OPC v. Spencer

2022 UT 28

IN THE

SUPREME COURT OF THE STATE OF UTAH
In the Matter of the Discipline of TERRY R. SPENCER

TERRY R. SPENCER,
Appellant,

v.

OFFICE OF PROFESSIONAL CONDUCT,
Appellee.

No. 20210458
Heard: March 16, 2022
Filed June 30, 2022

On Direct Appeal

Third District, Salt Lake
The Honorable Richard E. Mrazik
No. 170906087

Attorneys:
Terry R. Spencer, Sandy, pro se appellant
Billy L. Walker, Emily A. Lee, Salt Lake City, for appellee

JUSTICE PEARCE authored the opinion of the Court,
in which JUSTICE PETERSEN, JUDGE HARRIS, JUDGE TENNEY,
and JUDGE WALTON joined.

Having recused himself, CHIEF JUSTICE DURRANT does not participate
herein; COURT OF APPEALS JUDGE RYAN M. HARRIS sat.

Due to his retirement, JUSTICE HIMONAS did not participate herein;
COURT OF APPEALS JUDGE RYAN D. TENNEY sat.

Having recused himself, ASSOCIATE CHIEF JUSTICE LEE does not
participate herein; DISTRICT COURT JUDGE JOHN J. WALTON sat.

JUSTICE HAGEN became a member of the Court on May 18, 2022, after
oral argument in the matter, and accordingly did not participate.
Spencer v. OPC
Opinion of the Court

JUSTICE PEARCE, opinion of the Court:
INTRODUCTION

1 The district court suspended Terry R. Spencer from the
practice of law for six months and one day for violations of Utah
Rules of Professional Conduct 1.5(a), 1.8(e), and 8.4(c). More than
one year later, Spencer moved the district court to partially set aside
its decision because, he alleged, counsel for the Office of Professional
Conduct had committed fraud on the court when she knowingly
made false statements, elicited false testimony from a witness, and
failed to notify the district court of controlling case law contrary to
her position. The district court denied Spencer’s motion as untimely,
reasoning that Spencer had failed to adequately explain the year-
long delay in bringing his motion.

2 Spencer claims the district court erred when it found that he
had unduly delayed bringing his motion. But Spencer has failed to
marshal the evidence that supported the district court’s decision, and
he has also failed to directly challenge the district court’s reasoning.
Spencer has thus failed to meet his burden of persuasion on appeal.
We affirm.

BACKGROUND

43 The Office of Professional Conduct (OPC) filed a complaint
against Spencer in district court, alleging twelve violations of the
Utah Rules of Professional Conduct (Disciplinary Action).1 After a
three-day trial, the district court determined that Spencer had
violated the Rules and entered its Ruling and Order Regarding
Sanctions suspending Spencer from the practice of law for six
months and one day (Ruling and Order).?

44 More than one year after the district court’s amended Ruling
and Order, and more than eight months after Spencer had finished

1 The OPC subsequently amended its complaint to include an
additional violation based on Spencer’s conduct before the court of
appeals. The OPC ultimately withdrew this allegation, and the
district court did not consider it.

2 The district court amended its Ruling and Order less than two
months later in response to the OPC’s rule 59(e) motion to fix two
“minor inaccuracies.” Those changes are not material to our
decision.
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Opinion of the Court

serving his suspension, Spencer moved to partially set aside the
district court’s amended Ruling and Order under Utah Rule of Civil
Procedure 60(b)(6).3 In his motion, Spencer asserted that the attorney
representing the OPC (OPC Counsel) had committed fraud on the
court —and violated the Utah Rules of Professional Conduct — during
the underlying Disciplinary Action in three ways.

{5 Spencer first argued that OPC Counsel had knowingly made
and offered false statements concerning Spencer’s connection to a
business named The Smart Way Financial, LLC (TSWF). During her
examination of Spencer, OPC Counsel asked Spencer if he was an
owner of TSWF. Spencer responded, “I don’t know.” OPC Counsel
then stated that she had searched the online Utah Department of
Commerce database and “found that [Spencer] wlas], in fact, ...
related to [TSWF].” Following her examination of Spencer, OPC
Counsel examined attorney Bradley Carr, whose testimony also tied
Spencer to TSWF. Spencer argued that OPC Counsel and Carr’s
statements were false—and that OPC Counsel knew it— because at
the time of the Disciplinary Action, Department of Commerce
records “clearly demonstrate[d] that [Spencer] had no interest in,
and no relationship to, [TSWF].”

{6 Spencer also argued that OPC Counsel “appear[ed] to have
knowingly elicited false testimony” from Carr on another topic.
Before the Disciplinary Action had been filed, Carr, on behalf of one
of Spencer’s former clients, had filed a lawsuit against Spencer that
claimed, among other things, malpractice and fraud (Malpractice
Action). In the Disciplinary Action, Carr testified that the fraud claim
was based on the propriety of the attorney fees Spencer had charged
his then-client. According to Spencer, Carr later contradicted this
testimony in the Malpractice Action. And Spencer wanted the
district court to determine which of Carr’s statements were false so
that “Jilf it [was] determined that [Carr] made false on-the-record
statement|s] during his testimony in [the Disciplinary Action], then

3 Rule 60(b) sets forth specific reasons for which a court may,
“[o]n motion and upon just terms, ... relieve a party or its legal
representative from a judgment, order, or proceeding.” UTAH R. Civ.
P. 60(b). Rule 60(b)(6) is the catch-all provision of rule 60; under it, a
court may grant relief for “any other reason that justifies relief.” Id.

R. 60(b)(6).
Spencer v. OPC
Opinion of the Court

[OPC Counsel’s elicitation of this testimony] may be considered a
further ‘fraud upon the court.”

7 Finally, Spencer argued that OPC Counsel had failed to
inform the district court of controlling case law contrary to her
position—namely, State v. Gordon, 886 P.2d 112 (Utah Ct. App. 1994).
In her closing arguments, OPC Counsel claimed that Spencer had
violated a specific Rule of Professional Conduct when he failed to
disclose “a very important fact” in a court proceeding. Spencer
argued that he wasn’t required to make that disclosure under Gordon
and that by failing to alert the court to that case, OPC Counsel had
committed fraud on the court.

48 As to the timeliness of his motion, Spencer claimed that he
had discovered the alleged fraud after the applicable time period set
forth in rule 60. And he argued that a footnote in State v. Boyden, 2019
UT 11, 441 P.3d 737, authorizes a court to address fraud on the court
under those circumstances.

{9 The OPC opposed Spencer’s motion. The OPC largely argued
that Spencer’s rule 60(b)(6) motion was meritless. The OPC also
argued that Spencer’s motion was untimely. As the OPC saw it,
Boyden was limited to its facts and did not exempt Spencer’s motion
from the relevant time restriction.

410 The district court agreed that Spencer had taken too long to
file his motion. The district court noted that rule 60(b)(6) motions
must be brought “within a reasonable time.” UTAH R. Civ. P. 60(c).
And Spencer’s rule 60(b)(6) motion, the district court concluded, was
untimely for two reasons. As to the first, the district court stated that,

[Spencer] ha[d] not provided any credible explanation
for his delay in bringing this motion, or any credible
explanation for why he could not have learned of the
bases for his motion before, during, or shortly after the
[disciplinary] trial. Indeed, by asserting that [OPC
Counsel] misrepresented the information that was
available through the Utah Department of Commerce
.. ., [Spencer] is implicitly admitting that he was able to
determine whether [OPC Counsel]’s representations
were correct [at the time the representations were
made]. Further, [Spencer] fails to credibly explain why
he was unable—before, during, or shortly after the ...
trial—to challenge the veracity of [Carr]’s testimony, or
bring the controlling authority in question to the
Court's attention.
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Opinion of the Court

As to the second reason, the district court found that “the interest in
finality [in a ruling and order entered sixteen months prior]—
combined with [Spencer]’s lack of diligence—weigh[ed] heavily
against the timeliness of [Spencer}’s motion.”

STANDARD OF REVIEW

411 “[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.” In re Estate of Willey, 2016 UT 53, 7 5, 391 P.3d
171 (alterations in original) (citation omitted) (internal quotation
marks omitted).

ANALYSIS

I. SPENCER HAS FAILED TO MEET HIS BURDEN OF
PERSUASION ON APPEAL

412 Spencer argues that the district court erred when it denied
his rule 60(b)(6) motion as untimely. Spencer’s opening brief tracks,
almost verbatim, his original rule 60(b)(6) motion. Specifically,
Spencer’s brief argues that OPC Counsel committed fraud on the
court—and violated the Utah Rules of Professional Conduct — when
she (1) knowingly made false statements concerning Spencer’s
connection to TSWF, (2) knowingly elicited false testimony from
Carr concerning Spencer’s connection to TSWF and the nature of the
fraud allegation in the Malpractice Action, and (3) failed to disclose
controlling case law contrary to her position at closing arguments.
Spencer’s brief diverges from his rule 60(b)(6) motion, though not
substantively, when it “invites” us, under separate heading, “to
utilize [State v. Boyden, 2019 UT 11, 441 P.3d 737] to set forth
guidelines for cases involving fraud upon the court ... discovered
after the . . . [time periods] provided in Rule 60(b).”

413 The OPC argues, among other things, that Spencer has
failed to meet his burden of persuasion on appeal because he has
failed to marshal the evidence that supported the district court's
conclusion. The OPC also claims that Spencer’s brief merely
“recite|s] the same arguments in his appeal that he made in [his rule
60(b)(6) motion]” and “offers nothing by the way of analysis or
evidence to show how the [district] court abused its discretion in
denying his [m]Jotion.” We agree with the OPC.

q14 Rule 24 of the Utah Rules of Appellate Procedure
“prescribe[s] standards for the form, organization, and content of a
brief on appeal.” State v. Nielsen, 2014 UT 10, { 33, 326 P.3d 645. As to
Spencer v. OPC
Opinion of the Court

content, rule 24 requires an appellant’s brief to “explain, with
reasoned analysis supported by citations to legal authority and the
record, why [it] should prevail on appeal.” UTAH R. App. P. 24(a)(8).
An appellant “will almost certainly fail to carry its burden of
persuasion on appeal if it fails to marshal and respond to evidence or
authority that could sustain the decision under review.” In re
Discipline of LaJeunesse, 2018 UT 6, § 28, 416 P.3d 1122 (citation
omitted) (internal quotation marks omitted).

915 We addressed the marshaling requirement in LaJeunesse.
There, the OPC appealed the district court’s decision to dismiss its
complaint against attorney Richard LaJeunesse. Id. 4 21-22.
Although we ultimately affirmed the district court on the merits, id.
{ 48, we recognized that we could have affirmed solely on the OPC’s
“fail[ure] to carry its burden as the appellant,” id. 26. We
concluded that the OPC had failed to marshal the evidence because
its brief had “fail[ed] to append or recite the findings and
conclusions entered by the district court,” id. § 29, and “ignore[d]
crucial elements” of the district court’s ruling and analysis, id. {| 30-
31. And we said that when “the appellant fails to acknowledge the
lower court’s decision—or to identify specific grounds for
challenging it—we may affirm without reaching the merits of the
question presented.” Id. { 32.

4116 Spencer’s statement of the factual and _ procedural
background of the case, like the OPC’s in LaJeunesse, “makes only the
barest mention of the district court’s [decision].” Id. | 29. Spencer
devotes just a single sentence to the two-page order he now appeals.
And that sentence merely informs us that the district court denied
his rule 60(b)(6) motion. He simply makes no attempt to address the
facts that the district court relied on to conclude that his motion was
untimely.

417 The argument section of Spencer’s brief fares no better. The
great bulk of Spencer’s argument is dedicated to rehashing the
merits of his rule 60(b)(6) motion. Only three sentences are given to
the district court’s actual decision:

[T]he Trial Court improperly concluded that
[Spencer]’s Rule 60(b)(6) Motion was untimely, as it
was not until ... Carr made statements ... in the
[Malpractice Action] ... that [Spencer] learned that the
testimony provided by [Carr] in the underlying
[Disciplinary Action] was false and/or misleading. It
was the realization that [Carr] provided false and/or
Cite as: 2022 UT 28
Opinion of the Court

misleading testimony in the underlying [Disciplinary
Action] that caused [Spencer] to review the
documents—available from the Utah Department of
Commerce —in the context of [Carr]’s testimony. From
these documents, [Spencer] came to understand that
[OPC Counsel] had made false statements in the
[Disciplinary Action].

418 These three sentences ignore “crucial elements of [the
district court]’s ruling.” See LaJeunesse, 2018 UT 6, § 30. Specifically,
Spencer’s brief does not address the district court’s observation that
“py asserting that [OPC Counsel] misrepresented the information
that was available through the Utah Department of Commerce in
[the Disciplinary Action], [Spencer] is implicitly admitting that he
was able to determine whether [OPC Counsel]’s representations
were correct [at the time they were made].”4 Nor does it address the
district court’s assertion that Spencer has “fail[ed] to credibly explain
why he was unable—before, during, or shortly after the
[Disciplinary Action]—to challenge the veracity of ([Carr]’s
testimony,” particularly when Spencer had access to the complaint
Carr filed in the Malpractice Action at the time Carr testified in the
Disciplinary Action, or why he was unable to “bring the controlling
authority in question to the [district court]’s attention.” Spencer
cannot meet his burden of demonstrating that the district court erred
without addressing these crucial aspects of the district court’s ruling.

419 Instead of addressing the district court’s analysis, Spencer
argues that his motion is timely under the logic of a footnote in State
v. Boyden, 2019 UT 11, § 37 n.8. As Spencer sees it, Boyden grants a
party leave to file a rule 60(b)(6) motion alleging fraud on the court
outside of the time constraints rule 60 establishes. In other words,
Spencer reads Boyden to provide a way around the time restrictions
applicable to a rule 60(b)(6) motion when that motion alleges fraud
on the court. But the footnote on which Spencer hangs his hat

4 Spencer made this admission explicit at oral argument. There he
admitted that “[he] knew [OPC Counsel’s statements] were false at
the time [of the Disciplinary Action],” and that his decision to file a
rule 60(b)(6) motion over a year after those statements were uttered
was simply “a judgment call” on his part. Oral Argument at 18:33,
19:09, Spencer v. OPC, 2022 UT 29 (No. 20210458), https://
www.utcourts.gov/opinions/streams/index.php?court=sup.
Spencer v. OPC
Opinion of the Court

addressed a very specific factual scenario and was not intended to be
a de facto rewrite of Utah Rule of Civil Procedure 60.

(20 In Boyden, the State filed a rule 60(b)(3) motion to vacate the
conviction of a defendant because the defendant had misrepresented
his identity. Id. 8. The district court denied the State’s motion,
concluding that it lacked jurisdiction, and even if it had it, the Post-
Conviction Remedies Act (PCRA) was the State’s “sole remedy.” Id.
{| 10. In reversing the district court, we concluded that “[t]he State
could seek relief under rule 60(b) because neither the PCRA nor any
other statute or rule govern[ed].” Id. ¢ 24. And the Utah Rules of
Civil Procedure — specifically, rule 60(b) —“fill[ed] the gaps.” Id. | 25.

21 We also dropped a footnote where we noted that the State’s
rule 60(b)(3) motion was timely, and we made clear that we did not
reach the question of whether the State could utilize rule 60(b)(3) had
it discovered the alleged fraud more than three months after the
entry of judgment. Id. 937 n.8. While we left that question
unanswered, we made two additional observations. First, we
explained that “rule 60 ‘does not limit the power of a court to
entertain an independent action to relieve a party from a judgment,
order or proceeding or to set aside a judgment for fraud upon the
court.” Id. (quoting UTAH R. Civ. P. 60(d)). We also stated that
“courts have inherent authority to set aside judgments obtained
through fraud on the court.” Id.

22 Spencer contends this footnote opened the door for a party
to raise fraud on the court claims at any time. This was not Boyden’s
intent. Boyden arose in a specific—and unique—context. The State
was attempting to correct a serious error in a criminal conviction
over the defendant’s objection. Yet neither the Rules of Criminal
Procedure nor the PCRA gave the State an avenue for relief. Using
the Rules of Civil Procedure as a gap-filler, we concluded that the
State could use Rule of Civil Procedure 60(b) to correct the error. The
State, moreover, had brought its rule 60(b)(3) motion within the
applicable ninety-day time limit imposed by rule 60(c). See UTAH R.
Civ. P. 60(c). But, recognizing that we were using a civil rule to gap-
fill the criminal rules, and further recognizing that filing an
independent action in a criminal context might raise double jeopardy
concerns,° we noted that the State would not have been without a

5 The Boyden footnote concluded with a string of citations to
various cases in other jurisdictions. Most of these cases deal with the
(continued . . .)
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Opinion of the Court

remedy had it discovered the fraud on the court after the ninety days
had expired. We did not mean to suggest, however, that rule 60(d)
could be routinely used to circumvent rule 60(c)’s other timelines.
Nor did we intend to suggest that a party for whom an independent
action might be a viable path to raise its claims could take advantage
of the observation that the State would not be without a remedy
when double jeopardy concerns prevent it from filing an
independent action. To the extent that others read the footnote the
way Spencer does here, we disavow that interpretation and stress
that the footnote must be read in the context in which it arose.

23 In any event, even if Boyden applied here, Spencer would
still need to address and attack the district court’s conclusion that his
motion was not brought within a reasonable time. See UTAH R. Clv.
P. 60(c) (requiring all rule 60(b) motions “be filed within a reasonable
time”). And as we explained above, Spencer has failed to do just
that. We affirm.

II. OPC COUNSEL’S ALLEGED VIOLATIONS OF THE
UTAH RULES OF PROFESSIONAL CONDUCT ARE
NOT PROPERLY BEFORE US

24 Spencer also argues that OPC Counsel’s conduct in the
underlying Disciplinary Action violated a number of the Utah Rules
of Professional Conduct. Specifically, Spencer contends that OPC
Counsel violated (1) rule 3.3(a)(1) when she knowingly made false
statements concerning his connection to TSWF, (2) rule 3.3(b) when
she knowingly elicited false testimony concerning his connection to
TSWF and the nature of the fraud allegation in the Malpractice
Action, and (3) rule 3.3(a)(2) when she failed to disclose controlling
case law contrary to her position at closing arguments.

925 The OPC argues that Spencer’s allegations against OPC
Counsel are inappropriately raised before this court. The OPC claims
“Tt]here is a procedure in place when there are allegations of
misconduct against an attorney,” and that Spencer stepped outside

ability of a court to modify or vacate a sentence impacted by a
defendant's fraud without courting double jeopardy. See United
States v. Bishop, 774 F.2d 771, 774-76 (7th Cir. 1985); Goene v. State,
577 So.2d 1306, 1309 (Fla. 1991); People v. Ryan, 640 N.Y.S.2d 978, 983
(Sup. Ct. 1996); State v. Foster, 484 N.W.2d 113, 116-17 (N.D. 1992).
Spencer v. OPC
Opinion of the Court

of that procedure when he appended his allegations against OPC
Counsel to his appeal. The OPC is right.

(26 “In attorney discipline cases, the power to sanction
attorneys is vested in this court by the Utah Constitution.” Long v.
Ethics & Discipline Comm. of the Utah Sup. Ct., 2011 UT 32, { 41, 256
P.3d 206; see also UTAH CONST. art. VIII, § 4 (“The Supreme Court by
rule shall govern the practice of law, including ... the conduct and
discipline of persons admitted to practice law.”). In line with this
power, we have created a set of rules governing the process by
which “any person may initiate a disciplinary proceeding against
any [l]Jawyer.” Sup. CT. R. PRO. PRAC. 11-530(a); see id. R. 11-501 to -
591.

(27 These rules allow a person to initiate a disciplinary
proceeding against an attorney for the OPC by filing a complaint
with the OPC. See id. R. 11-530(a)(1). Our Ethics and Discipline
Committee will then assign a screening panel to review the
complaint.6 Id. R. 11-542(f). After reviewing the complaint, the
screening panel chair will decide if the complaint merits dismissal.
Id. R. 11-542(f)(1). If the complaint is dismissed, “[t]he Complainant
may appeal the screening panel chair’s dismissal to the [chair of the
Ethics and Discipline Committee],” who will then “conduct a de
novo review of the file, and either affirm or reverse the dismissal.”
Id. R. 11-542(f)(3), (4). “If the screening panel chair determines not to
dismiss the Complaint, or the Committee chair reverses the dismissal
on appeal, the Committee chair must request that the Supreme Court
appoint a special counsel to... act as counsel for investigation ... of
the Complaint.” Id. R. 11-542(5). After the investigation is complete,
the special counsel will “notify the OPC of the results.” Id.

28 Spencer, it seems, has followed that process to its finish.
Indeed, the OPC claims—and Spencer does not dispute—that
“Spencer ... already submit[ted] a complaint relating to [OPC

6 The Ethics and Discipline Committee is comprised of attorneys
and members of the public. Ethics & Discipline Committee, UTAH
STATE BAR, https://www.utahbar.org/ethics-discipline-committee
(last visited Apr. 14, 2022). Committee members participate in
screening panels, which “review, investigate, and hear informal
complaints charging unethical and/or unprofessional conduct
against attorneys.” Id.

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Opinion of the Court

Counsel]’s conduct to the OPC and through a special prosecutor,
those allegations were dismissed.”

429 Our Rules do not permit Spencer to use the appeal of his
rule 60(b) motion as a vehicle to re-litigate his allegations against
OPC Counsel. Our Rules specify the process a complainant must
follow to lodge a complaint and to contest that complaint’s
dismissal. See id. R. 11-501 to -591. And while we do not foreclose the
ability of a complainant to argue that she should be able to use the
Utah Rules of Civil Procedure to augment that process in an
appropriate case, see UTAH R. CIv. P. 65B, we prohibit a complainant
from relying on an appeal of a related motion to subvert it.

III. FRAUD ON THE COURT CLAIMS

430 Spencer has not met his burden of persuasion on appeal,
and we affirm on that basis. But we believe it prudent to note a
misunderstanding underlying the district court’s ruling that went
unaddressed by the parties. We accordingly raise this issue sua
sponte to prevent the inadvertent creation of conflict in our rule 60
case law.

431 Spencer filed a motion for relief under paragraph (b)(6), a
catchall provision offering relief “for ... any other reason that
justifies relief.” UTAH R. Civ. P. 60(b)(6). But Spencer’s motion was
wholly based on his allegation that OPC Counsel had committed
fraud on the court. In In re Estate of Willey, we held that a party
“cannot seek relief under rule 60(b)(6) based on an allegation of
fraud on the court.”7 2016 UT 53, { 8, 391 P.3d 171.

(32 In Willey, a stockholder filed a rule 60(b) motion to set aside
two district court orders relating to the stockholder’s interests in a

7 Rule 60(b) of the Utah Rules of Civil Procedure allows a court,
“[o]n motion and upon just terms,” to “relieve a party or its legal
representative from a judgment, order, or proceeding” for the
reasons enumerated in paragraphs (b)(1) through (6). Rule 60(b)
motions “must be filed within a reasonable time,” and, if based on
paragraphs (b)(1) through (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.” UTAH R. Clv. P. 60(c). Due to “these
differing times,” it is important that “we ... determine under what
paragraphs [a party]’s reasons for relief fall.” In re Estate of Willey,
2016 UT 53, J 7, 391 P.3d 171.

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Opinion of the Court

business. Id. { 1. The stockholder claimed relief under paragraphs
(b)(4) and (6) of rule 60. Id. { 7. While the stockholder made several
arguments that rightly invoked paragraph (b)(4), “[t]he only other
basis upon which [he] sought relief was fraud on the court.” Id. 8.
The Willey court concluded that the stockholder was unable to seek
relief from fraud on the court under paragraph (b)(6). Id. We
explained that,

[A] motion seeking relief from a judgment based upon
an allegation of fraud on the court necessarily falls
under paragraph (b)(3), not paragraph (b)(6).

Under the plain language of rule 60, a party seeking to
be relieved from a judgment or order based upon an
allegation of fraud on the court must do so under
paragraph (b)(3). Motions under paragraph (b)(6), on
the other hand, must be based on a reason other than
those listed in paragraphs (b)(1) through (5).

Id. 8-9 (citing UTAH R. Civ. P. 60(b)). In other words, Willey
instructed courts to classify a rule 60(b) motion—and assess its
timeliness — by its content, not its caption. See id. 10 (classifying the
stockholder’s rule 60(b) motion into the proper subsections, (b)(3)
and (4), and “proceed[ing] to determine if [he] timely filed his
motion” under those subsections).

433 Under Willey, therefore, the district court should have
classified Spencer’s rule 60(b)(6) motion as a rule 60(b)(3) motion and
assessed its timeliness accordingly. But this does not change the
outcome of the case because even if the district court had properly
classified Spencer’s rule 60(b) motion, it would have reached the
same conclusion —Spencer’s motion was untimely.

[34 All rule 60(b) motions “must be filed within a reasonable
time.” UTAH R. Civ. P. 60(c). Rule 60(b)(3) motions, moreover, “must
be filed ... not more than 90 days after entry of the judgment or
order.” Id. “The language of the rule is clear; a party must file a rule
60(b) motion within a reasonable time, which is within ninety days
after a judgment or order is entered, if the motion is filed under
paragraph|] .. . (3).” Willey, 2016 UT 53, { 12 (footnote omitted).

435 Spencer filed his rule 60(b) motion more than one year after
the district court entered its final Ruling and Order. This is well past

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Opinion of the Court

the ninety-day limit rule 60(b) imposes. The district court thus
correctly denied Spencer’s motion as untimely. §

8 The parties have not questioned Willey, and it remains good
law. But as we reread Willey, we note that we seem to have
interpreted our rule 60 without acknowledging the line other courts
have drawn between “fraud of an adverse party” and “fraud on the
court” when interpreting similarly-worded rules. See, e.g., United
States v. Sierra Pac. Indus., Inc., 862 F.3d 1157, 1167-68 (9th Cir. 2017)
(emphasizing that “not all fraud is fraud on the court” (citation
omitted)); Torres v. Bella Vista Hosp., Inc., 914 F.3d 15, 19 (1st Cir.
2019) (defining fraud on the court as “fraud that seriously affects the
integrity of the normal process of adjudication, defile[s] the court
itself, and prevents the judicial machinery from performing its usual
function” (alteration in original) (citation omitted) (internal
quotation marks omitted)); Fernandez v. Fernandez, 358 P.3d 562, 566-
68 (Alaska 2015) (limiting fraud on the court to fraud that “involve[s]
far more than an injury to a single litigant” and “defiles the court
itself” (citations omitted)); see also 12 JAMES WM Moore, Moore’s
FEDERAL PRACTICE §§ 60.21[4], 60.43[1] (Matthew Bender 3d ed. 2021)
(addressing the difference between fraud by an opposing party and
fraud on the court). As a result, our rule may be out of step with how
those jurisdictions offer relief from a judgment procured by fraud on
the court. See, e.g., McGee v. Gonyo, 140 A.3d 162, 165 (Vt. 2016) (“[A]
claim of fraud ‘upon the court’ is ‘governed by the catch-all
provision of Rule 60(b)(6).’” (citation omitted)); accord Carter v.
Anderson, 585 F.3d 1007, 1011 (6th Cir. 2009); Sierra Pac. Indus., Inc.,
862 F.3d at 1167 (acknowledging a party’s ability to seek relief from
the rendering court for fraud on the court under federal rule
60(d)(3)). We recognize that our deviation from those decisions may
reflect different policy concerns. Or it may merely be an unintended
consequence caused by the wording of our rule compared to that of
the federal rule. Compare UTAH R. Civ. P. 60(d), with FED. R. Civ. P.
60(d); see also United States v. Buck, 281 F.3d 1336, 1341-42 (10th Cir.
2002) (explaining that there are two “avenues for relief from fraud
upon the court” under federal rule 60(d): “[t]he first ... is an
independent action,” and “[t]he second ... is to invoke the inherent
power of a court to set aside its judgment if procured by fraud upon
the court”). In any event, the parties have not raised these issues, so
without proper briefing, we are not in a position to address them.
Rather than wait for another case to examine whether our rule 60

(continued . . .)

13
Spencer v. OPC
Opinion of the Court

CONCLUSION

36 Spencer claims the district court erred when it denied his
rule 60(b) motion as untimely. But Spencer does not adequately
address the district court’s decision in his brief and thus fails to meet
his burden of persuasion on appeal. We affirm the district court.

properly balances finality against the need to ensure that fraud on
the court can be effectively addressed, we refer the question to our
Advisory Committee on the Rules of Civil Procedure.

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