Opinion
Case No. 20060448-CA.
Filed March 22, 2007. [Not For Official Publication.]
Appeal from the Fourth District, Provo Department, 020403619 The Honorable Fred D. Howard.
Aaron Raiser, Canoga Park, California, Appellant Pro Se Daniel L. Steele and David M. Kono, Salt Lake City, for Appellee.
Before Judges Greenwood, Davis, and McHugh.
MEMORANDUM DECISION
Aaron Raiser appeals from various decisions issued by the district court, including two attorney fees awards entered in favor of Brigham Young University (the University) pursuant to rule 11 of the Utah Rules of Civil Procedure, see Utah R. Civ. P. 11, and a denial of Raiser's motion to amend his complaint. We affirm.
Raiser asserts that he, rather than the University, is entitled to attorney fees and costs under rule 11 because the University's arguments regarding removal were not warranted by existing law. At the same time, Raiser argues that the district court erred when it imposed fees upon him after finding no violation under rule 11.
"Review of rule 11 determinations requires different standards of review depending on the issue considered." K.F.K. v. T.W., 2005 UT App 85, ¶ 4, 110 P.3d 162 (citing Griffith v. Griffith, 1999 UT 78, ¶ 10, 985 P.2d 255). As set forth in K.F.K. v. T.W.:
The trial court's findings of fact are reviewed under a clearly erroneous standard; its ultimate conclusion that rule 11 was [or was not] violated and any subsidiary legal conclusions are reviewed under a correction of error standard; and its determination as to the type and amount of sanctions to be imposed is reviewed under an abuse of discretion standard. Furthermore, to warrant rule 11 sanctions, factual errors or misstatements must be significant.
Id. (quotations and citations omitted).
Here, the district court discussed the underlying procedural details and determined that the University's decision to remove this case to federal court "was not done with an improper motive or . . . without a basis in law. Though the federal court reached a different conclusion than [the University] or declined to assert its supplemental jurisdiction does [not] support a conclusion that [the University] violated [r]ule 11." Raiser fails to show that the district court's findings are clearly erroneous, and review of the record supports the findings. In addition, we have determined that the district court's conclusion that the University did not violate rule 11 is correct.
Furthermore, "under the plain language of rule 11, a court may award attorney fees to the prevailing party." K.F.K., 2005 UT App 85 at ¶ 3;see also Utah R. Civ. P. 11(c)(1)(A) ("If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney fees incurred in presenting or opposing the motion."). The University successfully opposed each motion for sanctions and was awarded its fees as the prevailing party. "There is no subsidiary finding of violation of rule 11 required to award attorney fees incurred in opposing a rule 11 motion." K.F.K., 2005 UT App 85 at ¶ 3. Thus, the district court did not err in awarding attorney fees to the University as the prevailing party on each of Raiser's motions for rule 11 sanctions.
Next, Raiser argues that the bench warrant that issued in this case was "improperly obtained." This issue is inadequately briefed. "It is well established that a reviewing court will not address arguments that are not adequately briefed." State v. Thomas, 961 P.2d 299, 304 (Utah 1998). Rule 24(a)(9) of the Utah Rules of Appellate Procedure states that the argument in the appellant's brief "shall contain the contentions and reasons of the appellant with respect to the issues presented, including the grounds for reviewing any issue not preserved in the trial court, with citations to the authorities, statutes, and parts of the record relied on." Utah R. App. P. 24(a)(9). Raiser's brief fails to comply with rule 24(a)(9) in regard to his bench warrant argument. In any event, Raiser has failed to show that the bench warrant was obtained improperly. The district court determined that rule 64(c)(2) of the Utah Rules of Civil Procedure "provides a basis in law for holding a post-judgment hearing to ascertain the assets of a judgment debtor." Raiser sets forth no argument that this ruling was erroneous.
Instead, Raiser sets forth an independent argument that the bench warrant was unconstitutional because it punished him for his impoverished financial status. As the University notes, the Utah Supreme Court held in Thomas v. Thomas, 569 P.2d 1119 (Utah 1977), that while
the mere failure to pay a debt or meet an obligation is not punishable by imprisonment[,] . . . . [W]hen a proper order or judgment has been made, one who stands in wilful defiance or disobedience thereof may be found in contempt of court and punished by imprisonment. This is a necessary power of the court in order to enforce its orders and judgments.
Id. at 1121. Because Raiser's refusal to participate in supplemental proceedings, rather than his financial status, caused the district court to issue a bench warrant, Raiser's constitutional concerns are unfounded.
Last, Raiser argues that the district court erred in denying his motion for leave to amend. This court reviews a district court's denial of a motion to amend for an abuse of discretion, see Kelly v. Hard Money Funding, Inc., 2004 UT App 44, ¶ 14, 87 P.3d 734, reversing only when "the decision exceeds the limits of reasonability," Neztsosie v. Meyer, 883 P.2d 920, 922 (Utah 1994) (quotations and citations omitted).
Rule 15(a) of the Utah Rules of Civil Procedure provides:
A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Utah R. Civ. P. 15(a). The motion at issue here was Raiser's Motion to Amend Second Amended Complaint, and thus was not Raiser's first request to amend. The district court ruled that Raiser failed to give any explanation as to why a third amended complaint was necessary, particularly when it was filed five years after the acts complained of. Thus, the district court denied this latest attempt to amend Raiser's complaint.
"[A] litigant seeking leave to amend must file a motion that shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought." Coroles v. Sabey, 2003 UT App 339, ¶ 43, 79 P.3d 974 (quotations and citations omitted). Moreover, "regardless of the procedural posture of the case, motions to amend have typically been deemed untimely when they were filed several years into the litigation." Kelly, 2004 UT App 44 at ¶ 30. In such cases
the ongoing passage of time makes it increasingly difficult for the nonmoving party to effectively respond to the new allegations or claims. Parties in such circumstances are often hindered by witnesses who have since moved or died, by their shaky memories and recollections, or by documents which have since been lost or destroyed.
Id. Raiser's motion to amend not only failed to state any grounds therefor, but was filed long after his initial complaint and approximately five months after the order of remand was entered. Accordingly, Raiser fails to show that the district court abused its discretion when it denied his motion to amend.
We affirm.
Pamela T. Greenwood, Associate Presiding Judge
James Z. Davis, Judge
Carolyn B. McHugh, Judge