Mark C. Holyoak, Appellee,
Max G. Morgan, Appellant.
District Court, Price Department The Honorable Lyle R.
Anderson No. 170700011
K. Johnson, Attorney for Appellant
E. Dorsey, Attorney for Appellee
Judges David N. Mortensen, Jill M. Pohlman, and Ryan M.
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
On January 27, 2017, the district court issued a Temporary
Civil Stalking Injunction, which was served on Morgan on or
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.
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.
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, 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.
"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).
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 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
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, ¶
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.
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 ...