Stichting Mayflower v. Dunlap

Stichting Mayflower v. Dunlap

IN THE UTAH COURT OF APPEALS

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Stichting Mayflower Mountain Fonds; Mayflower Recreational Fonds; Consolidated Mayflower Mines, Ind.; Cooperative Centrale Raiffeisen Boerenleenbank, B.A.; Newpark Mining Co.; Lon Investments; and Murray First Thrift & Loan Co.,

Petitioners,

v.

Robert W. Dunlap, Kathy L. Dunlap, and United Park City Mines Co.,

Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040277-CA
 

F I L E D
(April 22, 2004)
 

2004 UT App 126

 

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Original Proceeding in this Court

Attorneys: E. Craig Smay, Salt Lake City, for Petitioners

Clark Waddoups and Robert B. Lochhead, Salt Lake City, for Respondents

Brent M. Johnson, Salt Lake City, for Judge Hilder

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Before Judges Billings, Orme, and Thorne.

PER CURIAM:

Stichting Mayflower Mountain Fonds and other related parties (collectively Mayflower) petition this court for extraordinary relief in the nature of mandamus pursuant to rule 65B of the Utah Rules of Civil Procedure. Mayflower requests this court to compel the trial court to re-enter a judgment that was vacated by the trial court.

After this court reversed the trial court's summary judgment in favor of the Dunlaps, the trial court entered a judgment in favor of Mayflower on March 1, 2004. At the time the trial court signed the judgment, however, it was unaware of additional pleadings in the record, including an objection to the entry of the judgment.

On March 10, 2004, the trial court vacated the March 1 judgment. In its minute entry and order vacating the judgment, the trial court noted that it had not reviewed an outstanding motion for a pre-trial conference nor the opposition to the proposed judgment. The court explained the error, stating that the trial court "believed it had a full set of pleadings when the documents were sent from Summit County to Salt Lake, but that was incorrect." The trial court had signed the order without reviewing the full record due to a clerical error. Mayflower asserts that the trial court abused its discretion when it vacated the March 1 judgment sua sponte.

Rule 60 provides the grounds for setting aside judgments. See Utah R. Civ. P. 60. Under rule 60(a), a court may correct, at any time and on its own initiative, "clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission." Utah R. Civ. P. 60(a). Additionally, pursuant to rule 60(b), a court may set aside a judgment entered by "mistake, inadvertence, surprise, or excusable neglect." Utah R. Civ. P. 60(b).

The trial court identified as error the lack of a complete record upon which it based the judgment entered March 1. The trial court apparently would not have entered the judgment had it known of the additional pleadings in the record. "[I]t is the unquestioned prerogative of the court, either upon its own motion, or upon the application of a party, to change or correct any order which it judges to have been entered by 'mistake, inadvertence, surprise, or excusable neglect' as provided by Rule 60(b), U.R.C.P. when it acts timely and within the provisions of that rule." Rees v. Albertson's, Inc., 587 P.2d 130, 132 (Utah 1978) (upholding right of trial court to reconsider, sua sponte, denial of summary judgment motion).

Because "it is well established that the court may vacate, set aside, or modify its orders or judgments entered by mistake or inadvertence," the trial court did not err in vacating the judgment when it realized its error. DLB Collection Trust v. Harris, 893 P.2d 593, 595 n.1 (Utah Ct. App. 1995). It did not abuse its discretion when it vacated the judgment to permit further consideration of the full record and further proceedings.

Accordingly, the petition is denied.

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Judith M. Billings,

Presiding Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge