Margis v. Lietz

Margis v. Lietz

IN THE UTAH COURT OF APPEALS

----ooOoo----

Myra Margis,
Plaintiff and Appellee,

v.

Bert Lietz,
Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20010783-CA
 

F I L E D

(April 10, 2003)
 

2003 UT App 106

 

-----

Third District, Salt Lake Department
The Honorable Leslie A. Lewis

Attorneys: Jerold D. McPhee, Salt Lake City, for Appellant

Nathan D. Pace and David Pace, Salt Lake City, for Appellee

-----

Before Judges Bench, Davis, and Thorne.

DAVIS, Judge:

Lietz argues that the trial court erred by denying his motion to set aside default judgment under rule 60(b) of the Utah Rules of Civil Procedure. We decline to address this issue because Lietz failed to timely appeal it. "It is well settled under Utah law, an order denying relief under [r]ule 60(b) is a final appealable order." Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 970 (Utah Ct. App. 1989). Accordingly, notice of appeal must be filed "within 30 days after the date of entry of the judgment or order appealed from." Utah R. App. P. 4(a); see also Utah R. App. P. 3(a). Here, the trial court filed the order denying Lietz's motion to set aside judgment on December 18, 2000. Lietz did not file notice of appeal until September 20, 2001. Therefore, we "cannot take jurisdiction" over this issue on appeal because it was "not timely brought before [us]." Amica Mut. Ins. Co., 768 P.2d at 970 (quotations and citation omitted).

Lietz argues the December 18, 2000 order was not a final order because it did not expressly rule upon "numerous pending motions and filings which had yet to be disposed of."(1) We disagree. The pending motions were before the trial court when it filed the December 18, 2000 order. Therefore, "the court implicitly [resolved]" the pending motions in its December 18, 2000 order. Morgan v. Morgan, 875 P.2d 563, 564-65 n.1 (Utah Ct. App. 1994) (addressing defendant's argument that "the summary judgment was not a final order because her objections thereto were not expressly ruled upon"). In its ruling filed August 22, 2001, the trial court clarified that the December 18, 2000 order resolved these pending motions.

Lietz also argues the trial court erred by setting aside the order to dismiss entered on March 14, 2001. "The trial court is afforded broad discretion in ruling on a motion for relief from judgment under Utah R. Civ. P. 60(b), and its determination will not be disturbed absent an abuse of discretion." Birch v. Birch, 771 P.2d 1114, 1117 (Utah Ct. App. 1989).

Rule 60(b) of the Utah Rules of Civil Procedure provides:

On motion and upon such terms as are just, the court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (6) any other reason justifying relief from the operation of the judgment.

Utah R. Civ. P. 60(b). "Relief under [subsection 6(2)] embodies three requirements: 'First that the reason be one other than those listed in sub[sections] (1) through [(5)]; second, that the reason justify relief; and third, that the motion be made within a reasonable time.'" Richins v. Delbert Chipman & Sons Co., 817 P.2d 382, 387 (Utah Ct. App. 1991) (citation and emphasis omitted). "[S]ubsection [(6)] 'should be very cautiously and sparingly invoked by the Court only in unusual and exceptional instances.'" Id. (citation omitted). Here, all three requirements are met.

First, the reason for striking the order to dismiss is not covered by subsections 1 through 5. In the ruling filed August 22, 2001, the trial court explained that it was setting aside the order to dismiss because the order "conflict[ed] with the prior Judgment and Order" filed on August 21, 1998. Relieving a party of a final judgment because it directly conflicts with a previous final judgment is not covered by subsections 1 through 5. Thus, it falls under subsection 6, "the residuary clause." Richins, 817 P.2d at 387.

Second, the reason for dismissing the order justified relief. Although a trial court cannot use rule 60(b)(6) to rule on the merits of a case, see Board of Educ. v. Cox, 14 Utah 2d 385, 384 P.2d 806, 808 (1963) (holding appellant did not qualify for consideration under rule 60(b)(6) by "asserting the Statute of Frauds and lack of consideration" because these arguments "appl[ied] to the merits of the case"), it can use rule 60(b)(6) to set aside a judgment that is "factually [in]consistent with its legal ruling" or to make a judgment "'conform to [its] ruling.'" Kunzler v. O'Dell, 855 P.2d 270, 274 (Utah Ct. App. 1993) (affirming trial court's decision to grant relief under rule 60(b)(6) because "the court thought it was entering a judgment factually consistent with its legal ruling" but learned later "the judgment did not accurately memorialize the court's legal determination"). Here, the trial court used rule 60(b)(6) to set aside an order that directly contradicted its previous judgment. Lietz filed the order to dismiss two and one-half years after the trial court issued a default judgment against him and five months after the trial court denied his motion to set aside the judgment. Although the trial court knew the settlement agreement had failed when it issued the original judgment against Lietz,(3) this knowledge was not reflected in its later order dismissing the
case because the parties had settled.(4) Consequently, two judgments were filed that directly contradicted one another. The first was issued immediately following several attempts to reenter negotiations or hold a pretrial conference and reflected the trial court's decision to enter default judgment against Lietz because he failed to attend any conferences and failed to engage in settlement negotiations. The second was filed more than two years later, when the trial court was no longer intimately involved in the case, and fails to reflect either the trial court's knowledge that the settlement agreement had failed or the trial court's intention to rule against Lietz. Thus, the trial court's decision to set aside the order to dismiss was justified.

Third, Margis's motion was made within a reasonable time. In general, to show she made her motion within a reasonable time, a party "need show only that she acted diligently once the basis for relief became available, and that the delay in seeking relief did not cause undue hardship to the opposing party." Workman v. Nagle Constr., Inc., 802 P.2d 749, 752 (Utah Ct. App. 1990) (quotations and citation omitted). In Workman, the defendant moved to set aside the judgment within a reasonable time because she filed her motion "within about a month after learning that the judgment had been entered, and her ignorance of the judgment until that time was due in part to a lack of notice that the plaintiff was required to provide." Id. Furthermore, her motion was filed "with good reason," which "also weighs heavily in favor of holding her timing to be reasonable." Id. Similarly, in this case, Margis had no reason to anticipate an order to dismiss because the trial court had already issued a judgment in her favor, and she received no notice of the order until nearly four months after it was issued, when she received a copy of it in Lietz's motion to quash garnishment. She then filed a motion to set aside the order within ten days of receiving notice. Furthermore, as discussed above, she filed her motion to set aside the order with good reason. Thus, she filed her motion within a reasonable time.

Because Lietz failed to timely appeal the issue, we decline to determine whether the trial court erred in denying Lietz's motion to set aside the default judgment. We also conclude the

trial court did not err by granting Margis's motion to set aside the order to dismiss.

______________________________

James Z. Davis, Judge

-----

WE CONCUR:

______________________________

Russell W. Bench, Judge

______________________________

William A. Thorne Jr., Judge

1. Lietz lists the motions that had yet to be disposed of as: Defendant's Objection to Plaintiff's Proposed Order Regarding Defendant's Motion to Set Aside Judgment and Award of Attorney Fees; Defendant's Motion to Strike Plaintiff's Response to Defendant's Motion to Set Aside the Default Judgment; Defendant's Opposition to Plaintiff's Motion for Release of Funds; Defendant's Proposed Order Regarding Defendant's Motion to Set Aside Judgment and Award of Attorney Fees; Plaintiff's Objection to Defendant's Proposed Order Regarding Defendant's Motion to Set Aside Judgment and Award of Attorney Fees; and Plaintiff's Motion for Release of Funds.

2. Rule 60(b)(6) was previously numbered 60(b)(7). We refer to the current version.

3. The trial court received notice that the settlement had failed on November 3, 1997, when Margis mailed a letter to the court detailing the failed settlement, and again on July 31, 1998, when Margis moved the trial court to hold Lietz in contempt for failure to comply with the settlement. In fact, after receiving notice, the trial court ordered the parties to engage in new settlement discussions prior to the pretrial conference.

4. Although the order to dismiss defines the purported accomplishment of the settlement agreement as an accord and satisfaction, the terms listed as the accord are the terms of the settlement agreement.