Murray Place v. Varela
297 P.3d 642
Utah Ct. App.
2013
Check Treatment

MURRAY PLACE, Plaintiff and Appellee, v. Kenia VARELA and Uvaldo Tovar, Defendants and Appellants.

No. 20120893-CA

Court of Appeals of Utah

Jan. 25, 2013

2013 UT App 19

Rayminh L. Ngo, for Appellants. Kirk A. Cullimore and Derek J. Barclay, for Appellee. Before Judges ORME, THORNE, and CHRISTIANSEN.

825(1) (LexisNexis 2012). “Accordingly, a finding of both lack of merit and bad faith are required to award attorney fees.” .

¶ 56 In determining whether there is merit to a claim, an appellate court focuses on whether the claim was “frivolous or of little weight or importance having no basis in law or fact.” (citation and internal quotation marks omitted). Where an appellate court finds as a matter of law that a party‘s claim has merit, it need not reach the second, factual “bad faith” element of section 78B-5-825. See .

¶ 57 Bennion presented arguments to the trial court that sections 17B-2-804 and 17B-1-904 limit the water fees, costs, attorney fees, and interest that a special service district can recover from a residential customer in a civil action brought after the customer refuses to pay the amounts identified in a Form Notice. In granting the District‘s motion for summary judgment, the trial court determined that “Bennion‘s actions and continued litigation had been pursued in bad faith.” However, the trial court made no determination regarding the merit of Bennion‘s claims. Moreover, our analysis that sections 17B-2-804 and 17B-1-904 plainly limit the District‘s recovery establishes that Bennion‘s claims were neither “frivolous” nor “of little weight or importance having no basis in law or fact.” See (citation and internal quotation marks omitted). Accordingly, we reverse the trial court‘s award of attorney fees.

CONCLUSION

¶ 58 The trial court erred in entering summary judgment in amounts exceeding $200 per Form Notice for the water fees incurred while either section 17B-2-804 or section 17B-1-904 were in effect and applicable to special service districts. See Utah Code Ann. § 17B-2-804 (LexisNexis 2004); id. § 17B-1-904 (2009); id. § 17A-1-205 (2004); id. § 17D-1-106 (2009). Because Bennion‘s claims were not without merit, the trial court erred in awarding attorney fees to the District under section 78B-5-825. See id. § 78B-5-825 (2012).

¶ 59 The Summary Judgment is vacated, with instructions to enter a new judgment as follows:

  1. The actual past due water fees from February 28, 2004, until the adoption of sections 17B-2-804 and 17A-1-205 on May 3, 2004, plus all collection costs, interest, attorney fees, and damages incurred with respect to those past due service fees;
  2. An amount up to $200 for the combined total of the past due service fees, collection costs, interest, court costs, attorney fees, and damages for each Form Notice the District sent to Bennion for water fees incurred from May 3, 2004, through April 29, 2007;
  3. The actual past due water fees incurred from the repeal of section 17A-1-205 on April 30, 2007, until the adoption of section 17D-1-106 on May 5, 2008, plus all collection costs, interest, attorney fees, and damages incurred with respect to those past due service fees; and
  4. Interest in an amount that does not exceed $200 for each Form Notice that the District sent to Bennion for water fees incurred on or after May 5, 2008.

Decision

PER CURIAM:

¶ 1 Kenia Varela and Uvaldo Tovar appeal the district court‘s denial of their motion to set aside a default judgment and order of restitution. This matter is before the court on Varela and Tovar‘s motion for summary reversal.1 We reverse and remand to the district court for further proceedings.

¶ 2 Varela and Tovar‘s motion to set aside the judgment under rule 60(b) of the Utah Rules of Civil Procedure argued that the court lacked jurisdiction to enter the default judgment against them because they were never served with a copy of the summons and complaint. The district court denied their motion “because the Defendants have failed to show by affidavit a meritorious defense to the underlying claim.” The district court‘s order did not discuss Varela and Tovar‘s affidavits, which stated that they had not been served with a copy of the summons and complaint.

¶ 3 While the assertion of a separate meritorious defense is generally required to support a successful 60(b) motion, it is not required in all instances. See . Specifically,

[i]f a judgment is entered by a court that lacks jurisdiction, justice is furthered by setting that judgment aside as void under rule 60(b)(4) even absent a separate meritorious defense. . . . A showing of lack of jurisdiction, in other words, could never be futile, as a jurisdictional defect is enough by itself to void a judgment.

Therefore, a motion under rule 60(b)(4) “could succeed on the basis of a mere showing that the judgment was void because of some defect in the court‘s authority over the case or the parties.” .

¶ 4 Because Varela and Tovar‘s sole argument for seeking relief under rule 60(b) was based upon lack of jurisdiction due to lack of service, they were not required to demonstrate that they had a meritorious defense to Murray Place‘s claims. Accordingly, the district court erred in denying their 60(b) motion due to their failure to demonstrate a meritorious defense to the underlying claim.

¶ 5 Reversed and remanded for further proceedings consistent with this decision.

Notes

1
This court originally entered its own sua sponte motion for summary disposition based upon the lack of a final, appealable order. See . However, the district court entered a final, appealable order on November 16, 2012. Accordingly, the court withdraws its motion for summary disposition based upon an apparent lack of jurisdiction.