2015 UT App 99

THE UTAH COURT OF APPEALS

MORNINGSIDE DEVELOPERS, LLC,

Plaintiff,

v.

COPPER HILLS CUSTOM HOMES, LLC,

Defendant, Third-party Plaintiff, and Appellant,

v.

WELLS FARGO BANK, NA; BANK OF AMERICA, NA; AND MORTGAGE 

ELECTRONIC REGISTRATION SYSTEMS, INC.,

Third-party Defendants and Appellees.

Memorandum Decision

No. 20130658-CA

Filed April 23, 2015

Third District Court, Salt Lake Department

The Honorable Keith A. Kelly

No. 070914123

Nate D. Ashcraft, Attorney for Appellant

Timothy Curtis, Attorney for Appellees Bank of 

America, NA and Mortgage Electronic Registration 

Systems, Inc.

Laura S. Scott and Nicole G. Farrell, Attorneys for 

Appellee Wells Fargo Bank, NA

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in 

which JUDGES GREGORY K. ORME and JOHN A. PEARCE concurred.

DAVIS, Judge:

¶1 Copper Hills Custom Homes, LLC (Copper Hills) appeals 

the district court’s reinstatement of an order of dismissal for 

failure to prosecute. We vacate in part and affirm in part.

¶2 Copper Hills provided construction contracting services 

to Morningside Developers, LLC (Morningside) on eight 
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separate parcels of real property in 2006. After Morningside 

failed to pay Copper Hills for its work, Copper Hills recorded 

mechanics’ liens against each of the parcels and ultimately filed 

eight separate lien foreclosure actions. In October 2007, 

Morningside filed suit against Copper Hills for breach of 

contract, fraud, and related claims. In October 2009, 

Morningside’s claims and Copper Hills’ foreclosure claims were 

consolidated into a single action. Soon after, Copper Hills’ 

attorney withdrew.

¶3 Neither party took any further action in the case, and on 

October 14, 2010, the district court issued an order to show cause 

why the case should not be dismissed (the first OSC). See 

generally Utah R. Jud. Admin. 4-103(2) (“If a certificate of readiness for trial has not been served and filed within 330 days of the 

first answer, the clerk shall mail written notification to the 

parties stating that absent a showing of good cause by a date 

specified in the notification, the court shall dismiss the case 

without prejudice for lack of prosecution.”). New counsel for 

Copper Hills appeared at the hearing on the first OSC and 

indicated that Copper Hills was still interested in pursuing the 

case and that he intended to file a motion to amend Copper 

Hills’ foreclosure complaints to consolidate them into a single 

complaint. The district court agreed to strike the first OSC 

provided that Copper Hills file the motion within thirty days. 

Copper Hills filed the motion within thirty days but never 

actually amended the complaint or took any further action to 

pursue its claims. According to Copper Hills, “extreme financial 

difficulties” stemming from the recession left it “without the 

resources required to aggressively pursue its claims.” The 

district court never ruled on the motion to amend.

¶4 On November 18, 2011, the district court issued another 

order to show cause (the second OSC). This time, neither party

appeared at the hearing, and on January 26, 2012, the district 

court dismissed the case without prejudice (the January 2012

Dismissal). In June 2012, Copper Hills moved the court to set

aside the order of dismissal on the ground that notice of the 
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20130658-CA 3 2015 UT App 99

second OSC was mailed to Copper Hills’ former counsel and 

Copper Hills was therefore unaware of it. On September 25, 

2012, the district court issued an order granting the motion (the 

Set Aside Order) but expressed concern “about the overall 

neglect of all of the parties in moving this case forward” and 

warned that it would dismiss the case “if no party has submitted 

a Rule 16(b) certification of readiness for trial within 90 days.”

¶5 After the district court set aside the dismissal, Copper 

Hills filed an amended complaint adding twenty-five additional 

parties, including Appellees, who had interests in the parcels on 

which Copper Hills had filed mechanics’ liens. Copper Hills then 

filed a certificate of readiness for trial on December 21, 2012. The 

district court held a scheduling conference on February 15, 2013, 

at which it expressed concern about Copper Hills adding so 

many parties late in the litigation. In light of its concern, the 

district court issued a new order to show cause (the third OSC) 

ordering the parties to address whether the Set Aside Order 

should be vacated and the January 2012 Dismissal reinstated. 

Following a hearing, the district court issued an order in which it 

vacated the Set Aside Order and dismissed the case with 

prejudice (the Final Dismissal). Copper Hills appeals.

¶6 Copper Hills asserts that the district court abused its 

discretion by dismissing the case with prejudice. “In reviewing a 

trial court’s decision to dismiss for failure to prosecute, we 

accord the trial court broad discretion and do not disturb its 

decision absent an abuse of discretion and a likelihood that an 

injustice has occurred.” Hartford Leasing Corp. v. State, 888 P.2d 

694, 697 (Utah Ct. App. 1994).

¶7 As a threshold matter, we must determine whether the 

Final Dismissal constituted a new order of dismissal pursuant to 

rule 41(b) of the Utah Rules of Civil Procedure or a reinstatement 

of the January 2012 Dismissal, which was entered pursuant to 
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rule 4-103 of the Utah Rules of Judicial Administration.1 Rule 4-

103 permits the district court to issue an order to show cause sua 

sponte regarding failure to prosecute “*i+f a certificate of 

readiness for trial has not been served and filed within 330 days 

of the first answer.” Utah R. Jud. Admin. 4-103(2). Dismissal 

pursuant to this rule is without prejudice. Id.; see also Panos v. 

Smith’s Food & Drug Ctrs., Inc., 913 P.2d 363, 364–65 (Utah Ct. 

App. 1996). Under rule 41(b), on the other hand, “a trial court 

has the discretion to dismiss an action with prejudice for failure 

to prosecute without justifiable excuse.” Rohan v. Boseman, 2002 

UT App 109, ¶ 28, 46 P.3d 753; see also Utah R. Civ. P. 41(b) 

(“Unless the court in its order for dismissal otherwise specifies, a 

dismissal under this subdivision . . . operates as an adjudication 

upon the merits.”). Thus, dismissal with prejudice would be 

appropriate only if the Final Dismissal were a new order issued 

under rule 41(b).2

¶8 We conclude that the Final Dismissal was a reinstatement 

of the January 2012 Dismissal rather than a new order of 

dismissal pursuant to rule 41(b). In support of their argument 

that the Final Dismissal was based on rule 41(b), Appellees point 

out that in responding to the third OSC, they addressed the 

Westinghouse factors relevant to a rule 41(b) analysis and asserted 

that the case should be dismissed under rule 41(b). See 

 

1. Because the district court made no findings in connection with 

the January 2012 dismissal, the parties do not dispute that it was 

a rule 4-103 dismissal rather than a rule 41(b) dismissal. See Utah 

R. Civ. P. 52(a) (requiring the district court to enter findings of 

fact in support of a dismissal under rule 41(b)).

2. While it may seem that we are approaching this appeal 

backward by considering whether the dismissal should have 

been with or without prejudice before examining whether the 

dismissal was itself appropriate, we cannot examine the 

propriety of the dismissal until we have determined which rule 

of procedure controls.
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Westinghouse Elec. Supply Co. v. Paul W. Larsen Contractor, Inc., 

544 P.2d 876, 879 (Utah 1975). Appellees assert that their 

invocation of rule 41(b) in their response, combined with the 

district court’s detailed findings regarding Copper Hills’ failure 

to move the case along, indicates that the Final Dismissal was 

intended to be a rule 41(b) dismissal. 

¶9 Admittedly, the district court’s analysis of factors that 

would be relevant to a rule 41(b) analysis and its decision to 

dismiss with prejudice lend some credence to Appellees’ 

argument. However, the third OSC specifically directed the 

parties to address whether the Set Aside Order should be 

vacated and the January 2012 Dismissal reinstated, not whether 

the district court should enter a new order of dismissal pursuant 

to rule 41(b). Furthermore, the district court never characterized 

its Final Dismissal as a dismissal under rule 41(b), and the Final 

Dismissal never explicitly mentioned rule 41(b) or the 

Westinghouse factors. Rather, the district court determined, 

consistent with its framing of the issue in the third OSC, that the 

Set Aside Order “should be vacated and the *January 2012 

Dismissal] should be reinstated.” Although the district court 

made findings that could have supported a dismissal for failure 

to prosecute under rule 41(b), and those findings were 

supported by sufficient evidence, its analysis ultimately focused 

on whether the Set Aside Order should be vacated. The court’s 

intent to reinstate the January 2012 Dismissal is apparent not 

only in its ultimate order vacating the Set Aside Order but in its 

analysis, where it concluded that Copper Hills’ motion to set 

aside should never have been granted in the first place because it 

was not timely and that dismissal should be reinstated because 

Copper Hills failed to comply with the court’s condition that it 

be ready for trial within ninety days. Because it reinstated the 

January 2012 Dismissal, which was entered pursuant to rule 4-

103, rather than entering a new order of dismissal pursuant to 

rule 41(b), the district court had no basis for dismissing the case 

with prejudice. Further, the reinstatement of the January 2012 

Dismissal presumably reinstated the entire order, which 

explicitly provided that the dismissal was to be without 
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20130658-CA 6 2015 UT App 99

prejudice. Thus, assuming that the district court’s reinstatement 

of the January 2012 Dismissal was appropriate, the dismissal 

should have been without prejudice.

¶10 Having determined that the Final Dismissal reinstated the 

January 2012 Dismissal, we next turn to the question of whether 

the district court abused its discretion in vacating the Set Aside 

Order and reinstating the January 2012 Dismissal. Because 

Copper Hills did not receive notice of the second OSC, the 

district court gave it an opportunity to avoid dismissal by 

getting the case ready for trial in a timely manner. However, the 

Set Aside Order was a conditional order, which the district court 

warned it would revoke “if no party has submitted a Rule 16(b) 

certification of readiness for trial within 90 days of the date of 

this order.” Although Copper Hills arguably complied with this 

condition by submitting the certificate of readiness on December 

21, 2012, the district court found,

[T]he Certificate was incorrect because the 

Consolidated Case is not ready for trial. To the 

contrary, at the time the Certificate of Readiness 

was filed, the recently served defendants were in 

the process of filing answers to the First Amended 

Complaint. No initial disclosures have been 

exchanged[,] . . . no depositions have been taken 

and no written discovery has been served.

Because Copper Hills failed to comply with the condition 

outlined in the Set Aside Order, the district court did not abuse 

its discretion by reinstating the January 2012 Dismissal.3

 

3. We acknowledge that vacating the Set Aside Order and 

reinstating the January 2012 Dismissal may have been a more 

confusing approach than simply entering a new order of 

dismissal pursuant to either rule 4-103 or rule 41(b). However, 

(continued...)
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¶11 Furthermore, any injustice to Copper Hills that may have 

occurred as a result of the district court’s failure to provide 

notice of the second OSC was cured by the third OSC hearing, at 

which Copper Hills was given a full opportunity to make “a 

showing of good cause” why the case should not be dismissed. 

See Utah R. Jud. Admin. 4-103(2). The district court made 

extensive findings regarding whether Copper Hills’ dilatory 

behavior was justified, ultimately finding that both Copper Hills 

and Morningside had “adopted a conscious strategy to do as 

little as possible and drag out the *case+” and that even Copper 

Hills’ financial limitations did not provide a sufficient excuse for 

the extensive delay in the case. The district court did not abuse 

its discretion in so finding, particularly in light of the fact that 

Copper Hills had also failed to promptly ready the case for trial 

as directed in the Set Aside Order.

¶12 In sum, we conclude that the Final Dismissal must be 

regarded as a reinstatement of the January 2012 Dismissal, which 

was entered pursuant to rule 4-103, and that the district court 

did not abuse its discretion in reinstating that order, so 

characterized. Accordingly, we vacate the district court’s Final 

Dismissal insofar as it dismisses the case with prejudice, and we 

affirm the district court’s reinstatement of the January 2012 order 

dismissing the case without prejudice.

 

(...continued)

given the conditional nature of the Set Aside Order, the district 

court’s action was not an abuse of its discretion.