Pitts v. Pine Meadow Ranch, Inc.

• Decision Date: 29 December 1978
• Docket Number: No. 15428,15428
• Citation: 589 P.2d 767
• Parties: Howard Charles PITTS, Jr. and Marilyn J. Pitts, Plaintiffs and Respondents, v. PINE MEADOW RANCH, INC., d/b/a Jensen Associates and d/b/a Deseret Diversified Development, and John Does I through X, Defendants and Appellants.
• Court: Utah Supreme Court

Page 767

589 P.2d 767

Howard Charles PITTS, Jr. and Marilyn J. Pitts, Plaintiffs and Respondents, v. PINE MEADOW RANCH, INC., d/b/a Jensen Associates and d/b/a

Deseret Diversified Development, and John Does I

through X, Defendants and Appellants.

No. 15428.

Supreme Court of Utah.

Dec. 29, 1978.

Stanley S. Adams, Craig Stephens Cook, Salt Lake City, for defendants and appellants.

Wendell E. Bennett, Salt Lake City, for plaintiffs and respondents.

WILKINS, Justice:

Defendants appeal from default judgment entered against them by the District Court for Salt Lake County, and from the Order denying defendant's motion to vacate said judgment. All statutory references are to Utah Code Ann., 1953, as amended. References to Rules are to Utah Rules of Civil Procedure.

In their complaint, plaintiffs allege that the defendants, or their agents, intentionally and wilfully trespassed on plaintiffs' unimproved real property, located in Summit County, used it as a junk yard and a garbage dump, drilled a well in the middle of it, and destroyed beautiful trees thereon. Plaintiffs claimed damages in the amount of the full market value of the real property, being $16,000, of which $5,000 was the value of the trees, for which they claimed treble damages under Section 78-38-3, together with punitive damages of $10,000.

The complaint was filed July 30, 1976, and summons was served on April 14, 1977. Defendants did not answer or take any other action. On August 1, 1977, the District Court, after defaulting defendants, took Plaintiff Howard Pitts' testimony under oath, and granted judgment in the amount prayed for, viz., $36,000.

Defendants moved to vacate the default judgment, citing as grounds therefor that the action was not brought in the county in which the real property is situated, contrary to the provisions of Section 78-13-1(1). The judgment is not invalid by reason of this statute, however, as all District Courts have general state-wide jurisdiction under Article VIII, Section 7, Utah Constitution. Defendants might have moved for a change of venue under the statute cited, if the motion were timely, but the judgment cannot be attacked on that ground. ¹ Defendants' motion was accordingly denied.

Defendants now appeal, explaining that their three month failure to answer resulted from the fact that their agent, who received service on their behalf, became confused because he had received so many such complaints, and overlooked this one, or forgot to deliver it to defendants' attorney. They further assert that the judgment should be overturned in the interest of justice, since it constitutes more than twice the value of the land destroyed.

We are not insensitive to defendants' position. Nevertheless, it is largely within the discretion of the District Court to set aside a default judgment, and while we have held that its discretion should be exercised liberally in favor of the defaulting party in order to provide him his day in court, ² we do not reverse the District Court's determination unless it has clearly abused that discretion. ³ The interests of the plaintiffs should also be taken into consideration, and the judgment should not be set aside if to do so would work an injustice or inequity to them. ⁴

At the time of the hearing on defendants' motion to vacate, plaintiffs had moved to England, intending to reside there for a period of three years. If the plaintiffs are now required to return to this jurisdiction in order to relitigate their claim it will be costly as well as greatly inconvenient to them. ⁵ Since defendants have not alleged nor argued any excusable neglect for failure to answer, nor have they asserted any other ground for relief pursuant to Rule 60(b), we do not find that the District Court abused its discretion in denying defendants' motion to vacate the default certificate.

Rule 55(b)(2) provides that where plaintiff's claim is other than a sum certain or an amount which by computation can be made certain, judgment by default may not be entered by the clerk of the Court, but must be entered by the Court, which may conduct such hearings and take such evidence as it deems advisable for determining the damages. In this case, the Court took evidence and plaintiff's testimony, as noted supra, was recorded. Defendants contend that the evidence does not support the judgment.

The measure of damages for trespass on real property and destruction thereon is generally the difference between the value of the property before and after the trespass. ⁶ Though Plaintiff Howard Pitts testified that the value of the property before the trespass was $16,000, there is no evidence of the market value after the trespass other than plaintiff's statement that the property was "totally ruined." On this basis the Court awarded to the plaintiff the total value of the property as damages for defendants' trespass. Similarly there is no testimony on which to base a finding of malice or wanton destruction on the part of the defendants to support the award of punitive damages. ⁷ Plaintiff's bare statement that the destroyed trees constituted $5,000 of the value of the property is all the evidence to support the treble damage award. ⁸ Under these circumstances we do not find sufficient credible evidence to support the judgment of $36,000.

Plaintiffs assert that the District Court weighed...