Painewebber v. Robertson

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Painewebber, Inc., a Delaware corporation;
Kidder Peabody & Co., Inc., a Delaware corporation;
and Van Francis Dunn, Jr., an individual,
Plaintiffs and Appellees,

v.

The Robertson Family Trust,
by and through James L. Robertson, Trustee,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000043-CA

F I L E D
December 14, 2000
2000 UT App 355
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Third District, Salt Lake Department
The Honorable Sandra Peuler

Attorneys:
Brian W. Steffensen and Mark A. Riekhof, Salt Lake City, for Appellant
Robert W. Payne, Salt Lake City, for Appellees

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Before Judges Bench, Billings, and Davis.

DAVIS, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs [including the supplemental briefs,] and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

The Robertson Family Trust (the Trust) appeals the trial court's denial of its motion for an extension of time to file a notice of appeal and its "motion for reconsideration." The Trust claims that the trial court abused its discretion when it denied the Trust's motion for an extension of time to appeal pursuant to Rule 4(e) of the Utah Rules of Appellate Procedure. "The discretion of the trial court to grant or deny a Rule 4(e) motion is very broad, highly fact dependant, and fundamentally equitable in nature." Serrato v. Utah Transit Authority, 2000 UT App 299,¶6.

The Trust also claims that the trial court abused its discretion when it denied the Trust's "motion to reconsider." Treating the "motion to reconsider" as a motion under either Rule 59 or 60 of the Utah Rules of Civil Procedure,(1) we review the decision of the trial court for an abuse of discretion. SeeState v. Loose 2000 UT 11,¶8, 994 P.2d 1237; Van Der Stappen v. Van Der Stappen, 815 P.2d 1335, 1337 (Utah Ct. App. 1991).

The trial court's discretion is very broad and fact dependent, see Serrato, 2000 UT App 299 at ¶6, and, given the facts before it, we are not convinced that the trial court abused its discretion when it denied the Trust's motion for an extension of time. Although the Trust argues that its neglect should be excused because the court clerk provided the Trust with the incorrect filing date,(2) the trial court's findings indicate that the court was not persuaded by the Trust's excuse. Specifically, the trial court found that the Trust knew that Painewebber had submitted a proposed order on summary judgment. However, the Trust waited over thirty days from the time that Painewebber submitted its proposed order until it checked with the court to see whether the order had been executed. Furthermore, upon learning that the order had been signed, the Trust waited two more days until it filed its notice of appeal,(3) and the Trust failed to pay the required filing fee, further delaying the filing of the notice of appeal. See Utah R. App. P. 3(f). Consequently, "[a]lthough it appears that the neglect in this case was not particularly egregious, the district court did not abuse its broad discretion in denying [defendant's] motion for an extension of time." Reisbeck v. HCA Health Servs. of Utah, Inc., 2000 UT 48,¶16, 2 P.3d 447.

The Trust also claims that the trial court erred in denying its motion to extend the time in which to file an appeal because the misinformation from the court clerk's office was a unique circumstance justifying an extension of time. See West v. Grand County, 942 P.2d 337, 341 (Utah 1997) ("'If the district court induced detrimental reliance by an appellant resulting in the filing of an untimely notice of appeal, we may allow the appeal in the "best interests of justice" given such unique circumstances.'" (quoting Senjuro v. Murray, 943 F.2d 36, 37 (10th Cir. 1991) (per curiam))). Even if the misinformation amounted to a unique circumstance, it was well within the trial court's discretion to balance this circumstance against all other relevant circumstances concerning the Trust's neglect. See West, 942 P.2d at 340. Here, the findings of the trial court indicate that the court looked at all relevant circumstances(4) surrounding the late filing and concluded, within its broad discretion, that the neglect was not excusable. Therefore, we are not convinced that the trial court abused its discretion when it denied the Trust's motion for an extension of time in which to file an appeal.

The Trust also argues that the trial court abused its discretion when it denied the Trust's "motion for reconsideration." In its "motion for reconsideration," the Trust merely presented the trial court with the same facts and arguments that it had relied upon in its motion for an extension of time. The trial court again found these arguments unpersuasive and denied the Trust's "motion for reconsideration." We are not convinced that the trial court abused its discretion when it denied the Trust's "motion for reconsideration" because the Trust did not provide the trial court with any additional facts or relevant law that would have justified the granting of a motion under either Rule 59 or 60 of the Utah Rules of Civil Procedure.

Accordingly, we affirm the trial court's denial of the Trust's motion for an extension of time to appeal and the trial court's denial of the Trust's "motion for reconsideration."
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Judith M. Billings, Judge

1. In its brief, the Trust characterizes its "motion to reconsider" as a motion under Rule 59 and/or Rule 60 of the Utah Rules of Civil Procedure.

2. The Trust focuses solely upon the misinformation as the basis for its claim of excusable neglect; however, "the question of whether such conduct is excusable is an equitable one, and such a determination should take into account all relevant circumstances surrounding the party's neglect." West v. Grand County, 942 P.2d 337, 340 (Utah 1997) (emphasis added).

3. "A notice of appeal is not a complex document. As is typical, the notice of appeal . . . is a document consisting of a heading, two sentences, and date and signature lines." Serrato, 2000 UT App 299 at ¶5 n.2.

4. These included: (1) The Trust knew that the district court had granted summary judgment; (2) the Trust knew that Painewebber had submitted a proposed order for summary judgment to the district court for signature; (3) the Trust submitted an objection to the proposed order; and (4) the Trust did not check on the status of the order for forty-five days from submission of the proposed order and thirty-four days from the submission of its own objection.