N.F. v. G.F.

1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2013 UT App 281
_________________________________________________________
THE UTAH COURT OF APPEALS
N.F.,
Petitioner and Appellee,
v.
G.F.,
Respondent and Appellant.
Opinion
No. 20120641-CA
Filed November 21, 2013
Second District Juvenile Court, Ogden Department
The Honorable Michelle E. Heward
No. 1064022
Charles R. Ahlstrom and Zane S. Froerer,
Attorneys for Appellant
Elizabeth Hunt, Attorney for Appellee
SENIOR JUDGE JUDITH M. BILLINGS authored this
Opinion, in which JUDGES CAROLYN B. MCHUGH and
J. FREDERIC VOROS JR. concurred.1
BILLINGS, Senior Judge:
¶1 G.F. (Grandmother) appeals the entry of a protective order
against her, which was requested by N.F. (Mother) on behalf of her
daughter (Child). We do not reach Grandmother’s claims, however,
because we determine that they are now moot and do not fit either
of the argued exceptions to the mootness doctrine. Thus, we
dismiss Grandmother’s appeal.

N.F. v. G.F.
20120641-CA 2 2013 UT App 281
BACKGROUND
¶2 In November 2011, Child told Mother that Grandmother,
her paternal grandmother, had sexually abused her. Mother
reported Child’s statements to authorities and then filed a petition
for an ex parte child protective order in February 2012. After
Grandmother responded and the trial court held hearings on the
matter, the trial court issued a protective order in July 2012.
Grandmother filed a notice of appeal that same month, contesting
the judgment and order underlying the issuance of the protective
order.
¶3 Shortly before the protective order was set to expire in
December 2012, and while this appeal was pending, Mother moved
to extend the protective order. The trial court extended the order
on a temporary basis and held an evidentiary hearing in March
2013, but ultimately denied Mother’s motion to extend the
protective order. Consequently, the protective order expired on
March 18, 2013.
¶4 Mother subsequently filed a suggestion of mootness with
this court, seeking dismissal of the appeal and an award of attorney
fees. Grandmother responded, arguing that her issues are not moot
and that, even if they were, certain exceptions allow this court to
consider those issues nonetheless. This court refused to dismiss the
appeal at the time but allowed the parties to include their
mootness-related arguments within their briefs on appeal. We now
address those arguments.
ISSUES AND STANDARDS OF REVIEW
¶5 Before we can address the issues Grandmother raises in her
appeal, we must address Mother’s contention that the appeal is
moot. This is because “[w]here the issues that were before the trial
court no longer exist, the appellate court will not review the case.”
In re Adoption of L.O., 2012 UT 23, ¶ 8, 282 P.3d 977 (citation and
internal quotation marks omitted). Since we determine that the

N.F. v. G.F.
2. Our supreme court has recently expressed disfavor for the term
“public interest exception” because “it implies some controlling
significance in the public interest in the question presented for
(continued...)
20120641-CA 3 2013 UT App 281
issues raised on appeal are indeed moot, we do not address
Grandmother’s arguments of error on their merits.
¶6 We also address Mother’s various requests for an award of
attorney fees on appeal. Under rule 33 of the Utah Rules of
Appellate Procedure, “if the court determines that a motion made
or appeal taken under these rules is either frivolous or for delay, it
shall award just damages.” Utah R. App. P. 33(a) (emphasis added).
However, the decision of whether to award attorney fees due to
briefing violations is in the court’s discretion. See id. R. 24(k)
(“Briefs which are not in compliance may be disregarded or
stricken, on motion or sua sponte by the court, and the court may
assess attorney fees against the offending lawyer.”).
ANALYSIS
I. Mootness
¶7 “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). Certainly the issues raised here are moot.
The protective order that Grandmother contests ultimately expired
on March 18, 2013. Thus, the relief she seeks in challenging the
order will no longer affect her rights. However, there are certain
narrow exceptions that allow an appellate court to consider moot
issues. Grandmother argues that two of these exceptions apply.
A. Public Interest Exception
¶8 Grandmother first invokes what she refers to as the “public
interest exception.” This “exception to the mootness doctrine arises2

N.F. v. G.F.
2. (...continued)
review,” and the court has stated an intention to simply use the
term “exception” in the future. Utah Transit Auth. v. Local 382 of the
Amalgamated Transit Union, 2012 UT 75, ¶ 33, 289 P.3d 582.
Although we use the term “public interest exception” herein, we do
so only to differentiate this exception to the mootness doctrine from
the collateral consequences exception to the doctrine, which we
also discuss.
20120641-CA 4 2013 UT App 281
when the case [1] presents an issue that affects the public interest,
[2] is likely to recur, and [3] because of the brief time that any one
litigant is affected, is capable of evading review.” In re Adoption of
L.O., 2012 UT 23, ¶ 9, 282 P.3d 977 (alterations in original) (citation
and internal quotation marks omitted).
¶9 As to the first requirement, Grandmother argues that the
issue here goes to “the validity or construction of a statute,” which
is a type of claim affecting the public interest, see Barnett v. Adams,
2012 UT App 6, ¶ 11, 273 P.3d 378 (citation and internal quotation
marks omitted). We disagree. We are not persuaded that the issue
Grandmother raises is truly a challenge to the trial court’s
construction of a statute. Grandmother argues that the trial court
misinterpreted Utah Code section 78B-7-203 and allowed any
possibility of future abuse to satisfy a finding of Child being “in
imminent danger of being abused,” see Utah Code Ann. § 78B-7-
203(5) (LexisNexis 2012). We conclude that the trial court made no
such broad interpretation. The trial court’s finding was based,
rather, on the unique facts of the case. The trial court
acknowledged Mother’s admission that “[Child’s] parents can
adequately protect her against any potential harm from
[Grandmother].” However, the court noted that this admission was
made when an ex parte protective order was in place, protecting
Child from contact with Grandmother, and that the parents’ ability
to protect Child was due to the order then in place. Thus, the
admission was not given much weight on the question of whether
Child was then in imminent danger of abuse that required the
entry of a protective order. The trial court specifically stated that it

N.F. v. G.F.
20120641-CA 5 2013 UT App 281
was considering “the likelihood that the abuse would continue in the
future if an order is not issued,” (emphasis added), and we do not
see that the court found imminent danger based on the existence of
any possibility of future abuse.
¶10 We are also unconvinced that the second requirement for
the public interest exception is met here. Under this requirement,
the claim raised must be “‘likely to recur in a similar manner’” in
future cases. See Barnett, 2012 UT App 6, ¶ 12 (quoting Anderson v.
Taylor, 2006 UT 79, ¶ 10, 149 P.3d 352). As explained above, the
decision of the trial court is dependent on a unique combination of
the factual circumstances of the case, including the admission
regarding the parents’ ability to protect Child, the existence of the
ex parte protective order and the timing of its expiration, the issues
caused by the parents’ pending divorce, the age and vulnerability
of Child, and the extensive and severe abuse allegations. Because
the factual underpinnings of each child abuse case are different and
because such facts are necessarily the basis of the trial court’s
determination of whether a child is in imminent danger of being
abused, the issues of which Grandmother complains are not likely
to be raised in a similar manner in other future cases. Cf. Putman v.
Kennedy, 900 A.2d 1256, 1265 n.14 (Conn. 2006) (“[A]lthough the
defendant claims numerous due process and statutory violations,
his pro se brief filed before the Appellate Court indicates that they
all are rooted in the trial court’s exercise of its discretion with respect
to the facts of these particular cases, and his brief to this court, filed by
counsel, does not indicate otherwise. Thus, although the ‘capable
of repetition, yet evading review’ exception might well be
applicable in a domestic violence restraining order case raising
broader issues than those presented here, the Appellate Court
properly concluded that the exception did not apply to this
appeal.”); In re Jeffrey C., 779 A.2d 765, 772 (Conn. App. Ct. 2001)
(determining that an issue was “not capable of repetition” where
the issue was limited “to the case at hand and preclude[d] any far
reaching impact in future Juvenile Court proceedings”), rev’d on
other grounds, 802 A.2d 772 (Conn. 2002).

N.F. v. G.F.
20120641-CA 6 2013 UT App 281
¶11 Thus, we determine that Grandmother has failed to show
that the issues she raises affect the public interest or that they are
likely to recur in a similar fashion. The public interest exception
therefore does not save Grandmother’s claims from a mootness
challenge.
B. Collateral Consequences Exception
¶12 The collateral consequences exception to the mootness
doctrine has been employed primarily in criminal cases and applies
when “collateral legal consequences may result from an adverse
decision.” Barnett v. Adams, 2012 UT App 6, ¶ 7, 273 P.3d 378.
“Accordingly, the examples of collateral consequences that
preclude a case from mootness are relatively limited.” Id. First, “the
consequences must be ‘imposed by law’ as a direct result of the
challenged action.” Towner v. Ridgway, 2012 UT App 35, ¶ 7, 272
P.3d 765 (citation omitted). Further, “a litigant must show that the
collateral consequences complained of are not merely hypothetical
or possible but that they are probable and represent actual and
adverse consequences.” Barnett, 2012 UT App 6, ¶ 8.
¶13 The collateral consequences Grandmother complains of are
social stigma, pain, damaged family relationships, the possibility
that Mother may make embarrassing information public or take
future civil action, and the potential impact of “findings” that
Grandmother sexually abused a minor. The majority of the
consequences that Grandmother raises are not legal collateral
consequences but emotional tolls, which are likely existent in most
cases. We find no support for considering such emotional tolls
under the collateral consequences exception. See, e.g., Towner, 2012
UT App 35, ¶ 9 (refusing to consider the consequences of “harm to
[the Respondent’s] reputation, family relationships, and
employment prospects” because they were “not imposed by law”
(citation and internal quotation marks omitted)).
¶14 As to Grandmother’s concern that the trial court made
findings that she had abused Child and that Mother may use these
to pursue further civil action, Grandmother has not shown that

N.F. v. G.F.
20120641-CA 7 2013 UT App 281
these findings will probably lead to adverse legal consequences for
her. We have previously addressed a situation where a protective
order actually led to the respondent being placed on a list that
would have allegedly prevented her from fostering, adopting, or
working with children, yet we determined that the collateral
consequences argued were “merely speculative” because the
respondent did not show that she was pursuing any of these
activities. See Barnett, 2012 UT App 6, ¶ 9. Grandmother’s alleged
collateral consequences here are similarly hypothetical and
speculative, and do not support the application of the collateral
consequences exception to the mootness doctrine.
II. Attorney Fees
¶15 Mother requests an award of attorney fees based on rule 33
of the Utah Rules of Appellate Procedure. This rule provides,
“Except in a first appeal of right in a criminal case, if the court
determines that a motion made or appeal taken under these rules
is either frivolous or for delay, it shall award just damages . . . to
the prevailing party.” Utah R. App. P. 33(a). Mother argues that
Grandmother’s appeal was both frivolous and filed for the purpose
of delay. We disagree.
¶16 A frivolous appeal is “one that is not grounded in fact, not
warranted by existing law, or not based on a good faith argument
to extend, modify, or reverse existing law.” Id. R. 33(b). Mother
claims that Grandmother’s appeal is frivolous because the issues
raised are moot. However, as was discussed above, see supra ¶ 3,
the protective order at issue did not expire until after this appeal
had already been taken.
¶17 Mother also argues that the appeal is frivolous because a
party may not appeal a summary judgment denied due to the
existence of disputed material facts. However, the trial court did
not deny a motion for summary judgment but instead treated
Grandmother’s motion as a motion to dismiss. Thus,
Grandmother’s argument is really that the trial court erred in not
considering her motion as one for summary judgment, not that the

N.F. v. G.F.
20120641-CA 8 2013 UT App 281
trial court erroneously denied it based on disputed facts. Further,
even if Mother is correct that this issue would be unsuccessful on
the merits, this does not mean that it is necessarily frivolous. See
Munns v. Munns, 790 P.2d 116, 123 (Utah Ct. App. 1990) (“[A]n
unsuccessful appeal which is worthy of consideration is not an
egregious case worthy of sanctions and, therefore, is not
frivolous.”).
¶18 Mother next sets forth a long list of what she terms “factual
inaccuracies” occurring in Grandmother’s brief. Although Mother
and Grandmother interpret the facts differently based on assertions
made in their respective arguments, this does not make
Grandmother’s appeal frivolous. “A party’s case is not frivolous
where its ‘brief as a whole is supported by the record, and the
[party] makes good faith arguments that are adequately supported
by case law,’ as opposed to a case in which the ‘record [is] devoid
of admissible supporting evidence’ and ‘the cause of action
completely lack[s] merit.’” Clatterbuck v. Call, 2007 UT App 76U,
para. 6 (alterations in original) (quoting Carrier v. Salt Lake Cnty.,
2004 UT 98, ¶ 19, 104 P.3d 1208). This is true even when, “at times,
[a party] arguably stretches certain facts to cast them in a more
favorable light.” See Carrier, 2004 UT 98, ¶ 19.
¶19 As to Mother’s delay argument, an appeal taken for delay
“is one interposed for any improper purpose such as to harass,
cause needless increase in the cost of litigation, or gain time that
will benefit only the party filing the appeal,” Utah R. App. P. 33(b).
Mother simply contends that Grandmother repeatedly delayed the
appeal by first entering a noncompliant brief and then by being
tardy in submitting a corrected one. But Mother does not argue,
nor do we see, that the appeal itself “was interposed for any
improper purpose,” see id.
¶20 Mother also requests an award of attorney fees for certain
technical violations of the appellate briefing rules found in rule 24
of the Utah Rules of Appellate Procedure. “[T]he requirements of
[rule 24] serve to focus the briefs, thus promoting more accuracy
and efficiency in the processing of appeals.” Burns v. Summerhays,

N.F. v. G.F.
20120641-CA 9 2013 UT App 281
927 P.2d 197, 199 (Utah Ct. App. 1996) (citation and internal
quotation marks omitted). We conclude that Grandmother’s brief
sufficiently complies with the briefing requirements, and we deny
Mother’s request for attorney fees on this basis as well.
CONCLUSION
¶21 We determine that the issues raised in this appeal are moot
due to the expiration of the underlying protective order. We also
determine that the public interest and collateral consequences
exceptions to the mootness doctrine do not apply. Therefore, we
dismiss the appeal as moot. We also deny Mother’s multiple
requests for an award of attorney fees.