Wells Fargo v. Kearns

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Wells Fargo Bank, N.A.,
Plaintiff and Appellee,

v.

Michael J. Kearns,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000271-CA

F I L E D
March 22, 2001 2001 UT App 96 -----

Third District, Salt Lake Department
The Honorable Sandra Peuler

Attorneys:
Mark S. Swan, Midvale, for Appellant
Mark A. Larsen and Joleen S. Mantas, Salt Lake City, for Appellee

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Before Judges Jackson, Orme, and Thorne.

JACKSON, Associate Presiding Judge:

Michael J. Kearns (Kearns) appeals the trial court's denial of his Motion to Set Aside the Default Judgment (Motion), claiming that (1) the Motion was timely filed, (2) his failure to respond to the complaint was due to excusable neglect, and (3) he has a meritorious defense. Wells Fargo Bank, N.A. (Wells Fargo) counters, claiming Kearns's arguments are frivolous, and requests sanctions be awarded. We affirm the trial court's denial of Kearns's Motion and decline to impose sanctions.

"To be relieved from the default [judgment], [Kearns] must show [1] that his motion to set aside was timely, [2] that he has a meritorious defense, and [3] that the default occurred for a reason specified in Rule 60(b)." Black's Title, Inc. v. Utah State Ins. Dep't, 1999 UT App 330,¶6, 991 P.2d 607. Even assuming Kearns satisfied factors one and two, we are not persuaded that the trial court abused its discretion by ruling that Kearns failed to satisfy factor three because his circumstances did not rise to the level of excusable neglect. See Lund v. Brown, 2000 UT 75,¶11, 11 P.3d 277 (standard of review applied to a trial court's Rule 60(b)(1) decision is "abuse of discretion").

Kearns was served with the complaint on August 23, 1999, by substitute service on his wife. Kearns argues that his new born son's life threatening condition and his contemporaneous engagement in efforts to terminate a trust of which he was a beneficiary combined to constitute excusable neglect on his part. See Utah R. Civ. P. 60(b) (allowing a trial court to "relieve a party or his legal representative from a final judgment, order, or proceeding for . . . excusable neglect"). However, Kearns had retained two law firms in separate proceedings at the time of service, and, in spite of his preoccupation with his son's condition, Kearns was aware of this action. Further, he was in contact with counsel regarding another matter within three days after his wife was served and gave counsel a copy of the complaint in this action. Kearns's early awareness of the complaint and his ongoing legal representation in other matters render his excusable neglect argument unpersuasive.

Moreover, Kearns does not attempt to explain how his son's condition prevented him from responding to the complaint. See Warren v. Dixon Ranch Co., 123 Utah 416, 260 P.2d 741, 743 (1953) (stating the court was "not told the nature of the illness and it [did] not appear that appellant . . . was so incapacitated that he could not have called an attorney to have his rights and the rights of the corporation protected," and "[i]llness alone is not sufficient to make neglect in defending one's action excusable" (emphasis added) (citations omitted)); Black's Title, 1999 UT App 330 at ¶10 ("[Appellant] neither described the illness, nor explained how it wholly prevented him from taking the steps required to maintain contact with counsel . . . . In the absence of such a showing, [the] assertion does not demonstrate [excusable neglect]." (Emphasis added.)). Accordingly, the trial court did not abuse its discretion.

Finally, Wells Fargo requests sanctions under Rule 33(a) of the Utah Rules of Appellate Procedure. Kearns's appeal appears to be based on good faith arguments and does not seem "frivolous or for delay." Utah R. App. P. 33(a).

Accordingly, we affirm the trial court's denial of Kearns's Motion and decline Wells Fargo's request for sanctions.
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne, Jr., Judge