Tangren Family Trust v. Tangren

2016 UT App 163

THE UTAH COURT OF APPEALS

TANGREN FAMILY TRUST AND SHARON FISCUS,
Appellees,
v.
RODNEY TANGREN,
Appellant.

Opinion
No. 20140938-CA
Filed July 29, 2016

Seventh District Court, Monticello Department
The Honorable Lyle R. Anderson
No. 130700012

Joane Pappas White, Attorney for Appellant
Craig C. Halls, Attorney for Appellees

SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
which JUDGES STEPHEN L. ROTH AND KATE A. TOOMEY concurred. 1
JUDGE STEPHEN L. ROTH authored a concurring opinion, in which
JUDGE KATE A. TOOMEY concurred.

GREENWOOD, Senior Judge:

¶1 Rodney Tangren appeals the district court’s entry of a
default judgment against him—claiming the court lacked
jurisdiction to enter the judgment and that he was entitled to
receive notice of the default—and its subsequent denial of his
motion to set aside that judgment. We affirm.

1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
 Tangren Family Trust v. Tangren

BACKGROUND

¶2 In 1994, Tangren—as lessee—entered into a ninety-nine-
year lease (the Lease) with the Tangren Family Trust. The Lease
was for property in San Juan County, Utah (the Property). 2 The
Lease required that each month Tangren would pay $150 rent,
one-twelfth of the estimated annual taxes, and one-twelfth of the
annual cost of all necessary insurance. The Lease further
indicated that Utah law governed the performance of the
agreement and that “[i]n the event it becomes necessary for any
party to employ an attorney to enforce the terms of [the Lease] or
protect his rights, the prevailing party shall be entitled to
reasonable attorney fees and court costs incurred thereby.”

¶3 Tangren’s father was the Trust’s settlor and original
trustee. When a Nevada court determined that Tangren’s father
was incompetent, Tangren’s sister, Sharon Fiscus, became his
guardian and the successor trustee of the Trust.

¶4 In 2011, Fiscus requested that the Nevada court remove
the Trust from its jurisdiction. Tangren objected and petitioned
to remove Fiscus as trustee. Around the same time, an eviction
case was pending in Utah, which sought to remove Tangren
from the Property for failure to provide proof of insurance on
the Property. The parties eventually agreed that Tangren would
obtain and provide proof of a $1 million insurance policy on the
Property. In return, the Trust would dismiss the Utah eviction
case.

¶5 The Nevada case was resolved when the Nevada court
found that all matters pertaining to the Lease “involve[d] the
external affairs of the . . . Trust” and, “[w]hile [the Nevada court]

2. This is not the first time these parties and the Lease have been
before this court. See generally Tangren Family Trust ex rel. Tangren
v. Tangren, 2006 UT App 515, 154 P.3d 180, aff'd but criticized sub
nom. Tangren Family Trust v. Tangren, 2008 UT 20, 182 P.3d 326.

20140938-CA 2 2016 UT App 163
 Tangren Family Trust v. Tangren

ha[d] exclusive jurisdiction over the internal affairs of the . . .
Trust, it [did] not have exclusive jurisdiction over the external
affairs of the . . . Trust.” The Nevada court further concluded
that the issues raised by Tangren’s petition “involve[d] his
interests as a Lessee of real property and [did] not involve his
interest as beneficiary or other interested party of the internal
affairs of the . . . Trust.” Later, the Nevada court removed the
Trust from Nevada’s continuing jurisdiction to allow issues
related to the Property “to be properly raised and decided by the
Seventh District Court—Montecello [sic] of San Juan County,
State of Utah, the situs of the real property subject to the Lease.”

¶6 The Trust thereafter filed a complaint against Tangren in
Utah, stating several causes of action and seeking an injunction.
It sought injunctive relief because Tangren had hosted activities
on the Property for which he did not have insurance, including
an aircraft fly-in. The fly-in “involved several aircraft flying into
the [Property] for a weekend of airplane games, shooting, and
socializing.” As the Trust explained, “The activity (aircraft
takeoff and landing) exposes [the Trust] to liability if someone
[were] to become hurt or an accident were to occur. . . . There is
no liability insurance in place presently which insures the
contemplated activity . . . .” The Trust further alleged that
another fly-in was scheduled for the following month, and it
sought a temporary restraining order to enjoin the fly-in or
require Tangren to obtain adequate insurance for the activity.
Separately, the complaint brought two claims for breach of the
Lease; the Trust alleged that Tangren was presently in arrears for
his payment of the insurance premiums and that Tangren still
owed for past increases to the amount of insurance. For these
claims, the Trust sought a writ of restitution removing Tangren
from the Property and allowing the Trust to take possession of it.
Tangren was served with the summons and complaint on April
30, 2013.

¶7 The district court held a temporary restraining order
hearing on May 6, 2013, which Tangren, Fiscus, and counsel for

20140938-CA 3 2016 UT App 163
 Tangren Family Trust v. Tangren

the Trust attended. At the hearing, the Trust explained the
requirement under the Lease that Tangren pay for insurance on
the Property as well as its concerns regarding the scheduled fly-
in and the risk of exposing the Trust to liability. Tangren
responded that in recent years, the Trust had insisted on
unnecessarily increasing the insurance on the Property. The
court discussed the Nevada case at length with the parties,
including what the Nevada court had decided and
distinguishing between the $1 million policy the Nevada court
had ordered “on the lodge” and the present concerns that that
policy “doesn’t cover the runway or any other activity.” The
court then told Tangren, “If you think [the Property is] worth 2
million, then that’s what’s at risk here. . . . That’s the reason for
the insurance requirement.” It went on to order, “Then you have
$2 million of coverage and that’s for all liability or you will not
have this [fly-in].” Tangren replied, “Okay, your Honor,” and
the hearing concluded. The district court issued a written
temporary restraining order on May 8, 2013. The order indicated
that a copy of the order was mailed to Tangren at the Property.
Tangren denies that he received the order.

¶8 Tangren never filed an answer to the complaint, and the
district court ultimately entered a default judgment against
Tangren for a “Writ of Restitution restoring [the Trust] to the
possession of the [Property].” Then, at a hearing in November
2013, the district court heard testimony from Tangren and Fiscus
regarding damages before ordering Tangren to pay the Trust for
unpaid insurance premiums, court costs, and attorney fees.

¶9 Arguing that service of the complaint and summons had
been defective, Tangren moved to set aside the default
judgment. The district court denied the motion, finding that
Tangren’s testimony on the issue of service was not credible, that
“Tangren exerted virtually no effort to understand what was
required of him,” and that he “made a deliberate decision not to
seek advice of counsel because he was sure of the rightness of his
position.” The district court further concluded that although the

20140938-CA 4 2016 UT App 163
 Tangren Family Trust v. Tangren

summons Tangren had received was defective, the defect was
harmless. Specifically, while the summons had erroneously
indicated that Tangren had only ten days to answer the
complaint, he was actually given more than two months to
answer before the default judgment was entered. This was “the
only grounds for setting aside the default in this case that the
Court considered seriously.” This appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶10 Tangren raises two issues for our review. First, he asserts
that the district court lacked subject matter jurisdiction to decide
this case. “Whether a [district] court has subject matter
jurisdiction presents a question of law which we review under a
correction of error standard, giving no particular deference to
the [district] court’s determination.” Reller v. Reller, 2012 UT App
323, ¶ 7, 291 P.3d 813 (citation and internal quotation marks
omitted).

¶11 Second, Tangren argues that the district court erred when
it denied his rule 60(b) motion to set aside the default judgment
and writ of restitution. “[A] district court has broad discretion in
ruling on a motion to set aside an order or judgment under rule
60(b), and ‘[t]hus, we review a district court’s denial of a 60(b)
motion under an abuse of discretion standard.’” Metropolitan
Water Dist. of Salt Lake & Sandy v. Sorf, 2013 UT 27, ¶ 12, 304 P.3d
824 (second alteration in original) (quoting Menzies v.
Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480).

ANALYSIS

I. Subject Matter Jurisdiction, Full Faith and Credit, and
Collateral Estoppel Claims

¶12 Tangren challenges the district court’s election to hear this
case. Specifically, he argues that the Nevada court—not the Utah

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 Tangren Family Trust v. Tangren

district court—has subject matter jurisdiction, that “the Nevada
order was entitled to full faith and credit,” and that the issue of
insurance on the Property, being fully litigated in Nevada,
should not have been reconsidered. We conclude that the district
court did, indeed, have subject matter jurisdiction and that the
court’s decisions did not run afoul of the Full Faith and Credit
Clause of the United States Constitution, see U.S. Const. art. IV,
§ 1, or the doctrine of collateral estoppel.

¶13 “Subject matter jurisdiction is the authority and
competency of the court to decide the case,” Franklin Covey Client
Sales, Inc. v. Melvin, 2000 UT App 110, ¶ 24 n.3, 2 P.3d 451, and is
“a prerequisite to [the] court’s power to consider substantive
issues,” Ameritemps, Inc. v. Labor Comm’n, 2005 UT App 491, ¶ 10,
128 P.3d 31. As Tangren points out, “‘[c]hallenges to subject
matter jurisdiction may be raised at any time, even for the first
time on appeal.’” (Quoting Sonntag v. Ward, 2011 UT App 122,
¶ 2, 253 P.3d 1120.)

¶14 The district court presumably had subject matter
jurisdiction in this case, considering “[t]he district court has
original jurisdiction in all matters civil and criminal, not
excepted in the Utah Constitution and not prohibited by law.”
See Utah Code Ann. § 78A-5-102(1) (LexisNexis 2012). This is a
civil matter, and Tangren points us to no constitutional
provision or other law that deprived the district court of
jurisdiction. 3 Instead, Tangren confuses the principles of subject

3. In his reply brief, Tangren concedes that the district court “has
subject matter jurisdiction over the Lease” but alters his
argument to attack the district court’s order requiring him to
obtain a $2 million insurance policy. He contends that because
“the Lease does not contain terms that Tangren would be the
party obtaining the insurance policies or that he was required to
provide proof of the policies to the Trust,” the district court’s
order “was not within its subject matter jurisdiction pursuant to
(continued…)

20140938-CA 6 2016 UT App 163
 Tangren Family Trust v. Tangren

matter jurisdiction and full faith and credit, arguing that because
the Nevada court heard a related case, the district court was
somehow deprived of jurisdiction. 4 He specifically argues that
the district court’s actions violated the principle of full faith and
credit. “This is significant because, unlike claims of subject
matter jurisdiction, full faith and credit claims are subject to
waiver if not raised in a timely fashion.” In re Adoption of Baby
E.Z., 2011 UT 38, ¶ 38, 266 P.3d 702. Tangren failed to raise his
full faith and credit argument in the district court, and it is
therefore unpreserved for appeal. Accordingly, we decline to
address it. 5 See, e.g., VCS, Inc. v. Countrywide Home Loans, Inc.,

(…continued)
the Complaint.” Even if we determined that this argument was
tenable, “we will not consider matters raised for the first time in
the reply brief.” See Coleman ex rel. Schefski v. Stevens, 2000 UT 98,
¶ 9, 17 P.3d 1122.

4. In his own words, “Tangren challenges the trial court’s subject
matter jurisdiction in that . . . the Nevada Order was entitled to
full faith and credit as a foreign order.” It seems to us axiomatic
that to satisfy the Full Faith and Credit Clause, an honoring
court would need to have proper jurisdiction and, thus, the mere
existence of a foreign order could not deprive the honoring court
of jurisdiction.

5. We do briefly note that Tangren’s argument appears to suffer
from another determinative flaw. While “a state must give full
faith and credit to the judgments of other states[,] . . . to be given
full faith and credit[] these foreign judgments must be both valid
and final.” Lilly v. Lilly, 2011 UT App 53, ¶ 25, 250 P.3d 994. The
Nevada order that Tangren argues should have been given full
faith and credit begins: “It is hereby ordered that this matter is
hereby continued . . . .” It then goes on to make interim orders
based on the parties’ agreement, including requiring Tangren to
secure and provide proof of a $1 million insurance policy on the
Property and requiring the Trust to dismiss the then-pending
(continued…)

20140938-CA 7 2016 UT App 163
 Tangren Family Trust v. Tangren

2015 UT 46, ¶ 21, 349 P.3d 704 (“We decline to address the merits
of this argument, however, because it is unpreserved.”).

¶15 Tangren also argues that the district court was barred
from considering the issue of insurance on the Property because
it had been “fully litigated in Nevada.” Specifically, he claims
that the doctrine of collateral estoppel, or issue preclusion,
prohibited the district court’s order regarding insurance on the
Property. 6

(…continued)
Utah litigation. Section 78B-5-302 of the Utah Code outlines how
a litigant may file a foreign judgment in this state, thus
providing the judgment full faith and credit. Specifically, the
foreign judgment “may be filed with the clerk of any district
court in Utah.” Utah Code Ann. § 78B-5-302 (LexisNexis 2012).
Further highlighting Tangren’s lack of preservation of this point,
Tangren never attempted to register the Nevada order with the
district court, and thus the district court never had occasion to
give the order full faith or credit. This is to say nothing of the
fact that the Nevada court eventually entered another order—the
final order in the Nevada case—in which it removed the Trust
from the Nevada court’s continuing jurisdiction and concluded
that it did not have jurisdiction to hear matters related to the
Lease, indicating that such issues should be raised and decided
by the Utah district court. See supra ¶ 5.

6. Tangren asserts that the purported applicability of collateral
estoppel somehow deprived the district court of subject matter
jurisdiction. However, we decide this issue using the elements of
a collateral estoppel claim, ignoring that Tangren’s description of
this challenge as one of subject matter jurisdiction is imprecise.
Cf. Monavie, LLC v. Quixtar Inc., 741 F. Supp. 2d 1227, 1234 n.8 (D.
Utah 2009) (explaining that assertions of the applicability of
“collateral estoppel do not raise questions of subject matter
jurisdiction”).

20140938-CA 8 2016 UT App 163
 Tangren Family Trust v. Tangren

¶16 We use a four-part test to determine whether the doctrine
of collateral estoppel applies in a certain instance:

First, the issue challenged must be identical in the
previous action and in the case at hand. Second,
the issue must have been decided in a final
judgment on the merits in the previous action.
Third, the issue must have been competently, fully,
and fairly litigated in the previous action. Fourth,
the party against whom collateral estoppel is
invoked in the current action must have been
either a party or privy to a party in the previous
action.

Jones, Waldo, Holbrook & McDonough v. Dawson, 923 P.2d 1366,
1370 (Utah 1996). For purposes of this decision, we focus solely
on the second part of this test.

¶17 We are not convinced that the Nevada order, which
required Tangren to obtain a $1 million insurance policy on the
Property, can be considered a final judgment on the merits. The
Nevada court prefaced its order by indicating that the matter
was continued to a later date and then entered its orders
regarding the parties’ required conduct before that date. See
Gallipo v. City of Rutland, 789 A.2d 942, 952 (Vt. 2001) (explaining
that, in a worker’s compensation case, issue preclusion did not
apply because “the interim order does not qualify as a final
judgment”); cf. Silvan W. v. Briggs, 309 F. App’x 216, 222 (10th
Cir. 2009) (noting without deciding that “issue preclusion is
potentially applicable” where a lower court “simply made an
interim determination pending additional proceedings” but
indicating that in the case at bar “the outcome of those
proceedings” was unclear on the record (citation and internal
quotation marks omitted)).

¶18 Tangren’s only argument on this point is that the Nevada
order’s finality is “shown by the plain language of the Nevada
Order.” But as already discussed, the plain language indicates

20140938-CA 9 2016 UT App 163
 Tangren Family Trust v. Tangren

that the Nevada court “ordered that this matter [was] hereby
continued.” Then, in a subsequent order—the last order entered
in the Nevada case so far as we can tell—the Nevada court
ordered that the Trust be removed from its continuing
jurisdiction and found that the Nevada court “does not have
jurisdiction to hear” “matters raised before [the Nevada court]
with regard to the Lease . . . and disputes thereunder.”

¶19 Because the Nevada court addressed the insurance issue
in what can only be described as an interim order and later
concluded that it did not have jurisdiction to consider the issue,
as it was raised under the Lease, the insurance issue was not
decided in a final judgment on the merits. 7 See Jones, Waldo,
Holbrook & McDonough, 923 P.2d at 1370. The doctrine of issue
preclusion is therefore inapplicable. See id.

II. The District Court’s Denial of Tangren’s Rule 60(b) Motion

¶20 The second issue on appeal is whether the district court
abused its discretion when it denied Tangren’s motion to set
aside the default judgment under rule 60(b) of the Utah Rules of
Civil Procedure. Tangren suggests that the motion should have
been granted for several reasons, including that he was served

7. Moreover, while both the Nevada case and the Utah case
addressed the question of what and how much insurance was
required on the Property, the issues were not identical. Cf. Jones,
Waldo, Holbrook & McDonough v. Dawson, 923 P.2d 1366, 1370
(Utah 1996) (requiring that, for collateral estoppel to apply,
before all else “the issue challenged must be identical in the
previous action and in the case at hand”). The Nevada order
required that Tangren obtain a standard insurance policy for the
Property. But the district court addressed the need for additional
insurance because Tangren had scheduled fly-in activities, and
the present insurance on the Property “does not protect all
liability for [flying or skydiving] activities.”

20140938-CA 10 2016 UT App 163
 Tangren Family Trust v. Tangren

with a defective summons and that the default judgment was
improperly entered.8 In Tangren’s view, these points
demonstrate that “excusable neglect existed throughout the case
. . . . When viewed as one large whole, the cumulative excusable
neglect and prejudice developed throughout the case.”

¶21 “A trial court has discretion in determining whether a
movant has shown ‘mistake, inadvertence, surprise, or excusable
neglect,’ and this Court will reverse the trial court’s ruling only
when there has been an abuse of discretion.” Larsen v. Collina,
684 P.2d 52, 54 (Utah 1984) (quoting Utah R. Civ. P. 60(b)(1)).
Our supreme court has explained

that excusable neglect requires some evidence of
diligence in order to justify relief. In other words,
while the district court’s discretion to grant relief
under rule 60(b) for excusable neglect is broad, it is
not unlimited. A district court must exercise its
broad discretion in furtherance of the ultimate goal
of the excusable neglect inquiry: determining
whether the moving party has been sufficiently
diligent that the consequences of its neglect may be
equitably excused.

Jones v. Layton/Okland, 2009 UT 39, ¶ 20, 214 P.3d 859. Tangren
has not demonstrated excusable neglect; thus the district court
did not abuse its discretion in denying his motion to set aside the
default judgment.

8. Tangren also argues that the preliminary injunction was
entered improperly, but we fail to see how the preliminary
injunction has any bearing on the default judgment entered in
this case or the district court’s denial of Tangren’s rule 60(b)
motion. We therefore decline to consider that question.

20140938-CA 11 2016 UT App 163
 Tangren Family Trust v. Tangren

A. Defective Summons

¶22 The district court found that the summons served on
Tangren was defective, in that it indicated he had only ten days
in which to answer the complaint. But the court also found that
Tangren was not prejudiced by this defect, because he ultimately
had eighty days to respond before the district court entered
default judgment. Tangren contends that he was prejudiced
because the defective summons “created an unclear proceeding
in this matter.” This argument fails to explain why Tangren
neglected to answer the complaint at any point in time,
including after the entry of the preliminary injunction, at which
point Tangren undoubtedly had a clear picture that the instant
case was distinct from the Nevada case. And we agree with the
Trust that Tangren’s confusion argument is made “without any
citation to authority or analysis as to how this should afford him
relief under grounds for ‘excusable neglect’ under Rule 60(b).”
The defective summons was not prejudicial, and the district
court did not abuse its discretion in denying Tangren’s motion
on that ground.

B. Propriety of Default

¶23 Tangren also argues that a default judgment should never
have been entered because although he failed to answer, he
“otherwise defended” in this case. Specifically, he contends that
because he “appeared” at the preliminary injunction hearing, he
“otherwise defended,” in accordance with rule 55 of the Utah
Rules of Civil Procedure. He also complains that because he
physically appeared at the hearing, he “appeared” in this action,
thus entitling him to be served with additional pleadings under
rule 5 of the Utah Rules of Civil Procedure. We are not
persuaded.

¶24 The issues addressed at the preliminary injunction
hearing were distinct from other claims alleged in the complaint.
The hearing was focused on discerning what had occurred and
been ordered by the Nevada court, as well as the fly-in activities

20140938-CA 12 2016 UT App 163
 Tangren Family Trust v. Tangren

and the associated need for liability insurance. There was no
discussion of the Trust’s breach of the Lease claims or its request
for a writ of restitution removing Tangren from the Property.
There was no discussion about Tangren’s alleged violations of
the Lease by failing to pay the insurance premiums that were in
place at that time or in the past. Similarly, there was no attempt
by Tangren to defend against the alleged breach of the Lease.
The hearing focused on injunctive relief and, as such, Tangren
did not “otherwise defend” against the complaint at the hearing.
See Utah R. Civ. P. 55(a).

¶25 Similarly, his presence at the hearing did not qualify as an
“appearance” in the instant case. See id. R. 5(a)(2); Arbogast
Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 24, 238 P.3d
1035 (acknowledging “a trend in our own case law toward
requiring formal filing” for a party to “appear” under rule 5). In
Arbogast, our supreme court engaged in an in-depth look at rule
5 and what it means for a party to “appear.” 2010 UT 40, ¶ 16
(“This case presents us with the task of interpreting a single
word within one of our procedural rules.”). The court
acknowledged that the question of what constitutes an
appearance “has led to a surprising amount of litigation in other
parts of the country” but that Utah has “limited case law
discussion of rule 5 requirements.” Id. ¶ 24. It nevertheless found
“the formal filing approach to be most consistent with the
purpose of our rules of civil procedure. Requiring a party to
make a formal filing or submission to the court creates a bright-
line rule that is sensible and easy to administer.” Id. ¶ 32
(citations and internal quotation marks omitted).

¶26 In Arbogast, that bright-line rule meant that a party who
had “failed to make a formal appearance through a pleading in
the action” was not entitled to receive notice that an opposing
party was seeking a default judgment. Id. ¶¶ 8, 15. This was so
even though the party in default had sought and received an
extension of time to answer the complaint, had made a
settlement offer, and had sent the opposing party an email

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 Tangren Family Trust v. Tangren

proposing to discuss the case. Id. ¶¶ 5–6. But our supreme court
clarified, “Once a party formally files or submits a pleading to the
court, it is entitled to notice of all activity throughout the
proceedings, and no default judgment may be entered without
first serving the defaulting party.” Id. ¶ 30 (emphasis added);
compare Lund v. Brown, 2000 UT 75, ¶¶ 3–4, 27, 11 P.3d 277
(concluding that where a party had filed a complaint but had
failed to answer a counterclaim, the party had “made an
appearance” and was therefore entitled to notice of default), with
Central Bank & Trust Co. v. Jensen, 656 P.2d 1009, 1010–11 (Utah
1982) (concluding that where a party had failed to answer a
complaint but had contacted opposing counsel and discussed
the complaint and proceedings, the party was not entitled to
notice of default).

¶27 As the “bright-line rule” from Arbogast is that a party
must file or submit a pleading to the court in order to appear, see
Arbogast, 2010 UT 40, ¶¶ 30, 32, we conclude that here—where
Tangren attended a hearing focused solely on a preliminary
injunction, never filed any pleading with the court, and never
answered the complaint’s allegations of breach of the Lease—
Tangren did not appear for purposes of rule 5, see Utah R. Civ. P.
5(a)(2)(B). 9

¶28 Simply put, Tangren’s presence at the preliminary
injunction hearing did not relieve him of his obligation to
answer the complaint in this case, and it did not guarantee that
he would be provided further notice of the proceedings against

9. We believe that Arbogast Family Trust v. River Crossings, LLC,
2010 UT 40, 238 P.3d 1035, in defining a bright-line rule, is
controlling authority and mandates the result in this case. If
there are to be any modifications encompassing the facts of this
or similar cases, in which a single personal physical appearance
in court took place, it is the exclusive prerogative of the Utah
Supreme Court to make them.

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 Tangren Family Trust v. Tangren

him. Because we disagree with Tangren’s position on these
issues, we cannot agree that the district court abused its
discretion in failing to grant his rule 60(b) motion.

CONCLUSION

¶29 The district court had jurisdiction to hear this case, and
Tangren failed to answer the complaint against him. The district
court therefore did not err in granting default judgment against
Tangren or in denying his motion to set aside that judgment.

¶30 Affirmed.

ROTH, Judge (concurring):

¶31 I concur in the reasoning and the result of the lead
opinion because, as aptly expressed in note 9, the result appears
to be mandated by the Utah Supreme Court’s decision in
Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, 238
P.3d 1035. However, I write separately to express my concern
that under current Utah law, as expressed in Arbogast, a party’s
personal appearance in court to defend against a substantive
motion, as Tangren did here, does not amount to an
“appearance” under rule 5.

¶32 I agree with the lead opinion’s conclusion that “the
‘bright-line’ rule from Arbogast is that a party must file or submit
a pleading to the court in order to appear” for purposes of rule
5(a). See supra ¶¶ 26–27. Indeed, in adopting the requirement for
“a formal filing” as the sine qua non of an appearance, Arbogast
sought to identify a “bright-line rule that is sensible and easy to
administer,” and that would avoid the “lack of clarity, practical
difficulty, and inconsistent results as to what conduct and level
of participation is needed to appear” under the majority
“informal contacts” rule. See Arbogast, 2010 UT 40, ¶¶ 25, 29, 33
(citations and internal quotation marks omitted).

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 Tangren Family Trust v. Tangren

¶33 But Arbogast involved a defaulted defendant’s claim that
an informal extension of time arranged between counsel to
answer the complaint and a pending settlement offer were
enough of an indication of the defendant’s intention to defend
the case to constitute an “appearance” under rule 5. See id. ¶¶ 5–
7. The court’s concern was to set a standard for appearance that,
in contrast to the “informal contacts” rule, would “eliminate
case-by-case litigation over whether a party’s informal actions
rise to the level of an appearance and best promote[] efficient
court management by allowing court clerks to quickly and easily
determine whether the defaulting party has appeared in an
action.” Id. ¶ 33. It is in this context that the court summarized its
decision: “We hold that in every instance, communications and
conduct between parties will only enjoy the status of an
appearance under rule 5 if marked by a formal filing with the
tribunal in which the relevant action is pending.” Id. ¶ 34
(emphasis added).

¶34 In contrast, in the case before us, Tangren does not rely on
informal communication with opposing counsel to support his
claim that he was entitled to notice before entry of default; he
relies on his actual appearance in court to contest the Trust’s
preliminary injunction motion. (And it may be worth noting that
it is almost impossible to describe Tangren’s presence at the
preliminary injunction without using some form of the common
term “appearance.”) Indeed, Arbogast’s discussion of the plain
meaning of the term “appearance” suggests that what Tangren
did ought to meet rule 5’s requirement:

Legal definitions of “appearance” include “[t]o
present oneself formally before a court as
defendant, plaintiff or counsel,” American
Heritage Dictionary 120 (emphasis added), or to
“com[e] into court as a party or interested person” or
by “participating in [a lawsuit] by answer,
demurrer, or motion.” Black’s Law Dictionary 107
(8th ed. 2004) (emphasis added). Historically, an

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 Tangren Family Trust v. Tangren

appearance required “some act by which a person
who is sued submits himself to the authority and
jurisdiction of the court.” Black’s Law Dictionary
107.

Id. ¶ 19 (alterations in original) (final citation curtailed).
Certainly, by defending against the plaintiff’s motion at a court
hearing scheduled for that purpose, Tangren can be said to have
presented himself “formally before a court as defendant,”
“com[e] into court as a party,” or “submit[ted] himself to the
authority and jurisdiction of the court” just as thoroughly as he
would have by submitting a formal pleading. See id. (citations,
emphasis, and internal quotation marks omitted). And in doing
so, he effectively communicated to the court—and to the
plaintiff—his intention to participate in the proceedings. See
Plaza del Lago Townhomes Ass’n v. Highwood Builders, LLC, 148
P.3d 367, 371 (Colo. App. 2006) (concluding “communication
with the court is required” and that the “phrase ‘appeared in the
action’ . . . requires that a defendant communicate with the court
in a manner that demonstrates to the court that the defendant is
aware of the proceedings and intends to participate in them”
(citation omitted)); see also Arbogast, 2010 UT 40, ¶ 30 (citing Plaza
del Lago Townhomes Ass’n, 148 P.3d at 371, for the same).

¶35 In my view, the Arbogast reasoning can be extended to
include within the scope of an “appearance” under rule
5(a)(2)(B) a party’s active participation in a substantive
proceeding in a case so as to thereafter require service of the
papers described in rule 5(a)(1), including the filings prompting
and related to the entry of default and default judgment. See
Utah R. Civ. P. 5(a)(1), (2)(B). A party’s appearance at such a
proceeding “suggest[s] an obvious and definite presence before
a court” and “leaves no question as to the presence of a party or
his intent to defend the suit.” Arbogast, 2010 UT 40, ¶ 19. It also
meets the primary requirements of “a bright-line rule that is
sensible and easy to administer.” Id. ¶ 33 (citation and internal
quotation marks omitted). Indeed, like a “formal filing,” a

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party’s physical appearance and formal participation in a
hearing “will leave no question in the minds of plaintiffs,
defendants, or courts as to who has made an appearance in a
case” and should not result in “case-by-case litigation over
whether a party’s informal actions rise to the level of an
appearance.” Id. And court clerks can just as “quickly and easily
determine whether the defaulting party has appeared in an
action” by the party’s actual participation in a court proceeding
as through a formal filing. Id.

¶36 In sum, if an appearance under rule 5 included the sort of
appearance that Tangren made at the preliminary injunction
proceeding—as I think it should—default judgment could not
have been entered against him until he was served with a
motion for entry of default and related papers. Cf. id. ¶ 30
(“Once a party formally files or submits a pleading to the court,
it is entitled to notice of all activity throughout the proceedings,
and no default judgment may be entered without first serving
the defaulting party.”). Nevertheless, I agree with the lead
opinion that our supreme court’s holding that the “bright-line
rule” requires “a formal filing” limits our ability to consider a
different result here. See id. ¶¶ 33–34.

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