Nelson v. Jacobsen

• Decision Date: 31 August 1983
• Docket Number: No. 17667,17667
• Citation: 669 P.2d 1207
• Parties: Brett W. NELSON, Plaintiff and Respondent, v. Jeff JACOBSEN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1207

669 P.2d 1207

Brett W. NELSON, Plaintiff and Respondent, v. Jeff JACOBSEN, Defendant and Appellant.

No. 17667.

Supreme Court of Utah.

Aug. 31, 1983.

Craig M. Snyder, Provo, for defendant and appellant.

K.L. McIff, Richfield, for plaintiff and respondent.

OAKS, Justice:

In a bench trial of this action for alienation of a wife's affections, the plaintiff husband obtained a judgment of $84,600 against a defendant who was unrepresented by counsel. On appeal, defendant seeks judgment notwithstanding the verdict or a new trial.

Plaintiff and Brenda Nelson were married July 15, 1978. He was 21 years old; she was 18. They lived in Salina. From the beginning, their marriage was characterized by turmoil and violence. Brenda testified that plaintiff frequently came home drunk and abused her physically and verbally. His heavy drinking led to numerous confrontations with the police, including two arrests for drunk driving. She also drank. Within two months of marriage, and long before either party knew defendant, plaintiff told Brenda he wanted a divorce.

Brenda Nelson first met defendant in the fall of 1978 in the Safari Motel and Cafe, which defendant managed for his parents. Defendant, who had been divorced, was then 31. Plaintiff met defendant in January 1979. The three became friends.

Brenda initiated most of the contact between herself and defendant. She first made sexual advances toward him at a party in January 1979, but they were unreciprocated at that time. In the next six months, she frequently visited defendant at his home in Axtell, "depend[ing] on [plaintiff's] work schedule," and she and defendant sometimes drove around together in her truck.

Plaintiff first became aware of Brenda's involvement with defendant in early June 1979. Twice he came home early from his night shift at the coal mine and discovered them together. The second discovery gave rise to a discussion that ultimately involved both spouses' parents, during which Brenda admitted seeing defendant and promised to stop. In late June, she talked with defendant at a beer party. Seeing this, plaintiff dragged her behind his truck and began beating her. When defendant intervened, a fight ensued between plaintiff and defendant in which plaintiff was injured.

Plaintiff quit the coal mine in July and took a job with a trucking company in order to spend more time with Brenda. About three weeks later, Brenda asked him to give her 17-year-old friend a ride home to Richfield on his way to work the night shift. Rather than driving the girl home, plaintiff bought four six-packs of beer, which the two drank as they drove around in his company truck. Plaintiff made sexual advances toward her. The two were seen together, and when plaintiff arrived at work he was summarily fired for drinking and having an underage passenger in his truck. Returning home late that night, still very drunk, he awakened Brenda with his shouting and cursing. While repeatedly pegging his hunting knife into the floor, he threatened to break every bone in her body if she didn't call her father to come for her. Brenda went to stay with her parents for a week. When the couple reconciled, Brenda's father counseled them both to stop drinking if they wanted to save their marriage.

Plaintiff's parents testified that plaintiff became despondent and withdrawn after he discovered Brenda's involvement with defendant, and that his drinking also increased. After being fired, plaintiff worked irregularly driving trucks for various construction companies, but he was unemployed for lengthy periods, and his income fell to half of its prior level.

In August 1979, Brenda told plaintiff she wanted time to think about their marital problems. She persuaded defendant to take her with him to Las Vegas, where they stayed overnight. Defendant testified that Brenda slept in a motel while he gambled all night in a casino. (Defendant testified that his relationship with Brenda did not become romantic until several months after plaintiff and Brenda were divorced, October 31, 1979.)

Upon her return, Brenda told plaintiff she thought they could make their marriage work, and they continued to live together. In late August, in response to plaintiff's questioning, Brenda admitted that she and defendant had had sexual intercourse "probably around" eight to twelve times. Enraged, plaintiff gave her an especially vicious beating. Injured and suffering, Brenda went to defendant's home for a few days and then to her parents'.

Within a week, Brenda returned to plaintiff and agreed to try again to make the marriage work on condition that the drinking and beating stop. However, she testified, plaintiff's promises were not kept and after many attempts to mend her marriage she finally left plaintiff because of his drinking and his physical abuse of her.

Plaintiff testified that although Brenda came back to him in September, she seemed "as if she had given up" on the marriage. In October 1979, the couple fought at a party when Brenda discovered plaintiff in the kitchen with another woman. Later that month, Brenda moved out for the last time and went to live with defendant. They were married October 1, 1980.

Plaintiff commenced this action on September 27, 1979. Defendant had only a limited education and no prior experience in legal proceedings. On the recommendation of a friend, he retained a Salt Lake City attorney to represent him. Defendant paid this attorney a retainer of $500 and an additional $6,500, which the attorney said he would hold in trust to pay additional attorney fees and to negotiate a settlement. The remainder was to be refunded to defendant. Between March and July 1980, the case was set for trial then changed to a pretrial hearing, which was twice vacated and rescheduled while the parties attempted to negotiate a settlement. After reaching a tentative settlement, the parties stipulated on July 29, 1980, to a dismissal of plaintiff's complaint with prejudice. This dismissal was entered. Defendant's attorney advised that the settlement amount was $5,000 and asked defendant to send the money. When asked why he did not pay this amount out of the trust fund, the attorney replied that his legal fees had depleted almost the entire $7,000 previously paid. Defendant protested that he did not have an additional $5,000. The attorney told him he would not continue to represent him without payment of additional attorney fees to cover the cost of trial, but that if defendant would discharge him he would refund $1,300 from the trust fund. The attorney also advised that defendant could settle the case himself either by giving plaintiff a promissory note for the $5,000 settlement amount or by negotiating his own settlement.

Defendant dismissed his attorney and demanded delivery of his file in the case, including copies of all correspondence and pleadings and the depositions of both plaintiff and defendant. Defendant represents that his attorney never sent him the case file and that the attorney did not advise him concerning his rights as a litigant, the risks of representing himself, or the possible consequences of the attorney's withdrawal. The attorney withdrew with court approval in early September 1980 and refunded $1,300 to defendant.

No further proceedings were initiated by either party for a period of four months, during which defendant neither executed a note nor paid plaintiff any money toward the settlement. Thereafter, the settlement agreement having failed, plaintiff petitioned the district court to set aside its earlier order of dismissal, reinstate the action, and set it for nonjury trial. Having been duly notified, defendant attended the hearing without counsel. The petition was granted, and the case was set for nonjury trial two weeks later.

The case was tried on January 21, 1981. Defendant attempted to represent himself at trial. The total judgment taken against him was $84,600: $59,600 for past and future loss of consortium and $25,000 in punitive damages. Defendant's timely motions for a new trial and for judgment notwithstanding the verdict were both denied, and this appeal followed.

I. FAIRNESS OF TRIAL

Defendant contends that his motion for a new trial should have been granted because he was denied due process of law in the proceedings by not being given adequate and timely notice of trial. ¹

Timely and adequate notice and an opportunity to be heard in a meaningful way are the very heart of procedural fairness. Worrall v. Ogden City Fire Department, Utah, 616 P.2d 598, 601-02 (1980); Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975). The much-cited case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), sets out the classic requirements of adequate notice:

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. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. [Citations omitted.]

Many cases have held that where notice is ambiguous or inadequate to inform a party of the nature of the proceedings against him or not given sufficiently in advance of the proceeding to permit preparation, a party is deprived of due process. Graham v. Sawaya, Utah, 632 P.2d 851 (1981); Uhler v. Secretary of Health & Mental Hygiene, 45 Md.App. 282, 412 A.2d 1287 (1980); Myers v. Moreno, Mo.App., 564 S.W.2d 83 (1978).

Applying these standards to the record in this case, we conclude that the notice of trial was constitutionally deficient as to this unrepresented defendant because it described the nature of the proceedings against him in such ambiguous terms that it...