Jones v. Layton/Okland

Decision Date14 July 2009
Docket NumberNo. 20070813.,20070813.
Citation2009 UT 39,214 P.3d 859
PartiesMarcia Kay Neil JONES and Victor Kent Jones, joint personal representatives of the Estate of Llewellyn Stone Jones, for themselves and the other heirs of Llewellyn Stone Jones, Plaintiffs and Appellants, v. LAYTON/OKLAND, Southern Steel Company, Beneco Enterprises, Inc., DMJM, GSL Electric, Team Mechanical, Inc., and Does 1-10, Defendants and Appellee.
CourtUtah Supreme Court

Rodney R. Parker, Frederick Mark Gedicks, Salt Lake City, for appellants.

Cory D. Memmott, H. Justin Hitt, Salt Lake City, for appellee.

DURRANT, Associate Chief Justice:


¶ 1 The district court entered an order granting summary judgment in favor of defendant Layton/Okland after plaintiff Llewellyn Jones's heirs ("Jones") failed to timely oppose Layton/Okland's summary judgment motion. Jones moved to vacate the summary judgment order, claiming, among other things, excusable neglect pursuant to rule 60(b) of the Utah Rules of Civil Procedure. The district court denied Jones's motion, and Jones appealed. We affirm the district court's denial.


¶ 2 In 1998, Llewellyn Jones fell to his death while working on a construction project for which Layton/Okland was the general contractor. Jones's heirs filed a wrongful death action against Layton/Okland and Southern Steel Company, the provider of engineering services for the project.

¶ 3 A stay order was imposed in 2001 and lifted in 2005. In December 2006, Layton/Okland filed a motion for summary judgment. The motion was served by mail on Jones's counsel. Jones's counsel requested an extension of the deadline for filing an opposition memorandum to the summary judgment motion, and Layton/Okland's counsel agreed to grant the extension.

¶ 4 In January 2007, after the deadline for the first extension had expired, Jones's counsel sent an email to Layton/Okland's counsel requesting a second extension until February 2, 2007. Jones's counsel and Layton/Okland's counsel then spoke by telephone, and, during the conversation, Jones's counsel claims that Layton/Okland's counsel gave him an open-ended extension of time in which to respond. Jones's counsel subsequently testified that, while his email had "request[ed] an extension ... to a time certain, ... in our phone call, I understood that counsel gave me an open-ended extension." Layton/Okland's counsel denied ever giving Jones's counsel an open-ended extension.

¶ 5 On February 22, 2007 — twenty days after the second extended filing deadline had expired — Layton/Okland filed a request to submit its motion for summary judgment for decision and requested that the motion be granted because it was unopposed. Despite being served with a copy of the request Jones's counsel did not respond, and the court granted Layton/Okland's motion for summary judgment on March 8, 2007, noting that Jones had failed to respond and that the apparent time for response had expired. The court requested Layton/Okland's counsel to prepare and submit the final order.

¶ 6 Layton/Okland served Jones's counsel with a proposed order on March 12, 2007. Again, Jones did not respond. The court signed and entered the order on April 2, 2007.

¶ 7 On April 17, 2007 — five weeks after the district court entered its minute entry granting summary judgment and more than two weeks after the district court entered the final summary judgment order — Jones filed two memoranda with the court. The first was a memorandum opposing Layton/Okland's motion for summary judgment. The second was a memorandum requesting the court to vacate its grant of summary judgment to Layton/Okland and consider the opposition memorandum timely on the ground of excusable neglect. Jones argued that "there [was] reasonable justification or excuse" for Jones's failure to respond to the summary judgment motion because Jones's counsel "understood that counsel gave him an open-ended extension" and because "he was overburdened" based on the "loss of three associates at his office." Jones did not file the requisite motion supporting the second memorandum until ten days later on April 27, 2007.

¶ 8 The district court reviewed Jones's motion and the supporting memoranda, heard oral argument on the issue, and determined that while Jones's counsel "acted in good faith, his omissions were neither a single act of carelessness, nor acts of a minor nature. Counsel repeatedly failed to act as a prudent lawyer would in the same circumstances, although it was within his reasonable control." The district court then denied Jones's motion, finding no excusable neglect. Jones timely appealed, seeking a reversal of the court's denial.

¶ 9 We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j) (2008).


¶ 10 We review a district court's denial of a rule 60(b) motion for relief from judgment for an abuse of discretion.1


¶ 11 Jones claims that the district court erred in denying his motion to vacate the summary judgment order entered in favor of Layton/Okland by applying the wrong test to determine excusable neglect. While Jones now acknowledges that his counsel was "unquestionably negligent" by failing to timely oppose Layton/Okland's motion, he argues that "the district court placed so much emphasis on the degree of [his counsel's] negligence that it allowed his neglect to eclipse the doctrinal test for excusability."

¶ 12 Jones asserts that our prior decision in West v. Grand County2 contains Utah's "doctrinal test" for excusable neglect and that the district court abused its discretion by failing to give adequate weight to considerations such as the severe prejudice of the denial to Jones, the lack of prejudice to Layton/Okland, and the relatively small length of the delay in context of the prior five-year stay in this case.

¶ 13 Jones also argues that any conception of excusable neglect requiring a rule 60(b) movant to show "due diligence" is circular. Neglect, Jones asserts, is the antithesis of diligence. Thus, he contends that this court's prior expositions of excusable neglect as the exercise of due diligence under the circumstances3 "convert[] the original neglect for which excuse is sought into res ipsa loquitur evidence of nonexcusability." Accordingly, Jones claims that "once neglect has been found, courts are to invoke West's four-part test and make an equitable determination of excusability governed by an assessment of all of the West factors."

¶ 14 Layton/Okland responds by arguing that the West factors are inapposite in the context of a motion to set aside a summary judgment. According to Layton/Okland, when a party seeks to have a summary judgment set aside on the ground of excusable neglect, the applicable test is whether the moving party used due diligence and the neglect resulted from circumstances beyond his control. Layton/Okland contends that, because Jones acknowledges that his counsel was "unquestionably negligent" and because nothing beyond his control prevented Jones's counsel from opposing Layton/Okland's summary judgment motion, the district court was correct in denying Jones's rule 60(b) motion.

¶ 15 Layton/Okland also argues that, even in the event that West does provide the applicable test for excusable neglect in this case, the district court adequately balanced the relevant considerations and therefore did not abuse its discretion. Referencing our statement from West that none of the factors set out in that case are dispositive, but "are helpful in determining the equities of whether a finding of excusable neglect is warranted,"4 Layton/Okland asserts that the district court "carefully and judiciously exercised its broad discretion in denying" Jones's 60(b) motion.

¶ 16 We begin our analysis by addressing the parties' arguments regarding the appropriate test for determining whether a judgment should be set aside for excusable neglect. We then examine whether, in light of the correct test, the district court abused its discretion in denying Jones's motion.


¶ 17 Rule 60(b) allows a district court to grant a party relief from a final judgment entered because of "mistake, inadvertence, surprise, or excusable neglect," among other reasons.5 We have repeatedly emphasized that district courts have "broad discretion" in deciding whether to set aside a judgment for excusable neglect under rule 60(b).6 This discretion stems from the equitable nature of the excusable neglect determination itself.7 By their nature, equitable inquiries are designed to be flexible, taking into account all relevant factors in light of the particular circumstances.8 Equitable inquiries defy distillation into any formal legal test; instead, the question is always whether the particular relief sought is justified under principles of fundamental fairness in light of the particular facts.9

¶ 18 Accordingly, our recent excusable neglect cases, whether arising under rule 60(b) of the Utah Rules of Civil Procedure or rule 4(e) of the Utah Rules of Appellate Procedure, have emphasized that there is no specific legal test for excusable neglect.10 For example, in West, we set out four factors that are generally relevant to the excusable neglect inquiry, but emphasized that the determination was an equitable one and that no one factor or set of factors was necessarily dispositive.11 The equitable nature of the excusable neglect determination requires that a district court be free to consider all facts it deems relevant to its decision and weigh them accordingly.

¶ 19 We recognize that this broad, equitable formulation of the test is in some tension with statements from some of our prior cases, such as Airkem Intermountain, Inc. v....

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