Tillotson v. Meerkerk

2015 UT App 142
THE UTAH COURT OF APPEALS
S ANDRA N. TILLOTSON ,
Plaintiff and Appellee,
v.
DIEDERIK V AN NEDERVEEN M EERKERK,
Defendant and Appellee.
THE S ALT L AKE TRIBUNE,
Proposed Intervenor and Appellant.
Opinion
No. 20130686-CA
Filed June 4, 2015
Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 120903476
Edward L. Carter, Attorney for Appellant
Jeffrey L. Silvestrini, Bradley M. Strassberg, and
Joshua K. Peterman, Attorneys for
Appellee Sandra N. Tillotson
JUDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. O RME and S TEPHEN L. R OTH
concurred.
CHRISTIANSEN, Judge:
¶1 	The Salt Lake Tribune appeals from the district court’s
denial of its motion seeking to intervene and to challenge the
classification of court records as private in a closed defamation
case. We vacate the district court’s order denying the motion to
intervene and remand the matter to the district court for further
proceedings consistent with this opinion.

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BACKGROUND
¶2 	The Salt Lake Tribune (the Tribune) is a daily newspaper
company based in Salt Lake City, Utah. Sandra N. Tillotson is a
founder 	of 	Nu 	Skin 	Enterprises, 	Inc., 	a 	direct-sales 	and
network-marketing company headquartered in Provo, Utah. On
May 21, 2012, Tillotson filed a complaint alleging that her ex-
husband, 	Diederik 	Van 	Nederveen 	Meerkerk, 	threatened 	to
publish 	defamatory 	statements 	about 	her. 	After 	filing 	the
complaint, Tillotson filed a motion to classify as private the
entire case file in her case to prevent dissemination of the
allegedly defamatory statements. On the same date, the district
court granted Tillotson’s motion and entered an order classifying
the case file as private under rule 4-202.04(3) of the Utah Rules of
Judicial Administration.
¶3 	On October 9, 2012, the Tribune filed a motion captioned
“Motion to Intervene and for Access to Records.” The Tribune
sought to intervene in the case pursuant to rule 24(b) of the Utah
Rules of Civil Procedure to access the case file and to challenge
the court’s classification of that record as private. On March 11,
2013, the district court denied the Tribune’s challenge without
ruling on its intervention motion. Subsequently, the Tribune
filed a proposed order stating that the district court had denied
the motion to access records and had granted the motion to
intervene. On June 7, 2013, the district court entered a minute
entry on the docket, indicating that “the Court did not grant
intervention to the Tribune and [the Tribune’s motion] was
denied.” On June 18, 2013, the district court entered a written
order denying the Tribune’s motion to intervene. The order did
not contain any reasons for the court’s denial. Thereafter, on
May 4, 2014, the district court dismissed the defamation case
with prejudice. The Tribune appeals from the denial of its
motion to intervene.

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ISSUE AND STANDARD OF REVIEW
¶4 	The Tribune challenges the district court’s denial of its
motion to intervene, arguing that the district court failed to
properly analyze the Tribune’s motion under rule 24(b) of the
Utah Rules of Civil Procedure and to give any reasons for the
denial of the motion.
¶5 	“A motion to intervene involves questions of law and
fact.” Taylor–West Weber Water Improvement Dist. v. Olds, 2009 UT
86, ¶ 3, 224 P.3d 709. “[T]he factual findings underpinning an
intervention ruling are subject to a clearly erroneous standard,
and the district court’s interpretation of [rule 24(b)] is reviewed
for correctness.” Supernova Media, Inc. v. Shannon’s Rainbow, LLC,
2013 UT 7, ¶ 14, 297 P.3d 599 (citation omitted). Because “[a] trial
court’s grant [or denial] of intervention pursuant to rule 24(b)
involves the discretion of the trial court, . . . we will not overturn
its ruling absent a clear abuse of discretion.” Department of Soc.
Servs. ex rel. State v. Sucec, 924 P.2d 882, 887 (Utah 1996).
ANALYSIS
¶6 	The Tribune moved to intervene as a party in Tillotson’s
defamation case pursuant to rule 24(b) of the Utah Rules of Civil
Procedure and sought to challenge the classification of the court
records 	as 	private. 	Under 	the 	Utah 	Code 	of 	Judicial
Administration, “[c]ourt records are public unless otherwise
classified by this rule.” Utah R. Jud. Admin. 4-202.02(1). In most
cases not involving juveniles or domestic relations, “case files,”
among 	other 	records, 	are 	public. 	Id. 	R. 	4-202.02(2)(E). 	In
classifying a record as private, the district court must (1) “make
findings and conclusions about specific records”; (2) “identify
and balance the 	interests favoring opening and closing the
record”; and (3) “if the record is ordered closed, determine there
are no reasonable alternatives to closure sufficient to protect the
interests favoring closure.” Id. R. 4-202.04(3). The party filing a

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motion to close a record must serve the motion on any member
of the press who has requested notice in the case. Id. R. 4-
202.04(2)(D). The district court need not conduct a hearing on a
closure request unless the motion to close the record is contested
or 	the 	press 	member 	has 	requested 	notice 	of 	such 	closure
motions in the case. Id.
¶7 	Here, because the court’s order classifying the case file as
private was entered on the same day the complaint was filed, the
Tribune had no opportunity, as a practical matter, to file a
request for notice before Tillotson’s motion to close the record
was submitted. The Tribune was therefore not served with
notice of the motion, and no hearing on the motion was held
before the court granted the motion. The Tribune then sought to
intervene to challenge the court’s order classifying the record as
private.
¶8 	An 	individual 	or 	entity 	that 	is 	not 	a 	party 	to 	the
underlying 	action 	has 	two 	possible 	avenues 	of 	relief 	in
challenging an order classifying court records.1 First, as here, the
nonparty could move to intervene as a party in the case and
would be entitled to challenge the classification of court records
1. 	The 	Utah 	Code 	of 	Judicial 	Administration 	provides 	a
mechanism for accessing sealed or private court records: “A
person not authorized to access a non-public court record may
file a motion to access the record. If the court allows access, the
court may impose any reasonable conditions to protect the
interests favoring closure.” Utah R. Jud. Admin. 4-202.04(2)(B).
In deciding whether to allow access to court records, the judge
must engage in the same three-step analysis outlined above for
the classification of court records as sealed or private. See id.
R. 4-202.04(3). However, the disposition of a motion to access
court records does not affect the classification of the record as
sealed or private. Therefore, a motion to access court records is
distinct from a challenge to the classification order itself.

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through direct appeal of the district court’s order. See Supernova
Media, Inc. v. Shannon’s Rainbow, LLC, 2013 UT 7, ¶ 61, 297 P.3d
599 (reversing the denial of a media company’s motions to
intervene as of right and setting aside a sealing order because the
district court had failed to make the findings required by rule
4-202.04(3)). Second, as a nonparty, the Tribune could seek a writ
of mandamus to challenge the classification of the record. See
Society of Prof’l Journalists v. Bullock, 743 P.2d 1166, 1168 n.1 (Utah
1987) (noting that “the Society’s pursuit of an extraordinary writ
[was] procedurally correct” because it had “no alternative course
to follow” as a nonparty who could not directly appeal the
district court’s order classifying records as sealed). Thus, only a
party to an action can challenge the classification of a record on
appeal, while a nonparty cannot. See Supernova, 2013 UT 7, ¶ 61;
Society of Prof’l Journalists, 743 P.2d at 1168 n.1. Therefore, our
principal inquiry is whether the district court properly denied
the Tribune’s motion to intervene as a party in the underlying
action. 	Before 	we 	reach 	that 	issue, 	we 	must 	first 	address
Tillotson’s claim that the Tribune’s challenge is moot.
I. The Tribune’s Challenge to the District Court’s Intervention
Ruling Is Not Rendered Moot by Dismissal of
the Underlying Defamation Case.
¶9 	Tillotson argues that the Tribune’s motion to intervene is
moot because the underlying action in this case was dismissed
during the pendency of this appeal. Generally, “a case is deemed
moot when the requested judicial relief cannot affect the rights of
the litigants.” Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989).
In the context of permissive intervention, the Utah Supreme
Court has held that, as a general rule, “final settlement of all
issues by all parties to a controversy renders a permissive
intervenor’s motion to intervene moot.” Millard County v. Utah
State Tax Comm’n ex rel. Intermountain Power Agency, 823 P.2d
459, 461 (Utah 1991) (citing Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice & Procedure § 3533.2,
at 236 (2d ed. 1984)).

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¶10 	Here, 	the 	Tribune 	moved 	for 	permissive 	intervention
specifically to challenge the classification of the case file as
private. Thus, the Tribune’s interest in access to the case record
is not tied to the resolution of the controversy between the
parties, and that interest is not terminated by the dismissal of the
case. With respect to the specific relief sought by the Tribune,
had permissive intervention been granted, the Tribune would
have been able to mount a direct challenge to the district court’s
order classifying the record as private in the defamation case. See
Supernova, 2013 UT 7, ¶ 61. Because the motion to intervene was
denied, the Tribune is presently precluded from challenging the
classification 	order 	on 	appeal, 	barring 	public 	access 	to 	the
record.2 See Society of Prof’l Journalists, 743 P.2d at 1168 n.1.
Accordingly, 	the 	requested 	judicial 	relief 	of 	permissive
intervention does affect the legal rights of the Tribune because
the disposition of its motion to intervene will dictate whether it
may 	challenge 	the 	district 	court’s 	classification 	order 	on
appeal—an 	issue 	neither 	resolved 	nor 	extinguished 	by 	the
dismissal of the case. See Burkett, 773 P.2d at 44. Therefore, the
Tribune’s challenge to the district court’s ruling on its motion to
intervene in the defamation case is not rendered moot by the
dismissal of the underlying case.
II. The District Court’s Failure to Provide Reasons for Its
Denial of the Tribune’s Motion to Intervene Precludes
Meaningful Appellate Review.
¶11 	An 	order 	denying 	a 	motion 	to 	intervene 	is 	a 	final
disposition 	of 	the 	claims 	asserted 	by 	the 	applicant 	for
intervention and is appealable. Millard County, 823 P.2d at 461.
Rule 24(b) governs permissive intervention and provides that
2. We note that the Tribune could obtain access to individual
records by filing additional motions to access court records,
although this alternative would not alter the classification of the
case records in this case. See supra note 1.

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“upon timely application anyone may be permitted to intervene
in an action . . . when an applicant’s claim or defense and the
main action have a question of law or fact in common.” Utah R.
Civ. P. 24(b). In exercising its discretion to permit intervention
under 	this 	rule, 	“the 	court 	shall 	consider 	whether 	the
intervention will unduly delay or prejudice the adjudication of
the rights of the original parties.” Id.
¶12 	Generally, a court’s determination under rule 24(b) is
reviewed for abuse of discretion. Department of Soc. Servs. ex rel.
State v. Sucec, 924 P.2d 882, 887 (Utah 1996). But when a district
court’s order denying a rule 24(b) request is “simply insufficient
to permit meaningful appellate review” and the district court’s
reasoning is not apparent from the record, this court cannot
properly evaluate the propriety of the district court’s actions,
and we must vacate the order and remand the matter for further
proceedings. See Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 20, 243
P.3d 1275.
¶13 	In its March 11, 2013 ruling, the district court denied the
Tribune’s motion regarding access to the case record without
addressing the motion to intervene. While the court set out the
Tribune’s 	arguments 	in 	favor 	of 	granting 	permissive
intervention, the court performed no analysis of these arguments
before moving on to consider the Tribune’s challenge to the
classification of the case file. The district court then restated its
classification of the case file as private and denied the Tribune’s
request 	to 	access 	records 	without 	ruling 	on 	the 	motion 	to
intervene. In response to the Tribune’s confusion over the status
of its intervention motion, the district court attempted to clarify
its order in a minute entry, stating, “The Court issued a ruling on
March 11, 2013 denying the Tribune[] access. The Tribune filed a
proposed Order noting that access was denied but intervention
was granted. The Court’s Ruling stands. For clarification, the
Court 	did 	not 	grant 	intervention 	to 	the 	Tribune 	and 	[the
Tribune’s motion] was denied.” On June 18, 2013, the district
court 	issued 	an 	order 	specifically 	denying 	the 	motion 	to

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intervene but failed to state any reasons for its denial. The
district court simply stated that “in connection with a minute
entry dated June 7, 2013, it is hereby ordered that [the Tribune’s]
Motion to Intervene is denied.”
¶14 	Based 	on 	the 	record 	before 	us, 	we 	cannot 	conduct
meaningful 	review 	of 	the 	district 	court’s 	decision 	on 	the
intervention motion. Neither the order nor the minute entry
provides any explicit findings or articulates any basis for the
district court’s denial of the motion to intervene. We are unable
to determine whether the district court found that the Tribune’s
claim for intervention lacked “a question of law or fact in
common” with the main action. See Utah R. Civ. P. 24(b). We
also cannot determine whether the court “consider[ed] whether
the 	intervention 	[would] 	unduly 	delay 	or 	prejudice 	the
adjudication of the rights of the original parties.” Id. For these
reasons, this court is unable to “ascertain the basis of the trial
court’s decision,” and thus, we are “prevented from effectively
reviewing the trial court’s decision and may remand for the
entry of [the required] findings.” See Allen v. Ciokewicz, 2012 UT
App 162, ¶ 42, 280 P.3d 425 (citation and internal quotation
marks omitted). We therefore vacate the district court’s denial of
the Tribune’s motion to intervene and remand the matter to the
district court for further proceedings.3
III. We Lack Jurisdiction to Consider the Tribune’s Challenge to
the District Court’s Classification Order Because
the Tribune Is a Nonparty.
¶15 	As it stands, the Tribune is a nonparty. Unless and until it
is 	made 	a 	party, 	it 	may 	not 	appeal 	the 	district 	court’s
classification order. See Society of Prof’l Journalists v. Bullock, 743
P.2d 1166, 1168 n.1 (Utah 1987). We therefore lack jurisdiction to
3. We express no opinion on whether the district court should
grant the Tribune intervenor status.

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consider 	the 	Tribune’s 	challenge 	to 	the 	district 	court’s
classification of the case record on direct appeal from the district
court’s denial of the Tribune’s motion to intervene. See Weber
County v. Ogden Trece, 2013 UT 62, ¶ 28, 321 P.3d 1067 (noting
that because the appellants were nonparties, they were “not
entitled to an appeal as of right”); Brigham Young Univ. v. Tremco
Consultants, Inc., 2005 UT 19, ¶ 46, 110 P.3d 678 (“As nonparties,
[the appellants] cannot appeal the [district court’s] order.”),
overruled on other grounds by Madsen v. JPMorgan Chase Bank, NA,
2012 UT 51, 296 P.3d 671.
CONCLUSION
¶16 	Based on the record before us, we are unable to determine
whether the district court properly denied the Tribune’s motion
to intervene pursuant to rule 24(b) of the Utah Rules of Civil
Procedure. Accordingly, we vacate the district court’s order
denying the Tribune’s motion to intervene and remand this
matter for further proceedings. On remand, the district court
shall 	enter 	adequate 	findings 	and 	reasoning 	to 	support 	its
ultimate decision to grant or deny the Tribune’s motion to
intervene in accordance with the requirements of rule 24(b).