Crane-Jenkins v. Mikarose, LLC

2015 UT App 270

THE UTAH COURT OF APPEALS

MICHELLE CRANE-JENKINS,
Appellee,
v.
MIKAROSE, LLC AND MICHAELLA LAWSON,
Appellants.

Opinion
No. 20140940-CA
Filed November 12, 2015

Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 130401718

Andrew W. Stavros and Austin B. Egan, Attorneys
for Appellants
Robert C. Avery, Nathan E. Burdsal, and Hutch U.
Fale, Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and JOHN A. PEARCE concurred.

VOROS, Judge:

¶1 This appeal turns on whether a motion made under Utah
Rule of Civil Procedure 60(b) and filed 197 days after entry of a
default judgment was made within a reasonable time.
Notwithstanding the movants’ explanations for their delay, the
district court ruled the motion untimely. This ruling did not
exceed the district court’s broad discretion. We therefore affirm.

BACKGROUND

¶2 Michelle Crane-Jenkins sued her former employer,
Mikarose LLC, for unpaid overtime wages. She sought $1,000 in
Crane-Jenkins v. Mikarose

unpaid wages plus liquidated damages, interest, and attorney
fees. The complaint named as defendants Mikarose and its
owners, Michaella Lawson and Brad Lawson.

¶3 All three defendants were served on November 12, 2013.
Under rule 12(a) of the Utah Rules of Civil Procedure, they had
20 days to answer. See Utah R. Civ. P. 12(a) (2013)(amended
2014). Brad Lawson filed a pro se answer one day late, on
December 3, 2013. Neither Michaella Lawson nor Mikarose
answered the complaint at that point.

¶4 On December 9, 2013, the district court entered a default
judgment against all three defendants. On December 18, 2013,
Brad Lawson, again acting pro se, filed a motion to set aside or
amend the default judgment as to all defendants. Crane-Jenkins
opposed the motion as to Michaella Lawson and Mikarose. She
argued that neither had answered the complaint, because Brad
Lawson, a non-lawyer, could not represent them. Michaella
Lawson then filed a pro se answer on January 13, 2014. Mikarose
never answered.

¶5 On January 17, 2014, an attorney entered an appearance
as counsel for Michaella Lawson, Brad Lawson, and Mikarose.
He withdrew as counsel two weeks later. Two days after that—
and 58 days after the default judgment was entered—a second
attorney entered an appearance. This second attorney
represented all three defendants at a March 19, 2014, hearing on
Brad Lawson’s pro se motion to set aside the default judgment.
The second attorney argued that Brad Lawson’s pro se motion
should apply to all three defendants. The district court rejected
this argument.1 It set aside the default judgment against Brad
Lawson but ruled that Michaella Lawson and Mikarose would

1. Michaella Lawson and Mikarose do not challenge this ruling
on appeal.

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‚need to file an entirely separate rule 60(b) motion‛ within 10
days.2

¶6 Forty days later, the second attorney filed a rule 60(b)
motion on behalf of Michaella Lawson and Mikarose. The
motion asked the court to set aside the judgment under
subsections (1) and (6) of rule 60(b). The court set the matter for
hearing, but the second attorney did not appear at that hearing.
The district court denied the motion as untimely, concluding
that the motion was filed after the 90-day deadline for rule
60(b)(1) claims had expired. And of course the motion missed
the 10-day deadline imposed by the court at the March 19, 2014,
hearing.

¶7 Two weeks later, a third attorney entered an appearance
for Michaella Lawson and Mikarose. This attorney filed a second
rule 60(b) motion, this time under subsections (4) and (6) only.
He filed the motion 197 days after entry of the default judgment.
The district court denied the motion on the ground that it was
both untimely and barred by the law of the case. Michaella
Lawson and Mikarose appeal from this order.

ISSUES AND STANDARD OF REVIEW

¶8 Michaella Lawson and Mikarose raise three claims of
error on appeal. All concern the district court’s denial of their
second rule 60(b) motion. First, they contend that the district
court incorrectly ruled the motion untimely. Second, they
contend that ‚multiple bases for relief‛ exist under rule 60(b) to
set aside the default judgment. Finally, they contend that the
district court incorrectly ruled that the motion was barred by the
law of the case. Because we conclude that the district court did

2. The district court later dismissed Brad Lawson from the case.

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not abuse its discretion in denying the motion as untimely, we
need not reach the second and third claims.

¶9 A ‚district court has broad discretion in ruling on a
motion to set aside an order of 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.‛ Utah Res. Int’l, Inc. v. Mark
Techs. Corp., 2014 UT 60, ¶ 11, 342 P.3d 779 (alteration in original)
(citation and internal quotation marks omitted).

ANALYSIS

¶10 Utah Rule of Civil Procedure 60(b) provides relief from a
judgment or order for reasons including mistake, inadvertence,
excusable neglect, fraud, and ‚any other reason justifying relief
from the judgment.‛ Utah R. Civ. P. 60(b). ‚To set aside a
judgment pursuant to rule 60(b), the moving party ‘must show
that the judgment was entered against him through excusable
neglect (or any other reason specified in rule 60(b)),’ and ‘he
must also show that his motion to set aside the judgment was
timely, and that he has a meritorious defense to the action.’‛
Weber v. Mikarose, LLC, 2015 UT App 130, ¶ 12, 351 P.3d 121
(quoting Erickson v. Schenkers Int'l Forwarders, Inc., 882 P.2d 1147,
1148 (Utah 1994)).

¶11 Michaella Lawson and Mikarose contend that the district
court abused its discretion in ruling their second rule 60(b)
motion untimely. The district court concluded that the ‚six-and-
a-half months‛ Michaella Lawson and Mikarose ‚waited to file
their Second Rule 60(b) Motion was not a ‘reasonable time’ as
required by Rule 60(b)(4) and Rule 60(b)(6).‛3

3. Although the motion at issue relied only on subsections (4)
and (6) of rule 60(b), the district court noted incidentally that
(continued…)

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¶12 Michaella Lawson and Mikarose first contend that despite
the 197-day delay, they filed their second rule 60(b) motion
within a ‚reasonable time.‛ A rule 60(b) motion must ‚be made
within a reasonable time.‛ Utah R. Civ. P. 60(b). This standard
requires that a party ‚acted diligently once the basis for relief
became available, and that the delay in seeking relief did not
cause undue hardship to the opposing party.‛ Workman v. Nagle
Constr., Inc., 802 P.2d 749, 752 (Utah Ct. App. 1990) (citation and
internal quotation marks omitted). ‚Under rule 60(b), a
reasonable time ‘depends upon the facts of each case,
considering such factors as the interest in finality, the reason for
the delay, the practical ability of the litigant to learn earlier of the
grounds relied upon, and prejudice to other parties.’‛ Menzies v.
Galetka, 2006 UT 81, ¶ 65, 150 P.3d 480 (quoting Gillmor v. Wright,
850 P.2d 431, 435 (Utah 1993)).

¶13 The district court entered the default judgment on
December 9, 2013. Brad Lawson, a non-lawyer, filed his pro se
rule 60(b) motion nine days later, purporting to represent all
three defendants. Michaella Lawson later stated that she
believed that Brad Lawson’s motion protected her interests; it
follows that she was aware of the entry of the default judgment
and the filing of Brad Lawson’s motion. Through its owners
Brad and Michaella Lawson, Mikarose also had knowledge of
these facts.

(…continued)
Michaella Lawson and Mikarose also filed it ‚well beyond the 90
days allowed under subsections (1), (2), and (3) of Rule 60(b).‛
See Utah R. Civ. P. 60(b) (explaining that if a rule 60(b) motion is
made under subsections (1), (2), or (3), the motion must be made
‚not more than 90 days after the judgment, order, or proceeding
was entered or taken‛).

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¶14 Thirty-nine days after entry of the default judgment,
Michaella Lawson and Mikarose retained counsel. Fifty-eight
days after entry of the default judgment, their second attorney
entered an appearance. The record does not indicate the reason
for this 58-day delay. In any event, Michaella Lawson and
Mikarose continued to rely on Brad Lawson’s pro se motion.
When the district court determined that the pro se motion
applied only to Brad Lawson, it instructed Michaella Lawson
and Mikarose to ‚file an entirely separate rule 60(b) motion‛
within 10 days.

¶15 They did not do so. Forty days after the hearing on the
pro se motion, Michaella Lawson and Mikarose jointly filed their
first rule 60(b) motion through counsel. The record does not
indicate the reason for this 40-day delay. The district court
denied the motion as untimely under rule 60(b)(1)’s 90-day limit.
Michaella Lawson and Mikarose retained new counsel, who filed
the motion at issue here under rule 60(b)(4) and (6). That
attorney filed this motion 14 days after the denial of the rule
60(b)(1) motion and 197 days after entry of the default judgment.
The record does not indicate the reason for any of these delays.

¶16 Michaella Lawson and Mikarose argue on appeal that a
197-day delay ‚is not per se unreasonable as a matter of law.‛ In
support of their argument, they cite this court’s opinion in
Oseguera v. Farmers Insurance Exchange, 2003 UT App 46, 68 P.3d
1008. But whether the delay was ‚per se unreasonable as a
matter of law‛ misses the mark. The district court did not rule
that a 197-day delay was per se unreasonable, but that given the
facts of this case, Michaella Lawson and Mikarose did not file the
motion within a reasonable time. On appeal we assess whether
that ruling exceeded the district court’s discretion.

¶17 In Oseguera, we determined that, despite filing 121 days
after the district court entered a sua sponte judgment,
‚Oseguera’s rule 60(b) motion was made within a reasonable

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time.‛ Id. ¶ 11. However, in that case, the district court provided
Oseguera no notice that a judgment had been entered against her
and she had no reason to expect that a judgment would be
forthcoming. Id. After receiving notice more than three months
after the judgment, Oseguera demonstrated due diligence by
filing a good faith appeal within one month’s time and then a
rule 60(b) motion to set aside the judgment within seven weeks
of the final dismissal of that appeal. Id.

¶18 Unlike Oseguera, Michaella Lawson and Mikarose
received timely notice of the default judgment entered against
them. And unlike Oseguera, they had reason to expect a default
judgment would be forthcoming. Yet they did not file their
second rule 60(b) motion for 197 days. The district court did not
abuse its broad discretion in ruling the rule 60(b) motion
untimely under these circumstances.

¶19 Michaella Lawson and Mikarose also argue that their
delay in filing the second rule 60(b) motion is a result of the
‚gross negligence‛ of their second attorney. They cite Menzies v.
Galetka for the principle that ‚relief under 60(b)(6) may . . . be
sought where a lawyer’s performance is grossly negligent,‛ 2006
UT 81, ¶ 101, 150 P.3d 480, and that ‚a client should not be held
liable for the attorney’s actions where those actions are grossly
negligent,‛ id. ¶ 104. ‚When relief is sought on these grounds
under rule 60(b)(6), the client is seeking relief on the basis that
his or her attorney display[ed] neglect so gross that it is
inexcusable.‛ Id. ¶ 77 (alteration in original) (citation and
internal quotation marks omitted).

¶20 Menzies does not control this case. Michaella Lawson and
Mikarose rightly note that the supreme court held that Menzies
was ‚entitled to relief under rule 60(b)(6) due to *his counsel’s+
ineffective assistance of counsel and gross negligence.‛ Id. ¶ 61.
But the supreme court also later observed, ‚Our subsequent

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cases have essentially limited Menzies to its facts.‛ Honie v. State,
2014 UT 19, ¶ 91, 342 P.3d 182.4

¶21 The facts before us bear little resemblance to those in
Menzies. Unlike the $1,000 default judgment Michaella Lawson
and Mikarose were facing, Menzies was facing a death sentence.
See Menzies, 2006 UT 81, ¶ 4. In addition, Menzies timely filed his
rule 60(b) motion (though without the required memorandum)
within the (then three-month) time limit prescribed by the rule
and ‚within a reasonable time under the circumstances.‛ Id. ¶ 64.
Michaella Lawson and Mikarose filed their rule 60(b) motion 197
days after the court entered the default judgment. Menzies’s
counsel ‚virtually abandoned his client‛ and misled Menzies
about the procedural posture of the case, ‚the result being that
Menzies was not fully aware of *his attorney’s+ failures until

4. Only one non-capital case, Harrison v. Thurston, has applied
Menzies’ ‚gross negligence‛ standard. See 2011 UT App 231, 258
P.3d 665. There, two weeks before the defendant filed a motion
to dismiss for failure to prosecute, Harrison’s attorney was
‚suspended from the practice of law for unrelated conduct, his
law practice was essentially closed, and 500 or so case files
*including Harrison’s+ were transferred by court order to a third-
party trustee who was to return the files to [the attorney’s]
clients.‛ Id. ¶ 3. ‚Additionally, the record does not indicate
whether Harrison was even aware of [the] motion to dismiss
during the relevant time frame.‛ Id. ¶ 12. On appeal this court
determined that ‚the factual basis on which the court denied
Harrison’s motion was clearly erroneous and the denial an abuse
of discretion.‛ Id. ¶ 13. In light of the ‚unique facts and
circumstances of this case,‛ this court declined to impute to
Harrison her suspended attorney’s negligence. Id. ¶¶ 13, 12 n.10.
Finally, the court emphasized that its opinion addressed
subsection (1), not subsection (6), of rule 60(b). Id. ¶ 6 n.7.
Harrison does not control the present case.

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years after they occurred.‛ Id. ¶ 105. In contrast, the record here
says little concerning communications between counsel and
clients during the periods of delay. Michaella Lawson and
Mikarose’s second attorney appears to have misled them
concerning one contact with the court, but his conduct did not
compare to that of Menzies’s counsel. Menzies’s counsel ‚not
only failed to provide Menzies with any meaningful
representation, but in fact willfully disregarded nearly every
aspect of *his+ case.‛ Id. ¶ 24. Michaella Lawson and Mikarose
allege nothing similar here.5

¶22 In sum, the district court did not abuse its broad
discretion in concluding that Michaella Lawson and Mikarose’s
second rule 60(b) motion was untimely. While rule 60(b) requires
parties to file motions based on subsections (4) through (6) only
within a ‚reasonable time,‛ a court may determine that 197 days
exceeds the ‚reasonable time‛ requirement if the court finds that
the parties did not act diligently once the basis for relief became
available. Furthermore, while gross negligence by counsel may
serve as a basis for rule 60(b)(6) relief in rare instances—usually
involving capital cases—that principle has no application here.

CONCLUSION

¶23 The judgment of the district court is affirmed.

5. In addition, the supreme court ruled that Menzies’s counsel’s
gross negligence served as a substantive ground for relief under
rule 60(b), see Menzies v. Galetka, 2006 UT 81, ¶ 61, 150 P.3d 480,
not as justification for a late-filed rule 60(b) motion as Michaella
Lawson and Mikarose urge here, see id. ¶ 69.

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