Mathena v. Vanderhorst

2020 UT App 104
THE UTAH COURT OF APPEALS
C OURTNEY LYNN M ATHENA,
Appellant,
v.
JASON J. VANDERHORST,
Appellee.
Opinion
No. 20190156-CA
Filed July 2, 2020
Fourth District Court, Spanish Fork Department
The Honorable Jared Eldridge
No. 170300077
Ryan J. Schriever, Attorney for Appellant
A. Joseph Sano and Scarlet R. Smith, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and JILL M. POHLMAN
concurred.
MORTENSEN, Judge:
¶1 	After four notices were sent to Courtney Lynn Mathena’s
home over a span of about three-and-a-half months, without her
taking any action other than to send her sister to the dismissal
hearing to request a continuance, her lawsuit against Jason J.
Vanderhorst 	was 	dismissed 	with 	prejudice. 	Mathena
subsequently moved for relief from the judgment under rule
60(b)(1) of the Utah Rules of Civil Procedure, arguing excusable

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neglect.1 However, the district court concluded that her neglect
was inexcusable and denied her motion. We affirm.
BACKGROUND
¶2 	In 	May 	2017, 	Mathena 	filed 	a 	complaint 	against
Vanderhorst, alleging damages related to a car accident. For
about 	a 	year, 	the 	lawsuit 	proceeded 	through 	discovery.
However, 	on 	May 	30, 	2018, 	Mathena’s 	counsel 	withdrew
pursuant to rule 74 of the Utah Rules of Civil Procedure and
provided Mathena’s home address. The next day, Vanderhorst
filed a notice to appear or appoint counsel and served a copy of
the notice by mail to Mathena’s home. See Utah R. Civ. P. 74(c).
Mathena did not respond or appear.
¶3 	Almost two months later, on July 19, Vanderhorst filed a
motion to dismiss for failure to prosecute, which he served by
mail to Mathena’s home. Again, Mathena neither responded nor
appeared. 	Then, 	almost 	a 	month 	later, 	on 	August 	16,
Vanderhorst filed a request to submit the motion to dismiss for
decision and again mailed the request to Mathena’s home. Once
more, there was no response from Mathena.
1. Mathena did not appeal the order of dismissal but only the
denial 	of 	the 	rule 	60(b)(1) 	motion. 	Accordingly, 	only 	the
propriety of the denial of the rule 60(b) motion is before us, and
indeed, 	we 	lack 	jurisdiction 	to 	address 	the 	merits 	of 	the
underlying dismissal. See Stone v. Hidden Lakes Condo Ass’n, 2012
UT App 85, ¶ 5 n.2, 275 P.3d 283 (per curiam) (“Appellants
should note that this court lacks jurisdiction to consider issues
arising from the . . . final order as the filing of a rule 60(b) motion
does not toll the time to appeal issues from the underlying
judgment.”); Amica Mutual Ins. Co. v. Schettler, 768 P.2d 950, 969–
70 (Utah Ct. App. 1989).

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¶4 	Subsequently, on August 22, the district court issued a
notice 	of 	hearing 	on 	the 	motion 	to 	dismiss to 	the 	parties,
scheduling the hearing for September 18. The court mailed this
notice 	to 	Mathena’s 	home 	as 	well. 	Mathena 	never 	filed 	a
memorandum opposing the motion to dismiss. She also did not
show up to the hearing, but her sister did. Mathena’s sister asked
the court to reschedule the hearing, but the court did not
consider her request because she was not licensed to practice
law. See Board of Comm’rs of the Utah State Bar v. Petersen, 937 P.2d
1263, 	1268 	(Utah 	1997) 	(noting 	that 	appearing 	in 	court 	on
someone else’s behalf is the practice of law). On October 11, the
court entered an order dismissing the case with prejudice for
failure to prosecute. See Utah R. Civ. P. 41(b).
¶5 	On 	November 	12, 	through 	newly 	retained 	counsel,
Mathena moved for relief from judgment under rule 60(b)(1) of
the Utah Rules of Civil Procedure, arguing that her failure to
appear 	and 	respond 	to 	the 	motion 	to 	dismiss was due 	to
excusable neglect. Mathena attached a signed declaration to
support her motion, in which she stated, in relevant part:
2. I live with my mother and my mail sometimes
gets mixed up with her mail.
3. I recall receiving the Motion to Dismiss and the
Notice of the Hearing on the Motion to Dismiss,
but I do not recall receiving the Notice to Appear
or Appoint Counsel.
4. I received notice of the hearing on the Motion to
Dismiss two days before the hearing. I do not recall
when I received the Motion to Dismiss.
5. I tried to get off work for the court date, but my
boss would not grant me time off on such short
notice.

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. . . .
7. I asked my sister . . . if she could go to court for
me to let the judge know the reason I was not able
to be there so the hearing could be rescheduled.
¶6 	The district court denied Mathena’s motion. In doing so,
the court noted that Mathena “received several notices that her
case was in jeopardy of being dismissed and she failed to take
reasonable and prudent actions to prevent that outcome.” The
court then concluded that Mathena’s actions did not establish
excusable neglect because “she failed to take the reasonable
action of contacting the court to reschedule the hearing due to
her work conflict, contact an attorney to appear for her or even
to appear in person to explain herself.”
¶7 	Mathena appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 	There are two issues before this court. First, we review for
correctness whether the district court applied the appropriate
legal standard in denying Mathena’s rule 60(b) motion. See Utah
v. Boyden, 2019 UT 11, ¶¶ 21–22, 441 P.3d 737 (“We peel back the
abuse of discretion standard and look to make sure that the court
applied the correct law.” (cleaned up)); Rodriguez v. Kroger Co.,
2018 UT 25, ¶ 11, 422 P.3d 815 (noting that even when a district
court’s ultimate decision is reviewed for abuse of discretion,
“whether the district court applied the appropriate standard . . .
presents a legal question that we review for correctness”).
¶9 	Then, we consider whether the district court abused its
discretion in determining that Mathena’s actions did not amount
to excusable neglect. See Jones v. Layton/Okland, 2009 UT 39, ¶ 10,
214 P.3d 859 (“We review a district court’s denial of a rule 60(b)
motion for relief from judgment for an abuse of discretion.”).

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ANALYSIS
I. The District Court Did Not Apply an Incorrect Legal Standard.
¶10 	Rule 60(b) is one of several avenues for relief from a
district court’s rulings under the Utah Rules of Civil Procedure.
On a timely motion and “just terms,” a court may set aside “a
judgment, 	order, 	or 	proceeding” 	for 	one 	of 	the 	various
enumerated reasons, including “excusable neglect.” Utah R. Civ.
P. 60(b)(1). “District courts have broad discretion” in the rule
60(b) arena. Jones v. Layton/Okland, 2009 UT 39, ¶ 17, 214 P.3d 859
(cleaned up). “The equitable nature of the excusable neglect
determination requires that a district court be free to consider all
facts 	it 	deems 	relevant 	to 	its 	decision 	and 	weigh 	them
accordingly.” Id. ¶ 18. “To qualify for relief under rule 60(b)(1), a
party must show he has used due diligence. Due diligence is
established where the failure to act was the result of the neglect
one would expect from a reasonably prudent person under
similar circumstances.” Sewell v. Xpress Lube, 2013 UT 61, ¶ 29,
321 P.3d 1080 (cleaned up). “The ultimate goal of the excusable
neglect inquiry” is to determine “whether the moving party has
been sufficiently diligent that the consequences of its neglect
may be equitably excused.” Jones, 2009 UT 39, ¶ 20.
¶11 	Mathena 	contends 	that 	the 	district 	court 	applied 	the
wrong legal standard. Specifically, Mathena takes issue with a
quote the court included in its order from Peterson v. Crosier,
referenced in a footnote in Jones: “if the record discloses mere
carelessness, lack of attention, or indifference to his/her rights on
the part of the applicant, he/she cannot expect an opportunity to
redeem the past.” (Cleaned up.) See id. ¶ 19 n.12 (quoting
Peterson v. Crosier, 81 P. 860, 862 (Utah 1905)). Based on the
inclusion of this quote, Mathena claims that the district court
erroneously 	interpreted 	Jones 	because 	the 	Jones 	court 	cited
Peterson as an example of the cases requiring a showing of
circumstances beyond a party’s control in considering whether

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neglect is excusable—a requirement that the supreme court
abandoned.
¶12 	The district court did not misinterpret Jones. Although the
supreme court included Peterson to show that it was moving
away from the beyond-control test, see id. ¶ 19 & n.12 (“[A]
moving party need not necessarily prove that it has been forced
into neglect by circumstances beyond its control.”), the supreme
court did not depart from the portion of the Peterson quote that
the 	district 	court 	included 	in 	its 	order, 	see 	id. 	Indeed, 	the
supreme court expressly reaffirmed “the basic principle upon
which 	[the 	beyond-control] 	decisions 	rested: 	that 	excusable
neglect requires some evidence of diligence in order to justify
relief.” Id. ¶¶ 19–20. And Jones made clear that although a party
may prove excusable neglect based on circumstances beyond its
control, it need not do so for relief. Id. ¶ 19.2
2. We recognize that some inconsistency in the law may be
perceived. Although our supreme court in Jones owned that its
articulation 	of 	Utah’s 	rule 	60(b) 	excusable 	neglect 	standard
appeared to be “in some tension” with prior jurisprudence, Jones
served to clarify the law. Jones v. Layton/Okland, 2009 UT 39, ¶ 19,
214 P.3d 859. Regrettably, two subsequent cases muddied, rather
than crystalized, that clarification. Those two appellate opinions
mentioned that, to prove excusable neglect, a party must show
that it was inhibited by circumstances beyond its control. Judson
v. Wheeler RV Las Vegas, LLC, 2012 UT 6, ¶ 27, 270 P.3d 456 (“A
party seeking relief from a judgment under rule 60(b)(1) must
show that he has used due diligence and that he was prevented
from appearing by circumstances over which he had no control.”
(cleaned up)); Go Invest Wisely LLC v. Murphy, 2016 UT App 185,
¶ 21, 382 P.3d 631 (“The movant must show that he has used due
diligence 	and 	that 	he 	was 	prevented 	from 	appearing 	by
circumstances over which he had no control.” (cleaned up)). But
the dispute in Judson involved whether the party’s motion was
(continued…)

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¶13 	Here, the proposition the district court quoted related to
“carelessness, lack of attention, or indifference” directly falls
within 	the 	proper 	discretionary 	considerations 	the 	supreme
court reaffirmed and clarified in Jones. Indeed, the bottom line
remains that an individual seeking rule 60(b) relief must exhibit
sufficient diligence for relief to be granted, which would not
include carelessness, lack of attention, or indifference. Id. ¶ 20.
Thus, the quote itself is not an incorrect statement of the law.
¶14 	Moreover, the substance of the court’s order demonstrates
that it applied the correct legal standard. The court assessed the
relevant facts: Mathena’s notice, her opportunities to take action,
and her lack of effort to address the situation. And the court
(…continued)
really one under rule 60(b)(1) or 60(b)(4) and, consequently,
whether showing a meritorious defense was required. See Judson,
2012 UT 6, ¶ 13. The beyond-control language included in
paragraph 27 was guidance on an issue that the Judson court
expressly said was not before it—twice. See id. ¶¶ 26, 30. Thus,
the inclusion of the beyond-control language appears to be an
oversight included in its guidance, and we do not read it as
undercutting the work done in Jones, especially given its context
and lack of analysis to that end.
And Go Invest Wisely’s comment was an inconsequential
oversight as well, 	in 	which this court based 	its affirmance
primarily 	on 	the 	party’s 	unreasonable 	assumption 	that 	the
district court’s silence granted an extension to its request, not the
beyond-control test. See 2016 UT App 185, ¶¶ 21–23. Moreover,
“we are bound by vertical stare decisis to follow strictly the
decisions 	rendered 	by 	the 	Utah 	Supreme 	Court.” 	State 	v.
Sorbonne, 2020 UT App 48, ¶ 29, 462 P.3d 409 (cleaned up). Thus,
to the extent Go Invest Wisely conflicts with Jones, Jones prevails.
Plainly 	put, 	despite 	these 	two 	appellate 	opinions, 	Jones’s
clarification remains good law.

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never referred to the beyond-control test and never applied the
test in its analysis. Therefore, Mathena’s argument that the
district court erroneously applied Jones is unpersuasive.
¶15 	Mathena also posits that “equitable factors require that
any amount of diligence is sufficient” if the rule 60(b) motion is
timely. (Emphasis added.) But that simply is not the law. See
Sewell, 2013 UT 61, ¶ 29 (requiring due diligence or proof that
“the failure to act was the result of the neglect one would expect
from a reasonably prudent person under similar circumstances”
(cleaned up)); Asset Acceptance LLC v. Stocks, 2016 UT App 84,
¶ 19, 376 P.3d 322. Allowing any amount of diligence to be
sufficient as a matter of law would set too low of a standard,
render the excusable part of the inquiry nearly meaningless, and
subvert the purpose of a rule designed to balance the competing
principles of equity and finality. See Jones, 2009 UT 39, ¶ 17.
¶16 	In 	short, 	the 	district 	court 	applied 	the 	correct 	legal
standard in its determination of whether Mathena was entitled
to relief for excusable neglect under rule 60(b).
II. The District Court Did Not Abuse Its Discretion.
¶17 	Mathena received four notices at her home over a period
of about three-and-a-half months, yet she did not appear or
respond. 	Three 	of 	these 	notices 	expressly 	referred 	to 	the
dismissal of her case, making it clear that her case was in
jeopardy.
¶18 	The 	record 	reflects 	that 	Mathena 	took 	one 	of 	two
approaches. The first is that she neglected her mail altogether,
which does not constitute any diligence, let alone sufficient
diligence. Mini Spas, Inc. v. Industrial Comm’n of Utah, 733 P.2d
130, 132 (Utah 1987) (per curiam) (holding that the employer did
not exercise “due diligence” when “the only excuse for untimely
response was that the notice was inadvertently stuck together in
the employer’s drawer”); Asset Acceptance LLC, 2016 UT App 84,

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¶ 19 (“If Stocks failed to read the documents, then he did not
exercise the appropriate level of diligence required to excuse his
neglect, because his complete lack of action does not meet the
standard required . . . .”); White Cap Constr. Supply, Inc. v. Star
Mountain Constr., Inc., 2012 UT App 70, ¶ 6, 277 P.3d 649
(holding that when the defendants’ “regular practice [was] not to
read 	mail 	relating 	to 	legal 	matters unless 	it 	came 	through
personal service or registered mail,” they “exercised no diligence
at all”); Swallow v. Kennard, 2008 UT App 134, ¶ 24, 183 P.3d 1052
(explaining that purported “mail delivery problems” did not
excuse the party’s failure to respond in a timely fashion when
the party had received notice); Black’s Title, Inc. v. Utah State Ins.
Dep’t, 1999 UT App 330, ¶ 12, 991 P.2d 607 (“Because Black knew
of the Department’s investigation, due diligence required at a
minimum that Black have requested his mail during these visits
[to his business].”).
¶19 	More to the point, it is indisputable that Mathena was
aware of the ongoing legal dispute. After all, she initiated it.
Therefore, she should have either checked her mail or contacted
someone to “stay apprised of the proceedings.” See Bodell Constr.
Co. v. Robbins, 2014 UT App 203, ¶ 14, 334 P.3d 1004 (holding
that the party’s actions of not updating his address or staying
apprised 	of 	the 	litigation 	were 	not 	sufficiently 	diligent 	to
constitute excusable neglect); Volostnykh v. Duncan, 2001 UT App
26U, para. 4 (per curiam) (explaining that parties have “a duty to
inform the court of their location and keep themselves appri[s]ed
of ongoing court proceedings”).
¶20 	The second interpretation of the facts is that Mathena
received the three mailings regarding the potential dismissal of
her case but simply neglected them until the eleventh hour, at
which point her only action was to send her sister to the hearing.
This constitutes insufficient diligence. Asset Acceptance LLC, 2016
UT App 84, ¶ 20 (“[S]uch a mistake cannot be deemed an
innocent error or neglect worthy of judicial relief where it
involves hewing to a course of action in disregard of repeated

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warnings that serious harm may result.”). Indeed, “to take this
course, [Mathena] would have had to disregard the specific
perils the [notices] themselves warned of”: dismissal of her case.
See id. And as the district court noted, Mathena could have
contacted the district court, an attorney, or opposing counsel
long before the day of the hearing to address the potential
dismissal. Therefore, under either scenario, Mathena’s actions
did not exhibit sufficient diligence to establish excusable neglect.
See Jones, 2009 UT 39, ¶ 20.
¶21 	As 	to 	Mathena’s 	declaration, 	her 	statements 	and
argument depend on a significant inference: that she did not
receive any notice of a potential dismissal until two days before
the 	hearing. 	But 	she 	does 	not 	in 	fact 	say 	whether 	all 	the
documents were mixed with her mother’s mail or whether she
simply did not read her mail. She specifically states, “I received
notice of the hearing on the Motion to Dismiss two days before
the hearing. I do not recall when I received the Motion to
Dismiss.” The first statement is vague and could mean that she
merely did not read the notice until then. And the second
statement is even less helpful because it gives no definitive time
for when she received the motion to dismiss, which was mailed
to her about a month before the September 18 hearing. Without a
more specific and definite statement of not receiving the mailed
notices, 	we 	cannot 	bridge 	this 	inferential 	gap 	in 	favor 	of
Mathena to conclude that the district court exceeded its broad
discretion.
CONCLUSION
¶22 	For the foregoing reasons, we conclude that the district
court did not abuse its discretion when it applied the correct
legal standard related to rule 60(b) of the Utah Rules of Civil
Procedure. Accordingly, we affirm.