JACKSON CONST. CO., INC. v. Marrs

Decision Date29 October 2004
Docket NumberNo. 20020745.,20020745.
Citation100 P.3d 1211,2004 UT 89
PartiesJACKSON CONSTRUCTION COMPANY, INC., Plaintiff and Appellee, v. Robert C. MARRS, Douglas R. Marrs, and John Does I-V, Defendants and Appellants.
CourtUtah Supreme Court

Shawn T. Farris, Eric R. Gentry, St. George, for plaintiff.

Russell J. Gallian, St. George, for defendants.

PARRISH, Justice:

¶ 1 Douglas and Robert Marrs ("Douglas and Robert") ask us to reverse the district court's denial of their motion to set aside a default judgment extinguishing their cotenant interest in a piece of real property and awarding exclusive ownership of the property to Jackson Construction Company ("Jackson Construction") based on a claim of adverse possession. Douglas and Robert assert that they were entitled to have the default judgment set aside because Jackson Construction never effectively served them with process, thereby depriving the district court of jurisdiction to enter the default judgment against them. Alternatively, Douglas and Robert contend that the district court was obligated to set aside the default judgment because the complaint upon which it was based failed to state a legally cognizable claim for adverse possession against a cotenant.

¶ 2 We hold that the district court lacked jurisdiction to enter the default judgment because Jackson Construction failed to perfect service of process on Douglas and Robert. Specifically, Jackson Construction failed to exercise reasonable diligence before attempting service by publication under rule 4(d)(4)(A) of the Utah Rules of Civil Procedure. We accordingly reverse the district court and vacate the default judgment.

BACKGROUND

¶ 3 In 1981, Douglas and Robert inherited undivided one-fourth interests in a piece of real property located in Washington County, Utah. At the time, the remaining undivided one-half interest was owned by Mac and Ione Reber. In 1985, Jackson Construction acquired the Rebers' interest. Douglas asserts that he called Jackson Construction shortly after the transfer, introduced himself, and provided his work telephone number. Jackson Construction admits there may have been a call, but remembers no correspondence or written communication between the two parties. Neither Douglas nor Robert resided in Washington County, and neither made any attempt to improve or occupy the property. In fact, on two occasions, Jackson Construction redeemed the property from tax sales.

¶ 4 In 1998, Jackson Construction filed a complaint that sought a judgment awarding Jackson Construction sole ownership of the property, alleging that it had adversely possessed Douglas and Robert's interests. Jackson Construction simultaneously filed a motion to effectuate service by publication. The motion was accompanied by the affidavit of counsel for Jackson Construction, in which counsel testified that he was unable to determine a viable address for either Robert or Douglas and therefore believed that publication was the only effective means of communicating service. In its memorandum supporting its motion for service by publication, Jackson Construction represented that it had mailed a letter addressed to Douglas and Robert at their last known address in California and that the letter had been returned as "undeliverable."

¶ 5 The district court granted the motion for service by publication, and Jackson Construction thereafter published notice of its action in the Daily Spectrum, a Washington County newspaper, once per week for four weeks. Neither Douglas nor Robert responded to the publication. On January 20, 1999, the district court entered an order of default judgment terminating Douglas and Robert's interests in the property and awarding sole ownership to Jackson Construction.

¶ 6 Douglas and Robert learned of the default judgment in December 2001 and thereafter filed a motion with the district court to have service quashed and the default judgment set aside pursuant to rule 60(b)(4) of the Utah Rules of Civil Procedure.1 They argued that the court lacked jurisdiction to terminate their interests in the property because Jackson Construction had failed to exercise reasonable diligence in attempting to locate them prior to filing its motion for service by publication, as required by rule 4(d)(4)(A) of the Utah Rules of Civil Procedure. Douglas and Robert also argued that the default judgment was invalid because Jackson Construction's complaint failed to state a viable claim for adverse possession against a cotenant. The district court ruled in favor of Jackson Construction, holding that Jackson Construction had exercised reasonable diligence before seeking service by publication in light of Douglas and Robert's apparent disinterest in the property in preceding years and Jackson Construction's redemption of the property from past tax sales. Douglas and Robert appeal to this court.

¶ 7 We reverse, holding that Jackson Construction failed to exercise reasonable diligence before seeking permission to serve Douglas and Robert by publication. The district court therefore lacked jurisdiction to enter the default judgment and consequently erred in denying Douglas and Robert's motion to set aside that judgment. Our ruling on this issue obviates the need to address Douglas and Robert's alternative claim that Jackson Construction's complaint failed to state a viable claim of adverse possession against a cotenant.

ANALYSIS

¶ 8 "Personal jurisdiction ... is the court's ability to exercise its power over a person for the purposes of adjudicating his or her rights and liabilities. A lack of [personal jurisdiction] is fatal to a court's authority to decide a case with respect to a particular litigant." State v. Vijil, 784 P.2d 1130, 1132 (Utah 1989) (citations omitted).

A denial of a motion to vacate a judgment under rule 60(b) is ordinarily reversed only for an abuse of discretion. However, when a motion to vacate a judgment is based on a claim of lack of jurisdiction, the district court has no discretion: if jurisdiction is lacking, the judgment cannot stand without denying due process to the one against whom it runs. Therefore, the propriety of the jurisdictional determination, and hence the decision not to vacate, becomes a question of law upon which we do not defer to the district court.

Id. (citations omitted); see also Garcia v. Garcia, 712 P.2d 288, 290 n. 4 (Utah 1986) (noting that "the requirements of rule 4 [of the Utah Rules of Civil Procedure] relating to service of process are jurisdictional").

¶ 9 Although jurisdictional questions present issues of law, the burden of demonstrating a lack of jurisdiction lies on the party challenging jurisdiction. "When a judgment, including a default judgment, has been entered by a court of general jurisdiction, the law presumes that jurisdiction exists, and the burden is on the party attacking jurisdiction to prove its absence." Vijil, 784 P.2d at 1133.

¶ 10 For a court to acquire jurisdiction, there must be a proper issuance and service of summons. Murdock v. Blake, 26 Utah 2d 22, 484 P.2d 164, 167 (1971). This requirement ensures that an individual will not be deprived of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1; Utah Const. art. I, § 7. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); see also Carlson v. Bos, 740 P.2d 1269, 1271 (Utah 1987) ("Service of process implements the procedural due process requirement that a defendant be informed of pending legal action and be provided with an opportunity to defend against the action.").

¶ 11 In Utah, rule 4 of the Utah Rules of Civil Procedure governs service of process. With respect to service by publication, rule 4 provides:

Where the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence,... the party seeking service of process may file a motion supported by affidavit requesting an order allowing service by publication or by some other means. The supporting affidavit shall set forth the efforts made to identify, locate or serve the party to be served, or the circumstances which make it impracticable to serve all of the individual parties.

Utah R. Civ. P. 4(d)(4)(A). Under this rule, litigants may not resort to service by publication until they have first undertaken reasonably diligent efforts to locate the party to be served. This reasonable diligence requirement arises from constitutional due process rights and the recognition that publication alone is generally not a reliable means of informing interested parties that their rights are at issue before the court. Mullane, 339 U.S. at 315, 70 S.Ct. 652 ("Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed.").

¶ 12 Douglas and Robert mount a two-part attack on the district court's jurisdiction to enter the default judgment. First, they argue that the district court's assessment of reasonable diligence was permeated by considerations of impermissible factors. Specifically, Douglas and Robert argue that the indifference they displayed toward the property prior to Jackson Construction's initiation of the lawsuit should have played no part in the court's assessment of Jackson Construction's reasonable diligence. Second, Douglas and Robert argue that once their prelitigation indifference toward the property is excised from the equation, Jackson Construction's efforts to locate them prior to requesting service...

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