Clements v. Summers

MEMORANDUM DECISION
(Not For Official Publication)

In the matter of the estate of John R. Clements,
Plaintiff and Appellee,

v.

Q. Leigh Summers,
Defendant and Appellant.

Case No. 981202-CA

F I L E D
(November 27, 1998)
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Second District, Ogden Department
The Honorable Stanton M. Taylor

Attorneys:
Michael D. Bouwhuis, Ogden, for Appellant
Kenlon W. Reeve, Ogden, for Appellee

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Before Judges Wilkins, Billings, and Orme.

ORME, Judge:

There is no question that the Second District's apparent practice of date-stamping judgments twice is confusing. The judgment here, having been signed earlier by the judge, was stamped by the clerk, apparently indicating its filing date for purposes of Utah R. Civ. P. 58A(c), on June 10. Contrary to the same rule's express directive that "[t]he clerk shall immediately make a notation of the judgment in the . . . judgment docket," id. (emphasis added), this apparently was not accomplished until June 13, which accounts for the red stamp of that date on the face of the judgment. This practice of a two-part action by the clerk, spanning several days and memorialized by inconsistent date stamps, is simply not in accordance with the rule and should be administratively remedied forthwith.

In this case, however, we need not decide the difficult question of which date would apply for determining the timeliness of appellant's extension motion because even assuming the motion was timely, we see no abuse of discretion(1) in the trial court's refusal to grant the extension.

By pointing to facts indicating he did not receive notice of the judgment, Summers argues that the trial court erred in finding that he failed to demonstrate good cause or excusable neglect. Even if true, these facts do not demonstrate the trial court abused its discretion. That is, while the record is rife with neglect, excusable neglect is absent. Instead, the record supports the trial court's conclusion that Summers's "delay is due to his own failure to act" and that he did not "present[] unique or extraordinary circumstances outside [his] control."

As the trial court noted, Summers's failure to attend the May 6 hearing was the underlying cause of his lack of actual knowledge of the adverse judgment. The record demonstrates that Summers was making a concerted effort to avoid responding to the order to show cause. That is, in January 1997 the trial court scheduled a hearing at which Summers failed to personally appear and requested a continuance through counsel. Although the court denied the continuance, it allowed another month for Summers to prepare and submit a final accounting. In addition, when the court scheduled a trial to resolve the remaining issues for April 1997, Summers again stated he was unable to attend and requested a continuance, which the court granted. The trial was then rescheduled for May 6. Because the trial had already been continued, Summers's counsel advised him there would be no further continuances and that he must attend the May 6 trial. Also, because his wife received a subpoena to appear at the May 6 proceeding, Summers should have known that the trial would go forward even in his absence. Nonetheless, Summers was not present. Because he failed to appear against their instructions, Summers's attorneys withdrew from representation. If Summers followed counsel's advice, he would have had actual knowledge of the adverse judgment on May 6, more than one month before judgment was actually entered.

Further, Summers made no effort to discover the results of the May 6 hearing. Just as "[o]ur rules . . . put the burden on counsel to check periodically with the clerk of the court as to the date of entry," West v. Grand County, 942 P.2d 337, 340 (Utah 1997) (quoting Automatic Control Prods. v. Tel-Tech, Inc., 780 P.2d 1258, 1260 (Utah 1989)), Summers, having actual knowledge of the action and the May 6 trial date, had the burden to take reasonable means to stay in contact with his attorney and/or the court clerk. Knowing that a judgment was forthcoming, Summers's "neglect or mistake was not excusable." Mini Spas, Inc. v. Industrial Comm'n of Utah, 733 P.2d 130, 132 (Utah 1987) (per curiam).

At a minimum, Summers should have exerted some effort to secure the Federal Express package sent by his attorney informing him of the judgment. As illustrated by the ten to fifteen phone calls his counsel made in a failed attempt to contact Summers, the other people involved here seem to have made every reasonable effort to notify Summers of the adverse judgment. Thus, although lack of notice of entry of judgment can be considered in determining whether there is good cause or excusable neglect justifying an extension, see West, 942 P.2d at 340, the facts here show that Summers's lack of notice resulted entirely from his failure to diligently act in a reasonably prudent manner by appearing at the May 6 hearing or maintaining contact with his counsel or making inquiries of the court clerk.

In sum, although the facts show that Summers did not receive actual notice of the entry of the judgment, this was due primarily to Summers's own conduct in failing to diligently act in a reasonably prudent manner. Consequently, there are sufficient facts in the record to support the trial court's conclusion that Summers failed to demonstrate good cause or excusable neglect and, therefore, the court did not abuse its discretion in denying the requested extension.

Affirmed.
 

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Gregory K. Orme, Judge

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WE CONCUR:
 

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Michael J. Wilkins, Associate Presiding Judge
 

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Judith M. Billings, Judge

1. See West v. Grand County, 942 P.2d 337, 339-40 (Utah 1997).