BCW Enterprises, Inc. v. Lund

BCW Enterprises, Inc., dba
Warner Super Ford Store and Warner Truckland,
Plaintiff and Appellee,

v.

Richard A. Lund and Karen L. Lund
dba Lund Auto Repair,
Defendants and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981322-CA

F I L E D
June 24, 1999 1999 UT App 203 -----

Third District, Salt Lake Department
The Honorable Sheila K. McCleve

Attorneys:
Richard A. Lund, West Bountiful, Appellant Pro Se
Mark E. Medcalf and Mark S. Swan, Midvale, for Appellee

-----

Before Judges Greenwood, Billings, and Orme.

GREENWOOD, Associate Presiding Judge:

Defendant Richard A. Lund appeals the trial court's denial of his motion to set aside a default judgment entered against him. We affirm.(1)

Lund contends the trial court erred in refusing to set aside the default judgment against him under Utah Rule of Civil Procedure 60(b)(1) because his failure to answer plaintiff's complaint constituted excusable neglect and because he has a meritorious defense to the claims against him.(2) A "'trial court is endowed with considerable latitude of discretion in granting or denying a motion to relieve a party from a final judgment under Rule 60(b)(1), U.R.C.P., and this court will reverse the trial court only where an abuse of this discretion is clearly established.'" State v. Musselman, 667 P.2d 1053, 1055 (Utah 1983) (citation omitted).

Lund argues that his failure to answer the complaint was excusable because he never received the written agreement from Mr. Swan. Lund admitted, however, that he was served with the complaint and provided no adequate explanation for his failure to answer. As the trial court concluded, it was not reasonable for Lund to assume that negotiations between him and plaintiff's attorney excused him from responding to plaintiff's complaint. See Pacer Sport and Cycle, Inc. v. Myers, 534 P.2d 616, 617 (Utah 1975) (holding no excusable neglect under Rule 60 where debtor spoke with creditor's attorney and "assumed the action had been taken care of and therefore took no steps to file an answer to the complaint"). Therefore, we conclude Lund's failure to answer the complaint, while neglectful, was not excusable.

Lund also argues that the default judgment against him should have been set aside because the notice of default was sent to the wrong address. We disagree. The address to which the notice was sent was the forwarding address Mr. Lund had listed with the post office. In addition, Mr. Lund had already received the complaint and was on notice that legal proceedings had commenced against him. His failure to ensure that his mail was sent to the correct address did not constitute excusable neglect.

In sum, Lund's explanation for failing to answer the plaintiff's complaint did not constitute excusable neglect under Rule 60(b)(1).(3) Thus, the trial court did not abuse its discretion in refusing to set aside the default judgment against Lund, and we accordingly affirm the trial court's decision.
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge

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WE CONCUR:
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

_______________________________
Gregory K. Orme, Judge

1. We deny Lund's motion for summary disposition because it was not timely filed under Rule 10(a) of the Utah Rules of Appellate Procedure. See Utah R. App. P. 10(a) (requiring party to file motion for summary disposition within ten days after filing the docketing statement).

2. We do not address defendant's other claims because we have determined they are without merit. See Atcitty v. San Juan County, 967 P.2d 1261, 1264 n.2 (Utah Ct. App. 1998).

3. Because this conclusion is dispositive, we need not address whether Lund has a meritorious defense to plaintiff's complaint. See Musselman, 667 P.2d at 1056 ("This latter question [of a meritorious defense] arises only after consideration of the first question [of excusable neglect] and a sufficient excuse therefrom being shown.") (Alterations in original.) (Citation omitted.)