Dennett v. Ferber
309 P.3d 313
Utah Ct. App.2013Background
- Donald Dennett and Wakara Elk Ventures, LLC appealed an April 17, 2012 district-court order that denied a post-judgment motion to dismiss for lack of jurisdiction and granted sanctions.
- While that appeal was pending, the district court resolved a Rule 60(b) motion on December 27, 2012; Wakara filed an amended notice of appeal from the Rule 60(b) order, Dennett did not.
- This court consolidated Wakara’s timely appeal from the Rule 60(b) order into the existing appeal for convenience, but found it lacked jurisdiction to review Rule 60(b) issues raised by Dennett because he did not file a new notice of appeal.
- Wakara and Dennett argued the district court’s April 17 order violated the Utah Open Courts Clause by imposing filing restrictions and by stating the time to appeal had expired; the court found both arguments inadequately briefed and declined to address them.
- Wakara sought relief under Rule 60(b)(6) from the underlying judgment; the appellate court reviewed the district court’s denial for abuse of discretion and affirmed because Wakara raised legal errors that should have been raised on direct appeal.
- The appellee (Ferber) had been awarded attorney fees below for unlawful detainer and, having prevailed on appeal, is entitled to reasonable appellate fees to be determined by the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over Rule 60(b) order | Wakara: amended notice of appeal timely; court may review Rule 60(b) order | Ferber: appeal must be opened by each appellant after Rule 60(b) order | Court: Wakara’s amended notice conferred jurisdiction; Dennett failed to appeal Rule 60(b) order, so court lacks jurisdiction over his Rule 60(b) claims |
| Open Courts / Filing restrictions | Dennett & Wakara: filing restrictions violated Utah Constitution Art I § 11 | District court: restrictions imposed by order (record) | Court: inadequately briefed; declined to review |
| District court statement that appeal time expired | Dennett & Wakara: court interfered with right to appeal | District court: statement in order | Court: inadequately briefed and no demonstrated prejudice; declined to review |
| Rule 60(b)(6) relief | Wakara: alleged legal errors warrant Rule 60(b)(6) relief | Ferber: Rule 60(b) is not substitute for direct appeal; errors should have been raised on appeal | Court: affirmed denial of Rule 60(b)(6) relief — Wakara sought to relitigate legal errors that belonged in a direct appeal |
| Appellate attorney fees | Ferber: entitled to fees on appeal because awarded fees below and prevailed on appeal | Dennett/Wakara: (no effective counter) | Court: Ferber entitled to reasonable appellate fees; amount remanded to district court |
Key Cases Cited
- Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950 (Utah Ct. App. 1989) (rule 60(b) rulings constitute separate, appealable orders)
- Gardiner v. York, 233 P.3d 500 (Utah Ct. App. 2010) (procedural safeguards required for filing restrictions to satisfy due process)
- Fisher v. Bybee, 104 P.3d 1198 (Utah 2004) (broad deference to trial court’s equitable Rule 60(b) rulings)
- Kell v. State, 285 P.3d 1133 (Utah 2012) (Rule 60(b)(6) is extraordinary relief to be sparingly applied)
- Franklin Covey Client Sales, Inc. v. Melvin, 2 P.3d 451 (Utah Ct. App. 2000) (Rule 60(b) is not a substitute for appeal; legal errors belong on direct appeal)
- Robertson’s Marine, Inc. v. 14 Solutions, Inc., 223 P.3d 1141 (Utah Ct. App. 2010) (prevailing party awarded fees below is presumptively entitled to appellate fees)