In re Estate of RC Willey , 2016 UT 53 ( 2016 )

This opinion is subject to revision before
publication in the Pacific Reporter
2016 UT 53
IN THE
SUPREME COURT OF THE STATE OF UTAH
In the Matter of the Estate of RUFUS C. WILLEY1
___________________________________
DON S. MCBROOM,
Appellant,
v.
SHAUNA CHILD SCHMUNK, et al.,2
Appellees.
No. 20150771
Filed November 22, 2016
On Direct Appeal
Second District, Farmington
The Honorable Thomas L. Kay
No. 143700260
Attorneys:
Mark F. James, Mitchell A. Stephens, G. Stephen Long,
Nicole A. Westbrook, Salt Lake City, for appellant
Alan L. Sullivan, Jared C. Fields, Salt Lake City, for appellees
Shauna Child Schmunk, Nancy Child Evensen, David Child,
William H. Child, Sheldon Child, Patricia Child, William Steven Child,
Susan Child Markham, Tamara Child Petersen, and
Karen Child Ogden, and Michael Child
1This case was consolidated below with In the Matter of the Estate
and Guardianship of Jacqui Irene Willey, Don S. McBroom, Dirk E.
McBroom, Shauna D. Child, Nancy Ann Child, and David R. Child.
2 The other appellees in this case are Nancy Child Evensen, David
Child, William H. Child, Sheldon Child, Patricia Child, William Steven
Child, Susan Child Markham, Tamara Child Petersen, Karen Child
Ogden, Michael Child, and KeyBank.
In re Estate of R. C. WILLEY
Opinion of the Court
R. Stephen Marshall, Steven M. McCardell, Salt Lake City,
for appellee KeyBank
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE and JUDGE MORTENSEN joined.
Having been recused, JUSTICE DURHAM does not participate;
COURT OF APPEALS JUDGE DAVID N. MORTENSEN sat.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Don McBroom, grandson of Rufus Call Willey, founder of the
R.C. Willey business enterprise, brought a motion under rule 60(b) of
the Utah Rules of Civil Procedure asking the Second District Court to
set aside two orders relating to Mr. McBroom‘s interests in the
business. The court denied the motion, and this appeal followed.
¶2 We affirm. First, properly construed, Mr. McBroom‘s rule
60(b) motion sought relief under paragraphs (3) and (4), not (6).3
Second, since Mr. McBroom filed his motion some forty years after the
Second District Court entered its orders, his claims under paragraph
(b)(3) are profoundly untimely. And third, Mr. McBroom‘s claims
under paragraph (b)(4) fail on their merits.
BACKGROUND
¶3 In McBroom v. Child, 2016 UT 38, __ P.3d __, we discuss the
relevant factual history regarding Mr. McBroom‘s claims at length. In
this opinion, we recite only the relevant procedural history.
¶4 Mr. McBroom filed a petition on July 10, 2014, with the
Second District Court to review his ―Rule 60(b) Motion for Relief from
Final Judgment and Motion for Relief Based on Fraud on the Court,‖
which sought to set aside the Second District Court‘s 1973 order (1973
Order) approving a stock purchase agreement (1973 Agreement) and
3
Rule 60 was amended effective May 1, 2016, after the principal
briefs in this matter had been filed. Because the pertinent amendments
are organizational and stylistic, we cite to the current version of the
rule.
2
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Opinion of the Court
the Second District Court‘s 1975 order (1975 Order) approving the sale
of Mr. McBroom‘s stock in R.C. Willey & Son. Shortly thereafter,
members of the Child family—many of whom are relatives of Rufus
Call Willey—filed a motion to intervene in the proceedings under
rule 24 of the Utah Rules of Civil Procedure. And on September 22,
2014, KeyBank filed a motion, which the district court granted, asking
the court to ―authorize its [c]lerk to acknowledge KeyBank as a party
and to accept filings by KeyBank in this matter.‖ In its final order,
dated August 26, 2015, the district court granted the Child family‘s
motion to intervene in part, denied Mr. McBroom‘s rule 60(b) motion,
and denied Mr. McBroom‘s motion for relief based on fraud on the
court.4 We have jurisdiction over Mr. McBroom‘s appeal of this
decision under Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶5 ―[A] district court has broad discretion in ruling on a motion
to set aside an order or judgment under rule 60(b), and ‗[t]hus, we
review a district court‘s denial of a 60(b) motion under an abuse of
discretion standard.‘‖ Metro. Water Dist. of Salt Lake & Sandy v. Sorf,
2013 UT 27, ¶ 12, 304 P.3d 824 (second alteration in original) (citation
omitted).
ANALYSIS
¶6 The district court did not abuse its discretion in denying
Mr. McBroom‘s rule 60(b) motion. We first classify Mr. McBroom‘s
claims for relief under the proper paragraphs of rule 60. We conclude
that Mr. McBroom did not properly file a claim for relief under
paragraph (b)(6), and instead his claims fall under paragraphs (b)(3)
and (4). Next we conclude that because Mr. McBroom did not file his
motion under paragraph (b)(3) within ninety days, as prescribed by
rule 60(c), his claims based on allegations of fraud on the court are
untimely and we do not consider them. We then proceed to analyze
Mr. McBroom‘s claims under paragraph (b)(4). And we hold that all of
4
As we explain below, and as the district court correctly observed,
Mr. McBroom‘s motion for relief based on fraud on the court is not an
independent action and ―must be evaluated under [r]ule 60(b)(3).‖
Therefore, throughout this opinion, we treat Mr. McBroom‘s fraud
motion as having been brought pursuant to rule 60(b)(3).
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In re Estate of R. C. WILLEY
Opinion of the Court
his paragraph (b)(4) claims are meritless. As a result, we affirm the
district court‘s denial of Mr. McBroom‘s rule 60(b) motion.
I. THE PROPER CLASSIFICATION OF MR. MCBROOM‘S
RULE 60(b) MOTION FOR RELIEF
¶7 Rule 60(b) allows a court, ―upon just terms,‖ to ―relieve a
party or its legal representative from a judgment, order, or proceeding‖
for reasons laid out in paragraphs (b)(1) through (6).5 The rule further
provides that ―[a] motion under paragraph (b) must be filed within a
reasonable time.‖ UTAH R. CIV. P. 60(c). Moreover, a motion under
paragraph (b)(1), (2), or (3) cannot be filed more than ninety days after
entry of the judgment or order. Id. Because of these differing times, we
must determine under what paragraphs Mr. McBroom‘s reasons for
relief fall. Mr. McBroom claims to have filed for relief under paragraphs
(b)(4) and (6). We conclude, however, that Mr. McBroom did not
appropriately file for relief under paragraph (b)(6), and instead his
claims fall under paragraphs (b)(3) and (4).
¶8 In his filings with the Second District Court, Mr. McBroom
claimed to seek relief under paragraphs (b)(4) and (6). Mr. McBroom
made several arguments claiming that the orders from which he is
seeking relief are void. By the plain language of rule 60, a party seeking
relief from a judgment or order on the basis that ―the judgment is void‖
must press his or her claim under paragraph (b)(4). UTAH R. CIV. P.
60(b)(4). The only other basis upon which Mr. McBroom sought relief
was fraud on the court. But Mr. McBroom cannot seek relief under rule
60(b)(6) based on an allegation of fraud on the court. Instead, a motion
seeking relief from a judgment based upon an allegation of fraud on the
court necessarily falls under paragraph (b)(3), not paragraph (b)(6).
¶9 Under the plain language of rule 60, a party seeking to be
relieved from a judgment or order based upon an allegation of fraud on
the court must do so under paragraph (b)(3). UTAH R. CIV. P. 60(b)
5
The reasons are as follows: ―(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 . . . ; (3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation or other misconduct of an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged . . . ; or (6) any other reason that justifies relief.‖ UTAH R.
CIV. P. 60(b).
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Opinion of the Court
(permitting a court to relieve a party from a judgment when there is
―fraud . . . , misrepresentation or other misconduct of an opposing
party‖). Motions under paragraph (b)(6), on the other hand, must be
based on a reason other than those listed in paragraphs (b)(1) through
(5). Id. (permitting a court to relieve a party from a judgment for ―any
other reason that justifies relief‖); see also Richins v. Delbert Chipman &
Sons Co., 817 P.2d 382, 387 (Utah Ct. App. 1991) (―Relief under
[paragraph (b)(6)] embodies three requirements: ‗First[,] that the reason
be one other than those listed in subdivisions (1) through [(5)]
. . . .‘‖(citation omitted)). Rule 60(b)(6) is a residuary clause; a party may
not rely upon it if the asserted grounds for relief fall within any other
paragraph of rule 60(b). See Laub v. S. Cent. Utah Tel. Ass’n, 657 P.2d
1304, 1306–07 (Utah 1982). As a result, because Mr. McBroom sought
relief from the Second District Court‘s orders based on an allegation of
fraud on the court, his motion squarely falls under paragraph (b)(3), not
paragraph (b)(6).
¶ 10 Therefore, having properly classified Mr. McBroom‘s rule
60(b) motion into the proper paragraphs, (b)(3) and (4), we proceed to
determine if Mr. McBroom timely filed his motion, and if so, whether
the merits of his arguments warrant reversal of the district court‘s
judgment against him.6
6
We note that on appeal Mr. McBroom characterizes his claims that
―relief is justified because the 1973 Order and the 1975 Order
irreconcilably conflict with the court‘s 1956 Order‖ and ―relief is
justified based upon a conflict of interest and self-dealing by the
administratrix‖ as claims for relief under rule 60(b)(6). But, the district
court disposed of these claims under rule 60(b)(4) and noted that ―[t]he
grounds on which Mr. McBroom bases his motion . . . are not
appropriately raised under [r]ule 60(b)(6).‖ At the district court,
Mr. McBroom‘s claims for relief based on these grounds sought to set
aside the court orders on a theory that they made the judgments void.
By the plain language of rule 60, any claims for relief based on a theory
that a judgment is void fall under paragraph (b)(4), not paragraph
(b)(6). UTAH R. CIV. P. 60(b)(4). As a result, we agree with the district
court that these claims for relief are viewed most appropriately as rule
60(b)(4) claims and ―are not appropriately raised under [r]ule 60(b)(6).‖
Thus, even though Mr. McBroom attempts to characterize these claims
(cont.)
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In re Estate of R. C. WILLEY
Opinion of the Court
II. MR. MCBROOM‘S RULE 60(b)(3) MOTION
¶ 11 We hold that Mr. McBroom failed to file his rule 60 motion
under paragraph (b)(3) within ninety days as required by rule 60(c). As
a result, we conclude that his rule 60 motion under paragraph (b)(3) is
untimely and fails.7
¶ 12 Rule 60(c) requires that any motion filed under paragraph (b)
―be filed within a reasonable time and for reasons in paragraph (b)(1),
(2), or (3), not more than 90 days after entry of the judgment or order.‖
on appeal as claims under paragraph (b)(6), we analyze them in the
context of paragraph (b)(4).
7
Mr. McBroom makes the following claims, which fall under rule
60(b)(3): (1) ―fraud on the court justifies relief from the orders obtained
by fraud,‖ (2) ―the court was deceived that the 1973 Agreement was fair
to [Mr.] McBroom,‖ (3) ―gross conflicts of interest deceived the court
into believing [Mr.] McBroom was protected by an attorney and a
guardian,‖ (4) ―the court was wrongfully led into believing an actuarial
analysis ensured fairness to [Mr.] McBroom,‖ and (5) ―the only person
the court heard from or saw was an attorney who fabricated evidence.‖
We do not address the merits of any of these claims because, as stated
above, Mr. McBroom failed to timely file his motion under rule 60(b)(3)
as required by rule 60(c).
We also cannot address these claims on a theory that Mr. McBroom
filed an independent action for relief based on fraud on the court. See
UTAH R. CIV. P. 60(d) (―This rule does not limit the power of a court to
entertain an independent action to relieve a party from a judgment,
order or proceeding to set aside a judgment for fraud upon the court.‖).
Mr. McBroom clearly filed a motion under rule 60(b) and not an
independent action for fraud on the court. And although
―Mr. McBroom‘s moving papers argue[d] that his motion is, in this
respect, an ‗independent action‘ within the meaning of . . . [r]ule 60[d],‖
like the district court, we ―conclude[] that it is not an independent
action because it was not asserted in a separate complaint filed with the
[district court] and served on the parties from whom he seeks relief.‖
Additionally, an independent action consists of a complaint and
service. See Estate of Thompson v. Turner, 690 P.2d 925, 926 (Idaho 1984).
Mr. McBroom‘s motion did not comply with this requirement. Thus,
Mr. McBroom‘s claims for relief based on fraud on the court are made
under rule 60(b)(3) and do not constitute an independent action.
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Opinion of the Court
UTAH R. CIV. P. 60(c). The rule goes on to indicate that the ―rule does
not limit the power of a court to entertain an independent action to
relieve a party from a judgment, order or proceeding or to set aside a
judgment for fraud upon the court.‖ Id. The language of the rule is
clear; a party must file a rule 60(b) motion within a reasonable time,8
which is within ninety days after a judgment or order is entered, if the
motion is filed under paragraphs (b)(1), (2), or (3). If a party fails to file
a motion under paragraphs (b)(1), (2), or (3) within ninety days, then
the party must file an independent action if it wishes to be relieved of a
judgment or order based upon fraud on the court.
¶ 13 In the present case, Mr. McBroom filed his rule 60(b) motion
under paragraph (b)(3) in 2014, forty-one years after the Second District
Court entered the 1973 Order and thirty-nine years after the court
entered the 1975 Order. This is decades after the ninety-day limit the
rule imposes. As a result, we hold that Mr. McBroom‘s rule 60(b)
motion under paragraph (b)(3) did not comply with the requirements
of rule 60(c) and is untimely.
III. MR. MCBROOM‘S RULE 60(b)(4) MOTION
¶ 14 We now proceed to analyze Mr. McBroom‘s claims for relief
under rule 60(b)(4). We do not make a determination of whether
Mr. McBroom‘s claims under rule 60(b)(4) are subject to the reasonable
time limit under rule 60(c). Instead, we evaluate the merits of
Mr. McBroom‘s claims under rule 60(b)(4) that the Second District
Court‘s 1973 Order and 1975 Order are void.
¶ 15 Mr. McBroom makes three categories of claims that the
Second District Court‘s orders are void. First, he argues that the Second
District Court lacked subject matter jurisdiction. Second, he argues that
the Second District Court lacked personal jurisdiction over him. Finally,
he argues that conflicts of interest rendered the Second District Court‘s
orders void. We hold that all of Mr. McBroom‘s claims for relief on
these bases fail on their merits.
8
Despite the language of the rule, our case law has held that some
motions under rule 60(b)(4) are not subject to a reasonable time
limitation. See, e.g., Garcia v. Garcia, 712 P.2d 288, 290–91 (Utah 1986).
We discuss the imposition of a reasonable time limit on motions made
under rule 60(b)(4) infra ¶¶ 17–18.
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In re Estate of R. C. WILLEY
Opinion of the Court
A. Timeliness of Mr. McBroom’s Rule 60(b)(4) Claims
¶ 16 It is an unsettled question in Utah whether all claims that
judgments are void under rule 60(b)(4) are subject to the reasonable
time limit imposed by rule 60(c). Mr. McBroom argues that the district
―court erroneously interpreted [r]ule 60(b)(4) and [Mr.] McBroom‘s
jurisdictional arguments as being limited by [Mr.] McBroom‘s ‗failure‘
to ‗seek relief ―within a reasonable time.‖‘‖ He couches this claim in his
assertion that ―[s]ubject matter jurisdiction may not be waived by either
party and may be raised at any time . . . . Therefore, any challenge to
the court‘s subject matter jurisdiction is timely.‖ We conclude that
Mr. McBroom‘s claims regarding timeliness under rule 60(b)(4) pertain
to an unsettled area of the law in Utah. As a result, we decline to make
a ruling on this point because the parties do not adequately brief this
issue, because other jurisdictions are split on this issue, and because
resolution of this issue is not necessary to the disposition of this case.
¶ 17 Although the language of rule 60(c) states that all motions
under paragraph (b) must be filed within a reasonable time, this court
has held that ―where the judgment is void because of a fatally defective
service of process, the time limitations of [r]ule 60(b) have no
application.‖ Garcia v. Garcia, 712 P.2d 288, 290 (Utah 1986). While
Garcia and a prior case, Woody v. Rhodes, 461 P.2d 465, 466 (Utah 1969),
limited their holdings to motions based on a ―fatally defective service
of process,‖ we recognize that Garcia continued to state, ―there is no
time limit on an attack on a judgment as void.‖ 712 P.2d at 291 (citation
omitted). But the language in Garcia advancing the notion that ―the
requirement that the motion be made within a ‗reasonable time,‘ . . .
cannot be enforced with regard to [a rule 60(b)(4)] motion‖ is dicta
given the clear holding of the case. Id. (citation omitted). Garcia held
only that ―where the judgment is void because of a fatally defective
service of process, the time limitations of [r]ule 60(b) have no
application.‖ Id. at 290 (emphasis added). Therefore, apart from the
dicta in Garcia, this court has not extended the exemption from the
reasonable time requirement in rule 60(c) to claims other than those
based on ―fatally defective service of process.‖9 Id.
9
Mr. McBroom‘s reliance on Murray Place v. Varela, 2013 UT App 19,
¶ 3, 297 P.3d 642, is unavailing. The language he cites from Murray
Place that ―a motion under rule 60(b)(4) may ‗succeed on the basis of a
mere showing that the judgment was void because of some defect in
(cont.)
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Opinion of the Court
¶ 18 There is a split among other jurisdictions on whether motions
made under rule 60(b)(4) are subject to a reasonable time limit. Some
courts have held that motions made under rule 60(b)(4) are exempt
from the reasonable time limit found in rule 60, while others have held
that motions under rule 60(b)(4) are subject to a reasonable time limit.
Compare McGrew v. McGrew, 82 P.3d 833, 841 (Idaho 2003) (―To obtain
relief from a void judgment under Rule 60(b)(4) of the Idaho Rules of
Civil Procedure, a party must bring a motion for such relief within a
reasonable time.‖), and Tudor’s Biscuit World of Am. v. Critchley, 729
S.E.2d 231, 238 (W. Va. 2012) (―A movant seeking relief under Rule
60(b)(4) of the West Virginia Rules of Civil Procedure must show that
the judgment sought to be vacated is void and that the motion to vacate
the judgment was filed within a reasonable period of time.‖ (citation
omitted)), with Carter v. Fenner, 136 F.3d 1000, 1006 (5th Cir. 1998)
(―Motions brought pursuant to Rule 60(b)(4), however, constitute such
exceptional circumstances as to relieve litigants from the normal
standards of timeliness associated with the rule.‖), Ex parte Full Circle
Distribution, L.L.C., 883 So. 2d 638, 642 (Ala. 2003) (holding ―that the
reasonable-time limitation is not applicable to actions seeking to set
aside a void judgment pursuant to Rule 60(b)(4)‖), and Reynaud v.
Koszela, 473 A.2d 281, 285 (R.I. 1984) (―Thus, Rule 60(b)‘s requirement of
reasonable time . . . is not applicable to motions based upon Rule
60(b)(4) . . . .‖). Therefore, whether we should hold motions under rule
the court‘s authority over the case or the parties,‘‖ comes from our
decision in Judson v. Wheeler RV Las Vegas, L.L.C., 2012 UT 6, ¶ 16, 270
P.3d 456. In Judson, we were not addressing the question of whether
motions made under rule 60(b)(4) were subject to a reasonable time
requirement. Instead, we held that motions under rule 60(b)(4) did not
have to ―assert[ ] . . . a separate meritorious defense,‖ even though
―[t]he assertion of a separate meritorious defense is generally . . .
required in a successful 60(b) motion.‖ Id. ¶ 15. Consequently, our
pronouncement that ―[a] motion under rule 60(b)(4) . . . could succeed
on the basis of a mere showing that the judgment was void‖ did not,
and should not be read to, proclaim that motions under rule 60(b)(4)
are exempt from the reasonable time requirements of rule 60(c). Id. ¶ 16.
As stated above, we have never fully addressed that question. Instead,
the holding in Judson is limited to the general requirement that motions
under rule 60 must assert a separate meritorious defense. See id. ¶ 14.
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Opinion of the Court
60(b)(4) subject to a reasonable time limit is not a simple question with
a single answer.
¶ 19 In the present case, we determine that it is unnecessary for
us to resolve whether the reasonable time limit applies to all motions
made under rule 60(b)(4). The parties have not briefed this particular
issue, and we are hesitant to make a determination on this point
without the benefit of such briefing. In addition, the resolution of the
matter is not necessary for us to resolve this case. The district court, in
addition to declaring that Mr. McBroom‘s motions were ―untimely,‖
also determined that Mr. McBroom‘s claims under rule 60(b)(4) failed
on their merits. In their briefs, the parties discussed at length the merits
of Mr. McBroom‘s claims under rule 60(b)(4). Therefore, we may review
the merits of Mr. McBroom‘s claims under rule 60(b)(4) and make a
determination on the arguments‘ merits.
B. Mr. McBroom’s Claims That the Second District Court
Lacked Subject Matter Jurisdiction
¶ 20 Mr. McBroom makes three claims that the Second District
Court lacked subject matter jurisdiction to issue the 1973 Order and the
1975 Order. We reject all three of his claims and determine that the
Second District Court‘s orders are not void because the court had
subject matter jurisdiction.
1. Lack of Notice to Mr. McBroom, His Failure to Attend the Second
District Court‘s Proceedings in Person, and His Waiver of Notice
¶ 21 Mr. McBroom first claims that ―the judgment is void because
the [district] court lacked subject matter jurisdiction when the minor
child [Mr.] McBroom was not notified of the hearings and did not
attend court in person.‖ He cites Utah Code section 75-5-405(1) for his
proposition that ―a minor may not waive notice pursuant to Utah law
without being physically present before the court,‖ and argues that
because ―it is undisputed that [Mr.] McBroom was never present before
the court,‖ the waiver of notice he signed for the guardianship
proceedings was invalid. He then claims that ―only a parent who has
‗no conflict of interest‘ may waive notice for a minor child,‖ and
because Betty McBroom, Mr. McBroom‘s mother, had a conflict of
interest with her son, the waiver of notice that both she and
Mr. McBroom signed is invalid. In addition, Mr. McBroom claims that
the waiver of notice he signed was ―expressly limited‖ to the petition
for and issuance of the guardianship letters to Commercial Security
Bank and did not waive notice for the proceedings resulting in the 1973
Order or the proceedings resulting in the 1975 Order.
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Opinion of the Court
¶ 22 We first conclude that Mr. McBroom‘s reliance on Utah Code
section 75-5-405(1) is misplaced. That section is not a provision from the
1953 Utah Code as Mr. McBroom asserts in his brief. Instead, section
75-5-405(1) was passed in 1975 and did not take effect until July 1, 1977.
UTAH CODE § 75-8-101. This is well after the Second District Court
issued the 1973 Order and the 1975 Order. Nor does the section have
retroactive effect. Id. (―An act done before the effective date in any
proceeding and any accrued right is not impaired by this code.‖).
Regardless, by its terms, section 75-5-405(1) applies only to the
appointment of a conservator or other protective order. Id. So, even if
the statute had been effective as of the date of the proceedings
involving Mr. McBroom, the statute would not have applied. As a
result, Mr. McBroom‘s claim that he needed to be physically present
before the court in order to waive notice about the proceedings
resulting in the 1973 Order and the proceedings resulting in the 1975
Order is incorrect.
¶ 23 We also conclude that Mr. McBroom‘s reliance on Utah Code
section 75-1-402 for the claim that Mr. McBroom‘s mother could not
waive notice on Mr. McBroom‘s behalf because Mr. McBroom‘s mother
had a conflict of interest is unavailing. Once again, contrary to
Mr. McBroom‘s citation to the 1953 Utah Code, section 75-1-402 was
passed in 1975, did not take effect until July 1, 1977, and does not apply
retroactively. Id. § 75-8-101. So, even assuming Mr. McBroom‘s mother
did have a conflict of interest with Mr. McBroom, this statute did not
apply to the waiver of notice that Mr. McBroom and his mother signed
in 1973. Consequently, because both Mr. McBroom and his mother
assented to and signed the waiver of notice in 1973, and because they
were permitted to do so under the existing probate code of the time,
Mr. McBroom‘s claim that the waiver of notice is invalid based on this
point fails.
¶ 24 Mr. McBroom also contends that the waiver of notice he
signed was limited to the petition for the letters of guardianship and to
the issuance of those letters of guardianship to Commercial Security
Bank. Therefore, he claims to have never waived notice to the
proceedings resulting in the 1973 Order nor to the proceedings
resulting in the 1975 Order. However, even accepting that the waiver of
notice covered only the petition for and issuance of the letters of
guardianship to Commercial Security Bank, Mr. McBroom fails to cite
any statutory authority requiring notice to be given to him after the
appointment of his guardian. As a result, we conclude that there were
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Opinion of the Court
no statutory requirements at the time requiring that Mr. McBroom
personally be given notice of the proceedings resulting in the 1973
Order or the proceedings resulting in the 1975 Order.
¶ 25 Under the relevant statutes at the time, sections 75-13-12 and
75-14-22, there were no requirements that Mr. McBroom personally
receive notice of the proceedings resulting in the 1973 Order or the 1975
Order. Id. Under section 75-13-12, the court was required to give notice
only ―as it deems reasonable . . . to any person having the care of the
minor, and to such relatives of the minor residing in the county as the
court may deem proper.‖ Id. Under this provision, the district court
was not required to give notice to Mr. McBroom at all, and it was
required to give notice to his guardian or relatives only as it ―deem[ed]
reasonable.‖ Id. Furthermore, section 75-14-22 stated that ―personal
service upon the guardian of any process, notice[,] or order of the court
concerning . . . any guardianship matter in which the ward is interested
is equivalent to service upon the ward.‖ Id. Therefore, any notice that
Commercial Security Bank received about the 1973 and the 1975
proceedings is deemed the ―equivalent to service upon
[Mr. McBroom].‖ Id. Consequently, there was no statutory requirement
that Mr. McBroom personally receive notice regarding the proceedings.
As long as Commercial Security Bank received notice about the
proceedings, that was the equivalent to Mr. McBroom‘s receiving
notice.10 And, in fact, Commercial Security Bank received notice in 1973
and 1975 about the proceedings, and public notice was posted in Utah
in 1973 and in 1975 for the proceedings. Thus, Mr. McBroom‘s
contention that lack of notice rendered the Second District Court‘s
orders void fails.
2. Mr. McBroom‘s Claim About Having Reached the Age of Majority
¶ 26 For the second time before this court, Mr. McBroom makes
the argument that ―he was no longer a minor when the [c]ourt issued
[the 1975 Order] approving the sale of [Mr.] McBroom‘s [shares] in
[R.C. Willey & Son].‖ Therefore, he argues, the Second District Court
10Mr. McBroom argues that a lack of notice violated his
constitutional due process rights. However, this argument is not
properly fleshed out and is not well taken. Mr. McBroom points to no
authority for why the statutory provision in place at the time allowing
notice to be given to his guardian violated his due process rights. In any
case, Mr. McBroom waived any further notice. Supra ¶¶ 21-24.
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lacked subject matter jurisdiction over the proceedings when it
approved the sale of his shares. We previously dealt with this argument
in Mr. McBroom‘s appeal in McBroom v. Child, 2016 UT 38, __ P.3d __.
Since Mr. McBroom‘s claims are the same in regard to this point, we
reach the same conclusion that this argument is wholly without merit.
¶ 27 Mr. McBroom makes the argument that the Second District
Court lacked jurisdiction to approve the sale of his shares in the 1975
Order because he had obtained the age of majority. He cites Stanton v.
Stanton, 429 U.S. 501, 505 (1977), for the proposition that ―both before
and after the 1975 amendment to [the Utah majority statute], the
statutory age of majority for both males and females in Utah was 18,
not 21.‖ Mr. McBroom fails to acknowledge that this quote is actually
from Justice Stevens‘ dissenting opinion in Stanton, and is not a
statement of the law regarding the age of majority in Utah. See id.
Instead, at the time of the Second District Court‘s approval of the sale of
Mr. McBroom‘s shares, the age of majority for a male in Utah was
twenty-one years. See Stanton v. Stanton, 421 U.S. 7, 9 (1975) (―[T]he
period of minority for males extends to age 21 and for females to age
18[.]‖). On March 24, 1975, the Utah Legislature amended the statute
and established a uniform age of majority of eighteen years. Law of
March 24, 1975, ch. 39, 1975 Utah Laws 121. The legislation went into
effect on May 13, 1975. See Wiker v. Wiker, 600 P.2d 514, 515 (Utah 1978).
Mr. McBroom turned eighteen on August 8, 1974, and KeyBank
petitioned to sell his shares in February 1975. On both accounts, the
amendment to the age of majority was not yet in effect; thus,
Mr. McBroom was still a minor at the relevant time and the Second
District Court had jurisdiction over the proceedings. Cf. Memmott v.
Bosh, 520 P.2d 1342, 1343 (Utah 1974) (―[W]hen a minor attains majority
status the guardian has no further rights in the estate and only has a
duty to account to or to make settlement with his former wards.‖). As a
result, Mr. McBroom was a minor in February 1975 and the Second
District Court had subject matter jurisdiction to issue the 1975 Order.
Therefore, that judgment is not void and may not be set aside under
rule 60(b)(4).
3. The 1973 and the 1975 Orders‘ Alleged Conflicts with the 1956
Probate Decree
¶ 28 Mr. McBroom makes one final argument that the Second
District Court lacked subject matter jurisdiction to issue the 1973 Order
and the 1975 Order. As mentioned above, although Mr. McBroom
attempts to characterize this claim as falling under rule 60(b)(6), we
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Opinion of the Court
conclude that it is more appropriately viewed as falling under
paragraph (b)(4) because he argued that the conflicts render the
judgment void. See supra ¶ 7. As a result, we address it here and
conclude that this argument is without merit.
¶ 29 Mr. McBroom argues that ―[b]ecause no court ever set aside
or modified the probate decree [regarding Rufus Call Willey‘s estate
(1956 Probate Decree)], it was a final order that could not be disturbed
or collaterally attacked in 1973.‖ Consequently, he argues, ―the court
entered the 1973 [O]rder that directly conflicted with the prior court
order.‖ In addition, Mr. McBroom questions the ―legal effect‖ of the
sale of his shares in R.C. Willey & Son because ―conveyance of a
contingent remainder interest is highly unusual, and it is an open legal
question whether the sale of a contingent remainder before the interest
becomes vested is even valid.‖ Mr. McBroom also claims that ―the
holder of a remainder interest must file an express disclaimer with the
probate court to effectively renounce or disclaim his interest.‖
Therefore, since he did not file any such disclaimer, he never effectively
renounced or disclaimed his interest in R.C. Willey & Son. Finally, Mr.
McBroom argues that he never sold his shares in R.C. Willey & Son
because he ―never knew of his interest [in the company] prior to or
after the 1973 Agreement took effect,‖ and he argues that ―there was
never performance under the 1973 Agreement‖ because he ―never was
even paid the $5,000‖ he was owed under the 1973 Agreement. For the
reasons discussed below, we conclude all of these claims by Mr.
McBroom lack merit.
¶ 30 First, the Second District Court‘s 1973 Order approving the
1973 Agreement did not ―disturb[ ] or collaterally attack[ ]‖ the 1956
Probate Decree. Instead, the 1973 Agreement operated as a sale of
future interests for Mr. McBroom. And despite Mr. McBroom‘s claims
to the contrary, it does not appear that ―it is an open legal question
whether the sale of a contingent remainder before the interest becomes
vested is even valid‖; there is nothing in Utah case law that prevented
Mr. McBroom from selling his future interest. See In re Estate of Myers,
2009 UT App 180, ¶ 2, 214 P.3d 115 (―To own a future interest now
means not only to be entitled now to judicial protection of one‘s
possible future possession, but also (in most cases) to be able to make
transfers now of that right of possible future possession.‖) (quoting
BLACK‘S LAW DICTIONARY 685 (7th ed. 1999)); see also Weight v. Bailey,
147 P. 899, 900–01 (Utah 1915) (recognizing the validity of a sale of a
remainder interest while the life estate holder was still alive). As a
result, because Mr. McBroom was not prevented from selling his
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contingent remainder interest in Mr. Willey‘s estate, and because such a
sale does not ―disturb[ ] or collaterally attack[ ]‖ the 1956 Probate
Decree, the 1973 Order did not conflict with the 1956 Probate Decree in
this manner.
¶ 31 Furthermore, the 1973 Order approving the 1973 Agreement
was not a renunciation or disclaimer of Mr. McBroom‘s inheritance
interest. Instead, the 1973 Agreement was a sale of Mr. McBroom‘s
future interests that he inherited under Mr. Willey‘s will. Consequently,
he was not required to file an express disclaimer with the probate court
to sell, rather than renounce or disclaim, his shares to R.C. Willey & Son
under the 1973 Agreement.
¶ 32 Finally, Mr. McBroom did sell his shares to R.C. Willey & Son
in the 1973 Agreement despite his claims that he did not know about
his interest or that he was never paid the $5,000 owed him under the
Agreement. The 1973 Agreement, which Mr. McBroom‘s guardian
signed, was an agreement to sell his shares in R.C. Willey & Son.
Mr. McBroom petitioned the court for the appointment of Commercial
Security Bank as his guardian to represent him in the transaction. And
the Second District Court approved of the 1973 Agreement as it related
to Mr. McBroom in the 1973 Order. There can be no doubt that he,
through representation of his guardian, agreed to sell his shares in R.C.
Willey & Son in the 1973 Agreement. Mr. McBroom fails to explain
what legal effect his alleged ignorance of his interest in R.C. Willey &
Son would have had on the validity of the orders entered by the Second
District Court approving the sale of his contingent interest in the
company. And we do not see how his alleged ignorance would render
the Second District Court‘s orders void.
¶ 33 He further asserts that because he was not paid the $5,000 the
sale of his shares is ―factually implausible.‖ However, this argument
does not support a conclusion that the Second District Court‘s orders
are void. At most, if Mr. McBroom truly was not paid the $5,000 owed
him under the 1973 Agreement, his remedy would lie with R.C. Willey
& Son, which is not party to this action. The claim that R.C. Willey &
Son did not perform under the 1973 Agreement is not at issue in this
rule 60(b) motion and is not properly raised to the extent Mr. McBroom
claims to raise it. His rule 60(b) motion seeks to set aside the Second
District Court‘s orders; it is not an action to recover for damages from
R.C. Willey & Son. Therefore, we determine that the Second District
Court‘s 1973 Order and 1975 Order did not conflict with the 1956
Probate Decree and thus are not rendered void.
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Opinion of the Court
C. Mr. McBroom’s Claim That the Second District Court
Lacked Personal Jurisdiction
¶ 34 We now consider Mr. McBroom‘s claim that the Second
District Court lacked personal jurisdiction over him, rendering the 1973
Order and the 1975 Order void. We conclude that because
Mr. McBroom petitioned the court, he voluntarily submitted to the
court‘s jurisdiction and the court properly exercised long-arm
jurisdiction over Mr. McBroom‘s property. As a result, the Second
District Court had personal jurisdiction over Mr. McBroom and his
property located in Utah and the 1973 Order and the 1975 Order are not
void.
¶ 35 Mr. McBroom argues that because he did not ―reside within
the court‘s jurisdictional territory‖ between 1973 and 1975, the Second
District Court lacked jurisdiction over him. Mr. McBroom also argues
that he never petitioned the court to sell his shares in R.C. Willey & Son
and thus the ―district court improperly acted to grant a petition for
approval of a sale of [Mr.] McBroom‘s interests without [Mr.]
McBroom‘s knowledge and over a person not located within the State
of Utah‘s jurisdiction.‖ Finally, Mr. McBroom asserts that he never held
an interest in the stock of R.C. Willey & Son because the 1973
Agreement was an agreement to sell his shares. As a result,
Mr. McBroom never possessed any property located in Utah and ―[i]t is
of no matter that the court had jurisdiction over the property of the
estate of [Mr.] Willey, which was in the confines of Utah.‖
Mr. McBroom is wrong on all counts.
¶ 36 First, Mr. McBroom and his mother petitioned the Second
District Court for the appointment of Commercial Security Bank as
Mr. McBroom‘s guardian. We agree with KeyBank that ―[p]etitioners
who take advantage of Utah courts by seeking the entry of orders
authorized by statute should not be heard to complain that the court
which granted their petition lacked personal jurisdiction to do exactly
what they asked it to do.‖ It is undisputed that Mr. McBroom and his
mother asked the Second District Court to appoint Commercial
Security Bank as guardian over Mr. McBroom‘s estate. Mr. McBroom
cannot argue forty-three years after he petitioned the district court that
it lacked personal jurisdiction over him. He submitted to the Second
District Court‘s jurisdiction when he signed and filed the petition for
guardianship. As a result, Mr. McBroom ―transact[ed] . . . business
within this state,‖ and the Second District Court properly exercised
long-arm jurisdiction over him, even though he was not residing in
Utah. UTAH CODE § 78B-3-205.
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¶ 37 Furthermore, it is of no matter that Mr. McBroom did not
separately petition the district court for permission to sell his shares in
R.C. Willey & Son. Once Commercial Security Bank was appointed as
guardian over Mr. McBroom‘s estate, it was authorized to conduct
business regarding Mr. McBroom‘s estate. Commercial Security Bank
petitioned the district court for authority to sell Mr. McBroom‘s shares
in R.C. Willey & Son. A separate petition from Mr. McBroom himself
was not required, and Mr. McBroom does not cite any legal authority to
that effect. And, as stated above, no statute in place required notice to
be given to Mr. McBroom personally of those proceedings. See supra
¶ 24. Instead, the notice provided to his guardian, Commercial Security
Bank, was deemed the equivalent of notice to Mr. McBroom. See UTAH
CODE § 75-14-22 (1953). Consequently, the fact that Mr. McBroom never
received personal notice about the proceedings resulting in the 1975
Order and the fact that he was not located in Utah did not divest the
Second District Court of personal jurisdiction over Mr. McBroom‘s
estate.
¶ 38 Finally, Mr. McBroom‘s claim that he never possessed any
property in Utah is wrong. Under the terms of the 1973 Agreement,
Mr. McBroom exchanged his contingent remainder interest in R.C.
Willey & Son for a present possessory interest of five shares of stock in
the company. As R.C. Willey & Son was a company incorporated in
Utah, this property was located in the state of Utah. Even though
Mr. McBroom agreed to sell his interests in the company in the 1973
Agreement, the sale of his shares did not take place until 1975.
Consequently, his assertion that he never held an interest in the stock of
R.C. Willey & Son because he subsequently sold those shares two years
later is without merit. The 1973 Agreement and the 1975 sale of his
shares were ―transaction[s] of . . . business within this state,‖ and, as
such, the Second District Court had authority to exercise long-arm
jurisdiction over them. Id. § 78B-3-205. Therefore, we conclude that the
Second District Court did have personal jurisdiction and the judgments
are not void on this basis.
D. Mr. McBroom’s Claim That the 1973 Order Is Void Because
of His Grandmother’s Conflict of Interest and Self-Dealing
¶ 39 The final claim we analyze is Mr. McBroom‘s claim that
―relief is justified based upon conflict of interest and self-dealing by the
administratrix‖ of Mr. Willey‘s estate, his grandmother, Helen Barber.
We hold that there is no legal basis to conclude that the 1973 Order was
void based on a conflict of interest from Ms. Barber. Nor is there
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Opinion of the Court
evidence to conclude that Ms. Barber engaged in self-dealing by
entering into the terms of the 1973 Agreement that was approved by
the Second District Court in the 1973 Order.
¶ 40 To support his claim that the 1973 Order is void,
Mr. McBroom cites Utah Code section 75-3-712. That section states that
[a]ny sale or encumbrance to the personal representative
. . . or any corporation . . . in which he has a substantial
beneficial interest, or any transaction which is affected by
a substantial conflict of interest on the part of the personal
representative, is voidable by any person interested in the
estate.
Id. However, this section is not from the 1953 Utah Code as
Mr. McBroom asserts. Instead, this is a current provision of the Utah
Probate Code, effective in 1977. UTAH CODE § 75-8-101. Furthermore,
―[a]n act done before the effective date in any proceeding and any
accrued right is not impaired by [the Utah Uniform Probate Code].‖ Id.
The 1973 Order was entered on October 12, 1973, well before section
75-3-712 came into effect. Therefore, this section dealing with conflicts
of interest does not apply to the 1973 Order. Besides, under the plain
language of section 75-3-712, a transaction affected by conflicts of
interest is voidable rather than void, and it is therefore doubtful that a
conflict of interest under this statute would meet the requirements of
rule 60(b)(4). Id.; UTAH R. CIV. P. 60(b)(4) (allowing a judgment to be set
aside on the grounds that ―the judgment is void‖).
¶ 41 In addition, Mr. McBroom claims that Ms. Barber engaged in
self-dealing by ―[u]sing the 1973 Agreement . . . [to] redistribute[ ] the
inheritance of the heirs to herself, to [William] Child, and to [R.C.
Willey & Son] – a company in which [Ms.] Barber owned only a life
estate interest.‖ Once again, the 1973 Agreement and the 1973 Order
approving it did not disturb the 1956 Probate Decree, which closed the
affairs of Mr. Willey‘s estate. See supra ¶ 30. Instead, it was an
agreement that exchanged vested and contingent interests inherited by
the beneficiaries of Mr. Willey‘s will. Furthermore, the estate of
Mr. Willey was probated in 1956 and Ms. Barber was no longer acting
as administratrix of Mr. Willey‘s estate by the time the 1973 Agreement
was entered. See, e.g., UTAH CODE § 75-3-1003(2) (―If no proceedings
involving the personal representative are pending in the court one year
after the closing statement is filed, the appointment of the personal
representative terminates.‖). Therefore, Mr. McBroom‘s contention that
Ms. Barber was self-dealing is not borne out by the evidence of what
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the 1973 Agreement was, and Ms. Barber was no longer acting as
administratrix at the time the 1973 Agreement was entered. As a result,
the Second District Court‘s 1973 Order approving of the 1973
Agreement is not rendered void by self-dealing on the part of
Ms. Barber.
CONCLUSION
¶ 42 In conclusion, we affirm the district court‘s denial of
Mr. McBroom‘s rule 60(b) motion. His claims fall under rule 60
paragraphs (b)(3) and (b)(4), rather than under paragraph (b)(6). Since
Mr. McBroom failed to file his claims under rule 60(b)(3) within ninety
days, as required by rule 60(c), his claims under paragraph (b)(3) are
untimely and we do not consider them. And although we do not
determine whether motions made under rule 60(b)(4) are subject to a
reasonable time limit, we conclude that Mr. McBroom‘s claims under
rule 60(b)(4) fail on their merits. As a result, we hold that the district
court did not abuse its discretion when it denied Mr. McBroom‘s rule
60(b) motion.
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