Anderson v. Stanton

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Dale Anderson,
Plaintiff and Appellee,

v.

Daniel A. Stanton and Robert S. Farr,
Defendants and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981779-CA

F I L E D
December 9, 1999
  1999 UT App 367 -----

Third District, Murray Department
The Honorable Joseph C. Fratto, Jr.

Attorneys:
Daniel A. Stanton, Salt Lake City, Appellant Pro Se
David C. Anderson, Salt Lake City, Attorney for Appellee

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Before Judges Wilkins, Billings, and Davis.

DAVIS, Judge:

Defendant Daniel A. Stanton appeals the trial court's October 1998 order denying his Motion to Dismiss.(1)

An Order and Judgment was entered against Stanton and in favor of plaintiff on November 14, 1995. Stanton did not appeal this judgment, nor did he file any post judgment motion before the trial court until September 18, 1998, when he filed the Motion to Dismiss at issue here. Stanton's motion requested relief from the 1995 judgment, which is correctly characterized as a Rule 60(b) motion under the Utah Rules of Civil Procedure. See Trembly v. Mrs. Fields Cookies, 884 P.2d 1306, 1310 n.2 (Utah Ct. App. 1994) ("[T]he substance, not caption, of a motion is dispositive in determining the character of the motion . . . ."). "We will not interfere with the trial court's broad discretion to rule on a 60(b) motion absent a showing of abuse of that discretion." Richins v. Delbert Chipman & Sons Co., 817 P.2d 382, 387 (Utah Ct. App. 1991).

By any assessment, Stanton's motion is untimely. The initial Order and Judgment was entered in November 1995. Not until almost three years later did Stanton decide to challenge the judgment on the same grounds that were before the trial court in a previous motion. Because Stanton has not provided any valid reason why his motion was not filed until almost three years after entry of judgment, we hold that the trial court did not abuse its discretion by denying the motion to dismiss. See State v. Bredehoft, 966 P.2d 285, 292 (Utah Ct. App. 1998) ("'It is well-settled that an appellate court may affirm a trial court's ruling on any proper grounds, even though the trial court relied on some other ground.'") (citation and alteration omitted), cert. denied, 982 P.2d 88 (Utah 1999).(2)

We deny Stanton's request for sanctions under Rule 11 of the Utah Rules of Civil Procedure. Plaintiff has also requested either sanctions pursuant to Rule 40 of the Utah Rules of Appellate Procedure, or attorney fees on appeal as provided for in the parties' contract. However, aside from a brief mention of Rule 40, plaintiff has failed to provide any legal analysis as to why he is entitled to such fees, citation to legal authority, or a citation to the record in support of his position. See Utah R. App. P. 24(a)(9). We accordingly deny plaintiff's request for sanctions or attorney fees incurred on appeal.
 
 
 
 

______________________________
James Z. Davis, Judge

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WE CONCUR:
 
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 
 

______________________________
Judith M. Billings, Judge

1. The October 1998 order also denied defendant's objection to the writ of garnishment. While defendant's Notice of Appeal provided that defendant was appealing the entire October 1998 order, he does not argue on appeal that that part of the order affirming the writ of garnishment was in error. Accordingly, we address only the trial court's order denying defendant's motion to dismiss.

2. Stanton challenges the judgment entered against him on the basis of lack of personal jurisdiction. A denial of a motion to vacate a judgment under rule 60(b) is ordinarily reversed only for an abuse of discretion. However, when a motion to vacate a judgment is based on a claim of lack of jurisdiction, the district court has no discretion: if jurisdiction is lacking, the judgment cannot stand without denying due process to the one against whom it runs. State v. Vijil, 784 P.2d 1130, 1132 (Utah 1989) (citations omitted).

Notwithstanding, we reject Stanton's argument that the trial court did not have personal jurisdiction over him. The record reflects that Stanton's counsel filed an Answer to the complaint, and thereby entered an appearance on his behalf. Stanton's Answer did not raise the issue of lack of personal jurisdiction. As such, Stanton's Answer constituted an appearance and gave the court personal jurisdiction. See Barber v. Calder, 522 P.2d 700, 702 (Utah 1974).

Stanton argues that his Answer was drafted by an attorney who did not follow his instructions, and was thus unauthorized. In support of this contention, the record contains a copy of a letter which Stanton promptly wrote to his attorney, requesting an amendment to the Answer. In this letter, Stanton reminded his attorney that he had never been served with process.

This argument is without merit. "[T]he long-established rule [is] that attorneys can make procedural decisions in a lawsuit . . . ." John Deere Co. v. A. & H. Equip., Inc., 876 P.2d 880, 886 n.11 (Utah Ct. App. 1994) ("[T]he thrust of § 78-51-32(2) is to give attorneys the power to act on their client's behalf, in most cases without prior consultation, as to those procedural matters of a lawsuit for which attorneys have the expertise and obligation to act in the best interests of their clients."); see also Utah Code Ann. § 78-51-32(2) (1996). Further, Stanton's letter of objection was not filed with the court until after his Answer was filed. Stanton never amended his Answer, and his attorney did not withdraw from representation until approximately seven months after the Answer was filed.