Aspenbrook Homeowners v. Dahl

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 99
_________________________________________________________
THE UTAH COURT OF APPEALS
ASPENBROOK HOMEOWNERS ASSOCIATION,
Plaintiff and Appellee,
v.
JACK D. DAHL AND LORI E. DAHL,
Defendants and Appellants.
Memorandum Decision
No. 20130133-CA
Filed May 1, 2014
Third District Court, Silver Summit Department
The Honorable Ryan M. Harris
No. 100500166
Franklin Richard Brussow, Attorney
for Appellants
Ford G. Scalley and Bradley W. Madsen, Attorneys
for Appellee
SENIOR JUDGE PAMELA T. GREENWOOD authored this
Memorandum Decision, in which JUDGES GREGORY K. ORME and
JAMES Z. DAVIS concurred.1
GREENWOOD, Senior Judge:
¶1 Jack D. Dahl and Lori E. Dahl (the Dahls) appeal from the
district court’s denial of their motion to set aside a default
judgment. We affirm.
¶2 In early 2010, Aspenbrook Homeowners Association
(Aspenbrook) filed suit against the Dahls for breach of contract,

Aspenbrook Homeowners Ass’n v. Dahl
2. Rule 37(a) permits a party to move to compel disclosure and for
appropriate sanctions when an opposing party fails to make a
disclosure as required by rule 26(a). Utah R. Civ. P. 37(a) (2011).
Rule 37 was amended in 2011, after the filing of this case. Because
these amendments are generally effective only as to cases filed on
or after November 1, 2011, they are not applicable to this case. Hull
v. Wilcock (In re Estate of Wilcock), 2012 UT App 223, ¶ 36 n.5, 285
P.3d 815. Accordingly, we refer to the pre-amendment version of
rule 37 throughout this decision.
20130133-CA 2 2014 UT App 99
requesting foreclosure and an award of attorney fees. Aspenbrook
alleged that the Dahls owned a property within Aspenbrook
and failed to pay assessments and fees required under
Aspenbrook’s covenants, conditions, and restrictions. The Dahls
answered and asserted a counterclaim based on their allegations
that Aspenbrook’s failure to repair the Dahls’ roof resulted in
damages to them.
¶3 During the course of discovery, Aspenbrook served the
Dahls with a second set of interrogatories and requests for
production of documents in November 2011. The parties briefly
stayed discovery while they attempted to settle the case, but when
settlement negotiations failed, discovery resumed. At this point,
Aspenbrook’s counsel sent a letter to the Dahls’ counsel requesting
discovery responses within eight days and warned that
Aspenbrook would file a motion to compel if the Dahls did not
comply with the request. When the Dahls had not yet responded
to the November discovery requests sent nearly five months
earlier, Aspenbrook filed a motion to compel, pursuant to rule 37(a)
of the Utah Rules of Civil Procedure. Aspenbrook also moved for2
sanctions under rule 37(a)(4). The Dahls did not oppose the
motions.
¶4 On May 3, 2012, the district court granted Aspenbrook’s
motions. The court also ordered the Dahls to respond to
Aspenbrook’s discovery requests within ten business days. The
Dahls did not respond to or comply with this order. Consequently,
Aspenbrook filed a second motion for sanctions under rule 37(b)(2),

Aspenbrook Homeowners Ass’n v. Dahl
3. If a party fails to obey an order compelling discovery, the court
may “strike pleadings or parts thereof, . . . dismiss the action or
proceeding or any part thereof, or render judgment by default
against the disobedient party.” Utah R. Civ. P. 37(b)(2)(C) (2011)
(current version at id. R. 37(e)(2) (2013)).
4. Rule 12(f) provides,
Upon motion made by a party before responding to
a pleading or, if no responsive pleading is permitted
by these rules, upon motion made by a party within
twenty days after the service of the pleading, the
court may order stricken from any pleading any
(continued...)
20130133-CA 3 2014 UT App 99
requesting that the district court strike the Dahls’ answer and
counterclaim and enter default judgment in favor of Aspenbrook.3
On June 18, 2012, the Dahls responded by moving for an
enlargement of time to answer Aspenbrook’s second motion for
sanctions. In their motion, the Dahls asked for permission to file an
opposition by June 13, 2012. The motion had been mailed to
Aspenbrook on June 3, but it was not filed with the district court
until June 18, 2012. The Dahls never filed any opposition to
Aspenbrook’s motion for sanctions. The district court granted
Aspenbrook’s second motion for sanctions. The court struck the
Dahls’ answer and counterclaim and ruled that Aspenbrook would
be awarded a default judgment against the Dahls.
¶5 On August 3, 2012, the district court entered an amended
default judgment, which awarded Aspenbrook $43,775.85, post-
judgment interest, and attorney fees. The amended default
judgment also ordered the sale of the Dahls’ property to satisfy the
judgment. Three days later, Aspenbrook served notice of the
amended default judgment on the Dahls.
¶6 On August 16, 2012, the Dahls filed a motion requesting that
the district court “strike the amended default judgment . . .
and . . . Order of Sale.” In their supporting memorandum, the
Dahls indicated that the motion was filed pursuant to rule 12(f)4

Aspenbrook Homeowners Ass’n v. Dahl
4. (...continued)
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.
Utah R. Civ. P. 12(f). By its plain language, rule 12(f) pertains to
striking material from “any pleading,” as opposed to any judgment.
Id. (emphasis added).
5. Rule 55(c) permits a default judgment to be set aside in
accordance with rule 60(b). Utah R. Civ. P. 55(c).
6. At the beginning of the hearing on the motion to strike, counsel
for the Dahls informed the court that he had filed a motion to set
aside that same day. The district court stated that the motion to set
aside the default judgment would have to be considered at a later
date, after Aspenbrook had an opportunity to respond.
20130133-CA 4 2014 UT App 99
and stated their intention to later file a motion to set aside the
amended default judgment. Following briefing, the district court
heard oral argument on the Dahls’ motion on October 9, 2012. In
ruling on the Dahls’ motion, the district court construed it as a rule
60(b) motion, reasoning that the court “can’t strike a default
judgment without setting it aside.” See Utah R. Civ. P. 60(b)
(authorizing the court to relieve a party from a final judgment or
order and setting forth grounds for relief from judgment). Thus,
the district court treated the Dahls’ “motion to strike” as a motion
to set aside the August 3, 2012 amended default judgment under
rule 60(b). The district court then denied the Dahls’ motion because
it found no grounds for relief based on the Dahls’ failure to oppose,
or otherwise respond to, the motion to compel and the motions for
sanctions. The district court entered its written order on the
“motion to strike” on October 30, 2012.
¶7 On the same day as the hearing on the “motion to strike,”
the Dahls filed a motion to set aside the default judgment pursuant
to rules 55 and 60(b). In the motion to set aside, the Dahls argued5 6
that procedural violations rendered the amended default judgment
void and that good cause entitled them to relief from judgment. On
December 11, 2012, the district court denied the Dahls’ motion to
set aside the amended default judgment. The district court’s order

Aspenbrook Homeowners Ass’n v. Dahl
7. The October 30, 2012 order, as previously described, denied the
Dahls’ motion to strike, treating it as a rule 60(b) motion to set aside
the amended default judgment.
20130133-CA 5 2014 UT App 99
indicated that the Dahls’ motion to set aside raised “substantively
identical” arguments to those raised in their “motion to strike,”
which the court had earlier construed as a motion to set aside.
Because “all of the arguments raised by [the Dahls] in the Motion
[had] already been considered and rejected by the Court,” the
district court denied the Dahls’ motion and “implicit invitation to
reconsider decisions previously made.” The Dahls filed a notice of
appeal on January 9, 2013.
¶8 Aspenbrook subsequently filed a motion for summary
disposition with this court, asserting a lack of jurisdiction. We
determined that we lacked jurisdiction “to review any issues
concerning the August 3, 2012 judgment or the October 30, 2012
order[ ] because the Dahls failed to file timely notices of appeal7
after entry of these orders.” However, we concluded that we did
have jurisdiction to review the December 11, 2012 order denying
the Dahls’ motion to set aside the amended default judgment
“because that order is a final, appealable order and the Dahls
timely filed a notice of appeal after entry of it.” Accordingly, the
Dahls’ appeal from the December 11, 2012 order is properly before
us.
¶9 The Dahls’ appeal is limited to challenging the district
court’s December 11, 2012 order denying their motion to set aside
the amended default judgment. “A trial court has discretion in
determining whether a movant has shown [Rule 60(b) grounds],
and this Court will reverse the trial court’s ruling only when there
has been an abuse of discretion.” Franklin Covey Client Sales, Inc. v.
Melvin, 2000 UT App 110, ¶ 9, 2 P.3d 451 (alteration in original)
(citation and internal quotation marks omitted). “An appeal from
a rule 60(b) motion is narrow in scope and addresses only the
propriety of the denial or grant of relief from judgment, lest rule
60(b) motions become substitutes for untimely appeals.” AFCC Ltd.
v. Kahler, 2012 UT App 124, ¶ 2, 278 P.3d 1070 (per curiam) (citing
Franklin Covey, 2000 UT App 110, ¶ 19). “Therefore, a rule 60(b)

Aspenbrook Homeowners Ass’n v. Dahl
20130133-CA 6 2014 UT App 99
motion does not generally reach the merits of the underlying
judgment from which relief was sought or provide a basis for this
court to review the legal issues previously adjudicated by the
district court.” Id.
¶10 Generally, “a movant is entitled to have a default judgment
set aside under [rule] 60(b) [of the Utah Rules of Civil Procedure]
if (1) the motion is timely; (2) there is a basis for granting relief
under one of the subsections of 60(b); and (3) the movant has
alleged a meritorious defense.” Cadlerock Joint Venture II, LP v.
Envelope Packaging of Utah, Inc., 2011 UT App 98, ¶ 7, 251 P.3d 837
(alterations in original) (citation and internal quotation marks
omitted). However, “[i]t is unnecessary, and moreover
inappropriate, to even consider the issue of meritorious defense
unless the court is satisfied that a sufficient excuse [under rule
60(b)] has been shown.” Express Recovery Servs. v. Davis, 2012 UT
App 296, ¶ 4, 289 P.3d 606 (per curiam) (second alteration in
original) (citation and internal quotation marks omitted).
¶11 As to the first factor, the Dahls’ motion was timely. Rule
60(b) instructs that a motion to set aside a judgment “shall be made
within a reasonable time and for reasons [enumerated in
subsections] (1), (2), or (3), not more than 3 months after the
judgment, order, or proceeding was entered or taken.” Utah R. Civ.
P. 60(b). Here, the district court entered the amended default
judgment on August 3, 2012, and the Dahls filed their motion to set
aside the default judgment approximately two months later on
October 9, 2012. Accordingly, the Dahls filed their rule 60(b)
motion within the time period prescribed by rule 60(b).
¶12 As to the second factor, the Dahls contend that the district
court abused its discretion in determining that they failed to
establish grounds for relief from judgment. The Dahls cite only two
grounds under rule 60(b). Specifically, they cite rule 60(b)’s
provisions that “[o]n motion and upon such terms as are just, the
court may in the furtherance of justice relieve a party . . . from a
final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; . . . or

Aspenbrook Homeowners Ass’n v. Dahl
8. The Robinson case presented an unusual scenario where a party
presented a newly assigned judge with a proposed divorce decree
containing terms that “directly conflict[ed]” with the prior ruling
of a different district court judge. Robinson v. Baggett, 2011 UT App
250, ¶ 25, 263 P.3d 411. This court concluded that the case
presented sufficiently exceptional circumstances to justify equitable
relief and consideration of the appellant’s second rule 60(b) motion.
Id. ¶¶ 24–27.
20130133-CA 7 2014 UT App 99
(6) any other reason justifying relief from the operation of the
judgment.” Id.
¶13 The Dahls argue that the district court should have granted
their rule 60(b) motion because their tardiness in responding to
Aspenbrook’s discovery requests and to the motions for sanctions
was due to their reasonable reliance on a local court rule. They
contend that this reliance should have mitigated their culpability
and the level of sanctions imposed by the district court. The Dahls
further argue that the district court did not consider their argument
concerning the proportionality of default judgment as a discovery
sanction.
¶14 Under circumstances “[w]here a default judgment is entered
as a discovery sanction—as opposed to being entered as a result of
a defendant’s failure to answer a complaint—the sanctioned party
[will have] filed responsive pleadings, . . . appeared before the trial
court, and had an opportunity to argue against the sanction before
the trial court.” Fu v. Rhodes, 2013 UT App 120, ¶ 19, 304 P.3d 80
(second alteration and omission in original) (citation and internal
quotation marks omitted) (affirming a default judgment entered
against the defendants as a discovery sanction), cert. granted, 317
P.3d 432 (Utah 2013). “As a general rule, parties should allege all
known grounds for relief in one motion for relief from judgment
under rule 60(b).” Robinson v. Baggett, 2011 UT App 250, ¶ 23, 263
P.3d 411. As we explained in Amica Mutual Insurance Co. v.8
Schettler, 768 P.2d 950 (Utah Ct. App. 1989),
[t]here must be finality, a time when the case in the
trial court is really over and the loser must appeal or

Aspenbrook Homeowners Ass’n v. Dahl
9. Rule 54(c)(2) provides, “A judgment by default shall not be
different in kind from, or exceed in amount, that specifically
prayed for in the demand for judgment.” Utah R. Civ. P. 54(c)(2).
20130133-CA 8 2014 UT App 99
give up. Successive post-judgment motions interfere
with that policy. And justice is not served by
permitting the losing party to string out his attack on
a judgment over a period of months, one argument
at a time, or to make the first motion a rehearsal for
the real thing the next month.
Id. at 969 (citation and internal quotation marks omitted). Indeed,
“generally, [a] party may not file repeated [rule 60(b)] motions until
he either offers a meritorious ground for relief or exhausts himself
and the trial court in an effort to do so.” Robinson, 2011 UT App
250, ¶ 23 (alterations in original) (citation and internal quotation
marks omitted). In Amica Mutual, we concluded that the
defendant’s second rule 60(b) motion was barred. 768 P.2d at 969.
We reasoned that the ground the defendant asserted in his second
rule 60(b) motion “was available . . . at the time he filed his first
60(b) motion and with due diligence could have been included in
the original motion,” which was also based on the same argument.
Id.
¶15 In this case, the district court did not exceed its discretion in
determining that the Dahls did not set forth a ground for relief
under rule 60(b). In particular, the district court reasoned that the
Dahls’ second rule 60(b) motion “set[] forth and expand[ed] upon
the same arguments raised (and rejected) in the ‘Motion to Strike,’”
including the arguments that Aspenbrook had failed to comply
with a local court rule and that relief should be afforded to the
Dahls pursuant to rule 54(c)(2). Because the district court had9
already ruled on and rejected these same arguments following
briefing and oral argument on the Dahls’ “motion to
strike”—which the court construed as a rule 60(b) motion—the
court denied the Dahls’ motion to set aside the amended default
judgment and their “implicit invitation to reconsider decisions
previously made.” See generally Utah State Bar v. Rasmussen (In re
Discipline of Rasmussen), 2013 UT 14, ¶ 14, 299 P.3d 1050

Aspenbrook Homeowners Ass’n v. Dahl
10. The Dahls also complain that the district court ruled on their
motion to set aside the default judgment without first holding a
hearing on the motion. “The trial court is afforded great latitude in
determining whether a hearing will be held on non-dispositive
motions.” Stevens v. LaVerkin City, 2008 UT App 129, ¶ 28 n.6, 183
P.3d 1059 (citation and internal quotation marks omitted); see also
Utah R. Civ. P. 7(e) (“The court may hold a hearing on any
motion. . . . The court shall grant a request for a hearing on a
motion under Rule 56 or a motion that would dispose of the action
or any claim or defense in the action unless the court finds that the
motion . . . is frivolous or the issue has been authoritatively
decided.”). On such a motion, the district court “may hold a
hearing but is not required to do so.” See Stevens, 2008 UT App 129,
¶ 28 n.6 (citation and internal quotation marks omitted).
Accordingly, the district court did not exceed its discretion in
(continued...)
20130133-CA 9 2014 UT App 99
(“Nothing . . . prohibits district courts from entertaining, under rule
60(b), a filing not captioned as such.”). We are not persuaded that
the district court exceeded its discretion in that regard, and we do
not view this case as presenting exceptional circumstances
justifying relief. Moreover, even if we accepted both the Dahls’
claim that the district court abused its discretion in concluding that
the Dahls’ second rule 60(b) motion raised issues identical to those
raised in their “motion to strike,” i.e., their first rule 60(b) motion,
and their claim that the district court did not consider their
argument regarding the proportionality of the sanctions, the Dahls
should have raised that argument in their first 60(b) motion
because it was available at the time the Dahls filed their “motion to
strike.” See Robinson, 2011 UT App 250, ¶ 23; Amica Mut., 768 P.2d
at 969.
¶16 As to the third factor, we do not consider whether the Dahls
proffered a meritorious defense because we are not satisfied that
the Dahls have demonstrated a ground for relief under rule 60(b).
See Express Recovery Servs. v. Davis, 2012 UT App 296, ¶ 4, 289 P.3d
606 (per curiam). We therefore affirm the district court’s denial of
the Dahls’ rule 60(b) motion.10

Aspenbrook Homeowners Ass’n v. Dahl
10. (...continued)
ruling on the Dahls’ motion to set aside the judgment without
holding the requested hearing.
20130133-CA 10 2014 UT App 99
¶17 Aspenbrook requests its attorney fees incurred on appeal.
“[W]hen a party who received attorney fees below prevails on
appeal, the party is also entitled to fees reasonably incurred on
appeal.” Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998)
(citation and internal quotation marks omitted). Although the
order from which the Dahls appeal, the December 11, 2012 order,
does not address attorney fees, the district court awarded
Aspenbrook its attorney fees in the amended default judgment and
the October 30, 2012 order denying the Dahls’ first rule 60(b)
motion. Because Aspenbrook has also prevailed on appeal, we
award Aspenbrook attorney fees reasonably incurred on appeal.
¶18 In summary, we conclude that the district court did not
exceed its discretion in determining that the Dahls failed to
establish a ground for relief under rule 60(b). The Dahls raised
arguments that the district court had already rejected, and the
argument in their second rule 60(b) motion that the discovery
sanction was excessive could have been raised in the first motion.
Accordingly, we affirm the district court’s order denying the Dahls’
second motion to set aside the amended default judgment, and we
remand to the district court for a determination of the amount of
Aspenbrook’s attorney fees reasonably incurred on appeal.