Volostnykh, v. Duncan

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Volostnykh, v. Duncan, Case No. 20000288-CA, Filed February 1, 2001 IN THE UTAH COURT OF APPEALS

Valery Volostnykh
and Nellya Volostnykh,
Plaintiffs and Appellants,


Dorothy Duncan,
Defendant and Appellee.

(Not For Official Publication)

Case No. 20000288-CA

February 01, 2001 2001 UT App 26 -----

Third District, Salt Lake Department
The Honorable Sandra Peuler

Shawn D. Turner, Salt Lake City, for Appellants
Dorothy Duncan, Salt Lake City, Appellee Pro Se


Before Judges Jackson, Billings, and Orme.


Trial courts have considerable discretion under Utah Rule of Civil Procedure 60(b) to grant or deny motions to set aside default judgments. See Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986). Consequently, we will not interfere with a trial court's decision unless an abuse of discretion is clearly shown. Id.

The trial court did not abuse its discretion under the circumstances of this case. First, plaintiffs did not provide the trial court with sufficient support for their request to set aside the judgment. They filed a one page motion with no supporting memorandum, no citation to case law, and no analysis of Rule 60(b).

Second, many of the issues raised by plaintiffs on appeal were not raised below and, thus, are not properly before us. See State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987) (stating "[u]nder ordinary circumstances, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error"). For example, plaintiffs did not inform the trial court that the property was held by a receiver, nor did they ask that the receiver be made a party to the lawsuit.

Third, contrary to plaintiffs' argument, the court successfully sent them notice of the October 27, 1999 hearing to the 3705 South 3375 West address, though notice had been returned from the 3719 South 3375 West address. Plaintiffs did not notify the court of their changed address until after the default judgment was entered, even though they had a duty to inform the court of their location and keep themselves apprized of ongoing court proceedings. See, e.g., District Court Rule 83-1.3(b) (requiring "[i]n all cases, counsel and parties appearing pro se [to] notify the clerk's office of any change in address or telephone number").

Plaintiffs have not shown that the trial court abused its discretion. "That some basis may exist to set aside the default does not require the conclusion that the court abused its discretion in refusing to do so when facts and circumstances support the refusal." Katz, 732 P.2d at 93.

Accordingly, the trial court is affirmed.

Norman H. Jackson,
Associate Presiding Judge

Judith M. Billings, Judge

Gregory K. Orme, Judge