Stan Katz Real Estate, Inc. v. Chavez

• Decision Date: 20 June 1977
• Docket Number: No. 14775,14775
• Citation: 565 P.2d 1142
• Parties: STAN KATZ REAL ESTATE, INC., a corporation, Plaintiff and Respondent, v. Daniel O. CHAVEZ, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1142

565 P.2d 1142

STAN KATZ REAL ESTATE, INC., a corporation, Plaintiff and Respondent, v. Daniel O. CHAVEZ, Defendant and Appellant.

No. 14775.

Supreme Court of Utah.

June 20, 1977.

Gregory B. Wall, Salt Lake City, for defendant and appellant.

Gary A. Weston, Salt Lake City, for plaintiff and respondent.

WILKINS, Justice:

On April 18, 1974, the plaintiff filed a complaint against the defendant in the District Court of Salt Lake County seeking damages for the latter's alleged breach of contract. Service of process was made by a deputy constable on May 22, 1974, who left a copy of the summons and complaint with the defendant's mother at 1118 West Eighth South, Salt Lake City, Utah. A typewritten notation was placed on the proof of service return as follows Mother stated he (the defendant) had just gone to the store and he did live there and would be right back.

The defendant failed to answer the plaintiff's complaint and on June 13, 1974, the District Court entered a default judgment in the plaintiff's favor and against the defendant in the sum of $7,700, attorney fees of $315 and costs of $26. On August 9, 1976, and pursuant to Rule 60(b), Utah Rules of Civil Procedure (all references to rules will be to the Utah rules unless otherwise indicated), the defendant filed a motion to set aside said default judgment on the ground that he had not been personally served as required by Rule 4(e). ¹ In support of his motion to set aside the judgment, defendant filed an affidavit wherein he asserted, inter alia, "That he was not living or residing at the home of his parents at the time plaintiff alleges that service was made upon his mother." A hearing was held in the District Court on the defendant's motion, and the factual issue of the place of defendant's residence at the time of service of process was submitted to the Court on the basis of the defendant's affidavit and the notation on the return as noted above. From the District Court's denial of said motion, the defendant now appeals.

We recognize that Rule 43(e) ² allows the District Court to grant or deny a motion on the sole or combined bases of affidavits, depositions or oral testimony. However, when no depositions have been taken and disputed material facts are alleged in opposing affidavits, there should be an evidentiary hearing to aid in the resolution of those facts. The reasons for requiring an evidentiary hearing under these circumstances were enunciated in Autera v. Robinson, 136 U.S.App.D.C. 216, 419 F.2d 1197, 1202 (1969), ³ as follows:

Had no factual dispute arisen to plague the parties' substantive rights, we would perceive no difficulty in the judge's acceptance as a predicate for his action, of the facts represented through statements by members of the bar and affidavits of the parties or others. In this case, however, despite the factual questions developing as the hearing moved along, no opportunity was afforded anyone to test any representation by the chastening process of cross-examination . . . The opportunity to judge credibility was non-existent as to the absent affiants; the opportunity to probe by cross-examination was completely lacking. Without these twin tools, normal in the trial of factual issues, the factual conclusion was certain to take on an unaccustomed quality of artificiality . . . We recognize, of course, that trial judges have a discretion to hear and determine ordinary motions either on affidavits or oral testimony portraying facts not appearing of record. We note, however, that an attempted resolution of factual disputes on conflicting affidavits alone may pose the question whether the discretion was properly exercised.

In the present case, it appears that there is a dispute on the fact of the usual place of abode of the defendant because of the notation on the return of process which conflicts with the allegations in the defendant's affidavit. Where a crucial conflict arises, as in this case, the matter should be resolved by depositions or an evidentiary hearing so that the factors for testing representations of witnesses as found in Autera, supra, obtain. Accordingly, we reverse the District Court's denial of the...