Rojas v. Montoya

2020 UT App 153THE UTAH COURT OF APPEALS
ALFREDO ROJAS,
Appellee,
v.
DERRICK MONTOYA AND VALERIE SWANSON,
Appellants.
Opinion
No. 20180497-CA
Filed November 13, 2020
Fifth District Court, Beaver Department
The Honorable Keith C. Barnes
The Honorable Paul D. Lyman
No. 150500012
J. David Milliner and Jacob B. Stone,
Attorneys for Appellants
Justin Wayment, Christian Thomas Jones, and
Matthew D. Carling, Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
ORME, Judge:
¶1 Derrick Montoya and Valerie Swanson (collectively,
Appellants) challenge the district court’s denial of their motion
to set aside default judgment. They primarily argue that the
court exceeded its discretion under rule 60(b) of the Utah Rules
of Civil Procedure in determining that their previous counsel’s
failure to provide their correct mailing addresses in his notice of
withdrawal, which they contend resulted in their failure to
appear at the pretrial conference where default judgment was
entered, did not warrant relief. They also assert that because
they acted with due diligence, any neglect on their part in not
appearing for the pretrial conference was excusable. We decline
Rojas v. Montoya
to disturb the district court’s ruling because any mistake made
by the court, plaintiff Alfredo Rojas, or Appellants’ previous
counsel was a result of Appellants’ unreasonable behavior in
failing, for a period of nearly two years, to keep the court
apprised of their correct mailing addresses.
BACKGROUND
¶2 In 2012, Appellants and Rojas entered into an agreement
regarding a taco shop in Beaver, Utah. In 2015, a dispute arose
concerning the nature of that agreement, with Appellants
claiming that the agreement was a profit sharing arrangement in
which Rojas merely took over as manager, while Rojas
contended that the agreement was for him to lease and operate
the shop as its owner. Appellants subsequently terminated the
agreement and took control of the shop. Rojas then brought suit.
Because Montoya owned the shop before the arrangement with
Rojas, and because Swanson, Montoya’s sister and business
partner, lived in California, Appellants decided that Montoya
would “take [the] lead” in handling the case and would inform
Swanson of any developments.
¶3 At the beginning of the case, Rojas had Montoya
personally served at the home of Montoya’s friend’s widow in
Beaver, Utah, but that service was quashed with the help of an
attorney (Attorney 1) because the sheriff’s deputy who served it
failed to endorse the date of service or sign his name on the
return of service. Attorney 1 then withdrew from the case
without providing Appellants’ mailing addresses on his notice
of withdrawal, contrary to the express requirement of the Utah
Rules of Civil Procedure. See Utah R. Civ. P. 74(a). Accordingly,
the district court allowed service on Appellants through
(1) publication, (2) serving any employee of the taco shop, and
(3) sending a copy of the summons and complaint by first class
mail and certified mail to the taco shop. As a result, Appellants
received the complaint and they answered on December 10,
2015, with the help of a different attorney (Attorney 2).
20180497-CA 2 2020 UT App 153Rojas v. Montoya
¶4 Approximately five months later, in April 2016, Attorney
2 withdrew and, on his notice of withdrawal, he provided a
street address in St. George, Utah, for Montoya and a street
address in Beaver, Utah for Swanson. These addresses were
incorrect. 1 Appellants then engaged another attorney (Attorney
3), who made his appearance in July 2016.
¶5 After a scheduled pretrial conference was continued, an
attempted mediation failed, and some discovery was
undertaken, Attorney 3 withdrew on March 22, 2017, and he
provided a Beaver street address for Montoya and an Oceanside,
California street address for Swanson on his notice of
withdrawal. 2 That same day, Rojas mailed a notice to appoint
counsel or appear personally to Appellants at the addresses
listed in the notice of withdrawal. See id. R. 74(c). Rojas
additionally mailed a copy of the notice to the widow’s address,
where Montoya was originally served, albeit ineffectively. The
notices sent to Montoya in Beaver were returned as
undeliverable, but the notice sent to Swanson was not returned,
and it is undisputed that this California address was her correct
mailing address. But Swanson, who was out of the country on a
1. Rojas asserts that he never received an appropriate mailing
address for Montoya, and Appellants do not claim that this St.
George mailing address was correct and the one that Rojas
should have used.
2. Montoya’s actual street address had an additional digit not
included by Attorney 3, but Montoya asserts that even if this
address had been correctly listed on the notice of withdrawal, it
still would not have been a correct mailing address because the
United States Postal Service delivers mail in Beaver only to P.O.
boxes and not to street addresses. Montoya insists that he gave
Attorney 3 his proper P.O. box mailing address, which raises the
question why, if he did, Attorney 3 nonetheless took it upon
himself to use an incorrect street address.
20180497-CA 3 2020 UT App 153Rojas v. Montoya
month-long vacation, claims she did not see the notice until she
returned home on April 21.
¶6 On April 13, 2017, Rojas mailed notice of an upcoming
pretrial conference scheduled for May 8, 2017, to Swanson at her
California mailing address and to Montoya at the flawed Beaver
street address, as well as to the widow’s street address. Again,
the notices sent to Montoya in Beaver were returned as
undeliverable, but the notice sent to Swanson was not returned.
Nevertheless, Swanson asserted that she did not receive notice of
the hearing. The district court also emailed a notice of the
pretrial conference to Attorney 1’s email address. 3
¶7 The court held the scheduled pretrial conference on May
8. Rojas and his attorney were present, but neither Appellants
nor any attorney on their behalf appeared. As a result, Rojas
moved for default judgment, which the court granted. As
required by rule 58A(c)(1) of the Utah Rules of Civil Procedure,
Rojas sent copies of the judgment to Appellants at the same
addresses as the previous mailings, which were their only
addresses on file.
¶8 On June 15, 2017, with the help of a new attorney
(Attorney 4), Appellants moved to set aside judgment, arguing
that under rule 60(b)(1) of the Utah Rules of Civil Procedure,
“[t]he judgment should be set aside based on [Appellants’]
excusable neglect.” They also invoked rule 60(b)(4), arguing that
the judgment was void because it “was entered in violation of
[Appellants’] right to due process.” At a subsequent hearing on
the matter held in October 2017, the court orally denied the
motion, finding that there was “a lot of neglect” by Appellants
that was “not excusable” and that “[t]his was a long term
problem.”
3. The record does not disclose whether Attorney 1 advised the
court of its mistake.
20180497-CA 4 2020 UT App 153Rojas v. Montoya
¶9 In November, well beyond the 90-day limit for motions to
seek relief from judgment under subsections (1)–(3) of rule 60(b),
Appellants had yet another attorney (Attorney 5) enter a limited
appearance for the purpose of requesting a rehearing.
Appellants argued that a rehearing was necessary because “it
appear[ed] that the prior briefing on [Appellants’] Motion to Set
Aside was not sufficient to convey . . . to the Court” that “the
Due Process principles of fundamental fairness require[d] that
the default judgment be set aside.” They alleged that Attorney 3
“made a mistake when he failed to include a good mailing
address for [Montoya],” which Montoya had provided to him,
“when he filed and served his Notice of Withdrawal.” Due to
this mistake, “[Montoya] never received [Attorney 3’s] Notice of
Withdrawal or any subsequent notice from either the Court or
[Rojas],” which directly resulted in Appellants’ failure to
“appear[] and defend[] at the May 8, 2017 pretrial conference.”
Appellants also argued that judgment should be set aside on the
separate ground of excusable neglect because they “act[ed] in a
reasonably prudent manner under the circumstances of this
case.” Lastly, Appellants asserted that the judgment should be
set aside on the basis that it was void because “judgment was
entered without the notice required by due process.”
¶10 The district court granted the motion for rehearing and
again heard oral argument on the matter, with a different judge
presiding. In a written order, the court again denied Appellants’
motion to set aside, ruling that “[Appellants] neglected to keep
the Court updated as to their whereabouts or otherwise remain
apprised of developments in this case” and thus could not
“demonstrate specific details of due diligence on their part” that
would warrant setting aside the judgment. This appeal followed.
ISSUES AND STANDARDS OF REVIEW
¶11 Appellants challenge the district court’s denial of their
motion to set aside default judgment on two grounds. First, they
argue that under rule 60(b)(1) of the Utah Rules of Civil
20180497-CA 5 2020 UT App 153Rojas v. Montoya
Procedure, their failure to appear at the pretrial conference was
due to both reasonable mistake and excusable neglect. “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.” Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480.
But this “discretion is not unlimited,” and due to the “equitable
nature of the rule . . . a district court should exercise its
discretion in favor of granting relief so that controversies can be
decided on the merits rather than on technicalities.” Id.(quotation simplified). “Based on these principles, . . . it is quite
uniformly regarded as an abuse of discretion to refuse to vacate
a default judgment where there is reasonable justification or excuse
for the defendant’s failure to appear, and timely application is
made to set it aside.” Lund v. Brown, 2000 UT 75, ¶ 11, 11 P.3d
277 (emphasis added) (quotation otherwise simplified).
Additionally, the “court’s ruling must be based on adequate
findings of fact and on the law.” Id. ¶ 9 (quotation simplified).
The court’s findings of fact are reviewed “under a clear error
standard of review.” Menzies, 2006 UT 81, ¶ 55.
¶12 Second, Appellants contend that the court should have set
aside the default judgment under rule 60(b)(4) of the Utah Rules
of Civil Procedure because the judgment was void because Rojas
did “not send notice reasonably calculated to properly inform
[Appellants] of the need to appear or appoint counsel.” As
discussed above, we normally review a court’s denial of a rule
60(b) motion for an abuse of discretion. “But the district court
has no discretion with respect to a void judgment because the
determination that a judgment is void implicates the court’s
jurisdiction.” Migliore v. Livingston Fin., LLC, 2015 UT 9, ¶ 25, 347
P.3d 394. Thus, “the propriety of the jurisdictional
determination, and hence the decision not to vacate, becomes a
question of law upon which we do not defer to the district
court.” Department of Social Services v. Vijil, 784 P.2d 1130, 1132
(Utah 1989).
20180497-CA 6 2020 UT App 153Rojas v. Montoya
ANALYSIS
¶13 To obtain relief under rule 60(b) of the Utah Rules of Civil
Procedure, a party must show that “(1) the motion is timely;
(2) there is a basis for granting relief under one of the
subsections of 60(b); and (3) the movant has alleged a
meritorious defense.” Menzies v. Galetka, 2006 UT 81, ¶ 64, 150
P.3d 480. “These considerations should be addressed in a serial
manner,” and thus “there is no need to consider whether there is
a basis for setting aside a default judgment if the motion was not
made in a timely manner, and no need to consider whether there
is a meritorious defense if there are not grounds for relief.” Id.¶14 Further consideration of these three requirements is
instructive. First, for a motion to set aside a default judgment to
be timely, “it must be filed within a reasonable time,” which
under subsections (1)–(3) is “not more than 90 days after entry of
the judgment.” Utah R. Civ. P. 60(c). Second, as relevant to this
appeal, under rule 60(b), a “court may relieve a party . . . from a
[default] judgment” if the party shows that the judgment was
entered due to “mistake . . . or excusable neglect,” or if “the
judgment is void.” Id. R. 60(b)(1), (4). Third, “[a] defense is
sufficiently meritorious to have a default judgment set aside if it
is entitled to be tried.” Erickson v. Schenkers Int'l Forwarders, Inc.,
882 P.2d 1147, 1149 (Utah 1994). Motions invoking rule 60(b)(4),
however, “d[o] not have to assert a separate meritorious defense,
even though the assertion of a separate meritorious defense is
generally required in a successful 60(b) motion,” In re Estate of
Willey, 2016 UT 53, ¶ 17 n.9, 391 P.3d 171 (quotation simplified),
“because the determination that a judgment is void implicates
the court’s jurisdiction,” Migliore v. Livingston Fin., LLC, 2015 UT
9, ¶ 25, 347 P.3d 394.
I. Timeliness
¶15 The district court entered default judgment against
Appellants on May 8, 2017, and Appellants filed a motion to set
aside that judgment on June 15, 2017, well within the 90-day
20180497-CA 7 2020 UT App 153Rojas v. Montoya
requirement of rule 60(c). After oral argument on that motion
and the court’s adverse determination, Appellants filed a motion
for rehearing, which was essentially a motion to reconsider, on
November 15, 2017. This was well beyond the 90-day limit, and
the district court was not required to entertain Appellants’
motion for rehearing—both because it was untimely and because
“[m]otions to reconsider are not recognized by the Utah Rules of
Civil Procedure.” 4 Tschaggeny v. Milbank Ins. Co., 2007 UT 37,
¶ 15, 163 P.3d 615. Our Supreme Court has labeled these types of
motions “the cheatgrass of the litigation landscape” and has
discouraged their use absent an “extraordinary circumstance.”
Shipman v. Evans, 2004 UT 44, ¶ 18 n.5, 100 P.3d 1151, abrogated
on other grounds by Utahns For Better Dental Health-Davis, Inc. v.
Davis County Clerk, 2007 UT 97, 175 P.3d 1036. Thus, “[b]ecause
trial courts are under no obligation to consider motions for
reconsideration, any decision to address or not to address the
merits of such a motion is highly discretionary.” Tschaggeny,
2007 UT 37, ¶ 15. Therefore, the district court in this case did
have the discretion to consider Appellants’ motion, see Mower v.
Simpson, 2017 UT App 23, ¶¶ 43–44, 392 P.3d 861, and Rojas has
not suggested otherwise. Accordingly, the motion is properly
before us. 5
4. Aside from the fact that Appellants’ motion for
rehearing/reconsideration was not explicitly allowed by the Utah
Rules of Civil Procedure, we note that this motion was more
than a request for simple reconsideration. Rather, Appellants
raised new grounds in the motion, and as a motion brought
under rule 60(b), it was well outside the 90-day time limit. The
district court could have summarily rejected it on this basis. But
because the parties have not raised the issue here or before the
district court, we do not address it further.
5. “It is an unsettled question in Utah” whether Appellants’
claim that the judgment should have been set aside under rule
60(b)(4) is “subject to the reasonable time limit imposed by rule
(continued…)
20180497-CA 8 2020 UT App 153Rojas v. Montoya
II. Basis for Granting Relief
¶16 Having determined that Appellants’ motion may be
deemed timely, we next turn to whether they are entitled to
relief under rule 60(b). Appellants argue that the default
judgment should be set aside either under subsection (b)(1) due
to “mistake . . . or excusable neglect” or under subsection (b)(4)
because “the judgment is void.” We address each argument in
turn.
A. Rule 60(b)(1)
¶17 Rule 60(b)(1) lists “mistake, inadvertence, surprise, or
excusable neglect” as grounds for setting aside a judgment. Utah
R. Civ. P. 60(b)(1). In this case, Appellants assert that their failure
to appear for the pretrial conference was due to either mistake or
excusable neglect.
1. Mistake
¶18 Appellants assert that “[b]ut for mistakes made by their
prior counsel and by the District Court, [they] would have
received prior notice of, and would have appeared at, the May 8,
2017 Pretrial Conference.” A default judgment will typically be
set aside if it was a result of a “mistake.” Utah R. Civ. P. 60(b)(1).
“‘Mistake,’ as used in rule 60(b)(1), has general application to the
activities of counsel and parties” and also includes “minor
oversight[s]” made by the district court. Fisher v. Bybee, 2004 UT
92, ¶¶ 11–12, 104 P.3d 1198 (quotation simplified). But if a
party’s unreasonable behavior explains the mistake, the party
cannot benefit from this rule and have the judgment set aside.
(…continued)
60(c).” See In re Estate of Willey, 2016 UT 53, ¶ 16, 391 P.3d 171.
The district court, however, found the motions to be timely, and
we have no occasion to revisit that issue because neither party
has asked us to do so.
20180497-CA 9 2020 UT App 153Rojas v. Montoya
See Mini Spas, Inc. v. Industrial Comm'n, 733 P.2d 130, 132 (Utah
1987) (per curiam). See also Rukavina v. Sprague, 2007 UT App
331, ¶ 3 n.2, 170 P.3d 1138 (“The Utah Supreme Court has
interpreted the terms ‘mistake’ and ‘excusable neglect’ to require
due diligence on the part of the parties and their attorneys.”). 6
¶19 Parties cannot take a passive role in litigation and allow
their counsel, the opposing party, or the court to make a mistake
and then rely on that mistake as a basis for later setting aside a
judgment. It is clear that, from the beginning of this case,
Appellants knew—or at the very least should have known—that
neither the district court nor Rojas had their correct mailing
addresses, because the court had to authorize their being served
with the complaint other than by personal service, for lack of a
known address. For the next two years, Appellants failed to
correct their address information with the court, much less with
Rojas. They should have been aware that the court and Rojas did
not have a valid mailing address for Montoya and that if
Attorney 3 withdrew, which was likely given their track record,
6. The parties disagree about the validity of this footnote from
Rukavina. Appellants argue that the Rukavina court erred in
making this pronouncement on the strength of Mini Spas because
Mini Spas itself states: “We have heretofore defined ‘excusable
neglect’ as the exercise of ‘due diligence’ by a reasonably
prudent person under similar circumstances.” Mini Spas, Inc. v.
Industrial Comm'n, 733 P.2d 130, 132 (Utah 1987). Appellants
contend that “[a] more sensible reading of the Mini Spas decision
is that the mistake made by the moving party must simply be
reasonable under the circumstances.” Appellants’ “argument on
this point presents a distinction without a difference,” see Bodell
Constr. Co. v. Robbins, 2014 UT App 203, ¶ 9, 334 P.3d 1004,
because the standard of a person acting reasonably under the
circumstances and a person exercising due diligence are the
same. A person who is acting reasonably during a court case will
invariably be acting with due diligence, and the other way
around.
20180497-CA 10 2020 UT App 153Rojas v. Montoya
there would be no way for the court or Rojas to contact Montoya,
the “lead defendant.” On the notices of withdrawal from
Attorney 1 and Attorney 2, Appellants’ addresses were either
omitted or incorrect. By the time they acquired the services of
Attorney 3, Appellants categorically knew that the court did not
have a correct mailing address for either of them. 7
¶20 In addition to failing for nearly two years to ensure the
court had their correct addresses, Appellants had actual
knowledge approximately two weeks before the May 8 pretrial
conference that Attorney 3 had withdrawn on March 22 and that
he included in his notice of withdrawal an incorrect address for
Montoya. Appellants gained this knowledge when Swanson,
upon her return from a month-long vacation on April 21, opened
her mail and found Attorney 3’s withdrawal. She then informed
Montoya of this important development in the case, but instead
of timely contacting the court to determine what may have
happened with their case and updating Montoya’s address
forthwith, Montoya waited until “mid-May” to hire Attorney 4.
Appellants knew that the next step in the case was to prepare for
trial and that Rojas could easily be moving forward with the case
during the month after Attorney 3 withdrew. But instead of
contacting the court, Appellants decided to wait approximately a
month after receiving notice of being unrepresented to seek new
counsel.
¶21 Any reasonably prudent persons in this position knowing
that the case was likely to move forward—in light of the facts
that the case had been pending for nearly two years and there
had recently been a continued pretrial conference and a failed
mediation attempt—and that the court and the opposing party
did not have the lead defendant’s correct address, would have
promptly contacted the court to at least ascertain the status of
the case and make sure that they could receive the appropriate
7. The first time Swanson’s correct address appears in the record
is on Attorney 3’s notice of withdrawal.
20180497-CA 11 2020 UT App 153Rojas v. Montoya
documents at their proper mailing addresses in order to defend
themselves. Therefore, Appellants cannot rely on this “mistake”
because they failed to take the reasonable and simple action of
contacting the court and correcting the lead defendant’s address,
which would have led them to receive notice of the pretrial
conference 8 well in advance of when it was scheduled to take
place. 9 See Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th
Cir. 1990) (“Carelessness by a litigant or his counsel does not
afford a basis for relief under Rule 60(b)(1).”).
¶22 Appellants’ unreasonable behavior is compounded by the
fact that they consistently violated rule 76 of the Utah Rules of
Civil Procedure. Rule 76 instructs that “[a]n attorney and
unrepresented party must promptly notify the court in writing of
any change in that person’s address, e-mail address, phone
number or fax number.” 10 Utah R. Civ. P. 76 (emphasis added).
8. On April 13, 2017, Rojas also mailed notice of the May 8
pretrial conference to Swanson’s California address, which
would have been delivered on or about the time she returned
from her extended vacation on April 21. Unlike its counterpart
sent to Montoya, this notice was not returned as undeliverable.
Nevertheless, Swanson asserted that she did not receive notice of
the scheduled hearing.
9. In Montoya’s affidavit supporting Appellants’ motion for
rehearing, Montoya claimed to have given Attorney 3 his P.O.
box number, but he never provides that P.O. box number in the
affidavit nor has he directed us to anywhere in the record where
he provided a correct P.O. box number to Attorney 3 or to
anyone else. Indeed, to this day, Montoya’s address on file with
the court remains the widow’s street address in Beaver, Utah,
which Montoya admits will not work as a mailing address for
him or anyone else.
10. Appellants attempt to characterize rule 76 as applying only to
unrepresented parties who have the “intention of going forward
(continued…)
20180497-CA 12 2020 UT App 153Rojas v. Montoya
Appellants knew on or near April 21, approximately two weeks
before the May 8 pretrial conference, that (1) they were
unrepresented and (2) Montoya’s address had been incorrectly
conveyed by their attorneys on multiple occasions. When it came
to their attention that they were again unrepresented and
Montoya’s address was still incorrect, Appellants were required
to promptly correct Montoya’s mailing address with the court
because it is a “defendant’s responsibility to maintain contact
with the court.” See Bodell Constr. Co. v. Robbins, 2014 UT App
203, ¶ 13, 334 P.3d 1004.
¶23 But instead of promptly notifying the court of Montoya’s
correct address, Appellants waited approximately another
month, until “mid-May,” to hire Attorney 4. By waiting nearly a
month to seek new counsel after receiving notice that they were
again unrepresented and not “promptly notify[ing] the court” of
Montoya’s correct address in the meantime, as required by rule
76, Appellants assumed the risk of missing critical court
documents and having default judgment entered against them.
See Asset Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 20, 376 P.3d
322 (“[A] mistake cannot be deemed an innocent error . . . where
it involves hewing to a course of action in disregard of [clear
(…continued)
pro se,” which clearly is not them in view of the multitude of
attorneys they have retained. Appellants are incorrect. The rule
refers simply to an “unrepresented party.” Utah R. Civ. P. 76.
Parties are unrepresented if they do not have an attorney, not
only if they are unrepresented and intend to keep it that way. See
Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 16,
238 P.3d 1035 (“When interpreting a rule of civil procedure, we
look to the express language of that procedural rule and to the
cases interpreting it.”) (quotation simplified). Regardless of
whether unrepresented parties intend to find an attorney or to
proceed alone, they still must ensure that the court has their
correct address throughout the litigation.
20180497-CA 13 2020 UT App 153Rojas v. Montoya
rules]. Rather, this is a path that no reasonably prudent person
would follow in the face of such risk.”).
¶24 Even before Attorney 3’s withdrawal, Appellants had the
responsibility under rule 76, as unrepresented parties, to update
their correct mailing address with the court after the withdrawal
of Attorney 1 and Attorney 2, which they failed to do. Thus,
Appellants were required on at least three occasions to provide
the court with a correct mailing address for Montoya, which
would have avoided the problem they now face. The moment it
came to Appellants’ attention that Montoya’s address was
incorrect, they should have fixed it with the court and alerted
Rojas to the correction. This was not a burdensome
responsibility, and defendants are not at liberty to play
hide-the-ball with their contact information. Appellants cannot
gain relief from a judgment based on this “mistake,” because it
was a direct result of their failure to follow rule 76. Therefore, we
cannot say that the district court exceeded its discretion in ruling
that the default judgment would stand. 11 See Arbogast Family
Trust v. River Crossings, LLC, 2008 UT App 277, ¶ 28, 191 P.3d 3911. Appellants also claim that the district court’s mistake in
emailing the notice of the pretrial conference to Attorney 1, who
had withdrawn over a year before, warrants setting aside the
judgment. This argument fails because any prejudice that
Appellants suffered from the court’s oversight was cured by
Rojas when he mailed his notice to the last known addresses the
court had for Appellants, which for Swanson was a correct
address. Furthermore, the court did not have a correct address
for Montoya or information on who Appellants’ current counsel
was. It is not as though the court had the correct contact
information for Montoya and Appellants’ attorney but
negligently overlooked that information and sent the notice to
prior counsel. Ultimately, it was not the district court’s job to
track down Montoya to ensure that he received notice of the
pretrial conference. Rather, it was Montoya’s responsibility to
keep the court apprised of his mailing address.
20180497-CA 14 2020 UT App 153Rojas v. Montoya
(“We recognize that default judgments are generally disfavored,
but in the absence of an abuse of discretion, we will not
undertake to substitute our idea of what is proper for that of the
trial court.”) (quotation simplified), aff'd, 2010 UT 40, 238 P.3d
1035.
2. Excusable Neglect
¶25 Appellants argue that “[a]ny neglect on the[ir] part . . .
that contributed to their failure to appear at the May [pretrial
conference] was excusable.” Parties may be granted relief under
rule 60(b)(1) if their behavior leading to a default judgment
against them was the result of “excusable neglect.” Utah R. Civ.
P. 60(b)(1). Excusable neglect requires a showing of “the exercise
of ‘due diligence’ by a reasonably prudent person under similar
circumstances.” Mini Spas, Inc. v. Industrial Comm'n, 733 P.2d
130, 132 (Utah 1987) (per curiam). See also Bodell Constr. Co. v.
Robbins, 2014 UT App 203, ¶ 10, 334 P.3d 1004 (“In determining
whether a party has exercised due diligence sufficient to justify
excusing it from the full consequences of its neglect under rule
60(b), the trial court must consider whether the actions of the
party seeking relief were sufficiently diligent and responsible, in
light of the attendant circumstances.”) (quotation simplified).
¶26 As discussed in section II(A)(1) of this opinion, neither
Montoya nor Swanson acted with sufficient diligence to require
the district court to set aside the default judgment. For two years
Appellants knew Montoya’s address with the court was
incorrect, and they failed to correct it. Parties exercising due
diligence under these circumstances would not have forgone
giving their correct addresses to the court, thereby running the
risk that they would not receive critical documents. This is
especially the case where Appellants already had two attorneys
withdraw without providing proper mailing addresses for them.
Appellants were also on notice of the withdrawal of Attorney
3—approximately two weeks before the May pretrial
conference—when it was clear the case was heading for trial,
and they failed to promptly contact the court to ascertain the
20180497-CA 15 2020 UT App 153Rojas v. Montoya
status of the case and pass along corrected address information.
Furthermore, when parties fail to follow the procedural rules of
the court, such as maintaining a correct address with the court
when they are unrepresented, they are not acting with due
diligence. Overall, Appellants’ behavior does not demonstrate
that they “used due diligence and that [they] w[ere] prevented
from appearing by circumstances over which [they] had no
control.” See Airkem Intermountain, Inc. v. Parker, 513 P.2d 429,
431 (Utah 1973) (emphasis omitted). On the contrary, they were
fully in control of their own mailing information.
¶27 Additionally, Swanson cannot show diligence by her
action in informing Montoya—the defendant supposedly taking
the lead in the case—that Attorney 3 had withdrawn because she
did not act diligently after so informing Montoya. Appellants
claim that when Swanson informed Montoya of Attorney 3’s
withdrawal, “[t]his was the first that . . . Montoya had heard that
their prior counsel had actually withdrawn.” At this point,
Swanson was clearly put on notice that relying on Montoya to
shepherd the case was not reasonable because Montoya was
unaware that their counsel had withdrawn a month earlier at a
critical time in the course of the litigation. A reasonably prudent
person in this situation, knowing that the person she was relying
on was not on top of things, would have taken a more active role
in the litigation and contacted the court herself. 12
¶28 Appellants have not demonstrated due diligence on their
part that would require the district court to set aside the
judgment against them, and thus the court did not exceed its
discretion in declining to set the judgment aside for excusable
neglect. See Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480 (“A
12. As previously indicated, Swanson agreed to Montoya being
the lead defendant, and she made the decision to be wholly
reliant on him to handle the case. Therefore, Swanson’s attempt
to have judgment against her set aside on the ground of
excusable neglect rises and falls with the actions of Montoya.
20180497-CA 16 2020 UT App 153Rojas v. Montoya
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.”). 13
B. Rule 60(b)(4)
¶29 Appellants next argue that the district court erred in not
setting aside the default judgment on the ground that it was void
due to Rojas “not send[ing] notice reasonably calculated to
properly inform [them] of the need to appear or appoint
counsel.” A party may be granted relief from judgment under
rule 60(b)(4) if “the judgment is void.” Utah R. Civ. P. 60(b)(4).
“A judgment is void only if the court which rendered it lacked
jurisdiction of the subject matter or of the parties, or if it acted in
13. Insofar as Appellants seek to characterize their neglect as
excusable because of the inept actions of their attorneys, the
argument is unavailing. See generally Holyoak v. Morgan, 2018 UT
App 3, ¶ 6, 414 P.3d 930 (per curiam) (holding that failure of
defendant’s counsel to read the notice of hearing was not
sufficient to justify granting relief under rule 60(b)(1)); Aghdasi v.
Saberin, 2015 UT App 73, ¶ 8, 347 P.3d 427 (“[A]ttorney’s
misplacing . . . electronic notices did not constitute excusable
neglect.”); Yeschick v. Mineta, 675 F.3d 622, 629–31 (6th Cir. 2012)
(holding that an attorney’s failure to update his email address
and to check the court docket did not constitute excusable
neglect); Lomas & Nettleton Co. v. Wiseley, 884 F.2d 965, 967 (7th
Cir. 1989) (“This court has stated, in upholding a denial of Rule
60(b)(1) relief requested on the basis of an attorney’s negligence,
that it would be an abuse of discretion to grant Rule 60(b) relief
on the basis of a negligent mistake. Neither ignorance nor
carelessness on the part of the litigant or his attorney provide
grounds for relief under Rule 60(b)(1).”) (emphasis added)
(quotation otherwise simplified). See also Pelican Prod. Corp. v.
Marino, 893 F.2d 1143, 1146 (10th Cir. 1990) (“Carelessness by a
litigant or his counsel does not afford a basis for relief under
Rule 60(b)(1).”).
20180497-CA 17 2020 UT App 153Rojas v. Montoya
a manner inconsistent with due process of law.” Brimhall v.
Mecham, 494 P.2d 525, 526 (Utah 1972). Service “satisfies due
process when it is reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their
objections.” Salt Lake City Corp. v. Jordan River Restoration
Network, 2012 UT 84, ¶ 53, 299 P.3d 990 (quotation simplified).
¶30 Rule 5 of the Utah Rules of Civil Procedure allows for
service of papers, other than summons and complaint, by
“mailing it to the person’s last known address.” Utah R. Civ. P.
5(b)(3)(C). And, under rule 5(b)(4), “[s]ervice by mail . . . is
complete upon sending,” id. R. 5(b)(4), which underscores the
importance of all parties ensuring that the court has their current
mailing addresses at all times. Rojas sent notice of the pretrial
conference and notice to appear or appoint counsel to the last
known addresses of both Swanson and Montoya, and “under the
Utah Rules of Civil Procedure, this was sufficient notice.” See
Davis v. Goldsworthy, 2008 UT App 145, ¶ 13, 184 P.3d 626.
Whether those addresses were incorrect is not part of the
analysis. All a party is required to do to effectuate service after
the summons and complaint have been properly served is to
mail the documents to the last known address of the opposing
party. Anything beyond this would “embrace[] a requirement
. . . above and beyond compliance with the rule’s service
requirements . . . [and] would encourage evasion of service.” Id.¶ 13 n.5 (quotation simplified). This judgment was not void for
lack of due process.
CONCLUSION
¶31 The district court did not exceed the sound exercise of its
discretion in declining to grant Appellants’ motion to set aside
default judgment because their unreasonable conduct directly
resulted in Rojas mailing notices to incorrect addresses.
Appellants also fail to demonstrate any due diligence on their
part that warrants reversal on the basis of excusable neglect.
20180497-CA 18 2020 UT App 153Rojas v. Montoya
Lastly, the court was not required to grant Appellants’ motion to
set aside the default judgment on the ground that it was void
because Rojas mailed notice to Appellants’ last known
addresses, which is all that due process requires in this context.
¶32 Affirmed.
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