Henshaw v. Estate of King

• Decision Date: 23 November 2007
• Docket Number: No. 20061175-CA.,20061175-CA.
• Citation: 2007 UT App 378,173 P.3d 876
• Parties: Dee HENSHAW, Barbara Henshaw, and Dana Henshaw, Plaintiffs and Appellant, v. ESTATE OF Jack KING and Bonnie King, Defendants and Appellees.
• Court: Utah Court of Appeals

173 P.3d 876

2007 UT App 378

Dee HENSHAW, Barbara Henshaw, and Dana Henshaw, Plaintiffs and Appellant, v.ESTATE OF Jack KING and Bonnie King, Defendants and Appellees.

No. 20061175-CA.

Court of Appeals of Utah.

November 23, 2007.

Charles A. Schultz, Brigham City, for Appellant.

David R. Williams and Anthony M. Grover, Salt Lake City, for Appellees.

Before GREENWOOD, Associate P.J., McHUGH, and ORME, JJ.

OPINION

McHUGH, Judge:

¶ 1PlaintiffDee Henshaw¹ appeals the trial court's grant of Defendants Jack² and Bonnie King's motion for directed verdict and the trial court's denial of Henshaw's motion brought under rule 60(b) of the Utah Rules of Civil Procedure.We affirm.

BACKGROUND

¶ 2 The Kings own real property in Wayne County, Utah, which includes certain water rights for irrigation from a nearby waterway known as Pine Creek.Several years ago, the Kings sold a portion of their water rights to their neighbors, Raymond and Mildred Watrous.These rights were conveyed in a water deed.In July 1992, Barbara Henshaw purchased the Watrouses' home and moved onto the property.Barbara Henshaw used the water rights just as the Watrouses had, and without any problem, for approximately eight years.Barbara conveyed her home to her son, Dee Henshaw, in August 2003.

¶ 3 The current dispute over the water rights began in 2000 when, according to the Kings, Dee Henshaw began using more water than was originally allocated to the Watrouses.Eventually, the Kings placed a gate valve on the waterline and prevented Henshaw from obtaining water from Pine Creek.As a result, Henshaw filed the present action alleging breach of contract, tortious interference, breach of the covenant of good faith and fair dealing, theft or conversion, harassment,³ and intentional infliction of emotional distress.The Kings filed an answer, which alleged that Henshaw had no water rights, and a counterclaim asking the trial court to quiet title in the disputed water rights to the Kings.

¶ 4The case proceeded to trial, which occurred from April 17 to April 20, 2006.At the close of Henshaw's evidence, the Kings moved for a directed verdict.Ruling from the bench, the trial court granted the motion in part, dismissing with prejudice Henshaw's claims of tortious interference, intentional infliction of emotional distress, breach of contract, and breach of the covenant of good faith and fair dealing.The court also held that Henshaw had no cause of action against the Kings for theft or conversion.The trial court then "direct[ed] a verdict adjudging that [Henshaw] acquired no right, title or interest of Raymond Watrous to Pine Creek water or to an easement [on the Kings' land]" because "the evidence failed to show" that Henshaw acquired such rights through Raymond Watrous.

¶ 5 At the close of the Kings' evidence, Henshaw also filed a motion for directed verdict, which the trial court denied.Again ruling from the bench, the trial court determined that Henshaw would be able to present to the jury his claims that he is entitled to use water from Pine Creek, that he has an easement to connect a three-inch waterline to the Kings' six-inch waterline, and that the Kings' claim to quiet title to the water rights should be denied.⁴

¶ 6 On April 20, 2006, the jury returned a verdict which determined that Henshaw had failed to establish by a preponderance of the evidence that he was entitled to use water from Pine Creek and that he had an easement to connect his waterline to the Kings' waterline.The jury also determined that title to the disputed Pine Creek water rights should not be quieted in the Kings.

¶ 7The trial court directed the Kings to prepare the proposed judgment and order on the motions for directed verdict.The Kings mailed copies of the proposed judgment and order to Henshaw on May 4, 2006.Henshaw filed objections to them, which were signed by counsel for Henshaw on May 15, 2006, but were not filed with the trial court until May 18, 2006.The Kings responded to Henshaw's objections by filing a reply memorandum on May 22, 2006.Prior to receiving Henshaw's objections, the trial court signed the proposed judgment and order on May 15, 2006.

¶ 8 After trial but before the filing of the proposed judgment and order, the Kings filed a Motion for Judgment Notwithstanding the Verdict.In an order signed on June 15, 2006, the trial court denied the Kings' motion.In the same order, the trial court denied Henshaw's objections to the proposed judgment and order as untimely, but also stated that the proposed judgment and order "accurately reflect[ed] the [c]ourt's ruling on the Motions for Directed Verdict, as well as the Verdict rendered by the Jury."

¶ 9 On June 27, 2006, Henshaw filed a Motion to Alter or Amend the Judgment, which the trial court construed as a motion brought under rule 59(e) of the Utah Rules of Civil Procedure.⁵In an order filed on September 13, 2006, the trial court denied Henshaw's motion as untimely "because it was served more than a month after the entry of the Order on Motions for Directed Verdict and the Judgment."SeeUtah R. Civ. P. 59(e)(stating that "[a]motion to alter or amend the judgment shall be served not later than 10 days after entry of judgment").

¶ 10 Henshaw then filed a "Motion for Relief Pursuant to Rule 60(b)[of the Utah Rules of Civil Procedure]" on September 28, 2006.In the motion's supporting memorandum, Henshaw asserted that the trial court had violated rule 7(f)(2) of the Utah Rules of Civil Procedure, seeid.R. 7(f)(2), as well as Henshaw's rights to due process and equal protection of the law.The trial court issued a memorandum decision and order denying Henshaw's60(b) motion on November 15, 2006.

¶ 11 On December 15, 2006, Henshaw filed a notice of appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 12 Henshaw contends that the trial court erred by granting the Kings' motion for directed verdict."`[I]n reviewing a grant of a directed verdict, we view all facts and the inferences drawn therefrom in the light most favorable to the nonmoving party.We reverse a directed verdict when the evidence [so viewed] is sufficient to permit a reasonable jury to find for the nonmovant.'"Gilbert v. Ince,1999 UT 65, ¶ 14, 981 P.2d 841(citation omitted)(second alteration in original)(quotingNay v. General Motors Corp.,850 P.2d 1260, 1261, 1263(Utah1993)).

¶ 13 Henshaw also challenges the trial court's denial of his motion for relief brought under rule 60(b) of the Utah Rules of Civil Procedure."`A trial court has discretion in determining whether a movant has shown [Rule 60(b) grounds], and this Court will reverse the trial court's ruling only when there has been an abuse of discretion.'"Lange v. Eby,2006 UT App 118, ¶ 6, 133 P.3d 451(alteration in original)(quotingFranklin Covey Client Sales, Inc. v. Melvin,2000 UT App 110, ¶ 9, 2 P.3d 451).

¶ 14 Finally, the Kings argue that they are entitled to their attorney fees on appeal under rule 33 of the Utah Rules of Appellate Procedure.SeeUtah R.App. P. 33(a)("[I]f the court determines that a[n] . . . appeal taken under these rules is either frivolous or for delay, it shall award just damages ... and/or reasonable attorney fees....").

ANALYSIS

I.Directed Verdict

¶ 15 Henshaw's first claim on appeal is that the trial court erred by granting the Kings' motion for directed verdict.In its May 15, 2006 order on the motions for directed verdict, the trial court ruled that Henshaw failed to establish by a preponderance of the evidence that he was entitled through Raymond Watrous to use water from Pine Creek and that he had an easement to connect his waterline to the Kings' waterline for the purposes of irrigating his property.The Kings argue that we lack jurisdiction to consider Henshaw's argument.We agree and hold that Henshaw's notice of appeal was untimely with respect to his challenge to the directed verdict.

¶ 16 According to rule 4(a) of the Utah Rules of Appellate Procedure, "the notice of appeal ... shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from."Id. R. 4(a).Certain motions, however, do toll the period in which a litigant must file his notice of appeal.Seeid.R. 4(b)(1).Included in the list of motions that toll the period for filing a notice of appeal is "a motion to alter or amend the judgment under Rule 59 of the Utah Rules of Civil Procedure."Id. R. 4(b)(1)(C).

¶ 17 Rule 4(b)(1) of the Utah Rules of Appellate Procedure, however, requires that a rule 59 motion be timely in order to extend the period in which a litigant must file a notice of appeal.Seeid.R. 4(b)(1)(stating that "[i]f a partytimely files in the trial court any of the [enumerated] motions, the time for all parties to appeal from the judgment runs from the entry of the order disposing of the motion"(emphasis added));see alsoNielson v. Gurley,888 P.2d 130, 133(Utah Ct.App.1994)(stating that motion must be timely in order to extend period in which to file notice of appeal).Here, the trial court entered the judgment and order on the motions for directed verdict on May 15, 2006.Henshaw filed his Motion to Alter or Amend the Judgment on June 27, 2006.⁶In a September 13, 2006 order, the trial court ruled that Henshaw's rule 59 motion was untimely because such a motion must be served within ten days of the entry of the order appealed.SeeUtah R. Civ. P. 59(e)("A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.").Thus, because Henshaw's rule 59(e) motion was untimely, the period for filing a notice of appeal was not extended.

¶ 18 Henshaw had thirty days in which to file an appeal from the trial court's order on the motions for directed verdict.SeeUtah R.App. P. 4(a).The trial court entered the judgment and order on May 15, 2006.To be valid, the notice of appeal needed to be filed by June 14, 2006.Henshaw,...