Crystal Mountain v. Wilde

----ooOoo----

Crystal Mountain Property Owners Association,
Plaintiff and Appellee,

v.

Veldon Wilde,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020416-CA

F I L E D
November 15, 2002 2002 UT App 382 -----

Sixth District, Manti Department
The Honorable K.L. McIff

Attorneys:
Howard P. Johnson, Salt Lake City, for Appellant
Don R. Petersen and Leslie W. Slaugh, Provo, for Appellee -----

Before Judges Jackson, Billings, and Thorne.

PER CURIAM:

Appellant Veldon Wilde appeals an order denying a motion to extend the time for appeal pursuant to rule 4(e) of the Utah Rules of Appellate Procedure. This case is before the court on a sua sponte motion for summary disposition.

The sole issue on appeal is whether the district court abused its discretion in denying a motion to extend the time for appeal. "The discretion of the trial court to grant or deny a rule 4(e) motion is very broad, highly fact dependent, and fundamentally equitable in nature." Serrato v. Utah Transit Auth., 2000 UT App 299,¶6, 13 P.3d 616. An extension may be granted by the district court based "upon a showing of excusable neglect or good cause." Utah R. App. P. 4(e). "Excusable neglect 'is an admittedly neglectful delay that is nevertheless excused by special circumstances,' whereas good cause 'pertains to special circumstances that are essentially beyond a party's control.'" Serrato, 2000 UT App 299,¶7 (quoting Reisbeck v. HCA Health Servs., 2000 UT 48,¶13, 3 P.3d 447).

Wilde contends that Appellee Crystal Mountain Property's failure to serve a copy of the signed judgment, standing alone, constitutes good cause for granting an extension. See Utah R. Civ. P. 58A(d) ("A copy of the signed judgment shall be promptly served by the party preparing it in the manner provided in Rule 5."). However, rule 58A states that "[t]he time for filing a notice of appeal is not affected by the requirement of this provision." Utah R. Civ P. 58A(d). Wilde has not asserted any facts that allegedly rendered it beyond his control to determine the entry date for the final order or to file a timely notice of appeal. Accordingly, the excusable neglect standard is applicable. Although failure to give notice does not affect the time for filing a notice of appeal, it may be considered, along with other facts, in determining whether excusable neglect exists. See West v. Grand County, 942 P.2d 337, 340 (Utah 1997).

The district court found that Wilde's counsel (1) was aware that the court announced its ruling on the motion to amend, and (2) was served by mail on January 15, 2002, with a proposed order that notified counsel of the date on which the order would be submitted to the court for execution if no objections were filed. The order was promptly signed on January 31, 2002, and filed on the following day. Wilde should have known that entry was imminent, but he did not contact the clerk prior to March 5, 2002, when a third party contacted the clerk on his behalf. The district court determined that Wilde failed to address these facts or present other facts evidencing excusable neglect or any other ground for an extension. Under the circumstances, the district court did not abuse its discretion in denying an extension.

The district court also correctly determined that the rule 4(e) motion could not be considered on an ex parte basis. Only a motion filed before expiration of the thirty-day appeal period prescribed by rule 4(a) of the Utah Rules of Appellate Procedure may be filed ex parte. See Utah R. App. P. 4(e). A motion filed within the additional thirty-day period allowed by rule 4(e) must be served on the opposing party to allow a response. See id.

We affirm the denial of the motion to extend the time for appeal, and we dismiss the appeal for lack of jurisdiction.
 

______________________________
Norman H. Jackson,
Presiding Judge
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 

______________________________
William A. Thorne Jr., Judge