Case Information
*1 IN THE UTAH COURT OF APPEALS
‐‐‐‐ ooOoo ‐‐‐‐
Ray Salazar, ) MEMORANDUM DECISION
)
Plaintiff Appellee, ) Case No. ) ) F I L E D
) (June 2012) Benjamin John Does I V, )
)
Defendant Appellant. ) ‐‐‐‐‐
Third District, Salt Lake Department, Honorable Denise Lindberg
Attorneys: Jason D. Boren, Melanie J. Vartabedian, Quinton J. Stephens, Salt
Lake City, Appellant
‐‐‐‐‐
Before Judges McHugh, Davis, Christiansen.
DAVIS, Judge:
¶1 Benjamin appeals he requested from against him. We reverse remand further proceedings accordance decision. states, “[T]he justice relieve legal representative final judgment, order, proceeding . . . mistake, inadvertence, surprise, excusable neglect . . . [or] other reason justifying operation judgment.” P. 60(b)(1), (6). Because “[a] district broad set Procedure[,] we *2 review a district of a motion [for] an abuse of .” Galetka (citations omitted). Additionally, because equitable in nature, “a district court exercise its discretion favor of granting relief controversies decided merits.” Id. Last, “a district a set a default judgment must on adequate findings of fact law.” Id. (internal omitted). Factual findings reviewed for clear error conclusions of law are reviewed for correctness. id.
¶3 Here, filed a relief a default judgment against when court determined “no answer or other pleading [had] been filed,” see 55(a) (“When against whom a for affirmative sought has failed plead otherwise defend as provided these fact appear clerk shall enter default party.”), did default; filed September 2008. Indeed, court had acknowledged receipt answer a few months after filed. The court also acknowledged receipt Chavez’s answer ruling, stating, “[T]here no explanation record for why certificate signed given docket clearly showed [Chavez] had filed an answer almost year earlier.” Thus, Chavez actually default, basis entry default judgment.
This acknowledgment appears January Minute Entry trial addressed Salazar’s request substituted service light Salazar’s claim that personal service had been unsuccessful. court, somewhat contradictorily, permitted substituted service while also acknowledging Chavez already filed answer. Additionally, do authorize clerk certificate when against whom certificate would granted has answer. 55(a) (authorizing clerk enter certificate only “[w]hen whom affirmative sought failed plead otherwise defend”). 55(a) Utah Procedure, entry certificate invalid, subsequent invalid, P & B Land,
(continued...) *3 ¶4 Nevertheless, the trial court approved the erroneous default blaming Chavez, a pro se litigant, “perpetuating the [trial c]ourt’s error[s].” trial court explained “[t]he fact default judgment been entered does not . . . warrant setting it under the facts this case” “[b]y having filed his answer September 2008[, Chavez] civil action against him,” placing upon him the responsibility to “serve his answer opposing counsel, as required the Utah Procedure”; to “include . . . [in answer] contact information would allow the [c]ourt (and opposing counsel) the ability to get in touch so prosecution this case proceed timely appropriate way”; “to inform [c]ourt whereabouts inquire about status case nearly two years since answer.” These conclusions unwarranted. A 60(b) determination is
appropriate mechanism which trial court can punish party believes has led it into error, factual basis upon apparent sanction rests is erroneous. Rule “remedial equitable [in] nature,” , ¶¶ (explaining “equitable nature rule”), permits trial court to provide “in justice,” Utah 60(b). See Lund v. Brown , (...continued) Klungervik ‐ (Utah Ct. App. 1988) (“No be unless has previously been entered. an essential predicate to any judgment.” (footnote, citation, internal omitted)). However, we focus our analysis defaulting party entitled appeal “from directly” but must first seek redress through a appeal from motion. State Sixteen Thousand Dollars U.S. Currency Ct. App. 1996) (“We find appellate court considered direct appeal who had failed file appeared before court.”). This even where court erred entering judgment. (“Even [where legal error,] asserting error must first present through appropriate post prior appellate review. [T]he proper course aggrieved follow would make motion judgment.”). UT 277 (“[A] trial court’s should exercised of justice incline towards granting relief in doubtful case the end that the party hearing.” (internal quotation marks omitted)). Nowhere in the text the is it suggested that the rule might provide means to sanction relief. Additionally, trial court’s determination that Chavez not serve responsive pleading on opposing counsel is not supported by record evidence. record ambiguous as to whether opposing counsel was served responsive pleading addressed to both trial opposing counsel, but certificate service appended to pleading. Regardless, are mechanisms place in our procedure provide means which the adequacy pleadings can addressed, see, e.g., R. 11; id. R. 12(f), and which sanctioned alleged indiscretions, see, e.g., 11; id. provides neither. Similarly inappropriate court’s relief based its apparent determination Chavez was sufficiently diligent defense. See Harrison Thurston (mem.) (explaining relief excusable neglect prong “require[s] some evidence moving exercised sufficient diligence [to justify] grant[ing] him as result neglect” (second third alterations original) (internal omitted)). Under facts and circumstances this case, this conclusion seems to flip head. The seeks correctly first place—he answer, yet against failing file answer. We convinced pro se litigant’s basic, letter format and conflicting whether personal service truly effectuated led court astray as cause erroneously enter Chavez. In case, apparent determination sufficiently diligent inappropriate. Chavez’s actions reasonable given unique facts circumstances case, including Salazar’s failure prosecute case early on, resulted dismissing case sua sponte August 2009; apparent problems service; Chavez’s decision, upon receiving quickly retain counsel file rule Salazar successfully moved reopen later same month. *5 60(b) motion within time frame rule 60(b) supports as reasonable, [4] see Utah R. Civ. P. 60(b) (noting rule 60(b) motion “shall be within reasonable time” defining time for certain subsections as “not more than 3 months after order, or proceeding or taken”). In sum, court’s on Chavez’s motion “based
clearly erroneous factual findings [and] flawed legal conclusions.”
Galetka
,
4. Because Salazar did not submit brief on appeal, we are left Chavez’s
undisputed assertion he did not have until his
attorney related criminal action informed on March 29, That also
date analyzes Chavez’s timeliness bringing rule
motion. on June 11, 2010, approximately two ‐
‐ half months after received notice.
also challenges on appeal decision award Salazar $29,120
damages when “Salazar presented prove or support damage
claims.” We note, extent similar related may arise on remand,
see
State v. Low
,
(continued...) *6 ____________________________________
James Z. Davis, Judge
‐‐‐‐‐
¶8 WE CONCUR:
____________________________________
Carolyn B. McHugh,
Presiding Judge
____________________________________
Michele M. Christiansen, Judge
(...continued) (“Our precedent states even defaulting defendants usually afforded an evidentiary hearing whenever amount owed unliquidated [of Procedure] .”). None allegations Salazar’s complaint indicate “sum certain” calculated particular damages awarded—$6,000 medical expenses, $3,120 lost income, $20,000 pain suffering. does present “sufficient credible evidence support [default] of” $29,120. Pitts Pine Meadow Ranch, 1978) (rejecting $36,000 entirely plaintiffs’ testimony their property was “totally ruined” defendants’ trespass, their property worth $16,000 before trespass, destroyed trees property “constituted $5,000 value property,” evidence property’s market value after trespass needed calculate property damages support treble damages punitive damages).