In re Adoption of E.M.F... , 2022 UT App 43 ( 2022 )

2022 UT App 43THE UTAH COURT OF APPEALS
IN THE MATTER OF
THE ADOPTION OF E.M.F. AND M.S.F.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
S.S. AND B.S.,
Appellants,
v.
J.F.,
Appellee.
Opinion
No. 20200490-CA
Filed March 31, 2022
Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 182900024
Jason B. Richards, Attorney for Appellants
Emily Adams and Sara Pfrommer, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.
POHLMAN, Judge:
¶1 In this stepparent adoption case, B.S. (Mother) and S.S.
(Stepfather) appeal the district court’s order denying their
petition to terminate the parental rights of J.F. (Father), with
whom Mother shares two children, E.M.F. and M.S.F.
(collectively, the Children). We do not reach the merits of the
case, however, because we dismiss this appeal for lack of
jurisdiction. Although Mother and Stepfather contend that the
court rule dictating this result is unconstitutional on its face and
In re adoption of E.M.F.
as applied, we conclude that Mother and Stepfather have not
demonstrated that exceptional circumstances exist for us to
consider their constitutional argument.
BACKGROUND
¶2 Mother and Father were involved in a relationship
between 2009 and 2014, during which time the Children were
born. Mother has always had full physical custody of the
Children since her separation from Father. Later, Mother
married Stepfather. Mother and Stepfather then petitioned for
Stepfather to adopt the Children and to terminate Father’s
parental rights.
¶3 The matter proceeded to a two-day bench trial in
December 2018. After hearing the evidence, the district court
concluded that Mother and Stepfather had “not met their burden
by clear and convincing evidence of any of the statutory
requirements for terminating [Father’s] rights,” and the court
accordingly denied the petition for adoption. The court
announced its findings of fact and conclusions of law in court,
explaining, “That will be the order of the Court.” It further
announced that it did not “inten[d] to do written findings of fact
and conclusions of law” but that “[c]ertainly anybody who
would like to can do it themselves and submit it to the Court for
approval.”1 Similarly, the court’s December 11, 2018 minute
entry from trial states, “The court does not intend on issuing
written findings of facts and conclusions of law, either party
1. Mother and Stepfather filed proposed findings of fact and
conclusions of law on the second day of trial, prior to the court
announcing its decision. Their filing did not reflect the district
court’s announced decision, and the court did not sign that
document.
20200490-CA 2 2022 UT App 43In re adoption of E.M.F.
may submit their own consistent with the court’s ruling for
approval if they wish.” That minute entry was signed
electronically and designated as an order of the court on
December 13, 2018.
¶4 Neither side chose to submit findings and conclusions
consistent with the court’s decision, 2 and neither side submitted
a proposed judgment pursuant to rule 58A(c)(1) of the Utah
Rules of Civil Procedure. Aside from the court’s exhibit tracking
record filed a few days after trial, nothing more was filed in the
case until Father, acting pro se, moved to release the trial
transcripts on March 11, 2019. In his motion, Father asserted that
the “records and transcripts [were] required for [him] to prepare
findings of fact and conclusions of law requested by [the district
court judge].” One month later, the court entered a certificate of
destruction, stating that the court clerk had destroyed the
exhibits on April 4, 2019.
¶5 Nothing else was entered on the court’s docket until
December 2019, when Mother and Stepfather’s attorneys
withdrew, and then Mother and Stepfather, acting pro se, filed
an objection to a proposed findings of fact, conclusions of law,
2. Rule 52(a)(1) of the Utah Rules of Civil Procedure provides,
“In all actions tried upon the facts without a jury or with an
advisory jury, the court must find the facts specially and state
separately its conclusions of law. The findings and conclusions
must be made part of the record and may be stated in writing or
orally following the close of the evidence. Judgment must be
entered separately under Rule 58A.” And rule 54(a) specifies that
“‘Judgment’ as used in these rules includes a decree or order that
adjudicates all claims and the rights and liabilities of all parties
or any other order from which an appeal of right lies.” Utah R.
Civ. P. 54(a).
20200490-CA 3 2022 UT App 43In re adoption of E.M.F.
and order prepared by Father. 3 Among other objections, Mother
and Stepfather complained that Father “failed to properly
provide a copy of the proposed order to [them] before filing the
document with the Court.” The court held a telephone
conference the next month during which it indicated that the
proposed findings “will be held due to the pending objection.”
At a later hearing, the court decided to “sustain[]” Mother and
Stepfather’s objection and ordered Father to submit amended
findings with two specific revisions.
¶6 As ordered, Father then filed a proposed amended
findings of fact, conclusions of law, and order. Finally, on June 9,
2020, the district court signed the amended findings of fact,
conclusions of law, and order. The court reiterated its
conclusion—rendered 546 days earlier—that, as a matter of law,
Mother and Stepfather had “not met their burden to show by
clear and convincing evidence any of [the] statutorily required
bases for terminating [Father’s] parental rights,” and the court
thus denied the petition for adoption. On June 22, 2020, Mother
and Stepfather filed a notice of appeal.
ISSUES AND STANDARDS OF REVIEW
¶7 On appeal, Mother and Stepfather challenge the district
court’s denial of their adoption petition. But Father contends that
this court lacks jurisdiction to consider the merits of the appeal,
arguing that Mother and Stepfather did not timely file a notice of
appeal in light of rule 58A of the Utah Rules of Civil Procedure.
In response, Mother and Stepfather insist that they timely
3. This proposed document is not in the record. Mother and
Stepfather assert that Father submitted this proposed order to
the court on or about December 16, 2019—more than a year after
the court announced its ruling from the bench.
20200490-CA 4 2022 UT App 43In re adoption of E.M.F.
appealed under their view of the relevant timeline and rule 58A.
“Whether appellate jurisdiction exists is a question of law.”
Greyhound Lines, Inc. v. Utah Transit Auth., 2020 UT App 144,
¶ 22, 477 P.3d 472 (cleaned up). Likewise, the interpretation of a
rule of civil procedure is a question of law. See Ghidotti v.
Waldron, 2019 UT App 67, ¶ 8, 442 P.3d 1237.
¶8 In the event that this court agrees with Father on the
correct operation of rule 58A, Mother and Stepfather assert that
the rule is unconstitutional on its face and as applied to the facts
of this case. Constitutional challenges present “questions of
law.” Menzies v. State, 2014 UT 40, ¶ 27, 344 P.3d 581, abrogated on
other grounds by McCloud v. State, 2021 UT 51, 496 P.3d 179. But
when, as here, an issue was not preserved in the district court,
“the party must argue that an exception to preservation applies.”
State v. Johnson, 2017 UT 76, ¶ 27, 416 P.3d 443.
ANALYSIS
¶9 We begin by addressing Father’s contention that this
court lacks appellate jurisdiction over this matter. We then
address Mother and Stepfather’s constitutional argument aimed
at defeating Father’s jurisdictional contention.
I. Appellate Jurisdiction
¶10 Father contends that this court does not have appellate
jurisdiction to consider this appeal. According to Father, because
a separate judgment was not filed after the district court
announced its findings and order from the bench on December
11, 2018, the decision was considered final and appealable 150
days after that date under rule 58A(e)(2)(B) of the Utah Rules of
Civil Procedure and any notice of appeal should have been filed
within thirty days of May 10, 2019. Father asserts that the court’s
amended findings of fact, conclusions of law, and order—
20200490-CA 5 2022 UT App 43In re adoption of E.M.F.
entered on June 9, 2020—could not “restart the period for filing a
notice of appeal” and that Mother and Stepfather’s June 22, 2020
notice of appeal was therefore untimely. In contrast, Mother and
Stepfather contend that the June 9, 2020 order constituted the
required separate judgment and that they timely filed their
notice of appeal from that order. 4 We agree with Father.
¶11 This case turns on the application of rule 58A of the Utah
Rules of Civil Procedure to determine when the time to appeal
began to run. Rule 58A(a) provides that “[e]very judgment and
amended judgment must be set out in a separate document
ordinarily titled ‘Judgment’—or, as appropriate, ‘Decree.’” Utah
R. Civ. P. 58A(a). Of particular import here, rule 58A(e) states,
(e) Time of entry of judgment.
(e)(1) If a separate document is not required, a
judgment is complete and is entered when it is
signed by the judge and recorded in the docket.
(e)(2) If a separate document is required, a
judgment is complete and is entered at the earlier
of these events:
4. Mother and Stepfather assert that Father’s “failure to oppose
the entry of the [June 2020] order should be deemed a waiver” of
Father’s challenge to appellate jurisdiction. But “because subject
matter jurisdiction goes to the heart of a court’s authority to hear
a case, it is not subject to waiver and may be raised at any time,
even if first raised on appeal.” In re adoption of Baby E.Z., 2011 UT
38, ¶ 25, 266 P.3d 702 (cleaned up); see also Widdison v. State, 2021
UT 12, ¶ 100 n.26, 489 P.3d 158 (Lee, J., concurring in judgment)
(“Jurisdiction is not an argument that can be waived or ignored
by the parties.”). We therefore reject this argument.
20200490-CA 6 2022 UT App 43In re adoption of E.M.F.
(e)(2)(A) the judgment is set out in a separate
document signed by the judge and recorded in the
docket; or
(e)(2)(B) 150 days have run from the clerk
recording the decision, however designated, that
provides the basis for the entry of judgment.
Id. R. 58A(e). This provision “makes explicit the time of entry of
judgment” and resolves the problem of “endlessly hanging
appeals.” Griffin v. Snow Christensen & Martineau, 2020 UT 33,
¶¶ 12, 14, 467 P.3d 833 (cleaned up).
¶12 The parties agree that “a separate document” was
required in this case, so they therefore agree that rule 58A(e)(1)
does not apply here. See Utah R. Civ. P. 58A(a); see also Griffin,
2020 UT 33, ¶ 17 (stating that a judgment “must be set out in a
separate document that is prepared by the prevailing party and
signed and docketed by the court”). Accordingly, this case falls
under rule 58A(e)(2).
¶13 Rule 58A(e)(2) sets forth two events, the earlier of which
will trigger the time when a judgment becomes complete and
entered. The first occurs when “the judgment is set out in a
separate document signed by the judge and recorded in the
docket.” Utah R. Civ. P. 58A(e)(2)(A). In Griffin, the Utah
Supreme Court explained that when rules 58A(a) and
58A(e)(2)(A) are “properly implemented, the separate judgment
signals clearly that the case is over and the appeal and post-
judgment motion clock has started to run.” 5 2020 UT 33, ¶ 17.
5. We recognize that because Griffin v. Snow Christensen
& Martineau, 2020 UT 33, 467 P.3d 833, was not issued until June
10, 2020, the parties did not have the benefit of its analysis until
(continued…)
20200490-CA 7 2022 UT App 43In re adoption of E.M.F.
¶14 Alternatively, “when the prevailing party fails to prepare
a separate judgment, rule 58A(e)(2)(b) creates a backstop by
establishing that the ‘entry of judgment’ occurs once ‘150 days
have run from the clerk recording the decision, however
designated, that provides the basis for the entry of judgment.’”
Id. (quoting Utah R. Civ. P. 58A(e)(2)(B)); see also id. ¶ 25 n.5;
Utah R. Civ. P. 58A advisory committee notes to 2015
amendments (“[I]f a separate document is required but is not
prepared, judgment is deemed to have been entered 150 days
from the date the decision—or the order confirming the
decision—was entered on the docket.”). Indeed, the current
version of rule 58A(e)(2) was adopted in response to the
supreme court’s direction for the rule to “set a maximum time
. . . for filing an appeal in cases where the district court’s
judgment has not otherwise been finalized.” Central Utah Water
Conservancy Dist. v. King, 2013 UT 13, ¶ 27, 297 P.3d 619; see also
Utah R. Civ. P. 58A advisory committee notes to 2015
amendments (explaining that the current rule addressed “the
‘hanging appeals’ problem” that the supreme court identified in
King); Griffin, 2020 UT 33, ¶¶ 9–11, 14.
¶15 Here, at the end of the bench trial, the district court ruled
in favor of Father and announced its findings of fact and
conclusions of law on the record on December 11, 2018. Neither
side prepared a separate judgment, and thus rule 58A(e)(2)(A)
did not apply. See Griffin, 2020 UT 33, ¶ 17. Nevertheless, the
clerk “record[ed] the decision, however designated, that
(…continued)
then. Nevertheless, the parties still should have been aware of
the relevant court rules bearing on the events that would trigger
the thirty-day period for filing an appeal. Cf. Serrato v. Utah
Transit Auth., 2000 UT App 299, ¶ 9, 13 P.3d 616 (stating that
“inadvertence, ignorance of the rules, or mistakes construing the
rules do not usually constitute excusable neglect” (cleaned up)).
20200490-CA 8 2022 UT App 43In re adoption of E.M.F.
provides the basis for the entry of judgment” when the clerk
recorded the court’s December 11, 2018 minute entry. See Utah R.
Civ. P. 58A(e)(2)(B). The “backstop” of rule 58A(e)(2)(B)
therefore kicked in to “establish[] that the ‘entry of judgment’
occur[red] once ‘150 days ha[d] run from the clerk recording the
decision.’” See Griffin, 2020 UT 33, ¶ 17 (quoting Utah R. Civ. P.
58A(e)(2)(B)). We thus agree with Father that the court’s
judgment was complete and entered in May 2019—after 150
days had transpired since the clerk recorded the court’s minute
entry in December 2018. See Utah R. Civ. P. 58A(e)(2)(B).
¶16 Further, because a party’s notice of appeal “shall be filed
. . . within 30 days after the date of entry of the judgment or
order appealed from,” Utah R. App. P. 4(a), and because Mother
and Stepfather’s June 22, 2020 notice of appeal was filed more
than thirty days after May 2019, we conclude that their appeal
was untimely, 6 see Serrato v. Utah Transit Auth., 2000 UT App 299,
6. Father originally raised his jurisdictional argument in a
motion for summary disposition, which a judge on this court
denied on the ground that the June 2020 order was “the proper
order used for determining appellate jurisdiction.” Mother and
Stepfather now assert that because this court already rejected
Father’s “exact same argument” when his motion for summary
disposition was denied, the doctrine of claim preclusion bars
Father from raising the issue again in his appellate brief. We
disagree.
The doctrine of claim preclusion “bars a party from
prosecuting in a subsequent action a claim that has been fully
litigated previously.” Haskell v. Wakefield & Assocs. Inc., 2021 UT
App 123, ¶ 13, 500 P.3d 950 (emphasis added) (cleaned up); see
also IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT 73,
¶ 26 n.20, 196 P.3d 588 (explaining that res judicata, of which
claim preclusion is a branch, “is more appropriately used to
(continued…)
20200490-CA 9 2022 UT App 43In re adoption of E.M.F.
¶ 11, 13 P.3d 616 (indicating that deadlines for notices of appeal
“must be adhered to in order to prevent cases from continually
lingering and to ensure finality in the system”). “Where an
appeal is not properly taken, this court lacks jurisdiction and we
(…continued)
describe the binding effect of a decision in a prior case on a
second case”). Because Father is not seeking to prosecute a claim
that was adjudicated in a prior action, the doctrine of claim
preclusion does not apply. Instead, Father seeks reconsideration
of the conclusion, rendered in this case, that this court has
jurisdiction over this appeal. This panel has the discretion to
entertain Father’s request.
This court’s previous order was signed by a single judge,
and rule 23(e) of the Utah Rules of Appellate Procedure “allows
a panel of this court to review the actions of the single judge.”
Envirotech Corp. v. Callahan, 872 P.2d 487, 501 n.12 (Utah Ct. App.
1994); see also Utah R. App. P. 23(e)(3) (“[T]he action of a single
justice or judge may be reviewed by the court.”). Further, while
an appeal is pending, this court “remains free” to reconsider its
decisions. Cf. IHC Health Services, 2008 UT 73, ¶¶ 26–27
(explaining that the law of the case doctrine generally “allows a
court to decline to revisit issues within the same case once the
court has ruled on them”). Under the law of the case doctrine,
this court enjoys the discretion not to reconsider a prior ruling,
id. ¶ 26, but the doctrine “does not prohibit a judge from
catching a mistake and fixing it,” Gillmor v. Wright, 850 P.2d 431,
439 (Utah 1993) (Orme, J., concurring).
Here, we exercise our discretion to reconsider the
fundamental issue of appellate jurisdiction. See State v. Brown,
2021 UT 11, ¶ 10, 489 P.3d 152 (“Jurisdiction is the blood in our
judicial system. Because of its vitalness, we have an independent
obligation to ensure that we have it over all matters before us.”
(cleaned up)).
20200490-CA 10 2022 UT App 43In re adoption of E.M.F.
must dismiss.” Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649.
Accordingly, we have no choice but to dismiss Mother and
Stepfather’s appeal without reaching its merits. See id.II. The Constitutionality of Rule 58A
¶17 Notwithstanding, Mother and Stepfather contend that if
rule 58A operates to deprive this court of jurisdiction over their
appeal, rule 58A is unconstitutional on its face and as applied to
the facts of this case because the rule “fails to provide notice to
parties when an order is final for the purposes of appeal.” At the
outset, Mother and Stepfather concede that they did not preserve
this issue and that they are thus raising it for the first time on
appeal. Given this lack of preservation, Mother and Stepfather
further recognize that this court “generally will not consider an
issue, even a constitutional one, which the appellant raises on
appeal for the first time.” (Quoting State v. Webb, 790 P.2d 65, 77
(Utah Ct. App. 1990).) Yet they suggest this court should reach
the constitutional issue under either the plain error or the
exceptional circumstances exception to the preservation rule.
¶18 Mother and Stepfather “must establish the applicability”
of an exception to the preservation rule to raise the issue on
appeal. See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443. But
appellants will not carry their burden of persuasion on an
unpreserved issue if they do not supply “a plain error or
exceptional circumstances analysis because, in failing to do such
an analysis, [they] will have necessarily failed to explain why we
should reach the issue of which [they] complain[].” Baumann v.
Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512. We conclude that
Mother and Stepfather have not established that either exception
applies, and thus we decline to reach this constitutional issue on
its merits.
¶19 Although Mother and Stepfather mention the plain error
exception to the preservation rule, they have not applied the
20200490-CA 11 2022 UT App 43In re adoption of E.M.F.
elements of plain error to this case. See Johnson, 2017 UT 76, ¶ 20
(“To demonstrate plain error, a defendant must establish that (i)
an error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful.” (cleaned up)). They thus
have not engaged in a plain error analysis, much less shown that
the district court plainly erred by not sua sponte declaring rule
58A unconstitutional. As a result, they have not carried their
burden to establish the applicability of this exception. See
Baumann, 2017 UT 80, ¶ 25; State v. Padilla, 2018 UT App 108,
¶ 19, 427 P.3d 542 (rejecting a plain error claim when the
appellant “made no attempt to develop or establish” the claim). 7
¶20 Mother and Stepfather alternatively suggest that the
exceptional circumstances exception should apply, warranting
our consideration of the constitutional issue for the first time on
appeal. But they similarly offer little analysis on this score. They
contend only that the constitutionality of rule 58A presents “a
unique constitutional question, because it directly pertains to the
time set to appeal” and “there is no method to preserve a
constitutional challenge that only becomes an issue of
controversy on appeal.” We are not persuaded.
¶21 Our supreme court has directed that the “exceptional
circumstances doctrine is applied sparingly, reserving it for the
most unusual circumstances where our failure to consider an
issue that was not properly preserved for appeal would have
7. After this case was briefed and argued, this court issued Kelly
v. Timber Lakes Property Owners Ass’n, 2022 UT App 23, in which
we held that plain error review is not available in ordinary civil
cases. Id. ¶ 44. Whether plain error review is available in this
adoption proceeding is an unanswered question. Mother and
Stepfather have not engaged on that question, and for purposes
of our analysis, we assume, without deciding, that plain error
review is available in this case.
20200490-CA 12 2022 UT App 43In re adoption of E.M.F.
resulted in manifest injustice.” Johnson, 2017 UT 76, ¶ 29 (cleaned
up). Courts “apply this exception . . . where a rare procedural
anomaly has either prevented an appellant from preserving an
issue or excuses a failure to do so.” Id. (cleaned up). And once a
party shows that a rare procedural anomaly exists, it “opens the
door to a deeper inquiry” in which “additional factors must be
considered to determine whether an appellate court should
reach an unpreserved issue.” Id. Such factors include whether
our failure to consider the issue “would result in manifest
injustice,” whether “a significant constitutional right or liberty
interest is at stake,” and judicial economy. Id. ¶ 37 (cleaned up).
This exception thus requires a “case-by-case assessment.” Id.
¶ 38. But it cannot be used “as a free-floating justification for
ignoring the legitimate concerns embodied in the preservation
and waiver rules.” Id.
¶22 Mother and Stepfather have not met their burden of
establishing that exceptional circumstances are present here.
This is so because they have not analyzed whether they
encountered a rare procedural anomaly and they have not
engaged in any “deeper inquiry” of the additional factors
relevant to this exception. See id. ¶ 29.
¶23 Without putting it in terms of a rare procedural anomaly,
Mother and Stepfather suggest that the constitutional question
regarding rule 58A became relevant only on appeal and that
they were unable to complain to the district court about notice
not being built into the rule. But rule 58A was in operation and
became applicable once the district court announced its ruling in
court on December 11, 2018.
¶24 Rule 58A(a) requires that “[e]very judgment . . . be set out
in a separate document ordinarily titled ‘Judgment,’” and, as the
prevailing party, Father should have, “within 14 days . . . after
the court’s decision,” “prepare[d] and serve[d] on the other
parties a proposed judgment for review and approval as to
20200490-CA 13 2022 UT App 43In re adoption of E.M.F.
form.” See Utah R. Civ. P. 58A(c)(1). But when Father did not
timely serve a proposed judgment, rule 58A(c) gave Mother and
Stepfather the option of preparing a proposed judgment
themselves. See id. (“If the prevailing party or party directed by
the court fails to timely serve a proposed judgment, any other
party may prepare a proposed judgment and serve it on the
other parties for review and approval as to form.”). They did not
exercise that option.
¶25 Because the parties did not avail themselves of the
opportunity to prepare a proposed judgment that would lead to
the judgment being entered under rule 58A(e)(2)(A), the parties’
inaction meant that, by default, the backstop of rule 58A(e)(2)(B)
applied, meaning that a judgment was entered once “150 days
ha[d] run from the clerk recording the decision, however
designated, that provides the basis for the entry of judgment.”
See id. R. 58A(e)(2)(B). In other words, time was ticking toward
the second event—entry of judgment under rule 58A(e)(2)(B). If
Mother and Stepfather wished to appeal the district court’s
decision and were concerned that they did not know when
judgment would be entered (and thus when they could file a
notice of appeal), they had reason to raise that concern with the
district court. Parties “cannot sleep on [their] rights and just
hope for a favorable outcome.” See Dahl v. Harrison, 2011 UT
App 389, ¶ 28, 265 P.3d 139, abrogated on other grounds by R.O.A.
Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, 327 P.3d 1233.
¶26 And while it would have been unusual, it is not obvious
to us that Mother and Stepfather could not have asked the
district court for a declaration that rule 58A(e)(2) was
unconstitutional on the ground that it did not provide for
enough notice of the events relating to entry of judgment. See
State v. Van Huizen, 2019 UT 01, ¶ 27, 435 P.3d 202 (stating that
appellants “[have] the burden to show that [they were] unable to
object . . . at the proper time”). Mother and Stepfather contend
that their constitutional challenge only became “an issue of
20200490-CA 14 2022 UT App 43In re adoption of E.M.F.
controversy on appeal.” But their complaint lies with an alleged
uncertainty that materialized once the district court recorded its
decision without entering a separate document to memorialize
its finality, and that complaint materialized long before Mother
and Stepfather filed their appeal. Under these circumstances, it is
inadequate for them to simply assert that they were unable to
preserve their constitutional claim. See In re X.C.H., 2017 UT App
106, ¶ 31, 400 P.3d 1154 (requiring parties invoking the
exceptional circumstances exception to “demonstrate how the
actual circumstances [they] encountered in the [district] court
process prevented [them] from raising the [unpreserved]
claim”); see also Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT
App 23, ¶ 21 n.3 (refusing to apply the exceptional circumstances
exception when the appellant did “not discuss the threshold
inquiry of the exceptional circumstances exception” and thus did
not establish that a rare procedural anomaly existed).
¶27 Moreover, Mother and Stepfather have not engaged in the
“deeper inquiry” this court must carry out to determine whether
to reach an unpreserved issue under the exceptional
circumstances exception. See Johnson, 2017 UT 76, ¶ 29. For
example, they have not explained why our failure to consider
the constitutional issue “would result in manifest injustice.” See
id. ¶ 37 (cleaned up). And based on the record before us, it is far
from apparent that it would be unjust for us not to consider
Mother and Stepfather’s constitutional challenge to the
application of rule 58A, for a couple of reasons.
¶28 First, Mother and Stepfather cannot demonstrate on this
record that they did not receive notice of the entry of the district
court’s decision. There is a signed minute entry in the court’s
docket dated two days after the court announced its decision
from the bench. Yet Mother and Stepfather make no mention of
this order on appeal; instead, they focus on an unsigned minute
entry and ask us to assume they did not receive notice of its
entry because no certificate of service is attached. Because
20200490-CA 15 2022 UT App 43In re adoption of E.M.F.
Mother and Stepfather do not account for the court’s signed
minute entry, and because their argument depends on
assumptions, the alleged injustice about which they complain is
far from manifest. 8
¶29 Additionally, even if we were to accept Mother and
Stepfather’s invitation to assume they did not receive notice of
the minute entry recording the district court’s decision, Mother
and Stepfather (while still represented by counsel) had ways to
easily resolve their claimed problem of lacking notice of when
the clerk recorded the court’s decision. They were present when
the court announced its decision from the bench and informed
the parties that its pronouncement would stand as the order of
the court. Surely, counsel understood that the court’s decision
8. Preserving an issue in the district court is important because,
among other things, “it allows an issue to be fully factually,
procedurally, and legally developed in the district court.”
Baumann v. Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512. And
“[w]ithout the benefit of a fully developed record illustrating
both the district court’s thinking and the factual development
bearing on the issue at hand, an appellate court is necessarily
handicapped in reaching a well-considered decision.” True v.
Utah Dep’t of Transp., 2018 UT App 86, ¶ 25, 427 P.3d 338. Here,
the parties dispute whether the district court “ever provided
notice or a copy of the clerk’s minute entry to the parties.” This is
the type of factual dispute that could and should have been
fleshed out in the district court, and the fact that it wasn’t
hinders our ability to analyze the merits of Mother and
Stepfather’s constitutional argument. See id.; cf. Diversified
Equities, Inc. v. American Sav. & Loan Ass’n, 739 P.2d 1133, 1136
(Utah Ct. App. 1987) (“Whether a party should be charged with
‘actual notice,’ either in the sense of having actual knowledge or
being on inquiry notice, turns on questions of fact.”).
20200490-CA 16 2022 UT App 43In re adoption of E.M.F.
would be recorded in the docket within a few days. But if
Mother and Stepfather desired even more certainty, they could
have submitted a proposed judgment and, upon its entry, been
confident that their time to appeal was running. See Utah R. Civ.
P. 58A(e)(2)(A). And at any time during the months following
the court’s announcement of its decision from the bench, Mother
and Stepfather could have checked the docket 9 or called the
court clerk to determine the date on which the court’s decision
was recorded. But Mother and Stepfather forwent all these
opportunities. In light of these missed opportunities, we do not
believe that it would be manifestly unjust for us to decline to
reach the unpreserved constitutional issue. 10 Cf. Dahl, 2011 UT
9. Mother and Stepfather contend that “pursuant to Utah Code
Ann. § 78B-6-141(2),” adoption cases are “sealed upon decision
and the docket is not readily available on the Utah court’s
Xchange system.” Thus, they suggest, they could not have
reviewed the docket to determine when the clerk recorded the
court’s decision. But section 78B-6-141 does not, by its terms,
apply to the court’s docket. And even if it did, it states that any
sealed documents are “open to inspection and copying . . . by a
party to the adoption proceeding (i) while the proceeding is
pending; or (ii) within six months after the day on which the
adoption decree is entered.” Utah Code Ann. § 78B-6-141(3)(a)
(LexisNexis 2018). Here, where no separate judgment was
entered by the court and the court’s signed minute entry is not
designated as private or sealed on the docket, it is not apparent
that Mother and Stepfather could not have accessed the docket
within the 180 days before their appeal was due to ascertain the
exact date on which the court’s decision was recorded.
10. It is also not apparent that if we were to reach the
unpreserved issue, we would conclude rule 58A is
unconstitutional as written. Mother and Stepfather contend that
(continued…)
20200490-CA 17 2022 UT App 43In re adoption of E.M.F.
App 389, ¶ 28 (stating that parties “cannot sleep on [their]
rights”). For these reasons, we will not apply the exceptional
circumstances exception here.
CONCLUSION
¶30 We agree with Father that we lack jurisdiction over this
appeal, and we thus dismiss it. We also conclude that Mother
and Stepfather have not established the applicability of any
exception to the preservation rule and that we therefore may not
reach the merits of their constitutional challenge to rule 58A of
the Utah Rules of Civil Procedure.
(…continued)
rule 58A is unconstitutional because it does not require notice of
when the court records the decision, and the Utah Rules of Civil
Procedure do not otherwise “provide for the service of signed
orders through the E-Filing system.” Although we do not resolve
this constitutional challenge expressly, we note that Mother and
Stepfather are mistaken. Rule 5(b)(3)(A) of the Utah Rules of
Civil Procedure provides that “except in the juvenile court,” “[a]
paper is served . . . by . . . the court submitting it to the electronic
filing service provider, if the person being served has an
electronic filing account.”
20200490-CA 18 2022 UT App 43