611 P2D 369 - Interstate Excavating, Inc. v. Agla Development Corp.

HALL, Justice

¶1(dissenting):

¶2I respectfully dissent.

¶3In denying defendant’s motion to vacate judgment, the trial court was applying a specific statutory standard: “On motion and upon such terms as are just, the court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . .”1 It is not to be questioned that the policy of the law favors the granting of *372such relief in the case of a default judgment 2 and that the remedy should be liberally administered in order to grant the defaulting party his day in court.3 It is likewise beyond dispute, however, that such judicial policy remains coexistent with the broad latitude of discretion accorded the trial court in ruling upon such motions.4 Indeed, the implementation of the policy is a matter which this Court has specifically committed to the trial court as follows:

The trial court is endowed with considerable latitude of discretion in granting or denying a motion to relieve a party from a final judgment under Rule 60(b)(1), Utah Rules of Civil Procedure, and this court will reverse the trial court only where an abuse of this discretion is clearly established . . . [t]he rule that the courts will incline toward granting relief to a party, who has not had the opportunity to present his case, is ordinarily applied at the trial court level, and this court will not reverse the determination of the trial court merely because the motion could have been granted. For this court to overturn the discretion of the lower court in refusing to vacate a valid judgment, the requirements of public policy demand more than a mere statement that a person did not have his day in court when full opportunity for fair hearing was afforded him or his legal representative.5

¶4Such trial court discretion has, in fact, been given the widest berth by reviewing courts in the area of motions to vacate judgment which are based on allegations of mistake, inadvertence, and excusable neglect.6 As such, a determination at the trial level that a given course of conduct did or did not constitute such “mistake, inadvertence, or excusable neglect” as should justify relief of a default judgment will hence be disturbed on appeal only in the presence of a manifest abuse of discretion.7

¶5This Court has previously stated that neglect, to be excusable, must occur despite the exercise of due diligence.8 Other jurisdictions have defined excusable neglect as “such as might have been the act of a reasonably prudent person under the same circumstances.”9 It has also been held that simple carelessness does not rise to the statutory standard,10 nor do simple business difficulties which allegedly prevent the dedication of adequate attention to the litigation in question.11 Moreover, this Court has held that the failure of a party to appear in court, allegedly occasioned by failure of notice due to withdrawal of counsel, does not constitute such “excusable neglect” as to justify relief from judgment where the evidence was that ample notices of the procedures were mailed, and the defaulting party was well aware of the withdrawal of counsel in advance of the proceedings from which he was absent.12

¶6 *373It is to be noted that, in the present case, defendant bases his claim for relief from judgment on the allegation that he did not receive notice of the trial date. It is defendant’s assertion that this lack of notice was occasioned by the withdrawal of defendant’s counsel. The majority opinion makes no reference to the fact that this “withdrawal” was occasioned by defendant’s personal dismissal of counsel due to intractable differences. Such being the case, defendant can hardly claim to have been unaware that it was without legal counsel, and that some further action would be necessary in order adequately to protect its interests in the pending lawsuit. Furthermore defendant does not deny receiving the mailed notices. In its motion to vacate judgment, defendant alleged that “notice to appoint counsel was misplaced with numerous pleadings served upon defendant’s office by mail.” It is thereby implicitly admitted that the mailed notice did reach defendant’s offices. The trial court unquestionably took such facts into consideration in arriving at its decision to deny the motion to vacate judgment. I cannot agree that, given such circumstances, this Court may properly usurp the lower court’s disposition of the present matter, and rule that, as a matter of law, defendant’s conduct constituted “excusable neglect.” To do so deprives the trial court of its discretionary function.

¶7I would affirm the decision of the trial court denying defendant’s motion to vacate judgment.

WILKINS, J., concurs in the dissent of HALL, J.

¶8. Rule 60Cb)(l), Utah Rules of Civil Procedure.

¶9. Westinghouse Elec. Supply Co. v. Paul W. Larson Contractor, Inc., Utah, 544 P.2d 876 (1975).

¶10. Warren v. Dixon Ranch Co., 123 Utah 416, 260 P.2d 741 (1953); Board of Educ. of Granite School Dist. v. Cox, 14 Utah 2d 385, 384 P.2d 806 (1963); Cutler v. Haycock, 32 Utah 354, 90 P. 897 (1907).

¶11. Warren v. Dixon Ranch Co., supra, footnote 3; Mayhew v. Standard Gilsonite Co., 14 Utah 2d 52, 376 P.2d 951 (1962).

¶12. Airkem Intermountain, Inc. v. Parker, 30 Utah 2d 65, 513 P.2d 429 (1973).

¶13. Board of Educ. of Granite School Dist. v. Cox, supra, footnote 3; Mayhew v. Standard Gilsonite Co., supra, footnote 4; Swauger v. Lawler, 116 Utah 347, 209 P.2d 930 (1949); see also Manhattan-Ward, Inc. v. Grinnell Corp., 490 F.2d 1183 (2nd Cir. 1974).

¶14. Heath v. Mower, Utah, 597 P.2d 855 (1979).

¶15. Airkem Intermountain, Inc. v. Parker, supra, footnote 5.

¶16. Kromm v. Kromm, 84 Cal.App.2d 523, 191 P.2d 115 (1948); see also Elms v. Elms, 72 Cal.App.2d 508, 164 P.2d 936 (1946).

¶17. Doyle v. Rice Ranch Oil Co., 28 Cal.App.2d 18, 81 P.2d 980 (1938).

¶18. Usery v. Weiner Bros., Inc., 70 F.R.D. 615 (D.C.1976).

¶19. Heath v. Mower, supra, footnote 7.