Dennett v. Ferber

2013 UT App 209
_________________________________________________________

THE UTAH COURT OF APPEALS

DONALD DENNETT AND WAKARA ELK VENTURES, LLC,
Plaintiffs, Counterclaim Defendants, and Appellants,
v.
STEWART FERBER,
Defendant, Counterclaim Plaintiff, and Appellee.

Per Curiam Decision
No. 20120413‐CA
Filed August 22, 2013

Fifth District, St. George Department
The Honorable James L. Shumate
No. 090502490

Blaine T. Hofeling, Attorney for Appellant Wakara
Elk Ventures, LLC
Donald Dennett, Appellant Pro Se
Russell J. Gallian and Matthew D. Ekins, Attorneys
for Appellee

Before JUDGES ORME, MCHUGH, and ROTH.

PER CURIAM:

¶1 Donald Dennett and Wakara Elk Ventures, LLC appeal an
April 17, 2012 order denying a motion to dismiss for lack of
jurisdiction and granting a motion for sanctions. Wakara
subsequently filed an amended notice of appeal seeking review of
the district court’s December 27, 2012 order denying Wakara and
Dennett’s motion for relief from various orders.

¶2 In the first instance, we address whether we have
jurisdiction to resolve the issues raised in Dennett’s and Wakara’s
briefs concerning the December 27, 2012 order denying their rule
60(b)(6) motion for relief from judgment. The parties originally
Dennett v. Ferber

filed timely, but separate, notices of appeal from the April 17, 2012
order denying a post‐judgment motion to dismiss for lack of
jurisdiction and granting a motion for sanctions. After
consolidating the two cases, we issued an order of partial summary
dismissal, dismissing some claims asserted by the parties over
which this court lacked jurisdiction. During this time frame,
Dennett and Wakara were pursuing a motion for relief from
judgment under rule 60(b) of the Utah Rules of Civil Procedure in
the district court. The district court issued an order on December
27, 2012, resolving the parties’ rule 60(b) motion. Subsequently,
Wakara filed an amended notice of appeal. Dennett did not file an
amended notice of appeal or a new notice of appeal after entry of
this order.

¶3 A ruling on a rule 60(b) motion culminates in a separate,
appealable order and, thus, may not be included in an existing
appeal because the issues raised in the appeal predated the ruling
on the rule 60(b) motion. See Amica Mut. Ins. Co. v. Schettler, 768
P.2d 950, 970 (Utah Ct. App. 1989). Accordingly, this court lacks
jurisdiction to resolve issues raised in a ruling on a rule 60(b)
motion unless a new notice of appeal has been filed. See Utah R.
App. P. 4(a) (requiring a notice of appeal to be filed within thirty
days of a final, appealable order). Here, Wakara should have filed
a new notice of appeal after the district court issued its order on the
rule 60(b) motion and then sought consolidation of its newly
opened appeal with this pre‐existing appeal. However, Wakara
adequately evidenced an intent to appeal those issues by filing an
amended notice of appeal, which was timely filed after entry of the
order. Accordingly, we have jurisdiction to resolve the issues raised
by Wakara from the order on the rule 60(b) motion. For the
convenience of the parties and the court, we then consolidated the
issues raised in the appeal of the rule 60(b) order into this pre‐
existing appeal.

¶4 However, we do not have jurisdiction over those same
issues raised by Dennett because Dennett did not file a notice of
appeal, or even an amended notice of appeal, after entry of the

20120413‐CA 2 2013 UT App 209
Dennett v. Ferber

order resolving the rule 60(b) motion. Accordingly, this court lacks
jurisdiction to resolve any issues raised by Dennett concerning the
rule 60(b) motion. See Amica Mut. Ins., 768 P.2d at 970. Thus, we
have jurisdiction over only the two issues Dennett raises in his
timely appeal from the district court’s April 17, 2012 order denying
a post‐judgment motion to dismiss and granting a motion for
sanctions.

¶5 Having clarified the scope of our jurisdiction, we begin our
analysis of the issues by first addressing Wakara’s and Dennett’s
claims relating to the April 17, 2012 order. Wakara and Dennett
both assert that the district court violated Article one, Section
eleven of the Utah Constitution, the Open Courts Clause, in its
April 17, 2012 order by imposing certain filing restrictions on them.
Wakara’s and Dennett’s arguments are inadequately briefed. See
generally Utah R. App. P. 24(a)(9) (“The argument shall contain the
contentions and reasons of the appellant with respect to the issues
presented, including the grounds for reviewing any issue not
preserved in the trial court, with citations to the authorities,
statutes, and parts of the record relied on.”). This court has
previously concluded that filing restrictions may be valid and
constitutional if the district court complies with certain safeguards
sufficient to provide the litigant in question with due process. See
Gardiner v. York, 2010 UT App 108, ¶ 25, 233 P.3d 500 (citing Florida
Bar v. Thompson, 979 So. 2d 917, 920 (Fla. 2008) (rejecting a litigant’s
argument that filing restrictions violated his constitutional right of
access to the courts where litigant was warned that such sanctions
would be imposed if he continued to submit inappropriate filings,
the procedure for filing future pleadings was explained, and the
court held a show cause hearing before the sanctions took effect)).
However, Wakara and Dennett have wholly failed to provide this
court with any analysis that would allow us to determine if the
district court complied with the requirements of Gardiner.
Accordingly, we do not address this issue. See Broderick v.
Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶ 11, 279 P.3d 391
(stating that the court has “discretion to not address an

20120413‐CA 3 2013 UT App 209
Dennett v. Ferber

inadequately briefed argument” (citation and internal quotation
marks omitted)).

¶6 Wakara and Dennett next assert that the district court
interfered with their right to appeal by stating in its April 17, 2012
order “[t]he time to appeal rulings made by the Court has expired.”
This issue, too, is inadequately briefed. Wakara and Dennett
provide no legal analysis for their assertions. Further, they fail to
allege how they were potentially harmed by any error when this
court has independently reviewed the record to determine the
scope of its jurisdiction. Accordingly, we decline to consider the
issue.

¶7 Wakara further asserts that the district court erred in
denying Wesley Dennett’s and Karolee Dennett’s motion to
dismiss. No notice of appeal has been filed on behalf of Wesley and
Karolee Dennett. Accordingly, Wesley and Karolee Dennett are not
parties to this appeal and any claims raised on their behalf are not
properly before this court. See Utah R. App. P. 3(b) (requiring
multiple parties to an action who desire to appeal a final order of
the district court to either file a joint notice of appeal or separate
notices of appeal). Similarly, Wakara raises the issue of whether the
district court erred in sanctioning Donald Dennett when it did not
sanction counsel for Wakara. However, Wakara can only represent
its own interests in this appeal, and it cannot raise issues on behalf
of Donald Dennett. See Provo City Corp. v. Thompson, 2004 UT 14,
¶ 9, 86 P.3d 735 (noting that “a party may generally assert only his
or her own rights and cannot raise the claims of third parties who
are not before the court”). Accordingly, the issue is not properly
before the court.1

1. Donald Dennett also attempts to raise this issue. As stated above,
Dennett did not file a notice of appeal from the 60(b) motion in
which he claims the issue was preserved. Accordingly, we lack
jurisdiction over the issue advanced by Dennett.

20120413‐CA 4 2013 UT App 209
Dennett v. Ferber

¶8 Wakara’s remaining claims of error concern the district
court’s denial of its motion for rule 60(b) relief. “We grant broad
discretion to [a] trial court’s rule 60(b) rulings because most are
equitable in nature, saturated with facts, and call upon judges to
apply fundamental principles of fairness that do not easily lend
themselves to appellate review.” Fisher v. Bybee, 2004 UT 92, ¶ 7,
104 P.3d 1198.

¶9 “The remedies provided by rule 60(b) should not be
understood to be ‘a substitute for appeal.’ Subsection (6),
particularly, ‘should be very cautiously and sparingly invoked by
the court only in unusual and exceptional circumstances.’” Kell v.
State, 2012 UT 25, ¶ 18, 285 P.3d 1133 (citations omitted).
Furthermore,

“an appeal or motion for new trial, rather than a
[Rule] 60(b) motion, is the proper avenue to redress
mistakes of law committed by the trial judge, as
distinguished from clerical mistakes caused by
inadvertence, especially where the [Rule] 60(b)
motion is filed after the time for appeal has
expired. . . . The policy behind such a reading of
[Rule] 60(b) is clear; parties should not be allowed to
escape the consequences of their failure to file a
timely appeal by addressing questions of law to the
trial court for reconsideration. That is the function of
appellate courts. If allowed to raise the same
questions in a [Rule] 60(b) motion that would have
been raised in an appeal from the merits, a party
would be able to effect an indirect extension of the
time for appeal by appealing the [Rule] 60(b) motion
within thirty days of its disposition.”

Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110, ¶ 21, 2
P.3d 451 (alterations in original) (quoting Parke–Chapley Constr. Co.
v. Cherrington, 865 F.2d 907, 915 (7th Cir. 1989)).

20120413‐CA 5 2013 UT App 209
Dennett v. Ferber

¶10 Wakara fails to demonstrate that the district court abused its
discretion in denying Wakara’s motion for relief from the judgment
under rule 60(b)(6). It has not explained why the alleged legal
errors raised were not raised in a direct appeal. Instead, Wakara
merely argues why the district court’s original decisions were
incorrect. Thus, Wakara was attempting to escape its previous
failure to file a direct appeal after entry of the original judgment in
2011. Because this is not the function of rule 60(b), the district court
did not abuse its discretion in denying the motion. See id.

¶11 Finally, Ferber seeks attorney fees incurred during the
course of this appeal. The judgment against Dennett and Wakara
includes an award of attorney fees based, in part, on the fact that
Ferber prevailed on his unlawful detainer claim. See Utah Code
Ann. § 78B‐6‐811(3) (LexisNexis 2012) (stating that a judgment for
unlawful detainer shall include reasonable attorney fees).
Furthermore, “[t]he general rule is that when a party who received
attorney fees below prevails on appeal, the party is also entitled to
fees reasonably incurred on appeal.” Robertson’s Marine, Inc. v. 14
Solutions, Inc., 2010 UT App 9, ¶ 8, 223 P.3d 1141. Accordingly,
because Ferber was awarded attorney fees by the district court and
prevailed on this appeal, he is entitled to reasonable attorney fees
incurred in this appeal. The amount of such fees shall be
determined by the district court.

¶12 Affirmed.

20120413‐CA 6 2013 UT App 209