Federal Financial v. Mi Ranchita

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Federal Financial Company,
Plaintiff and Appellee,

v.

Mi Ranchita dba Guadalahara Grill;
and Manuel T. Armenta, as guarantor,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990151-CA

F I L E D
March 2, 2000

2000 UT App 56 -----

Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Attorneys:
Montivel A. Burke, II, Orem, for Appellants
Bryan W. Cannon and John R. Riley, Sandy, for Appellee

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Before Judges Jackson, Bench, and Billings.

JACKSON, Judge:

Appellants (hereafter Armenta) challenge the trial court's denial of their Motion to Vacate Judgment. We affirm.

Whether the trial court rightly concluded that Armenta's motion falls under Utah Rule of Civil Procedure 60(b)(1) rather than Rule 60(b)(6) is a question of law that we review for correctness. SeeLincoln Benefit Life Ins. Co. v. D.T. S. Properties, 838 P.2d 672, 674 (Utah Ct. App. 1992). Armenta contends that both his attorneys and Federal Financial failed to serve him properly with pleadings.(1)

As to his attorneys, any negligent behavior by the attorneys "is attributable to [Armenta] through principles of agency." Russell v. Martell, 681 P.2d 1193, 1195 (Utah 1984). Armenta's claim--that his attorneys' negligent behavior prejudiced the result of the case--falls under Rule 60(b)(1). See Lincoln Benefit, 838 P.2d at 675. Rule 60(b)(6) "may not be resorted to for relief when the ground asserted for relief falls within subparagraph 1" of Rule 60(b). Russell, 681 P.2d at 1195. Thus, the trial court correctly concluded that Armenta's motion falls under Rule 60(b)(1).

The record reveals only two instances when Federal Financial served papers in what might be considered an irregular fashion. However, both these instances were harmless. In the first instance, Federal Financial served the Motion for Summary Judgment on Chacon more than a month after she had withdrawn as Armenta's counsel. Nonetheless, Armenta responded to that motion just a few weeks later, indicating that he did receive the motion in a timely fashion. In the second instance, Federal Financial served the court's Order Granting Summary Judgment on Russell more than two months after he withdrew as Armenta's counsel. However, several weeks earlier, the court itself served a minute entry on Armenta at the 4133 South 2200 West address, indicating that summary judgment had been granted to Federal Financial.(2)

Armenta also complains that Federal Financial should have served him only at his home or business address. He cites no authority mandating this result, nor do we perceive any good reason to follow the rule he suggests. In fact, during those times that Armenta was represented by counsel, Federal Financial was required to serve him through that counsel. See Utah R. Civ. P. 5(b)(1) (stating when party is represented by counsel, "service shall be made upon the attorney unless service upon the party is ordered by the court" (emphasis added)).

Our review of the record and the applicable law persuades us that the trial court did not abuse its discretion when it denied Armenta's Motion to Vacate Judgment.(3) The Motion was filed on November 16, 1998, more than three months after the order from which Armenta appealed. Thus, Armenta's motion was untimely. See Utah R. Civ. P. 60(b)(1). Accordingly, we affirm the trial court's denial of Armenta's Motion to Vacate.
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Judith M. Billings, Judge

1. In connection with this argument, Armenta contends he was denied effective assistance of counsel. However, "ineffective assistance of counsel is a [S]ixth Amendment right limited to criminal law." Richins v. Delbert Chipman & Sons Co., 817 P.2d 382, 386 n.2 (Utah Ct. App. 1991).

2. There is no indication in the record what relation this address has to Armenta. We can infer, however, that it was a valid address to make contact with Armenta, as it was first used by his attorney Russell. Also, Federal Financial mailed the Notice of Entry of Judgment to Armenta at that address, by certified mail, and the record gives no indication that the Notice of Entry of Judgment was returned as undeliverable.

3. Armenta argues we should err on the side of affording him a full opportunity to present his argument. However, "'[t]he rule that the courts will incline towards granting relief to a party, who has not had the opportunity to present his case, is ordinarily applied at the trial court level . . . .'" Heath v. Mower, 597 P.2d 855, 858 (Utah 1979) (quoting Airkem Intermountain, Inc. v. Parker, 30 Utah 2d 65, 68, 513 P.2d 429, 431 (1973)).