Mehio v. Smart Dental Care, LC

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Farouk Mehio, ) PER CURIAM DECISION
)
Plaintiff and Appellant, ) Case No. 20120573‐CA
)
v. ) FILED
) (November 29, 2012)
Smart Dental Care, LC, )
) 2012 UT App 335Defendant and Appellee. )
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Third District, Salt Lake Department, 120900001
The Honorable Sandra N. Peuler
Attorneys: Farouk Mehio, Salt Lake City, Appellant Pro Se
Terence L. Rooney and Christopher W. Droubay, Salt Lake City, for
Appellee
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Before Judges Davis, McHugh, and Voros.
¶1 Farouk Mehio appeals the denial of his motion to set aside the district court’s
order dismissing his complaint. This matter is before the court on its own motion for
summary disposition on the basis that the issues raised for review are so insubstantial
as not to merit further proceedings and consideration by the court. We affirm.
¶2 In his motion under rule 60(b) of the Utah Rules of Civil Procedure, Mehio
complained that the district court had never ruled on his request for an extension to
respond to Smart Dental Care LC’s motion to dismiss prior to the district court
dismissing his complaint for medical malpractice. As a result, he argued that the district
court ruled on the motion to dismiss without ever seeing his response. The 60(b) motion
did not set forth any allegation that he had a meritorious defense to the motion to
dismiss.
¶3 Generally, relief under rule 60(b) is only available “upon (1) a showing that there
is an explicit basis for granting relief under one of the subsections of 60(b); and (2) an
allegation of a meritorious defense.” Judson v. Wheeler RV Las Vegas, LLC, 2012 UT 6,
¶ 14, 270 P.3d 456. The district court denied Mehio’s motion for 60(b) relief because he
failed to make any allegation of a meritorious defense. The district court did not abuse
its discretion in denying Mehio’s rule 60(b) motion. See Menzies v. Galetka, 2006 UT 81,
¶ 54, 150 P.3d 480 (“A district court has broad discretion to rule on a motion to set aside
a default judgment under rule 60(b) of the Utah Rules of Civil Procedure.”). Smart
Dental’s motion to dismiss was based upon the argument that Mehio had failed to
comply with the 90‐day notice provision of the Utah Health Care Malpractice Act,
thereby depriving the district court of subject matter jurisdiction. See Utah Code Ann.
§ 78B‐3‐412(1) (LexisNexis Supp. 2012). Therefore, in order to obtain relief under rule
60(b), Mehio not only had to show that there was an explicit basis for granting relief
under the rule, but also that he had a meritorious defense to Smart Dental’s argument
that the district court lacked subject matter jurisdiction due to Mehio’s failure to comply
with the Health Care Malpractice Act. Mehio made no attempt to demonstrate that he
had such a defense.1 Accordingly, because Mehio failed to demonstrate that he had a
meritorious defense to Smart Dental’s motion to dismiss, the district court did not abuse
its discretion in denying the rule 60(b) motion.
¶4 Affirmed.
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James Z. Davis, Judge
____________________________________
Carolyn B. McHugh, Judge
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J. Frederic Voros Jr., Judge
1
In his memorandum filed in response to this court’s sua sponte motion for
summary disposition, Mehio argues the merits of his case, but makes no mention of
whether he complied with the notice provisions of the Health Care Malpractice Act.
20120573‐CA 2