Bennett v. Bigelow and BOP

2013 UT App 180_________________________________________________________
THE UTAH COURT OF APPEALS
BRENDT THOMAS BENNETT,
Petitioner and Appellant,
v.
ALFRED BIGELOW AND BOARD OF PARDONS AND PAROLE,
Respondents and Appellees.
Opinion
No. 20111047‐CA
Filed July 26, 2013
Sixth District, Manti Department
The Honorable Marvin D. Bagley
No. 090600317
Linda M. Jones and Noella A. Sudbury, Attorneys
for Appellant
John E. Swallow and Brent A. Burnett, Attorneys
for Appellees
JUDGE WILLIAM A. THORNE JR. authored this Opinion, in which
JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.
THORNE, Judge:
¶1 Brendt Thomas Bennett appeals from the district court’s
denial of his motion for enlargement of time in which to appeal the
dismissal of his petition for extraordinary relief. See generally Utah
R. App. P. 4(e). We reverse the district court’s order denying
Bennett’s motion and remand this matter for further proceedings
consistent with this opinion.
BACKGROUND
¶2 Bennett was convicted of one count of rape of a child in
August 2000. He successfully completed a sex offender treatment
Bennett v. Bigelow
program while in prison in 2006, and he was paroled to a
community correctional center in 2007. However, the Board of
Pardons and Parole (the Board) initiated revocation proceedings
after Bennett refused to answer parole officers’ questions about
uncharged offenses he may have committed. Bennett’s parole was
revoked in April 2008, and he was imprisoned at the Central Utah
Correctional Facility (CUCF).
¶3 In September 2009, Bennett filed a petition for extraordinary
relief asserting various claims that CUCF warden Alfred Bigelow
and the Board (collectively, Respondents) were wrongfully and
unconstitutionally restraining his liberties. Respondents sought
summary judgment, arguing in part that the Board’s pardon and
parole decisions are not subject to judicial review. See Utah Code
Ann. § 77‐27‐5(3) (LexisNexis 2012) (providing that Board decisions
pertaining to paroles and pardons “are final and are not subject to
judicial review”). Bennett opposed Respondents’ summary
judgment motion and also filed his own separate motion seeking
to declare Utah Code section 77‐27‐5(3) unconstitutional.
¶4 The district court granted Respondents’ motion for
summary judgment in part, but ordered further briefing on two of
Bennett’s claims. The district court also denied Bennett’s motion to
declare section 77‐27‐5(3) unconstitutional. Bennett attempted to
appeal the district court’s denial of his motion, but this court
dismissed the appeal for lack of jurisdiction because it did not
challenge a final, appealable order. See Bennett v. Bigelow, 2010 UT
App 252U, para. 4 (per curiam). The per curiam decision
dismissing Bennett’s appeal stated that the dismissal was “without
prejudice to an appeal filed after the entry of a final judgment
resolving [Bennett’s two] remaining claims.” Id. para. 5.
¶5 The matter returned to the district court, and on February 7,
2011, the district court issued a memorandum decision granting
summary judgment to Respondents on the two remaining claims
and dismissing Bennett’s petition. The memorandum decision
directed Respondents to “submit an implementing order.”
Respondents prepared and filed an order for the district court’s
signature and served it on Bennett on February 28. The district
20111047‐CA 2 2013 UT App 180Bennett v. Bigelow
court signed Respondents’ order on March 16, but Respondents did
not serve a copy of the executed order on Bennett as required by
the Utah Rules of Civil Procedure. See generally Utah R. Civ. P.
58A(d) (“A copy of the signed judgment shall be promptly served
by the party preparing it . . . .”). The thirty‐day period in which
Bennett could appeal the dismissal order expired on April 15, 2011.
See Utah R. App. P. 4(a).
¶6 On May 11, 2011, Bennett filed a verified motion for
enlargement of time to appeal the March 16 dismissal order
pursuant to rule 4(e) of the Utah Rules of Appellate Procedure. See
id. R. 4(e) (governing extensions of time to appeal a judgment or
order). According to Bennett’s motion, he had “waited on pins and
needles” for notice that the district court had signed the dismissal
order, but none was forthcoming. After more than a month of
waiting, Bennett enlisted the help of his out‐of‐state parents to
track down the status of the order. This process was made more
difficult by what Bennett described as “restrictions” imposed upon
him at CUCF. Bennett’s parents succeeded in providing him a copy
of the order on May 4, and he filed his motion for enlargement of
time one week later.
¶7 Bennett’s motion acknowledged that he needed to show
“excusable neglect or good cause” in order to obtain an
enlargement of time. See Utah R. App. P. 4(e). Bennett argued that
“[t]he failure, by either the Court or a responsible party, to provide
service upon Mr. Bennett of the Court’s final judgment fulfills that
requirement.” Respondents opposed Bennett’s motion, arguing
that their failure to serve Bennett with the signed dismissal order
did not affect the time for filing a notice of appeal and that Bennett
had not demonstrated good cause or excusable neglect because he
could simply have filed a notice of appeal after the district court’s
announcement of the decision to dismiss his petition. See generally
Utah R. App. P. 4(c) (“A notice of appeal filed after the
announcement of a decision, judgment, or order but before entry
of the judgment or order shall be treated as filed after such entry
and on the day thereof.”). The district court denied Bennett’s
motion without making any factual findings, stating merely that it
was acting after “[h]aving carefully reviewed all of the pleadings
20111047‐CA 3 2013 UT App 180Bennett v. Bigelow
submitted by both parties, being fully advised in the premises, and
good cause appearing.” Bennett appeals from the district court’s
denial order.
ISSUE AND STANDARD OF REVIEW
¶8 Bennett argues that the district court erred when it denied
his timely motion for enlargement of time to appeal the summary
judgment order that had been entered against him. We give the
district court’s ruling on a rule 4(e) motion “broad deference on
review.” Reighard v. Yates, 2012 UT 45, ¶ 18, 285 P.3d 1168; see also
Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 6, 13 P.3d 616(“The discretion of the trial court to grant or deny a Rule 4(e)
motion is very broad, highly fact dependent, and fundamentally
equitable in nature.”).
ANALYSIS
¶9 Bennett challenges the district court’s denial of his motion
for relief under rule 4(e) of the Utah Rules of Appellate Procedure,
arguing that the district court erred by disregarding several factors
supporting a finding of good cause or excusable neglect. See
generally Utah R. App. P. 4(e). Specifically, Bennett argues that
Respondents’ failure to serve him with a copy of the dismissal
order in violation of civil rule 58A(d), see Utah R. Civ. P. 58A(d)
(“A copy of the signed judgment shall be promptly served by the
party preparing it . . . .”), along with his own efforts to perfect his
appeal despite his incarceration and alleged restricted status,1
demonstrate both good cause and excusable neglect. Both Bennett
and Respondents invite us to make our own determination of
1. Bennett fails to elaborate on the exact nature of his alleged
restricted status. However, we infer that he is referring to
disciplinary or other restrictions—such as restrictions on his
mailing privileges—that were imposed upon him above and
beyond the restriction of incarceration.
20111047‐CA 4 2013 UT App 180Bennett v. Bigelow
whether Bennett is entitled to relief under rule 4(e). We decline
those invitations, but we conclude that under the circumstances the
district court failed to support its denial of Bennett’s motion with
adequate factual findings and analysis.
¶10 Rule 4(e) provides that the district court may extend the
time for filing a notice of appeal “upon a showing of excusable
neglect or good cause.” Utah R. App. P. 4(e).2 Generally speaking,
“[e]xcusable neglect ‘is an admittedly neglectful delay that is
nevertheless excused by special circumstances,’ whereas good
cause ‘pertains to special circumstances that are essentially beyond
a party’s control.’” Serrato, 2000 UT App 299, ¶ 7 (quoting Reisbeck
v. HCA Health Servs. of Utah, Inc., 2000 UT 48, ¶ 13, 2 P.3d 447).
¶11 Utah case law has identified four factors of general
relevance to a determination of excusable neglect: “‘[i] the danger
of prejudice to [the nonmoving party], [ii] the length of the delay
and its potential impact on judicial proceedings, [iii] the reason for
the delay, including whether it was within the reasonable control
of the movant, and [iv] whether the movant acted in good faith.’”
Reighard, 2012 UT 45, ¶ 17 (alterations in original) (quoting Serrato,
2000 UT App 299, ¶ 9). Nevertheless, “[t]he equitable nature of the
excusable neglect determination requires that a district court be
free to consider all facts it deems relevant to its decision and weigh
them accordingly.” Jones v. Layton/Okland, 2009 UT 39, ¶ 18, 214
P.3d 859.
¶12 Good cause, which focuses on events beyond a moving
party’s control, is “a more liberal standard.” Reisbeck, 2000 UT 48,
¶ 14. “To the extent a factor that contributed to, or provoked, a
delay in filing was genuinely beyond the moving party’s control,
2. Rule 4(e) also requires that a motion for enlargement of time be
filed within thirty days of the expiration of the period in which a
party may file a notice of appeal. See Utah R. App. P. 4(e). Bennett’s
May 11, 2011 motion was clearly timely, as his time to appeal the
March 16 dismissal order had expired on April 15. See id. R. 4(a)
(generally requiring a notice of appeal to be filed “within 30 days
after the date of entry of the judgment or order appealed from”).
20111047‐CA 5 2013 UT App 180Bennett v. Bigelow
that factor will usually be more supportive of granting a motion to
extend time than will a factor that is admittedly derived from the
moving party’s neglect.” Id.¶13 “[I]t will often be difficult to label a particular justification
as being either purely related to good cause or purely related
to excusable neglect,” and “[m]any circumstances legitimately may
be treated under both rubrics.” Id. The district court is required
to give “appropriate weight to the extent to which a particular
justification relates to factors within or beyond the party’s control,”
applying “a more liberal good cause standard” when a proffered
justification “implicates factors beyond the party’s control.”
Id. ¶ 15. “Conversely, where a party or a party’s attorney was
concededly neglectful, the court must determine whether that
neglect should, on balance, be excused.” Id.
¶14 Here, Bennett’s rule 4(e) motion implicated multiple factors,
some of which were within Bennett’s control and some of which
were not. We agree with Bennett that Respondents’ failure to serve
him with the dismissal order was clearly not within his control. For
purposes of this analysis, we will also consider Bennett’s
incarceration and alleged restricted status to be factors beyond his
control.3
¶15 However, as argued by Respondents, other factors relating
to Bennett’s motion were within his control. Bennett could have
filed a notice of appeal at any time following the district court’s
announcement of its dismissal decision and that notice would have
related forward to the ultimate entry of the dismissal order,
effectively triggering the appeal that Bennett desired. See Utah R.
App. P. 4(c). Further, Respondents served Bennett with the
proposed dismissal order that they had filed with the district court,
putting him on notice that it would likely soon be signed and
entered. Respondents argue that in light of this notice, Bennett bore
some burden—despite his self‐described “restricted” status—to
3. We recognize that Bennett’s incarceration and restrictions
incident thereto are not beyond his control in the sense that they
are the result of Bennett’s criminal behavior.
20111047‐CA 6 2013 UT App 180Bennett v. Bigelow
monitor the status of the dismissal. Cf. West v. Grand Cnty., 942 P.2d
337, 340 (Utah 1997) (“Clearly, West’s failure to check with the
clerk was neglect. Our rules . . . put the burden on counsel to check
periodically with the clerk of the court as to the date of entry [of a
judgment.]” (omission in original) (citation and internal quotation
marks omitted)).
¶16 Despite this mix of “aspects both within and beyond the
moving party’s control,” Reisbeck v. HCA Health Servs. of Utah, Inc.,
2000 UT 48, ¶ 14, 2 P.3d 447, the district court provided no
explanation of which test it was applying to each factor, nor did it
make factual findings in support of its denial of Bennett’s motion.
Instead, the district court stated merely that it was acting after
“[h]aving carefully reviewed all of the pleadings submitted by both
parties, being fully advised in the premises, and good cause
appearing.”4 This boilerplate language provides us with no basis
upon which to evaluate whether the district court applied the
appropriate standard to the various factors within and beyond
Bennett’s control or to provide “meaningful appellate review” of
the district court’s decision. See Busche v. Busche, 2012 UT App 16,
¶ 26, 272 P.3d 748; cf. Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 20, 243
P.3d 1275 (“The only reasoning given in the order is that the district
court denied leave based on the oral arguments, the briefs, and for
good cause. This level of detail is simply insufficient to permit
meaningful appellate review.”); Busche, 2012 UT App 16, ¶ 26 (“To
allow meaningful appellate review, . . . the decision to award
attorney fees must be supported by detailed findings of fact.”).
¶17 Despite the inadequacies in the district court’s denial order,
both parties essentially ask us to rule on Bennett’s motion as a
matter of law. Bennett asserts that the reasons for enlarging his
appeal period are “[c]ompelling” and asks us to remand the matter
with directions that the district court allow the filing of a notice of
appeal. However, as an appellate court, we are not equipped to
4. We interpret the district court’s “good cause appearing”
language to mean that the district court found good cause to deny
Bennett’s motion, not that it was denying the motion despite
Bennett’s demonstration of good cause.
20111047‐CA 7 2013 UT App 180Bennett v. Bigelow
address the intensely factual questions presented by a rule 4(e)
motion. See Merrick Young Inc. v. Wal‐Mart Real Estate Bus. Trust,
2011 UT App 164, ¶ 34, 257 P.3d 1031 (stating that this court is
“ill‐equipped” to supply missing factual findings and should
particularly avoid doing so “in cases where the ultimate decision
is within the particular realm of trial court discretion”); Serrato v.
Utah Transit Auth., 2000 UT App 299, ¶ 6, 13 P.3d 616 (“The
discretion of the trial court to grant or deny a Rule 4(e) motion is
very broad, highly fact dependent, and fundamentally equitable in
nature.”).
¶18 Respondents suggest that we should uphold the decision
below because Bennett could have availed himself of rule 4(c) of
the Utah Rules of Appellate Procedure to file a notice of appeal at
any time after the district court’s February 2011 memorandum
decision. See Utah R. App. P. 4(c) (stating that a notice of appeal
filed after the announcement of a judgment or order is deemed
timely filed as of the entry of the judgment or order). The
availability of rule 4(c) is certainly one factor that the district court
could have considered in evaluating Bennett’s motion, but we
conclude that it is not dispositive for several reasons.
¶19 First, looking only at the circumstances of this case, the
district court would have had to evaluate the effect of rule 4(c) in
light of Bennett’s pro se status and this court’s prior dismissal of
Bennett’s first attempt to appeal. In Bennett v. Bigelow, 2010 UT App
252U (mem.) (per curiam), we dismissed Bennett’s appeal for lack
of jurisdiction because his notice of appeal was premature and
directed Bennett that he could file a notice of appeal “after the entry
of a final judgment.” See id. para. 5 (emphasis added).5 The
inadequacy of the district court’s denial order precludes us from
determining how—or even whether—the district court balanced
these factors, and as noted above, we are ill‐equipped to find and
5. We are not interpreting our prior language to in any way
preclude the application of rule 4(c) of the Utah Rules of Appellate
Procedure at this stage of the case. We are merely observing that
our prior instructions to the pro se Bennett are part of the overall
circumstances surrounding Bennett’s rule 4(e) motion.
20111047‐CA 8 2013 UT App 180Bennett v. Bigelow
weigh facts as an initial matter. See Merrick Young Inc., 2011 UT
App 164, ¶ 34.
¶20 Looking at the broader implications of Respondents’
argument, we further observe that there is nothing in the language
of rule 4 of the Utah Rules of Appellate Procedure to suggest that
rule 4(c) is intended to have an effect on the availability of relief
under rule 4(e). If we were to accept Respondents’ argument, we
would be implying that litigants have a duty to file a premature
notice of appeal under rule 4(c) or risk losing the relief available
under rule 4(e). See Jones v. Layton/Okland, 2009 UT 39, ¶ 21, 214
P.3d 859 (explaining that in the excusable neglect context, “the
word ‘neglect’ indicates, as a purely objective fact, that a person
has not done that which it was his duty to do”). The plain language
of rule 4(c) suggests that it is intended as a safe haven for parties
who mistakenly file a notice of appeal prior to the formal entry of
a judgment or order, not as a routine—much less
mandated—substitute for rule 4(a)’s general dictate that notices of
appeal be filed “within 30 days after the date of entry of the judgment
or order appealed from.” Utah R. App. P. 4(a) (emphasis added).
¶21 In sum, the district court’s order denying Bennett’s rule 4(e)
motion is “simply insufficient to permit meaningful appellate
review,” Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 20, 243 P.3d 1275,
and we cannot say with any certainty that the district court acted
within its admittedly broad discretion in denying Bennett’s motion.
However, we are also not in the position to make our own
determination that Bennett’s motion should have been granted or
denied. Under these circumstances, we reverse the district court’s
order denying Bennett’s motion and remand this matter for further
proceedings.6 Upon remand, the district court is to reassess
6. Ordinarily, we will not reverse a trial court order based on
inadequate factual findings unless the appealing party preserves
that issue for appeal by apprising the lower court that its order is
inadequate. See In re K.F., 2009 UT 4, ¶ 60, 201 P.3d 985 (stating that
a party “‘waive[s] any argument regarding whether the district
court’s findings of fact were sufficiently detailed’ when the [party]
(continued...)
20111047‐CA 9 2013 UT App 180Bennett v. Bigelow
Bennett’s motion and enter adequate findings and reasoning to
support its ultimate decision to grant or deny that motion.7 See In
re M.M., 2003 UT 54, ¶ 13, 82 P.3d 1104 (remanding the district
court’s denial of a rule 4(e) motion for “reassessment” because
“[t]he record in this case is too scant to permit us to determine the
merits of [the motion]”); West v. Grand Cnty., 942 P.2d 337, 341
(Utah 1997) (“[W]e must remand the case to the trial court to
determine whether, given the factors outlined above, the
circumstances in this case warrant a finding of excusable neglect.”).
CONCLUSION
¶22 In light of the circumstances of this case and the district
court’s failure to make factual findings or otherwise explain the
basis for its decision, we cannot say that the district court acted
within its broad discretion in denying Bennett’s motion for an
enlargement of time to appeal under rule 4(e) of the Utah Rules of
Appellate Procedure. Accordingly, we reverse the district court’s
6. (...continued)
fails to challenge the detail, or adequacy, of the findings with the
district court” (first alteration in original) (citation omitted)).
However, “where the inadequacy of the trial court’s findings of fact
and conclusions of law results in our inability to ascertain the basis
of the trial court’s decision, [we are] prevented from effectively
reviewing the trial court’s decision and may remand for the entry
of more‐detailed findings.” Allen v. Ciokewicz, 2012 UT App 162,
¶ 42, 280 P.3d 425 (alteration in original) (citation and internal
quotation marks omitted).
7. We do not intend to create a new requirement that all orders
granting or denying relief under rule 4(e) must contain supporting
factual findings. In many cases, the propriety of the district court’s
ruling may be readily apparent in light of the surrounding
circumstances. However, in close cases or cases in which the
district court’s ruling contravenes one or more circumstances
supporting the opposite result, it is incumbent on the district court
to explain its decision with adequate findings and reasoning.
20111047‐CA 10 2013 UT App 180Bennett v. Bigelow
ruling and remand this matter to the district court for its
reassessment of Bennett’s motion and the entry of adequate
supporting findings and analysis.
20111047‐CA 11 2013 UT App 180