2021 UT App 122

THE UTAH COURT OF APPEALS

KRISTINE L. SANDERS,

Appellee,

v.

TRAVIS JAMES SANDERS,

Appellant.

Opinion

No. 20200618-CA

Filed November 12, 2021

Third District Court, Salt Lake Department

The Honorable Todd M. Shaughnessy

No. 014901182

S. Grace Acosta, Attorney for Appellant

Steven M. Rogers, Nic R. Russell, Kelly J. Baldwin, 

and Wylie C. Thomas, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN

concurred.

ORME, Judge:

¶1 Travis James Sanders appeals the district court’s order 

dismissing his motion brought under rule 60(b) of the Utah 

Rules of Civil Procedure to invalidate a “renewed” judgment 

Kristine L. Sanders obtained against him. We reverse and 

remand to the district court with instructions to consider the 

motion on its merits. 
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BACKGROUND

¶2 Travis and Kristine divorced in 2001.1 Soon thereafter, 

Kristine obtained several judgments against Travis. In 2011, the 

district court renewed these judgments at Kristine’s request. 

Kristine was unable to fully collect on these judgments, and in 

January 2019, she again moved to have them renewed. Travis 

opposed the renewal and moved under rule 60(b) of the Utah 

Rules of Civil Procedure to set aside the judgments, primarily 

arguing that he had already satisfied them. The court denied 

Travis’s 60(b) motion, consolidated the judgments into a single 

lump-sum judgment, and renewed the judgment for a second 

time in May 2019. Travis did not appeal this order.

¶3 Nearly a year later, Travis filed a second 60(b) motion, 

this time under rule 60(b)(4) seeking to set aside the consolidated 

judgment as void on the theory that the court lacked jurisdiction 

under the Renewal of Judgment Act to renew the judgment for a 

second time. See Utah Code Ann. § 78B-6-1802 (LexisNexis 2018). 

The district court denied the second motion, ruling that it was 

“procedurally improper” because “[t]he arguments raised in that 

motion could and should have been raised in the prior motion.”2

Travis appeals.

 

1. Because the parties share the same surname, we refer to them 

by their first names, with no disrespect intended by the apparent 

informality.

2. In making this ruling, the district court did not cite any rule of 

civil procedure or caselaw. But it is apparent that its ruling was 

premised on the ground that Travis waived his voidness 

argument under rule 60(b)(4) because our Supreme Court has 

held that rule 12(h) applies to rule 60(b) motions to prohibit a 

party in certain instances from asserting defenses in a second 

(continued...)
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ISSUE AND STANDARD OF REVIEW

¶4 Travis argues that the district court erred in denying his 

motion on procedural grounds.3 Normally, “we review a district 

court’s denial of a 60(b) motion under an abuse of discretion 

standard of review.” Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 

P.3d 480. But when dealing with a rule 60(b)(4) motion seeking 

to set aside a judgment as void, we review the district court’s 

decision for correctness. See Migliore v. Livingston Fin., LLC, 2015 

UT 9, ¶ 25, 347 P.3d 394. In addition, we review a district court’s 

interpretation and application of our rules of civil procedure for 

correctness. Conner v. Department of Com., 2019 UT App 91, ¶ 15, 

443 P.3d 1250. Kristine implores us to review the court’s decision 

for abuse of discretion. But here, given that the district court’s 

ruling dealt with a rule 60(b)(4) motion to set aside the judgment 

 

(...continued)

60(b) motion that could have been brought in the first motion. 

See Utah v. 736 N. Colo. St., 2005 UT 90, ¶¶ 8–11, 127 P.3d 693.

3. Travis also asks us to hold that the judgment was void under 

rule 60(b)(4) of the Utah Rules of Civil Procedure because the 

district court violated the Renewal of Judgment Act by renewing 

the judgment for a second time. See Utah Code Ann. 

§ 78B-6-1802 (LexisNexis 2018). Travis argues that a judgment 

can be renewed only once because the Act allows for a judgment 

to be renewed so long as the motion to renew “is filed before the 

statute of limitations on the original judgment expires,” id.

§ 78B-6-1802(2) (emphasis added), and thus does not permit a 

party to seek renewal for a second time as that would not be a 

renewal of the original judgment but rather a renewal of the 

renewed judgment. But because the district court dismissed 

Travis’s motion on procedural grounds and did not reach the 

merits of this argument, we decline to address this issue in the 

first instance and remand so the district court can first consider 

the merits of Travis’s second 60(b) motion.
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as void and because the court was interpreting our rules of civil 

procedure when it ruled Travis’s motion was procedurally 

improper, we do not grant the district court any discretion, and 

we review its decision for correctness. Compare Menzies, 2006 UT 

81, ¶ 54, with Conner, 2019 UT App 91, ¶ 15.

ANALYSIS

¶5 As relevant here, rule 60 of the Utah Rules of Civil 

Procedure provides as follows:

(b) Mistakes; inadvertence; excusable neglect; newly discovered 

evidence; fraud, etc. On motion and upon just terms, the 

court may relieve a party or its legal representative from a 

judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or 

excusable neglect;

(2) newly discovered evidence which by due 

diligence could not have been discovered in 

time to move for a new trial under Rule 

59(b);

(3) fraud . . . , misrepresentation or other 

misconduct of an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, 

or discharged, or a prior judgment upon 

which it is based has been reversed or 

vacated, or it is no longer equitable that the 

judgment should have prospective 

application; or

(6) any other reason that justifies relief.
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(c) Timing and effect of the motion. A motion under 

paragraph (b) must be filed within a reasonable 

time and for reasons in paragraph (b)(1), (2), or (3), 

not more than 90 days after entry of the judgment 

or order or, if there is no judgment or order, from 

the date of the proceeding. The motion does not 

affect the finality of a judgment or suspend its 

operation.

(d) Other power to grant relief. This rule does not 

limit the power of a court to entertain an 

independent action to relieve a party from a 

judgment . . . .

Utah R. Civ. P. 60(b)–(d). 

¶6 The district court dismissed Travis’s second 60(b) motion 

on the basis that “[t]he arguments raised in that motion could 

and should have been raised in the prior motion,” thereby 

rendering the motion “procedurally improper.” Travis argues 

that the court erred in this ruling because our rules of civil 

procedure do not prohibit him from bringing a second motion 

on the ground that the judgment was void due to the court’s lack 

of subject matter jurisdiction given the terms of the Renewal of 

Judgment Act. This argument appears to be sound.

¶7 Kristine disagrees. She defends the district court’s waiver 

ruling and advances two alternative grounds on which she 

believes we should uphold the ruling. Her first alternative

argument is that Travis’s second motion was simply a motion to 

reconsider, which is not allowed. Second, she contends that the 

district court’s ruling can be upheld because Travis failed to file 

his second motion within ninety days of entry of the judgment 

as renewed a second time or in a reasonable time as provided in 

rule 60(c). We first address and reject the court’s ruling that 

Travis waived his 60(b)(4) argument by not bringing it in his first 

motion. We then turn to address each of the alternative 
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arguments Kristine believes nonetheless warrant our affirming 

the district court. 

I. Waiver

¶8 Travis asserts that rule 60(b) did not prohibit him from 

bringing his second 60(b) motion in May 2020, which motion 

was premised on the judgment being void under rule 60(b)(4). 

Kristine counters by pointing to Utah v. 736 North Colorado Street, 

2005 UT 90, 127 P.3d 693, which states that “a party waives the 

right to bring [additional defenses] if the party does not raise 

that defense in his initial rule 60(b) motion.” Id. ¶ 11. But 736

North Colorado Street is distinguishable from the case at hand.

¶9 In 736 North Colorado Street, the State initiated forfeiture 

proceedings against the petitioner to seize his property. Id. ¶ 2. 

After unsuccessful attempts to serve the petitioner by mail, the 

State moved for, and was granted, default judgment. Id. After 

learning of the default judgment, the petitioner filed a 60(b) 

motion to set aside the judgment. Id. ¶ 3. As part of his motion, 

the petitioner argued that the Utah Code “mandated that a 

notice of seizure be personally served and that the service by 

mail was improper under Utah Rule of Civil Procedure 4.” Id. In 

so doing, the petitioner “did not directly refer to or specifically 

raise a defense based on insufficient service of the complaint.” Id.

The district court denied the motion, id. ¶ 4, and the petitioner 

later filed a second rule 60(b) motion on the ground “that the 

district court lacked jurisdiction to enter a default judgment 

against him because he was not personally served with the 

complaint,” id. ¶ 5. The court denied the second motion, 

“concluding that [the petitioner] had waived that defense by not 

raising it in his initial rule 60(b) motion.” Id. 

¶10 Our Supreme Court affirmed the district court’s denial of 

the second motion. Id. ¶ 14. It noted that while the petitioner 

“did not articulate which prong of rule 60(b) he brought his 

motions under, it appears that the motions were rule 60(b)(4) 
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motions to set aside a default judgment because ‘the judgment is 

void.’” Id. ¶ 3 n.3. It then held that rule 12(h) of the Utah Rules of 

Civil Procedure “applies to rule 60(b) motions.” Id. ¶ 7. Rule 

12(h), in turn, provides, 

A party waives all defenses and objections not 

presented either by motion or by answer or reply, 

except (1) that the defense of failure to state a claim 

upon which relief can be granted, the defense of 

failure to join an indispensable party, and the 

objection of failure to state a legal defense to a 

claim may also be made by a later pleading, if one 

is permitted, or by motion for judgment on the 

pleadings or at the trial on the merits, and except 

(2) that, whenever it appears by suggestion of the 

parties or otherwise that the court lacks jurisdiction 

of the subject matter, the court must dismiss the 

action. . . .

Accordingly, the Court held that the petitioner waived his 

60(b)(4) argument that the judgment was void due to lack of 

personal jurisdiction, and therefore he could not bring it in a 

second motion because “[h]e could have asserted his complaint 

defense in [the first] motion but did not.” 736 N. Colo. St., 2005 

UT 90, ¶ 9.

¶11 This precedent is readily distinguishable from the case 

before us. For one thing, the motions in 736 North Colorado Street

targeted precisely the same judgment while, in this case, Travis’s 

motions attacked two separate renewed judgments. His first 

motion targeted the judgment as initially renewed and was filed 

before the judgment was renewed for a second time. In this 

motion, he sought to prevent its second renewal primarily on the 

basis that it had been satisfied. But his second motion was 

squarely directed at the judgment as renewed for a second time, 

on the ground that the applicable statute does not authorize 

multiple renewals of the original judgment. Thus, Travis could 
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not have waived the arguments he made in his second rule 60(b) 

motion because Travis’s first motion was brought before the 

judgment was renewed for a second time, and his second motion 

came after it had been renewed for that second time and because 

it was again renewed.4

¶12 Be all that as it may, 736 North Colorado Street is ultimately 

distinguishable here because the petitioner in that case 

attempted to bring a personal jurisdiction argument under rule 

60(b)(4) in his second motion, an argument the Court 

determined the petitioner had waived under rule 12(h) by not 

bringing it in his initial 60(b) motion. Here, Travis’s second 60(b) 

motion asserted that the judgment was void under rule 60(b)(4) 

because the court lacked subject matter jurisdiction given the 

terms of the Renewal of Judgment Act, which is an argument 

that Travis could not have waived under the plain terms of rule 

12(h). See Utah R. Civ. P. 12(h) (stating that parties do not waive 

arguments “that the court lacks jurisdiction of the subject 

matter”). Given this important difference, we hold that Travis 

did not waive his subject matter jurisdiction argument and could 

bring it in a second 60(b) motion because waiver under rule 

12(h) does not bar subject matter jurisdiction arguments.

¶13 The district court therefore erred in ruling that because 

Travis could have argued in his first motion that the court lacked 

 

4. We recognize that our Supreme Court has held that “a 

renewed judgment relates back to and extends the life of the 

original judgment” and that renewing a judgment does not 

“result[] in a new judgment.” Gildea v. Wells Fargo Bank, NA, 2015 

UT 11, ¶¶ 28, 30, 347 P.3d 385. But even though a renewed 

judgment is not a totally independent judgment in most 

contexts, we see nothing in Gildea that prevents a party under 

rule 12(h) from bringing a new 60(b) motion to set aside a 

renewed judgment when new grounds have arisen that are 

unique to the renewed judgment itself.
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subject matter jurisdiction to renew the judgment for a second 

time, it was procedurally improper for him to raise that 

argument in a second motion. Rule 12(h) did not bar such an 

argument in a second motion, and the court should have 

addressed Travis’s motion on the merits.

II. Motion to Reconsider

¶14 We now turn to Kristine’s first alternative ground. She 

asserts that we should affirm the district court on the basis that 

Travis’s second motion was essentially a post-judgment motion 

to reconsider, which is not permitted in Utah. See Gillett v. Price, 

2006 UT 24, ¶¶ 1, 10, 135 P.3d 861. Occasionally, we will affirm a 

district court’s order on an alternative ground that is apparent 

from the record, “[b]ut we ha[ve] no obligation to do so.” Scott v.

Scott, 2020 UT 54, ¶ 31, 472 P.3d 897. Kristine asserts that Travis’s 

motion was a motion to reconsider simply because his “second 

Rule 60 motion asserted the same grounds and no additional 

facts” and because even though “[t]he analysis of the law was 

slightly different[,] . . . the substantive grounds of the motion[s] 

were identical.” Travis responds that his motion was not a 

motion to reconsider because he raised new and distinct legal 

arguments. We agree with Travis.

¶15 Kristine’s “slightly different” characterization of the 

second motion is incorrect. In Travis’s first motion, he primarily 

argued that, pursuant to rule 60(b)(5), the judgment as first 

renewed should not be renewed a second time because he had 

already satisfied the underlying judgment. He further argued 

that the district court should use its equitable powers under rule 

60(d) to release him from the judgment. In his second motion, 

filed a year after the judgment was renewed for a second time, 

he focused on a new legal theory, namely that the judgment as 

renewed a second time was void under rule 60(b)(4) because, 

under the Renewal of Judgment Act, the court lacked subject 

matter jurisdiction to renew it for a second time. Our review of 

the record shows that this argument never appeared in Travis’s
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first motion, where he sought relief from the judgment as first 

renewed and opposed further renewal of the judgment. Thus, 

we decline to affirm the court’s ruling on this alternative ground 

because Travis’s second motion was not functionally a motion to 

reconsider but asserted a new theory for why a subsequently 

entered judgment, i.e., the judgment as renewed for a second 

time by the court, should be set aside pursuant to rule 60(b)(4).

III. Timeliness

¶16 Kristine argues a second alternative basis on which we 

can affirm the district court notwithstanding any error in its 

waiver ruling. Kristine points out that Travis’s second motion 

came after rule 60(c)’s ninety-day deadline or, in the alternative, 

that it came so late as to have exceeded a reasonable time. As 

previously stated, we will occasionally affirm a district court’s 

order on an alternative ground that is apparent from the record, 

“[b]ut we ha[ve] no obligation to do so.” Scott v. Scott, 2020 UT 

54, ¶ 31, 472 P.3d 897. Although we consider this argument, we 

ultimately decline to exercise our discretion to affirm on this 

alternative ground.

¶17 Rule 60(c) requires that motions to set aside a judgment 

pursuant to rules 60(b)(1), (2), and (3) must be filed within ninety 

days “after entry of the judgment or order.” Utah R. Civ. P. 60(c). 

The rule also prescribes that motions filed pursuant to 60(b)(4), 

while not subject to the ninety-day rule, “must be filed within a 

reasonable time.” Id. See In re Estate of Willey, 2016 UT 53, ¶¶ 7, 

12, 16, 391 P.3d 171. Thus, because Travis premised his second 

motion on the ground that the judgment was void under 

60(b)(4), it was not subject to the ninety-day limit. But due to the 

somewhat inconsistent nature of the applicable caselaw on this 

issue, it is not entirely clear whether even the “reasonable time” 

limit applies to motions brought under 60(b)(4).

¶18 In January 2015, our Supreme Court held in Migliore v.

Livingston Financial, LLC, 2015 UT 9, 347 P.3d 394, that a 
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defendant’s rule 60(b)(4) motion asserting the judgment was 

void on the ground that “he was denied due process of law,”

which motion was “brought nearly two years after entry of

summary judgment, [was] not time barred” because “‘where the 

judgment is void . . . the time limitations of [former5] [r]ule 60(b) 

have no application.’” Id. ¶¶ 23–24 (quoting Garcia v. Garcia, 712 

P.2d 288, 290 (Utah 1986)). Under this rationale, Travis’s motion 

would be timely. 

¶19 But less than two years later, in November 2016, the Court 

issued In re Estate of Willey, 2016 UT 53, 391 P.3d 171, in which it 

noted that “[i]t is an unsettled question in Utah whether all 

claims that judgments are void under rule 60(b)(4) are subject to 

the reasonable time limit imposed by rule 60(c).” Id. ¶ 16. The 

Court continued: 

Although the language of rule 60(c) states 

that all motions under paragraph (b) must be filed 

within a reasonable time, this court has held that 

“where the judgment is void because of a fatally 

defective service of process, the time limitations of 

[r]ule 60(b) have no application.” Garcia v. Garcia, 

712 P.2d 288, 290 (Utah 1986). While Garcia and a 

prior case, Woody v. Rhodes, 23 Utah 2d 249, 461 

P.2d 465, 466 (1969), limited their holdings to 

motions based on a “fatally defective service of 

process,” we recognize that Garcia continued to 

state, “there is no time limit on an attack on a 

judgment as void.” 712 P.2d at 291 (citation 

 

5. When the Court issued Garcia v. Garcia, 712 P.2d 288 (Utah 

1986), the time limitations for a 60(b) motion were found in 

subsection 60(b)(7). Those same time limitations have now been 

moved, with some minor adjustments in phraseology, to 

subsection 60(c). Compare Utah R. Civ. P. 60(b) (1986), with id. R. 

60(c) (2016).
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omitted). But the language in Garcia advancing the 

notion that “the requirement that the motion be 

made within a ‘reasonable time,’ . . . cannot be 

enforced with regard to [a rule 60(b)(4)] motion” is 

dicta given the clear holding of the case. Id.

(citation omitted). Garcia held only that “where the 

judgment is void because of a fatally defective 

service of process, the time limitations of [r]ule 

60(b) have no application.” Id. at 290 (emphasis 

added). Therefore, apart from the dicta in Garcia, 

this court has not extended the exemption from the 

reasonable time requirement in rule 60(c) to claims 

other than those based on “fatally defective service 

of process.” Id.

In re Estate of Willey, 2016 UT 53, ¶ 17 (alterations in original)

(footnote omitted). The Court then determined that it was 

“unnecessary for [it] to resolve whether the reasonable time limit 

applies to all motions made under rule 60(b)(4)” and proceeded 

to address and reject the motion before it on the merits. Id. ¶¶ 19, 

42. 

¶20 In In re Estate of Willey, the Court did not acknowledge or 

explain Migliore’s seemingly strong embrace of the language in

Garcia and its apparent application to all motions brought

pursuant to rule 60(b)(4). Therefore, it must be regarded as an 

unsettled issue whether all motions brought under rule 60(b)(4), 

aside from those turning on defective service of process, see 

Garcia, 712 P.2d at 290, are subject to the reasonable time 

requirement of 60(c), and we cannot rely on the language in 

Migliore to conclude that Travis’s second motion was not subject

to the reasonable time limit imposed by rule 60(c).

¶21 But just as our Supreme Court did in In re Estate of Willey,

we determine that it is unnecessary to resolve this question in 
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this case,6 and we decline to exercise our discretion to rule on 

this alternative ground. See Scott, 2020 UT 54, ¶ 31. We do so 

because it is undisputed that the district court did not dismiss 

Travis’s second motion on the ground that it was filed beyond a 

reasonable time under rule 60(c) but rather on the erroneous 

ground that Travis had waived his voidness argument because 

he could and should have raised it in his first motion. Because 

this reasoning was incorrect, we believe it best at this juncture 

that the district court first address the merits of Travis’s second 

motion free of any concern that his arguments should have been 

raised in his earlier motion.

CONCLUSION

¶22 The district court erred in dismissing Travis’s second 

motion on procedural grounds because rule 12(h) did not bar 

Travis from bringing his subject matter jurisdiction argument 

under rule 60(b)(4) in that motion. We also decline to affirm the 

district court’s ruling on Kristine’s alternative arguments that 

Travis’s motion was essentially a motion to reconsider or that it 

was untimely under rule 60(c). Therefore, we remand the case to 

the district court for it to consider on the merits the motion to set 

aside the second renewed judgment on the theory that the 

judgment was void based on a lack of subject matter jurisdiction 

pursuant to the terms of the Renewal of Judgment Act.

 

6. Given the recurrence of this issue and the apparent 

inconsistency between relatively recent Supreme Court opinions, 

our Supreme Court may wish to re-examine this issue in an 

appropriate case to provide clarity on this important question.