Cooper v. DresselCooper v. Dressel
¶18 Phillip argues that he “could not have known or believed that he was on probation during the time of the alleged conduct.” He asserts that he could not have willfully violated his probation conditions if he did not know that he was on probation. In Phillip‘s view, it was reasonable for him to believe that he was not on probation, because AP&P failed to supervise or meet with him after the initial meeting at which he signed the probation agreement.
¶19 We disagree. During the plea colloquy, the court stated that the maximum penalty for aggravated robbery was “five years to life in the prison” and that, although “we have all agreed that you are going to do a year in jail and then go to AP&P probation,” “you need to understand if you don‘t comply with probation ..., a judge could bring you back and sentence you to that maximum amount.” Phillip responded, “Yes, I understand.” After Phillip entered his guilty plea, the court stated, “[T]he sentence of this Court will be to stay the five to life in prison ... and place the defendant with [AP&P] for a period of 36 months.” The court then noted and explained several, albeit not all, of the conditions of Phillip‘s probation. In light of these statements, and Phillip‘s later signing of the probation agreement, it was unreasonable for him to believe that he was not on probation simply because AP&P was not supervising that probation. In other words, the absence of an agency monitoring a defendant‘s compliance with probation conditions does not render reasonable the defendant‘s belief that the conditions no longer exist or that he or she is no longer required to comply with the court order setting them.
¶20 Because Phillip‘s probation was not terminated by AP&P‘s inaction, the district court had jurisdiction to revoke that probation. And because Phillip could not have reasonably believed that the conditions of probation no longer applied to him, the district court did not err in determining that he had willfully violated those conditions. We therefore affirm the district court‘s probation revocation ruling.
Tyler S. Foutz, Salt Lake City, Attorney for Appellees
Judge Michele M. Christiansen authored this Memorandum Decision, in which Judges Gregory K. Orme and David N. Mortensen concurred.
Memorandum Decision
CHRISTIANSEN, Judge:
¶1 Nate Dressel and Jen Dressel challenge the district court‘s denial of their
¶2 “[W]hether a person has been served with process is a question of fact, [but] whether a person is properly served is a question of law.” Reed v. Reed, 806 P.2d 1182, 1184 n.3 (Utah 1991) (emphasis added) (citation omitted). Thus, while we review the district court‘s factual findings as to service for clear error, we review its legal conclusions flowing therefrom for correctness. See id. at 1184-85; Bonneville Billing v. Whatley, 949 P.2d 768, 771 (Utah Ct. App. 1997).
¶3 The district court lacks personal jurisdiction when there has not been effective service of process, such as by personal service, service by mail, or service by publication. See Saysavanh v. Saysavanh, 2006 UT App 385, ¶ 8, 145 P.3d 1166. And judgments entered by a district court lacking personal jurisdiction over the defendant are void. Judson v. Wheeler RV Las Vegas, LLC, 2012 UT 6, ¶ 15, 270 P.3d 456. Consequently, a judgment entered against party that was never properly served is void. One method of properly serving a party is by personal service; personal service of process may be accomplished “by delivering a copy of the summons and the complaint to the individual personally, or by leaving a copy at the individual‘s dwelling house or usual place of abode with some person of suitable age and discretion there residing.”
¶4 In November 2013, Nate Dressel, purporting to act for himself and for Jen McKellar (later Dressel), signed a twelve month lease with Val Cooper and Richard Cooper for a furnished house in Utah County. The lease included an early termination fee equivalent to three months’ rent ($4,050). With four months remaining on the lease, the Dressels sent a letter to the Coopers that stated, “This is a written notice to inform you that as of August 1st, 2014, we are no longer your tenants.... We have vacated the property on the grounds of constructive eviction.”2 In the letter, the Dressels requested that their deposit be returned to them via a check or money order sent to an address in Sequim, Washington (the Sequim Address).
¶6 The notice of entry of judgment was forwarded, possibly by Mrs. McKellar, to the Dressels, who received it on December 16, 2014. On December 23, 2014, the Dressels filed a motion to set aside the default judgment. They asserted three bases in support of that motion: that the default judgment was void for insufficiency of service, that the default judgment should be set aside under
¶7 The district court held a hearing, at the conclusion of which it orally ruled that service had been proper:
[The Dressels] lived in a mobile home with no address. They provided an address [and] expected to have their deposit sent to that address. It was [the Sequim Address]. That was the same address provided by the U.S. Postal Services as [the Dressels‘] forwarding address. And, finally, the notice of judgment was sent to that address as well. And that is the time period or at least the claim in which [the Dressels] are saying they became aware of the judgment. All roads point to the fact that [the Sequim Address] is their usual place of abode and that was where they expected to receive notifications regarding any mail that was received.... So I‘m finding that there was effective service of process in this matter....
The court also denied the
¶8 On appeal, the Dressels contend the district court erred in determining that the service was valid. While the district court‘s written order does not explicitly refer to personal service, the hearing transcript shows that the service determination was based on the court‘s conclusion that the Sequim Address was the Dressels’ “usual place of abode.” Indeed, the Coopers had not argued that, and the district court did not discuss whether, service by mail or service by other means had been accomplished. Compare
¶9 In Reed v. Reed, the Utah Supreme Court addressed a situation similar to the one at bar. 806 P.2d 1182 (Utah 1991). There, roughly a year after divorcing the defendant, the plaintiff sought to recover from him personal property that had been awarded to her. Id. at 1183. She “caused the sheriff to serve the subject summons upon [the defendant] and his parents at his parents’ home ... where [the defendant] had resided during the pendency of the divorce.” Id. The parents informed the sheriff that the defendant no longer lived there; “[t]he sheriff nevertheless left [the defendant‘s] copy of the summons at the parents’ home and completed a return of service.” Id. That same month, the defendant moved to quash service. Id.
¶10 The correctness question before the Reed court was whether the district court had properly determined that the defendant actually lived at his parents’ home such that service had been properly accomplished by leaving a copy of the summons at that home. See id. at 1184; see also id. at 1184-85 (“The district court‘s determination of whether, under the facts presented, [a defendant‘s] parents’ home fits within the definition of the usual place of abode is a question of law. When reviewing the district court‘s conclusions of law, we give no deference to the court but review those conclusions for correctness.“). The Reed court noted that it had previously held that “‘where a person abides—lives—at the particular time when the summons is served, constitutes his usual place of abode.‘” Id. at 1185 (quoting Grant v. Lawrence, 37 Utah 450, 108 P. 931, 933 (1910)). The Reed court clarified that “[n]o hard and fast rule can be fashioned to determine what is or is not a party‘s dwelling house or usual place of abode” within the meaning of
¶11 The Coopers agree that Reed is relevant to the analysis here. They argue that the factors Reed discussed weigh in their favor. For example, in the Coopers’ view, the Dressels’ listing of the Sequim Address as their forwarding address is analogous to the Reed defendant‘s listing of his parents’ house as his home address for tax purposes. However, a home address suggests residence while a forwarding address does not; it follows that a forwarding address is less determinative of a party‘s “usual place of abode” than a home address. See, e.g., State Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 954 S.W.2d 907, 908-10 (1997) (noting that the defendant received mail at his father‘s address and listed that address on accident reports and insurance forms but declining to “broaden the meaning of the phrase, ‘dwelling house or usual place of abode’ to include that location which could be reasonably calculated to provide notice to [a defendant] of a pending action against him“; accordingly, service of process was insufficient); Veillon v. Veillon, 517 So.2d 936, 939-40 (La. Ct. App. 1987) (holding that service at a mailing address was improper under a domiciliary service statute because the mailing address was not the defendant‘s domicile); Fruchtman v. State Farm Mutual Auto. Ins. Co., 274 Minn. 54, 142 N.W.2d 299, 301 (Minn, 1966) (noting that adult children‘s use of a parent‘s house to store personal effects and receive mail is not, by itself, determinative as to whether the children reside there).
¶12 The Coopers also connect the Reed defendant‘s failure to show that he lived elsewhere with the Dressels’ failure to provide the address of their actual residence. Again, the critical distinction between the cases is the relevance to determining the
¶13 The Coopers further assert a similarity between the Reed defendant‘s actual receipt of the summons and the Dressels’ receipt of the notice of entry of default judgment. However, these are dissimilar. Because the Reed defendant actually received the summons (and in fact moved to quash service roughly two weeks after the summons was served), he had notice of the lawsuit at a time when he could respond to it on the merits. The district court‘s reluctance to quash service was at least partly informed by the fact that the defendant received timely notice of the lawsuit against him. In contrast, according to their affidavits, which were unassailed by competing evidence, the Dressels did not receive actual notice that a lawsuit had been filed against them until after the entry of a default judgment. In short, the service in Reed resulted in actual and timely notice while the purported service here did not.
¶14 The arguments posited by the Coopers gloss over an important distinction between the district court‘s single “finding” as to service here and the findings made in Reed. In Reed, the supreme court noted that the district court was justified in concluding that the parents’ home was the defendant‘s usual place of abode because “it was, in fact, the place where he lived.” Id. at 1185. In other words, the “usual place of abode” determination in Reed relied on the defendant‘s failure to present any evidence to disprove the finding that he actually lived at the address in question when the summons was served. Indeed, many of the factors the Reed court considered bore on whether the evidence supported the district court‘s finding that the defendant actually lived at his parents’ home. See id. In contrast, the district court here did not consider whether the Dressels actually lived at the Sequim Address when the process server visited. Instead, the district court appears to have come to the legal conclusion that because the Dressels received mail there and did not have another physical residential address, the Sequim Address was the legal equivalent of a “usual place of abode.” But Reed makes clear that the term “usual place of abode” is not a term of convenience synonymous with a defendant‘s only known address; rather, the determination of whether a defendant‘s only known address is also his or her usual place of abode for personal service purposes takes into account whether the defendant actually lived there at the time of the purported service. Id. Indeed, the Utah Rules of Civil Procedure provide alternative methods for accomplishing service of process when a defendant has a known address for some limited purpose but not a known usual place of abode (or even when a defendant has no known address).5
¶16 We hold that the district court erred in determining that personal service had been accomplished under the facts of this case. Because service of process was defective, the district court lacked jurisdiction and its judgment was void. See Bonneville Billing v. Whatley, 949 P.2d 768, 771 (Utah Ct. App. 1997). We reverse the district court‘s denial of the Dressels’ motion, vacate the default judgment, and remand the case to the district court for further proceedings as appropriate.