Last week the Utah Court of Appeals handed down an interesting procedural case, on Rule 60 Motions. In Harrison v. Thurston, 2011 UT App 231 the court gets to decide some of the standards for relief from judgment under Rule 60(b). That Rule provides that relief can be granted for 'mistake, inadvertence, surprise, or excusable neglect.' Condensing the facts, Harrison has a slow case and then her attorney is suspended from practice. While he is suspended and the files in the hands of a trustee, defendant files a motion to dismiss for lack of prosecution. Courts grants it. Harrison gets new counsel and files a Rl 60(b) motion when she finds out. She is 3 minutes late to the hearing and in that time the Court calls the matter, denies the motion and dismisses with prejudice. A second motion follows, and is denied.
Two interesting bits in the decision. First, the first denial is described and that is all. The three minutes late is addressed as follows:
A hearing was set on the matter for March 4, 2010, at 2:00 p.m.; however, “[d]ue to an unfortunate series of events,” Harrison was approximately three minutes late. At 2:02 p.m., the court went on record for fifty‐five seconds to rule on the matter. In the order, the court stated simply, “Plaintiff [and] Plaintiff’s Counsel [are] not present. Court dismisses [the] matter with prejudice.”
That is it. At the Utah Bar Convention (thankfully always held out of state!) just before the decision came out, one of the sessions offered by our courts was about professionalism and civility, extolling the virtue of counsel foregoing exploitation of adverse counsel to appear at a hearing. Hard to square with no comment on a judge dismissing a case with prejudice for someone being three minutes late. Or for the Appellate Court's silence on the point -- or is only lawyers who are supposed to exercise such civility? As interesting, that denial was not appealed, only the subsequent Rule 60 Motion.
Second, the Appellate Court decision turns on the fact that it was very hard to sort out who actually represented Harrison. That her lawyer was in practice with his brother did not make his brother counsel of record. So Harrison was unrepresented when the failure to prosecute motion was filed. More importantly, I think, the Court seems to direct trial courts to make a record of the factual basis for decisions on such motions. That is something I think a goo idea. It will mean more work for both court and counsel, but it will also help make clear what has been decided and on what basis. (It is very frustrating to have a motion for summary judgment denied with a general reference to some facts or other still being in dispute and no guidance at all about what the court has in mind.) Hence, it was abuse of discretion to deny the second Rule 60 motion.