402 P.3d 36
Utah Ct. App.2017Background
- Bonnie and David Silva divorced in 2010; the decree allocated multiple real properties and required quitclaim deeds. One property (Dennis Drive) was awarded to David.
- Bonnie had earlier transferred title to a Consolidated Trust (of which her daughters were trustees); she later signed a quitclaim purporting to convey Dennis Drive to David, but the recorded title showed the trust as owner.
- Divorce court found Bonnie in contempt for failing to convey Dennis Drive and entered a monetary judgment against her (~$217,690). David then sued Bonnie and her daughters in district court for fraudulent conveyance and quiet title.
- David sought alternative service after multiple unsuccessful personal-service attempts; the court authorized service by publication. Bonnie did not appear, a default judgment was entered (including attorney fees), and a writ of execution issued against several properties. A sheriff’s sale followed.
- Bonnie later appeared, moved under Utah R. Civ. P. 60(b) to set aside the default judgment and quash the writ, arguing insufficient notice (despite service complying with the literal rules) and alleging David had other, readily available means (email, phone, family contacts) to give actual notice. The district court denied relief; Bonnie appealed.
Issues
| Issue | Plaintiff's Argument (Bonnie) | Defendant's Argument (David) | Held |
|---|---|---|---|
| Whether default judgment should be set aside for insufficient service / due process (Rule 60(b)(4)) | Service by publication failed to provide actual notice; David had other means (email, phone, family) and did not exercise reasonable diligence | Service complied with Rule 4 and was legally proper; alternative service by publication was authorized after attempts | Judgment vacated: service did not meet due-process standard because plaintiff failed to use readily available means to give actual notice; judgment was void and 60(b)(4) relief appropriate |
| Whether sheriff’s sale must be set aside | Sale was without proper notice and had irregularities; sale executed on void judgment so sale is void | Notice of sale was adequate; defects (if any) were technical; Bonnie knew of writ and sale | Sale vacated: because the underlying judgment was void for lack of due process, the execution and sheriff’s sale were also void and conveyed no title |
| Whether district court abused discretion awarding attorney fees to David | Fee award was excessive/lacked findings; Bonnie challenged it | Fees were awarded below and proper under court’s judgment | Court did not address merits of fee award because the underlying judgment (and fee award) was void; remanded for further proceedings |
| Whether parties are entitled to appellate attorney fees | Bonnie requested fees for prevailing on appeal; David requested fees on appeal | David argued fees below are prerequisite; Bonnie argued equity favors fees | Denied both parties’ requests for appellate fees; no equitable basis shown to award fees on appeal |
Key Cases Cited
- Carlson v. Bos, 740 P.2d 1269 (Utah 1987) (due process requires plaintiff to take reasonably practicable steps to give actual notice)
- United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010) (notice must be reasonably calculated to apprise interested parties)
- Jackson Constr. Co. v. Marrs, 100 P.3d 1211 (Utah 2004) (alternative service by publication requires reasonably diligent efforts to locate defendant)
- Cooper v. Dressel, 391 P.3d 338 (Utah Ct. App. 2016) (lack of effective service means district court lacks personal jurisdiction; judgment void)
- C504750P LLC v. Baker, 397 P.3d 699 (Utah Ct. App. 2017) (explains scope of reasonably diligent efforts and corroboration of last-known address)
- Pyper v. Bond, 258 P.3d 575 (Utah 2011) (standards for setting aside sheriff’s sale for irregularities)
- Bank of America v. Adamson, 391 P.3d 196 (Utah 2017) (a void deed/sale based on a void judgment conveys no title)