2015 UT App 171

THE UTAH COURT OF APPEALS

D. DOUGLAS VELANDER,

Plaintiff and Appellant,

v.

LOL OF UTAH, LLC, AND KEVIN G. RICHARDS,

Defendants and Appellee.

Memorandum Decision

No. 20140471-CA

Filed July 9, 2015

Second District Court, Ogden Department

The Honorable Mark R. DeCaria

No. 080905254

Samuel A. Hood, Attorney for Appellant

Brian M. Lindquist, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision, 

in which JUDGES JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN

concurred.

ORME, Judge:

¶1 Appellant D. Douglas Velander filed an action to collect a 

debt against Appellee Kevin G. Richards, among others. More 

than four years later, the district court dismissed the case for 

failure to prosecute. Velander appeals, arguing that the district 

court abused its discretion by dismissing the case. We affirm.

¶2 On August 20, 2008, Velander filed a debt collection 

action in the district court on behalf of the Velander Family

Trust. Richards was one of several defendants named in the 

complaint. Velander alleged that on August 5, 2005, LOL of 

Utah, LLC, executed a promissory note in favor of the trust for 

$71,288 and that this note was due one year from execution.

Velander also alleged that Richards was one of five individuals 

who personally guaranteed payment of the note.
Velander v. LOL of Utah, LLC

20140471-CA 2 2015 UT App 171

¶3 Richards answered the complaint on September 10, 2008, 

disputing that he was responsible for payment of the note. Just 

over four years later, on September 14, 2012, Richards moved for

dismissal of the case under rule 41(b) of the Utah Rules of Civil 

Procedure, arguing that Velander had failed to prosecute. On 

December 21, 2012, the district court granted that motion.1

¶4 “‘[We] do not disturb [a trial court’s order of dismissal for 

failure to prosecute] absent an abuse of discretion and a 

likelihood that an injustice occurred.’” PDC Consulting, Inc. v. 

Porter, 2008 UT App 372, ¶ 5, 196 P.3d 626 (alterations in 

original) (quoting Hartford Leasing Corp. v. State, 888 P.2d 694, 697 

(Utah Ct. App. 1994)). Velander essentially argues that the 

district court abused its discretion in weighing and analyzing the 

factors outlined in Westinghouse Electric Supply Co. v. Paul W. 

Larsen Contractor, Inc., 544 P.2d 876, 879 (Utah 1975).

 

1. In his brief, Velander asserts that this December 2012 dismissal 

is “the order from which this appeal is primarily taken.” We 

acknowledge, however, that the procedural posture of this case 

is slightly more complicated than what we have just outlined. 

Following the December 2012 order of dismissal, Velander filed 

a motion to amend the judgment. See Utah R. Civ. P. 59. The 

district court denied that motion as untimely. Velander 

appealed, and this court reversed. Velander v. LOL of Utah, LLC, 

2013 UT App 196, ¶ 5, 307 P.3d 710 (per curiam). Following that 

appeal, the district court considered Velander’s renewed rule 59 

motion on its merits. The court denied the motion in April 2014 

but acknowledged “two legal errors” contained in its December 

2012 order of dismissal. The court incorporated its amended 

analysis, contained in the April 2014 order, as the “basis for the 

Court’s final order.” Velander then filed the instant appeal. 

Inasmuch as Velander’s appeal raises issues that were cured by 

the court’s April 2014 order, we regard those issues as moot. 

Velander does not claim to appeal that order, and he offers no 

analysis specific to it.
Velander v. LOL of Utah, LLC

20140471-CA 3 2015 UT App 171

¶5 In Westinghouse, the Utah Supreme Court explained that a 

dismissal for failure to prosecute would constitute an abuse of 

discretion if there was justifiable excuse for the delay. Id. at 878–

79.

Whether there is such justifiable excuse is to be 

determined by considering more factors than 

merely the length of time since the suit was filed. 

Some consideration should be given to the conduct 

of both parties, and to the opportunity each has 

had to move the case forward and what they have 

done about it; and also what difficulty or prejudice 

may have been caused to the other side; and most 

important, whether injustice may result from the 

dismissal.

Id. at 879 (footnote omitted). The district court organized its

analysis around these factors in its December 2012 order 

dismissing the case and in its April 2014 order denying

Velander’s motion to amend the judgment.

¶6 In attacking the district court’s analysis, Velander 

specifically argues that (1) he was not required to initiate a 

scheduling conference and Richards’s right to conduct discovery 

was not dependent on such a conference, (2) Richards suffered 

no prejudice and Velander gained no financial advantage 

because of the delay in prosecuting the case, and (3) the 

dismissal caused significant injustice to Velander.2

 

2. The district court acknowledged that its December 2012 order 

erroneously applied rule 26(f) of the Utah Rules of Civil 

Procedure, as then in effect. See Utah R. Civ. P. 26(f) (2011). It 

also acknowledged that its original order erroneously 

interpreted the interest rate that would apply to any judgment 

that might have ultimately been entered in the case. 

Problematically for Velander, his appeal rests almost entirely on 

these two claimed errors. Because the district court corrected 

(continued...)
Velander v. LOL of Utah, LLC

20140471-CA 4 2015 UT App 171

¶7 Under rule 41(b), a case can be dismissed “[f]or failure of 

the plaintiff to prosecute or to comply with [the Rules of Civil 

Procedure].” Utah R. Civ. P. 41(b). The district court found both 

that Velander had “not complied with the Utah Rules of Civil 

Procedure” and that he had “failed to prosecute [his] claim 

against Richards.” The court originally found that Velander had 

failed to arrange for a scheduling conference in accordance with 

rule 26(f). See id. 26(f) (2011).3 The court, in its April 2014 order, 

acknowledged that some of the defendants in the action were 

not represented by counsel and that rule 26(f) therefore did not 

apply. See id. R. 26(a)(2)(A). The court nevertheless determined 

that this change in its analysis did not “affect[] its original 

weighing of the Westinghouse factors in any way.” Velander’s 

arguments on this point focus entirely on the court’s rule 26

analysis, which the court rescinded in its April 2014 order. 

 

(...continued)

itself on these two issues and nevertheless determined that 

dismissal was proper, and because Velander focuses almost 

exclusively on these two issues throughout his brief, there really 

is little for us to decide. Accordingly, we briefly review the 

factors articulated in Westinghouse Electric Supply Co. v. Paul W. 

Larsen Contractor, Inc., 544 P.2d 876, 879 (Utah 1975), with which 

Velander takes issue. We conclude that most of Velander’s 

specific arguments are moot. Cf. Maverik Country Stores, Inc. v. 

Industrial Comm'n, 860 P.2d 944, 947 (Utah Ct. App. 1993)

(explaining that when “‘an administrative agency . . . correct[s]

its own errors,’” the controversies become moot) (quoting Parisi 

v. Davidson, 405 U.S. 34, 37 (1972)).

3. With the exception of rule 26 of the Utah Rules of Civil 

Procedure, which has since been significantly revised, the rules 

that we cite in this memorandum decision have not been 

substantively changed since the district court made its decision. 

Accordingly, except when citing rule 26, we cite the current 

version of the rules. 
Velander v. LOL of Utah, LLC

20140471-CA 5 2015 UT App 171

Velander’s arguments on this first issue are therefore moot and 

will not be considered further.

¶8 Next, Velander takes issue with the district court’s 

analysis under the fourth Westinghouse factor—what difficulty or 

prejudice may have been caused to Richards.4 See K.L.C. Inc. v. 

McLean, 656 P.2d 986, 988 (Utah 1982) (per curiam). The district 

court’s

original ruling found three types of prejudice that 

[Velander’s] failure to prosecute caused [Richards]: 

1) the ever-persistent threat of damages in a law 

suit, 2) the continuing increase of interest owing on 

the debt throughout the entire span of [Velander’s] 

 

4. The district court’s analysis of the first three Westinghouse

factors, outside its eventually rescinded rule 26 discussion, 

included the following:

1. The Conduct of Both Parties

Neither party pursued resolution of Plaintiff’s 

claim for over 3 years. The burden of prosecuting a case, 

however, lies with the Plaintiff.

2. The Opportunity Each Party has had to Move the Case 

Forward

Plaintiff bore the burden to begin the litigation 

process. Yet, Plaintiff failed to make any attempts to move 

the case against Richards forward for over three years. . . . 

[I]t would be foolish for Richards to pressure the Plaintiff 

to pursue a claim against him. Richards did all that he 

was required to do. 

3. What Each Party has Done to Move the Case Forward

Since Richards filed his answer, he has done 

nothing to move the case against him forward. He, 

however, was under no obligation to do so. Plaintiff, 

likewise, did not do anything to move this case forward 

until about October 2011 when it first began attempting to 

contact Richards in hopes of settlement. 
Velander v. LOL of Utah, LLC

20140471-CA 6 2015 UT App 171

delay, and 3) the higher rate of interest owed prior 

to judgment than after judgment. 

In its April 2014 order, the court reversed its finding of the third 

type of prejudice, and Velander’s arguments related to the same 

are now inapposite. Moreover, Velander does not contest the 

first form of prejudice. We are thus left to consider whether the 

district court erred in finding prejudice to Richards because of 

the increased interest caused by Velander’s delay and whether 

that error, if any, affected the court’s weighing of the 

Westinghouse factors.

¶9 There can be no dispute that the interest on the alleged 

debt increased significantly over time. The note provided for 

interest at the unusually high rate of three percent per month, 

compounded monthly. The longer the case went unresolved, the 

more interest accrued on any future judgment. Velander rightly 

acknowledges that “[t]he only thing that would have mitigated 

the ballooning interest charges for Richards would be to pay on 

the obligation.” It is counter-intuitive, however, to expect 

Richards to pay on an obligation that he disputed.5 Furthermore, 

while Velander is right that no one can know how long the case 

might have taken to reach resolution, there is no real dispute 

 

5. Velander questions whether the dispute was made in good 

faith. At oral argument before this court, counsel for Velander 

referred to an email in which Richards acknowledged 

responsibility for the debt, only later to deny all responsibility in 

his answer. Such a scenario would presumably have triggered an 

immediate motion to strike the answer and to have sanctions 

imposed for the apparent violation of rule 11. See Utah R. Civ. P. 

11(b)(4), (c). Instead, Velander filed nothing regarding the email 

for forty-eight months. The email was first raised in Velander’s 

motion for summary judgment, filed a week after Richards’s 

motion to dismiss for failure to prosecute. In view of the

dismissal, the district court never reached the merits of 

the summary judgment motion.
Velander v. LOL of Utah, LLC

20140471-CA 7 2015 UT App 171

that Velander’s inaction caused the case to sit dormant for three 

years, during which three years’ worth of exceptionally high 

interest accrued. So while the prejudice to Richards might not 

have been as significant as the district court originally thought 

(when it was under the mistaken impression that the interest 

rate would decrease once the debt was reduced to judgment), the 

delay still caused prejudice to Richards by allowing inordinately 

high interest to accumulate for three years while Velander did 

nothing vis-à-vis Richards.

¶10 Finally, we consider Velander’s argument that dismissal 

caused him significant injustice. It is important to note that 

Velander obtained default judgments against each of the other 

defendants originally named in the complaint, and he did so 

rather expeditiously. This is not, then, a case where the court’s 

decision not to hear Velander’s case on the merits left him 

wholly without a remedy. And Velander has offered no 

legitimate excuse for why he could not have pursued his case 

against Richards with the same swiftness he used in obtaining 

judgments against the other defendants.

¶11 The only arguments asserted by Velander that were not 

rendered moot by the district court’s April 2014 order were those 

dealing with the prejudice caused to Richards and the injustice 

suffered by Velander. The other three Westinghouse factors, 

which the district court determined weighed in favor of 

dismissing the case, remain unchallenged. We conclude that the 

prejudice caused to Richards in the form of increased interest 

was significant—we were told at oral argument that the total 

debt now due on this note, with a face value just over $71,000, is 

some $2 million—and Velander’s loss of a cause of action against 

Richards did not result in the sort of injustice that necessarily

outweighs the other factors that must be considered. 

Accordingly, we affirm the district court’s dismissal for failure to 

prosecute.