Opinion
Case No. 20060095-CA.
May 11, 2006. (Not For Official Publication).
Appeal from the Third District, West Jordan Department, 030102340 The Honorable Terry L. Christiansen.
Stephen W. Brockbank, Saratoga Springs, Appellant Pro Se.
Jay V. Barney, Salt Lake City, for Appellee.
Before Judges Bench, Billings, and Thorne.
MEMORANDUM DECISION
Appellant Stephen W. Brockbank appeals the denial of his second motion to set aside the judgment under rule 60(b) of the Utah Rules of Civil Procedure. This appeal is before the court on a motion for summary disposition filed by Knight Adjustment Bureau, as assignee of Zions First National Bank.
We consolidated two appeals filed in the same district court case. The first appeal was taken from the denial of a motion to set aside the judgment, and the second appeal was taken from the district court's denial of Brockbank's application to proceed without paying filing fees. Our disposition makes it unnecessary to consider the second appeal further. However, we note that Brockbank has not paid the required filing fee.
The district court entered the underlying judgment on March 30, 2004. Brockbank filed his first rule 60(b)(3) motion in November 2004, over seven months after the judgment. The district court dismissed that motion as untimely. See Utah R. Civ. P. 60(b) ("The motion shall be made within a reasonable time and for reasons (1), (2), or (3), not more than 3 months after the judgment, order, or proceedings was entered or taken."). Brockbank filed a second rule 60(b)(3) motion on October 28, 2005, a year and a half after entry of the judgment he sought to have set aside. Both motions were untimely as motions under rule 60(b)(3). See Richins v. Delbert Chipman Sons, 817 P.2d 382, 387 (Utah Ct.App. 1991) (stating that a court lacks jurisdiction to consider an untimely rule 60(b) motion). Invocation of the catch-all provision of rule 60(b)(6) does not support a different result. Rule 60(b)(6), which allows relief for "any other reason justifying relief from judgment," is not available where a claim is one listed within the other subdivisions of rule 60(b). Id. In addition, even a motion under rule 60(b)(6) must be filed "within a reasonable time."Id. Because the second motion to set aside the judgment, which was filed a year and a half after the judgment's entry, was untimely, the district court did not abuse its discretion in denying the motion. "We will not interfere with the trial court's broad discretion to rule on a rule 60(b) motion absent a showing of abuse of that discretion." Id. at 387. Because we conclude that the district court did not abuse its discretion in denying a second untimely rule 60(b) motion, it is unnecessary to consider Knight's alternative arguments.
We affirm the decision of the district court.
Russell W. Bench, Presiding Judge, Judith M. Billings, Judge and William A. Thorne Jr., Judge.