Opinion
Case No. 20010299-CA.
Filed August 1, 2002. (Not For Official Publication)
Fourth District, Nephi Department, The Honorable Gary D. Stott.
Jeffery R. Price and Michael E. Bostwick, Salt Lake City, for Appellant.
Gregory B. Hadley and James K. Haslam, Provo, for Appellee.
Before Judges Bench, Greenwood, and Thorne.
MEMORANDUM DECISION
Paul F. Bliss (Bliss) appeals the trial court's order confirming the arbitration award and the denial of his Motion to Set Aside Judgment pursuant to Rule 60(b) of the Utah Rules of Civil Procedure. Sky High argues that Bliss's appeal is untimely. We affirm.
For purposes of this appeal, the relevant parts of Rule 60(b) of the Utah Rules of Civil Procedure provide:
Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . .; or (6) any other reason justifying relief from the operation of the judgment.
We first determine that Bliss timely appealed because the trial court did not decide the issue of attorney fees sought by Sky High until April 25, 2001. A trial court "must determine the amount of attorney fees awardable to a party before the judgment becomes final for the purposes of an appeal under Utah Rule of Appellate Procedure 3." Promax Dev. Corp. v. Raile, 2000 UT 4, ¶ 15, 998 P.2d 254; see also Loffredo v. Holt, 2001 UT 97, ¶ 12, 37 P.3d 1070. Because the final order awarding attorney fees in this matter was not entered until April 25, 2001, Bliss's March 27, 2001 notice of appeal was timely filed. See Utah R. App. P. 4(c) (allowing a party to file its notice of appeal before the trial court enters its formal written order).
Second, Bliss argues the trial court erred in confirming the arbitration award prior to expiration of the twenty-day time period specified in Utah Code Ann. § 78-31a-12 (1996). He asserts he was prejudiced because he had no time to object to the arbitrator's award. We conclude that any error by the trial court in prematurely confirming the arbitration award was harmless. See Jones v. Cyprus Plateau Mining Corp., 944 P.2d 357, 360 (Utah 1997) (stating harmless error where "no reasonable likelihood exists that the error affected the outcome of the proceedings"). Bliss had over twenty days to file a motion to vacate from the day the arbitrator's decision was served on him, but failed to do so. See Utah Code Ann. § 78-31a-14(2) (1996). Hence, even if the trial court had waited twenty days before granting the motion to confirm, Bliss had, by then, waived his right to move to vacate. Because the period to move to vacate the arbitration decision had expired before the trial confirmed that decision, Bliss could not have suffered the harm he now claims; thus, his argument fails.
Bliss also argues that it was error to allow a Salt Lake County arbitrator to determine the validity of a mechanics' lien filed on property located in Juab County. This argument lacks merit. Bliss cites no authority to support his argument. Furthermore, the parties contractually agreed to settle their disputes by arbitration, without specifying where it would occur. Additionally, the trial court ruled that the arbitrator should determine the appropriateness of the mechanics' lien and ultimately ordered release of the lien based on the arbitrator's recommendation.
Lastly, Bliss argues the trial court erred by denying his rule 60(b) motion. When a trial court's denial of a rule 60(b) motion is appealed for anything other than lack of jurisdiction, this court reviews for an abuse of discretion. See Franklin Covey Client Sales v. Melvin, 2000 UT App 110, ¶ 9, 2 P.3d 451.
We conclude the trial court did not abuse its discretion in denying Bliss's motion under rule 60(b)(1). Bliss's argument that the trial court's confirmation of the arbitrator's award unjustly surprised him is unavailing. Bliss participated in the arbitration proceedings, was served with the arbitrator's ruling on September 1, 2000, and, as noted earlier, failed to file a motion to vacate the arbitrator's award within twenty days after the award was served on him as required by section 78-31a-14.
Bliss also claims the trial court abused its discretion in denying his motion under rule 60(b)(6) because his case qualifies as "any other reason to justify relief from the operation of the judgment." Utah R. Civ. P. 60(b)(6). However, because Bliss argues surprise under rule 60(b)(1), he cannot ask for relief under rule 60(b)(6). See Richins v. Delbert Chipman Sons Co., 817 P.2d 382, 387 (Utah Ct.App. 1991). Additionally, rule 60(b)(6) "should be very cautiously and sparingly invoked by the Court only in unusual and exceptional instances." See id. The circumstances of this case are neither unusual nor exceptional. Therefore, the trial court did not abuse its discretion in denying Bliss's motion under rule 60(b)(6).
In sum, although Bliss's appeal was timely filed, the trial court did not commit harmful error in confirming the arbitration decision nor abuse its discretion in denying his rule 60(b) motion. Accordingly, we affirm, award attorney fees incurred on appeal to Sky High, and remand to the trial court to determine the amount of reasonable attorney fees Sky High incurred on appeal. See Utah Dept. of Soc. Servs. v. Adams, 806 P.2d 1193, 1197 (Utah Ct.App. 1991) ("[W]hen a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.").
Sky High was not awarded attorney fees as part of the arbitration award, but moved for and was granted attorney fees for the post-arbitration proceedings before the trial court. As noted earlier in this decision, the amount of those fees was determined by an order entered on April 25, 2001.
We reject Bliss's arguments that (1) the trial court committed reversible error by confirming the arbitrator's decision without first giving him notice of submission pursuant to Rule 4-504 of the Utah Code of Judicial Administration; and (2) failure to conduct a trial on the merits of the mechanics' lien after the arbitration's conclusion deprived Bliss of due process of law. Both arguments are without merit. See State v. Allen, 839 P.2d 291, 303 (Utah 1992) (permitting appellate courts to summarily consider and rule on issues).
WE CONCUR: Russell W. Bench, Judge, and William A. Thorne Jr., Judge.