Swanson v. Swanson

----ooOoo----

Chris Swanson and Laurie Swanson,
Plaintiffs and Appellants,

v.

Beverly Swanson, an individual,
Clinton Swanson, an individual,
Nikki Shumway, an individual,
all dba Swanson Enterprises;
and Swanson Enterprises, Inc.,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981285-CA

F I L E D
April 22, 1999
  1999 UT App 125 -----

Fourth District, Provo Department
The Honorable Anthony W. Schofield

Attorneys:
Chris Swanson and Laurie Swanson, Glendale,California, Appellants Pro Se
Thomas W. Seiler, Provo, for Appellees Swanson and Shumway
Phillip E. Lowry and John L. Valentine, Provo, for Appellee Swanson Enterprises

-----

Before Judges Wilkins, Jackson, and Orme.

ORME, Judge:

The reasons asserted by appellants in their Rule 60(b)(7) motion for setting aside the partial summary judgment fall within Rule 60(b)(1). See Lincoln Benefit Life Ins. Co. v. D.T. Southern Properties, 838 P.2d 672, 674-75 (Utah Ct. App. 1992). Where "subsection (1) applies, subdivision (7) cannot apply and may not be used to circumvent the three-month filing period." Richins v. Delbert Chipman & Sons Co., 817 P.2d 382, 387 (Utah Ct. App. 1991).

Having correctly determined the appellants' motion to set aside judgment for the individual defendants could only be brought under Rule 60(b)(1), the trial court properly denied the motion as untimely.

Likewise, the trial court acted within its discretion when it ruled appellants were not entitled to relief under Rule 60(b)(1) from the judgment in favor of the corporate defendant because their neglect--in particular the neglect of their attorney--was inexcusable. "[A]n attorney is the agent of the client and knowledge of any material fact possessed by the attorney is imputed to the client." Von Hake v. Thomas, 858 P.2d 193, 194 n.3 (Utah Ct. App. 1993), modified on other grounds, 881 P.2d 895 (Utah Ct. App. 1994). Moreover, "[m]ere inconvenience or the press of personal or business affairs" does not excuse neglect. Valley Leasing v. Houghton, 661 P.2d 959, 960 (Utah 1983). Nor is "[i]llness alone . . . sufficient to make neglect in defending one's action excusable." Warren v. Dixon Ranch Co., 123 Utah 416, 420-21, 260 P.2d 741, 743 (Utah 1953).(1)

Finally, the underlying summary judgment motions were properly granted. Rule 56(e) provides: When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Utah R. Civ. P. 56(e) (emphasis added). "Summary judgment is never used to determine what the facts are, but only to ascertain whether there are any material issues of fact in dispute." Hill v. Grand Cent., Inc., 25 Utah 2d 121, 123, 477 P.2d 150, 151 (Utah 1970). In failing to respond to the motions, appellants essentially conceded--procedurally speaking, albeit not in fact--that the material facts were not in dispute and that defendants were entitled to judgment as prayed. See Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1044 (Utah 1983).(2)

Affirmed.
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 

______________________________
Norman H. Jackson, Judge

1. Having affirmed the trial court's denial of the Rule 60(b) motions on other grounds, we need not decide whether appellants adequately demonstrated a meritorious defense. See Miller v. Brocksmith, 825 P.2d 690, 693 (Utah Ct. App. 1992).

2. Appellants also argue on appeal that the trial court prevented appellants' new counsel from making his arguments at the hearing on the Rule 60(b) motions. We have considered this argument and have determined that it is without merit. The same is true of any challenge concerning the propriety of Rule 54(b) certification and of appellees' arguments concerning jurisdiction over, and the proper scope of, this appeal. We therefore decline to address these issues further. See State v. Carter, 776 P.2d 886, 888 (Utah 1989); State v. Payne, 964 P.2d 327, 332 n.3 (Utah Ct. App. 1998).