Norton v. Hess

2016 UT App 108THE UTAH COURT OF APPEALS
THOMAS L. NORTON,
Appellant,
v.
AUTUMN M. HESS,
Appellee.
Memorandum Decision
No. 20150289-CA
Filed May 19, 2016
Second District Court, Ogden Department
The Honorable Michael D. Lyon
The Honorable Mark R. DeCaria
The Honorable Joseph Bean
No. 120907652
Kelly G. Cardon, Attorney for Appellant
H. Justin Hitt, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY
concurred.
ORME, Judge:
¶1 Thomas L. Norton appeals the district court’s ruling that
his cause of action against Autumn Hess is barred by the
applicable statute of limitations, even as extended by Utah’s
savings statute. We affirm.
¶2 Norton and Hess were involved in an automobile
accident nearly a decade ago, on December 6, 2006. Three years
and 362 days later—three days short of the running of the
applicable four-year statute of limitations—Norton sued Hess,
alleging that Hess’s negligence caused Norton’s injuries.
According to rule 4 of the Utah Rules of Civil Procedure,
Norton v. Hess
Norton’s filing of the suit triggered a 120-day period in which
Norton could serve Hess with the summons and complaint. See
Utah R. Civ. P. 4(b)(i). Having failed to accomplish service
within this timeframe, Norton requested additional time to serve
Hess and was granted another 120 days. When Norton failed
once again to serve Hess within the time permitted, the court
dismissed Norton’s complaint, without prejudice, on November
22, 2011.
¶3 As the savings statute permits, Norton refiled his
complaint on November 21, 2012, the second-to-last day on
which he could have done so. 1 And once again, Norton failed to
serve Hess within 120 days. But this time, when Norton
requested additional time to serve Hess, the district court denied
his request and dismissed his complaint, ostensibly without
prejudice, on April 18, 2013. Not long after, the district court
judge who signed the order dismissing the complaint, Judge
Michael D. Lyon, retired. 2
1. According to Utah’s savings statute, “[i]f any action is timely
filed and . . . the plaintiff fails in the action or upon a cause of
action otherwise than upon the merits, and the time limited
either by law or contract for commencing the action has expired,
the plaintiff . . . may commence a new action within one year.”
Utah Code Ann. § 78B-2-111(1) (LexisNexis 2012). Thus, Norton
had one year to refile his complaint against Hess, and Norton
did so with one day to spare. Importantly, as will become clear,
the statute further provides that “a new action may be
commenced under this section only once.” Id. § 78B-2-111(2).
2. The parties dispute whether Judge Lyon issued the order
volitionally or whether the order of dismissal was generated
automatically by the courts’ electronic case management system.
Because we conclude that the order dismissing Norton’s claims
(continued…)
20150289-CA 2 2016 UT App 108Norton v. Hess
¶4 On April 18, 2014—one year to the day after his previous
action was dismissed—Norton again refiled his complaint
against Hess. He did so after filing an ex parte motion for relief
from the latest dismissal order, pursuant to rule 60(b)(6) of the
Utah Rules of Civil Procedure. Judge Mark R. DeCaria granted
Norton’s motion on April 28, 2014, and, just under two weeks
later, Norton finally served Hess with a summons and
complaint.
¶5 Hess responded with a motion to dismiss on the ground
that the second dismissal of Norton’s complaint was necessarily
with prejudice because “the complaint had previously failed and
Norton could only re-file his complaint once pursuant to” the
savings statute. See Utah Code Ann. § 78B-2-111(2) (LexisNexis
2012). Some five months later, Judge Joseph Bean heard oral
argument on the motion. During oral argument, Norton
conceded that he never attempted to conduct alternative service,
such as by publication. He also offered, as his sole justification
for rule 60(b) relief, that a dismissal would bar him from
prosecuting the case.
¶6 After reviewing the history of the case, Judge Bean found
himself “uncomfortable” with its procedural posture. He
concluded that section “78B-2-111 did not intend or was not
passed with the intent that Rule 60(b) would be able to
circumvent the limitations put specifically into that [section].”
As a result, he concluded that the second dismissal was
necessarily with prejudice and that rule 60(b) relief was not
available to bypass the mandate of the savings statute. He
granted Hess’s motion and dismissed Norton’s complaint.
Norton appeals.
(…continued)
without prejudice was erroneous, see infra ¶ 9, it is irrelevant
whether the error was computer- or human-generated.
20150289-CA 3 2016 UT App 108Norton v. Hess
¶7 Norton raises two issues on appeal. 3 First, he argues that
the district court, acting through Judge Bean, incorrectly
interpreted the savings statute, Utah Code section 78B-2-111, by
concluding that Judge Lyon’s dismissal of Norton’s claim against
Hess was necessarily with prejudice. We review the district
court’s conclusions of law for correctness, granting no deference
to its interpretation of law. Oates v. Chavez, 749 P.2d 658, 659
(Utah 1988).
¶8 Second, Norton claims that Judge Bean abused his
discretion by deciding that Norton’s rule 60(b)(6) motion for
relief from the April 2013 dismissal order was improperly
granted by Judge DeCaria. Norton contests Judge Bean’s
conclusion that the rules of civil procedure were not intended to
allow a plaintiff to revive a claim barred by the applicable statute
of limitations, even as extended by the savings statute. “This
court reviews a district court’s denial of a rule 60(b) motion for
an abuse of discretion because ‘most [such motions] are
equitable in nature, saturated with facts, and call upon judges to
apply fundamental principles of fairness that do not easily lend
3. Norton’s brief hints at a third issue. In his statement of issues,
Norton also contends that the district court erred in concluding
that his rule 60(b) motion was brought under subsection (1) of
that rule. Because Norton did not brief this third issue beyond a
fleeting reference to his filing with the district court, we
conclude that this issue is inadequately briefed and so decline to
address it further. See In re Estate of Cosby, 2011 UT App 191, ¶ 3,
257 P.3d 509 (per curiam) (noting that “[a]n issue is inadequately
briefed when the overall analysis of the issue is so lacking as to
shift the burden of research and argument to the reviewing
court” and also that “[i]t is well established that a reviewing
court will not address arguments that are not adequately
briefed”) (first alteration in original) (citations and internal
quotation marks omitted).
20150289-CA 4 2016 UT App 108Norton v. Hess
themselves to appellate review.’” Shedron-Easley v. Easley, 2015
UT App 20, ¶ 2, 343 P.3d 718 (per curiam) (quoting Kell v. State,
2012 UT 25, ¶ 17, 285 P.3d 1133).
¶9 Norton’s appeal is entirely governed by the applicable
statute of limitations and the savings statute. See Utah Code
Ann. §§ 78B-2-307(3), 78B-2-111 (LexisNexis 2012). The statute of
limitations for Norton’s negligence claim is four years. Id. § 78B-
2-307(3). Despite the rigor with which statutes of limitations are
usually applied, Utah’s savings statute provides an exception in
a limited circumstance: If a party files its action before the
expiration of the statute of limitations, but the action is
dismissed for any reason other “than upon the merits” after the
expiration of the applicable limitations period, the party may
refile its claim as a “new action” within one year of the previous
dismissal. Id. § 78B-2-111(1). Importantly, however, “a new
action [filed under the savings statute] may be commenced . . .
only once.” Id. § 78B-2-111(2). 4 Given this clear legislative
mandate, the order dismissing Norton’s second action against
Hess was invalid insofar as it purported to be without prejudice,
and Judge Bean ruled properly in correcting that error.
¶10 Norton’s rule 60(b)(6) argument is inadequately briefed.
His entire argument on the issue consists of four paragraphs,
only two of which offer any substance. Both of these paragraphs
are lifted directly from the record and offered without any
analysis whatsoever. Norton’s argument is further weakened by
the fact that he neglects to focus on the portions of the district
court’s decision with which he disagrees. And it is not this
court’s duty to comb through the record in search of a plausible
4. A prior version of the savings statute did not include this
single-use limitation, and “serial recourse” to the statute was
permitted. See Hebertson v. Bank One, Utah, NA, 1999 UT App
342, ¶ 13, 995 P.2d 7.
20150289-CA 5 2016 UT App 108Norton v. Hess
argument in support of an appellant’s position. See In re Estate of
Cosby, 2011 UT App 191, ¶ 3, 257 P.3d 509 (per curiam) (“A brief
is inadequate when it merely contains bald citations to authority
[without] development of that authority and reasoned analysis
based on that authority.”) (alteration in original) (citation and
internal quotation marks omitted). Norton has “failed to
demonstrate that the court . . . erred by ruling that [his] claims
were barred by the statute of limitations” and thus, he “fails to
demonstrate that the district court abused its discretion by
denying [his] rule 60(b) motion.” 5 Richter v. Larson, Turner,
Fairbanks & Dalby, LC, 2012 UT App 13, ¶ 4, 269 P.3d 1012.
¶11 Regardless of whether it was the district court itself or the
district court’s computer system that erred, resulting in an order
5. As we recently reiterated in Falkenrath v. Candela Corp., 2016
UT App 76, exceptions to statutes of limitations are “narrow in
scope” and “‘should not be used simply to rescue litigants who
have inexcusably and unreasonably slept on their rights.’” Id. ¶ 8(quoting Beaver County v. Utah State Tax Comm’n, 2006 UT 6, ¶ 32,
128 P.3d 1187). Norton has consistently skated on the thinnest of
ice in pursuing his action while keeping the statute of limitations
at bay. For example, as Norton concedes, he filed his first action
against Hess just three days before the statute of limitations
expired; he filed a motion to extend the time to serve process on
Hess the day after his time to do so had expired; he then failed,
once again, to serve process on Hess within the 120-day limit
and his action was dismissed, after which he filed his second
action just one day before the savings statute’s one-year grace
period expired; and then he again failed to serve Hess within 120
days. On such facts, it is clear that Norton slept on his rights, and
it would therefore do violence to the very purpose of the statute
of limitations to allow him yet a third opportunity to prosecute
what is now—going on ten years after the accident in question—
a very stale claim, indeed. See id.
20150289-CA 6 2016 UT App 108Norton v. Hess
purportedly dismissing Norton’s second action without
prejudice, the express terms of the savings statute barred
Norton’s third go at Hess. Rule 60(b) cannot be used to override
the savings statute or otherwise skirt the statute of limitations.
Therefore, the district court did not abuse its discretion in
denying Norton’s rule 60(b) motion.
¶12 Affirmed.
20150289-CA 7 2016 UT App 108