Fisher v. Minnock

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IN THE UTAH COURT OF APPEALS ----ooOoo---Misty L. Fisher, Plaintiff and Appellee, v. Mishel Minnock, Defendant and Appellant. ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20051128-CA F I L E D (June 29, 2006) 2006 UT App 272 ----Third District, Salt Lake Department, 040927544 The Honorable Stephen L. Roth Attorneys: Kevin D. Swenson, Salt Lake City, for Appellant Stephen D. Spencer, Murray, for Appellee ----- Before Judges Billings, McHugh, and Orme. PER CURIAM: Mishel Minnock appeals the trial court's order denying her motion to set aside a default judgment under rule 60(b) of the Utah Rules of Civil Procedure.1 We affirm. On December 29, 2004, Misty L. Fisher filed a complaint alleging various causes of action against Minnock. Minnock was served with the complaint in March 2005, but failed to file an answer. On April 18, 2005, Fisher moved for entry of default judgment. The trial court scheduled an evidentiary hearing regarding damages for June 24. Although Minnock claimed she did not receive timely notice of this hearing, the record reflects that the trial court timely mailed notice to Minnock's last known address. An evidentiary hearing was held on June 24, and the trial court awarded damages as prayed for and substantiated by Fisher. On July 5, the trial court entered findings of fact and 1. After filing this appeal, Minnock filed a Motion for Stay Pending Outcome of Bankruptcy Proceedings. No memorandum of law accompanies this motion, and no legal analysis is offered in support of the motion. The Tenth Circuit has held that 11 U.S.C. § 362(a)(1) does not prevent a debtor from commencing or continuing her own appeal. See Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir. 1997) (citing In re Lyngholm, 24 F.3d 89, 91-92 (10th Cir. 1994)). Thus, Minnock's bankruptcy has no effect on our disposition of her appeal. conclusions of law, along with a default judgment in favor of Fisher in the amount of $35,352.50. The following day, Minnock filed her motion to set aside the default judgment pursuant to rule 60(b), see Utah R. Civ. P. 60(b), on the basis that she did not receive timely notice of the June 24 hearing. Minnock's motion suggested that her failure to receive timely notice established a ground to set aside the default judgment under rule 60(b)(1) or (6). See Utah R. Civ. P. 60(b)(1), (6). However, Minnock never offered a meritorious defense in support of her motion. After full briefing and oral argument, the trial court denied Minnock's motion. Minnock asserts that the trial court erred when it denied her motion to set aside the default judgment. Although "judgments by default are disfavored by the law," Wright v. Wright, 941 P.2d 646, 649 (Utah Ct. App. 1997), in general, "a trial court has broad discretion in deciding whether to set aside a default judgment," Lund v. Brown, 2000 UT 75,¶9, 11 P.3d 277 (per curiam). "To be relieved from the default, [Minnock] must show that [her] motion to set aside was timely, that [she] has a meritorious defense, and that the default occurred for a reason specified in rule 60(b)." Black's Title, Inc. v. Utah State Ins. Dep't, 1999 UT App 330,¶6, 991 P.2d 607. As noted above, Minnock failed to present a meritorious defense to the trial court. On appeal, Minnock once again fails to argue a meritorious defense.2 Accordingly, we affirm. ______________________________ Judith M. Billings, Judge ______________________________ Carolyn B. McHugh, Judge ______________________________ Gregory K. Orme, Judge 2. We recognize that a trial court's discretion regarding rule 60(b) motions is not limitless and "must be based on adequate findings of fact and on the law." Lund v. Brown, 2000 UT 75,¶9, 11 P.3d 277 (per curiam) (quotations and citation omitted). While the trial court's order simply denied Minnock's motion, it specifically incorporated the reasoning stated on the record. Because the transcript of the oral argument was not provided in this case, we presume the correctness of the proceedings below. See State v. Blubaugh, 904 P.2d 688, 699 (Utah Ct. App. 1995). 20051128-CA 2

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