Charles Migliore v. Livingston Financial, L.L.C.

¶1 On certiorari, petitioner Charles Migliore argues that the

court of appeals erred when it held that it lacked jurisdiction to

consider his challenge to the district court's denial of his renewed

rule 60(b) motion due to his failure to file a timely notice of appeal.

Mr. Migliore also argues that the court of appeals erred in affirming

the district court's award of attorney fees pursuant to section 78B-5-

825 of the Utah Code.

¶2 We hold that the court of appeals erred when it concluded

that it lacked jurisdiction to review the district court's denial of Mr.

Migliore's renewed rule 60(b) motion. In the interest of judicial

economy, we exercise our discretion to reach the merits of the claim

MIGLIORE v. LIVINGSTON FIN., LLC

Opinion of the Court

2

and hold that Mr. Migliore's renewed rule 60(b) motion was

improper and without merit. We therefore reach the same result as

the court of appeals. We also affirm the court of appeals' award of

attorney fees pursuant to Utah Code section 78B-5-825.

BACKGROUND

¶3 This case involves a debt collection action arising from a

credit agreement between U.S. Bank and Mr. Migliore. In July 2009,

Livingston Financial, LLC (Livingston), as assignee for U.S. Bank,

brought suit against Mr. Migliore for breach of the credit agreement.

The complaint also included a claim for reasonable attorney fees

based on the contractual agreement generating the debt, or

alternatively under Utah Rule of Civil Procedure 73. Mr. Migliore

appeared pro se in the action, but did not file an answer to the

complaint. Instead, Mr. Migliore responded with a motion for a

more definite statement.

¶4 Thereafter, Livingston served its first discovery requests on

Mr. Migliore. Mr. Migliore objected to each of Livingston's requests

for admission and responded that he "lack[ed] the knowledge or

information sufficient to admit or deny, therefore denie[d] the

same.” Livingston then moved for summary judgment on the basis

that Mr. Migliore's failure to properly respond resulted in the

requests being "deemed admitted” pursuant to rule 36 of the Utah

Rules of Civil Procedure. See UTAH R. CIV. P. 36(a)(1) (2009).

¶5 The version of rule 36 in effect at the time stated that a

"matter is admitted unless, within thirty days after service of the

request, . . . the party to whom the request is directed serves upon

the party requesting the admission a written answer or objection.”

Id. 36(a)(2). Though Mr. Migliore had objected, in writing, to each

of Livingston's requests, rule 36 also specified that a party could not

"give lack of information or knowledge as a reason for failure to

admit or deny unless he state[d] that he ha[d] made reasonable

inquiry and that the information known or readily obtainable by him

[was] insufficient to enable him to admit or deny.” Id. Because Mr.

Migliore had relied on a lack of knowledge, but had failed to specify

that he had undertaken a reasonable inquiry, Livingston argued that

he had not properly responded to its requests for admission. The

district court agreed, deemed the requests admitted, and granted

Livingston's motion for summary judgment. The district court's

summary judgment order fully disposed of the issues before the

court, including Livingston's request for attorney fees pursuant to

rule 73 of the Utah Rules of Civil Procedure.

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¶6 Mr. Migliore thereafter filed a motion to reconsider

summary judgment and requested a hearing pursuant to rule 60(b)

of the Utah Rules of Civil Procedure. Mr. Migliore asserted that he

had failed to answer Livingston's summons and complaint because

he was waiting for a response to his earlier motion for a more

definite statement and because he had been committed to a mental

hospital shortly after being served with the complaint. He further

asserted that he had not properly responded to Livingston's

discovery requests because he "had forgotten about the Summons

and Complaint served months earlier” and had "made a mistake of

assuming there had been no initial service.” In his motion to

reconsider, Mr. Migliore argued for the first time that the credit

account at issue was not his. He asserted that the debt might belong

to his father, who shares his same name, but he offered no evidence

to support that assertion. Following briefing, the district court held

a hearing and denied Mr. Migliore's motion to reconsider.

¶7 For nearly two years, the status of the case remained

unchanged. Then Mr. Migliore filed through counsel a renewed

motion to set aside void judgment pursuant to rule 60(b) of the Utah

Rules of Civil Procedure. In his renewed motion, Mr. Migliore

argued that the district court's summary judgment order was void

because Mr. Migliore had been denied due process of law.

Specifically, Mr. Migliore argued that he was denied notice and an

opportunity (1) to respond to Livingston's complaint, (2) to respond

to all of Livingston's arguments in favor of summary judgment, (3)

to rectify the deficiencies in his responses to Livingston's requests

for admission, and (4) to be heard on whether his discovery lapses

were willful. Finally, Mr. Migliore argued that he had been denied

due process because there was no evidence to support summary

judgment in Livingston's favor.

¶8 The district court denied the renewed motion. Specifically,

the district court noted that Mr. Migliore had failed to demonstrate

why his renewed motion was timely under rule 60(b), which

requires parties to file within a "reasonable time . . . after the

judgment, order, or proceeding was entered.” UTAH R. CIV. P. 60(b).

The district court also noted that it reviewed the prior summary

judgment proceedings and found that Mr. Migliore had received

notice of Livingston's claims and had several opportunities to

present evidence to counter those claims. The court ultimately

concluded that Mr. Migliore had "failed to present any basis to

preclude granting summary judgment in [Livingston's] favor” and

denied the renewed rule 60(b) motion.

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Opinion of the Court

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¶9 Not only did the district court find that the renewed

motion was "without any merit,” it admonished Mr. Migliore for

filing it, characterizing it as "frivolous.” Then, on its own initiative,

the court issued an order to show cause as to why Mr. Migliore

should not be subject to rule 11 sanctions. See id. 11(c). Finally, the

court admonished both Mr. Migliore and his counsel for "their

overly aggressive tactics in dealing with the Court and its

personnel,” referring to an altercation that occurred when Mr.

Migliore and his counsel "verbally accosted” a clerk due to

difficulties they were having with the court's e-filing system. Mr.

Migliore did not appeal from that order.

¶10 Two weeks after entry of the district court's combined

order, Livingston moved for attorney fees pursuant to section 78B-5-

825 of the Utah Code, which directs the court to "award reasonable

attorney fees to a prevailing party if the court determines that the

action . . . was without merit and not brought or asserted in good

faith.” Mr. Migliore responded to the district court's order to show

cause and opposed Livingston's motion for attorney fees. The

district court held a hearing on Livingston's motion for fees in which

it found that Livingston was entitled to a fee award. Specifically, it

found that Livingston was the prevailing party, that Mr. Migliore's

renewed rule 60(b) motion was without merit, and that the motion

was brought with the goal of hindering or delaying Livingston's

efforts to collect on the judgment. The district court thereafter issued

its final written order granting Livingston's request for attorney fees.

Contemporaneously, it issued a memorandum decision

withdrawing its order to show cause concerning the rule 11

sanctions, reasoning that the award of fees pursuant to section 78B-5-

825 was "a sufficient sanction.”

¶11 Mr. Migliore filed a notice of appeal that purported to

challenge the original grant of summary judgment, the denial of the

renewed rule 60(b) motion, and the order granting Livingston an

award of attorney fees. The notice was filed more than thirty days

from the original summary judgment order and the denial of the

renewed rule 60(b) motion, but within thirty days from the order

awarding fees.

¶12 The court of appeals issued a per curiam opinion in which

it dismissed both the appeal of the original summary judgment

order and the order denying the renewed rule 60(b) motion on the

basis that it lacked jurisdiction. Livingston Fin., LLC v. Migliore, 2013

UT App 58, ¶ 1, 299 P.3d 620. It held that both the original summary

judgment order and the order denying the renewed rule 60(b)

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Opinion of the Court

In his reply brief to this court, 1 Mr. Migliore abandoned his

appeal of the original summary judgment order. Thus, he "appeals

only the . . . order denying his [renewed r]ule 60(b) motion, and the

. . . attorney fees order.”

5

motion were final appealable orders and that Mr. Migliore had not

filed a timely notice of appeal pursuant to rule 4 of the Utah Rules

of Appellate Procedure. Id. ¶¶ 2–3. In so doing, the court of appeals

rejected Mr. Migliore's contention that the order denying the

renewed rule 60(b) motion did not become final until entry of

Livingston's attorney fee award. It concluded that the initial order

"fully resolved the motion then before the court” and that

"Livingston sought its attorney fees in a subsequent motion.” Id.

¶ 3.

¶13 Because it concluded that it lacked jurisdiction to consider

Mr. Migliore's challenge to the original summary judgment order

and the order denying the renewed rule 60(b) motion, the court of

appeals addressed only the merits of his challenge to the award of

attorney fees. It held that the district court's factual findings were

sufficient to support the award of fees. Specifically, it held that a

meritless motion filed nearly two years after issuance of the

judgment was implicitly brought for the purpose of "further

delay[ing] Livingston's ongoing efforts to collect on the judgment.”

Id. ¶ 9. Accordingly, the court of appeals affirmed Livingston's

award of fees under section 78B-5-825 of the Utah Code and further

awarded Livingston its fees and costs incurred on appeal. Id.

¶14 We granted certiorari on two questions: (1) whether the

court of appeals erred in determining it lacked jurisdiction over the

appeal of the summary judgment order1 and renewed rule 60(b)

motion and (2) whether the court of appeals erred in affirming the

district court's award of attorney fees. We have jurisdiction

pursuant to section 78A-3-102(3)(a) of the Utah Code.

STANDARD OF REVIEW

¶15 "On certiorari, we review for correctness the decision of the

court of appeals, not the decision of the trial court.” Ramsay v. Kane

Cnty. Human Res. Special Serv. Dist., 2014 UT 5, ¶ 7, 322 P.3d 1163

(internal quotation marks omitted). "The correctness of the court of

appeals' decision turns, in part, on whether it accurately reviewed

the trial court's decision under the appropriate standard of review.”

State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096. "Whether appellate

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6

jurisdiction exists is a question of law which we review for

correctness, giving no deference to the decision below.” Pledger v.

Gillespie, 1999 UT 54, ¶ 16, 982 P.2d 572.

ANALYSIS

I. THE COURT OF APPEALS HAD JURISDICTION TO REVIEW

THE DISTRICT COURT'S DENIAL OF MR. MIGLIORE'S

RENEWED RULE 60(b) MOTION

¶16 Mr. Migliore argues that the court of appeals erred when

it determined that it lacked jurisdiction to consider the district

court's order denying Mr. Migliore's renewed rule 60(b) motion.

Though Mr. Migliore did not file a notice of appeal within thirty

days of entry of that order, he maintains that the order was not a

final appealable order because it did not fully resolve the issues

between the parties. Specifically, Mr. Migliore argues that it was not

final because it did not dispose of Livingston's request for attorney

fees or the order to show cause as to potential rule 11 sanctions.

Accordingly, the first issue we must consider is whether the district

court's order denying the renewed rule 60(b) motion was final and

appealable.

¶17 Utah appellate courts do not "have jurisdiction over an

appeal unless it is taken from a final judgment.” Loffredo v. Holt,

2001 UT 97, ¶ 10, 37 P.3d 1070; see also UTAH R. APP. P. 3(a) ("An

appeal may be taken from . . . all final orders and judgments . . . .”).

"For an order to constitute a final judgment, it must end the

controversy between the litigants.” Loffredo, 2001 UT 97, ¶ 12; see also

Bradbury v. Valencia, 2000 UT 50, ¶ 10, 5 P.3d 649 ("To be final, the

trial court's order . . . must dispose of all . . . claims to an action.”).

"It is well settled that an order denying relief pursuant to Rule 60(b)

is generally a final appealable order.” Mascaro v. Davis, 741 P.2d 938,

946 (Utah 1987). Thus, the district court's order would generally be

appealable. But the question before us is whether the district court's

sua sponte order to show cause or Livingston's subsequent request

for attorney fees pursuant to section 78B-5-825 of the Utah Code

rendered the order nonfinal and therefore not appealable.

¶18 For the reasons discussed below, we hold that the district

court's sua sponte order to show cause precluded entry of final

judgment until the court resolved it. As a result, the order denying

the renewed rule 60(b) motion was not final and appealable until the

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Opinion of the Court

2 Because we hold that the district court's order to show cause

precluded entry of final judgment on the order denying the renewed

rule 60(b) motion, Livingston's subsequent request for attorney fees

is best characterized as a prejudgment request for fees. And our

precedent establishes that a prejudgment request for attorney fees

must be resolved prior to the entry of a final appealable order. See

Loffredo v. Holt, 2001 UT 97, ¶ 13, 37 P.3d 1070.

3 A judgment that is final and appealable when entered does not

lose that status as a result of a subsequently filed motion for rule 11

sanctions.

7

district court finally resolved the pending order to show cause.2

¶19 We previously adopted a rule that a judgment is not final

until resolution of any outstanding requests for attorney fees.

ProMax Dev. Corp. v. Raile, 2000 UT 4, ¶ 12, 998 P.2d 254. We

reasoned that judicial economy is best served "by enabl[ing] an

appellant to appeal all issues, including an award of attorney fees,

in a single notice of appeal.” Id. ¶¶ 14–15 (alteration in original)

(internal quotation marks omitted). In so reasoning, we expressly

rejected the contrary federal rule, under which a decision on the

merits of the case is final regardless of any pending request for

attorney fees. Id. ¶ 13 (rejecting the federal rule announced in

Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988)).

¶20 Mr. Migliore urges us to extend the ProMax rule to the

context of pending rule 11 sanctions contemplated in an otherwise

final order. He argues that the logic underlying the ProMax rule is

equally applicable to rule 11 sanctions in this context. We agree. A

party appealing a judgment on the merits is also likely to appeal any

rule 11 sanctions imposed by the court. Thus, requiring a party to

separately appeal the imposition of rule 11 sanctions would

necessitate piecemeal appeals, a needlessly wasteful endeavor.

Accordingly, we extend ProMax to apply to requests for rule 11

sanctions raised before or contemporaneously with the entry of a

final appealable judgment.3

¶21 We are aware that we have previously referred to rule 11

sanctions as a collateral matter that have "no relationship to the

disposition of the case on its merits.” Clark v. Booth, 821 P.2d 1146,

1148 (Utah 1991). In Clark, we held that the imposition of rule 11

sanctions did not affect the finality of a decree of foreclosure. Id.

Our reasoning there paralleled that of the federal courts, which hold

that the imposition of rule 11 sanctions is a collateral issue that has

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Opinion of the Court

8

no effect on the finality of a judgment on the merits. Id.; see also

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395–96 (1990) ("Like the

imposition of costs, attorney's fees, and contempt sanctions, the

imposition of a Rule 11 sanction is not a judgment on the merits of

an action. Rather, it requires the determination of a collateral

issue . . . .”). But we decided Clark prior to ProMax. In light of our

holding in ProMax, and our rejection of the federal rule in that case,

we hereby repudiate the approach taken in Clark. The ProMax rule

applies to all requests for attorney fees, including pending requests

for rule 11 sanctions, whether instigated by the court or the parties.

¶22 The district court's order denying the renewed rule 60(b)

motion was not final and appealable until the district court resolved

the pending order to show cause. Thus, we hold that the court of

appeals erred when it determined that it lacked jurisdiction to

consider the denial of Mr. Migliore's renewed rule 60(b) motion. In

the interest of judicial economy, we elect to exercise our discretion

to consider the merits, rather than remanding the case to the court

of appeals.

II. THE DISTRICT COURT CORRECTLY DENIED MR.

MIGLIORE'S RENEWED RULE 60(b) MOTION

¶23 The basis of Mr. Migliore's renewed rule 60(b) motion was

that he was denied due process of law in the original summary

judgment proceedings and that the judgment was therefore void.

Specifically, Mr. Migliore argued that he was deprived of notice,

denied the opportunity to respond to Livingston's claims, and

denied a fair opportunity to submit evidence.

¶24 Rule 60(b)(4) of the Utah Rules of Civil Procedure allows

a party to seek relief from "a final judgment, order, or proceeding”

if "the judgment is void.” A rule 60(b) motion must normally be

brought within ninety days after the judgment was entered. See

UTAH R. CIV. P. 60(b). "But where the judgment is void . . . the time

limitations of [r]ule 60(b) have no application.” Garcia v. Garcia, 712

P.2d 288, 290 (Utah 1986) (reversing denial of rule 60(b) motion

when underlying judgment was void for want of service); see also

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 11 FEDERAL PRACTICE

AND PROCEDURE § 2862 (3d ed. 2012) ("[T]here is no time limit on an

attack on a judgment as void.”). Thus, though Mr. Migliore's

renewed rule 60(b) motion was brought nearly two years after entry

of summary judgment, it is not time barred.

¶25 Normally, the district court's denial of a rule 60(b) motion

is reviewed for abuse of discretion. Johnson v. Johnson, 2010 UT 28,

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9

¶ 6, 234 P.3d 1100. But the district court has no discretion with

respect to a void judgment because the determination that a

judgment is void implicates the court's jurisdiction. See Jackson

Const. Co. v. Marrs, 2004 UT 89, ¶ 8, 100 P.3d 1211. Accordingly, "the

propriety of [the] jurisdictional determination, and hence the

decision not to vacate, becomes a question of law upon which we do

not defer to the district court.” Johnson, 2010 UT 28, ¶ 6 (internal

quotation marks omitted); accord Hukill v. Okla. Native Am. Domestic

Violence Coal., 542 F.3d 794, 797 (10th Cir. 2008) ("Where [r]ule

60(b)(4) is properly invoked, relief is not a discretionary matter; it is

mandatory and, accordingly, our review is de novo.” (citation

omitted) (internal quotation marks omitted)).

¶26 Turning to the merits of the rule 60(b) denial, we narrowly

construe the concept of a void judgment in the interest of finality.

Brimhall v. Mecham, 494 P.2d 525, 526 (Utah 1972). "A judgment is

not void merely because it is erroneous.” WRIGHT & MILLER, supra,

§ 2862. Rather, a "judgment is void under rule 60(b)(4) if the court

that rendered it lacked jurisdiction of the subject matter or parties,

or the judgment was entered without the notice required by due

process.” Judson v. Wheeler RV Las Vegas, L.L.C., 2012 UT 6, ¶ 18, 270

P.3d 456 (internal quotation marks omitted). Mr. Migliore did not

challenge the district court's jurisdiction. As such, his renewed rule

60(b)(4) challenge relied solely on the argument that summary

judgment was rendered in violation of his due process rights.

¶27 "Due process requires notice reasonably calculated, under

all the circumstances, to apprise interested parties of the pendency

of the action and afford them an opportunity to present their

objections.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,

272 (2010) (internal quotation marks omitted) (holding that due

process was satisfied when a party had actual notice, despite not

being properly served with summons and complaint). The record

demonstrates that Mr. Migliore had actual notice of all of

Livingston's claims and ample opportunity to submit evidence in his

defense. Mr. Migliore attached a copy of the summons and

complaint to his motion for a more definite statement,

demonstrating that he was on notice of Livingston's claims.

Moreover, Mr. Migliore received Livingston's discovery requests.

He responded to the requests for admission by denying them on the

basis that he lacked the information to answer. As to Livingston's

interrogatories and requests for production, Mr. Migliore stated in

his first rule 60(b) motion that he simply "forgot” to respond because

the summons and complaint had been served "months earlier” and

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Opinion of the Court

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he had "made a mistake of assuming there had been no initial

service.” Thus, the evidence on the record clearly indicates that Mr.

Migliore had notice of Livingston's claims and an opportunity to

respond.

¶28 It was only after the district court entered summary

judgment that Mr. Migliore raised the possibility that the credit

account at issue might belong to his father. And although Mr.

Migliore attempted to excuse his failure to participate in discovery

by asserting that he had been hospitalized shortly after being served

with Livingston's complaint, there is no evidence in the record that

Mr. Migliore contacted the district court to request an extension or

that his illness was so severe that he was unable to do so. See Black's

Title, Inc. v. Utah State Ins. Dep't, 1999 UT App 330, ¶ 10, 991 P.2d 607

(noting that a party cannot demonstrate excusable neglect under rule

60(b) merely by claiming illness).

¶29 In summary, Mr. Migliore's renewed rule 60(b) challenge

merely reflects his disagreement with the underlying merits of the

original summary judgment determination. He provides nothing to

support his claim that the underlying judgment was void. Rule

60(b) does not provide an alternative vehicle for challenging the

merits of a judgment that are more properly addressed through

normal appellate review. Rather, a judgment is void only if the

rendering court lacked authority. And there is no basis here for

concluding that Mr. Migliore was deprived of his due process rights

to notice of, or an opportunity to respond to, Livingston's claims.

Accordingly, we affirm the district court's denial of Mr. Migliore's

renewed rule 60(b) motion. We now turn to Mr. Migliore's claim

that the court of appeals erred when it affirmed the district court's

award of attorney fees pursuant to section 78B-5-825 of the Utah

Code.

III. THE COURT OF APPEALS CORRECTLY AFFIRMED THE

DISTRICT COURT'S AWARD OF FEES

¶30 When reviewing an award of attorney fees under section

78B-5-825 of the Utah Code, we apply a statutorily mandated, twopart

test. Matthews v. Olympus Const., L.C. (In re Olympus Const.,

L.C.), 2009 UT 29, ¶ 29, 215 P.3d 129. Section 78B-5-825 provides that

"[i]n civil actions, the court shall award reasonable attorney fees to

a prevailing party if the court determines that the action or defense

to the action was without merit and not brought or asserted in good

faith.” "Whether a claim is without merit is a question of law and

we review it for correctness.” In re Discipline of Sonnenreich, 2004 UT

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Opinion of the Court

The court of appeals has previously 4 held that courts may not

award attorney fees pursuant to section 78B-5-825 on the basis of a

frivolous motion. Dahl v. Harrison, 2011 UT App 389, ¶ 42, 265 P.3d

139. Rather, it has reasoned that the "plain language of section

78B-5-825 expressly limits the award of attorney fees to situations

where a party prevails with regard to an 'action.'” Id. (noting that

"'action' is a term of art, basically meaning a lawsuit, and a

motion—an optional part of a lawsuit—clearly does not equate to an

'action'”). Though this holding would seem to preclude an award

of statutory fees for the filing of a frivolous rule 60(b) motion, Mr.

Migliore did not raise such an argument below. Neither did he raise

a plain error claim here. See State v. Peterson, 881 P.2d 965, 968 (Utah

Ct. App. 1994) (refusing to consider a claim when party did not

argue plain error). Accordingly, we express no opinion with regard

to the applicability of section 78B-5-825 to frivolous motions.

11

3, ¶ 45, 86 P.3d 712 (internal quotation marks omitted) (reviewing an

award of fees under the precursor to section 78B-5-825). Whether a

claim was brought in good faith is a question of fact that we review

for clear error. Id. The court of appeals affirmed the award of fees

because it concluded that Mr. Migliore's renewed rule 60(b) motion

was without merit and brought in bad faith. We agree and affirm.4

A. Mr. Migliore's Renewed Rule 60(b) Motion Was Without Merit

¶31 "To determine whether a claim is without merit, we look

to whether it was frivolous or of little weight or importance having

no basis in law or fact.” Matthews, 2009 UT 29, ¶ 30 (internal

quotation marks omitted). As discussed above, the basis of Mr.

Migliore's renewed rule 60(b) motion was that the original summary

judgment order was void for lack of due process. But Mr. Migliore

had actual notice of Livingston's claims against him and ample

opportunity to present evidence in his defense. See supra ¶¶ 27–29.

Mr. Migliore's renewed rule 60(b) motion reflects nothing more than

his disagreement with the propriety of the original summary

judgment ruling. And we have already established that mistakes in

the underlying proceedings are insufficient to render a judgment

void. Because we conclude that there was no factual basis upon

which Mr. Migliore could claim that he lacked notice or an

opportunity to be heard, we affirm the district court's conclusion

that his renewed rule 60(b) motion was without merit.

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B. Mr. Migliore's Claim Was Not Brought in Good Faith

¶32 The second requirement for a statutory award of attorney

fees is that the action was brought in bad faith. UTAH CODE § 78B-5-

825; In re Discipline of Sonnenreich, 2004 UT 3, ¶ 48. A finding of bad

faith requires "a factual determination of a party's subjective intent.”

Valcarce v. Fitzgerald, 961 P.2d 305, 315–16 (Utah 1998). To find that

a party acted in bad faith, the court must conclude that at least one

of the following factors existed:

(i) The party lacked an honest belief in the propriety of

the activities in question; (ii) the party intended to take

unconscionable advantage of others; or (iii) the party

intended to or acted with the knowledge that the

activities in question would hinder, delay, or defraud

others.

Id. at 316. We will uphold a district court's factual determination of

bad faith "if there is sufficient evidence in the record to support a

finding that at least one of these three factors applies.” Still Standing

Stable, LLC v. Allen, 2005 UT 46, ¶ 13, 122 P.3d 556.

¶33 The district court found that Mr. Migliore's renewed rule

60(b) motion "was brought to hinder or delay [Livingston] in the

efforts to collect” on its judgment. Mr. Migliore argues that the

district court failed to make sufficient factual findings on the record

to support this conclusion. But we do not require specific factual

findings to support an award of fees under section 78B-5-825. See

Valcarce, 961 P.2d at 316. In Valcarce, the district court found that the

claim was pursued for "no other apparent reason than to harass [the

opposing party] and/or to drive up the costs of litigation.” Id.

(internal quotation marks omitted). Though the district court failed

to make further factual findings, we affirmed its award of fees

because there was evidence from which the court could have

reasonably come to its conclusion. Id.

¶34 Similarly, in this case, there was evidence in the record

from which the district court could have concluded that Mr. Migliore

brought his renewed rule 60(b) motion for the purpose of hindering

Livingston's efforts to collect on its judgment. Mr. Migliore waited

nearly two years to bring a collateral challenge to a judgment he

never directly appealed. And the renewed rule 60(b) motion lacked

any legal or factual basis. See supra ¶ 31. We agree with the court of

appeals that an "obvious result of filing the renewed motion was to

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further delay Livingston's ongoing efforts to collect on the

judgment.” Livingston Fin., LLC v. Migliore, 2013 UT App 58, ¶ 9, 299

P.3d 620.

¶35 Mr. Migliore also suggests that the district court could not

infer that he brought the renewed motion to delay Livingston's

collection efforts because Livingston's efforts were not, in fact,

delayed. In particular, Mr. Migliore notes that Livingston continued

to pursue collection, even after the renewed motion was filed. But

Mr. Migliore's argument misstates the applicable standard. The

relevant inquiry concerns the moving party's subjective intent to

delay or hinder, not whether the party succeeded in doing so. See

Valcarce, 961 P.2d at 315–16. The district court could have

reasonably concluded that Mr. Migliore's renewed motion, filed

without legal merit and in light of Livingston's active efforts to

collect its judgment, was intended to delay those efforts.

¶36 On these facts, the district court's finding of bad faith was

not clearly erroneous. Because we agree that Mr. Migliore's

renewed rule 60(b) motion was without merit and because the

district court's factual finding of bad faith was supported by

sufficient evidence, we hold that the court of appeals correctly

affirmed the award of fees.

¶37 The court of appeals erred when it concluded that it lacked

jurisdiction to consider the denial of Mr. Migliore’s renewed rule

60(b) motion. The district court’s order to show cause as to why Mr.

Migliore should not be subject to sanctions precluded entry of a final

appealable order. Accordingly, the district court’s order did not

become final until the court resolved the order to show cause, and

Mr. Migliore’s appeal was therefore timely.

¶38 Though the court of appeals did not reach the merits of Mr.

Migliore’s challenge, in the interests of judicial economy, we exercise

our discretion and address them here. We hold that the district

court did not err when it denied Mr. Migliore’s renewed rule 60(b)

motion because there was no factual or legal basis from which to

conclude that the original summary judgment determination was

void for want of due process. We therefore conclude that the court

of appeals did not err when it affirmed the district court’s award of

attorney fees pursuant to section 78B-5-825 of the Utah Code.