Oseguera v. Farmers Ins. Exchange

• Decision Date: 21 February 2003
• Docket Number: No. 20010099-CA.,20010099-CA.
• Citation: 68 P.3d 1008,2003 UT App 46
• Parties: Leopoldina OSEGUERA, Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE, Defendant and Appellee.
• Court: Utah Court of Appeals

68 P.3d 1008

2003 UT App 46

Leopoldina OSEGUERA, Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE, Defendant and Appellee.

No. 20010099-CA.

Court of Appeals of Utah.

February 21, 2003.

Loren M. Lambert, Arrow Legal Solutions, Midvale, for Appellant.

Gary D. Josephson, Petersen & Hansen, Salt Lake City, for Appellee.

Before JACKSON, P.J., ORME and THORNE, Jr., JJ.

OPINION

ORME, Judge:

¶ 1 Leopoldina Oseguera appeals the trial court's denial of her motion under rule 60(b)(6) of the Utah Rules of Civil Procedure for relief from a judgment improperly entered against her. Because the trial court should have set aside the judgment when its mistake was called to its attention, we reverse.

BACKGROUND

¶ 2 The facts determinative of this appeal are not in dispute. Oseguera was involved in a car accident for which she was not at fault. The responsible party's insurance company paid Oseguera $65,600. Oseguera then initiated a claim with her own insurance company, Farmers Insurance Exchange, under her underinsured motorist coverage. Oseguera and Farmers could not agree on the amount Farmers owed Oseguera, so they submitted the dispute to arbitration as required in their contract.

¶ 3 After the arbitrator returned his findings of fact and arbitration award, Oseguera filed a complaint to partially vacate the arbitration award, and Farmers filed an answer. Oseguera then filed a motion for summary judgment, and Farmers responded by filing a motion under rule 56(f) of the Utah Rules of Civil Procedure, the thrust of which was that the court should not rule on Oseguera's summary judgment motion until the arbitrator's deposition had been taken.¹

¶ 4 On February 29, 2000, without oral argument or notification to the parties, and without any request to submit Oseguera's summary judgment motion for decision pursuant to rule 4-501(1)(D) of the Utah Code of Judicial Administration,² the trial court entered judgment denying Oseguera's motion to partially vacate the arbitration award, summarily affirming the arbitration award,³ and denying Farmers's rule 56(f) motion.⁴ The court's sua sponte entry of judgment precluded the usual circulation among the parties of a proposed judgment and the opportunity to object prior to its entry. See Utah Code Jud. Admin. R4-504(1), (2).⁵ The court's sua sponte entry of judgment also precluded notice of entry of the judgment from being given in the usual course. See Utah R. Civ. P. 58A(d).⁶ And the court did not independently notify the parties of its intended consideration of the pending motions or of its entry of the February 29, 2000, judgment. Rather, on May 2, 2000, the trial court set a scheduling conference and oral argument for June 2, 2000.⁷

¶ 5 On June 2, 2000, when she appeared for the scheduling conference and oral argument noticed up by the court, Oseguera learned for the first time of the judgment entered against her months before. On June 29, 2000, she filed a notice of appeal from the February 29 judgment to the Utah Supreme Court, and the Supreme Court summarily dismissed that appeal as untimely, it having been filed more than thirty days following entry of the judgment. See Utah R.App. P. 4(a).

¶ 6 Oseguera then filed with the trial court a motion, under rule 60(b)(6) of the Utah Rules of Civil Procedure,⁸ for relief from the February 29 judgment. Without having received a response from Farmers to Oseguera's rule 60(b) motion or a notice to submit the motion for decision, the trial court denied Oseguera's rule 60(b) motion without oral argument.⁹ Oseguera appealed to the Utah Supreme Court, and the Supreme Court transferred that appeal to this court. See Utah Code Ann. § 78-2-2(4) (1996).

ISSUE AND STANDARD OF REVIEW

¶ 7 Oseguera asks this court to reverse the trial court's denial of her rule 60(b) motion. "`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.'" Ostler v. Buhler, 957 P.2d 205, 206 (Utah 1998) (quoting Larsen v. Collina, 684 P.2d 52, 54 (Utah 1984)).

ANALYSIS

¶ 8 Rule 60(b), subsections (1) through (5), give a number of specific reasons for which a party may be relieved from an adverse judgment.¹⁰ Subsection 60(b)(6) then provides that "[o]n motion and upon such terms as are just, the court may in the furtherance of justice relieve a party ... from a final judgment... for ... any other reason justifying relief from the operation of the judgment." Utah R. Civ. P. 60(b)(6).

¶ 9 "The most common `other reason' for which courts have granted relief [under rule 60(b)(6)] is when the losing party fails to receive notice of the entry of judgment in time to file an appeal." 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2864 (2d ed.1995). See Tubbs v. Campbell, 731 F.2d 1214, 1215-16 (5th Cir.1984) (per curiam); Buckeye Cellulose Corp. v. Braggs Elec. Constr., 569 F.2d 1036, 1038-39 (8th Cir.1978) (per curiam); Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d 808, 809-10 (D.C.Cir.1974) (per curiam); Radack v. Norwegian Am. Line Agency, Inc., 318 F.2d 538, 542-43 (2d Cir.1963).¹¹ However, in order to merit relief from judgment under rule 60(b)(6) for lack of notice, the moving party must also 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." 12 James Wm. Moore et al., Moore's Federal Practice § 60.48[6][c] (3d ed.2002). See, e.g., Tubbs, 731 F.2d at 1215-16; Buckeye, 569 F.2d at 1038. Furthermore, the movant must file her rule 60(b)(6) motion within a reasonable time after learning of entry of the judgment. See, e.g., Expeditions Unlimited, 500 F.2d at 810.

¶ 10 Although we review rule 60(b) determinations under an abuse of discretion standard, see Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110, ¶ 9, 2 P.3d 451, there are situations where "the result [under rule 60(b)] is foreordained and it would be an abuse of discretion ... to deny relief." 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2857 (2d ed.1995). At least two federal circuits have held that when a party has lost the right to appeal because she was not notified of the entry of judgment against her, despite her diligent efforts to stay apprised of the status of her case, or because of being misled, "justice demands" that she be afforded relief under rule 60(b)(6) in order to preserve her right to appeal. Expeditions Unlimited, 500 F.2d at 809. Accord Buckeye, 569 F.2d at 1038. We agree with this doctrine and thus conclude that denial of relief to Oseguera was an abuse of discretion.¹²

¶ 11 It is undisputed that Oseguera did not receive notice of the February 29, 2000, judgment until June 2, 2000. It is also clear that the parties were misled by the trial court setting a scheduling conference and oral arguments for June 2. Given that rule 4-504 would allay any reasonable concern that Oseguera was at risk that the court would rule on the summary judgment motion sua sponte, and in the absence of a proper request to submit for decision, there is no question that Oseguera was "actually misled" by the court, wholly aside from the eventual notice of hearing on motions already decided. Even if Oseguera should have anticipated the possibility that the court would act without a request to do so and without notice to the parties—as the dissent suggests is permitted by case law—Oseguera would have had no reason to fear the entry of judgment against her. As previously explained, Oseguera had sought judgment in her favor and Farmers had opposed that request, but Farmers had not at that juncture sought the entry of judgment in its favor. Thus, Oseguera had no reason to believe such a judgment could be forthcoming in view of what was before the court and no reason to check periodically to see if such an unrequested judgment had somehow been entered. See note 3, supra. Finally, given that she filed a good faith appeal within one month of learning of the February 29, 2000, judgment, and then filed her rule 60(b)(6) motion within seven weeks of final dismissal of that appeal,¹³ we believe Oseguera's rule 60(b) motion was made within a reasonable time.

CONCLUSION

¶ 12 When the trial court's mistakes—not counsel's—are the reason a judgment is improvidently entered and the entry goes undetected, even if it remains undetected for some time, the court should be anxious to do whatever needs to be done to fix the mistake as soon as it is called to the court's attention. It did not do so here. The trial court thus exceeded the bounds of sound discretion in denying Oseguera's motion under rule 60(b)(6) for relief from judgment. We therefore reverse the trial court's denial of that motion and remand for such proceedings as may now be appropriate.

¶ 13 I CONCUR: NORMAN H. JACKSON, Presiding Judge.

THORNE, Judge (dissenting):

¶ 14 I respectfully dissent from the majority's decision to reverse the trial court's order.

¶ 15 The trial court, perhaps unwisely, denied Oseguera's rule 60(b) motion.¹⁴ However, we must remember that "`[a]n appeal of a[r]ule 60(b) order addresses only the propriety of the denial or grant of relief. The appeal does not, at least in most cases, reach the merits of the underlying judgment from which relief was sought.'" Franklin Covey Client Sales v. Melvin, 2000 UT App 110, ¶ 19, 2 P.3d 451 (citation omitted). "`Appellate review of [r]ule 60(b) orders must be narrowed in this manner lest [r]ule 60(b) become a substitute for timely appeals.'" Id.

¶ 16 While I am sympathetic to Oseguera's position, she has failed to present even the most rudimentary argument supporting her appeal of the trial court's denial of her rule 60(b) motion. See, e.g., Franklin Covey, 2000 UT App 110 at ¶ 25, 2 P.3d 451 (refusing to address the defendant's rule 60(b) claim, stating "[appell...