Holyoak v. Morgan

2018 UT App 3
THE UTAH COURT OF APPEALS
M ARK C. HOLYOAK,
Appellee,
v.
M AX G. M ORGAN ,
Appellant.
Per Curiam Opinion
No. 20170374-CA
Filed January 5, 2018
Seventh District Court, Price Department
The Honorable Lyle R. Anderson
No. 170700011
John K. Johnson, Attorney for Appellant
Nathan E. Dorsey, Attorney for Appellee
Before JUDGES D AVID N. M ORTENSEN , JILL M. POHLMAN , and
R YAN M. HARRIS.
PER CURIAM:
¶1 	Appellant 	Max 	G. 	Morgan 	appeals the 	denial 	of 	his
motion to set aside a judgment under rule 60(b) of the Utah
Rules of 	Civil 	Procedure 	based 	upon 	a 	claim 	of 	excusable
neglect. We affirm.1
¶2 	On January 27, 2017, the district court issued a Temporary
Civil Stalking Injunction, which was served on Morgan on or
1. Although Morgan requested oral argument, we conclude that
oral argument in this case will not significantly aid the decisional
process. See Utah R. App. P. 29(a)(2) (“Oral argument will be
allowed in all cases in which the court determines that oral
argument will significantly aid the decisional process.”).

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about January 30, 2017. On February 15, 2017, Morgan filed a
request for an evidentiary hearing. See Utah Code Ann. § 77-3a-
101(6) (LexisNexis 2012) (allowing a respondent to request, in
writing, an evidentiary hearing within ten days after service of
an ex parte civil stalking injunction). “A hearing requested by
the respondent shall be held within 10 days from the date the
request is filed with the court unless the court finds compelling
reasons 	to 	continue 	the 	hearing.” 	Id. 	§ 	77-3a-101(6)(a). 	On
February 21, 2017, the district court set a hearing for March 1,
2017, and sent notice of the hearing through the court’s e-filing
system to Morgan’s counsel at the email address that had been
provided to the court. At the time set for hearing, petitioner
Mark C. Holyoak appeared with counsel, but Morgan and his
counsel did not appear. The district court issued a Civil Stalking
Injunction (the stalking injunction) that was served on Morgan
on that same day. The stalking injunction stated that it would
remain in effect for three years after the service date of the
Temporary Civil Stalking Injunction.
¶3 	On March 16, 2017, Morgan filed a motion to set aside the
stalking injunction and a request for a rule 60(b) rehearing.
Morgan argued that his failure to appear at the scheduled
hearing 	was 	due 	to 	excusable 	neglect. 	Morgan’s 	counsel
admitted that he had received the district court’s electronic
notification on February 21, 2017, but argued that “due to . . .
inadvertence and honest mistake,” he failed to read the notice or
calendar the hearing. Holyoak opposed the motion to set aside
the stalking injunction, arguing that some evidence of diligence
is necessary to establish excusable neglect.
¶4 	The district court denied the motion to set aside the
stalking injunction. In a written order, the district court first
noted that the case involved a stalking injunction, that Morgan
requested the hearing, and that both Morgan and his counsel
“should have realized that timetables for stalking injunction
cases are short.” The court found that while the court, Holyoak,

Holyoak v. Morgan
20170374-CA 	3 	2018 UT App 3
and Holyoak’s counsel acted diligently in setting and preparing
for the March 1 hearing, Morgan and his counsel did not act
diligently. 	Morgan’s 	counsel 	should 	have 	read 	the 	notice
scheduling 	the 	hearing, 	and 	both 	Morgan 	and 	his 	counsel
“should have been significantly more curious about whether a
hearing had 	been scheduled and 	when 	it would be held.”
Referring to a “stunning lack of diligence” by Morgan and his
counsel, the district court denied the motion.
¶5 	“We review a district court’s denial of a rule 60(b) motion
for relief from judgment for an abuse of discretion.” Jones v.
Layton/Okland, 2009 UT 39, ¶ 10, 214 P.3d 859. “A district court
abuses its discretion only when its decision was against the logic
of the circumstances and so arbitrary and unreasonable as to
shock one’s sense of justice . . . [or] resulted from bias, prejudice,
or malice.” Id. ¶ 27 (alteration and omission in original) (citation
and internal quotation marks omitted). “[I]n 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.” Id. ¶ 25. “[D]iligence on the part of the
party claiming excusable neglect is an essential element of that
inquiry, and relief may not be granted based on other equitable
considerations where a party has exercised no diligence at all.”
Bodell Constr. Co. v. Robbins, 2014 UT App 203, ¶ 10, 334 P.3d
1004 (citation and internal quotation marks omitted).
¶6 	Morgan provided no evidence of any diligence to support
his claim of excusable neglect. Morgan requested the hearing
and should have known that the court was required to hold a
hearing within ten days of his filing of the request. See Utah
Code 	Ann. 	§ 	77-3a-101(6)(a). 	Morgan’s 	counsel 	admittedly
received the electronic notice of the hearing but failed to read it.
Morgan did not claim to have undertaken any other efforts to
determine when the hearing had been scheduled. Although

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20170374-CA 	4 	2018 UT App 3
Morgan 	argues 	that 	the 	prejudice 	to 	him 	outweighs 	any
inconvenience 	from 	the 	delay 	to 	the 	opposing 	party, 	the
supreme court has rejected that argument as a basis for relief. See
Jones, 2009 UT 39, ¶ 24 (“It would be impermissible . . . 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.”).
¶7 	This court affirmed the denial of a rule 60(b) motion based
upon similar facts in Aghdasi v. Saberin, 2015 UT App 73, 347 P.3d
427. We concluded that there was “little difference between the
inadvertent loss or misplacement of an electronic document and
the inadvertent loss or misplacement of a physical document.”
Id. ¶ 6. Thus, an attorney is expected to make the same effort to
be aware of incoming electronic filings as he or she would with
paper filings. See id. ¶ 8. Morgan’s attempt to distinguish this
case from Aghdasi on the basis that there was only one electronic
document in this case and at least three in Aghdasi is not
persuasive. As we stated in Aghdasi, “we cannot say that the
court’s rejection of the . . . excusable neglect argument under the
circumstances 	of 	this 	case, 	‘was 	against 	the 	logic 	of 	the
circumstances’ or ’so arbitrary and unreasonable as to shock
one’s sense of justice.’” Id. (quoting Jones, 2009 UT 39, ¶ 27).2
2. Because we conclude that the district court in this case did not
abuse 	its 	discretion 	in 	determining 	that 	Morgan 	did 	not
demonstrate excusable neglect, it is unnecessary to consider
whether 	Morgan 	had 	a 	meritorious 	defense. 	See 	Aghdasi 	v.
Saberin, 2015 UT App. 73, ¶ 8 n.2, 347 P.3d 427 (stating that
because the district court did not err in its determination that the
moving party had not established excusable neglect, it was not
necessary to examine that court’s determination that there was
no meritorious defense proffered); see also Weber v. Mikarose, 2015
(continued…)

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¶8 	Morgan’s alternative claim that the district court’s ruling
was deficient in failing to provide adequate factual findings for
appellate 	review lacks merit. 	The 	written 	ruling 	and 	order
adequately 	detailed 	the 	district 	court’s 	reasoning 	and 	is
sufficient to allow review by this court.
¶9 	Holyoak 	asks 	this 	court 	to 	award 	him 	attorney 	fees
“pursuant to the Utah Rules of Appellate Procedure.” Because
Holyoak did not identify an appellate rule or provide analysis in
support of the request, we decline to consider it. See Utah R.
App. P. 24(a)(9) (“A party seeking attorney’s fees on appeal must
state the request explicitly and set forth the legal basis for an
award.”); see also Advanced Restoration, LLC v. Priskos, 2005 UT
505, ¶ 36, 126 P.3d 786 (denying an attorney fees request where
the brief stated that the appeal was meritless but did not cite the
legal basis for an award).
¶10 	We affirm the denial of the motion to set aside the
judgment.
(…continued)
UT App 130, ¶ 13 n.4, 351 P.3d 121 (noting that the district court
did not consider whether there would be a meritorious defense
in light of its conclusion that there was no excusable neglect).