Oseguera v. Farmers Insurance Exchange

2003 UT App 46, 68 P.3d 1008, 467 Utah Adv. Rep. 29, 2003 Utah App. LEXIS 14, 2003 WL 367231

• Court: Court of Appeals of Utah
• Decided: February 21, 2003
• Docket: 20010099-CA
• Status: Published

Opinions

OPINION

ORME, Judge:

1 Leopoldina Oseguera appeals the trial court's denial of her motion under rule 60(b)(6) of the Utah Rules of Civil Procedure for relief from a judgment improperly entered against her. Because the trial court should have set aside the judgment when its mistake was called to its attention, we reverse.

BACKGROUND

12 The facts determinative of this appeal are not in dispute. Oseguera was involved in a car accident for which she was not at fault. The responsible party's insurance company paid Oseguera $65,600. Oseguera then initiated a claim with her own insurance company, Farmers Insurance Exchange, under her underinsured motorist coverage. Oseguera and Farmers could not agree on the amount Farmers owed Oseguera, so they submitted the dispute to arbitration as required in their contract.

T3 After the arbitrator returned his findings of fact and arbitration award, Oseguera filed a complaint to partially vacate the arbitration award, and Farmers filed an answer. Oseguera then filed a motion for summary judgment, and Farmers responded by filing a motion under rule 56(F) of the Utah Rules of Civil Procedure, the thrust of which was that the court should not rule on Oseguera's summary judgment motion until the arbitrator's deposition had been taken.¹

T4 On February 29, 2000, without oral argument or notification to the parties, and without any request to submit Oseguera's summary judgment motion for decision pursuant to rule 4-501(1)(D) of the Utah Code of Judicial Administration,² the trial court entered judgment denying Oseguera's motion to partially vacate the arbitration award, summarily affirming the arbitration award,³ and denying Farmers's rule 56(f) motion.⁴ The court's sua sponte entry of judgment precluded the usual circulation among the parties of a proposed judgment and the opportunity to object prior to its entry. See Utah Code Jud. Admin. R4-504(1), (@).⁵ The court's sua sponte entry of judgment also precluded notice of entry of the judgment from being given in the usual course. See Utah R. Civ. P. 58A(d).⁶ And the court did not independently notify the parties of its intended consideration of the pending motions or of its entry of the February 29, 2000, judgment. Rather, on May 2, 2000, the trial court set a scheduling conference and oral argument for June 2, 2000.⁷

15 On June 2, 2000, when she appeared for the scheduling conference and oral argument noticed up by the court, Oseguera learned for the first time of the judgment entered against her months before. On June 29, 2000, she filed a notice of appeal from the February 29 judgment to the Utah Supreme Court, and the Supreme Court summarily dismissed that appeal as untimely, it having been filed more than thirty days following entry of the judgment. See Utah R.App. P. 4(a).

1 6 Oseguera then filed with the trial court a motion, under rule 60(b)(6) of the Utah Rules of Civil Procedure,⁸ for relief from the February 29 judgment. Without having received a response from Farmers to Osegu-era's rule 60(b) motion or a notice to submit the motion for decision, the trial court denied Oseguera's rule 60(b) motion without oral argument.⁹ Oseguera appealed to the Utah Supreme Court, and the Supreme Court transferred that appeal to this court. See Utah Code Ann. § 78-2-2(4) (1996).

ISSUE AND STANDARD OF REVIEW

7 Oseguera asks this court to reverse the trial court's denial of her rule 60(b) motion. "'A trial court has discretion in determining whether a movant has shown [rule 60(b) grounds], and this Court will reverse the trial court's ruling only when there has been an abuse of discretion."" Ostler v. Buhler, 957 P.2d 205, 206 (Utah 1998) (quoting Larsen v. Collina, 684 P.2d 52, 54 (Utah 1984)).

ANALYSIS

T8 Rule 60(b), subsections (1) through (5), give a number of specific reasons for which a party may be relieved from an adverse judgment.¹⁰ Subsection 60(b)(6) then provides that "[oln motion and upon such terms as are just, the court may in the furtherance of justice relieve a party ... from a final judgment ... for ... any other reason justifying relief from the operation of the judgment." Utah R. Civ. P. 60(b)(6).

T9 "The most common 'other reason' for which courts have granted relief [under rule 60(b)(6)] is when the losing party fails to receive notice of the entry of judgment in time to file an appeal." 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2864 (2d ed.1995). See Tubbs v. Campbell, 731 F.2d 1214, 1215-16 (5th Cir.1984) (per curiam); Buckeye Cellulose Corp. v. Braggs Elec. Constr., 569 F.2d 1036, 1038-39 (8th Cir.1978) (per curiam); Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d 808, 809-10 (D.C.Cir.1974) (per curiam); Radack v. Norwegian Am. Line Agency, Inc., 318 F.2d 538, 542-43 (2d Cir.1963).¹¹ However, in order to merit relief from judgment under rule 60(b)(6) for lack of notice, the moving party must also have "shown diligence in trying to determine whether judgment had been entered" or have been "actually misled as to whether there had been entry of judgment." 12 James Wm. Moore et al., Moore's Federal Practice § 60. A8[6][c] (8d ed.2002). See, e.g., Tubbs, 781 F.2d at 1215-16; Buckeye, 569 F.2d at 1038. Furthermore, the movant must file her rule 60(b)(6) motion within a reasonable time after learning of entry of the judgment. See, e.g., Expeditions Unlimited, 500 F.2d at 810.

110 Although we review rule 60(b) determinations under an abuse of discretion standard, see Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110, ¶ 9, 2 P.3d 451, there are situations where "the result [under rule 60(b)] is foreordained and it would be an abuse of discretion ... to deny relief" 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2857 (2d ed.1995). At least two federal cireuits have held that when a party has lost the right to appeal because she was not notified of the entry of judgment against her, despite her diligent efforts to stay apprised of the status of her case, or because of being misled, "justice demands" that she be afforded relief under rule 60(b)(6) in order to preserve her right to appeal. Expeditions Unlimited, 500 F.2d at 809. Accord Buckeye, 569 F.2d at 1038. We agree with this doctrine and thus conclude that denial of relief to Oseguera was an abuse of discretion.¹²

' 11 It is undisputed that Oseguera did not receive notice of the February 29, 2000, judgment until June 2, 2000. It is also clear that the parties were misled by the trial court setting a scheduling conference and oral arguments for June 2. Given that rule 4-504 would allay any reasonable concern that Ose-guera was at risk that the court would rule on the summary judgment motion sua sponte, and in the absence of a proper request to submit for decision, there is no question that Oseguera was "actually misled" by the court, wholly aside from the eventual notice of hearing on motions already decided. Even if Oseguera should have anticipated the possibility that the court would act without a request to do so and without notice to the parties-as the dissent suggests is permitted by case law-Oseguera would have had no reason to fear the entry of judgment against her. As previously explained, Oseguera had sought judgment in her favor and Farmers had opposed that request, but Farmers had not at that juncture sought the entry of judgment in its favor. Thus, Oseguera had no reason to believe such a judgment could be forthcoming in view of what was before the court and no reason to check periodically to see if such an unrequested judgment had somehow been entered. See note 3, supra. Finally, given that she filed a good faith appeal within one month of learning of the February 29, 2000, judgment, and then filed her rule 60(b)(6) motion within seven weeks of final dismissal of that appeal,¹³ we believe Oseguera's rule 60(b) motion was made within a reasonable time.

CONCLUSION

1 12 When the trial court's mistakes-not counsel's-are the reason a judgment is improvidently entered and the entry goes undetected, even if it remains undetected for some time, the court should be anxious to do whatever needs to be done to fix the mistake as soon as it is called to the court's attention. It did not do so here. The trial court thus exceeded the bounds of sound discretion in denying Oseguera's motion under rule 60(b)(6) for relief from judgment. We therefore reverse the trial court's denial of that motion and remand for such proceedings as may now be appropriate.

[ 13 I CONCUR: NORMAN H. JACKSON, Presiding Judge.

1 . The arbitrator's deposition was taken on February 9, 2000, but the transcript of that deposition was not entered into the record until March 16, 2000, by Oseguera.

2 . Rule 4-501(1)(D) of the Utah Code of Judicial Administration reads, with our emphasis:

(D) Notice to submit for decision. Upon the expiration of the five-day period to file a reply memorandum [in support of any motion], either party may notify the clerk to submit the matter to the court for decision. The notification shall be in the form of a separate written pleading and captioned "Notice to Submit for Decision." The Notice to Submit for Decision shall state the date on which the motion was served, the date the memorandum in opposition, if any, was served, the date the reply memorandum, if any, was served, and whether a hearing has been requested. The notification shall contain a certificate of mailing to all parties. If neither party files a notice, the motion will not be submitted for decision.

3 . This aspect of the court's judgment is especially curious. Farmers had not yet filed a cross-motion seeking affirmance of the arbitration award. Rather, it had taken the position that the court could not properly decide the matter until additional discovery had been undertaken.

4 . A notice to submit Farmers's rule 56(f) motion for decision had been filed by Farmers on February 14, 2000.

5 . Subsections (1) and (2) of rule 4-504, Utah Code of Judicial Administration, provide:

(1) In all rulings by a court, counsel for the party or parties obtaining the ruling shall within fifteen days, or within a shorter time as the court may direct, file with the court a proposed order, judgment, or decree in conformity with the ruling.

(2) Copies of the proposed findings, judgments, and orders shall be served upon opposing counsel before being presented to the court for signature unless the court otherwise orders. Notice of objections shall be submitted to the court and counsel within five days after service.

6 . Rule 58A(d) of the Utah Rules of Civil Procedure reads: "Notice of signing or entry of judgment. A copy of the signed judgment shall be promptly served by the party preparing it in the manner provided in Rule 5." While the rule goes on to state 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), failure to comply with such a requirement is highly relevant for purposes of rule 60(b), as is hereafter explained.

7 . When the initial pleadings in this case were filed, the case was assigned to then Judge Dur-rant, who, early in the course of this case, was appointed to the Utah Supreme Court. Judge Lindberg issued the February 29, 2000, judgment and the order denying Oseguera's rule 60(b)(6) motion. However, the record suggests it was an unidentified "visiting judge" who, on May 2, 2000, set the misleading scheduling conference and oral argument for June 2, 2000.

The parties had filed several pleadings after February 29, apparently still unaware of the judgment entered on that date. Specifically, Farmers filed on March 3 a cross-motion for summary judgment. Oseguera filed a response to Farmers's cross-motion for summary judgment on March 16. Then, on March 23, Farmers filed a reply memorandum in support of its cross-motion for summary judgment and a request for a hearing on that motion. And on March 28, Farmers filed a notice to submit its summary judgment motion for decision.

It appears likely the "visiting judge," also unaware of Judge Lindberg's February 29, 2000, judgment, scheduled the June 2 oral arguments in response to Farmers's March 28 notice to submit. In any event, on May 2 the parties remained oblivious to the February 29 judgment.

8 . Oseguera's motion purportedly relied on rule 60(b)(7); however, there is now no rule 60(b)(7) in the Utah Rules of Civil Procedure. Current subsection (6) was previously numbered as subsection (7), until a 1998 amendment to the rule eliminated former subsection (4), at which time the former subsection (7) became the current subsection (6). The trial court properly construed Oseguera's motion as a request for relief under rule 60(b)(6), and, given the rule's history, we of course do the same.

9 . In the court's written ruling on Oseguera's rule 60(b)(6) motion, the trial court acknowledged ''that the parties may not have been timely notified of its Memorandum Decision dated 2-29-00 affirming the Arbitrator's Award and denying Plaintiff's Motion for Summary Judgment" and "apologize[d] to the parties for any inconvenience that resulted." The court also stated, however, that "it [had] repeatedly denied requests to set additional pretrial conferences on the basis that judgment had already entered in the case," and that therefore "the parties cannot now claim that they were not aware of the Court's judgment, at least by May 2d."

We are unable to affirm the trial court's denial of Oseguera's rule 60(b)(6) motion on the basis relied on by the trial court. It is undisputed on appeal that there were no requests for pretrial conferences that were denied on the basis that "judgment had already entered in the case." Far from learning by May 2 that judgment had been entered, it was on that date that the court, however inadvertently, misled the parties about the existence of the judgment by setting a scheduling conference and oral arguments for June 2, 2000.

10 . Subsections (1) through (5) read:

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: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application....

Utah R. Civ. P. 60(b)(1)-(5).

11 . Our reliance on treatises and case law interpreting Federal Rule of Civil Procedure 60(b)(6) is well-founded. See Winegar v. Slim Olson, Inc., 122 Utah 487, 491, 252 P.2d 205, 207 (1953) ("'Since [the Utah Rules of Civil Procedure] were fashioned after the Federal Rules of Civil Procedure, it is proper that we examine decisions under the Federal Rules to determine the meanings thereof.").

We do note, however, that due to a 1991 amendment to rule 4(a) of the Federal Rules of Civil Procedure, federal law no longer allows for relief from a judgment under rule 60(b)(6) on grounds of lack of notice of the entry of judgment. See Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357, 359-61 (8th Cir.1994); 12 James Wm. Moore et al., Moore's Federal Practice § 60.48[6][c] (3d ed.2002). Federal rule 4(a)(6) now "explicitly deals with the situation of when a party has missed the deadline for filing an appeal because the clerk failed to give the notice required under [federal civil procedure rule Ti(d)." Moore, § 60.48[6][c]. Because Utah has not adopted a rule analogous to federal rule 4(a)(6) and has no rule 77(d), we regard the treatise discussions and federal case law holdings regarding rule 60(b)(6) prior to 1991 as persuasive authority.

12 . At first blush, an older Utah Supreme Court case, In re Bundy's Estate, 121 Utah 299, 241 P.2d 462 (1952), could seem contrary to our holding here. However, the case is easily distinguished. In Bundy, the "[alppellants' counsel was out of town and received no notice or copy of the findings from the Court Clerk who evidently failed to mail such notice and findings even to counsel's local office." Id. at 309, 241 P.2d at 467. The appellants contended on appeal "that under these facts they should be relieved of their default ... under the provisions of Rule 60(b)[.]" Id. at 309-10, 241 P.2d at 467. The Supreme Court stated that "[this contention is not sound" and that the appellants' failure to file their post-judgment motions within the allowed time period "was not the fault of the court or its clerk." Id. at 310, 241 P.2d at 467.

The Bundy appellants expressly relied on subsection (1) of rule 60(b), rather than what is now subsection (6). See id. at 309-10, 241 P.2d at 467. Furthermore, the Bundy decision contains no facts indicating whether the appellants exercised diligence to stay apprised of the status of their case. See id. at 302-10, 241 P.2d at 464-67. Indeed, the Court's statement that the appellants' failure to file their postjudgment motions within the allowed time period "was not the fault of the court or its clerk," id. at 310, 241 P.2d at 467, suggests otherwise. Unlike in the instant case, nothing in the Bundy opinion suggests counsel would have been unaware that the court was about to enter a judgment. Conversely, in the instant case all the signals were to the contrary: a rule 56(f) motion was apparently still pending, neither party had requested that the motion for summary judgment be submitted for decision, and the court eventually gave notice that a hearing would be held.

13 . Oseguera's rule 60(b) motion clearly should have been filed sooner, but given rule 60(b)'s benchmark deadline of three months, see Utah R. Civ. P. 60(b) (''The motion shall be made within a reasonable time and for reasons (1), (2), or (3), not more than 3 months after the judgment, order, or proceeding was entered or taken."), we cannot say the delay was unreasonable under all the circumstances.