CBS Enterprises v. Sorenson

2018 UT App 2
THE UTAH COURT OF APPEALS
CBS ENTERPRISES LLC AND A LLEN M YERS,
Appellants,
v.
LARRY T. S ORENSON ,
Appellee.
Opinion
No. 20160897-CA
Filed January 5, 2018
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 150903522
Daniel E. Witte, Attorney for Appellants
Larry T. Sorenson, Appellee Pro Se
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and M ICHELE M. C HRISTIANSEN
concurred.
MORTENSEN, Judge:
¶1 	Appellants 	CBS 	Enterprises 	LLC 	and 	Allen 	Myers
(collectively, CBS) filed suit against Larry T. Sorensen in the
district court, alleging that they were part owners of a Chinese
jade artifact valued at $34 million. After initially staying the
proceedings to allow for resolution of a related federal case, the
district court dismissed CBS’s complaint for failure to prosecute.
CBS now appeals, arguing that the dismissal was an abuse of the
district court’s discretion. Because we agree, we reverse and
remand.
¶2 	Most of the details of the underlying dispute in this case
are irrelevant to the appeal. What is important, however, is the
procedural path the case has followed. In May of 2015, CBS filed

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20160897-CA 	2 	2018 UT App 2
its complaint in the district court. Exactly three months later, the
parties entered—and the district court approved—a stipulation
regarding the security and storage of the jade artifact. Part of
that stipulation was an order “that all litigation deadlines shall
be held in abeyance.”
¶3 	Roughly a year after the district court proceedings had
been stayed, the court provided notice to the parties of its sua
sponte motion to dismiss the case “for lack of prosecution
pursuant 	to 	Rule 	4-103” 	of 	the 	Utah 	Rules 	of 	Judicial
Administration. The court stated, “Unless a written statement is
received by the court within 20 days of this notice showing good
cause why this should not be dismissed, the Court will dismiss
without 	further 	notice.” 	CBS 	accordingly 	filed 	a 	written
objection 	approximately 	one 	week 	later. 	Counsel 	for 	CBS
followed up with the district court by telephone to ensure that
the court had received the objection. Counsel also asked if a
hearing had been or would be scheduled. According to CBS, its
counsel was told that “no hearing was currently scheduled and
that one might never be scheduled (and indeed, was likely not to
be scheduled),” but that counsel would be contacted if that
changed.
¶4 	In its objection, CBS argued that it had “good cause why
this case should not be dismissed” and that “aggressive litigation
is occurring to continue to prosecute the matter.” Specifically,
CBS explained that the jade artifact had been “held as evidence
in a federal criminal investigation until August 2016”—the same
month the district court moved to dismiss the case for failure to
prosecute. It provided the district court with the names and case
numbers 	of 	federal 	cases 	that 	implicated 	the 	artifact. 	The
objection concluded with a request that, if the district court did
“not summarily agree that good cause has been shown,” the
court set “a hearing to further discuss the situation.”
¶5 	The 	district 	court 	obliged, 	sending 	out 	notice 	on
September 22, 2016, of a hearing scheduled for less than one

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week later—September 28, 2016. On September 28, no parties
were 	present 	when 	the 	court 	called 	the 	case 	and 	it 	thus
“order[ed] this case dismissed for lack of prosecution and for
[the] parties[’] failure to appear to update the court on the case.”
¶6 	Three days later, on October 1, 2016, CBS filed a “motion
for reconsideration to alter or amend judgment and to vacate or
clarify dismissal.” In it, CBS alleged that no party had received
actual notice of the September 28 hearing. And CBS reiterated its
reasons why the case should not have been dismissed, including
that 	“litigation 	is 	indeed 	being 	actively 	and 	properly
prosecuted.”
¶7 	But beyond simply rehashing the reasoning set out in its
objection, CBS also detailed apparent flaws in the notice and
hearing 	process, 	explaining 	that 	counsel 	for 	CBS 	had 	not
received actual notice of either the hearing or its resolution until
he engaged in his standard periodic review of “the dockets for
his various cases on Greenfiling just as a precaution.”1 CBS
argued that its failure to appear at the hearing was attributable
to 	mistake, 	inadvertence, 	or 	excusable 	neglect, 	citing 	rule
60(b)(1) of the Utah Rules of Civil Procedure.
¶8 	Without 	addressing 	CBS’s 	rule 	60(b) 	argument 	or
alternative request for clarification, the district court “denie[d]
the Motion to Reconsider because there is no such Motion per
the Rules of Civil Procedure.” But rather than leave its order at
that, the court expounded:
1. Greenfiling is one of three “certified electronic filing service
providers” that “have completed the certification requirements
necessary 	to 	become 	an 	Electronic 	Filing 	Service 	Provider
with the Utah State District Courts.” Certified Electronic Filing
Service Providers, Utah Courts, https://www.utcourts.gov/efiling/
providers.html [https://perma.cc/A3TY-FCHL].

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Further, on August 31, 2016 a Notice of Intent to
Dismiss 	was 	given 	to 	Plaintiff, 	to 	which 	an
objection was filed on September 8th 2016. The
Court having read the objection still had concerns
regarding the content of the objection, so it set a[n
in-]court 	hearing 	on 	the 	matter 	and 	provided
notice 	to 	counsel 	of 	the 	hearing 	at 	the 	email
address 	on 	file 	with 	the 	Court 	and 	at 	which
counsel had received previous[] notices. Counsel
failed to appear at the in[-]court hearing and the
case was dismissed. 	Therefore, the Court finds
more than adequate opportunity was provided to
prevent this case from being dismissed and again,
denies the Motion . . . .
¶9 	CBS 	now 	appeals, 	arguing 	that 	the 	district 	court
committed reversible error in dismissing the case for lack of
prosecution. It sets forth several bases for reversal, but because
we are persuaded that the case should not have been dismissed
and that the court should have granted CBS’s requested relief,
we need not reach them all.
¶10 	The 	district 	court 	admittedly 	has broad 	discretion 	in
deciding whether a case should be dismissed for failure to
prosecute, and we will not reverse
absent an abuse of discretion and a likelihood that
an injustice has occurred. Further, [i]n determining
whether the court abused its discretion, we balance
the 	need 	to 	expedite 	litigation 	and 	efficiently
utilize judicial resources with the need to allow
parties to have their day in court. Thus, we review
for abuse of discretion the [district] court’s decision
to dismiss for failure to prosecute.
Cheek v. Clay Bulloch Constr., Inc., 2011 UT App 418, ¶ 6, 269 P.3d
964 	(alteration 	in 	original) 	(citations 	and 	internal 	quotation

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marks 	omitted). 	The 	same 	standard 	applies 	in 	determining
whether a district court erred in denying a rule 60(b) motion for
relief. See Robinson v. Baggett, 2011 UT App 250, ¶ 13, 263 P.3d
411. We first consider whether the district court should have
granted relief under that rule, and we then determine whether
the case should have been dismissed for failure to prosecute in
the first place.
¶11 	The district court was correct that our rules of civil
procedure 	do 	not 	contemplate 	motions 	to 	reconsider. 	See
Lindstrom v. Custom Floor Covering Inc., 2017 UT App 141, ¶ 10,
402 P.3d 171 (referring to a motion to reconsider as “a motion
that does not exist under the Utah Rules of Civil Procedure”).
And we afford district courts discretion in deciding whether to
entertain such motions. See A.S. v. R.S., 2017 UT 77, ¶ 28
(reiterating 	that 	“motions 	to 	reconsider 	are 	not 	recognized
anywhere in either the Utah Rules of Appellate Procedure or the
Utah Rules of Civil Procedure, and . . . that [district] courts are
under no obligation to consider motions for reconsideration and
any decision to address or not to address the merits of such a
motion is highly discretionary” (citation and internal quotation
marks omitted)). But CBS’s motion was not a classic motion to
reconsider, at least not exclusively.2 And a court may not re-
2. Even if it were solely a motion to reconsider, which the district
court could have refused to entertain, the court may still have
exceeded its discretion in denying the motion. This is because
once a district court undertakes to consider the merits of a
motion to reconsider, its ruling must be within the bounds of its
discretion. Here, the district court began its order by indicating
that it would not grant the motion “because there is no such
Motion per the Rules of Civil Procedure.” But it then went on to
decide the merits of reconsideration. See supra ¶ 8. Because the
district court ruled on the merits of the motion, it was bound to
rule on the motion reasonably.

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characterize a movant’s requested form of relief so as to avoid
that request. Cf. B.A.M. Dev., LLC v. Salt Lake County, 2012 UT 26,
¶¶ 12–13, 282 P.3d 41 (explaining that a motion’s form will not
be disregarded to instead “consider its essential character”;
courts should look at the form and substance of the motion, its
caption, its citation of relevant rules, and its express request for
relief in determining whether the motion meets the specific
rule’s requirements); Lindstrom, 2017 UT App 141, ¶¶ 9–12
(applying the framework set forth in B.A.M. Development).
¶12 	CBS, perhaps ill-advisedly, captioned its motion as one
“for reconsideration.” But the caption also indicated that CBS
sought “to alter or amend judgment” and that it wanted to
“vacate or clarify dismissal.” Not only did the motion’s caption
indicate that it was not solely one for reconsideration, but also
the substance of the motion made that abundantly clear. In the
opening paragraph of its motion, CBS explained that it sought
relief under rules 59(e) and 60(b)(1), (5), and (6) of the Utah Rules
of Civil Procedure.3 So while the district court had discretion not
to 	consider 	part 	of 	CBS’s 	motion—the 	part 	seeking
reconsideration, plain and simple—it had no such option to
summarily disregard CBS’s other grounds for seeking relief.
And by doing so, it abused its discretion.
¶13 	Furthermore, considering the merits of CBS’s motion, it is
apparent that the district court abused its discretion by denying
relief. CBS specifically argued that its nonappearance at the
hearing was the result of mistake, inadvertence, or excusable
neglect; that it was not equitable for the order of dismissal to
have prospective application; and that the complex nature of the
interplay between the state and federal systems in this dispute
3. We primarily consider whether the district court erred under
rule 60(b)(1). Because we conclude that it did and reverse on that
basis, we express no opinion on whether the same result would
be reached under rule 59(e) or rule 60(b)(5) or (6).

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presented an additional reason that justified relief. See Utah R.
Civ. P. 60(b)(1), (5), (6). Subsection (1) of rule 60(b) provides, “On
motion and upon just terms, the court may relieve a party or its
legal representative from a judgment, order, or proceeding for
. . . mistake, inadvertence, surprise, or excusable neglect.” Utah
R. Civ. P. 60(b)(1).
¶14 	Even setting aside the fact that this case had been stayed
by the district court when the district court ordered its dismissal,
we have no difficulty concluding that CBS was entitled to relief
for excusable neglect. When the district court first notified the
parties that it was considering dismissing the case, it did so by
saying dismissal would result “[u]nless a written statement is
received . . . showing good cause why this should not be
dismissed.” 	(Emphasis 	added.) 	The 	logical 	reading 	of 	that
qualification is that if such a written statement were received,
the case would not be dismissed. And CBS filed a written
objection, detailing why the case should not be dismissed. It
would have been reasonable for CBS to believe that it had
complied with the district court’s notice. The court made no
mention of a hearing. It instructed the parties to provide a
written statement or this case would be dismissed. And CBS
provided a written statement.
¶15 	Of course, that was not the end of things. Counsel for CBS
had contacted the district court after filing the objection and was
told that a hearing had not been scheduled and likely would not
be scheduled. But CBS, in its objection, had suggested that if the
district court was unsatisfied with its explanation of why the
case should not be dismissed, the court should schedule a
hearing. The district court, in its order denying CBS’s request for
relief, explained that it “still had concerns regarding the content
of [CBS’s] objection,” and therefore scheduled a hearing. But in
doing so, it gave less than one week’s notice.
¶16 	And to compound the situation further, counsel for CBS
maintained that he had not received actual notice of the hearing.

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The court did not make further inquiry into this claim, except to
say that notice was sent to “the email address on file with the
Court,” 	which 	was 	addressed 	in 	CBS’s 	motion.4 	This
convergence of issues—from the district court saying it would
dismiss unless it received a written statement, to the district
court scheduling a hearing with less than one week’s notice, to
CBS’s 	claim 	that 	it 	had 	not 	received 	actual 	notice 	of 	the
hearing—is sufficient to demonstrate excusable neglect in not
appearing at the September 28 hearing.5 And thus the district
court abused its discretion in refusing to provide relief on that
ground.
¶17 	But our analysis does not end there, lest on remand the
district court see fit to again reach the question of whether the
case should be dismissed for failure to prosecute. On the record
4. 	Counsel 	explained 	that 	he 	did 	not 	receive 	the 	email
“apparently due to some kind of technical glitch,” although he
acknowledged that it was “unclear whether the glitch occurred
because the email was sent improperly, or due to delays or
defects with the Court’s system, or because of technical defects
or IP error on the part of the computer systems of [counsel’s] law
firm, and/or because of a technical defect with the Greenfiling
system.”
5. It is worth reiterating how quickly CBS responded to the
court’s dismissal. The hearing was held on September 28, and
CBS 	filed 	its 	motion 	on 	October 	1. 	This 	demonstrates 	an
eagerness to correct the situation and should have factored into
the district court’s decision. Cf. Charlie Brown Constr. Co. v.
Leisure Sports Inc., 740 P.2d 1368, 1370 (Utah Ct. App. 1987)
(affirming 	a 	district 	court’s 	order 	of 	dismissal 	when 	the
plaintiff’s attorney did not learn of or take steps to reverse
dismissal until seven months after the fact).

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before us, we have no difficulty concluding that the case should
not have been dismissed in the first instance.
¶18 	To determine “whether a [district] court has abused its
discretion in dismissing a case for failure to prosecute,” we
typically consider five factors:
(1) the conduct of both parties; (2) the opportunity
each party has had to move the case forward;
(3) what each party has done to move the case
forward; (4) the amount of difficulty or prejudice
that may have been caused to the other side; and
(5) most important, whether injustice may result
from the dismissal.
Cheek v. Clay Bulloch Constr., Inc., 2011 UT App 418, ¶ 7, 269 P.3d
964 (citation and internal quotation marks omitted).6 But these
factors 	are 	less 	applicable 	where, 	as 	here, 	there 	was 	an
agreement between all parties and approved by the district court
that the proceedings would be stayed.
¶19 	In August of 2015, a year before dismissal, the district
court had ordered the case stayed. In doing so, it specified that
the case would resume “only after . . . future order of this
Court.” The first and only “future order” was not one that could
have 	triggered 	the 	commencement 	of 	“normal 	accrual 	of
litigation deadlines and litigation activities”; rather, the next
order was the order of dismissal, which of course could not
trigger the resumption of litigation activities because it ended
the case. By ordering dismissal without first entering an order to
6. As the Cheek court acknowledged, these are known as the
Westinghouse factors. See Cheek v. Clay Bulloch Constr., Inc., 2011
UT App 418, ¶ 7, 269 P.3d 964; see also Westinghouse Elec. Supply
Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876, 879 (Utah
1975).

CBS Enterprises v. Sorenson
20160897-CA 	10 	2018 UT App 2
resume litigation of the case, the district court contradicted its
initial order staying the case.
¶20 	While we are typically “reluctant to second-guess a trial
court’s interpretation of its own order,” State v. L.A., 2010 UT
App 356, ¶ 16 n.4, 245 P.3d 213, this is an unusual instance
involving a district court’s complete disregard for its own order,
rather than its interpretation of it. Indeed, nowhere in the district
court’s order of dismissal or denial of CBS’s motion does the
district 	court 	acknowledge 	the 	earlier 	order. 	Under 	these
circumstances, it was an abuse of the district court’s discretion to
order that a stayed case be dismissed for failure to prosecute.
¶21 	We reverse the district court’s order denying relief under
rule 60(b)(1) of the Utah Rules of Civil Procedure as well as its
order of dismissal. We remand to the district court for further
proceedings consistent with this opinion.