Borg v. Young

Borg v. Young

IN THE UTAH COURT OF APPEALS
 

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Jerry Diane Borg,

Plaintiff and Appellant,

v.

Patricia Young and Connie J. Talbot,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030325-CA
 

F I L E D
(July 9, 2004)
 

2004 UT App 234

 

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Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: Jay L. Kessler, Magna, for Appellant

Mitchell T. Rice and Bastiaan K. Coebergh, Salt Lake City, for Appellees

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Before Judges Jackson, Orme, and Thorne.

JACKSON, Judge:

Jerry Diane Borg appeals the district court's denial of her January 31, 2003 motion for relief from judgment made pursuant to rule 60(b) of the Utah Rules of Civil Procedure. We affirm.

In its April 2, 2003 order denying Borg's rule 60(b) motion, the district court reiterated and expounded upon the underlying legal grounds for dismissal and the grounds for denying the rule 60(b) motion:

Rule 60(b)(1) of the Utah Rules of Civil Procedure provides that the Court may relieve a party from a final judgment or order for mistake, inadvertence, surprise or excusable neglect.

The Court concludes that excusable neglect is not available to a party who simply misunderstands the legal consequences of his or her deliberate acts. The Court further concludes that carelessness by a litigant or his counsel does not afford grounds for relief under Rule 60(b). Yapp v. Excel. Corp., 186 F.3d 1222 (10th Cir. 1999); Cashner v. Freedom Stores, Inc., 98 F.3d 572 (10th Cir. 1996); Pelican Prod. Corp. v. Marino, 893 F.2d 1143 (10th Cir. 1990).

The Court finds that [Borg] deliberately made a choice not to certify the case for trial, and further relied on a stipulation that was either never agreed to by both Parties, or, at a minimum, was not Court approved. [Borg] therefore made a poor choice and mistake of judgment with regard to the legal consequences of a deliberate act for which relief is not permitted under Rule 60(b).

We agree.

We have described the excusable neglect necessary for a successful rule 60(b) motion as "the exercise of 'due diligence' by a reasonably prudent person under similar circumstances." Meadow Fresh Farms, Inc. v. Utah State Univ., 813 P.2d 1216, 1218 (Utah Ct. App. 1991) (citation omitted). In Meadow Fresh Farms, Inc., the trial court issued an order for the parties to show cause why the case should not be dismissed for the plaintiff's failure to prosecute. See id. at 1217. Neither the plaintiff nor his counsel appeared at the hearing and the case was dismissed. See id. A few weeks later, the plaintiff's counsel withdrew. See id. The plaintiff retained new counsel, who filed a rule 60(b) motion, explaining that the plaintiff was confused as to whether the original counsel had withdrawn. See Meadow Fresh Farms, Inc., 813 P.2d at 1217. In affirming the trial court's refusal to grant the rule 60(b) motion, we held that the plaintiff's confusion did not meet the excusable neglect standard because a reasonably prudent person under similar circumstances would have followed the court's order to appear. See Meadow Fresh Farms, Inc., 813 P.2d at 1218. We reasoned that a "general claim of confusion is not enough," and the plaintiff did not exercise due diligence because "the court's communication with counsel was direct--appear and explain the delay or your client's action will be dismissed." Id. at 1220.

This case is indistinguishable from Meadow Fresh Farms, Inc. The district "court's communication with counsel was direct--[certify the case ready for trial] or your client's action will be dismissed." Id. Borg did not certify the case ready for trial. Her "general claim of confusion" regarding the consequences of failing to certify "is not enough" to satisfy

rule 60(b)'s requirement of excusable neglect. Meadow Fresh Farms, Inc., 813 P.2d at 1220. Accordingly, we affirm.

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Norman H. Jackson, Judge

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WE CONCUR:

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge