Central Bank & Trust Co. v. Jensen

• Decision Date: 10 December 1982
• Docket Number: No. 17754,17754
• Citation: 656 P.2d 1009
• Court: Utah Supreme Court
• Parties: CENTRAL BANK & TRUST COMPANY, Plaintiff and Respondent, v. Wendell Alan JENSEN and Ann Jensen, Defendants and Appellants.

Page 1009

656 P.2d 1009

CENTRAL BANK & TRUST COMPANY, Plaintiff and Respondent, v. Wendell Alan JENSEN and Ann Jensen, Defendants and Appellants.

No. 17754.

Supreme Court of Utah.

Dec. 10, 1982.

David H. Schwobe, Salt Lake City, for defendants and appellants.

Brent D. Young, Provo, for plaintiff and respondent.

STEWART, Justice:

This is an appeal from the denial of the defendants' motion to set aside a default judgment. They contend that the default judgment should have been set aside because: (1) The service of process was defective in requiring an answer within twenty days rather than thirty days; and (2) plaintiff failed to give defendants notice of the default judgment. Defendants also allege error in the court's denial of their request for oral argument on the motion.

On October 23, 1980, plaintiff Central Bank & Trust Company (Central Bank) filed a complaint seeking a money judgment against the Jensens for the unpaid balance on their Master Charge account. Earlier that day a representative of Central Bank had spoken to Mrs. Jensen by telephone and she had informed the representative that their house in Utah County was being sold and that they were leaving Utah County that same day. She refused to give any address where they could be reached other than a post office box number in Provo, Utah. Consequently, Central Bank filed a motion for alternative service of process, which was granted on October 23, 1980. The clerk filed a proof of mailing of a summons and complaint the following day, stating that the summons was mailed to the post office box in Provo. Also, on October 24, 1980, a writ of attachment was issued attaching real property owned by the Jensens. A hearing was set for October 31, 1980, to consider an extension of the writ of attachment. The Jensens failed to appear, and the trial judge entered an order extending the writ.

On November 5, 1980, the Jensens' attorney, David H. Schwobe, contacted Central Bank's counsel, Brent D. Young. Schwobe advised Young that he was representing the Jensens, and a discussion of the complaint and attachment proceedings ensued. The next day Schwobe wrote to Young requesting copies of the pleadings and all other documents. On November 14 Young answered the letter, refusing to supply documentation to aid Schwobe in making a special appearance, but expressing a willingness to cooperate if Schwobe appeared generally. With no answer having been filed, a default judgment was entered December 4, 1980.

For unexplained reasons, that did not end the legal maneuverings. On December 8 1980, Schwobe replied to Young's letter of November 14 and again requested a copy of the complaint. On December 31, 1980, Young served the Jensens at their California residence with another summons and complaint, even though a default judgment had already been entered on the first complaint. On January 22, 1981, Schwobe served upon Young an answer and counterclaim relating to the second summons and complaint, served on December 31. The answer and counterclaim were returned to Schwobe for failure to attach the filing fee required for a counterclaim, and on March 5, 1981, the answer and counterclaim were filed. On March 11, 1981, Central Bank filed a motion to strike the answer and counterclaim on the basis that a default judgment had been entered. Allegedly this was defendants' first notice of the default judgment, and on March 17, 1981, they filed a motion to set it aside for defective process and inadequate notice of the judgment, together with a memorandum and a request for oral argument if the court did not rule on the matter summarily. Plaintiff's counsel filed an affidavit stating that the defendants were properly served. The trial judge, without oral argument, denied the Jensens' motion to set aside the default judgment.

Defendants argue that the default judgment is void because, they argue, they were served with a 20-day rather than a 30-day summons, as impliedly required by U.C.A., 1953, Sec. 78-27-27. ¹ However, the allegation is without support in the record. We therefore presume that the summons was proper.

Defendants also contend that in light of the communications between counsel, Young had an obligation under Rules 5 and 77, Utah R.Civ.P., to notify Schwobe of the default judgment upon receipt of the answer and counterclaim in this matter. However, both of those rules expressly exclude parties in default from those entitled to notice. ² Rule 55(a)(2) also provides that a party in default need not be given notice of the entry of default:

After the entry of the default of any party, as provided in subdivision (a)(1) of this Rule, it shall not be necessary to give such party in default any notice of action taken or to be taken or to serve any notice or paper otherwise required by these Rules to be served on a party to the action or proceeding, except as provided in Rule 5(a).

We therefore conclude that plaintiff was under no duty to notify defendants of the default and that the trial court correctly rejected the argument that there was such a duty.

We are satisfied that defendants had actual notice of the suit filed against them. Indeed, that fact has never been denied or controverted. The defendants knowingly shirked their duty to respond, and they have no valid basis for setting the default aside.

The events subsequent to the entry of default do, however, raise a cause for concern. It is well settled that in obtaining a default judgment an attorney may not engage in deceitful or misleading conduct designed to lull a non-answering party into a false...