of 

jurisdiction—without subject matter jurisdiction over a case and 

personal jurisdiction over a party, a court is literally powerless.

E.g., State v. Rhinehart, 2007 UT 61, ¶ 19, 167 P.3d 1046

(discussing subject matter jurisdiction). See generally 56 Am. Jur. 

2d Motions, Rules, and Orders § 47 (2016) (explaining that subject 

matter jurisdiction and personal jurisdiction are necessary 

prerequisites to establishing a court’s authority). Thus, the 

collateral bar doctrine acknowledges an essential exception: if a 

court lacks either subject matter or personal jurisdiction, then its 

orders are unenforceable and need not be followed. Otherwise, 

they must. As a result, the only way a party can successfully 
Iota v. Davco Management Company

20130552-CA 11 2016 UT App 231

attack an order ‚which he is charged with refusing to obey‛ is if 

the party can ‚show it to be absolutely void.‛ Liquor Control 

Comm'n, 65 P.2d at 1140–41 (citing Utah Power & Light Co. v. 

Richmond Irrigation Co., 13 P.2d 320, 324 (Utah 1932)).

¶21 This distinction—between orders that are void for lack of 

jurisdiction (or, void ab initio) and those that are merely 

voidable based on error—makes a difference. ‚Errors other than 

lack of jurisdiction render the judgment merely voidable, and a 

voidable judgment can only be challenged on direct appeal.‛ 

Bangerter v. Petty, 2010 UT App 49, ¶ 8, 228 P.3d 1250 (citation 

and internal quotation marks omitted) (distinguishing between 

void and voidable in the property context). Thus, an order 

issued by a court lacking jurisdiction is void and differs in kind 

from an order issued in error by a court with jurisdiction, which 

is merely voidable. A void order may be attacked collaterally at 

any time because the court was powerless to issue it in the first 

place; the collateral bar doctrine does not apply. On the other 

hand, a voidable order may only be challenged directly; the 

doctrine precludes an untimely attack on its validity. For 

purposes of this case, that means that we need only determine if 

the district court lacked subject matter or personal jurisdiction 

when it issued the Ex Parte Order. If it lacked either, then the Ex 

Parte Order was void ab initio and no contempt could lie. 

Otherwise, the Ex Parte Order was at best voidable, and a 

challenge made after violating it would be untimely and amount 

to a collateral attack precluded by the collateral bar doctrine.

¶22 Here, there is no dispute that the court had subject matter 

jurisdiction over the case as well as personal jurisdiction over 

Davco at the time the Ex Parte Order was entered. ‚In 

determining whether a court has subject matter jurisdiction, we 

focus on whether the court has authority over the general class 

of cases to which the particular case at issue belongs, rather than 

on the specific facts presented by any individual case.‛ In re 

adoption of Baby E.Z., 2011 UT 38, ¶ 33, 266 P.3d 702. This case 

was a civil matter within the general jurisdiction of the district 

court. Utah Const. art. VIII, § 5; Utah Code Ann. § 78A-5-102(1)
Iota v. Davco Management Company

20130552-CA 12 2016 UT App 231

(LexisNexis 2012); see also Utah Code Ann. § 78A-2-201

(LexisNexis 2012) (allowing courts to ‚control in furtherance of 

justice the conduct of . . . persons in any manner connected with 

a judicial proceeding‛). Personal jurisdiction was proper because 

the suit related to real estate located in Utah. Utah Code Ann. 

§ 78B-3-205 (LexisNexis 2012) (listing ‚the ownership, use, or 

possession of any real estate situated in this state‛ as sufficient to 

confer personal jurisdiction). In addition, both Davco 

Management and Fisher were properly served with process and, 

later, with the Ex Parte Order itself. Finally, Utah Code section 

78A-2-201, as well as Utah Rule of Civil Procedure 67, authorize 

district courts to enter orders of the Ex Parte Order’s kind. 

¶23 Davco’s argument that the ‚specific facts presented‛ by 

Iota were legally insufficient to support the Ex Parte Order does 

not implicate the court’s essential jurisdiction over the subject 

matter of the case or personal jurisdiction over the parties. 

Rather, it is simply a claim that the court erred in applying a rule 

of procedure. Accordingly, we conclude that the Ex Parte Order 

was not void ab initio and Davco’s untimely challenge to its 

validity was barred by the collateral bar doctrine.

2. Transparently Invalid Orders

¶24 Davco also argues that the Ex Parte Order fits into an 

exception to the collateral bar rule because it so obviously failed 

to meet the requirements of Utah Rule of Civil Procedure 67 that 

it was transparently invalid. In support of the transparently 

invalid exception, Davco points us to United States v. Terry,

which notes that ‚[a]n order is transparently invalid when the 

issuing court ‘is acting so far in excess of its authority that it has 

no right to expect compliance and no interest is protected by 

requiring compliance.’‛ 802 F. Supp. 1094, 1101 (S.D.N.Y. 1992) 

(quoting In re Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir. 

1986)). This exception is described elsewhere as well: ‚A limited 

exception to the collateral bar rule is made in those extremely 

rare cases where the order may be transparently invalid.‛ 17 

C.J.S. Contempt § 24 (2016). But the exception comes with a 

significant proviso that limits its application: ‚As a general rule,‛ 
Iota v. Davco Management Company

20130552-CA 13 2016 UT App 231

if there was ‚any pretense to validity at the time *the order+ was 

issued, the reviewing court should enforce the collateral bar 

rule.‛ Terry, 802 F. Supp. at 1101 (citation and internal quotation 

marks omitted).

¶25 It is difficult to see a meaningful distinction between the 

void ab initio exception discussed above and a transparent 

invalidity exception that requires the disputed order ‚to have 

had *no+ pretense to validity at the time it was issued.‛ See 

United States v. Mourad, 289 F.3d 174, 178 (1st Cir. 2002). But 

whatever legal daylight there may be between the two 

exceptions in concept, application of a separate transparent 

invalidity exception seems foreclosed by our supreme court, 

which has plainly stated that ‚disobedience of an order made by 

a court within its jurisdiction and power is a contempt, [even if] 

the order [is] clearly erroneous.‛ Liquor Control Comm'n, 65 P.2d 

at 1140 (citation and internal quotation marks omitted). The 

supreme court underscored this point when it stated:

A party may question the order which he is 

charged with refusing to obey, only insofar as he 

can show it to be absolutely void; he cannot be 

heard to say that it is merely erroneous, however 

flagrant it may appear to be since judgments of 

courts cannot be attacked collaterally for mere 

irregularities.

Utah Power & Light Co. v. Richmond Irrigation Co., 13 P.2d 320, 324 

(Utah 1932) (citation and internal quotation marks omitted). In 

the apparent absence of any intervening shift in approach, the 

mere passage of time since the court made these 

pronouncements does not diminish their claim on our allegiance.

¶26 In any event, we do not need to decide whether Utah 

would recognize a separate transparently invalid exception 

because Davco has not complied with a condition precedent to 

its invocation. A party who seeks the protection of this exception 

‚must make some good faith effort to seek emergency relief from 
Iota v. Davco Management Company

20130552-CA 14 2016 UT App 231

the appellate court‛ before violating the subject order. United 

States v. Cutler, 58 F.3d 825, 832 (2d Cir. 1995) (citation and 

internal quotation marks omitted). Davco did not do that here.6

¶27 In sum, because the order was well within the district 

court’s subject matter jurisdiction, and because Davco took no 

action to challenge the Ex Parte Order before violating it, we see

no error in the district court’s determination that the collateral 

bar doctrine prevented Davco from challenging the validity of 

the Ex Parte Order in the contempt proceeding.

II. The District Court’s Contempt Decision

¶28 Davco next argues that the district court abused its 

discretion by finding Davco in contempt for violating the Ex 

Parte Order. The arguments challenge both the substantive 

merits of the district court’s decision and the regularity of the 

 

6. And even if we were to reach the merits of Davco’s 

transparent invalidity argument, the result would not be a close 

call. The arguments that Davco now makes about the Ex Parte 

Order’s invalidity focus on the legal requirements of Utah Rule 

of Civil Procedure 67 and whether the Ex Parte Order was 

justified under the circumstances. But even if the court erred in 

granting issuing the order, a question we do not decide here, it is 

neither manifest nor obvious from the contents of the order 

itself. The Ex Parte Order simply directs Davco to deposit the 

same rents into court that Davco was already obligated to pay to 

Iota under the trust deeds after default. Such an order is not on 

its face an unusual exercise of judicial authority; it certainly does 

not fit within the rare category of court orders which can be said 

to have no pretense to validity or were issued so far in excess of 

the court’s authority that it had no right to expect compliance. 

Indeed, Davco itself concedes on appeal that it ‚believed the Ex 

Parte Order to be valid until shortly before the trial began‛ and 

did not modify that view until long after it had violated the 

order.
Iota v. Davco Management Company

20130552-CA 15 2016 UT App 231

postremand process by which the court reached its decision.7 On 

the merits, Davco argues that the district court had no basis for a 

contempt finding, first, because the language of the Ex Parte 

Order was unclear and ambiguous about what was required,

and second, Davco could not comply with the order based on 

Davco’s reasonable interpretation of the order. Regarding the 

post-remand contempt proceedings, Davco contends that the 

district court improperly affirmed its prior contempt order, 

which had been overturned in Iota I and (apparently in the 

alternative) that the court erred in taking judicial notice of 

evidence and findings from the prior proceedings to support its 

contempt finding on remand.

¶29 ‚*An appellate court’s+ review of a contempt citation 

involves two questions: first, whether the underlying order is 

lawful; and second, whether the party’s conduct in violating the 

order constitutes contempt of court.‛ Utah Farm Prod. Credit 

Ass’n v. Labrum, 762 P.2d 1070, 1074 (Utah 1988). On the 

lawfulness question, we have already determined that Davco is 

barred from challenging the validity of the Ex Parte Order after 

violating it. On the conduct question, to hold Davco in contempt 

the court had to find that Davco ‚knew what was required, had 

the ability to comply, and intentionally failed or refused to do 

so.‛ Summer v. Summer, 2012 UT App 159, ¶ 8, 280 P.3d 451 

(citation and internal quotation marks omitted). ‚When the 

contempt is not committed in the immediate view and presence 

of the court or judge, we review a district court’s findings of fact 

for clear error and apply a correction of error standard to our 

review of the district court’s legal determinations.‛ Valerios Corp. 

v. Macias, 2015 UT App 4, ¶ 10, 342 P.3d 1127 (citation and 

internal quotation marks omitted).

 

7. Davco attacks the district court’s contempt holding in issues 

one, three, four, and eight of its opening brief.
Iota v. Davco Management Company

20130552-CA 16 2016 UT App 231

A. Davco’s Challenge to the Ex Parte Order and Contempt 

Judgment

¶30 Davco argues that the district court ‚abused its discretion 

by finding Davco and Mr. Fisher in contempt of court.‛8 This 

argument rests on Davco’s contention that the Ex Parte Order 

was ambiguous and that Davco reasonably interpreted it to 

apply only to rent money Davco had in hand when the order

issued and not to rents collected thereafter. Based on this 

interpretation, Davco claims that it was impossible to comply 

because it had no rent money in its possession on the date the Ex 

Parte Order issued and, as a result, it could not have 

intentionally violated the order. The district court concluded, 

however, that the language of the Ex Parte Order was 

unambiguous—it required Davco to deposit in court all rents 

collected from the properties after the order’s date—and that 

Davco understood what the order required but chose to disobey 

it. We find no fault with the district court’s determination.

¶31 The Ex Parte Order states that ‚Defendants Davco 

Management Company LC and David Fisher shall deposit all 

rents collected from the real property . . . with the clerk of the 

court.‛ Davco argues that the term ‚rents collected‛ is 

susceptible to several reasonable interpretations, only one of 

which would make Davco’s failure to deposit rents a violation of 

the order, thus leaving Davco with a ‚reasonable basis for 

doubt‛ regarding its responsibilities.9 Cf. Salt Lake City v. 

 

8. Davco addresses this point in issues one and three of its 

opening brief.

9. On appeal, Davco addresses each word in this phrase

separately, asserting that each is ambiguous in its own right. But 

Davco never asserted the distinct ambiguity of the word ‚rents‛ 

in the district court. Therefore, Davco’s separate argument about 

the ambiguity of ‚rents‛ on appeal is not preserved and we do 

not address it. See Patterson v. Patterson, 2011 UT 68, ¶ 17, 266 

(continued<)
Iota v. Davco Management Company

20130552-CA 17 2016 UT App 231

Dorman-Ligh, 912 P.2d 452, 455 (Utah Ct. App. 1996) (‚To be 

enforced, an order must be sufficiently specific and definite as to 

leave no reasonable basis for doubt regarding its meaning.‛).

Davco proposes that the term ‚rents collected‛ could have three 

plausible meanings: (1) all rents collected from the time Davco 

purchased the apartment complexes to the date of the Ex Parte 

Order; (2) all rents from the date Davco stopped payments on 

the Promissory Notes to the date of the Ex Parte Order; or (3) all 

rents collected from the time the Ex Parte Order was entered to 

the termination of the lawsuit or rescission of the order.

¶32 Under the first two readings, the court’s directive applied 

only to a snapshot in time—rents Davco physically held at the 

moment the Ex Parte Order issued—and thus, Davco reasons, it 

could not have violated the order because it had no rents in hand 

at that precise moment. Davco asserts that it reasonably 

understood its obligation to deposit rents with the court to apply 

 

(<continued)

P.3d 828 (noting that ‚*the Utah Supreme Court] and the Utah 

Court of Appeals have on countless occasions exercised [their]

discretion to refuse to consider new issues, arguments, claims or 

matters on appeal‛ that were not raised below). In addition, 

Davco concedes that the term ‚rents‛ as used in the order 

includes at least the tenants’ basic rental payments, even if it 

arguably does not include security deposits, issues and profits, 

and subrents, all of which are encompassed by the assignment in 

the trust deeds. Any ambiguity in ‚rents‛ therefore goes to the 

amount Davco should have paid into court, not whether Davco 

was required to pay any money into court at all. Davco does not 

dispute that it failed to pay anything into court during the time 

the Ex Parte Order was in force. And as a practical matter, 

Davco’s arguments on appeal regarding the ambiguity of the 

word ‚collected‛ seem to more readily encompass the phrase 

‚rents collected‛—the language it focused on below—rather 

than each word separately. Thus, we focus on the meaning of 

that phrase in our analysis.
Iota v. Davco Management Company

20130552-CA 18 2016 UT App 231

only to rents it possessed at the time of the order because the Ex 

Parte Order stated that it applied to ‚all rents collected,‛ using 

the past-tense form of ‚collect.‛ Davco therefore contends the 

word ‚collected‛ is ambiguous as used in the Ex Parte Order, 

and that the court erred by interpreting it to unambiguously 

apply prospectively.

¶33 Generally, we interpret language in judicial documents in 

the same way we interpret contract language. See Williams v. 

Miller, 794 P.2d 23, 26 (Utah Ct. App. 1990) (‚If the language of a 

judgment is obscure or ambiguous, the rules that apply to the 

construction of ambiguous contracts apply.‛). ‚An order is 

ambiguous if it is subject to two plausible constructions.‛ 

Progressive Acquisition, Inc. v. Lytle, 806 P.2d 239, 243 (Utah Ct. 

App. 1991). But ‚words and phrases do not qualify as 

ambiguous simply because one party seeks to endow them with 

a different interpretation according to his or her own interests.‛ 

Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 17, 133 P.3d 428. Rather, 

‚[t]o be ambiguous, both interpretations must be plausible in the 

context of the *order+ as a whole.‛ Merrick Young Inc. v. Wal-Mart 

Real Estate Bus. Trust, 2011 UT App 164, ¶ 18, 257 P.3d 1031. 

Therefore, we look both at the language of the Ex Parte Order 

‚as a whole and to the circumstances, nature, and purpose of the 

[order]‛ to determine its meaning. Peirce v. Peirce, 2000 UT 7, 

¶ 19, 994 P.2d 193.

¶34 Davco has not persuaded us that the phrase ‚rents 

collected‛ in the Ex Parte Order can be reasonably read to 

exclude those rents it collected after the order’s entry. The 

district court stated,

the Court understands this order to mean as of the 

fourth of November, 2008—actually, as of service 

upon Mr. David Fisher, that the rents collected on 

those two properties thereafter would be paid into 

the clerk of the court. I think that’s the plain 

reading of the order. It does not have the lengthy 

language in it that an insurance company might 
Iota v. Davco Management Company

20130552-CA 19 2016 UT App 231

want in their policies, but it’s pretty direct and 

pretty clear from the Court’s order.

We agree with the district court. The Ex Parte Order provides 

that Davco ‚shall deposit all rents collected . . . .‛ In context, 

reading this phrase to include rents already collected but to 

exclude rents yet to be collected is not plausible because the 

order contains no language limiting its application to rents 

already collected, previously collected, or heretofore collected. 

And rents that will be received in the future fall naturally within 

the meaning of ‚collected,‛ which the court used in its adjectival 

form—meaning ‚gathered together‛10—rather than as a pasttense rendition of the verb ‚to collect.‛ Thus, while the term 

includes rents already collected and in hand, it also plainly 

encompasses rents that may be collected in the future. This 

reading is reinforced by language in the same paragraph 

providing that ‚*t+his order shall remain in effect during the 

pendency of this action, or until further order of the Court.‛ 

Given this clear description of the time frame in which the order 

would hold sway, ‚rents collected‛ cannot reasonably be 

interpreted to exclude rents that will be ‚collected‛ 

prospectively, that is, ‚during the pendency‛ of the case. In 

other words, the Ex Parte Order required Davco to hand money 

over to the court every time it collected rent, not just to hand 

over rent money it had already collected and had in hand on 

whatever day the order happened to arrive.11

 

10. Collected, Merriam-Webster.com, http://www.merriamwebster.com/dictionary/collected [https://perma.cc/PP87-65V9].

11. This interpretation was applied by the district court, which 

calculated the contempt damages as the amount of money that 

Davco improperly collected between being served with the Ex 

Parte Order and the foreclosure sale. The court did not find that 

Davco had previously collected rent money in hand at the time 

of the Ex Parte Order.
Iota v. Davco Management Company

20130552-CA 20 2016 UT App 231

¶35 Additionally, another provision of the Ex Parte Order 

required all tenants of the two apartment properties to ‚deposit 

their rent checks with the clerk of the court . . . until further 

order of the court.‛ It is impossible to reconcile Davco’s 

contention that the Ex Parte Order did not require it to deposit 

‚rents collected‛ from tenants during the pendency of the 

litigation with the tenants’ ongoing obligation to pay rents to the 

court. That is, no reasonable interpretation of the Ex Parte Order 

as a whole can allow Davco to treat rent money as having 

escaped the reach of the order simply because a tenant happened 

(whether through ignorance, inadvertence, or confusion) to pay 

rent to Davco instead of depositing it with the court. Cf. Peterson 

& Simpson v. IHC Health Services, Inc., 2009 UT 54, ¶ 13, 217 P.3d 

716 (explaining that ‚we look for a reading that harmonizes the 

provisions and avoids rendering any provision meaningless‛ 

(citation and internal quotation marks omitted)).

¶36 Further, Davco’s own actions belie its argument that it did 

not understand what the Ex Parte Order required. For example, 

in March of 2009, after Iota had reacquired the two apartment 

properties at the foreclosure sale, Davco signed a Stipulated 

Order stating that ‚*t+he Ex Parte Order required that Defendant 

and the tenants pay rents to the Court ‘during the pendency of 

this action or until further order of the Court.’‛ The Stipulated 

Order went on to say that, as a result of the foreclosure sale, 

‚there is no longer a need for rents to be paid directly to the 

Court during the pendency of this action.‛ This language 

strongly suggests that Davco understood the Ex Parte Order just 

as the court later interpreted it. And some months later in 

response to the district court’s admonishment at a hearing in 

August 2009, Davco paid almost $34,000 into court for rents 

collected after November 2008 without raising any claim that the 

Ex Parte Order was not prospective in nature.

¶37 Thus, we agree with the district court’s conclusion that 

‚*t+he language of the Ex Parte Order was clear and 

unequivocal.‛ The Ex Parte Order was not ambiguous, and the 

court did not abuse its discretion when it concluded that Davco
Iota v. Davco Management Company

20130552-CA 21 2016 UT App 231

‚knew what was required, had the ability to comply, and 

intentionally failed or refused to do so.‛ Summer v. Summer, 2012 

UT App 159, ¶ 8, 280 P.3d 451 (citation and internal quotation 

marks omitted). In addition, the court’s determination that 

Davco understood the requirements of the Ex Parte Order and 

knowingly disobeyed it is fully supported by the record.

B. The District Court’s Proceedings

1. The District Court’s Treatment of the Preremand 

Contempt Judgment

¶38 The district court’s contempt decision on remand 

included the statement, ‚The prior Judgment for contempt 

against Davco and David Fisher stands and is affirmed.‛ Davco 

contends that the district court erred in simply reaffirming a 

decision that had been vacated by this court on appeal in Iota I. 

But Davco’s argument ignores context, and the context in which 

the district court’s statement appears shows that the court did 

not simply reaffirm the prior vacated judgment. In full, the 

paragraph containing the sentence relied on by Davco states:

Further, the Court’s Ex Parte Order was valid and 

enforceable even if Defendants could challenge it. 

The prior judgment against Davco and David Fisher 

stands and is affirmed. This Court had both subject 

matter and personal jurisdiction to issue the Ex 

Parte Order. The language of the Ex Parte Order 

was clear and unequivocal that rents were to be 

deposited with the Clerk of the Court and the Ex 

Parte Order remained in effect during the 

pendency of this action, or until further order of 

the Court.

(Emphasis added.) This paragraph responds to Davco’s 

arguments on remand that it could not and should not be held in 

contempt; it is not a simple affirmance of the prior judgment. 

And the surrounding paragraphs of the court’s decision support 
Iota v. Davco Management Company

20130552-CA 22 2016 UT App 231

that conclusion—they show a judge engaging in renewed 

analysis of the evidence and the law and concluding again that 

Davco was in contempt for violation of the Ex Parte Order. Thus,

it is apparent that by saying ‚*t+he prior judgment . . . stands and 

is affirmed,‛ the court was not expressing an intention to 

resurrect the judgment that we vacated in Iota I. Rather, the court 

was simply reaffirming the substantive merit of its earlier 

conclusions about the validity of the Ex Parte Order in response 

to renewed arguments from Davco. Indeed, on remand the 

district court held a new evidentiary hearing and considered 

new briefing and arguments from the parties, as well as 

additional testimony. Accordingly, because the district court did 

not purport to simply reinstate the prior contempt judgment, 

Davco’s arguments on appeal rest on a faulty premise and 

consequently fail.

2. Judicial Notice of the Preremand Contempt Proceedings

¶39 On remand, Iota requested that the district court take 

judicial notice of significant portions of the preremand contempt 

proceedings. The court agreed and, in addition to taking judicial 

notice of the specific documents and proceedings that Iota 

enumerated, the court stated that all aspects of the initial 

contempt proceedings ‚except for those portions reversed by the 

Court of Appeals are the law of the case.‛ Davco argues that ‚the 

trial court abused its discretion in taking judicial notice of all the 

facts, orders, and documents in the principal case,‛ including the 

prior ‚Findings of Fact and Conclusions of Law, all of [the] 

Exhibits, all of its orders, depositions, affidavits, and all 

pleadings, etc.‛12

 

12. The district court used both ‚judicial notice‛ and ‚law of the 

case‛ in describing its consideration of preremand proceedings. 

Although there is a difference in meaning between those terms 

of art, the distinction is irrelevant here because Davco’s 

argument does not assail the propriety of the district court’s 

(continued<)
Iota v. Davco Management Company

20130552-CA 23 2016 UT App 231

¶40 The general rule is that ‚*c]ourts may take judicial notice 

of the records and prior proceedings in the same case.‛ Riche v. 

Riche, 784 P.2d 465, 468 (Utah Ct. App. 1989); see also State v. 

Shreve, 514 P.2d 216, 217 (Utah 1973) (noting that judicial notice 

of prior proceedings is appropriate ‚insofar as those records are 

a part of the matter before the court‛). A court may take judicial 

notice of prior proceedings on its own accord, Utah R. Evid. 

201(c)(1), and is required to take judicial notice of adjudicative 

facts ‚if a party requests it and the court is supplied with the 

necessary information,‛ id. R. 201(c)(2). Furthermore rule 201(d) 

states, ‚The court may take judicial notice at any stage of the 

proceeding.‛ Davco argues the district court erred in taking 

judicial notice of aspects of the prior proceedings on two 

grounds: first, the contempt proceeding on remand was a 

separate case not properly the subject of judicial notice and, 

second, the earlier proceedings were null and void, so there were 

no valid records to consider.

¶41 Davco’s first contention is unpersuasive given that this 

court specifically ordered a ‚remand to the trial court for 

additional proceedings*+ on the contempt matter‛ in Iota I. 2012 

UT App 218, ¶ 40, 284 P.3d 681. It is difficult to conceive of 

‚additional proceedings‛ in the same case and on the same 

subject matter amounting to a ‚different case‛ for purposes of 

judicial notice.

¶42 Equally unpersuasive is Davco’s contention that the 

district court’s judicial notice of the preremand contempt 

 

(<continued)

actions regarding the individual documents, findings, or 

proceedings it considered or took note of. Rather, Davco’s 

argument is that none of that material was properly before the 

court on remand because it was not properly the subject of 

judicial notice under the circumstances. We therefore address 

the issue here as a question of judicial notice because that is how 

Davco has presented it on appeal.
Iota v. Davco Management Company

20130552-CA 24 2016 UT App 231

proceedings was improper because the earlier proceedings were 

null and void. Davco’s argument rests on the unstated premise 

that, when we vacated ‚the trial court’s contempt rulings against 

Davco and Fisher for lack of jurisdiction,‛ id. ¶ 40, we were 

talking about subject matter jurisdiction in its fundamental 

sense—the court’s essential authority to act in the area of the law 

at issue. We were not. Rather, we used the term ‚jurisdiction‛ in 

the broader procedural sense, where a court’s ability to conduct 

a particular proceeding or grant a specific remedy—otherwise 

within its authority—is curtailed because a legal requirement 

has not been fulfilled.

¶43 That conclusion is apparent in our analysis in Iota I, which 

turned on an element of the contempt statute in Utah Code 

section 78B‐6‐302(2). Id. ¶¶ 34–35. There, we held that Iota’s 

contempt efforts were not ‚sufficient under the statute to confer 

jurisdiction‛ because no supporting affidavit had been filed. In 

essence, we used ‚jurisdiction‛ as shorthand to indicate a 

procedural problem—the unsatisfied affidavit element of the 

statute—which prevented the court from acting under the 

circumstances, not to indicate that the court lacked jurisdiction 

over the subject matter of the prior contempt proceeding. And 

while we, like other courts, sometimes use ‚jurisdiction‛ as a 

generic term, the difference between procedural jurisdiction and 

the subject matter jurisdiction essential to a court’s exercise of its 

bedrock authority is critical. 

¶44 ‚Subject matter jurisdiction concerns a court’s power to 

hear a case. ‘A court has subject matter jurisdiction if the case is 

one of the type of cases the court has been empowered to 

entertain by the constitution or statute from which the court 

derives its authority.’‛ State v. Smith, 2014 UT 33, ¶ 18, 344 P.3d 

573 (quoting Myers v. State, 2004 UT 31, ¶ 16, 94 P.3d 211); see also

20 Am. Jur. 2d Courts § 68 (2016) (‚Subject matter jurisdiction 

does not depend on the particular parties in the case or on the 

manner in which they have stated their claims . . . .‛). Put 

simply, subject matter jurisdiction concerns a court’s broad 

authority to hear the sort of case before it, whereas Iota I’s use of 
Iota v. Davco Management Company

20130552-CA 25 2016 UT App 231

the term ‚jurisdiction‛ simply expressed its concern about the 

district court’s ability to reach a decision or grant given relief 

when a procedural prerequisite—submission of a supporting 

affidavit—had not been met. Cf. 14302 Marina San Pablo Place 

SPE, LLC v. VCP-San Pablo, Ltd., 92 So. 3d 320, 321 (Fla. Dist. Ct. 

App. 2012) (per curiam) (Ray, J., concurring) (‚This species of 

jurisdiction . . . has also been referred to as ‘procedural 

jurisdiction,’ meaning a court’s authority to act in a particular 

case.‛ (footnote omitted)); In re J.J., 855 N.E.2d 851, 855 (‚In a 

court that possesses subject-matter jurisdiction, procedural 

irregularities . . . affect the court’s jurisdiction over the particular 

case and render the judgment voidable, not void.‛).

¶45 Here, Iota’s failure to file an affidavit as required by the 

contempt statute falls into the second category. The lack of an 

affidavit did nothing to divest the court of subject matter 

jurisdiction over the prior contempt proceeding; contempt 

proceedings under Utah Code section 78B‐6‐301 are clearly 

within a district court’s subject matter jurisdiction. Instead, the 

problem was procedural in nature. Our holding in Iota I meant 

merely that the court could not legally enter the contempt 

judgment because a condition precedent to the contempt

process—the filing of an appropriate affidavit—had not 

occurred.13 Thus, the contempt judgment from the first 

proceeding was voidable on procedural grounds rather than 

void for lack of subject matter jurisdiction, and our decision in 

Iota I cannot be read more broadly. Because Davco’s argument 

rests on the incorrect premise that the contempt proceedings 

were void for want of essential jurisdiction, we are not 

persuaded that the district court erred in taking judicial notice of 

the preremand contempt proceedings.

 

13. On remand, Iota filed the Murset Affidavit, dated September 

12, 2012, which the court found was sufficient to meet the 

statutory requirements. Davco has not challenged this decision.
Iota v. Davco Management Company

20130552-CA 26 2016 UT App 231

¶46 In sum, we conclude that the language of the Ex Parte 

Order was unambiguous and supported the district court’s 

contempt determination. Also, Davco has not demonstrated that 

the court’s proceedings on remand were improper. The court did 

not simply affirm its prior decision, and the court’s judicial 

notice of the prior proceedings fit well within a district court’s 

purview under Utah law.

III. Damages and Attorney Fees

¶47 Davco challenges the district court’s award of damages 

and attorney fees on three grounds: first, that the court should 

not have awarded damages at all; second, that the court 

improperly denied Davco the opportunity to rebut Iota’s 

damages calculation; and third, that the court erred in awarding 

attorney fees for the preremand contempt proceedings.14 We 

address each in turn and review all three under an abuse of 

discretion standard, as Davco urges. E.g., Valerios Corp. v. Macias, 

2015 UT App 4, ¶ 11, 342 P.3d 1127 (‚We review a district court’s 

entry of contempt sanctions for an abuse of discretion.‛).

A. Davco’s Challenge to the District Court’s Damages Award

¶48 Davco argues that the trial court should not have 

awarded Iota damages at all. The crux of this contention appears 

to be the principle that money damages can only be issued in a 

contempt proceeding ‚[i]f an actual loss or injury to a party in an 

action . . . is caused by the contempt.‛ In re Cannatella, 2006 UT App 

89, ¶ 7, 132 P.3d 684 (citation and internal quotation marks 

omitted); see also Utah Code Ann. § 78B-6-311(1) (LexisNexis 

Supp. 2016). Relying on that point, Davco asserts that ‚the cause 

of *Iota’s+ injury is the failure by Davco to assign rents to *Iota+,‛ 

not Davco’s failure to obey the Ex Parte Order. As we 

understand it, Davco’s contention is that the Ex Parte Order 

 

14. Davco raises these arguments in issues two, five, and nine of 

its opening brief.
Iota v. Davco Management Company

20130552-CA 27 2016 UT App 231

simply restated the obligation Davco already had under the trust 

deeds themselves to deliver assigned rents to Iota after default 

on the notes. Thus, according to Davco, Iota was damaged in the 

first instance by Davco’s breach of the trust deed obligations, 

and any failure to deposit the rents in court in accordance with 

the Ex Parte Order was simply incidental. Under this reasoning, 

the court could not award damages in the amount of withheld 

rents because any loss of that sort was a result of Davco’s breach 

of the trust deeds’ assignments of rents, not contempt of the Ex 

Parte Order.

¶49 This argument rests on Davco’s attempt to treat the Ex 

Parte Order as simply a replication of Davco’s preexisting 

obligations under the trust deeds. We reject that characterization 

for several reasons, chief among them the crucial distinction 

between obligations arising under private contracts and those 

arising from a court’s exercise of its authority to control the 

proceedings in a case before it. See Utah Code Ann. § 78A-2-201 

(LexisNexis 2012) (granting every court the power to ‚control in 

furtherance of justice the conduct of its ministerial officers, and 

of all other persons in any manner connected with a judicial 

proceeding before it in every matter‛). 

¶50 Under the deeds of trust, Davco had a private contractual 

obligation to pay over rents to Iota after default, and that 

obligation existed independent of any court proceeding. But 

once the court ordered that rents be deposited with the clerk, the 

Ex Parte Order itself established an obligation distinct and 

independent from any trust deed requirement because 

disobedience of a court order implicates the authority of the 

judiciary and transcends the private contractual interests of the 

parties from which the order arose. See id. Indeed, this is why 

courts are given contempt powers in the first place: ‚One of the 

most important and essential powers of a court is the authority 

to protect itself against those who disregard its dignity and 

authority.‛ 17 Am. Jur. 2d Contempt § 1 (2016). Thus, by design 

and necessity a court’s orders are of different substance and of 

higher dignity than private contract rights.
Iota v. Davco Management Company

20130552-CA 28 2016 UT App 231

¶51 In this case, the Ex Parte Order also created duties 

separate and distinct from any obligation that Davco already 

had under the trust deed. As soon as it was entered and served, 

the Ex Parte Order became a second layer of obligation that 

superseded any preexisting or contemporaneous responsibility. 

In addition to the fact that the Ex Parte Order became 

preeminent on entry, it also materially changed Davco’s 

obligation. 

¶52 Under the assignment of rents in the deeds of trust, after 

default Davco was required to pay rents it received from tenants 

directly to Iota. But under the Ex Parte Order, Davco was to pay 

the rents to the clerk of court. The clerk in effect served as an 

escrow agent to preserve during the litigation the contractual 

benefit of Davco’s pledge of rents as security under the trust 

deeds. Thus, by ignoring the Ex Parte Order, Davco denied Iota 

the benefit of having the court receive and hold the pledged 

rents for safekeeping. Instead, this ready source of direct 

recovery on the future judgment in Iota’s favor was never 

funded as the court required and Iota thus lost the most 

immediate and effective assurance of the benefit of Davco’s 

assignment of rents under the trust deeds. That is, Iota’s injury 

from Davco’s noncompliance with the Ex Parte Order was 

different from any related injury suffered from Davco’s breach of 

the assignment under the trust deeds. Because Davco did not 

deposit all the rents with the clerk as directed, Iota lost the 

benefit of immediately recovering at least that portion of its 

judgment—many tens of thousands of dollars. Instead, Iota must 

now collect from Davco through the considerably more 

complicated, costly, and uncertain process for collecting on its 

judgment.

¶53 Davco also seems to argue, under similar reasoning, that

Fisher cannot be individually liable for damages because Davco

Management, not Fisher, caused the damage by not fulfilling its 

obligation to pay over rents under the trust deeds. Again, we 

disagree. The Ex Parte Order named both Davco Management 

and Fisher, who were both parties to the case at that time. And 
Iota v. Davco Management Company

20130552-CA 29 2016 UT App 231

even though Fisher was later dismissed from the suit, ‚*c+learly, 

a trial court has the power to hold nonparties in contempt if 

those parties conspire to frustrate a lawful order of the court.‛ 

Crank v. Utah Judicial Council, 2001 UT 8, ¶ 25, 20 P.3d 307. Both 

Davco Management and Fisher were bound by the Ex Parte 

Order, and Fisher, as the member-manager, was the person who 

physically collected and then retained the rents that should have 

been deposited with the court. Therefore, both Davco

Management and Fisher violated the Ex Parte Order.15

¶54 For these reasons we cannot agree that the Ex Parte Order 

had no greater significance than to simply restate Davco’s 

existing obligations. We conclude that the district court properly

awarded damages to Iota. Further, we are not persuaded that the 

district court improperly found Fisher in contempt or 

improperly included him as a party to the contempt judgment.

B. Davco’s Challenge to the District Court’s Calculation of 

Damages

¶55 Davco argues that the district court abused its discretion 

by denying Davco permission ‚to present evidence showing that 

*Iota’s+ calculation of the amount of rents allegedly withheld 

*was+ wrong.‛ Specifically, Davco suggests that the district court 

 

15. Davco’s arguments might be more persuasive if the contempt 

judgment provided Iota with a double recovery, but the district 

court ensured that would not happen. The original deficiency 

judgment included a component representing the rents and 

other revenues assigned under the trust deeds but not paid over 

by Davco between default and foreclosure. The contempt 

judgment appeared to overlap the deficiency judgment with 

respect to those rents and revenues accruing after the date of the 

Ex Parte Order. The court however prevented a windfall to Iota 

when it ordered that any damages Iota recovered under the 

contempt judgment would offset amounts owed under the 

deficiency judgment.
Iota v. Davco Management Company

20130552-CA 30 2016 UT App 231

improperly allowed ‚security deposits, late fees, utility 

payments, and other payments to be part of ‘rents.’‛

¶56 In support, Davco supplies us with bare citations to the 

record related to the court’s decision on this point but does not 

provide us with any legal authority or analysis. Davco’s 

complete analysis is the assertion that ‚the trial court erred in 

denying Davco and Mr. Fisher their right to attack *Iota’s+ 

calculation of damages‛ because ‚the acts of the trial court, the 

Judgment, the Findings of Fact and the Conclusions of Law are 

void and the substantive rights of Davco and Mr. Fisher have not 

been affected.‛

¶57 We do not understand from Davco’s argument how the 

‚acts of the trial court . . . are void,‛ unless the assertion refers to 

Davco’s argument in other contexts that the preremand

contempt proceedings were void because the court lacked 

jurisdiction over them, a position we have already rejected. Nor 

is it apparent how void actions or ‚the substantive rights of 

Davco and Mr. Fisher *not having+ been affected‛ should lead us 

to conclude that the district court erred in making an evidentiary 

ruling at the postremand hearing. 

¶58 Without any legal basis or reasoned analysis from Davco 

explaining how the court’s evidentiary decision was wrong, it is 

impossible for us to conclude that the court abused its discretion.

Where, as here, ‚the overall analysis of the issue is so lacking as 

to shift the burden of research and argument to the reviewing 

court,‛ we decline to address this issue further and consequently 

the district court’s evidentiary ruling stands. Ortega v. Ridgewood 

Estates LLC, 2016 UT App 131, ¶ 25, 379 P.3d 18 (citation and 

internal quotation marks omitted); Broderick v. Apartment Mgmt. 

Consultants, LLC, 2012 UT 17, ¶ 11, 279 P.3d 391 (explaining that 

‚*appellate courts+ have discretion to not address an 

inadequately briefed argument‛ (citation and internal quotation 

marks omitted)).
Iota v. Davco Management Company

20130552-CA 31 2016 UT App 231

C. Davco’s Challenge to the District Court’s Attorney Fees 

Award

¶59 After again finding Davco in contempt on remand, the 

district court awarded Iota all its contempt-related attorney fees 

and costs, including those incurred before our reversal and 

remand in Iota I. Davco argues that the district court’s attorney 

fees award was incorrect for several reasons: (1) Iota was not 

entitled to fees incurred in the original contempt proceeding 

because it was void; (2) it was improper to award Iota fees for 

the contempt proceeding overturned on appeal; (3) Iota did not 

apportion or separate its fees correctly; (4) the court allowed Iota 

to double bill; (5) Iota’s fees were unreasonable; and (6) the court 

improperly allowed costs for photocopying, telephone calls, and 

postage. ‚Whether attorney fees are recoverable in an action is a 

question of law, which we review for correctness.‛ Home Abstract 

& Title Co. v. Am. Pension Services, Inc., 2012 UT App 165, ¶ 2, 282 

P.3d 1015 (citation and internal quotation marks omitted). But 

‚the trial court has broad discretion in determining what 

constitutes a reasonable fee, and we will consider that 

determination against an abuse-of-discretion standard.‛ Dixie 

State Bank v. Bracken, 764 P.2d 985, 991 (Utah 1988).

¶60 The contempt statute allows the aggrieved party to 

recover its ‚costs and expenses.‛ Utah Code Ann. § 78B-6-311(1)

(LexisNexis Supp. 2016). ‚The ‘costs and expenses’ described in 

this section include ‘the attorney fees the damaged party 

incurred.’‛ Utah Telecomm. Open Infrastructure Agency v. Hogan, 

2013 UT App 8, ¶ 31, 294 P.3d 645 (citation omitted); see also 

Clarke v. Clarke, 2012 UT App 328, ¶ 29, 292 P.3d 76 (‚Damages 

incurred due to another’s contemptuous conduct may include 

related attorney fees.‛). Therefore, we agree with the district 

court that it had the power to award fees.

1. Fees Awarded from the Original Proceeding

¶61 On remand, the district court awarded Iota all the 

attorney fees and costs it incurred in the contempt proceedings 

before Iota I. The court did not take new evidence on those fees 
Iota v. Davco Management Company

20130552-CA 32 2016 UT App 231

but apparently relied on Iota’s original submissions in support of 

the court’s earlier attorney fee award. Davco argues that the 

court’s award of fees from the preremand proceeding was 

improper ‚*b+ecause the trial court did not have subject matter 

jurisdiction for the contempt charges.‛ Therefore, according to 

Davco, ‚all other acts of the trial court for the contempt charge in 

the principal case, including the awarding of attorney fees and 

costs, are void.‛ Davco also contends, apparently in the 

alternative, that the preremand proceedings were ‚a separate 

case.‛ Therefore, Iota ‚had to have its [attorney fees] records 

introduced in evidence at the evidentiary hearing . . . for the trial 

court to consider them‛ and that Iota ‚failed to introduce‛ such 

records.

¶62 Both arguments fail for the reasons we have previously 

stated. First, the district court had subject matter jurisdiction 

over this case, both before and after remand, and the original 

contempt proceedings were therefore not void. And while it is 

true that this court vacated the court’s first contempt judgment 

in Iota I, we did not disturb any of the associated evidence or 

factual findings that led to the judgment. See Iota I, 2012 UT App 

218, ¶ 40, 284 P.3d 681. That is, all the evidence and attorney fee 

records that supported the original judgment remained intact, 

even though the judgment itself was vacated.

¶63 Second, the proceedings before and after remand were 

part of the same case. As we explained above, except for the 

vacated judgment, the court properly took judicial notice of the 

proceedings before remand, including all the documents and 

other evidence from the earlier contempt proceedings. As a 

result, Iota was not required to again submit its attorney fee 

evidence from the original contempt proceeding—all of that 

information was properly before the court. Accordingly, we are 

not persuaded that the trial court erred by relying on these in 

awarding attorney fees for the preremand contempt 

proceedings.
Iota v. Davco Management Company

20130552-CA 33 2016 UT App 231

2. Fees Awarded for the Motion for Contempt 

¶64 After Iota I, on September 17, 2012, Iota restarted the 

contempt proceedings by filing an affidavit as required by 

statute and again moving the district court to find Davco

Management and Fisher in contempt. Davco contends that Iota is 

‚not entitled to attorney fees for *that+ motion for contempt‛ 

because ‚the trial court denied *Iota’s+ motion.‛ In support, 

Davco points out that, in early 2013, the court purportedly 

denied a motion for contempt, and according to Davco, the 

motion that the court denied was Iota’s postremand motion from 

2012. Davco asserts that awarding attorney fees based on a 

denied motion is an abuse of discretion. We would agree, but the 

record does not support Davco’s assertion.

¶65 The district court did enter an order denying a motion for 

contempt in early 2013 as Davco contends, but the court stated 

that the denial applied to a motion ‚filed on September 27, 

2010.‛ Thus, whatever motion the court purported to deny was 

not the pending motion on remand filed in 2012.

16 And even if 

the court had actually denied the pending 2012 motion for 

contempt, that denial was meaningless in the broader context of 

the remanded proceedings considered as a whole. On remand, 

the court received new briefing on the contempt issue and 

conducted a new evidentiary hearing as we have previously 

discussed. The court then entered a new contempt judgment. 

Thus, even assuming the court had denied the 2012 motion 

 

16. The record is not clear what motion the court intended to 

deny with its 2013 order because no motion for contempt was 

filed in the original proceeding on September 27, 2010. However, 

the court vacated its original contempt judgment pursuant to our 

decision in Iota I on the very same day at roughly the same time. 

Thus, it is probable that both actions were simply judicial 

housekeeping in response to our Iota I decision and the 

erroneous date reference was simply a clerical error. Davco has 

not attempted to explain the discrepancies.
Iota v. Davco Management Company

20130552-CA 34 2016 UT App 231

rather than some other motion as Davco contends, the denial 

would have had no meaningful effect because the court 

ultimately granted Iota’s contempt motion after further 

proceedings. And the court’s attorney fees award for 

postremand contempt proceedings was clearly based on that 

process and the court’s ultimate decision, rendering the 2012 

denial essentially anomalous, if not a nullity.

¶66 Davco also claims that Iota’s ‚motion for contempt was 

not warranted by existing law.‛ As we understand it, Davco 

contends that it was denied due process because, ‚*b+y filing the 

motion for contempt, [Iota] denied Davco and Mr. Fisher of the 

right to counsel, the right to confront witness[es], and the right 

to offer testimony.‛ Davco, however, does not explain why the 

motion was not warranted by law or how it violated due 

process.17 Indeed, the record shows that Davco not only had the 

opportunity to confront witnesses and offer testimony, but that 

Davco in fact did all of those things, and was represented by 

counsel when it did so at the contempt hearing. Therefore, we 

conclude that awarding attorney fees based on the motion for 

contempt was within the court’s discretion and did not violate 

Davco’s right to due process.

 

17. The list of rights Davco claims it was denied includes those 

primarily guaranteed to criminal defendants. The Sixth 

Amendment to the United States Constitution guarantees 

criminal defendants the right to counsel and the right to confront 

witnesses. Article I, section 12 of the Utah Constitution 

guarantees criminal defendants the right to counsel, to confront 

witnesses, and to testify on their own behalf. Davco does not 

explain how these rights apply to this civil case, or how the mere 

filing of a motion by an adverse party could work a denial of 

these rights.
Iota v. Davco Management Company

20130552-CA 35 2016 UT App 231

3. The Evidentiary Basis for the Attorney Fees Award

¶67 Davco also asserts that Iota did not properly apportion or 

separate out nonrecoverable fees, that it double billed on some 

fees, and that the fees were altogether unreasonable. Although it 

cites one case to support the basic proposition that recoverable 

fees must be separated from nonrecoverable ones, Davco’s brief 

contains no record citations that would allow us to understand 

its contention as applied to the facts of this case. Likewise, the 

double billing portion of the brief provides no record or legal

citation, nor does it attempt to explain what constitutes

impermissible double billing or how we could check for it now. 

For instance, Davco appears to argue that two attorneys working 

together on a project is per se double billing, but collaboration is 

a common practice in litigation and is not a basis for rejecting an 

attorney fees request standing alone. Davco also asserts that the 

fees award was unreasonable because Iota billed more than 

seventeen hours to oppose Davco’s motion to strike the Ex Parte 

Order. Again, this section of Davco’s brief does not cite to the 

record and offers only the conclusory allegations that Iota ‚did 

not perform any new legal work‛ and instead ‚copied their prior 

pleadings.‛ 

¶68 As explained above, we do not address issues that are 

inadequately briefed. See supra ¶¶ 55–57. Because Davco 

supplied no reasoned analysis based on legal authority for its 

assertion that the fees were unreasonable, we decline to further 

address these points. See Broderick v. Apartment Mgmt. 

Consultants, LLC., 2012 UT 17, ¶ 11, 279 P.3d 391 (explaining that 

‚*appellate courts+ have discretion to not address an 

inadequately briefed argument‛ (citation and internal quotation 

marks omitted)).

4. Accounting for the Costs Awarded

¶69 Finally, Davco asserts that the court improperly awarded 

Iota the costs of photocopying, long-distance calls, and postage. 

We again conclude that Davco has failed to ‚do the heavy 

lifting‛ required for us to reach the merits of its argument. State 
Iota v. Davco Management Company

20130552-CA 36 2016 UT App 231

v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448. For instance, Davco 

uses Stevensen 3rd East, LC v. Watts to support the proposition 

that copying, phone calls, and postage are not the proper subject 

of an award of costs. 2009 UT App 137, ¶ 68, 210 P.3d 977. 

However, Watts only mentions photocopying, not phone calls 

and postage, and Davco itself explains that the Watts decision 

arose under Utah Rule of Civil Procedure 54, not under the 

contempt statute, which was the basis for the judgment here. The 

contempt statute provides that the court may order payment of 

‚a sum of money sufficient to indemnify and satisfy the 

aggrieved party’s costs and expenses.‛ Utah Code Ann. § 78B-6-

311(1) (LexisNexis Supp. 2016). 

¶70 Without more explanation from Davco, we are not 

persuaded that the facially dissimilar phrases ‚a sum of money 

sufficient to indemnify and satisfy the aggrieved party’s costs 

and expenses‛ under the contempt statute should be interpreted 

to mean the same thing as ‚those fees which are required to be 

paid to the court and to witnesses‛ under rule 54. Compare id., 

with Watts, 2009 UT App 137, ¶ 63 (defining ‚costs‛ for purposes 

of rule 54). As a consequence, we are not persuaded that the 

district court erred in awarding costs to Iota.

IV. Attorney Fees on Appeal

¶71 As a final matter, we address Iota’s request for an award 

of attorney fees and costs on appeal. ‚The general rule is that 

when a party who received attorney fees below prevails on 

appeal, the party is also entitled to fees reasonably incurred on 

appeal.‛ Utah Dep't of Social Services v. Adams, 806 P.2d 1193, 

1197 (Utah Ct. App. 1991); see also Utah Transit Auth. v. 

Greyhound Lines, Inc., 2015 UT 53, ¶ 64, 355 P.3d 947 (‚We have 

recognized in the context of statutory attorney fee awards that 

when a party is entitled to attorney fees below and prevails on 

appeal, that party is also entitled to fees reasonably incurred on 

appeal.‛ (citation and internal quotation marks omitted)). We 

therefore award Iota the reasonable attorney fees incurred on 

appeal and remand to the district court to determine the 

appropriate amount.
Iota v. Davco Management Company

20130552-CA 37 2016 UT App 231

CONCLUSION

¶72 We affirm the district court on all issues. The court 

correctly applied the collateral bar doctrine and did not abuse its 

discretion in finding contempt, in calculating damages, in 

entering a judgment against Davco for violation of the Ex Parte 

Order, or in awarding attorney fees. We also conclude that Iota 

is entitled to the attorney fees required to defend this appeal, in 

the amount to be determined by the district court on remand.