2018 UT App 179

THE UTAH COURT OF APPEALS

YAN ROSS AND RANDI WAGNER,

Appellees,

v.

MICHAEL BARNETT,

Appellant.

Opinion

No. 20160652-CA

Filed September 20, 2018

Third District Court, Salt Lake Department

The Honorable John Paul Kennedy and Ryan M. Harris

No. 070915820

Douglas R. Short, Attorney for Appellant

John H. Bogart, Attorney for Appellees

JUDGE DIANA HAGEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.

MORTENSEN concurred.

HAGEN, Judge:

¶1 Appellant Michael Barnett asks this court to review 

fourteen issues arising from supplemental proceedings in which 

attorney Douglas R. Short represented Barnett as an intervenor. 

In the underlying case, plaintiffs Yan Ross and Randi Wagner 

obtained a judgment against defendant Global Fraud Solutions 

(GFS). When Ross and Wagner sought a writ of execution 

against GFS’s assets, GFS claimed that some of the assets were 

owned by its general manager, Barnett, and thus were not 

subject to execution to satisfy the judgment against GFS. Barnett 

filed a motion to intervene and a motion to quash the writ of 

execution. The district court granted the motion to intervene. 

Following an evidentiary hearing on the motion to quash, the 

district court found that Barnett was not credible and that the 
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assets were the property of GFS. The district court denied the 

motion to quash and enjoined Barnett from dissipating the 

assets. The court made those rulings in September 2008.

¶2 During the ten years that followed, Barnett and Short 

continually attacked those rulings. Among other things, Barnett 

denied intervening as a party in the case, challenged the court’s 

jurisdiction, disputed the court’s recollection of its September 

2008 rulings, ignored the court’s decisions by raising the same 

rejected arguments over and over again, and filed several 

appeals that he failed to prosecute.

¶3 We have appellate jurisdiction over only a limited 

number of issues raised on appeal. As to those issues, we reject 

Barnett’s challenges and conclude that they are neither 

grounded in fact nor on a good faith legal argument. 

Accordingly, we affirm the district court’s ruling and remand for 

an award of Ross and Wagner’s costs and attorney fees incurred 

in defending this appeal.

BACKGROUND1

¶4 In 2007, Ross and Wagner sued GFS for failure to repay an 

unsecured loan, or debenture, and for breach of contract. With 

respect to the first cause of action concerning the debenture, the 

district court granted partial summary judgment in favor of Ross 

 

1. This condensed summary of the proceedings below does not 

do justice to the voluminous record in this case. Over the 

past ten years, Barnett has inundated the district court with 

repetitive filings, attempting to resurrect issues previously 

decided. In addition, Barnett has filed seven different 

appeals, most of which were dismissed based on his refusal to 

comply with this court’s rules.
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and Wagner, awarding them the unpaid principal of $47,000, 

plus interest, costs, and attorney fees.

¶5 Ross and Wagner sought a writ of execution against GFS’s 

“tangible and intangible business assets” to satisfy the judgment. 

GFS objected, claiming that certain assets were exempt from 

execution because they were “owned by another person.” One 

asset in particular was at issue—a bank account in the name of 

The Institute of Fraud Risk Management (the TIFRM Account). 

At a hearing on September 15, 2008, the district court found that 

the TIFRM Account was the property of GFS and enjoined 

dissipation of the account. As to GFS’s objection to the writ of 

execution, the district court continued the evidentiary hearing to 

September 25, 2008.

¶6 Before the evidentiary hearing, Barnett, the general 

manager of GFS, filed a motion to intervene. Barnett also filed a 

motion to quash the writ of execution, claiming that he, not GFS, 

owned the assets subject to the writ.

¶7 At the evidentiary hearing on September 25, 2008, the 

district court granted Barnett’s motion to intervene. After 

hearing witness testimony, reviewing the exhibits submitted, 

and considering counsels’ arguments, the district court ruled 

“that the Assets were and are the property of Defendant GFS 

and were not and are not owned by Intervenor Barnett.” The 

court’s ruling was based on a finding that Barnett’s testimony 

asserting ownership of the assets “was evasive and inconsistent 

and not credible.” Additionally, the court made the following 

findings of fact:

[T]he Court finds that the asset in this case is the 

asset of GFS based upon the statements by Mr. 

Barnett to the effect that he is GFS and based on 

other indications that are set forth in the exhibits 

that were introduced today including the sworn 
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statement filed with the Court, including the 

repeated statements in the various documents and 

emails that have been presented.

The court continued the injunction issued on September 15 and 

further enjoined Barnett from diverting funds from the TIFRM 

Account.

¶8 Shortly thereafter, Ross and Wagner filed a motion for a 

permanent injunction and a finding of contempt against Barnett, 

claiming, among other things, that he was dissipating GFS’s 

assets. Barnett’s attorney withdrew as counsel, and Short entered 

a “special appearance” on behalf of Barnett. In addition to 

objecting to Ross and Wagner’s pending motion, Short moved—

yet again—to quash the writ of execution on the grounds that 

the assets belonged to Barnett personally.

¶9 On January 27, 2009, the district court held a hearing at 

which Barnett challenged whether the court had jurisdiction 

over him and whether the assets subject to execution belonged to 

him or GFS. The court ruled that “Intervenor Barnett is a party in 

this action and that the Court has jurisdiction over him, as a 

result of the prior formal Motion for Intervention filed in this 

action by Mr. Barnett through his previous attorney.” The court 

also reiterated its finding from the prior evidentiary hearing that 

the assets subject to execution are the property of GFS, not 

Barnett.

¶10 Ross and Wagner prepared a written order memorializing 

the January 27, 2009 ruling, but it was not entered until June 6, 

2012 (the June 2012 Order).2 Two weeks later, on June 20, 2012, 

 

2. Barnett objected to the proposed June 2012 Order, claiming 

that the court had not made any substantive rulings during the 

January 27, 2009 hearing. Before the court could rule on Barnett’s 

(continued...)
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Barnett filed a motion to reconsider or amend the June 2012 

Order (the June 2012 Motion). The next day, Barnett filed a 

motion for clarification, asking whether the court intended the 

June 2012 Order to be final and appealable. Neither side ever 

filed a notice to submit these motions for decision.

¶11 On December 18, 2012, the district court scheduled a 

hearing on all pending motions. Before the hearing, Ross and 

Wagner filed a memorandum in opposition to Barnett’s second 

motion to quash the writ of execution, which they had filed on 

January 27, 2009. Ross and Wagner filed a notice to submit 

Barnett’s motion for decision, after which Barnett moved to 

strike the opposition as untimely. Barnett also filed a motion to 

strike the June 2012 Order on the grounds that it had been 

entered by the court before considering Barnett’s objections. No 

notice to submit that motion for decision was filed.

¶12 At the hearing on all pending motions held on February 7, 

2013, the court denied Barnett’s motion to quash the writ of 

execution as well as his motion to strike Ross and Wagner’s 

opposition. In a subsequent written order entered on May 6, 

2013 (the May 2013 Order), the court reiterated that it had 

 

(...continued)

objection, however, Barnett filed a series of motions aimed at 

disqualifying the district judge. Those motions were referred to 

other judges for decision, along with a motion for rule 11 

sanctions against Barnett filed by Ross and Wagner. The district 

court deferred further action in this case until those matters were 

decided. The order granting rule 11 sanctions was entered on 

February 10, 2012. The following month, the court “directed the 

parties to submit any outstanding unsigned orders.” At that 

point, Ross and Wagner resubmitted the written order 

memorializing the January 2009 hearing and the court entered 

the order without objection.
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previously found, on September 15, 2008, that the assets 

belonged to GFS and had later reaffirmed that finding on 

numerous occasions, including the September 25, 2008 hearing, 

the January 27, 2009 hearing, and in the June 2012 Order. The 

court concluded that Barnett’s arguments “are a rehashing of 

arguments previously considered and rejected by this Court” 

and “[n]o good reason was set out for reconsideration.”3

¶13 On May 31, 2013, Barnett filed a rule 52 motion to amend 

the May 2013 Order. In his supporting memorandum, Barnett 

again challenged the district court’s finding that GFS owned the 

assets at issue “because any such purported finding of 

ownership lacks any factual evidentiary support in the record.” 

He also reiterated his argument that the June 2012 Order was 

improperly entered over his objections.4

¶14 Following a hearing, the district court signed a minute 

entry order dated August 16, 2013, denying Barnett’s motion and 

citing him for contempt. The court reiterated its earlier rulings, 

including that (1) the “Court has had and continues to have 

personal jurisdiction over” Barnett, who, “through his personal 

appearance and through counsel, submitted to the jurisdiction of 

the Court in 2008”; (2) the court “has subject matter jurisdiction 

over this matter” because it “has inherent authority to enforce its 

orders”; and (3) the court had ruled as far back as 2008 that the 

challenged assets belonged to GFS.

 

3. The court also granted summary judgment in favor of Ross 

and Wagner on their second cause of action for breach of 

contract. A final order was entered on March 26, 2013, awarding 

them $20,000, along with interest, costs, and attorney fees.

4. At this point, another round of motions to disqualify the 

district court judge ensued, resulting in additional delays.
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¶15 Undeterred by this sixth adverse ruling on the ownership 

of the assets, Barnett filed another series of motions asking for, 

among other things, an amended judgment or a new trial. On 

January 24, 2014, the district court struck the filings as “riddled 

with ‘redundant, immaterial, impertinent or scandalous 

matter.’” (Quoting Utah R. Civ. P. 10(h).) In addition, the court 

ruled that “because the arguments raised in Barnett’s Rule 59 

Motion have already been raised and rejected by the Court 

previously, the Court sees no reason to reconsider its prior 

rulings.”5

¶16 Several years later, after the original judge retired and a 

different judge had been assigned to the case, Barnett informed

the court that the June 2012 Motion was still outstanding. The 

district court set a briefing schedule on the June 2012 Motion and 

ultimately denied it in an order signed June 21, 2016 (the 2016 

Ruling). The district court ruled:

By letting the Motion lie fallow for some four 

years, Barnett essentially asks this Court to sit as an 

appellate court and review a cold record for 

 

5. Again, the proceedings were delayed. Ross and Wagner filed a 

motion to reduce the previously ordered rule 11 sanctions to 

judgment. When neither Barnett nor his attorney, Short, 

appeared at the order to show cause hearing, the district court 

held both in contempt. This touched off another series of 

motions, which included a renewed effort by Barnett to 

disqualify the district court judge as well as three motions by 

Ross and Wagner seeking sanctions against Short. Proceedings 

were stayed until the presiding judge determined that the 

motion to disqualify was “unsupported by credible evidence 

and based largely on adverse rulings and decisions.” Once the 

stay was lifted, the district court granted Ross and Wagner’s 

motions for sanctions against Short.
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alleged errors of law made by a different district 

court judge. In the Court’s view, this is the proper 

role of an appellate court on application through a 

timely notice of appeal; it is not the proper role of 

this Court on an obsolete motion filed four years 

ago under Rule 52 or Rule 59 . . . . The considerable 

time that has elapsed between when the motion 

was filed and now renders the Motion stale. The 

proceedings that have transpired in the interim 

reinforce the point, and further militate against 

considering the Motion nearly four years after it 

was filed.

Among other things, the district court noted that Barnett had 

unreasonably delayed in submitting the June 2012 Motion for 

decision, had effectively challenged the rulings in the June 2012 

Order through subsequent motions that the predecessor judge

rejected, and had filed multiple appeals purporting to challenge 

the predecessor judge’s rulings, all of which were dismissed. The 

court recognized its discretion to reconsider orders entered by a 

previous judge, but it declined “to exercise its discretion to 

undertake that reconsideration.”

¶17 Barnett and Short filed this appeal on July 20, 2016.

ANALYSIS

I. Appellate Jurisdiction

¶18 Barnett attempts to raise fourteen issues relating to 

myriad rulings made throughout the protracted history of this 

case. We have jurisdiction to review only those rulings from 

which a timely notice of appeal was filed. Reisbeck v. HCA Health 

Services of Utah, Inc., 2000 UT 48, ¶ 5, 2 P.3d 447 (“Failure to file a 

timely notice of appeal deprives this court of jurisdiction over 

the appeal.”). An appeal “shall be filed with the clerk of the trial 
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20160652-CA 9 2018 UT App 179

court within 30 days after the date of entry of the judgment or 

order appealed from.” Utah R. App. P. 4(a). “It is axiomatic in 

this jurisdiction that failure to timely perfect an appeal is a 

jurisdictional failure requiring dismissal of the appeal.” A.S. v. 

R.S., 2017 UT 77, ¶ 35 n.12, 416 P.3d 465 (quotation simplified).

¶19 Here, the notice of appeal was filed on July 20, 2016. Only 

a single order falls within the preceding thirty-day period—the 

2016 Ruling issued on June 21, 2016. Two of the fourteen issues 

on appeal arise from the 2016 Ruling. In issues one and three, 

Barnett challenges the merits of the 2016 Ruling, arguing that the 

district court improperly raised “staleness sua sponte” and 

abused its discretion in refusing “to entertain challenges to the 

alleged mistakes by its predecessor.” Because Barnett timely 

appealed these two issues within thirty days of that ruling, we 

have jurisdiction to address those issues.

¶20 All of the remaining issues relate to district court rulings 

made before 2016, for which the time to file a notice of appeal 

has long since run. Nonetheless, Barnett claims that his time to 

file a notice of appeal was not triggered by these earlier rulings, 

because they were not final, appealable judgments.6 But “[t]he 

 

6. We note that Ross and Wagner have argued, and the district 

court agreed, that the prior rulings were final and appealable no 

later than March 26, 2013, when partial judgment was entered on 

Ross and Wagner’s only remaining cause of action. But the 

underlying action against GFS and “the subsequent action 

seeking enforcement of that judgment are separate proceedings, 

each resulting in separate judgments that are then individually 

subject to the rules of appellate procedure concerning appeals.” 

Cheves v. Williams, 1999 UT 86, ¶ 52, 993 P.2d 191. Therefore, we 

agree with Barnett that the March 26, 2013 partial judgment is 

irrelevant to when the prior rulings in the supplemental 

proceedings became final and appealable.
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final judgment rule does not preclude review of postjudgment 

orders.” Cahoon v. Cahoon, 641 P.2d 140, 142 (Utah 1982). Instead, 

postjudgment orders “are independently subject to the test of 

finality, according to their own substance and effect.” Id. “Where 

the effect of a postjudgment order is to determine substantial 

rights and end the litigation regarding a specific issue in a 

[supplemental] proceeding, the order will be a final order for 

purposes of appeal.” Colleli v. Colleli, 2004 UT App 318U, para. 2 

(per curiam).

¶21 During the course of these supplemental proceedings, the 

district court issued multiple orders relating to the issues now on 

appeal. Barnett has not undertaken an analysis of the substance 

and effect of the district court’s earlier orders, instead claiming 

that Ross and Wagner bear “the burden to prove the existence of 

a final, appealable, supplemental order/judgment that was not 

timely appealed.” But “[w]hen a jurisdictional question arises, 

the burden to establish it rests upon the party asserting that 

jurisdiction exists.” Thompson v. Jackson, 743 P.2d 1230, 1232 n.2 

(Utah Ct. App. 1987) (per curiam). Barnett has not carried that 

burden here.

¶22 We need not analyze the substance and effect of each of 

the earlier orders, because we conclude that the time for filing a 

notice of appeal on issues four through fourteen began to run no 

later than January 24, 2014.7 In a signed minute order dated 

August 16, 2013, the court rejected Barnett’s challenges to subject 

matter and personal jurisdiction (issues four and five);

reaffirmed its rulings made at the September 25, 2008 hearing 

 

7. Issue two asks us to remand to the district court for a 

determination of whether the June 2012 Order was final and 

appealable. Because we conclude that the time for filing a notice 

of appeal has long since run on all issues relating to the June 

2012 Order, issue two is moot.
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(issues six, seven, eight, and nine); and held Barnett in contempt 

(issues ten, eleven, twelve, and fourteen). The denial of Barnett’s 

motion to disqualify the judge from making those rulings (issue 

eleven) also became appealable at that time. See Johnson v. 

Johnson, 2004 UT App 13U, para. 4 (per curiam) (explaining that 

a motion to disqualify a judge from a pending matter becomes 

appealable once a final and appealable order is issued on that 

pending matter). The August 16, 2013 order determined the 

substantial rights of the parties and resolved all issues at stake in 

the supplemental proceedings. See Colleli, 2004 UT App 318U, 

para. 2. Accordingly, by its substance and effect, it was a final, 

appealable order.

¶23 Barnett filed a timely rule 59 motion for an amended 

judgment or new trial, thereby tolling the time for appeal until 

the court entered an order on the motion. See Utah R. Civ. P. 59; 

Utah R. App. P. 4(b)(1)(C). On January 24, 2014, the district court 

struck the rule 59 motion for failure to comply with the Utah 

Rules of Civil Procedure but ruled that, “even if the Court were 

to consider the motion, Barnett would not be entitled to relief.” 

The order did not contemplate any further action on these issues 

and expressly stated, “No additional order is necessary.” When 

the court issued the order on the rule 59 motion, the thirty-day 

period for filing a notice of appeal began to run and would have 

expired on February 24, 2014. See B.A.M. Dev., LLC v. Salt Lake 

County, 2012 UT 26, ¶ 10, 282 P.3d 41.

¶24 The notice of appeal filed on July 20, 2016, was untimely 

as to issues two and four through fourteen.8 But in issue four, 

 

8. Barnett did file a notice of appeal within the thirty day period, 

but that was a different appeal from the one now before us. On 

February 21, 2014, Barnett filed a timely notice of appeal from 

the January 24, 2014 order, “in an abundance of caution to 

preserve any and all rights of appeal” in the event that the order 

(continued...)
Ross v. Barnett

20160652-CA 12 2018 UT App 179

Barnett asserts that the district court lacked subject matter 

jurisdiction over the ownership dispute in these supplemental 

proceedings. “Because subject matter jurisdiction goes to the 

heart of a court’s authority to hear a case, it is not subject to 

waiver and may be raised at any time, even if first raised on 

appeal.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702 

(quotation simplified). Accordingly, we address that threshold 

issue first.

II. Subject Matter Jurisdiction

¶25 Barnett contends that the district court lacked subject 

matter jurisdiction to determine who owned the assets subject to 

execution. “We review jurisdictional issues for correctness.” In re 

A.J.B., 2017 UT App 237, ¶ 12, 414 P.3d 552.

¶26 This appeal arises from supplemental proceedings to 

enforce a judgment against GFS. There is no dispute that the 

district court had subject matter jurisdiction over the causes of 

action brought by Ross and Wagner against GFS, as it was a civil 

matter within the general jurisdiction of the district court. See 

Utah Const. art. VIII, § 5; Utah Code Ann. § 78A-5-102(1) 

(LexisNexis 2012). In the underlying action, the court granted 

 

(...continued)

was determined to be final and appealable. But Barnett failed to 

perfect the appeal by filing a timely docketing statement. After 

giving Barnett two additional opportunities to file a docketing 

statement and warning that failure to do so would result in the 

case being submitted for dismissal, this court dismissed the 

appeal pursuant to rule 3(a). See Utah R. App. P. 3(a) (“Failure of 

an appellant to take any step other than the timely filing of a 

notice of appeal does not affect the validity of the appeal, but is 

ground only for such action as the appellate court deems 

appropriate, which may include dismissal of the appeal[.]”).
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partial summary judgment for Ross and Wagner and entered 

judgment against GFS.

¶27 The proceedings at issue in this case began when Ross 

and Wagner sought a writ of execution on that judgment. 

District court judges have subject matter jurisdiction to “issue all 

extraordinary writs and other writs necessary to carry into effect 

their orders, judgments, and decrees.” Utah Code Ann. § 78A-5-

102(2); see also Mardanlou v. Ghaffarian, 2015 UT App 128, ¶ 19, 

351 P.3d 114 (“District courts possess jurisdiction to enforce a 

final judgment.”). Plainly, the district court had subject matter 

jurisdiction over these supplemental proceedings involving a 

writ of execution.

¶28 Nevertheless, Barnett claims that the court lacked subject 

matter jurisdiction “to adjudicate ownership disputes involving 

non-parties.” The most recent case Barnett cites for this 

proposition is Cleverly v. District Court, 39 P.2d 748 (Utah 1935), 

which noted, “[W]here an interest is claimed in the property by a 

party not a party to the record or proceedings, . . . the court in 

supplementary proceedings is without jurisdiction to determine 

the conflicting claims.” Id. at 751 (citing Wallace, Smuin & Co. v. 

McLaughlin, 43 P. 109, 111 (Utah 1895)). The court explained that 

supplementary proceedings “are not well adapted to litigate 

conflicting claims to property nor to determine disputed 

questions of fact, particularly where third parties claim an 

interest in the property.” Id. The court questioned whether it was 

possible, “in this summary way, without an opportunity to be 

heard, and in the absence of some of the parties, without issues, 

for the court or referee to determine the questions of fact which 

ought to be heard only in regular actions, and perhaps before a 

jury.” McLaughlin, 43 P. at 111.

¶29 We question whether this legal proposition survived the 

adoption of the Utah Rules of Civil Procedure. Those rules 

specifically provide a mechanism by which a third person can 
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20160652-CA 14 2018 UT App 179

assert a claim to property subject to a writ. Utah R. Civ. P. 

64(e)(1). Under rule 64(e)(1), “[a]ny person claiming an interest 

in the property [that is the subject of a writ] has the same rights 

and obligations as the [party against whom judgment has been 

entered] with respect to the writ.” “If a person claiming an 

interest in the property is named by the plaintiff and served with 

the writ and accompanying papers, then that person shall 

exercise those rights and obligations within the same time 

allowed the party against whom judgment has been entered.” 

Jordan Constr., Inc. v. Federal Nat’l Mortgage Ass’n, 2017 UT 28, 

¶ 33, 408 P.3d 296 (quotation simplified).

¶30 In any event, Barnett’s claim of ownership is readily 

distinguishable from the type of conflicting claims that Cleverly

and McLaughlin considered ill-suited for resolution in a 

supplemental proceeding. Most importantly, this case does not 

involve a nonparty without an opportunity to be heard. The 

district court granted Barnett’s motion to intervene, making 

Barnett a party to the supplemental proceedings with the same 

rights as the original parties. See 59 Am. Jur. 2d Parties § 224 

(2018). Since becoming a party, Barnett had notice and a right to 

be heard at every stage in the proceedings.

¶31 In addition, this case does not involve an actual 

controversy between Barnett and GFS that might best be 

resolved in a separate lawsuit. Instead, the district court found 

that, in effect, “[Barnett] is GFS.” Even the cases on which 

Barnett relies recognize that

where it is clearly apparent to the court that there 

is a simulated controversy, and that there is 

absolutely no foundation for an adverse claim 

to the property in controversy, and where the 

assertion of such a claim would be so clearly 

a pretense and evidence of fraud as to be 

tantamount to a disclaimer of interest, then the 
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court can order its application to the judgment 

creditors’ demand.

McLaughlin, 43 P. at 111. Here, the court was not asked to litigate 

claims between Barnett and GFS but only to determine whether 

Barnett’s claim of ownership was mere pretense.

¶32 Given that Barnett elected to intervene in this case and the 

district court granted his motion to do so, we have no difficulty 

determining that the court’s subject matter jurisdiction over 

these supplemental proceedings encompassed the authority to 

decide Barnett’s adverse claim.

III. The 2016 Ruling

¶33 As previously noted, the notice of appeal was timely with 

respect to only the 2016 Ruling. Two of the issues raised on 

appeal relate to this ruling. First, Barnett argues that the district 

court erred when it raised a “staleness” issue sua sponte. Second, 

Barnett argues that the district court “abused its discretion by 

refusing to entertain challenges to alleged mistakes by its 

predecessor.” We construe the 2016 Ruling as denying 

reconsideration of earlier rulings made by the originally 

assigned judge. “We review a district court’s decision to 

reconsider an earlier decision for an abuse of discretion.” Jordan 

Constr., Inc. v. Federal Nat’l Mortgage Ass’n, 2017 UT 28, ¶ 22, 408 

P.3d 296.

¶34 First, in denying the June 2012 Motion, the district court 

concluded that “the Motion has been rendered stale by 

the unreasonable delay in submitting it for decision, combined 

with the interim rulings by [the predecessor judge] and the 

appellate courts.” Barnett claims that Ross and Wagner never 

raised this “staleness” issue and that “this surprise ruling 

unconstitutionally denied Barnett his due process right to notice 

and the opportunity to be heard thereon, and deprived him of a 
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20160652-CA 16 2018 UT App 179

fair hearing before a fair, impartial tribunal since the court was 

basically ruling favorably on its own argument.”

¶35 Although Ross and Wagner may not have used the term 

“stale” in their opposition to the June 2012 Motion, they raised 

each of the arguments underlying the court’s decision. The court 

based its conclusion that the June 2012 Motion was “stale” or 

“obsolete” on several factors, including that Barnett had 

unreasonably delayed in submitting the motion for decision and 

that the same issues raised in the motion had been raised and 

ruled upon as part of subsequent motions. In opposition to the 

June 2012 Motion, Ross and Wagner argued, among other 

things, that the motion was “too late” and that “all of the 

arguments have been raised in previous papers and decided 

against Barnett in multiple orders.” Barnett had ample notice of 

these arguments and opportunity to respond.

¶36 Second, Barnett argues that the district court refused to 

address the June 2012 Motion on the merits based on the 

mistaken premise that it would be acting as an appellate court 

and reviewing the rulings of its predecessor. To the contrary, the 

district court expressly recognized that “it has the discretion to 

reconsider orders entered by a judge who previously managed 

this same calendar.” However, the court declined “to exercise its 

discretion to undertake that reconsideration.”

¶37 The district court acted well within its discretion in 

declining to reach the merits of the June 2012 Motion. Although 

there was no ruling specifically on the June 2012 Motion, Barnett 

raised the same arguments in subsequent motions and those 

arguments were rejected by the predecessor judge. As the 

district court noted, the predecessor judge entered the May 2013 

Order that reiterated the findings made in the June 2012 Order. 

Barnett filed a motion to amend in which he “assailed the 

common determinations between the May 2013 Order and the 

June 2012 Order, and specifically challenged the propriety of the 
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20160652-CA 17 2018 UT App 179

June 2012 Order.” In August 2013, the court “expressly rejected 

Barnett’s arguments regarding the June 2012 Order.” As a result, 

the predecessor judge “more or less did deny” the June 2012 

Motion. Because the issues raised in the June 2012 Motion had 

already been considered and rejected, Barnett was, in effect, 

asking the court to reconsider the prior ruling.

¶38 “Whether to reconsider a prior ruling is ordinarily within 

the sound discretion of the district court[.]” Colony Ins. Co. v. 

Human Ensemble, LLC, 2013 UT App 68, ¶ 6, 299 P.3d 1149. 

However, there are three situations in which the court is 

required “to reconsider a matter: (1) when there has been an 

intervening change of authority; (2) when new evidence has 

become available; or (3) when the court is convinced that its 

prior decision was clearly erroneous and would work a manifest 

injustice.” Blackmore v. L & D Dev. Inc., 2016 UT App 198, ¶ 31, 

382 P.3d 655 (quotation simplified). Barnett recognizes that there 

has been no intervening change in the law or the discovery of 

new evidence, but he argues that the district court had a duty to 

revisit the prior decisions because they were clearly erroneous 

and would work a manifest injustice.

¶39 Barnett gives three examples of “plain error” relating to 

the June 2012 Order.9 He argues that the predecessor judge 

disregarded his lack of subject matter jurisdiction; mistakenly 

believed that he had personal jurisdiction over Barnett; and 

relied on his “flawed personal recollections of what happened in 

September 2008, rather than simply read[ing] the transcripts,” 

forcing Barnett and Short to “repeatedly defend against frivolous 

claims [that] they have not complied with mythical orders.” 

Because we have already rejected Barnett’s challenges to the 

 

9. Barnett also argues plain error concerning the order on rule 11 

sanctions, but that ruling was not timely appealed and is 

therefore not before the court.
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district court’s subject matter and personal jurisdiction, he 

cannot establish plain error in that regard.

¶40 As to the claim that the district court mistakenly recalled 

its earlier rulings and held Barnett in contempt of a “mythical 

order,” the record does not support this assertion. The minute 

entry and transcripts of the hearing on September 15, 2008, 

reflect that the district court enjoined the removal or transfer of 

funds from the TIFRM Account. The transcript from the hearing 

on September 25, 2008, includes express findings that Barnett’s 

testimony was not credible and that the TIFRM Account was the 

property of GFS. The court ruled that it would “extend that 

[September 15] injunction” and “further enjoin any additional 

expenditure of funds.” Barnett’s assertion that no such rulings 

were made is yet another attempt to rewrite the history of this 

case. Because Barnett failed to establish plain error that would 

work a manifest injustice, the district court was not required to 

reconsider the prior ruling on the issues raised in the June 2012 

Motion.

¶41 The circumstances of this case strongly militated against 

reconsideration. As the district court found, Barnett 

unreasonably delayed seeking a ruling on the June 2012 

Motion. We agree with the district court’s assessment that it 

would be unfair and a poor use of judicial resources to allow a 

party to “lie in the weeds for four years and then reactivate a 

stale motion to reconsider once a different judge is managing 

the docket.” In addition, Barnett failed to file a timely appeal 

from either the September 2008 or the June 2012 Order. Both 

the unreasonable delay and the failure to seek timely 

interlocutory review of the challenged rulings weigh against 

reconsidering them. The district court properly exercised 

its discretion in declining to reach the merits of the June 

2012 Order, and Barnett has established no basis for disturbing

that decision.
Ross v. Barnett

20160652-CA 19 2018 UT App 179

IV. Attorney Fees

¶42 Ross and Wagner seek attorney fees on appeal. Under 

rule 33 of the Utah Rules of Appellate Procedure, if the court 

determines an appeal “is either frivolous or for delay, it shall 

award just damages, which may include single or double costs, 

as defined in Rule 34, and/or reasonable attorney fees, to the 

prevailing party.” Utah R. App. P. 33(a). A frivolous appeal “is 

one that is not grounded in fact, not warranted by existing law, 

or not based on a good faith argument to extend, modify, or 

reverse existing law.” Id. R. 33(b). An appeal “interposed for the 

purpose of delay is one interposed for any improper purpose 

such as to harass, cause needless increase in the cost of litigation, 

or gain time that will benefit only the party filing the appeal.” Id.

¶43 We conclude that this appeal is frivolous and interposed 

for the purpose of delay. Barnett has made no attempt to show 

how his notice of appeal was timely as to the majority of rulings 

challenged on appeal and has made no good-faith argument as 

to why we might exercise appellate jurisdiction over those 

issues. Moreover, the challenges to the 2016 Ruling distort the 

record and are yet another attempt to relitigate issues long since 

decided. The central issues in this case were decided in 

September 2008 when the district court found that the assets 

were the property of GFS, denied the motion to quash the writ of 

execution, and enjoined Barnett from dissipating the assets. The 

ten years of litigation since that time, including the present 

appeal, are a blatant attempt to delay enforcement of those 

rulings by repeatedly raising the same challenges and refusing to 

accept the court’s rejection of those arguments.

¶44 We grant Ross and Wagner their reasonable costs and 

attorney fees on appeal. Because we find that the abusive

litigation strategy in this case is attributable to counsel, we order 

that the fees and costs be paid by Short. See id. R. 33(a) 

(providing that this “court may order that the damages be paid 
Ross v. Barnett

20160652-CA 20 2018 UT App 179

by the party or by the party’s attorney”). We remand to the 

district court to calculate the reasonable amount of attorney fees 

and costs incurred by Ross and Wagner in connection with this 

appeal.

CONCLUSION

¶45 We reject Barnett’s challenges to the district court’s 

subject matter jurisdiction. Apart from this jurisdictional issue, 

we have appellate jurisdiction over only Barnett’s challenge to 

the 2016 Ruling, and that ruling was well within the district 

court’s discretion. Because we conclude that this appeal was 

frivolous and for the purposes of delay, we order Short to pay 

Ross and Wagner’s reasonable costs and attorney fees incurred 

on appeal and remand to the district court to calculate the 

amount of the award.