State of Utah in the interest of B.B.

----ooOoo---- State of Utah, in the
interest of B.B., a person
under eighteen years of age.
____________________________

B.L.B. and R.D.B.,

Appellants,

v.

State of Utah,

Appellee. )
)
)
)
)
)
)
)
)
)
))
)
) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971739-CA

F I L E D
(December 3, 1998)

-----
 

Second District Juvenile, Farmington Department
The Honorable Diane W. Wilkins

Attorneys:Scott L. Wiggins, Salt Lake City, for Appellants
Jan Graham and John Peterson, Salt Lake City, for
Appellee
Martha Pierce and Jan W. Arrington, Salt Lake City,
Guardians Ad Litem
 

-----
 

Before Judges Davis, Bench, and Jackson.

JACKSON, Judge:

"[W]hether the facts presented warrant a finding of excusable neglect[] is . . . a legal ruling[] which we review for correctness," granting a large measure of discretion to the trial court based on the wide variety of fact patterns in this area. West v. Grand County, 942 P.2d 337, 339-40 (Utah 1997).

Appellants' failure to check the order's filing date was clearly neglectful. See id. at 340. Still, "the question of whether such conduct is excusable is an equitable one, and such a determination should take into account all relevant circumstances surrounding the party's neglect." Id. Although nondispositive, the following four factors are germane to determining excusable neglect:

"'[i] the danger of prejudice to [the nonmoving party], [ii] the length of the delay and its potential impact on judicial proceedings, [iii] the reason for the delay, including whether it was within the reasonable control of the movant, and [iv] whether the movant acted in good faith.'"

Id. at 340-41 (citations omitted).

The juvenile court here did not enter findings of fact and conclusions of law in denying appellants' motion to extend the time for filing their notice of appeal. However, even under appellants' version of the facts, we conclude the trial court did not abuse its broad discretion. Appellants' appellate counsel asserts that appellants' trial counsel told him that Judge Wilkins filed her findings of fact and conclusions of law and order (the order) on October 8, 1997. Appellate counsel further asserts that on both copies of the order he received from trial counsel the file date was unclear, but could reasonably have been construed as October 8, 1997. However, the actual date the order was filed was October 6, 1998, and appellate counsel filed the appeal from the order on November 6, 1997--one day late.

We analyze these facts against the West factors for determining excusable neglect. See id. Regarding the first two factors, we recognize that a short delay of one day rarely creates much danger of prejudice to the nonmoving party and typically has little practical effect on judicial proceedings. See id. Further, as to the fourth factor, with no evidence either way, we will assume appellants did not act in bad faith. However, the third factor weighs heavily in the juvenile court's favor in determining appellants' neglect was inexcusable because the delay was wholly within appellants' control, amounting to a "'garden variety oversight.'" Prowswood, Inc. v. Mountain Fuel Supply Co., 676 P.2d 952, 960 (Utah 1984) (quoting Feltch v. General Rental Co., 421 N.E.2d 67, 73 (Mass. 1981)); see West, 942 P.2d at 340-41.

Obviously, as in West, 942 P.2d at 340-41, failure to check with the court clerk regarding a file date is not per se inexcusable. In that case, the supreme court remanded to the trial court to consider facts regarding the third factor--facts showing the reason for the delay was not entirely "within the reasonable control of the movant." Id. There, contrary to the Utah Rules of Civil Procedure, the clerk had failed to send appellant notice that the trial court's order had been filed. See id. at 339-40. Further, the trial court in the course of the litigation in that case had a practice of issuing and entering orders about six months after the parties had submitted motions for consideration, "lull[ing] [appellant] into inaction by the court's general practice." Id. at 340.

However, in this case, appellants' appellate counsel relied on trial counsel's mistaken statement regarding the filing date, knowing that the filing date shown on copies was illegible. Although the filing date could reasonably have been construed as an eight, it likewise could reasonably have been construed as a six. Moreover, Judge Wilkins had unquestionably signed the order on October 6, 1997, and her practice in this case--as opposed to the practice of the trial court in West--was to act almost instantly in signing and filing orders. See id. Indisputably, appellants are entirely responsible for failing to acquaint themselves with the juvenile court record, including the juvenile court's practices in this case, before the deadline for appeal. 1

Accordingly, we cannot say the trial court abused its broad discretion in denying appellants' motion to extend the appeal deadline. Affirmed.

______________________________
Norman H. Jackson, Judge
 

-----
 

WE CONCUR:

______________________________
James Z. Davis,
Presiding Judge

______________________________
Russell W. Bench, Judge

1. We further note that a notice of appeal need be but a single sentence document with boilerplate language that can be prepared in a matter of minutes. The decision to appeal was made and appellate counsel was on board before the juvenile court entered its order, and appellate counsel had the better part of four weeks to prepare and file the notice. By planning to act at the last minute, counsel improvidently took the risk of ultimately having to throw himself on the trial court's broad discretion.