Jones v. Layton/Okland

2009 UT 39
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Marcia Kay Neil Jones and 	No. 20070813
Victor Kent Jones, joint
personal representatives of
the Estate of Llewellyn Stone
Jones, for themselves and the
other heirs of Llewellyn
Stone Jones,
Plaintiffs and Appellants,
v.
Layton/Okland, Southern Steel
Company, Beneco Enterprises,
Inc., DMJM, GSL Electric, Team 	F I L E D
Mechanical, Inc., and Does 1-10,
Defendants and Appellee. 	July 14, 2009
---
Third District, Salt Lake
The Honorable Kate A. Toomey
No. 000905345
Attorneys: 	Rodney R. Parker, Frederick Mark Gedicks, Salt Lake
City, for appellants
Cory D. Memmott, H. Justin Hitt, Salt Lake City, for
appellee
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	The district court entered an order granting summary
judgment in favor of defendant Layton/Okland after plaintiff
Llewellyn Jones’s heirs (“Jones”) failed to timely oppose
Layton/Okland’s summary judgment motion. 	Jones moved to vacate
the summary judgment order, claiming, among other things,
excusable neglect pursuant to rule 60(b) of the Utah Rules of
Civil Procedure. 	The district court denied Jones’s motion, and
Jones appealed. 	We affirm the district court’s denial.

No. 20070813 	2
BACKGROUND
¶2 	In 1998, Llewellyn Jones fell to his death while
working on a construction project for which Layton/Okland was the
general contractor. 	Jones’s heirs filed a wrongful death action
against Layton/Okland and Southern Steel Company, the provider of
engineering services for the project.
¶3 	A stay order was imposed in 2001 and lifted in 2005.
In December 2006, Layton/Okland filed a motion for summary
judgment. 	The motion was served by mail on Jones’s counsel.
Jones’s counsel requested an extension of the deadline for filing
an opposition memorandum to the summary judgment motion, and
Layton/Okland’s counsel agreed to grant the extension.
¶4 	In January 2007, after the deadline for the first
extension had expired, Jones’s counsel sent an email to
Layton/Okland’s counsel requesting a second extension until
February 2, 2007. 	Jones’s counsel and Layton/Okland’s counsel
then spoke by telephone, and, during the conversation, Jones’s
counsel claims that Layton/Okland’s counsel gave him an open-
ended extension of time in which to respond. 	Jones’s counsel
subsequently testified that, while his email had “request[ed] an
extension . . . to a time certain, . . . in our phone call, I
understood that counsel gave me an open-ended extension.”
Layton/Okland’s counsel denied ever giving Jones’s counsel an
open-ended extension.
¶5 	On February 22, 2007--twenty days after the second
extended filing deadline had expired--Layton/Okland filed a
request to submit its motion for summary judgment for decision
and requested that the motion be granted because it was
unopposed. 	Despite being served with a copy of the request,
Jones’s counsel did not respond, and the court granted
Layton/Okland’s motion for summary judgment on March 8, 2007,
noting that Jones had failed to respond and that the apparent
time for response had expired. 	The court requested
Layton/Okland’s counsel to prepare and submit the final order.
¶6 	Layton/Okland served Jones’s counsel with a proposed
order on March 12, 2007. 	Again, Jones did not respond. 	The
court signed and entered the order on April 2, 2007.
¶7 	On April 17, 2007--five weeks after the district court
entered its minute entry granting summary judgment and more than
two weeks after the district court entered the final summary
judgment order--Jones filed two memoranda with the court. 	The

1 Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986); see also
Stevens v. LaVerkin City, 2008 UT App 129, ¶ 17, 183 P.3d 1059.
3 	No. 20070813
first was a memorandum opposing Layton/Okland’s motion for
summary judgment. 	The second was a memorandum requesting the
court to vacate its grant of summary judgment to Layton/Okland
and consider the opposition memorandum timely on the ground of
excusable neglect. 	Jones argued that “there [was] reasonable
justification or excuse” for Jones’s failure to respond to the
summary judgment motion because Jones’s counsel “understood that
counsel gave him an open-ended extension” and because “he was
overburdened” based on the “loss of three associates at his
office.” 	Jones did not file the requisite motion supporting the
second memorandum until ten days later on April 27, 2007.
¶8 	The district court reviewed Jones’s motion and the
supporting memoranda, heard oral argument on the issue, and
determined that while Jones’s counsel “acted in good faith, his
omissions were neither a single act of carelessness, nor acts of
a minor nature. 	Counsel repeatedly failed to act as a prudent
lawyer would in the same circumstances, although it was within
his reasonable control.” 	The district court then denied Jones’s
motion, finding no excusable neglect. 	Jones timely appealed,
seeking a reversal of the court’s denial.
¶9 	We have jurisdiction pursuant to Utah Code section 78A-
3-102(3)(j) (2008).
STANDARD OF REVIEW
¶10 	We review a district court’s denial of a rule 60(b)
motion for relief from judgment for an abuse of discretion. 1
ANALYSIS
¶11 	Jones claims that the district court erred in denying
his motion to vacate the summary judgment order entered in favor
of Layton/Okland by applying the wrong test to determine
excusable neglect. 	While Jones now acknowledges that his counsel
was “unquestionably negligent” by failing to timely oppose
Layton/Okland’s motion, he argues that “the district court placed
so much emphasis on the degree of [his counsel’s] negligence that
it allowed his neglect to eclipse the doctrinal test for
excusability.”

2 942 P.2d 337 (Utah 1997).
3 See, e.g., Airkem Intermountain, Inc. v. Parker, 513 P.2d
429, 431 (Utah 1973) (“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.”); Peterson v.
Crosier, 81 P. 860, 862 (Utah 1905) (“[T]he moving party must
show that he has used due diligence to prepare and appear for
trial, and present his defense, and that he was prevented from
doing so because of some accident, misfortune, or combination of
circumstances over which he had no control. . . . 	If the party’s
negligence is without excuse or justification, he must abide the
consequences.”).
No. 20070813 	4
¶12 	Jones asserts that our prior decision in West v. Grand
County 2 contains Utah’s “doctrinal test” for excusable neglect
and that the district court abused its discretion by failing to
give adequate weight to considerations such as the severe
prejudice of the denial to Jones, the lack of prejudice to
Layton/Okland, and the relatively small length of the delay in
context of the prior five-year stay in this case.
¶13 	Jones also argues that any conception of excusable
neglect requiring a rule 60(b) movant to show “due diligence” is
circular. 	Neglect, Jones asserts, is the antithesis of
diligence. 	Thus, he contends that this court’s prior expositions
of excusable neglect as the exercise of due diligence under the
circumstances 3 “convert[] the original neglect for which excuse
is sought into res ipsa loquitur evidence of nonexcusability.”
Accordingly, Jones claims that “once neglect has been found,
courts are to invoke West’s four-part test and make an equitable
determination of excusability governed by an assessment of all of
the West factors.”
¶14 	Layton/Okland responds by arguing that the West factors
are inapposite in the context of a motion to set aside a summary
judgment. 	According to Layton/Okland, when a party seeks to have
a summary judgment set aside on the ground of excusable neglect,
the applicable test is whether the moving party used due
diligence and the neglect resulted from circumstances beyond his
control. 	Layton/Okland contends that, because Jones acknowledges
that his counsel was “unquestionably negligent” and because
nothing beyond his control prevented Jones’s counsel from
opposing Layton/Okland’s summary judgment motion, the district
court was correct in denying Jones’s rule 60(b) motion.
¶15 	Layton/Okland also argues that, even in the event that
West does provide the applicable test for excusable neglect in

4 West, 942 P.2d at 341.
5 Utah R. Civ. P. 60(b)(1) (2008).
6 Reisbeck v. HCA Health Servs. of Utah, Inc., 2000 UT 48, ¶
15, 2 P.3d 447 (“We reemphasize that the trial court’s inquiry is
fundamentally equitable in nature and entails broad
discretion.”); E.g., West v. Grand County, 942 P.2d 337, 339-40
(“[T]he question of whether any given set of facts constitutes
‘excusable neglect’ . . . is highly fact dependent. . . . 	For
that reason, trial courts must have broad discretion in granting
or denying such motions.”).
7 Reisbeck, 2000 UT 48, ¶ 15.
5 	No. 20070813
this case, the district court adequately balanced the relevant
considerations and therefore did not abuse its discretion.
Referencing our statement from West that none of the factors set
out in that case are dispositive, but “are helpful in determining
the equities of whether a finding of excusable neglect is
warranted,” 4 Layton/Okland asserts that the district court
“carefully and judiciously exercised its broad discretion in
denying” Jones’s 60(b) motion.
¶16 	We begin our analysis by addressing the parties’
arguments regarding the appropriate test for determining whether
a judgment should be set aside for excusable neglect. 	We then
examine whether, in light of the correct test, the district court
abused its discretion in denying Jones’s motion.
I. 	IN DECIDING WHETHER TO SET ASIDE A JUDGMENT FOR EXCUSABLE
NEGLECT UNDER RULE 60(b), A DISTRICT COURT HAS BROAD DISCRETION
TO CONSIDER AND BALANCE ALL RELEVANT FACTORS IN DETERMINING
WHETHER A PARTY HAS EXERCISED SUFFICIENT DILIGENCE TO RELIEVE IT
FROM THE FULL CONSEQUENCES OF ITS NEGLECT
¶17 	Rule 60(b) allows a district court to grant a party
relief from a final judgment entered because of “mistake,
inadvertence, surprise, or excusable neglect,” among other
reasons. 5 	We have repeatedly emphasized that district courts
have “broad discretion” in deciding whether to set aside a
judgment for excusable neglect under rule 60(b). 6 	This
discretion stems from the equitable nature of the excusable
neglect determination itself. 7 	By their nature, equitable
inquiries are designed to be flexible, taking into account all

8 See Hughes v. Cafferty, 2004 UT 22, ¶ 26, 89 P.3d 148
(“‘The distinguishing characteristics of legal remedies are their
uniformity, their unchangeableness or fixedness, their lack of
adaptation to circumstances, and the technical rules which govern
their use. . . . 	Equitable remedies, on the other hand, are
distinguished by their flexibility, their unlimited variety,
[and] their adaptability to circumstances . . . . 	The court of
equity has the power of devising its remedy and shaping it so as
to fit the changing circumstances of every case and the complex
relations of all the parties.’” (alterations in original)
(quoting 1 Spencer W. Symons, Pomeroy’s Equity Jurisprudence §
109 (5th ed. 1941))).
9 See Fisher v. Bybee, 2004 UT 92, ¶ 7, 104 P.3d 1198
(noting that rule 60(b) inquiries are “equitable in nature,
saturated with facts, and call upon judges to apply fundamental
principles of fairness”).
10 See, e.g., West, 942 P.2d at 339-40 (under rule 4(e));
Katz v. Pierce, 732 P.2d 92, 93 n.2 (Utah 1986) (under rule
60(b)).
11 942 P.2d at 341.
No. 20070813 	6
relevant factors in light of the particular circumstances. 8
Equitable inquiries defy distillation into any formal legal test;
instead, the question is always whether the particular relief
sought is justified under principles of fundamental fairness in
light of the particular facts. 9
¶18 	Accordingly, our recent excusable neglect cases,
whether arising under rule 60(b) of the Utah Rules of Civil
Procedure or rule 4(e) of the Utah Rules of Appellate Procedure,
have emphasized that there is no specific legal test for
excusable neglect. 10 	For example, in West, we set out four
factors that are generally relevant to the excusable neglect
inquiry, but emphasized that the determination was an equitable
one and that no one factor or set of factors was necessarily
dispositive. 11 	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.
¶19 	We recognize that this broad, equitable formulation of
the test is in some tension with statements from some of our
prior cases, such as Airkem Intermountain, Inc. v. Parker,
describing the test for excusable neglect as whether “the movant
. . . used due diligence and . . . was prevented from appearing

12 513 P.2d 429, 431 (Utah 1973) (emphasis in original); see
also Warren v. Dixon Ranch Co., 260 P.2d 741, 743 (Utah 1953)
(“Discretion must be exercised in furtherance of justice and the
court will incline toward granting relief in a doubtful case to
the end that the party may have a hearing. 	However, 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.” (internal citation omitted)); Peterson v. Crosier, 81
P. 860, 862 (Utah 1905) (“[T]he moving party must show that he
has used due diligence to prepare and appear for trial, and
present his defense, and that he was prevented from doing so
because of some accident, misfortune, or combination of
circumstances over which he had no control. 	If, however, the
record discloses mere carelessness, lack of attention, or
indifference to his rights on the part of applicant or his
counsel, he cannot expect an opportunity to redeem the past. 	If
the party’s negligence is without excuse or justification, he
must abide the consequences.” (internal quotation marks
omitted)).
7 	No. 20070813
by circumstances over which he had no control.” 12 	While the
Airkem test accurately describes one type of situation in which
excusable neglect exists, it does not cover the entire universe
of situations. 	To the extent that our Airkem line of cases
implied that only unavoidable, forced neglect was excusable, we
now make clear that is not the case. 	In order to obtain relief
under rule 60(b) on the ground of excusable neglect, a moving
party need not necessarily prove that it has been forced into
neglect by circumstances beyond its control.
¶20 	This does not mean, however, that a moving party is
entitled to relief on the ground of excusable neglect anytime
such relief might be equitable. 	We reaffirm the basic principle
upon which Airkem and similar decisions rested: 	that excusable
neglect requires some evidence of diligence in order to justify
relief. 	In other words, while the district court’s discretion to
grant relief under rule 60(b) for excusable neglect is broad, it
is not unlimited. 	A district court must exercise its broad
discretion in furtherance of the ultimate goal of the excusable
neglect inquiry: 	determining whether the moving party has been
sufficiently diligent that the consequences of its neglect may be
equitably excused.
¶21 	Contrary to Jones’s position, requiring a party to show
“sufficient diligence” in order to obtain relief for excusable
neglect does not “convert[] the original neglect for which excuse
is sought into res ispa loquitur evidence of nonexcusability.”
“Neglect” is not necessarily incompatible with “diligence.” 	To

13 Black’s Law Dictionary defines neglect as “[t]he omission
of proper attention to a person or thing, whether inadvertent,
negligent, or willful; the act or condition of disregarding.”
1061 (8th ed. 2004).
14 Id. (quoting J.W. Cecil Turner, Kenny’s Outlines of
Criminal Law 108 n.1 (16th ed. 1952)).
15 The district court’s equitable discretion extends to
fashioning the remedy as well as granting it. 	In other words, a
district court may, as part of exercising its equitable
discretion, in appropriate cases, condition the relief from
judgment on the moving party’s payment of attorney fees incurred
by the nonmoving party as a result of the moving party’s neglect
or satisfaction of any other equitable condition.
No. 20070813 	8
neglect something simply means to fail to do something one was
required to do. 13 	Black’s Law Dictionary distinguishes “neglect”
from “negligence” as follows:
“Neglect” is not the same thing as
“negligence.” 	In the present connection the
word “neglect” indicates, as a purely
objective fact, that a person has not done
that which it was his duty to do; it does not
indicate the reason for this failure.
“Negligence,” on the other hand, is a
subjective state of mind, and it indicates a
particular reason why the man has failed to
do his duty, namely because he has not kept
the performance of the duty in his mind as he
ought to have done. 	A man can “neglect” his
duty either intentionally or negligently. 14
¶22 	The primary situation in which “neglect” and
“diligence” can coexist occurs when events beyond a party’s
control prevent it from meeting its legal obligations. 	Yet this
is not the only situation in which a party can be both neglectful
and diligent. 	Even where a course of events does not make it
strictly impossible for a party to meet its legal obligations,
the party’s choice to attend to another matter, or even its
simple failure to attend to its legal obligation, may be
sufficiently diligent and responsible, in light of the attendant
circumstances, to justify excusing it from the full consequences
of its neglect. 15 	Perfect diligence is not required.
¶23 	But while a party need not be perfectly diligent in
order to obtain relief, some diligence is necessary. 	To grant

16 Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986).
9 	No. 20070813
relief on the ground of excusable neglect where a party has
exercised no diligence at all, but simply because other equitable
considerations might favor it, subverts the purpose of the
excusable neglect inquiry. 	Rule 60(b)’s use of “excusable” as a
modifier of “neglect” makes clear that mere neglect alone is an
insufficient justification for relief. 	The neglect must be
excusable upon some basis.
¶24 	It would be impermissible, for example, to grant relief
for excusable neglect under rule 60(b) solely because the moving
party would be severely prejudiced by a refusal to grant relief
while the nonmoving party would only suffer the inconvenience
incident to delay of the litigation. 	Although considerations of
prejudice and good faith are relevant to the excusable neglect
inquiry, to grant relief under rule 60(b) simply because there
might be some equitable basis for doing so, absent any diligence
by the moving party, would allow relief based on mere neglect
alone. 	We decline to read the word “excusable” out of the rule
in this manner.
¶25 	Therefore, we hold that, in deciding whether a party is
entitled to relief under rule 60(b) on the ground of excusable
neglect, a district court must determine whether the moving party
has exercised sufficient diligence that it would be equitable to
grant him relief from the judgment entered as a result of his
neglect. 	In making this determination, the district court is
free to consider all relevant factors and give each factor the
weight that it determines it deserves.
¶26 	Having set out the applicable rules governing
determinations of excusable neglect, we now turn to whether the
district court abused its discretion in denying Jones’s rule
60(b) motion in this case.
II. 	THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING
JONES’S MOTION BECAUSE JONES SHOWED NO DILIGENCE THAT WOULD
JUSTIFY HIS OWN NEGLECT
¶27 	We will not reverse a district court’s denial of a rule
60(b) motion unless the court has abused its discretion. 16 	A
district court abuses its discretion only when its “decision was
against the logic of the circumstances and so arbitrary and

17 5 Am. Jur. 2d Appellate Review § 623 (2007) (internal
citations omitted).
No. 20070813 	10
unreasonable as to shock one’s sense of justice . . . [or]
resulted from bias, prejudice, or malice.” 17
¶28 	Here we conclude that the district court did not abuse
its discretion in denying Jones’s motion because the record is
utterly devoid of any diligence by Jones that would justify his
neglect in opposing Layton/Okland’s summary judgment motion.
¶29 	While Jones did claim that he believed Layton/Okland
had given him an open-ended extension of time in which to respond
to its motion, this belief provides no basis upon which to excuse
Jones’s substantial delay after he was served with
Layton/Okland’s Notice to Submit for Decision on February 22,
2007. 	At that point, Jones was fully aware that his extension
was not open-ended, yet he failed to act in any way until April
17, 2007--almost two months after he knew that his extension of
time to respond had expired. 	This inexplicable two-month delay
in asserting his rights after becoming aware of his neglect is
inconsistent with even a minimum level of diligence under the
circumstances.
¶30 	There is simply no basis in the record for us to
conclude that the district court abused its discretion by
refusing to set aside Layton/Okland’s summary judgment for
excusable neglect. 	Accordingly, we uphold the district court’s
decision to deny Jones’s motion.
CONCLUSION
¶31 	Because Jones, in failing to oppose Layton/Okland’s
summary judgment motion, did not exercise even a minimal level of
diligence, we affirm the district court’s denial of his rule
60(b) motion to set aside the summary judgment.
---
¶32 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.