Opinion
Case No. 20040367-CA.
Filed February 3, 2005. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable Timothy R. Hanson.
Robert D. Rose, Salt Lake City, for Appellant.
Randall T. Gaither, Salt Lake City, for Appellees.
Before Judges Davis, Jackson, and Orme.
MEMORANDUM DECISION
A-Quick Title Loans, Inc. (A-Quick) appeals the trial court's denial of its motion to set aside a default judgment pursuant to rule 60(b) of the Utah Rules of Civil Procedure.
In July 2003, the trial court granted Eleanor Ulibarri and Victor Horrocks's (collectively, plaintiffs) motion to compel discovery. In addition to ordering the discovery responses, the trial court ordered A-Quick's counsel to initiate an attorney planning meeting based on counsel's prior failure to attend a meeting and failure to cooperate in developing a discovery schedule. When A-Quick's counsel failed to contact plaintiffs' counsel within approximately one month, plaintiffs served on A-Quick a motion to strike A-Quick's answer and enter default judgment as a sanction. The trial court granted the motion and entered the final order in November 2003.
A-Quick filed a motion to set aside the default judgment in February 2004, arguing that no meeting was required under rule 26 of the Utah Rules of Civil Procedure, and that the default should be set aside based on standards applicable to dismissals for failure to prosecute. The trial court noted that A-Quick still had not provided any excuse or explanation regarding the failure to comply with the court order, and thus denied the motion.
This court reviews the denial of a motion to set aside a judgment pursuant to rule 60(b) of the Utah Rules of Civil Procedure for abuse of discretion. See Franklin Covey Client Sales v. Melvin, 2000 UT App 110, ¶ 9, 2 P.3d 451. Furthermore, the scope of review of trial court orders denying rule 60(b) relief is limited. See id. at ¶ 19. On appeal from a rule 60(b) order, the appellate court "addresses only the propriety of the denial or grant of relief." Id. (quotations and citation omitted). The reviewing court will not reach the merits of the underlying judgment. See id. Review of rule 60(b) orders "must be narrowed in this manner lest [r]ule 60(b) become a substitute for timely appeals." Id.
A-Quick argues on appeal that the trial court violated rules 26 and 37 of the Utah Rules of Civil Procedure in striking its answer and entering default judgment. However, this argument is not properly before this court because it challenges the underlying judgment itself rather than the rule 60(b) motion. Because A-Quick appeals only the denial of its motion to set aside the judgment, substantive issues regarding the judgment are beyond the scope of appeal. See id. Furthermore, this argument was not raised below in A-Quick's motion to set aside. As a general rule, this court does not consider arguments raised for the first time on appeal. See Hart v. Salt Lake County Comm'n, 945 P.2d 125, 120 (Utah Ct.App. 1997).
A-Quick also argues that it has shown excusable neglect because if counsel had known that the consequences for his dilatory conduct would be default, he would have acted differently. This is insufficient to establish grounds for relief under rule 60(b). To establish grounds to set aside a judgment under rule 60(b), a movant "must show that he has used due diligence" and that his failure to comply with the court order was due to circumstances beyond his control. Heath v. Mower, 597 P.2d 855, 859 (Utah 1979). A-Quick has not asserted any reason or excuse for counsel's conduct, nor has it shown due diligence in attempting to comply with the court's order. As a result, it has not established any ground under rule 60(b) that would provide a basis for relief. Thus, the trial court did not abuse its discretion in denying A-Quick's motion to set aside the default judgment.
Accordingly, the denial of A-Quick's motion to set aside the judgment is affirmed.
James Z. Davis, Judge, Norman H. Jackson, Judge and Gregory K. Orme, Judge.