IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Ray Salazar, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100722‐CA
)
v. ) FILED
) (June 28, 2012)
Benjamin Chavez and John Does I‐V, )
) 2012 UT App 177
Defendant and Appellant. )
‐‐‐‐‐
Third District, Salt Lake Department, 080917245
The Honorable Denise P. Lindberg
Attorneys: Jason D. Boren, Melanie J. Vartabedian, and Quinton J. Stephens, Salt
Lake City, for Appellant
‐‐‐‐‐
Before Judges McHugh, Davis, and Christiansen.
DAVIS, Judge:
¶1 Benjamin Chavez appeals the denial of his rule 60(b) motion in which he
requested relief from the trial court’s entry of default and a default judgment against
him. We reverse and remand for further proceedings in accordance with this decision.
¶2 Rule 60(b) of the Utah Rules of Civil Procedure states, “[T]he court may in the
furtherance of justice relieve a party or his legal representative from a final judgment,
order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect . . . [or]
any other reason justifying relief from the operation of the judgment.” Utah R. Civ. P.
60(b)(1), (6). Because “[a] district court has broad discretion to rule on a motion to set
aside a default judgment under rule 60(b) of the Utah Rules of Civil Procedure[,] . . . we
review a district court’s denial of a 60(b) motion [for] an abuse of discretion . . . .”
Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480 (citations omitted). Additionally,
because rule 60(b) is equitable in nature, “a district court should exercise its discretion
in favor of granting relief so that controversies can be decided on the merits.” Id. Last,
“a district court’s ruling on a motion to set aside a default judgment must be based on
adequate findings of fact and on the law.” Id. ¶ 55 (internal quotation marks omitted).
Factual findings are reviewed for clear error and conclusions of law are reviewed for
correctness. See id.
¶3 Here, Chavez filed a rule 60(b) motion seeking relief from a default judgment
entered against him when the trial court determined that “no answer or other pleading
[had] been filed,” see generally Utah R. Civ. P. 55(a) (“When a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend as
provided by these rules and that fact is made to appear the clerk shall enter the default
of that party.”), because Chavez did not default; he filed a responsive pleading on
September 23, 2008. Indeed, the trial court had acknowledged receipt of the answer a
few months after it was filed.1 The trial court also acknowledged receipt of Chavez’s
answer in its rule 60(b) ruling, stating, “[T]here is no explanation in the case record for
why a default certificate and default judgment were signed given that the docket clearly
showed that [Chavez] had filed an answer almost a year earlier.” Thus, because Chavez
did not actually default, there was no basis for the entry of the default or default
judgment.2
1. This acknowledgment appears in a January 2009 Minute Entry in which the trial
court addressed Salazar’s request for substituted service in light of Salazar’s claim that
personal service of the complaint had been unsuccessful. The trial court, somewhat
contradictorily, permitted substituted service while also acknowledging that Chavez
had already filed an answer.
2. Additionally, the Utah Rules of Civil Procedure do not authorize a court clerk to
issue a default certificate when the party against whom the certificate would be granted
has filed an answer. See Utah R. Civ. P. 55(a) (authorizing the clerk to enter a default
certificate only “[w]hen a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend”). Thus, under rule 55(a) of the Utah
Rules of Civil Procedure, the entry of the default certificate was invalid, see id., and the
subsequent entry of the default judgment was also invalid, see P & B Land, Inc. v.
(continued...)
20100722‐CA 2
¶4 Nevertheless, the trial court approved the erroneous default judgment, blaming
Chavez, a pro se litigant, for “perpetuating the [trial c]ourt’s error[s].” The trial court
explained that “[t]he fact that default judgment should not have been entered does not
. . . warrant setting it aside under the facts of this case” because “[b]y having filed his
answer in September 2008[, Chavez] was on notice that there was a civil action against
him,” placing upon him the responsibility to “serve his answer on opposing counsel, as
required by the Utah Rules of Civil Procedure”; to “include . . . [in his answer] contact
information that would allow the [c]ourt (and opposing counsel) the ability to get in
touch with him so prosecution of this case could proceed in a timely and appropriate
way”; and “to inform the [c]ourt of his whereabouts or inquire about the status of the
case in the nearly two years since he filed his answer.”
¶5 These conclusions are unwarranted. A rule 60(b) determination is not the
appropriate mechanism by which a trial court can punish a party it believes has led it
into error, and the factual basis upon which this apparent sanction rests is erroneous.
Rule 60(b) is “remedial and equitable [in] nature,” see Menzies, 2006 UT 81, ¶¶ 54, 77
(explaining the “equitable nature of the rule”), and permits the trial court to provide
relief “in the furtherance of justice,” see Utah R. Civ. P. 60(b). See also Lund v. Brown,
2. (...continued)
Klungervik, 751 P.2d 274, 276‐77 (Utah Ct. App. 1988) (“No default judgment may be
entered under Utah R. Civ. P. 55(b)(2) unless default has previously been entered.
Thus, the entry of default is an essential predicate to any default judgment.” (footnote,
citation, and internal quotation marks omitted)). However, we focus our analysis on
rule 60(b) of the Utah Rules of Civil Procedure because a defaulting party is not entitled
to appeal “from the default judgment directly” but must first seek redress through a
rule 60(b) motion and appeal from the denial of that motion. See State v. Sixteen
Thousand Dollars U.S. Currency, 914 P.2d 1176, 1178 (Utah Ct. App. 1996) (“We can find
no Utah case in which an appellate court considered a direct appeal from a default
judgment entered against a party who had failed to file any responsive pleading and
had not appeared before the trial court.”). This is so even where the trial court erred in
entering the default judgment. See id. (“Even [where the trial court has made a legal
error,] the party asserting the error must first present the issue to the trial court through
the appropriate post‐judgment motion prior to seeking appellate review. . . . [T]he
proper course for an aggrieved party to follow would be to make a Rule 60(b) motion
for relief from judgment.”).
20100722‐CA 3
2000 UT 75, ¶ 10, 11 P.3d 277 (“[A] trial court’s discretion should be exercised in
furtherance of justice and should incline towards granting relief in a doubtful case to
the end that the party may have a hearing.” (internal quotation marks omitted)).
Nowhere in the text of the rule is it suggested that the rule might also provide a means
to sanction a party seeking relief. Additionally, the trial court’s determination that
Chavez did not serve his responsive pleading on opposing counsel is not supported by
record evidence. The record is ambiguous as to whether opposing counsel was served
because the responsive pleading is addressed to both the trial court and opposing
counsel, but no certificate of service is appended to the pleading. Regardless, there are
mechanisms in place in our rules of procedure that provide the means by which the
adequacy of the pleadings can be addressed, see, e.g., Utah R. Civ. P. 11; id. R. 12(f), and
by which a party can be sanctioned for alleged indiscretions, see, e.g., id. R. 11; id. R. 37.
Rule 60(b) provides neither.
¶6 Similarly inappropriate is the trial court’s denial of rule 60(b) relief based on its
apparent determination that Chavez was not sufficiently diligent in his defense. See
generally Harrison v. Thurston, 2011 UT App 231, ¶ 8, 258 P.3d 665 (mem.) (explaining
that relief based on the excusable neglect prong of rule 60(b)(1) “require[s] some
evidence that the moving party has exercised sufficient diligence [to justify] grant[ing]
him relief from the judgment entered as a result of his neglect” (second and third
alterations in original) (internal quotation marks omitted)). Under the facts and
circumstances of this case, this conclusion seems to flip rule 60(b) on its head. The
ruling from which Chavez seeks relief was not correctly made in the first place—he
filed an answer, yet default was entered against him for failing to file an answer. We
are not convinced that a pro se litigant’s basic, letter‐format responsive pleading and
conflicting evidence of whether personal service was truly effectuated led the trial court
so astray as to cause it to erroneously enter a default against Chavez. In any case, the
trial court’s apparent determination that Chavez was not sufficiently diligent is
inappropriate. Chavez’s actions were reasonable given the unique facts and
circumstances of this case, including Salazar’s failure to prosecute the case early on,
which resulted in the trial court’s dismissing the case sua sponte in August 2009;3 the
apparent problems with service; and Chavez’s decision, upon receiving actual notice of
the entry of default and the default judgment, to quickly retain counsel and file a rule
3. Salazar successfully moved the court to reopen the case later that same month.
20100722‐CA 4
60(b) motion within a time frame that rule 60(b) supports as reasonable,4 see Utah R.
Civ. P. 60(b) (noting that a rule 60(b) motion “shall be made within a reasonable time”
and defining that time for certain subsections of the rule as “not more than 3 months
after the judgment, order, or proceeding was entered or taken”).
¶7 In sum, the trial court’s ruling on Chavez’s rule 60(b) motion was “based on
clearly erroneous factual findings [and] flawed legal conclusions.” See Menzies v.
Galetka, 2006 UT 81, ¶ 55, 150 P.3d 480. The entry of default and the subsequent entry of
default judgment were improper because Chavez had answered. Accordingly, the trial
court’s denial of Chavez’s rule 60(b) motion exceeded its discretion. We vacate the
entry of default and the default judgment entered against Chavez and remand for
further proceedings on the merits.5
4. Because Salazar did not submit a brief on appeal, we are left with Chavez’s
undisputed assertion that he did not have notice of the default judgment until his
attorney in a related criminal action informed him of it on March 29, 2010. That is also
the date from which the trial court analyzes Chavez’s timeliness in bringing his rule
60(b) motion. Chavez filed his rule 60(b) motion on June 11, 2010, approximately two‐
and‐a‐half months after he received actual notice.
5. Chavez also challenges on appeal the trial court’s decision to award Salazar $29,120
in damages when “Salazar presented no evidence to prove or support his damage
claims.” We note, to the extent a similar or related issue may arise on remand, see
generally State v. Low, 2008 UT 58, ¶ 61, 192 P.3d 867 (recognizing an appellate court’s
“discretion to address” “other issues presented on appeal that” may arise on remand),
that the damages award is not supported by sufficient evidence. Because Salazar’s
complaint did not allege damages “for a sum certain or for a sum that can be made
certain by computation,” see Utah R. Civ. P. 55(b)(1)(D), the trial court should have held
a hearing during which time Salazar could have “provide[d] evidentiary support for the
award of damages,” see Skanchy v. Calcados Ortope SA, 952 P.2d 1071, 1076 (Utah 1998);
accord Utah R. Civ. P. 55(b)(2). See also Utah R. Civ. P. 54(c)(2) (“A judgment by default
shall not be different in kind from, or exceed in amount, that specifically prayed for in
the demand for judgment.”); cf. Russell v. Martell, 681 P.2d 1193, 1195 (Utah 1984)
(“Courts are not at liberty to deviate from . . . rules [54 and 55] just because one party is
in default and is not entitled to be heard on the merits of the case.”); Cadlerock Joint
Venture II, LP v. Envelope Packaging of Utah, Inc., 2011 UT App 98, ¶ 10, 251 P.3d 837
(continued...)
20100722‐CA 5
____________________________________
James Z. Davis, Judge
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¶8 WE CONCUR:
____________________________________
Carolyn B. McHugh,
Presiding Judge
____________________________________
Michele M. Christiansen, Judge
5. (...continued)
(“Our precedent states that even defaulting defendants should usually be afforded an
evidentiary hearing whenever the amount owed is unliquidated under rule 55(b)(2) [of
the Utah Rules of Civil Procedure] . . . .”). None of the allegations in Salazar’s
complaint indicate a “sum certain” from which the trial court could have calculated the
particular damages awarded—$6,000 for medical expenses, $3,120 for lost income, and
$20,000 for pain and suffering. Thus, the complaint does not present “sufficient credible
evidence to support the [default] judgment of” $29,120. See Pitts v. Pine Meadow Ranch,
Inc., 589 P.2d 767, 769 (Utah 1978) (rejecting the trial court’s entry of a $36,000 default
judgment that was based entirely on the plaintiffs’ testimony that their property was
“totally ruined” by the defendants’ trespass, that their property was worth $16,000
before the trespass, and that the destroyed trees on the property “constituted $5,000 of
the value of the property,” because evidence of the property’s actual market value after
the trespass was needed to calculate property damages and there was no evidence to
support treble damages or punitive damages).
20100722‐CA 6