Baum v. Russell et al

Terry Baum v. Russell et al., Case No. 981123-CA, Filed October 16, 1998. IN THE UTAH COURT OF APPEALS

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MEMORANDUM DECISION (Not For Official Publication)       Terry Baum and Karla Baum, Plaintiffs and Appellees, 

v. 

Harvey M. Russell, Rocky H. Russell, and Tooele Valley Tannery, Hide and Fur Dressers of Utah, Inc., a dissolved Utah Corporation, Defendants and Appellants. 

Case No. 981123-CA

F I L E D (October 16, 1998)   -----  

Third District Court, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: Scott A. Broadhead, Tooele, for Appellants -----  

Before Judges Bench, Billings and Greenwood.

PER CURIAM:

Appellants seek a reversal of the district court's order entering a default judgment against them. We affirm.

Utah R. Civ. P. 55(c) provides that a default judgment may be set aside for good cause shown and in accordance with Rule 60(b). Utah R. Civ. P. 60(b) provides that a party may be relieved of judgment for, among other things, mistake, inadvertence, surprise, or excusable neglect. Thus, in order for parties to be relieved from a default judgment, they must show that the judgment was entered against them through excusable neglect. State By & Through D. of S.S. v. Musselman, 667 P.2d 1053, 1055 (Utah 1983). See also Board of Educ. v. Cox, 384 P.2d 806, 807 (Utah 1963) (excuse must be reasonable to constitute excusable neglect). A trial court has a reasonable latitude of discretion in determining whether to set aside a default judgment so long as it avoids injustice, and its decision will not be reversed absent a clear abuse of that discretion. Heath v. Mower, 597 P.2d 855, 858 (Utah 1979); Cox, 384 P.2d at 807. "That some basis may exist to set aside the default does not require the conclusion that the court abused its discretion in refusing to do so when facts and circumstances support the refusal." Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986). Moreover, "a party trying to set aside a default judgment [entered against him for failing to attend a pretrial conference] 'must show that he has used due diligence and that he was prevented from appearing by circumstances over which he had no control'." Heath, 597 P.2d at 859(citation omitted).

In the case at hand, appellants have failed in this burden.

In its order denying the motion to set aside, the trial court correctly noted that witnesses are not required to attend first appearance hearings in criminal cases, and that appellants provided no proof that the presence of either, let alone both, was required at a criminal hearing the same day as the pretrial conference. Further, appellants failed to prove that either one in fact attended a criminal hearing, or to explain why, when one of them supposedly showed up for a criminal hearing the morning of March 3rd and discovered that he had mixed up the hearing time with that of the pretrial conference, he did not immediately call Judge Frederick to explain the situation. Indeed, appellants waited until 89 days after entry of the default judgment to file their motion to set aside. Finally, the trial court, noting that only three inches of snow fell the morning of March 3rd, declined to give credence to appellants' claim that a "severe" snowstorm caused sufficient damage to their property to prevent them from attending the pretrial conference. The trial court is in an advantaged position to judge a party's credibility, and is not obliged to believe feeble excuses offered for not attending court ordered conferences.

Under the facts and circumstances, appellants have failed to demonstrate a reasonable excuse for failing to attend the pretrial conference, and, thus, the trial court's refusal to set aside the default judgment was not an abuse of discretion.

Accordingly, we affirm the trial court.
 
 
 
 

______________________________

Russell W. Bench, Judge
 
 
 
 

______________________________

Judith M. Billings, Judge
 
 
 
 

______________________________

Pamela T. Greenwood, Judge