Pon v. Brewer

2020 UT App 99

THE UTAH COURT OF APPEALS

LI-HUANG PON,
Appellee,
v.
TODD VERNON BREWER,
Appellant.

Opinion
No. 20190542-CA
Filed June 25, 2020

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 194900270

Kelly Ann Booth, Attorney for Appellant
Gregory N. Ferbrache, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Todd Vernon Brewer appeals the district court’s entry of a
permanent protective order. We affirm.

BACKGROUND

¶2 In January 2019, Li-Huang Pon obtained a temporary
protective order against Brewer. The protective order was
entered by the district court on May 7, 2019, based on a domestic
relations commissioner’s recommendation after a hearing. On
May 21, 2019, pursuant to rule 108 of the Utah Rules of Civil
Procedure, Brewer filed an objection to the commissioner’s
recommendation that the protective order be entered, arguing
that insufficient evidence justified the entry of the protective
Pon v. Brewer

order and requesting an evidentiary hearing in the district court.
Pon filed a motion to strike Brewer’s objection as untimely,
pointing out that the objection was not filed within the ten-day
limit provided by the Utah Cohabitant Abuse Act (Act). See Utah
Code Ann. § 78B-7-107(1)(f) (LexisNexis Supp. 2019) (stating that
if a protective order hearing is held before a court commissioner,
any party dissatisfied with the commissioner’s recommendation
“may file an objection within 10 days of the entry of the
recommended order”). The district court determined that
Brewer’s objection was untimely, granted Pon’s motion to strike,
and entered the permanent protective order. Brewer appealed
the district court’s order.

¶3 On the same day he filed his notice of appeal, Brewer filed
a Request for Reconsideration and Motion to Set Aside Order
Pursuant to Rule 60(b), asking the district court to set aside the
protective order on the ground that he had fourteen days—
rather than ten—within which to object to the commissioner’s
recommendation. See Utah R. Civ. P. 108(a) (“A recommendation
of a court commissioner is the order of the court until modified
by the court. A party may file a written objection to the
recommendation within 14 days after the recommendation is
made in open court or, if the court commissioner takes the
matter under advisement, within 14 days after the minute entry
of the recommendation is served.”). Specifically, Brewer
contended—for the first time—that Utah Code section 78B-7-
107(1)(f) is unconstitutional because it conflicts with rule 108(a)
of the Utah Rules of Civil Procedure and was not enacted by a
supermajority of the legislature with the intent to
amend procedural rules. See Utah Const. art. VIII, § 4 (“The
Supreme Court shall adopt rules of procedure and evidence to
be used in the courts of the state and shall by rule manage the
appellate process. The Legislature may amend the Rules of
Procedure and Evidence adopted by the Supreme Court upon a
vote of two-thirds of all members of both houses of

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Pon v. Brewer

the Legislature.”); see also Brown v. Cox, 2017 UT 3, ¶¶ 17, 20, 387
P.3d 1040 (stating that the Utah Constitution’s “plain language”
does not allow our legislature to “adopt rules of procedure and
evidence” but only to “amend[] the rules the supreme court
creates” and that any such amendment must be made “by
supermajority” and must “contain a reference to the rule to be
amended and a clear expression of the Legislature’s intent to
modify [the] rules”).

¶4 The district court denied Brewer’s rule 60(b) motion, and
Brewer did not thereafter amend his notice of appeal to include
the district court’s denial of that motion.

ISSUES AND STANDARD OF REVIEW

¶5 Brewer raises two issues on appeal. First, he contends
that Utah Code section 78B-7-107(1)(f) is unconstitutional
because it prescribes a procedural deadline in conflict with rule
108(a) of the Utah Rules of Civil Procedure and was not enacted
pursuant to state constitutional requirements for amending
procedural rules. Second, Brewer argues that the district court
erred when it applied the ten-day deadline set forth in the
statute instead of the fourteen-day deadline set forth in the rule
to determine that his objection to the commissioner’s
recommendation was untimely filed. “The interpretation and
constitutionality of a statute are questions of law that we review
for correctness.” Olguin v. Anderton, 2019 UT 73, ¶ 17, 456 P.3d
760 (quotation simplified). 1

1. Brewer also contends that because the conflict between the
statutory deadline and the rule 108(a) deadline was “apparent,
obvious, and unresolved,” the district court abused its discretion
in denying his objection to the commissioner’s recommendation.
(continued…)

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ANALYSIS

I. Constitutionality of the Statutory Deadline

¶6 Brewer timely appealed the district court’s order striking
his objection to the commissioner’s recommendation as untimely
and entering a permanent protective order. On the same day he
filed his appeal, he also filed a rule 60(b) motion to set aside the
order, see Utah R. Civ. P. 60(b), raising for the first time a
constitutional challenge to Utah Code section 78B-7-107(1)(f).
The district court later denied Brewer’s rule 60(b) motion. But
Brewer never amended his notice of appeal to include the
district court’s denial of his rule 60(b) motion, an oversight that
precludes our review of this constitutional issue.

¶7 The Utah Rules of Appellate Procedure provide that “[a]
notice of appeal filed after announcement or entry of judgment,
but before entry of an order disposing of [a rule 60(b) motion],
. . . is effective to appeal only from the underlying judgment.”
Utah R. App. P. 4(b)(2). “To appeal from a final order disposing
of [a rule 60(b) motion], a party must file a notice of appeal or an
amended notice of appeal within the prescribed time measured
from the entry of the order.” Id. And if a party fails to file an
amended notice of appeal after denial of a rule 60(b) motion, an
appellate court lacks jurisdiction to consider issues raised in that
motion. See Dole v. Dole, 2018 UT App 195, ¶ 40, 437 P.3d 464
(noting that a party’s failure to amend a notice of appeal
pursuant to the requirements of rule 4(b)(2) of the Utah Rules of
Appellate Procedure deprives a court of “jurisdiction to consider
[the party’s] arguments related to [a] post-trial motion”); see also
Dennett v. Ferber, 2013 UT App 209, ¶ 4, 309 P.3d 313 (per

(…continued)
We determine that Brewer’s briefing on this issue is inadequate
and therefore decline to address it.

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curiam) (stating that an appellate court lacks jurisdiction to
consider issues raised in a rule 60(b) motion where an individual
did not amend the notice of appeal or file a new notice of appeal
after denial of the motion).

¶8 Brewer’s notice of appeal challenged only the district
court’s dismissal of his objection and the court’s grant of the
permanent protective order, and Brewer raised the constitutional
challenge only in his rule 60(b) motion to set aside. Because
Brewer never amended his notice of appeal to incorporate the
district court’s denial of his rule 60(b) motion, the constitutional
challenge Brewer now raises lies outside the scope of this appeal,
and we lack the jurisdiction to consider it. Therefore, we must—
for purposes of the rest of our analysis—presume that section
78B-7-107(1)(f) of the Utah Code was constitutionally enacted.
See Salt Lake City v. Ohms, 881 P.2d 844, 847 (Utah 1994)
(“Statutes are presumed to be constitutional until the contrary is
clearly shown.” (quotation simplified)); accord Broadbent v.
Gibson, 140 P.2d 939, 943 (Utah 1943).

II. The District Court’s Reliance on the Statutory Deadline

¶9 In striking Brewer’s objection to the commissioner’s
recommendation that the protective order be permanently
entered, the district court determined that Brewer “did not file
his [o]bjection within the statutorily mandated 10 days, in
accordance with” Utah Code section 78B-7-107(1)(f). In addition,
the court acknowledged that “there may be an apparent conflict
with [r]ule 108,” but it ruled that “the more specific statute
determines this matter.” On appeal, Brewer argues that the court
erred in making this determination. We disagree.

¶10 Rule 108(a) of the Utah Rules of Civil Procedure provides
the general rule on filing deadlines for objections to
commissioner recommendations: “A party may file a written
objection to the recommendation within 14 days after the

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recommendation is made in open court or, if the court
commissioner takes the matter under advisement, within 14
days after the minute entry of the recommendation is served.”
Utah R. Civ. P. 108(a). In contrast, Utah Code section 78B-7-
107(1)(f) specifically addresses the filing deadline in the context
of protective order proceedings: “If the hearing on the petition
[for a protective order] is heard by a commissioner, either the
petitioner or respondent may file an objection within 10 days of
the entry of the recommended order . . . .” Utah Code Ann.
§ 78B-7-107(1)(f) (LexisNexis Supp. 2019).

¶11 Brewer’s assertion that the language of the rule governs in
this situation ignores the clear language of the Utah Rules of
Civil Procedure and the Act. The first of our rules of civil
procedure states that “[t]hese rules govern the procedure in the
courts of the state of Utah in all actions of a civil nature . . . and
in all statutory proceedings, except as governed by other rules
promulgated by this court or statutes enacted by the Legislature.”
Utah R. Civ. P. 1 (emphasis added). And the Act itself clarifies
that “[i]nsofar as the provisions of this [Act] are more specific
than the Utah Rules of Civil Procedure, regarding protective
orders, the provisions of this [Act] govern.” Utah Code Ann.
§ 78B-7-106(13) (LexisNexis Supp. 2019); see also State v.
Bridgewaters, 2020 UT 32, ¶¶ 24–29 (acknowledging that the Act
sets forth some unique procedures for service of process that are
specific to protective order proceedings and that differ from the
process outlined in the Utah Rules of Civil Procedure). 2

2. The Utah Supreme Court recently noted that the “Act contains
unique procedural rules that purport to supersede the Utah
Rules of Civil Procedure where applicable,” even though “the
legislature did not enact those procedural provisions in a joint
resolution that amended the corresponding rule of civil
procedure.” State v. Bridgewaters, 2020 UT 32, ¶ 24 n.9. Although
(continued…)

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¶12 Here, the more specific ten-day deadline set forth in the
Act controls, not the more general fourteen-day deadline set

(…continued)
the conflict between the rule and the statute may present
legitimate constitutional questions, as noted above, the
constitutionality of the Act is not properly before us in this case.
However, we share the supreme court’s concern that “litigants
and courts are faced with two sets of procedural rules running
on parallel tracks and are required to make judgment calls about
which rule should apply in a given circumstance” in protective
order hearings. Id. In Bridgewaters, the court noted that “the
legislature could increase clarity for the bar and the bench if it
were to enact rule changes through joint resolutions that
specifically amend the relevant rule of procedure.” Id. But here,
the adoption of the statute does not appear to “amend” a
preexisting rule. The statute was amended in 2001 to include the
ten-day deadline to file an objection to a commissioner’s
recommendation in a protective order proceeding, see Utah Code
Ann. § 30-6-4.3(1)(e) (Lexis Supp. 2001), and was later
renumbered as section 78B-7-107(1)(f), see id. (LexisNexis Supp.
2008). In 2009, the Utah Rules of Civil Procedure were amended
to include a ten-day limit to file an objection to a commissioner’s
recommendation. See Utah R. Civ. P. 101(k) (2009) (“A party may
object to the recommendation by filing an objection . . . within
ten days after the recommendation is made . . . .”). In 2012,
subdivision (k) was deleted, and a fourteen-day deadline was
added, presumably as part of the effort to revise all deadlines in
the rules to seven-day increments. See id. R. 108(a) (2012) (“A
party may file a written objection to the recommendation within
14 days after the recommendation is made . . . .”). The Supreme
Court’s Advisory Committee on the Rules of Civil Procedure
may wish to further examine the filing deadlines at issue in this
opinion to clarify the apparent conflict.

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forth in rule 108(a). Rule 108(a) establishes the general timeline
for a party to file an objection to a commissioner’s
recommendation. In contrast, section 78B-7-107(1)(f) focuses on a
particular aspect of domestic relations, namely, hearings on
protective orders to prevent cohabitant abuse. Thus, the statute
specifically addresses protective order proceedings under the
Act, including the deadline for filing objections to
recommendations made by domestic relations commissioners on
whether a temporary order should be permanently entered.
Because the statute sets out a “more specific” provision than “the
Utah Rules of Civil Procedure” with regard to protective orders,
the ten-day deadline of the Act governs. See Utah Code Ann.
§ 78B-7-106(13); see also Utah R. Civ. P. 1. Accordingly, assuming
the constitutionality of the statutory deadline found in the Act,
we perceive no error in the district court’s determination that the
more specific statute governed the time within which Brewer
had to object to the commissioner’s recommendation.

CONCLUSION

¶13 Because Brewer did not amend his notice of appeal to
include the denial of his rule 60(b) motion, we lack jurisdiction to
consider the constitutionality of Utah Code section 78B-7-
107(1)(f) in this case. Further, we see no error in the district
court’s determination that the more specific statutory deadline
governed the timing for Brewer to file his objection to the
commissioner’s recommendation regarding the protective order.

¶14 Affirmed.

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