Sanders v. Sanders

2021 UT App 122

THE UTAH COURT OF APPEALS

KRISTINE L. SANDERS,
Appellee,
v.
TRAVIS JAMES SANDERS,
Appellant.

Opinion
No. 20200618-CA
Filed November 12, 2021

Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 014901182

S. Grace Acosta, Attorney for Appellant
Steven M. Rogers, Nic R. Russell, Kelly J. Baldwin,
and Wylie C. Thomas, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.

ORME, Judge:

¶1 Travis James Sanders appeals the district court’s order
dismissing his motion brought under rule 60(b) of the Utah
Rules of Civil Procedure to invalidate a “renewed” judgment
Kristine L. Sanders obtained against him. We reverse and
remand to the district court with instructions to consider the
motion on its merits.
 Sanders v. Sanders

BACKGROUND

¶2 Travis and Kristine divorced in 2001. 1 Soon thereafter,
Kristine obtained several judgments against Travis. In 2011, the
district court renewed these judgments at Kristine’s request.
Kristine was unable to fully collect on these judgments, and in
January 2019, she again moved to have them renewed. Travis
opposed the renewal and moved under rule 60(b) of the Utah
Rules of Civil Procedure to set aside the judgments, primarily
arguing that he had already satisfied them. The court denied
Travis’s 60(b) motion, consolidated the judgments into a single
lump-sum judgment, and renewed the judgment for a second
time in May 2019. Travis did not appeal this order.

¶3 Nearly a year later, Travis filed a second 60(b) motion,
this time under rule 60(b)(4) seeking to set aside the consolidated
judgment as void on the theory that the court lacked jurisdiction
under the Renewal of Judgment Act to renew the judgment for a
second time. See Utah Code Ann. § 78B-6-1802 (LexisNexis 2018).
The district court denied the second motion, ruling that it was
“procedurally improper” because “[t]he arguments raised in that
motion could and should have been raised in the prior motion.” 2
Travis appeals.

1. Because the parties share the same surname, we refer to them
by their first names, with no disrespect intended by the apparent
informality.

2. In making this ruling, the district court did not cite any rule of
civil procedure or caselaw. But it is apparent that its ruling was
premised on the ground that Travis waived his voidness
argument under rule 60(b)(4) because our Supreme Court has
held that rule 12(h) applies to rule 60(b) motions to prohibit a
party in certain instances from asserting defenses in a second
(continued…)

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ISSUE AND STANDARD OF REVIEW

¶4 Travis argues that the district court erred in denying his
motion on procedural grounds. 3 Normally, “we review a district
court’s denial of a 60(b) motion under an abuse of discretion
standard of review.” Menzies v. Galetka, 2006 UT 81, ¶ 54, 150
P.3d 480. But when dealing with a rule 60(b)(4) motion seeking
to set aside a judgment as void, we review the district court’s
decision for correctness. See Migliore v. Livingston Fin., LLC, 2015
UT 9, ¶ 25, 347 P.3d 394. In addition, we review a district court’s
interpretation and application of our rules of civil procedure for
correctness. Conner v. Department of Com., 2019 UT App 91, ¶ 15,
443 P.3d 1250. Kristine implores us to review the court’s decision
for abuse of discretion. But here, given that the district court’s
ruling dealt with a rule 60(b)(4) motion to set aside the judgment

(…continued)
60(b) motion that could have been brought in the first motion.
See Utah v. 736 N. Colo. St., 2005 UT 90, ¶¶ 8–11, 127 P.3d 693.

3. Travis also asks us to hold that the judgment was void under
rule 60(b)(4) of the Utah Rules of Civil Procedure because the
district court violated the Renewal of Judgment Act by renewing
the judgment for a second time. See Utah Code Ann.
§ 78B-6-1802 (LexisNexis 2018). Travis argues that a judgment
can be renewed only once because the Act allows for a judgment
to be renewed so long as the motion to renew “is filed before the
statute of limitations on the original judgment expires,” id.
§ 78B-6-1802(2) (emphasis added), and thus does not permit a
party to seek renewal for a second time as that would not be a
renewal of the original judgment but rather a renewal of the
renewed judgment. But because the district court dismissed
Travis’s motion on procedural grounds and did not reach the
merits of this argument, we decline to address this issue in the
first instance and remand so the district court can first consider
the merits of Travis’s second 60(b) motion.

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as void and because the court was interpreting our rules of civil
procedure when it ruled Travis’s motion was procedurally
improper, we do not grant the district court any discretion, and
we review its decision for correctness. Compare Menzies, 2006 UT
81, ¶ 54, with Conner, 2019 UT App 91, ¶ 15.

ANALYSIS

¶5 As relevant here, rule 60 of the Utah Rules of Civil
Procedure provides as follows:

(b) Mistakes; inadvertence; excusable neglect; newly discovered
evidence; fraud, etc. On motion and upon just terms, the
court may relieve a party or its legal representative from a
judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or
excusable neglect;

(2) newly discovered evidence which by due
diligence could not have been discovered in
time to move for a new trial under Rule
59(b);

(3) fraud . . . , misrepresentation or other
misconduct of an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released,
or discharged, or a prior judgment upon
which it is based has been reversed or
vacated, or it is no longer equitable that the
judgment should have prospective
application; or

(6) any other reason that justifies relief.

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(c) Timing and effect of the motion. A motion under
paragraph (b) must be filed within a reasonable
time and for reasons in paragraph (b)(1), (2), or (3),
not more than 90 days after entry of the judgment
or order or, if there is no judgment or order, from
the date of the proceeding. The motion does not
affect the finality of a judgment or suspend its
operation.

(d) Other power to grant relief. This rule does not
limit the power of a court to entertain an
independent action to relieve a party from a
judgment . . . .

Utah R. Civ. P. 60(b)–(d).

¶6 The district court dismissed Travis’s second 60(b) motion
on the basis that “[t]he arguments raised in that motion could
and should have been raised in the prior motion,” thereby
rendering the motion “procedurally improper.” Travis argues
that the court erred in this ruling because our rules of civil
procedure do not prohibit him from bringing a second motion
on the ground that the judgment was void due to the court’s lack
of subject matter jurisdiction given the terms of the Renewal of
Judgment Act. This argument appears to be sound.

¶7 Kristine disagrees. She defends the district court’s waiver
ruling and advances two alternative grounds on which she
believes we should uphold the ruling. Her first alternative
argument is that Travis’s second motion was simply a motion to
reconsider, which is not allowed. Second, she contends that the
district court’s ruling can be upheld because Travis failed to file
his second motion within ninety days of entry of the judgment
as renewed a second time or in a reasonable time as provided in
rule 60(c). We first address and reject the court’s ruling that
Travis waived his 60(b)(4) argument by not bringing it in his first
motion. We then turn to address each of the alternative

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arguments Kristine believes nonetheless warrant our affirming
the district court.

I. Waiver

¶8 Travis asserts that rule 60(b) did not prohibit him from
bringing his second 60(b) motion in May 2020, which motion
was premised on the judgment being void under rule 60(b)(4).
Kristine counters by pointing to Utah v. 736 North Colorado Street,
2005 UT 90, 127 P.3d 693, which states that “a party waives the
right to bring [additional defenses] if the party does not raise
that defense in his initial rule 60(b) motion.” Id. ¶ 11. But 736
North Colorado Street is distinguishable from the case at hand.

¶9 In 736 North Colorado Street, the State initiated forfeiture
proceedings against the petitioner to seize his property. Id. ¶ 2.
After unsuccessful attempts to serve the petitioner by mail, the
State moved for, and was granted, default judgment. Id. After
learning of the default judgment, the petitioner filed a 60(b)
motion to set aside the judgment. Id. ¶ 3. As part of his motion,
the petitioner argued that the Utah Code “mandated that a
notice of seizure be personally served and that the service by
mail was improper under Utah Rule of Civil Procedure 4.” Id. In
so doing, the petitioner “did not directly refer to or specifically
raise a defense based on insufficient service of the complaint.” Id.
The district court denied the motion, id. ¶ 4, and the petitioner
later filed a second rule 60(b) motion on the ground “that the
district court lacked jurisdiction to enter a default judgment
against him because he was not personally served with the
complaint,” id. ¶ 5. The court denied the second motion,
“concluding that [the petitioner] had waived that defense by not
raising it in his initial rule 60(b) motion.” Id.

¶10 Our Supreme Court affirmed the district court’s denial of
the second motion. Id. ¶ 14. It noted that while the petitioner
“did not articulate which prong of rule 60(b) he brought his
motions under, it appears that the motions were rule 60(b)(4)

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motions to set aside a default judgment because ‘the judgment is
void.’” Id. ¶ 3 n.3. It then held that rule 12(h) of the Utah Rules of
Civil Procedure “applies to rule 60(b) motions.” Id. ¶ 7. Rule
12(h), in turn, provides,

A party waives all defenses and objections not
presented either by motion or by answer or reply,
except (1) that the defense of failure to state a claim
upon which relief can be granted, the defense of
failure to join an indispensable party, and the
objection of failure to state a legal defense to a
claim may also be made by a later pleading, if one
is permitted, or by motion for judgment on the
pleadings or at the trial on the merits, and except
(2) that, whenever it appears by suggestion of the
parties or otherwise that the court lacks jurisdiction
of the subject matter, the court must dismiss the
action. . . .

Accordingly, the Court held that the petitioner waived his
60(b)(4) argument that the judgment was void due to lack of
personal jurisdiction, and therefore he could not bring it in a
second motion because “[h]e could have asserted his complaint
defense in [the first] motion but did not.” 736 N. Colo. St., 2005
UT 90, ¶ 9.

¶11 This precedent is readily distinguishable from the case
before us. For one thing, the motions in 736 North Colorado Street
targeted precisely the same judgment while, in this case, Travis’s
motions attacked two separate renewed judgments. His first
motion targeted the judgment as initially renewed and was filed
before the judgment was renewed for a second time. In this
motion, he sought to prevent its second renewal primarily on the
basis that it had been satisfied. But his second motion was
squarely directed at the judgment as renewed for a second time,
on the ground that the applicable statute does not authorize
multiple renewals of the original judgment. Thus, Travis could

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not have waived the arguments he made in his second rule 60(b)
motion because Travis’s first motion was brought before the
judgment was renewed for a second time, and his second motion
came after it had been renewed for that second time and because
it was again renewed. 4

¶12 Be all that as it may, 736 North Colorado Street is ultimately
distinguishable here because the petitioner in that case
attempted to bring a personal jurisdiction argument under rule
60(b)(4) in his second motion, an argument the Court
determined the petitioner had waived under rule 12(h) by not
bringing it in his initial 60(b) motion. Here, Travis’s second 60(b)
motion asserted that the judgment was void under rule 60(b)(4)
because the court lacked subject matter jurisdiction given the
terms of the Renewal of Judgment Act, which is an argument
that Travis could not have waived under the plain terms of rule
12(h). See Utah R. Civ. P. 12(h) (stating that parties do not waive
arguments “that the court lacks jurisdiction of the subject
matter”). Given this important difference, we hold that Travis
did not waive his subject matter jurisdiction argument and could
bring it in a second 60(b) motion because waiver under rule
12(h) does not bar subject matter jurisdiction arguments.

¶13 The district court therefore erred in ruling that because
Travis could have argued in his first motion that the court lacked

4. We recognize that our Supreme Court has held that “a
renewed judgment relates back to and extends the life of the
original judgment” and that renewing a judgment does not
“result[] in a new judgment.” Gildea v. Wells Fargo Bank, NA, 2015
UT 11, ¶¶ 28, 30, 347 P.3d 385. But even though a renewed
judgment is not a totally independent judgment in most
contexts, we see nothing in Gildea that prevents a party under
rule 12(h) from bringing a new 60(b) motion to set aside a
renewed judgment when new grounds have arisen that are
unique to the renewed judgment itself.

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subject matter jurisdiction to renew the judgment for a second
time, it was procedurally improper for him to raise that
argument in a second motion. Rule 12(h) did not bar such an
argument in a second motion, and the court should have
addressed Travis’s motion on the merits.

II. Motion to Reconsider

¶14 We now turn to Kristine’s first alternative ground. She
asserts that we should affirm the district court on the basis that
Travis’s second motion was essentially a post-judgment motion
to reconsider, which is not permitted in Utah. See Gillett v. Price,
2006 UT 24, ¶¶ 1, 10, 135 P.3d 861. Occasionally, we will affirm a
district court’s order on an alternative ground that is apparent
from the record, “[b]ut we ha[ve] no obligation to do so.” Scott v.
Scott, 2020 UT 54, ¶ 31, 472 P.3d 897. Kristine asserts that Travis’s
motion was a motion to reconsider simply because his “second
Rule 60 motion asserted the same grounds and no additional
facts” and because even though “[t]he analysis of the law was
slightly different[,] . . . the substantive grounds of the motion[s]
were identical.” Travis responds that his motion was not a
motion to reconsider because he raised new and distinct legal
arguments. We agree with Travis.

¶15 Kristine’s “slightly different” characterization of the
second motion is incorrect. In Travis’s first motion, he primarily
argued that, pursuant to rule 60(b)(5), the judgment as first
renewed should not be renewed a second time because he had
already satisfied the underlying judgment. He further argued
that the district court should use its equitable powers under rule
60(d) to release him from the judgment. In his second motion,
filed a year after the judgment was renewed for a second time,
he focused on a new legal theory, namely that the judgment as
renewed a second time was void under rule 60(b)(4) because,
under the Renewal of Judgment Act, the court lacked subject
matter jurisdiction to renew it for a second time. Our review of
the record shows that this argument never appeared in Travis’s

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first motion, where he sought relief from the judgment as first
renewed and opposed further renewal of the judgment. Thus,
we decline to affirm the court’s ruling on this alternative ground
because Travis’s second motion was not functionally a motion to
reconsider but asserted a new theory for why a subsequently
entered judgment, i.e., the judgment as renewed for a second
time by the court, should be set aside pursuant to rule 60(b)(4).

III. Timeliness

¶16 Kristine argues a second alternative basis on which we
can affirm the district court notwithstanding any error in its
waiver ruling. Kristine points out that Travis’s second motion
came after rule 60(c)’s ninety-day deadline or, in the alternative,
that it came so late as to have exceeded a reasonable time. As
previously stated, we will occasionally affirm a district court’s
order on an alternative ground that is apparent from the record,
“[b]ut we ha[ve] no obligation to do so.” Scott v. Scott, 2020 UT
54, ¶ 31, 472 P.3d 897. Although we consider this argument, we
ultimately decline to exercise our discretion to affirm on this
alternative ground.

¶17 Rule 60(c) requires that motions to set aside a judgment
pursuant to rules 60(b)(1), (2), and (3) must be filed within ninety
days “after entry of the judgment or order.” Utah R. Civ. P. 60(c).
The rule also prescribes that motions filed pursuant to 60(b)(4),
while not subject to the ninety-day rule, “must be filed within a
reasonable time.” Id. See In re Estate of Willey, 2016 UT 53, ¶¶ 7,
12, 16, 391 P.3d 171. Thus, because Travis premised his second
motion on the ground that the judgment was void under
60(b)(4), it was not subject to the ninety-day limit. But due to the
somewhat inconsistent nature of the applicable caselaw on this
issue, it is not entirely clear whether even the “reasonable time”
limit applies to motions brought under 60(b)(4).

¶18 In January 2015, our Supreme Court held in Migliore v.
Livingston Financial, LLC, 2015 UT 9, 347 P.3d 394, that a

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defendant’s rule 60(b)(4) motion asserting the judgment was
void on the ground that “he was denied due process of law,”
which motion was “brought nearly two years after entry of
summary judgment, [was] not time barred” because “‘where the
judgment is void . . . the time limitations of [former 5] [r]ule 60(b)
have no application.’” Id. ¶¶ 23–24 (quoting Garcia v. Garcia, 712
P.2d 288, 290 (Utah 1986)). Under this rationale, Travis’s motion
would be timely.

¶19 But less than two years later, in November 2016, the Court
issued In re Estate of Willey, 2016 UT 53, 391 P.3d 171, in which it
noted that “[i]t is an unsettled question in Utah whether all
claims that judgments are void under rule 60(b)(4) are subject to
the reasonable time limit imposed by rule 60(c).” Id. ¶ 16. The
Court continued:

Although the language of rule 60(c) states
that all motions under paragraph (b) must be filed
within a reasonable time, this court has held that
“where the judgment is void because of a fatally
defective service of process, the time limitations of
[r]ule 60(b) have no application.” Garcia v. Garcia,
712 P.2d 288, 290 (Utah 1986). While Garcia and a
prior case, Woody v. Rhodes, 23 Utah 2d 249, 461
P.2d 465, 466 (1969), limited their holdings to
motions based on a “fatally defective service of
process,” we recognize that Garcia continued to
state, “there is no time limit on an attack on a
judgment as void.” 712 P.2d at 291 (citation

5. When the Court issued Garcia v. Garcia, 712 P.2d 288 (Utah
1986), the time limitations for a 60(b) motion were found in
subsection 60(b)(7). Those same time limitations have now been
moved, with some minor adjustments in phraseology, to
subsection 60(c). Compare Utah R. Civ. P. 60(b) (1986), with id. R.
60(c) (2016).

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omitted). But the language in Garcia advancing the
notion that “the requirement that the motion be
made within a ‘reasonable time,’ . . . cannot be
enforced with regard to [a rule 60(b)(4)] motion” is
dicta given the clear holding of the case. Id.
(citation omitted). Garcia held only that “where the
judgment is void because of a fatally defective
service of process, the time limitations of [r]ule
60(b) have no application.” Id. at 290 (emphasis
added). Therefore, apart from the dicta in Garcia,
this court has not extended the exemption from the
reasonable time requirement in rule 60(c) to claims
other than those based on “fatally defective service
of process.” Id.

In re Estate of Willey, 2016 UT 53, ¶ 17 (alterations in original)
(footnote omitted). The Court then determined that it was
“unnecessary for [it] to resolve whether the reasonable time limit
applies to all motions made under rule 60(b)(4)” and proceeded
to address and reject the motion before it on the merits. Id. ¶¶ 19,
42.

¶20 In In re Estate of Willey, the Court did not acknowledge or
explain Migliore’s seemingly strong embrace of the language in
Garcia and its apparent application to all motions brought
pursuant to rule 60(b)(4). Therefore, it must be regarded as an
unsettled issue whether all motions brought under rule 60(b)(4),
aside from those turning on defective service of process, see
Garcia, 712 P.2d at 290, are subject to the reasonable time
requirement of 60(c), and we cannot rely on the language in
Migliore to conclude that Travis’s second motion was not subject
to the reasonable time limit imposed by rule 60(c).

¶21 But just as our Supreme Court did in In re Estate of Willey,
we determine that it is unnecessary to resolve this question in

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this case, 6 and we decline to exercise our discretion to rule on
this alternative ground. See Scott, 2020 UT 54, ¶ 31. We do so
because it is undisputed that the district court did not dismiss
Travis’s second motion on the ground that it was filed beyond a
reasonable time under rule 60(c) but rather on the erroneous
ground that Travis had waived his voidness argument because
he could and should have raised it in his first motion. Because
this reasoning was incorrect, we believe it best at this juncture
that the district court first address the merits of Travis’s second
motion free of any concern that his arguments should have been
raised in his earlier motion.

CONCLUSION

¶22 The district court erred in dismissing Travis’s second
motion on procedural grounds because rule 12(h) did not bar
Travis from bringing his subject matter jurisdiction argument
under rule 60(b)(4) in that motion. We also decline to affirm the
district court’s ruling on Kristine’s alternative arguments that
Travis’s motion was essentially a motion to reconsider or that it
was untimely under rule 60(c). Therefore, we remand the case to
the district court for it to consider on the merits the motion to set
aside the second renewed judgment on the theory that the
judgment was void based on a lack of subject matter jurisdiction
pursuant to the terms of the Renewal of Judgment Act.

6. Given the recurrence of this issue and the apparent
inconsistency between relatively recent Supreme Court opinions,
our Supreme Court may wish to re-examine this issue in an
appropriate case to provide clarity on this important question.

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