Cooper v. Dressel

Decision Date22 December 2016
Docket NumberNo. 20150322-CA,20150322-CA
Citation391 P.3d 338
Parties Val COOPER and Richard Cooper, Appellees, v. Nate DRESSEL and Jen Dressel, Appellants.
CourtUtah Court of Appeals

Jon M. Hogelin and Benjamin T. Lakey, Provo, Attorneys for Appellants

Tyler S. Foutz, Salt Lake City, Attorney for Appellees

Judge Michele M. Christiansen authored this Memorandum Decision, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Memorandum Decision

CHRISTIANSEN, Judge:

¶1 Nate Dressel and Jen Dressel challenge the district court's denial of their Utah Rule of Civil Procedure 60(b) motion to set aside a default judgment against them. Specifically, the Dressels contend that the district court erred in determining that a summons and complaint had been properly served upon them. In the alternative, pursuant to rule 60(b)(1), the Dressels contend that the district court abused its discretion by denying their motion to set aside the default judgment due to mistake, inadvertence, surprise, or excusable neglect. Because we determine that service was defective, we reverse the denial of the Dressels' motion, vacate the judgment entered against the Dressels, and remand the case to the district court for further proceedings as appropriate. Given our resolution, we need not and do not address the rule 60(b)(1) aspects of this case.

¶2 "[W]hether a person has been served with process is a question of fact, [but] whether a person is properly served is a question of law." Reed v. Reed , 806 P.2d 1182, 1184 n.3 (Utah 1991) (emphasis added) (citation omitted). Thus, while we review the district court's factual findings as to service for clear error, we review its legal conclusions flowing therefrom for correctness. See id. at 1184–85 ; Bonneville Billing v. Whatley , 949 P.2d 768, 771 (Utah Ct. App. 1997).

¶3 The district court lacks personal jurisdiction when there has not been effective service of process, such as by personal service, service by mail, or service by publication. See Saysavanh v. Saysavanh , 2006 UT App 385, ¶ 8, 145 P.3d 1166. And judgments entered by a district court lacking personal jurisdiction over the defendant are void. Judson v. Wheeler RV Las Vegas, LLC , 2012 UT 6, ¶ 15, 270 P.3d 456. Consequently, a judgment entered against party that was never properly served is void. One method of properly serving a party is by personal service; personal service of process may be accomplished "by delivering a copy of the summons and the complaint to the individual personally, or by leaving a copy at the individual's dwelling house or usual place of abode with some person of suitable age and discretion there residing." Utah R. Civ. P. 4(d)(1)(A) (2015).1

¶4 In November 2013, Nate Dressel, purporting to act for himself and for Jen McKellar (later Dressel), signed a twelve month lease with Val Cooper and Richard Cooper for a furnished house in Utah County. The lease included an early termination fee equivalent to three months' rent ($4,050). With four months remaining on the lease, the Dressels sent a letter to the Coopers that stated, "This is a written notice to inform you that as of August 1st, 2014, we are no longer your tenants.... We have vacated the property on the grounds of constructive eviction."2 In the letter, the Dressels requested that their deposit be returned to them via a check or money order sent to an address in Sequim, Washington (the Sequim Address).

¶5 On August 22, 2014, the Coopers sued the Dressels, seeking over $11,000.3 In order to serve their complaint upon the Dressels, the Coopers subpoenaed the local United States Postmaster, who then revealed that the Dressels' mail was being forwarded to the Sequim Address. The Coopers also consulted an online database, which likewise pointed them to the Sequim Address. Accordingly, although they had no evidence that the Dressels' "usual place of abode" was at the Sequim Address, the Coopers hired a process server to effect personal service on them at that address. The process server filed an affidavit stating that she had served the complaint and summons upon the Dressels on September 26, 2014, by "personally delivering ONE true and correct copy [of the documents] and leaving the same with MRS. McKELLAR, MOTHER OF JEN DRESSEL." However, Mrs. McKellar later filed an affidavit stating, "When the process server approached me, I told the process server that neither Nate Dressel nor Jen Dressel resided at the address.... I refused to accept any papers from the process server." Because neither Dressel answered or otherwise appeared in the action, the district court issued a default judgment against the Dressels on November 13, 2014, in the amount of $13,005.70. On December 5, 2014, the Coopers' attorney mailed a notice of entry of judgment to the Dressels at the Sequim Address.

¶6 The notice of entry of judgment was forwarded, possibly by Mrs. McKellar, to the Dressels, who received it on December 16, 2014. On December 23, 2014, the Dressels filed a motion to set aside the default judgment. They asserted three bases in support of that motion: that the default judgment was void for insufficiency of service, that the default judgment should be set aside under rule 60(b), and that the complaint should be dismissed pursuant to rule 12(b)(6).See generally Utah R. Civ. P. 12(b)(5) (insufficiency of service); id. R. 60(b) (relief from judgment due to mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, etc.); id. R. 12(b)(6) (failure to state a claim upon which relief can be granted).

¶7 The district court held a hearing, at the conclusion of which it orally ruled that service had been proper:

[The Dressels] lived in a mobile home with no address. They provided an address [and] expected to ... have their deposit sent to that address. It was [the Sequim Address]. That was the same address provided by the U.S. Postal Services as [the Dressels'] forwarding address. And, finally, the notice of judgment was sent to that address as well. And that is the time period or at least the claim in which [the Dressels] are saying they became aware of the judgment. All roads point to the fact that [the Sequim Address] is their usual place of abode and that was where they expected to receive notifications regarding any mail that was received.... So I'm finding that there was effective service of process in this matter....

The court also denied the rule 60(b) aspects of the motion. The court later issued a written order confirming the oral rulings; that written order was supported by four "findings." The entirety of the court's written findings as to service consisted of a single sentence, which actually set forth a legal conclusion: "The Court finds [the Dressels] were lawfully and validly served at [the Sequim Address]."

¶8 On appeal, the Dressels contend the district court erred in determining that the service was valid. While the district court's written order does not explicitly refer to personal service, the hearing transcript shows that the service determination was based on the court's conclusion that the Sequim Address was the Dressels' "usual place of abode." Indeed, the Coopers had not argued that, and the district court did not discuss whether, service by mail or service by other means had been accomplished. Compare Utah R. Civ. P. 4(d)(1)(A) (2015) (providing that personal service may be accomplished when the plaintiff causes, inter alia, a copy of the summons and complaint to be left "at the [defendant's] dwelling house or usual place of abode with some person of suitable age and discretion"), with id. R. 4(d)(2) (detailing the requirements for accomplishing service by mail), and id. R. 4(d)(4) (detailing the requirements for accomplishing service by publication or other means).

¶9 In Reed v. Reed , the Utah Supreme Court addressed a situation similar to the one at bar. 806 P.2d 1182 (Utah 1991). There, roughly a year after divorcing the defendant, the plaintiff sought to recover from him personal property that had been awarded to her. Id. at 1183. She "caused the sheriff to serve the subject summons upon [the defendant] and his parents at his parents' home ... where [the defendant] had resided during the pendency of the divorce." Id. The parents informed the sheriff that the defendant no longer lived there; "[t]he sheriff nevertheless left [the defendant's] copy of the summons at the parents' home and completed a return of service." Id. That same month, the defendant moved to quash service. Id.

¶10 The correctness question before the Reed court was whether the district court had properly determined that the defendant actually lived at his parents' home such that service had been properly accomplished by leaving a copy of the summons at that home. See id. at 1184 ; see also id. at 1184–85 ("The district court's determination of whether, under the facts presented, [a defendant's] parents' home fits within the definition of the usual place of abode is a question of law. When reviewing the district court's conclusions of law, we give no deference to the court but review those conclusions for correctness."). The Reed court noted that it had previously held that " ‘where a person abides—lives—at the particular time when the summons is served, constitutes his usual place of abode.’ " Id. at 1185 (quoting Grant v. Lawrence , 37 Utah 450, 108 P. 931, 933 (1910) ). The Reed court clarified that "[n]o hard and fast rule can be fashioned to determine what is or is not a party's dwelling house or usual place of abode" within the meaning of rule 4. Id. (citation and internal quotation marks omitted). Accordingly, the court considered "the totality of the circumstances," including (1) that the plaintiff had demonstrated the defendant's presence in the community around the time of the service, (2) that the defendant had listed his home address as his parents' house on his tax returns for the previous two years, (3) that the defendant had resided there during the pendency of the...

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  • Silva v. Silva
    • United States
    • Utah Court of Appeals
    • 28 Julio 2017
    ...process is a question of fact, but whether a person is properly served is a question of law." Cooper v. Dressel , 2016 UT App 246, ¶ 2, 391 P.3d 338 (brackets, citation, and internal quotation marks omitted). "Thus, while we review the district court's factual findings as to service for cle......
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    ...While it is true that proper service is required to exercise jurisdiction over a party, see Cooper v. Dressel , 2016 UT App 246, ¶ 3, 391 P.3d 338 (stating that "a judgment entered against party that was never properly served is void" for lack of personal jurisdiction), the question here is......
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