Watkiss & Campbell v. Foa & Son , 157 Utah Adv. Rep. 20 ( 1991 )

STEWART, Justice

(dissenting):

I dissent. I would affirm the trial court’s summary judgment because defendant’s affidavits were so conclusory that they lacked the necessary factual specificity under Rule 56 of the Utah Rules of Civil Procedure to create a genuine issue of material fact.

Furthermore, I disagree with the conclusion that the notice of appeal was timely filed, although I do agree generally that a “motion to reconsider” may extend the time for filing a notice of appeal when the motion can be deemed to be the equivalent of a motion for a new trial under Rule 59 of the Utah Rules of Civil Procedure.

However, defendant’s motion to reconsider did not purport in any way to be a motion for a new trial. In fact, the motion was argued in the trial court as a motion under Rule 60(b) of the Utah Rules of Civil Procedure. A Rule 60(b) motion does not extend the time for filing a notice of appeal. See Rule 4(b), Rules of the Utah Supreme Court.¹ Because defendant styled the motion as a motion for reconsideration and then argued it as a Rule 60(b) motion, defendant should be left in the procedural posture it has chosen for itself. Concededly, we are typically indulgent in overlooking procedural mistakes in favor of promoting litigation on the merits of a dispute. However, under these circumstances, I would take defendant’s motion for what it was represented to be — a Rule 60(b) motion — and would dismiss the appeal for lack of jurisdiction. When a Rule 60(b) motion is filed, the opposing side should be able to plan its affairs and strategy in the expectation that the appeal time will not be extended. If this case were treated as an appeal from a denial of a Rule 60(b) motion, the notice of appeal was clearly filed too late.

Nevertheless, I agree that as a general proposition a motion to reconsider is not simply a nullity. In prior cases, e.g., Peay v. Peay, 607 P.2d 841 (Utah 1980); Utah State Employees Credit Union v. Riding, 24 Utah 2d 211, 469 P.2d 1 (1970), this Court has ruled that there was no such thing as a motion to reconsider under our rules of procedure. Those cases suggested that only those motions specifically mentioned in the rules of procedure are valid motions. That, of course, is incorrect. From time to time, courts at all levels entertain motions that are not specifically provided for in any of the rules of procedure. A motion is a formal device to request judicial action, and a motion for reconsideration is simply a means for asking a trial judge to reconsider a ruling. Clearly, a motion to reconsider might serve a useful function in a variety of circumstances. However, once a final judgment is entered, the time for appeal commences from the date of entry, unless specified post-trial motions are filed which toll the running of the 30-day period for taking an appeal. See Rule 4, Utah Rules of Appellate Procedure. Although the majority opinion departs somewhat from prior case law, and although I think that is appropriate when a motion to reconsider is truly treated as a motion to alter or amend the judgment, I would not allow every motion to reconsider to automatically extend the time for taking an appeal.

ZIMMERMAN, J., having disqualified himself, does not participate herein; JACKSON, Court of Appeals Judge, sat.

1 . Rule 4(b) provided in part:

If a timely motion under the Utah Rules of Civil Procedure is filed in the district court by any party: (1) for judgment under Rule 50(b); (2) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) under Rule 59 to alter or amend the judgment; or (4) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion.

The current provision is Rule 4(b) of the Utah Rules of Appellate Procedure.