Opinion
Case No. 20040335-CA.
Filed June 23, 2005. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, 990900024, The Honorable William B. Bohling.
David N. Kelley and J. David Pearce, Salt Lake City, for Appellant.
Wayne G. Petty and H. Dennis Piercey, Salt Lake City, for Appellees.
Before Judges Bench, Davis, and Jackson.
MEMORANDUM DECISION
Marlene A. Terpening appeals the trial court's denial of her Motion to Set Aside Dismissal pursuant to Utah Rules of Civil Procedure rule 60(b). We affirm.
Terpening's case was dismissed on August 10, 2000 for failure to prosecute. More than three years later, on October 14, 2003, Terpening moved to set aside the dismissal pursuant to Utah Rules of Civil Procedure rule 60(b), which motion the trial court denied. Terpening appeals the denial, arguing that she has reasons justifying rule 60(b) relief, that her rule 60(b) motion was timely, and that her underlying claim is meritorious.
"A trial court's refusal to set aside a dismissal for failure to prosecute will not be overturned absent an abuse of discretion." Meadow Fresh Farms, Inc. v. Utah State Univ. Dep't of Agric. Applied Sci., 813 P.2d 1216, 1218 (Utah Ct.App. 1991). "The rule that the courts will incline towards granting relief to a party, who has not had the opportunity to present [her] case, is ordinarily applied at the trial court level, and this court will not reverse the determination of the trial court merely because the motion could have been granted." Airkem Intermountain, Inc. v. Parker, 30 Utah 2d 65, 513 P.2d 429, 431 (1973).
Terpening contends that she has reasons justifying rule 60(b) relief. She argues that rule 60(b) relief is appropriate because she did not receive notice of the dismissal in accordance with rules 5 and 58A of the Utah Rules of Civil Procedure. She also avers that she was denied her due process right to receive notice of the dismissal. However, notice can be presumed when "a person has knowledge of certain facts which should impart to [her], or lead [her] to, knowledge of the ultimate fact." First Am. Title Ins. Co. v. J.B. Ranch, Inc., 966 P.2d 834, 837 (Utah 1998) (quotations and citation omitted). Such notice "`occur[s] when circumstances arise that should put a reasonable person on guard so as to require further inquiry on [her] part.'" Id. at 838 (first alteration in original) (citation omitted); see also Baldwin v. Burton, 850 P.2d 1188, 1196 (Utah 1993) ("`The means of knowledge is equivalent to knowledge. A party who has opportunity of knowing the facts . . . cannot be inactive and afterwards allege a want of knowledge that arose by reason of [her] own laches and negligence.'" (citation omitted)); Salt Lake, Garfield W. Ry. Co. v. Allied Materials Co., 4 Utah 2d 218, 291 P.2d 883, 885 (1955) ("Whatever is notice enough to excite attention and put the party on [her] guard and call for inquiry is notice of everything to which such inquiry might have led." (quotations and citation omitted)).
Here, the trial court ordered Terpening to appear on July 7, 2000 to show cause why the case should not be dismissed for failure to prosecute. The trial court specifically warned Terpening that it would dismiss the case "without further notice" if she failed to appear. The case was continued for thirty days, and the court again admonished Terpening that it would "automatically dismiss" the case if no pleadings were filed within that time period. Under the circumstances of this case, these were the operative orders, not the ministerial dismissal. When no pleadings were filed by August 10, 2000, the trial court "automatically" dismissed the case "without further notice," just as it said it would. Terpening's right to notice was not violated because she was "on guard" that the case would be dismissed without notice. First Am. Title Ins. Co., 966 P.2d at 838 (quotations and citation omitted).
Terpening also argues that her Motion to Set Aside Dismissal was timely under Utah Rules of Civil Procedure rule 60(b)(6), which requires that a motion be filed "within a reasonable time." Utah R. Civ. P. 60(b). Defendants RTM Restaurant Group and RTM Operating Company, on the other hand, argue that Terpening's motion effectively sought relief under rule 60(b)(1), which requires that a motion be filed within three months of judgment.See id. This court need not determine whether Terpening seeks relief under rule 60(b)(1) or rule 60(b)(6), as her motion was untimely under both.
By the very language of the rule, a motion filed under rule 60(b)(1) is untimely unless it is filed within three months "after the judgment, order, or proceeding was entered or taken." Utah R. Civ. P. 60(b) (emphasis added). And a judgment "is complete and shall be deemed entered for all purposes . . . when the same is signed and filed." Utah R. Civ. P. 58A(c) (emphasis added); see also In re Bundy's Estate, 121 Utah 299, 241 P.2d 462, 467 (1952) (denying relief under rule 60(b)(1), even though the court clerk failed to mail notice of a default judgment, because "[u]nder [r]ule 58A(c) a judgment is complete and is deemed entered for all purposes when the same is signed and filed, not when notice is received by the parties");Lincoln Benefit Life Ins. Co. v. D.T.S. Props., 838 P.2d 672, 675 (Utah Ct.App. 1992) ("[Defendants] argue that the failure of [plaintiffs] to mail a copy of the default judgment as required by Utah Rules of Civil Procedure 58A(d) and 5(a) . . . impaired their ability to timely challenge the default judgment [under rule 60(b)(1)]. Although [plaintiffs] apparently concede the failure to give notice, such a failure does not invalidate the default judgment."). Here, Terpening's case was dismissed for failure to prosecute on August 10, 2000. She did not file her rule 60(b) motion until October 14, 2003, more than three years after the judgment against her was entered. Terpening's motion was clearly untimely under rule 60(b)(1).
Terpening's motion was also untimely under rule 60(b)(6). "[I]n order to merit relief from judgment under rule 60(b)(6) for lack of notice, the moving party must . . . have `shown diligence in trying to determine whether judgment had been entered' or have been `actually misled . . . as to whether there had been entry of judgment.'" Oseguera v. Farmers Ins. Exch., 2003 UT App 46, ¶ 9, 68 P.3d 1008 (third alteration in original) (citation omitted). Furthermore, "`[o]ur rules . . . put the burden on counsel to check periodically with the clerk of the court as to the date of entry [of a judgment].'" West v. Grand County, 942 P.2d 337, 340 (Utah 1997) (second alteration in original) (citation omitted). Here, Terpening and her counsel did not check with the clerk of court regarding the status of her case for more than three years. In fact, the trial court specifically noted that "Plaintiff's activity has been minimal, almost nonexistent in the last several years. Plaintiff's failure to discover the dismissal for several years alone is evidence of [P]laintiff's lack of prosecutorial diligence." Because Terpening showed a complete lack of diligence in trying to determine whether a judgment had been entered against her, her motion was untimely under rule 60(b)(6).
Given our determination that Terpening's right to notice was not violated, she was not denied due process, and her rule 60(b) motion was untimely, we hold that the trial court did not abuse its discretion by denying relief under rule 60(b). We therefore have no occasion to reach the merits of her underlying claim.
Affirmed.
I CONCUR: Norman H. Jackson, Judge.
I CONCUR IN THE RESULT: Russell W. Bench, Associate Presiding Judge.