Express Recovery Services v. Davis
2012 UT App 296
| Utah Ct. App. | 2012Background
- Davis challenged a district court's denial of her Rule 60(b) motion to set aside a default judgment for medical expenses of her late husband.
- Express served a summons and complaint at Davis's residence, delivering to Patrick Boone, a co-resident, who was deemed a person of suitable age and discretion.
- Davis did not answer; the court entered a default judgment for the medical expenses related to her husband.
- Davis argued she did not receive the documents and had no knowledge of the judgment until seeing it on a credit report.
- The district court found service proper and lack of excusable neglect, and noted no meritorious defense.
- On appeal, Davis claimed the server did not reside at her residence; no transcript of the Rule 60(b) hearing was provided; the court reviewed for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service was proper under Rule 4 and presumptions of service | Davis contends improper service since the recipient allegedly did not reside there | Express argues service to a suitable adult at the residence is proper | Service deemed proper; no clear error |
| Whether Davis showed excusable neglect to set aside the judgment | Davis did not receive papers and lacked knowledge of the judgment | Merely not receiving papers does not establish excusable neglect under Rule 60(b) | No excusable neglect shown; Rule 60(b) motion properly denied |
| Whether Davis had a meritorious defense to the underlying claim | Davis asserted she was not responsible for her late husband's medical bills | No sufficient defense shown without excusable neglect | Meritorious defense not reached due to lack of excusable neglect; affirmance |
Key Cases Cited
- Cooke v. Cooke, 22 P.3d 1249 ((Utah Ct. App. 2001)) (presumption of correctness of service return; can be disproved only by clear and convincing evidence)
- Swallow v. Kennard, 83 P.3d 1052 ((Utah Ct. App. 2008)) (review standard for Rule 60(b) appeals; abuse of discretion standard)
- Musselman, Dept. of Soc. Servs. v. Musselman, 667 P.2d 1053 ((Utah 1983)) (excusable neglect requires a sufficient excuse for relief from judgment)
- Cooke v. Cooke, 22 P.3d 1249 ((Utah Ct. App. 2001)) (presumption of service correctness; service can be disproved by clear and convincing evidence)