Utah Down Syndrome Foundation, Inc. v. Utah Down Syndrome Ass'n

2012 UT 86, 293 P.3d 241, 2012 WL 6062627

• Court: Utah Supreme Court
• Decided: December 7, 2012
• Docket: No. 20110205
• Status: Published

Opinions

Justice PARRISH,

opinion of the Court:

INTRODUCTION

T1 Attorney Donald D. Gilbert, Jr. appeals the denial of his motion to vacate the district court's Disgorgement Order, which ordered him to return $30,000 that he received as payment for legal services he had provided to the Utah Down Syndrome Association and its founders. We dismiss Mr. Gilbert's appeal for lack of appellate jurisdiction because, as a nonparty to this lawsuit, he is not entitled to an appeal as of right. Because we lack appellate jurisdiction, we are precluded from addressing this case on the merits and therefore express no opinion regarding Mr. Gilbert's personal jurisdiction claims.

BACKGROUND

T2 This appeal arises from the district court's Disgorgement Order, which required Mr. Gilbert to disgorge $30,000 in legal fees that he received as payment for his representation of the Utah Down Syndrome Association and its founders. The Disgorgement Order stems from a dispute between the founders of the Utah Down Syndrome Association (Association) and the Utah Down Syndrome Foundation (Foundation). In two separate lawsuits, Mr. Gilbert represented several former officers¹ of the Foundation and current founders of the Association who, after becoming dissatisfied with the management of the Foundation, left to form a competing nonprofit, the Association. The Disgorgement Order, which was issued in the second lawsuit, required Mr. Gilbert to forfeit legal fees he had received for representing the Association and its founders in their lawsuits with the Foundation. This appeal arises from the second lawsuit.

1 3 In the first lawsuit, the details of which are not relevant to this appeal,² the district court issued a Partial Summary Judgment Order forbidding Mr. Gilbert's clients from accessing the Foundation's funds located in certain bank accounts (Disputed Accounts). Later, as payment for his legal services, Mr. Gilbert received four checks, totaling $30,000, which were drawn from the Disputed Accounts. After the Partial Summary Judgment Order was issued in the first lawsuit, the Foundation filed a complaint initiating the second lawsuit.³

T4 In the second lawsuit, the Foundation sued the Association and its founders, requesting an accounting and recovery of all funds taken from the Foundation's Disputed Accounts. After discovering that some of the funds were used to pay Mr. Gilbert for his legal representation of the Association and its founders, the Foundation filed two successive motions for disgorgement.⁴ The motions requested that the court order Mr. Gilbert to disgorge $30,000 in legal fees he had received from the Disputed Accounts, as well as an additional $2,453 for the Foundation's attorney fees. This appeal stems from the Disgorgement Order, which was issued in the second lawsuit.

15 Mr. Gilbert was never named as a party and he was never served with process. And Mr. Gilbert did not file a motion to intervene as an interested party. However, Mr. Gilbert did receive a copy of the motions for disgorgement and the Disgorgement Order in his capacity as an attorney for his clients. He filed a brief in opposition to the motion on behalf of his clients, and he orally opposed the first Motion for Disgorgement before the district court, again in his representative capacity on behalf of his clients. The district court ultimately granted the Foundation's final Motion for Disgorgement and issued an Order and Judgment against Mr. Gilbert two months after he had withdrawn as the Association's attorney of ree-ord. The district court's Order and Judgment against Mr. Gilbert ordered him to pay $32,453 to the Foundation. To date, Mr. Gilbert has not disgorged his fees.⁵

T6 Two years after the issuance of the Disgorgement Order in the second lawsuit, and while the second lawsuit was still being litigated, Mr. Gilbert filed a Motion to Vacate the Disgorgement Order (Motion to Vacate) under rule 60(b)(4) of the Utah Rules of Civil Procedure. He argued that the Disgorgement Order was void for lack of personal jurisdiction because he was never a named party or personally served with the motions or the order. He also argued that, because the district court lacked personal jurisdiction over him, the Disgorgement Order violated his due process rights. The Foundation opposed Mr. Gilbert's Motion to Vacate, arguing that the court had jurisdiction based on its inherent authority over Mr. Gilbert as an attorney and officer of the court. Additionally, the Foundation argued that Mr. Gilbert had a special duty to inquire as to the source of his fees and that he violated that duty when he accepted funds that he knew were subject to the Partial Summary Judgment Order from the first lawsuit,. The district court denied Mr. Gilbert's motion on the merits, reasoning that it had jurisdiction over Mr. Gilbert as an officer of the court and that he had violated a court order by accepting funds that he knew were subject to the Partial Summary Judgment Order. Mr. Gilbert now appeals the district court's dismissal of his motion to vacate the Disgorgement Order,

STANDARD OF REVIEW

17 "Whether this court has jurisdiction over an appeal is a question of law that can be raised for the first time on appeal." Navajo Nation v. State (In re Adoption of A.B.), 2010 UT 55, ¶ 21, 245 P.3d 711. And "a lack of jurisdiction can be raised at any time by either party or by the court." Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099, 1100 (Utah 1991) (internal quotation marks omitted). "When this court lacks jurisdiction over an appeal, it retains only the authority to dismiss the appeal." In re A.B., 2010 UT 55, ¶ 21, 245 P.3d 711.

ANALYSIS

I. WE DISMISS THIS APPEAL FOR LACK OF APPELLATE JURISDICTION BECAUSE, AS A NONPARTY, MR. GILBERT IS NOT ENTITLED TO AN APPEAL AS OF RIGHT

18 Mr. Gilbert and the Foundation present this case as an appeal taken as of right under section 78A-3-102(B)(J) of the Utah Code, and both parties focus their arguments on the merits of the district court's denial of Mr. Gilbert's Motion to Vacate. Mr. Gilbert argues that the district court erred in denying his Motion to Vacate because he was never personally served with the motions for disgorgement and therefore, the lower court lacked personal jurisdiction over him and its order violated his due process rights. The Foundation contends that, because Mr. Gilbert received and opposed the motion on behalf of his clients, he had actual knowledge of the motion and waived his right to challenge the court's personal jurisdiction over him.

T9 While both Mr. Gilbert and the Foundation focus on the merits of the district court's denial of the Motion to Vacate, we see a more fundamental jurisdictional problem with this appeal.⁶ Namely, Mr. Gilbert, as a nonparty, is not entitled to appeal the district court's denial of his Motion to Vacate. We have previously held that persons or entities that are not parties to a proceeding are not entitled to an appeal as of right. See, e.g., Brigham Young Univ. v. Tremco Consultants, Inc., 2005 UT 19, ¶ 46, 110 P.3d 678 (noting that "nonparties ... cannot appeal the [court] order"); State v. Sun Sur. Ins. Co., 2004 UT 74, ¶ 9, 99 P.3d 818 (noting that "[a] surety cannot bring a direct appeal in a criminal case because it is not a party to the criminal case"). Instead, "an extraordinary writ is the vehicle pursuant to which [nonparties can] properly ... challenge[ ] [a court] order." Tremco, 2005 UT 19, ¶ 46 n. 7, 110 P.3d 678.

%10 The Utah Rules of Appellate and Civil Procedure support this conclusion. While the appellate rules do not explicitly state who may file an appeal as of right, contextually, they speak exclusively in terms of "parties" who may take an appeal. See Uttar R.App. P. 3, 4. Specifically, rule 3(d), which governs appeals as of right, requires that "[the notice of appeal ... specify the party or parties taking the appeal." (Emphasis added.)⁷ In contrast, rule 65B(a) of the Utah Rules of Civil Procedure, which governs extraordinary writs, states that "[wJhere no other plain, speedy and adequate remedy is available, a person may petition the court for extraordinary relief." (Emphasis added.) And "where an inferior court ... has exceeded its jurisdiction," a "person aggrieved or whose interests are threatened . may petition the court for relief." Id. 65B(d)(1)-(2) (emphasis added)⁸ Thus, our procedural rules confirm that nonparties are not entitled to an appeal as of right. Instead, a nonparty who seeks relief from a lower court's order that purports to affect the nonparty's interests must proceed by way of an extraordinary writ.

T 11 The issues presented here are similar to those presented in Tremceo. In Tremeo, we dismissed an appeal for lack of jurisdiction because a nonparty had improperly attempted to take an appeal as of right. 2005 UT 19, ¶ 46, 110 P.3d 678. The district court had issued an order that held several nonparties liable for a judgment even though they "were neither served with process nor made parties to the case." Id. 148. After the order was issued, the nonparties moved to vacate the order, arguing that the court lacked personal jurisdiction over them because they were never served with the summons and complaint Id. 144. They also argued that, because they were not personally served, the court's order violated their due process rights. Id. The district court denied the motion. Id. 45.

[ 12 The nonparties appealed the denial of the motion to vacate and, on appeal, we determined that there was a "fundamental Jurisdictional problem with the [nonparties'] appeal ..., namely, that they [were] not parties to [the] proceeding." Id. ¶ 46. We held that "[als nonparties, they [could not] appeal the [district court's] order." Id. We concluded that "[wlhere an appeal is not properly taken, this court lacks jurisdiction and we must dismiss." Id. (internal quotation marks omitted). However, we observed that the nonparties in Tremeo were not without a remedy. "Because they were not parties to the proceedings below, an extraordinary writ [was] the vehicle pursuant to which the [nonparties] could properly have challenged the ... order." Id. ¶ 46 n. 7.

118 Similarly, in this case, the district court issued an order and judgment purporting to affect the interests of a non-party. The district court entered a $32,548 judgment against Mr. Gilbert even though he was never named a party to the proceedings or served with process. And Mr. Gilbert never filed a motion to intervene as a party. Instead, Mr. Gilbert filed a rule 60(b) Motion to Vacate the Disgorgement Order, and then appealed the denial of that motion to this court as an appeal of right under section 78A-3-102(8)(j) of the Utah Code. Because he was never a party, however, Mr. Gilbert does not have an appeal as of right, and his attempt to appeal was improper. "Where an appeal is not properly taken, this court lacks jurisdiction and we must dismiss." Id. 146 (internal quotation marks omitted).

II. THE APPROACH SUGGESTED BY THE CONCURRENCE IS INCONSISTENT WITH OUR JURISPRUDENCE AND WOULD CREATE AN UNWORKABLE PROCEDURAL FRAMEWORK

114 The concurring opinion relies on the "incontrovertible" principle that " '[dJue process dictates and principles of fairness counsel that [a nonparty] be given an opportunity to challenge the district court's assertion of jurisdiction over it, particularly when the court specifically entered an injunction against [it]" Infra 1 44 (alteration omitted) {(emphasis omitted) (quoting R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 955 (4th Cir.1999). On this point, we are in complete agreement. We diverge, however, with respect to the procedural path for such a challenge. We conclude that the appropriate path is the one dictated by our appellate rules and prior precedent.

115 Our rules require nonparties, whose interests are purportedly affected by a court order, to file a motion to intervene as a party in the trial court or to file a petition for extraordinary writ with the appellate court. While the concurring opinion argues that "[a] person subject to a coercive court order cannot properly be denied the right to appeal on the ground that he lacked formal party status in the trial court," infra ¶ 34, that argument is not relevant here inasmuch as Mr. Gilbert never sought formal party status in the trial court. Had he successfully done so, he would have been a party. And had he been unsuccessful, he would have had the immediate right to appeal from the district court order denying intervention. Because he failed to seek intervention, his remaining option was to petition this court for extraordinary relief.

[16 In the area of appellate jurisdiction, certainty is critical. To the extent that a jurisdictional inquiry can be governed by bright-line rules, it benefits both appellate courts and litigants. Specifically, it avoids the possibility that an appeal may be dismissed on jurisdictional grounds, thereby depriving an aggrieved person of the right to appellate review in cases where deadlines for pursuing the correct jurisdictional course have expired. But the approach proposed by the concurring opinion does not achieve certainty for a number of reasons.

T 17 The concurrence would transfer from the trial courts to the appellate courts the determination of whether a person or entity has a sufficient interest to qualify for standing. Under the majority approach, such issues are routinely decided by the trial courts in the context of motions to intervene. Under the approach espoused by the concurring opinion, however, the appellate courts would be required to decide such issues in the context of determining whether a nonparty constitutes a "de facto party" for purposes of appellate standing and jurisdiction.⁹ Not only would this create an uncertain procedural course for those seeking review, it would force appellate courts to tackle factual disputes they are uniquely unqualified to resolve. In short, it would shift from the district courts to the appellate courts the burden of deciding at least some contested interventions. And because there appears to be no principled basis for limiting the concurring opinion's "de facto party" approach to appeals, it may also raise questions about whether parties could functionally achieve intervenor status in district court proceedings without seeking formal leave to intervene.

4 18 Such an approach is particularly problematic for those unnamed parties who find themselves subject to a court order but are uncertain whether they will be treated as a "de facto party." Under our rules, it is the service of process, the affirmative act of filing suit, or the act of seeking to intervene as a party that subjects one to the jurisdiction of the court and puts him on notice that he is subject to ongoing court proceedings. But the concurrence would base the right to appeal upon none of these things. And there is simply no certain mechanism for determining when one has crossed the threshold to qualify for "de facto party" status. This would necessarily give way to confusion and uncertainty.

119 The concurrence opines that "[aln appeal of right is the gold standard" due to the discretionary nature of an extraordinary writ. Infro ¶ 56. While it is correct that an extraordinary writ is discretionary, the discretionary nature of our writ power decreases where a person's fundamental due process rights are at issue. See Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Lindberg, 2010 UT 51, ¶ 124, 238 P.3d 1054 (listing factors that inform the court's discretion to grant extraordinary relief, including the "egregiousness of the alleged error, the significance of the legal issue presented by the petition, the severity of the consequences occasioned by the alleged error," and any other factors regarded as important to the ease's outcome) (internal quotation marks omitted); Brigham Young Univ. v. Tremco Consultants, Inc., 2007 UT 17, ¶ 20, 156 P.3d 782 (noting that the "due process deprivations ... infected the district court's ruling on intervention"). We therefore see no problem in trusting the appellate courts to recognize when a substantial right to due process is at stake and to act accordingly.

T 20 Moreover, the practical benefits of the approach espoused by the concurring opinion may prove elusive in any event. The claimed benefit of the approach suggested by the concurrence is that a person aggrieved by a court order would have the absolute right to appeal. But such a right may be obtained simply by filing a motion to intervene in the district court. And even under the approach suggested by the concurrence, a right to appellate review would arise only if the order affecting the "de facto party" happened to constitute a final judgment with respect to all parties and issues in the lawsuit. If, as in this case, the order is merely interlocutory, then there is only the possibility of a disere-tionary remedy regardless of party status. In such cireumstances, the only distinetion created by the recognition of "de facto party" status is the choice between a petition for interlocutory appeal and a petition for extraordinary writ.¹⁰ Since both are, at some level, discretionary, this undercuts the concurring opinion's thesis that a person subject to a court order ought to have a right to appeal-not merely an opportunity to seek discretionary appellate review.

121 In the case of a nonfinal order, the approach suggested by the concurrence would create even more uncertainty. Would we allow a nonparty to move for rule 54 certification in the district court, which would appear to be the only path to immediate appellate review? If not, such a nonparty would have to monitor the lawsuit-in which he was never a party in the first place-and wait until the suit reaches resolution to the point of an appealable final order.

1122 The majority approach avoids these uncertainties by following established rules regarding intervention and petitions for extraordinary writ. In cases where there is time to seek intervention, the claim for party status can be submitted to the district court in the first instance, rather than to the appellate court.¹¹ In those cases where such a motion cannot provide timely relief, a petition for extraordinary writ filed with the appellate court provides an adequate remedy in light of the appellate court's obligation to give due regard to principles of due process. And while a petition for extraordinary writ requires that the appellate court make a determination as to whether substantial rights are affected, it is unclear how that inquiry is materially different from the determination that would be necessary to verify "de facto party" status under the approach espoused by the concurrence. Thus, the approach adopted by the majority will have the pragmatic benefits of avoiding potential uncertainty over the choice of the proper procedural avenue for appellate review and keeping fact-intensive adjudications of contested interventions in the district courts.

123 The approach suggested by the concurrence suffers from other flaws as well. It conflates the concept of standing to appeal with the concept of appellate jurisdiction. We agree that Mr. Gilbert has standing. But this is not responsive to the majority position, which is premised on the narrow ground that we lack appellate jurisdiction because Mr. Gilbert, as a nonparty, cannot appeal as a matter of right. Lack of appellate jurisdiction is distinct from standing. Indeed, the U.S. Supreme Court has taken care to distinguish these concepts, noting that "jurisdiction is a question of whether a . court has the power, under the [applicable laws], to hear a case; [whereas] standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Artlicle] III case or controversy." Davis v. Passman, 442 U.S. 228, 239 n. 18, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (emphasis in original). It is because we lack appellate jurisdiction, and thus the power to hear this particular appeal, that we must dismiss Mr. Gilbert's case. Supra ¶ 9.

$24 The concurrence's reliance on caselaw to support its position is misplaced. It contends that this court has "recognized a 'de facto [party]' principle that treats a non-party's consistent participation in the district court as the functional equivalent of formal intervention." Infra ¶ 39 (citing Ostler v. Buhler, 1999 UT 99, ¶ 7, 989 P.2d 1073). But Ostler does not support the assertion that nonparties may take appeals as of right under our appellate rules. In Ostler, the appeal was not taken by the nonparty; rather, the individual who filed the notice of appeal was an already-named party to the litigation. See Ostler, 1999 UT 99, ¶ 1, 989 P.2d 1073 (noting that the already-named party "[pllaintiff Neal Ostler appealled] from an order allowing intervention in the trial court by Ostler's former attorney, [the nonparty,] and awarding fees to that [nonparty] out of settlement proceeds received by Ostler"). Thus, Ostler did not present any issues regarding our appellate jurisdiction,. In contrast, Mr. Gilbert attempted to appeal as of right as a nonparty. But the law is clear that "aequiescence of the parties is insufficient to confer jurisdiction on the court, and a lack of jurisdiction can be raised by the court or either party at any time." Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649 (internal quotation marks omitted).

« 25 The concurrence also cites to a line of attorney discipline cases which, it claims, "effectively applies this [de facto party] standard without expressly discussing it." Infra ¶ 40. This attempt to bootstrap the "de facto party" standard to attorney discipline cases is unpersuasive. As the concurrence concedes, these cases do not rely on a "de facto party" principle. Id. Moreover, these cases are distinguishable because of their unique nature as attorney discipline actions. In each of these cases, the court specifically issued sanctions and contempt orders against attorneys in their representative capacities. See, e.g., Fugal v. Howard, 2007 UT 88, ¶ 1, 171 P.3d 451 (per curiam) (holding that an attorney appealing a contempt sanction had a right to appeal in the case in chief); Featherstone v. Schaerrer, 2001 UT 86, ¶ 1, 34 P.3d 194 (considering an appeal of the imposition of sanctions on an attorney for violations of the Rules of Professional Conduct and discovery rules); Kaiserman Assocs., Inc. v. Francis Town, 977 P.2d 462, 462 (Utah 1998) (considering an attorney's appeal of rule 11 sanctions); Utah Farm Prod. Credit Ass'n v. Labrum, 762 P.2d 1070, 1071 (Utah 1988) (considering an attorney's appeal of a contempt order). In contrast, the district court in this case expressly declined to hold Mr. Gilbert in contempt and it did not issue any sanctions against Mr. Gilbert in his capacity as an attorney. Rather, the district court issued a money judgment against Mr. Gilbert in his personal capacity. And the district court issued its judgment against Mr. Gilbert two months after he was no longer the attorney of record in the case.

126 The concurrence also cites to numerous cases from other jurisdictions. But this case presents a question of interpretation of Utah's Rules of Appellate Procedure, and we have exclusive authority in interpreting those rules. Thus, the concurrence's citation to federal case law interpreting the federal rules is unpersuasive in light of our own controlling authority that a non-party cannot directly appeal a court order. Tremco, 2005 UT 19, ¶ 46, 110 P.3d 678.

127 The potential pitfalls in the concurrence's approach are aptly demonstrated by its application in this very case. Under the concurrence, Mr. Gilbert would not have been eligible to seek appellate review of the judgment entered against him until all claims and issues in the underlying suit had been resolved. Thus, he would have had to wait three years and closely follow a case in which he was neither a party nor the attorney of record. Mr. Gilbert would have had to ascertain which order constituted the court's final, appealable order. And even then, Mr. Gilbert would have risked the chance that review of his claims would be forever foreclosed if he chose to appeal at the wrong time. Indeed, the concurrence would dismiss Mr. Gilbert's claims because the June 13, 2008 order that Mr. Gilbert chose to appeal was not final. Infra ¶ 60-61. The concurrence reasons that Mr. 'Cilbert's claims became appealable only after the district court's March 4, 2011 order, which dismissed all remaining claims, many of which were entirely unrelated to the Disgorgement Order issued against Mr. Gilbert three years earlier. Infra ¶ 61. This approach would yield a perverse result, penalizing Mr. Gilbert for filing his appeal on February 11, 2011, two years after the entry of judgment on the, Motion for Disgorgement, infra ¶ 62, while simultaneously penalizing him because his notice of appeal was filed twenty-one days before the district court's final order disposing of all claims. Infra ¶ 61. And this approach would forever foreclose review of Mr. Gilbert's personal jurisdiction and due process claims based on his inability to navigate the concurrence's confusing and unpredictable procedural framework.

128 Finally, the concurrence proposes that we dismiss this case because Mr. Gilbert's 60(b) motion was not timely, reasoning that Mr. Gilbert waived any objections to the court's exercise of personal jurisdiction over him. Infra ¶¶ 60-67. But its proposed result is simply not supported by the law. In Garcia v. Garcia, we noted that where there is defective service of process, "the requirement that the motion be made within a 'reasonable time' ... cannot be enforced." 712 P.2d 288, 291 (Utah 1986) (per curiam) (quoting 11 Charles Alan Wright, et al., Wright & Miller, Federal Practice and Civil Procedure § 2862 2d ed.1976). In Garcia, we held that a man who had waited ten years after the entry of judgment to file a 60(b) motion to vacate was not disqualified based on timeliness concerns because "where the judgment is void because of a fatally defective service of process, the time limitations of [rule 60(b) have no application." Id. at 290.

129 Our case law is clear that actual notice is insufficient to confer jurisdiction over a party where there is a lack of service of process. We have held that "[the proper issuance and service of summons is the means of invoking the jurisdiction of the court and of acquiring jurisdiction over the defendant; these cannot be supplanted by mere notice by letter, telephone or any other such means." Murdock v. Blake, 26 Utah 2d , 484 P.2d 164, 167 (1971). Thus, our courts have consistently held that under the Utah Rules of Civil Procedure, actual notice is insufficient to supplant proper service of process. See, e.g., Saysavanh v. Saysavanh, 2006 UT App 385, ¶ 25, 145 P.3d 1166.

{30 In summary, under the concurrence's approach, it would be extremely difficult for a nonparty to determine when to appeal. And there would be the real possibility that a final order could be issued and the appeal time could run before the nonparty was even aware of the court's order. This would completely eliminate predictability and certainty for nonparties who find themselves subject to a court order without having been named a party or served with process. Such an approach is entirely inconsistent with the notion that "[dJlue process dictates and principles of fairness counsel that [a nonparty] be given an opportunity to challenge the district court's assertion of jurisdiction over it." Infra ¶ 44 (quoting R.M.S. Titanic, 171 F.3d at 955).

T{31 In contrast, Utah's rule makes practical sense as a matter of procedural policy. It promotes quick review of a nonparty's claims. It promotes fairness and certainty by giving nonparties clear instructions on how to navigate the appellate rules. This ensures that individuals who find themselves subject to court orders without first being served with process are afforded the protections of due process and may have their claims reviewed. The availability of intervention in the district courts and serupulous appellate fidelity to constitutional principles will generate the same result sought by the concurrence without the pragmatic pitfalls of the "de facto party" approach.

CONCLUSION

132 We dismiss Mr. Gilbert's appeal for lack of appellate jurisdiction because, as a nonparty, Mr. Gilbert was not entitled to an appeal as of right.

Justice PARRISH authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice NEHRING and Justice DURHAM joined. Justice LEE filed a concurring opinion.

1 . These individuals include Lisa Kingsbury, Mel-lanie Taylor, Kara Olander, Eric Holman, Pam Holman, Cathy Collard, and Jill Austin.

2 . In the first lawsuit, two officers from the Foundation's Utah County and Salt Lake County Chapters, Eric Holman and Mellanie Taylor, retained Mr. Gilbert to represent them and the Foundation in a suit against the Foundation's president, Suzanne Smith. Mr. Gilbert filed a complaint in the first lawsuit, purporting to represent the Foundation on behalf of Eric Holman and Mellanie Taylor. The complaint requested declaratory relief and asked the court to determine that Suzanne Smith and the other Foundation officers did not have authority to act on behalf of the Foundation. This lawsuit was later dismissed with prejudice because the district court found that Eric Holman and Mellanie Taylor did not have the authority to file suit on behalf of the Foundation.

3 . The first lawsuit has been dismissed with prejudice. Therefore, the first lawsuit is only relevant to the extent that it provides context for this appeal.

4 . In its first motion, the Foundation requested that Mr. Gilbert be ordered to disgorge $22,500 that he received from the Disputed Accounts. When the Foundation later discovered that an additional payment had been made to Mr. Gilbert from the Disputed Accounts, the Foundation filed a second motion for disgorgement requesting the entire $30,000 that Mr. Gilbert received from the Disputed Accounts as well as $2,543 in attorney fees.

5 . There is also a third lawsuit involving Mr. Gilbert and these parties. As a result of Mr. Gilbert's failure to disgorge his attorney fees, the Foundation's president, Suzanne Smith, brought a bar complaint against Mr. Gilbert. In response, Mr. Gilbert filed a third-party complaint against the Foundation, impleading the Foundation into the disciplinary suit. This third suit is the subject of another appeal before this court, In re Gilbert, appellate case number 20110004.

6 . Even though both Mr. Gilbert and the Foundation present this case as an appeal taken as of right, "acquiescence of the parties is insufficient to confer jurisdiction on the court, and a lack of jurisdiction can be raised by the court or either party at any time." Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649 (internal quotation marks omitted).

7 . See also Utah R.App. P. 3(c) (noting that "[the party taking the appeal shall be known as the appellant and the adverse party as the appellee" and "[in original proceedings in the appellate court, the party making the original application shall be known as the petitioner and any other party as the respondent") (emphases added); id. 3(e) (noting that "[the party taking the appeal shall give notice of the filing of a notice of appeal by serving ... a copy thereof to counsel of record of each party ") (emphases added); id. 3(f) (noting that "(alt the time of filing any notice of separate, joint, or cross appeal in a civil case, the party taking the appeal shall pay to the clerk of the trial court the filing fee") (emphasis added); id. 4(b)(1) (noting that "[if a party timely files in the trial court any of the following motions, the time for all parties to appeal from the judgment runs from the entry of the order disposing of the motion") (emphases added); id. 4(d) (noting that "Hlf a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal is docketed") (emphases added); id. 4(e) (noting that "InJotice of a motion filed after expiration of the prescribed time shall be given to the other parties in accordance with the rules of practice of the trial court") (emphasis added).

8 . Rule 19 of the Utah Rules of Appellate Procedure also governs extraordinary writs and uses the phrase "all persons or associations whose interests might be substantially affected by the writ" as well as the term "all parties." Uran R.App. P. 19(a), (b)(1), (c), (g) (emphasis added). This is in contrast to rules 3 and 4, which exclusively use the terms "party" and "parties." Id. 3, 4.

9 . Should the status of "de facto party" be contested on appeal, it would likely be difficult to resolve the contest based on the allegations or the docketing statement. But appellate courts are simply not equipped to take evidence or resolve such factual disputes.

10 . Two types of orders likely to affect nonparties include orders relating to disputes over access to evidence or the freezing of assets to preserve the status quo pending adjudication. Since both types are almost always interlocutory, an entitlement to an appeal as of right would not likely arise in such circumstances until well after they had become moot.

11 . The concurrence states that intervention is untenable for someone like Mr. Gilbert because "lilf he were required to intervene, he would effectively be forced to abandon his position on the merits." Infra 153. This is incorrect. Someone who files a motion to intervene can still raise personal jurisdiction as a defense, so long as he does it in his first pleading. If he fails to do so, then he waives personal jurisdiction, just as in any other case. See Utah R. Civ. P. 12(d). In the case relied on by the concurrence, jurisdictional challenges were waived because the party intervened in the proceeding without raising lack of personal jurisdiction as a defense. Infra ¶ 52 n. 9. See C.F. v. D.D. (In re B.B.D.), 1999 UT 70, ¶¶ 6-7, 29, 984 P.2d 967.