Li-Huang Pon v. Brewer

• Decision Date: 25 June 2020
• Docket Number: No. 20190542-CA,20190542-CA
• Citation: 468 P.3d 581
• Court: Utah Court of Appeals
• Parties: LI-HUANG PON, Appellee, v. Todd Vernon BREWER, Appellant.

468 P.3d 581

LI-HUANG PON, Appellee,

v.Todd Vernon BREWER, Appellant.

No. 20190542-CA

Court of Appeals of Utah.

Filed June 25, 2020

Kelly Ann Booth, Salt Lake City, Attorney for Appellant

Gregory N. Ferbrache, Salt Lake City, Attorney for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 Todd Vernon Brewer appeals the district court's entry of a permanent protective order. We affirm.

BACKGROUND

¶2 In January 2019, Li-Huang Pon obtained a temporary protective order against Brewer. The protective order was entered by the district court on May 7, 2019, based on a domestic relations commissioner's recommendation after a hearing. On May 21, 2019, pursuant to rule 108 of the Utah Rules of Civil Procedure, Brewer filed an objection to the commissioner's recommendation that the protective order be entered, arguing that insufficient evidence justified the entry of the protective order and requesting an evidentiary hearing in the district court. Pon filed a motion to strike Brewer's objection as untimely, pointing out that the objection was not filed within the ten-day limit provided by the Utah Cohabitant Abuse Act (Act). See Utah Code Ann. § 78B-7-107(1)(f) (LexisNexis Supp. 2019) (stating that if a protective order hearing is held before a court commissioner, any party dissatisfied with the commissioner's recommendation "may file an objection within 10 days of the entry of the recommended order"). The district court determined that Brewer's objection was untimely, granted Pon's motion to strike, and entered the permanent protective order. Brewer appealed the district court's order.

¶3 On the same day he filed his notice of appeal, Brewer filed a Request for Reconsideration and Motion to Set Aside Order Pursuant to Rule 60(b), asking the district court to set aside the protective order on the ground that he had fourteen days—rather than ten—within which to object to the commissioner's recommendation. See Utah R. Civ. P. 108(a) ("A recommendation of a court commissioner is the order of the court until modified by the court. A party may file a written objection to the recommendation within 14 days after the recommendation is made in open court or, if the court commissioner takes the matter under advisement, within 14 days after the minute entry of the recommendation is served."). Specifically, Brewer contended—for the first time—that Utah Code section 78B-7-107(1)(f) is unconstitutional because it conflicts with rule 108(a) of the Utah Rules of Civil Procedure and was not enacted by a supermajority of the legislature with the intent to amend procedural rules. See Utah Const. art. VIII, § 4 ("The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process. The Legislature may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature."); see also Brown v. Cox , 2017 UT 3, ¶¶ 17, 20, 387 P.3d 1040 (stating that the Utah Constitution's "plain language" does not allow our legislature to "adopt rules of procedure and evidence" but only to "amend[ ] the rules the supreme court creates" and that any such amendment must be made "by supermajority" and must "contain a reference to the rule to be amended and a clear expression of the Legislature's intent to modify [the] rules").

¶4 The district court denied Brewer's rule 60(b) motion, and Brewer did not thereafter amend his notice of appeal to include the district court's denial of that motion.

ISSUES AND STANDARD OF REVIEW

¶5 Brewer raises two issues on appeal. First, he contends that Utah Code section 78B-7-107(1)(f) is unconstitutional because it prescribes a procedural deadline in conflict with rule 108(a) of the Utah Rules of Civil Procedure and was not enacted pursuant to state constitutional requirements for amending procedural rules. Second, Brewer argues that the district court erred when it applied the ten-day deadline set forth in the statute instead of the fourteen-day deadline set forth in the rule to determine that his objection to the commissioner's recommendation was untimely filed. "The interpretation and constitutionality of a statute are questions of law that we review for correctness." Olguin v. Anderton , 2019 UT 73, ¶ 17, 456 P.3d 760 (quotation simplified).¹

ANALYSIS

I. Constitutionality of the Statutory Deadline

¶6 Brewer timely appealed the district court's order striking his objection to the commissioner's recommendation as untimely and entering a permanent protective order. On the same day he filed his appeal, he also filed a rule 60(b) motion to set aside the order, see Utah R. Civ. P. 60(b), raising for the first time a constitutional challenge to Utah Code section 78B-7-107(1)(f). The district court later denied Brewer's rule 60(b) motion. But Brewer never amended his notice of appeal to include the district court's denial of his rule 60(b) motion, an oversight that precludes our review of this constitutional issue.

¶7 The Utah Rules of Appellate Procedure provide that "[a] notice of appeal filed after announcement or entry of judgment, but before entry of an order disposing of [a rule 60(b) motion], ... is effective to appeal only from the underlying judgment." Utah R. App. P. 4(b)(2). "To appeal from a final order disposing of [a rule 60(b) motion], a party must file a notice of appeal or an amended notice of appeal within the prescribed time measured from the entry of the order." Id. And if a party fails to file an amended notice of appeal after denial of a rule 60(b) motion, an appellate court lacks jurisdiction to consider issues raised in that motion. See Dole v. Dole , 2018 UT App 195, ¶ 40, 437 P.3d 464 (noting that a party's failure to amend a notice of appeal pursuant to the requirements of rule 4(b)(2) of the Utah Rules of Appellate Procedure deprives a court of "jurisdiction to consider [the party's] arguments related to [a] post-trial motion"); see also Dennett v. Ferber , 2013 UT App 209, ¶ 4, 309 P.3d 313 (per curiam) (stating that an appellate court lacks jurisdiction to consider issues raised in a rule 60(b) motion where an individual did not amend the notice of appeal or file a new notice of appeal after denial of the motion).

¶8 Brewer's notice of appeal challenged only the district court's dismissal of his objection and the court's grant of the permanent protective order, and Brewer raised the constitutional challenge only in his rule 60(b) motion to set aside. Because Brewer never amended his notice of appeal to incorporate the district court's denial of his rule 60(b) motion, the constitutional challenge Brewer now raises lies outside the scope of this appeal, and we lack the jurisdiction to consider it. Therefore, we must—for purposes of the rest of our analysis—presume that section 78B-7-107(1)(f) of the Utah Code was constitutionally enacted. See Salt Lake City v. Ohms , 881 P.2d 844, 847 (Utah 1994) ("Statutes are presumed to be constitutional until the contrary is clearly shown." (quotation simplified)); accord Broadbent v. Gibson , 105 Utah 53, 140 P.2d 939, 943 (1943).

II. The District Court's Reliance on the Statutory Deadline

¶9 In striking Brewer's objection to the commissioner's recommendation that the protective order be permanently entered, the district court determined that Brewer "did not file his [o]bjection within the statutorily mandated 10 days, in accordance with" Utah Code section 78B-7-107(1)(f). In addition, the court acknowledged that "there may be an apparent conflict with [r]ule 108," but it ruled that "the more specific statute determines this matter." On appeal, Brewer argues that the court erred in making this determination. We disagree.

¶10 Rule 108(a) of the Utah Rules of Civil Procedure provides the general rule on filing deadlines for objections to commissioner recommendations: "A party may file a written objection to the recommendation within 14 days after the recommendation is made in open court or, if the court commissioner takes the matter under advisement, within 14 days after the minute entry of the recommendation is served." Utah R. Civ. P. 108(a). In contrast, Utah Code section 78B-7-107(1)(f) specifically addresses the filing deadline in the context of protective order proceedings: "If the hearing on the petition [for a protective order] is heard by a commissioner, either the petitioner or respondent may file an objection within 10 days of the entry of the recommended order ...." Utah Code Ann. § 78B-7-107(1)(f) (LexisNexis Supp. 2019).

¶11 Brewer's assertion that the language of the rule governs in this situation ignores the clear language of the Utah Rules of Civil Procedure and the Act. The first of our rules of civil procedure states that "[t]hese rules govern the procedure in the courts of the state of Utah in all actions of a civil nature ... and in all statutory proceedings, except as governed by other rules promulgated by this court or statutes enacted by the Legislature ." Utah R. Civ. P. 1 (emphasis added). And the Act itself clarifies that "[i]nsofar as the provisions of this [Act] are more specific than the Utah Rules of Civil Procedure, regarding protective orders, the provisions of this [Act] govern." Utah Code Ann. § 78B-7-106(13) (LexisNexis Supp. 2019); see also State v. Bridgewaters , 2020 UT 32, ¶¶ 24–29, 466 P.3d 204 (acknowledging that the Act sets forth some unique procedures for service of process that are specific to protective order proceedings and that differ from the process outlined in the Utah Rules of Civil Procedure).²

¶12 Here, the more specific ten-day deadline set forth in the Act controls, not the more general fourteen-day deadline set forth in rule 108(a). Rule 108(a) establishes the general timeline for a party to file an objection to a commissioner's recommendation. In cont...