Attorneys' Title Guarantee Fund, Inc. v. Alva

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Attorneys' Title Guarantee Fund, Inc. v. Alva Case No. 981423-CA Filed June 4, 1999 IN THE UTAH COURT OF APPEALS

Attorneys' Title Guarantee Fund, Inc., a Colorado corporation;
Edward Rollins; and Shanen Rollins,
Plaintiffs and Appellants,


Raul Alva; Elaine Alva; David Knudson;
and Guaranty National Insurance Co., a Utah corporation,
Defendants and Appellees.

(Not For Official Publication)

Case No. 981423-CA

June 4, 1999
  1999 UT App 179 -----

Third District, Salt Lake Department
The Honorable Frank G. Noel

Thor B. Roundy, Salt Lake City, for Appellants
Mark O. Morris, Daniel E. Garrison, and Scott C. Sandberg, Salt Lake City, for Appellees


Before Judges Wilkins, Billings, and Davis.


Appellants filed a complaint against Appellee, asserting among other claims unjust enrichment, wrongful lien, and slander of title relating to their purchase of a judgment from Appellee. Soon after, Appellants moved the trial court for summary judgment. Appellee filed a cross motion for summary judgment. In response, Appellants sought more time for discovery pursuant to Utah Rule of Civil Procedure 56(f). The trial court denied Appellants' summary judgment motion, and agreed to permit Appellants to conduct discovery under Rule 56(f) before ruling on Appellee's summary judgment motion.

Nearly four months passed, during which Appellants conducted no formal discovery. Appellee re-submitted his summary judgment motion for decision. In response, Appellants again requested a Rule 56(f) continuance, filing an affidavit almost identical to the one they had filed months before. The trial court refused to grant this request and entered summary judgment in Appellee's favor. Appellants filed a Motion for Reconsideration, arguing that the trial court should have granted them more discovery time under Rule 56(f). The trial court denied this motion as well. Finally, Appellants filed a Motion for Relief from Judgment under Utah Rule of Civil Procedure 60(b)(1), which the trial court also denied. This appeal followed.

We conclude the undisputed facts properly before the trial court at the time supported the trial court's original grant of summary judgment in favor of Appellee, which resulted in the dismissal of Appellants' claims against Appellee.

The principal issue presented is whether the trial court erred in denying Appellants' Motion to Set Aside Judgment. "In relevant part, Rule 60(b) provides that a trial court may relieve a party of a judgment in case of: '(1) mistake, inadvertence, surprise, or excusable neglect.'" Udy v. Udy, 893 P.2d 1097, 1099 (Utah Ct. App. 1995) (quoting Utah R. Civ. P. 60(b)). Moreover, "'[a] trial court has discretion in determining whether a movant has shown "mistake, inadvertence, surprise, or excusable neglect," and this Court will reverse the trial court's ruling only when there has been an abuse of discretion.'" Udy, 893 P.2d at 1099 (quoting Larsen v. Collina, 684 P.2d 52, 54 (Utah 1984).

Appellants contend the trial court abused its discretion when it denied their Rule 60(b) motion because the court refused to grant them more discovery time when it had stated earlier that it would set no discovery deadline, and would not rule on either party's summary judgment motion until discovery was complete. We disagree.

Appellants rightly note that the trial court, following the filing of the first Rule 56(f) Affidavit, stated that summary judgment would not be ruled upon until discovery was completed. However, Appellants are incorrect in asserting that "the court's statement was not qualified in any way." Instead, the Trial Court Minute Entry dated February 25, 1997, reads: "[T]he Court will not rule on defendant Knudson's Cross-Motion for Summary Judgment until such time as a reasonable amount of time has elapsed for the completion of discovery related to both motions." (Emphasis added.) Furthermore, Appellants should have been on notice that they must inform the court of discovery that had been attempted or why discovery had not been completed after Appellee filed a second motion to submit for decision. Instead, Appellants merely filed a duplicate of their original Rule 56(f) affidavit. The only evidence before the court was a complete absence of formal discovery on the issues previously identified by Appellants for a period of almost four months. Given these facts, we cannot say the trial court abused its discretion in determining there was no surprise or excusable neglect. Accordingly, we conclude the trial court did not abuse its discretion in denying Appellants' Rule 60(b) Motion.

Judith M. Billings, Judge



Michael J. Wilkins,
Presiding Judge

James Z. Davis, Judge