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Ross v. Barnett

Court of Appeals of Utah

September 20, 2018

Yan Ross and Randi Wagner, Appellees,
Michael Barnett, Appellant.

          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 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.


         ¶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 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 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, 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 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 ...

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