In re the Guardianship of Matthews

2026 UT App 79

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE GUARDIANSHIP OF
DAVID HAROLD MATTHEWS

TAMI JEAN MATTHEWS,
Appellant,
v.
DAVID TODD MATTHEWS,
Appellee.

Opinion
No. 20240822-CA
Filed May 14, 2026

Third District Court, Salt Lake Department
The Honorable Kristine Johnson
No. 223900074

Russell Yauney, Attorney for Appellant
Zenock Bishop and Gregory R. Misener, Attorneys
for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

LUTHY, Judge:

¶1 Siblings David Todd Matthews (Todd) 1 and Tina Marie
Matthews Forsgren were appointed as guardians of their father,
David Harold Matthews (Father). Tami Jean Matthews, another
sibling, subsequently filed a petition seeking, among other things,
to remove Todd and Tina as guardians. Todd and Tina filed a

1. As is our usual practice, because the parties and their siblings
share a surname, we use their given names, with no disrespect
intended by the apparent informality.
In re Guardianship of Matthews

motion for summary judgment, which the district court granted.
More than fourteen days later, Todd and Tina filed a motion
requesting attorney fees on the basis that Tami’s petition had been
“without merit.” Tami opposed the request for attorney fees. The
court determined that Tami’s petition had been “without merit,”
and it therefore granted Todd and Tina’s request for attorney fees.
The court acknowledged that the motion for attorney fees had
been untimely filed, but it reasoned that Tami had failed to strictly
comply with rule 73 of the Utah Rules of Civil Procedure “by
filing an ‘Opposition’ rather than an ‘Objection’” and, therefore,
that it would be inequitable to enforce the timing requirement for
attorney fees motions against Todd and Tina.

¶2 Tami appeals the district court’s grant of summary
judgment and its award of attorney fees. Because Father passed
away during the pendency of this appeal, however, we have
determined that the issues involving the summary judgment
order are moot and only the attorney fees issue remains in Tami’s
appeal. But because Todd and Tina contend that we lack
jurisdiction to consider Tami’s appeal due to Tami’s failure to
include Tina’s name on the notice of appeal or in her principal
brief, we must also address that jurisdictional issue. On that issue,
we conclude that we have jurisdiction. On the attorney fees issue,
we first conclude that the court erred in determining that Tami
had failed to strictly comply with rule 73. We further conclude
that, even if the court still acted within its discretion by not strictly
enforcing the deadline for Todd and Tina to file their request for
attorney fees, it erred in its determination that Tami’s petition was
“without merit.” We therefore reverse the award of attorney fees.

BACKGROUND

The Guardianship and Subsequent Litigation

¶3 Todd and Tina sought to be appointed as guardians of
Father, who was incapacitated. Tami objected to their
appointment. The court held an evidentiary hearing on the

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matter, and subsequently, in an April 2023 order (the Order), it
appointed Todd and Tina (the Guardians) as guardians and
imposed restrictions on Tami’s visits with Father. Specifically, the
court stated, “Tami may have regular uninterrupted visits for a
cumulative total of ninety (90) minutes a week, so long as the
visits do not interfere with [Father’s] appointments with medical
providers or his mealtimes,” and, “Tami may visit [Father] every
third Sunday for three (3) hours.”

¶4 In November 2023, Tami filed an “Ex Parte Verified Motion
to Enforce and Clarify/Modify Order and for Sanctions/Expedited
Hearing Requested” (the Motion). Therein, she alleged that the
Guardians had denied her visitation with Father for several
months and had in other respects violated the terms of the Order.
Tami asked the court to “enforce, clarify and/or modify” various
parts of the Order.

¶5 In February 2024, before a hearing on the Motion had been
held, Tami filed a “Petition to Remove Guardians, Appoint
Temporary Guardian and Conservator, Determine Level of Care,
Rescind Order Restricting Visitation, and for Sanctions” (the
Petition). In the Petition, she asserted that the Guardians had
continued to deny her the ability to visit Father, against Father’s
wishes. Tami asked the court to, among other things, “appoint a
[c]ourt [v]isitor to investigate [Father’s] desires relating to
restrictions placed on his visitation rights, . . . appoint a temporary
guardian during the pendency of this matter to ensure [Father’s]
right to associate [was] protected, . . . rescind the restrictions on
[Father’s] right to associate,” remove the Guardians, and appoint
“an objective, independent guardian.”

¶6 About three weeks later, on February 29, 2024, the court
held an evidentiary hearing on the Motion. It subsequently issued
a ruling on the Motion, in which it stated, “While the Guardians
have acted in good faith in attempting to impose conditions upon
[Tami’s] visits with [Father], . . . those conditions are not explicitly
addressed in [the Order]. However, there is evidence that some
additional conditions are warranted for [Father’s] health and

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safety.” Accordingly, the court modified the Order to add
conditions to Tami’s visits.

¶7 The Guardians then filed a motion for summary judgment
on the Petition. The Guardians asserted, “Tami has not introduced
any new evidence that would warrant a reassessment of [Father’s]
situation. Her arguments in [the Petition] stem solely from her
dissatisfaction with [the Order] rather than any substantive
change in circumstances to [Father]. Issue preclusion bars re-
litigation of these issues.” Tami filed a memorandum opposing
the motion for summary judgment, in which she argued that the
Petition addressed “facts and circumstances that [had] occurred”
after the issuance of the Order and did not simply relitigate the
issues covered in earlier proceedings. She specifically identified—
and supported with witness declarations attached to her
memorandum—a number of alleged facts and circumstances that
had occurred after the court ruled on the Motion, including that
Father was “suffering emotionally from his limited ability to
communicate with Tami”; that the Guardians had “continued to
fail to keep Tami apprised of medical issues of significance”; that
the Guardians had continued to deny Tami visits with Father “for
petty and disingenuous reasons,” such as a claimed
misunderstanding of Tami’s right to visit Father every “third
Sunday”; and that the Guardians had “moved [Father] from his
residence without proper notice to Tami or the [c]ourt.” Tami
averred that “[w]itnesses were present at the [February 29, 2024]
hearing” who were prepared to offer testimony in support of her
new allegations but that those witnesses were not allowed to
testify “due to the limited scope of [that] hearing.” And she
asserted that there were material facts in dispute regarding these
allegations that rendered summary judgment inappropriate.

¶8 On June 27, 2024, the district court issued an order granting
the Guardians’ motion for summary judgment on the Petition. In
support of its order, the court found that neither the requirements
for appointing a court visitor nor those for removing a guardian
had been met. The court also stated that it would entertain a

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motion by the Guardians for an award of attorney fees associated
with their bringing the motion for summary judgment.

The Guardians’ Motion for Attorney Fees

¶9 On July 15, 2024, eighteen days after issuance of the court’s
summary judgment order, the Guardians filed a motion for
attorney fees. In that motion, the Guardians noted that Utah Code
section 75-5-303(2)(c) provides that in guardianship proceedings,
“[i]f the court determines that the petition is without merit, the
attorney fees and court costs shall be paid by the person filing the
petition.” They then asserted that the Petition “was without
merit,” arguing as follows:

[The] Petition was essentially a compilation of
[Tami’s] grievances regarding how the [c]ourt
previously handled the decision to appoint the
Guardians. Despite having ample opportunity,
Tami did not appeal the [Order], nor did she pursue
any procedurally appropriate methods to address
her concerns. Instead, she opted to try to re-litigate
issues that had already been resolved. [The] Petition
lacked substantive merit as it was essentially a
motion to reconsider the [c]ourt’s previous ruling.

¶10 Tami filed a “Memorandum Opposing Motion for
Attorney Fees” fourteen days later, on July 29, 2024. In it, she said
she “oppose[d] the [G]uardians’ motion for attorney fees”
because (1) the Guardians’ motion was untimely under rule 73 of
the Utah Rules of Civil Procedure, which required a party to seek
attorney fees “no later than 14 days after the judgment is entered”
and the Guardians’ motion fell outside that deadline and (2) the
Petition was not without merit and, thus, the Guardians did not
qualify for an award of fees anyway. Tami contended that the
Petition was based on facts and legal arguments that went beyond
what had been at issue in the Motion; that in addition to seeking
removal of the Guardians, the Petition also requested the
appointment of a court visitor, as permitted by statute; that the

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Petition sought termination of the restrictions on Tami’s visits
with Father—again as permitted by statute—based on new
witness testimony; and that the Petition addressed the matter of
Father’s “right to visit with his . . . loved ones” and therefore was
“not a matter of ‘little importance.’”

¶11 The court issued an order on the Guardians’ request for
attorney fees in October 2024. Regarding the timeliness of the
Guardians’ motion, the court acknowledged that it had been filed
outside rule 73’s deadline. But the court decided not to enforce
that deadline, explaining as follows:

The Guardians argue that the delay was due to
illness and the 4th of July holiday, and that [r]ule 61
[of the Utah Rules of Civil Procedure] coupled with
the policy recognized by the Utah Supreme Court
“in favor of deciding cases on their merits rather
than on procedural technicalities” (Richards v. Baum,
914 P.2d 719, 723 (Utah 1996) (Stewart, J.,
dissenting)), weigh in favor of permitting the
[motion for attorney fees].

While the authority cited by the Guardians is
persuasive, the [c]ourt notes that, if [r]ule 61
routinely was relied upon to excuse untimely
filings[,] then the various deadlines set forth in the
[r]ules would cease to have any effect. Moreover,
the Guardians easily could have sought an
extension of the 14-day deadline, but did not do so.
However, the Guardians also note that [Tami]
technically failed to comply with the [r]ule by filing
an “Opposition” rather than an “Objection.” Nor
does [Tami] raise any arguments regarding the
amount of the fees claimed. The [c]ourt finds that it
would not be equitable to strictly enforce [r]ule 73
against the Guardians, but not against [Tami].

20240822-CA 6 2026 UT App 79
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The court then determined that the Petition was without merit,
stating,

For the reasons set forth in [the court’s June 27, 2024
order granting the Guardians’ summary judgment
motion], the [c]ourt finds that the Petition was
without merit pursuant to Utah Code [section] 75-5-
303(2)(c). [Tami] attempted to re-litigate the
[c]ourt’s [initial] guardianship decision [set forth in
the Order], but [she] failed to file an appeal of that
decision. Moreover, while she objected to decisions
made by the Guardians with respect to her visits
with [Father], she adduced no evidence that the
Guardians violated [the Order], or that they
breached their obligation to ensure [Father’s] health
and safety.

Accordingly, the court granted the Guardians’ request for
attorney fees.

The Appeal

¶12 Tami filed a timely notice of appeal and an amended notice
of appeal. The caption of the notice of appeal did not identify the
appellant or the appellees; instead, it stated simply, “IN THE
MATTER OF THE GUARDIANSHIP OF DAVID HAROLD
MATTHEWS.” The amended notice of appeal contained a caption
listing Tami as the appellant and only Todd as the appellee.
Neither the notice of appeal nor the amended notice of appeal
included Tina’s name in the caption, in the text of the notice, or in
the attached certificate of service. The certificates of service each
stated that the notice to which it was attached had been served via
electronic filing on Zenock Bishop, who was counsel of record for
the Guardians (although that fact was not expressly stated on the
certificates of service). The caption of Tami’s principal brief
likewise listed Tami as the appellant and only Todd as the
appellee. Tami’s reply brief’s caption listed “DAVID TODD

20240822-CA 7 2026 UT App 79
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MATTHEWS, ET AL.” as the “Appellees,” and its text expressly
identified Tina as an appellee.

ISSUES AND STANDARDS OF REVIEW

¶13 We first consider the Guardians’ argument that Tami’s
appeal is jurisdictionally barred because Tami did not name Tina
as a party on the notice of appeal or in her principal brief. “The
issue of subject matter jurisdiction is a threshold issue, which can
be raised at any time and must be addressed before the merits of
other claims. Therefore, we must determine whether we have
subject matter jurisdiction before reaching the merits of [Tami’s]
claims on appeal. Whether this court has jurisdiction to hear an
appeal is a question of law.” Pearson v. South Jordan Emp. Appeals
Board, 2009 UT App 204, ¶ 8, 216 P.3d 996 (cleaned up).

¶14 Because we conclude that we have jurisdiction, we also
consider the merits of Tami’s appeal. However, because Father
has passed away, the only remaining issue in Tami’s appeal is
whether the district court erred in awarding attorney fees to the
Guardians. Tami contends that the award was improper because
the Guardians’ motion was untimely. This timeliness argument
requires us to interpret the relevant rule of civil procedure. “[W]e
review a district court’s interpretation and application of our rules
of civil procedure for correctness.” Sanders v. Sanders, 2021 UT
App 122, ¶ 4, 502 P.3d 1230. Tami also asserts that the district
court erred in determining that the Petition was meritless under
Utah Code section 75-5-303(2)(c) and, thus, that the fee award was
appropriate. When a “without merit” determination under Utah
Code section 78B-5-825(1), Utah’s general “bad-faith attorney fees
statute,” is reviewed on appeal, the “‘without merit’
determination is a question of law that we review for correctness.”
McFarland v. McFarland, 2024 UT App 31, ¶¶ 9, 12, 547 P.3d 204
(cleaned up). We hold that a “without merit” determination under
section 75-5-303(2)(c)’s attorney fees provision is likewise a
question of law, which we review for correctness.

20240822-CA 8 2026 UT App 79
In re Guardianship of Matthews

ANALYSIS

I. Jurisdiction

¶15 The Guardians assert that Tami’s appeal “is jurisdictionally
defective” because Tami “failed to include [Tina] as a party in the
Amended Notice of Appeal or anywhere else in the appellate
filings.” The Guardians contend that “[a] party whose rights are
directly impacted by the judgment must be included for the
appellate court to exercise jurisdiction over the appeal.” To
support this proposition, they rely on the portion of Trapnell
& Assocs., LLC v. Legacy Resorts, LLC, 2020 UT 44, 469 P.3d 989,
wherein our supreme court stated, “Without a valid notice of
appeal, the court of appeals lack[s] jurisdiction.” Id. ¶ 70. But that
language from Trapnell only prompts the questions of what makes
a notice of appeal defective and what constitutes a valid notice of
appeal. The remainder of Trapnell identifies one thing—which is
not present here—that can make a notice of appeal defective,
namely, when the party filing the notice of appeal “was not a
proper party when it filed its notice of appeal.” Id. ¶ 65. Trapnell
does not hold that omitting an opposing party’s name from the
notice of appeal renders the notice of appeal invalid. See id.
Therefore, while Trapnell stands for the proposition that an
appellate court lacks jurisdiction when there is no valid notice of
appeal, it does not stand for the proposition that failing to identify
one of the opposing parties on the notice of appeal makes that
notice invalid. The Guardians point to no other authority
supporting that proposition.

¶16 “Notices of appeal are governed by rule 3 of the Utah Rules
of Appellate Procedure.” Davis v. Central Utah Counseling Center,
2006 UT 52, ¶ 13, 147 P.3d 390. Rule 3(d) dictates that a “notice of
appeal must . . . (1) specify the party or parties taking the appeal;
(2) designate the judgment or order being appealed; (3) name the
court from which the appeal is taken; and (4) name the court to
which the appeal is taken.” Utah R. App. P. 3(d). Notably, this rule
does not require the appellant to specify the party or parties
against whom the appeal is taken. See id.

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¶17 Moreover, rule 3 indicates that “[a]n appellant’s failure to
take any step other than timely filing a notice of appeal does not
affect the validity of the appeal, but is ground only for the
appellate court to act as it considers appropriate,
including dismissing the appeal or other sanctions short of
dismissal, and awarding attorney fees.” Id. R. 3(a)(2). Our
supreme court has explained that “[t]he timely filing of a notice of
appeal is the act that vests the appellate court with jurisdiction
over the appeal,” Davis, 2006 UT 52, ¶ 13, and that “[i]t is clear
from the plain language of rule 3(a) that the timely filing of the
notice of appeal is the only jurisdictional step,” Gorostieta v.
Parkinson, 2000 UT 99, ¶ 19, 17 P.3d 1110. “Therefore, in cases
where an appellant timely files notice but fails in some other
respect to comply with rule 3, the appellate court may dismiss the
appeal but is not required to do so.” Davis, 2006 UT 52, ¶ 13. “Even
where an appellant files a notice crippled with defects and fails to
effectively serve the opposing party, the notice is jurisdictionally
sufficient if it complies with the timeliness requirement.” Id. ¶ 14
(cleaned up).

¶18 Accordingly, because Tami timely filed her notice of
appeal, this court has jurisdiction over the appeal; her failure to
name Tina in the notice did not deprive us of jurisdiction. 2 And
while a failure to comply with rule 3 can result in dismissal or
other sanctions, the Guardians have not argued that such action
would be appropriate here, and we elect not to exercise our
discretion to dismiss the appeal or otherwise sanction Tami sua

2. There is one circumstance under which our supreme court has
recognized an additional jurisdictional requirement for a notice of
appeal: in child welfare proceedings, a notice of appeal must
contain a parent’s signature. See In re O.N., 2024 UT App 27, ¶¶ 1–
4, 546 P.3d 355. See generally Utah R. App. P. 53(b); Utah Code
§ 78A-6-359(2)(b). That circumstance is not present here.

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In re Guardianship of Matthews

sponte, particularly where rule 3 contains no affirmative
requirement to name the opposing parties. 3

¶19 The Guardians also assert that Tami violated rule 24 of the
Utah Rules of Appellate Procedure by not naming Tina in her
principal brief, and they suggest that this also creates a
jurisdictional defect. Rule 24 dictates, “Principal briefs must
contain . . . [a] list of current and former parties,” including “all
parties to the proceeding in the appellate court and their counsel;
and . . . listed separately, all parties to the proceeding in the court
or agency whose judgment or order is under review that are not
parties in the appellate court proceeding.” Utah R. App. P. 24(a).

¶20 “This court has discussed the purposes of rule 24’s briefing
requirements,” including that they “serve to focus the briefs, thus

3. Although the Guardians did not raise the issue, we observe that
Tami failed to strictly comply with the requirement that “[i]f
counsel of record is served, the certificate of service must include
the name of the party represented by that counsel.” Utah R. App.
P. 3(e). Nonetheless, for the same reasons outlined above, this
does not present a jurisdictional bar to Tami’s appeal. See Davis v.
Central Utah Counseling Center, 2006 UT 52, ¶¶ 12–15, 147 P.3d 390.
It also does not prompt us here to dismiss the appeal. In
Davis, the appellants failed to serve the appellees with notice of
the appeal, and our supreme court stated that it was “disinclined”
to dismiss the appeal “where there [was] no evidence that [the
appellants’] failure to serve the notice resulted in any actual
prejudice to either [appellee].” The supreme court continued,
“Indeed, both [appellees] received actual notice of the appeal
through their receipt of [the appellants’] brief, entered an
appearance in these proceedings, and filed timely briefs
addressing the substantive issues.” Id. ¶ 15. Here, the Guardians
were both represented by the same attorney, and Tami served her
notice of appeal on this attorney. Thus, the Guardians both
received actual notice of the appeal, and we are disinclined to
dismiss the appeal based on Tami’s technical failure regarding the
certificate of service.

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promoting more accuracy and efficiency in the processing of
appeals.” Burns v. Summerhays, 927 P.2d 197, 199 (Utah Ct. App.
1996) (cleaned up). And we may decline to consider a party’s
arguments where the briefing requirements are not satisfied. See
id. We have repeatedly done so when a party’s legal analysis is
inadequate, reasoning that where an appellant “has failed to
provide adequate legal analysis and legal authority in support of
[its] claims, [the] appellant’s assertions do not permit appellate
review.” Id. at 199–200. But we do not decline to consider an
appeal every time a brief fails to strictly comply with our rules.
And the failure to follow briefing requirements does not create a
lack of jurisdiction in any event.

¶21 Here, the Guardians do not argue that Tami’s principal
brief was substantively deficient, only that it failed to name Tina
as a party. We do not know why Tami failed to name Tina as a
party, and we do not favor such an omission. But it is clear from
Tami’s brief that she was appealing the district court’s grant of
summary judgment and award of attorney fees with respect to
both of the Guardians. Moreover, the Guardians have not
presented any argument that they have been harmed by Tami’s
failure, and Tami’s reply brief addresses the initial omission by
identifying Tina as an appellee. Because Tami’s initial mistake in
this regard does not create a jurisdictional defect and because we
are not convinced that it has frustrated the purposes of rule 24 or
harmed the Guardians, we proceed to consider the merits of
Tami’s appeal. See Anderson v. Thompson, 2008 UT App 170U,
para. 7 n.4 (“We recognize that we may disregard or strike briefs
that do not comply with the requirements of rule 24. However, we
are not obligated to strike or disregard a marginal or inadequate
brief, and we usually reserve such a harsh sanction for cases
where the noncompliance with rule 24 is much more egregious
than that here.” (cleaned up)).

II. Attorney Fees

¶22 Tami asserts that the district court’s grant of the Guardians’
request for attorney fees should be reversed because the court’s

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interpretation of rule 73 of the Utah Rules of Civil Procedure to
“excus[e] . . . the [G]uardians’ untimely filed [m]otion for
[a]ttorney [f]ees was an error as a matter of law.” Tami also argues
that the court’s determination that the Petition was “without
merit” was in error. We agree with Tami on both fronts and
address her arguments in turn.

A. Rule 73

¶23 The version of Rule 73(a) of the Utah Rules of Civil
Procedure in effect at the time the Guardians filed their motion
for attorney fees stated,

Attorney fees must be claimed by filing a motion for
attorney fees no later than 14 days after the
judgment is entered, except as provided in
paragraph (f) of this rule, or in accordance with
Utah Code § 75-3-718, and no objection to the fee has
been made.

Utah R. Civ. P. 73(a) (effective May 1, 2019). 4 In short, this
provision generally required a party claiming attorney fees to file
a motion therefor within fourteen days of when a judgment was
entered, and it also identified exceptional circumstances where
this requirement did not need to be met. See id.

4. Available at https://legacy.utcourts.gov/utc/rules-approved/
wp-content/uploads/sites/4/2019/04/URCP073.Redline.pdf
[https://perma.cc/PMZ9-6QJV]. An amended version of rule 73
became effective on May 1, 2026. See Utah R. Civ. P. 73(a). Because
the amended language of subsection (a) is material to the issue
addressed here, we analyze the version of that subsection in effect
when the Guardians filed their motion for fees. The amendments
to other subsections of the rule are not relevant to our analysis
here, and we therefore refer to the current versions of the other
subsections cited or analyzed herein.

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¶24 The district court acknowledged that the Guardians’
motion for attorney fees did not meet the general fourteen-day
deadline. But the court credited the Guardians’ argument that
Tami “technically failed to comply with the [r]ule” herself by
(1) “filing an ‘Opposition’ rather than an ‘Objection’” and (2) not
“rais[ing] any arguments regarding the amount of the fees
claimed.” The court then determined that “it would not be
equitable to strictly enforce [r]ule 73 against the Guardians . . .
[and] not against [Tami].” However, the court’s justification for
excusing the Guardians’ failure to meet the filing deadline was
based on a misreading of the rule.

¶25 Rule 73(a) did not create a general requirement for a party
who wished to contest an attorney fees award to file a document
specifically titled as an “objection” that contested “the amount of
the fees claimed.” As already noted, the general requirement set
forth in rule 73(a) was aimed at the party claiming fees and
required that party to “fil[e] a motion for attorney fees no later
than 14 days after the judgment [was] entered.” Id. Contrary to
the district court’s apparent reading, the last clause of rule 73(a)—
which stated, “and no objection to the fee has been made” (the “no
objection” clause)—is not part of the general rule. This is
demonstrated by the grammatical infirmity that results when the
language of the general rule and the “no objection” clause are
placed together through omission of the other language of
exception: “Attorney fees must be claimed by filing a motion for
attorney fees no later than 14 days after the judgment is entered
. . . and no objection to the fee has been made.” Id. Because of the
grammatical disconnect between the general rule and the “no
objection” clause, the “no objection” clause plainly placed no
requirement on a party contesting an award of attorney fees to file
a document titled “objection” and contest the amount of the fees
that are claimed, other than perhaps in the context of rule 73(f)
and Utah Code section 75-3-718.

¶26 Instead, the “no objection” clause was plainly associated
only with the circumstances under which the general filing
deadline did not apply: (1) when a party sought attorney fees “as

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provided in paragraph (f) of [rule 73]” and (2) when a party
sought attorney fees “in accordance with Utah Code [section] 75-
3-718.” See id. In those circumstances, the party seeking fees did
not need to file a motion for fees within fourteen days after the
entry of judgment—as long as “no objection to the fee ha[d] been
made.” This makes sense upon an examination of the
circumstances addressed in paragraph (f) of rule 73 and Utah
Code section 75-3-718.

¶27 Paragraph (f) of rule 73 first provides, among other things,
that a party who is willing to accept an award of fees in an amount
set forth in the rule—rather than in an amount based on an
affidavit of fees actually incurred—can (1) “state the basis for
attorney fees” in “the complaint” or (2) “establish[] its right to
attorney fees” while “seeking the judgment,” instead of requiring
the party to establish the right to fees in a post-judgment motion.
Utah R. Civ. P. 73(e), (f)(1)–(2). In these scenarios, because the
right to fees is established prior to judgment, the need to file a
motion within fourteen days after judgment is understandably
excused. At the same time, however, because nothing in these
provisions is “deemed to eliminate any right a party may have to
object to any claimed attorney fees,” id. R. 73(f)(5), the fee award—
even if the amount thereof is set by statute—understandably
could not be given based solely on the complaint or other pre-
judgment demonstration of a right to fees unless “no objection
ha[d] been made,” id. R. 73(a).

¶28 Section 75-3-718 of the Utah Code is similar. It applies to
attorney fees in the context of personal representatives. See Utah
Code § 75-3-718(1). It states in relevant part,

A personal representative and an attorney are
entitled to reasonable compensation for their
services. If a petition is filed which either directly or
indirectly seeks approval of . . . the attorney’s
compensation and if no objection is filed by an
interested person to the compensation requested,
reasonable compensation shall be the compensation

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sought in the petition. . . . When an interested person
objects to the attorney’s compensation, the court
shall determine reasonable compensation for the
attorney.

Id. Where an award of fees in this circumstance will be granted
based on the “compensation sought in the petition” “if no
objection is filed,” id., it makes sense to not require a separate
motion to be filed within fourteen days after judgment if no
objection is filed but to still require such a motion if an objection
is filed.

¶29 In short, rule 73(a) plainly set forth a general requirement
aimed at parties seeking an award of attorney fees. The
requirement was simply that “[a]ttorney fees must be claimed by
filing a motion for attorney fees no later than 14 days after the
judgment [was] entered.” Utah R. Civ. P. 73(a) (effective May 1,
2019). Because the “no objection” clause of rule 73(a) was plainly
connected only to the exceptions to the general rule and not to the
general rule itself, the “no objection” clause imposed no
requirement on a party—like Tami—who contested an award of
attorney fees outside the context of rule 73(f) and section 75-3-718
to file a document titled “objection” that contested the amount of
the fees that were claimed.

¶30 Instead, the general rule for opposing motions applied. See
Utah R. Civ. P. 7(d). Under that rule, a “nonmoving party may file
a memorandum opposing the motion within 14 days after the
motion is filed,” and the “nonmoving party must title the
memorandum substantially as: ‘Memorandum opposing motion
[short phrase describing the relief requested].’” Id. R. 7(d)(1)
(brackets in original). While the opposing memorandum “must
include . . . the grounds supporting [the nonmoving party’s
preferred] disposition,” id. R. 7(d)(1)(A), there is no
requirement that those grounds include a dispute as to the
amount of the fees that are claimed, see id. Thus, Tami complied
with the applicable rule—rule 7(d)—when she (1) filed a
“Memorandum Opposing Motion for Attorney Fees” fourteen

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days after the Guardians filed their motion for attorney fees and
(2) argued that the motion should be denied on the grounds that
it was untimely.

¶31 Given the foregoing, Tami did not “technically fail[] to
comply with [rule 73],” as the district court concluded. Thus, to
the extent that Tami’s failure to file an “Objection” raising
“arguments regarding the amount of the fees claimed” was the
reason for the court excusing—based on equitable
considerations—the Guardians’ untimely filing of their motion
for attorney fees, Tami is correct that the “court’s excusal of the
[G]uardians’ untimely filed [m]otion for [a]ttorney [f]ees was an
error as a matter of law.” However, it is not clear to us that the
court was relying solely on its interpretation of rule 73—rather
than also relying on general principles of equity—when it excused
the Guardians’ untimely filing of their motion for attorney fees.5
Accordingly, we assume for purposes of argument that the court
nevertheless had discretion to afford the Guardians a four-day
extension to file their motion, and we address the issue of whether
the court erred in its determination that the Petition was without
merit.

5. In deciding to excuse the Guardians’ untimely filing of their
motion for attorney fees, the district court mentioned rule 61 of
the Utah Rules of Civil Procedure, which states in part, “The court
at every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the substantial
rights of the parties.” But the court did not rest its excusal of the
Guardians’ untimely filing on this rule, explaining that “if [r]ule
61 routinely was relied upon to excuse untimely filings[,] then the
various deadlines set forth in the [r]ules would cease to have any
effect.” Because the court did not apply rule 61 and the Guardians
have neither cross-appealed that decision nor asked us to affirm
on this basis as an alternative ground, the question of whether that
rule could properly have been applied in this circumstance to
excuse the untimely filing is not before us.

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B. Determination that the Petition Was Without Merit

¶32 The district court relied on Utah Code section 75-5-303 as
the basis for its award of attorney fees. Subsection (1) of that
provision states in relevant part that “any person interested in an
allegedly incapacitated person’s welfare may petition for a
finding of incapacity and appointment of a guardian.” Subsection
(2)(c) then provides, “If the court determines that the petition is
without merit, the attorney fees and court costs shall be paid by
the person filing the petition.”6 Accordingly, the district court’s
attorney fees award hinged on a determination that the Petition
was without merit.

¶33 In the context of Utah’s general bad-faith attorney fees
statute, which allows for an award of fees upon a determination
that an “action or defense to [an] action was without merit and not
brought or asserted in good faith,” Utah Code § 78B-5-825(1)
(emphasis added), we have explained that “‘without merit’ . . .
means something worse than just having a losing claim.”
McFarland v. McFarland, 2024 UT App 31, ¶ 33, 547 P.3d 204
(cleaned up). “The term ‘without merit,’ as used in the bad-faith
statute, implies bordering on frivolity, with the term ‘frivolous’
meaning of little weight or importance [or] having no basis in law
or fact.” Id. (cleaned up). We hold that the same meaning of
“without merit” applies under section 75-5-303(2). Under that
meaning, the district court’s determination that the Petition was
without merit was in error.

6. Because the Petition was not an initial petition for a finding of
incapacity and appointment of a guardian but, rather, a petition
to modify an order issued previously under Utah Code section 75-
5-303, there is a question as to whether subsection (2)’s attorney
fees provision could ever apply to the Petition. However, because
we conclude that the Petition was not without merit in any event,
we assume (without deciding) for purposes of this appeal that the
Petition qualifies as the type of petition to which section 75-5-303
and its attorney fees provision applies.

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In re Guardianship of Matthews

¶34 The district court explained that the Petition was
without merit (1) “[f]or the reasons set forth in [the court’s June
27, 2024 order granting the Guardians’ summary
judgment motion]”; (2) because the Petition “attempted to re-
litigate the [c]ourt’s [initial] guardianship decision” set forth in
the Order, which Tami did not appeal; and (3) because Tami had
“adduced no evidence” that the Guardians had violated any of
the district court’s orders or “breached their obligation to ensure
[Father’s] health and safety.” None of these reasons is adequate to
support the court’s determination that the Petition was without
merit.

¶35 First, while the district court’s order granting the
Guardians’ motion for summary judgment sets forth reasons for
the court’s conclusion that the Petition contains losing claims, it
does not explain why the Petition contained “something
worse than just . . . losing claim[s].” Id. In other words, the
court’s summary judgment order did not go the required
step further and explain why the Petition’s claims “border[ed] on
frivolity” in that they were “of little weight or importance” or
had “no basis in law or fact.” Id. (cleaned up). Because of this,
the court’s reliance on the reasons set forth in its
summary judgment order as a basis for awarding attorney fees
was in error.

¶36 Second, the Petition was not a mere attempt to re-litigate
the court’s initial guardianship decision that was set forth in the
Order. Nor was it even an attempt to obtain a rehearing on the
issues raised in the Motion; after all, Tami filed the Petition before
the hearing on the Motion had been held and before the issues
related to the Motion had been decided. Rather, as Tami
contended below, the Petition was based on alleged facts and
legal arguments that went beyond what had been at issue in the
Guardians’ initial petition and in the Motion. Specifically, it
alleged that Father was “suffering emotionally from his limited
ability to communicate with Tami”; that the Guardians had
“continued to fail to keep Tami apprised of medical issues of
significance”; that the Guardians had continued to deny Tami

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visits with Father “for petty and disingenuous reasons,” such as a
claimed misunderstanding of Tami’s right to visit Father every
“third Sunday”; and that the Guardians had “moved [Father]
from his residence without proper notice to Tami or the [c]ourt.”
In other words, the court relied on a mistaken characterization of
the record when it based its without-merit determination on the
notion that the Petition was a mere attempt to re-litigate issues
previously addressed in the Order or even those raised by the
Motion.

¶37 Finally, the court was similarly mistaken when it based its
without-merit determination on Tami having “adduced no
evidence” that the Guardians had violated any of the district
court’s orders or “breached their obligation to ensure [Father’s]
health and safety.” The court itself had already stated in its ruling
on the Motion that the Guardians had imposed conditions on
Tami’s visits with Father that had not been set forth in the Order.
Moreover, Tami’s failure to put on additional evidence of her new
allegations appears to have been due, at least in part, to the fact
that—despite there being “[w]itnesses . . . present at the [February
29, 2024] hearing” who were prepared to offer testimony in
support of the new allegations—those witnesses were not allowed
to testify “due to the limited scope of [that] hearing.” 7
Accordingly, the court’s last reason for determining that the
Petition was without merit is also insufficient to support that
determination.

¶38 For the foregoing reasons, we conclude that the district
court erred in determining that the Petition was without merit.
We therefore reverse the court’s award of attorney fees to the
Guardians.

7. In their reply memorandum in support of their motion for
summary judgment, the Guardians did not contest Tami’s
allegation in this regard.

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CONCLUSION

¶39 We have jurisdiction over Tami’s appeal. The district court
erred in its application of rule 73 of the Utah Rules of Civil
Procedure to excuse the Guardians’ untimely motion for attorney
fees, and to the extent that the court nevertheless had discretion
to afford the Guardians a four-day extension, it erred by
concluding that the Petition was without merit. We therefore
reverse the court’s award of attorney fees to the Guardians.

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