Cooper v. Dressel

2016 UT App 246

THE UTAH COURT OF APPEALS

VAL COOPER AND RICHARD COOPER,
Appellees,
v.
NATE DRESSEL AND JEN DRESSEL,
Appellants.

Memorandum Decision
No. 20150322-CA
Filed December 22, 2016

Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 140401244

Jon M. Hogelin and Benjamin T. Lakey, Attorneys
for Appellants
Tyler S. Foutz, Attorney for Appellees

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and DAVID N.
MORTENSEN concurred.

CHRISTIANSEN, Judge:

¶1 Nate Dressel and Jen Dressel challenge the district court’s
denial of their Utah Rule of Civil Procedure 60(b) motion to set
aside a default judgment against them. Specifically, the Dressels
contend that the district court erred in determining that a
summons and complaint had been properly served upon them.
In the alternative, pursuant to rule 60(b)(1), the Dressels contend
that the district court abused its discretion by denying their
motion to set aside the default judgment due to mistake,
inadvertence, surprise, or excusable neglect. Because we
determine that service was defective, we reverse the denial of the
Dressels’ motion, vacate the judgment entered against the
Dressels, and remand the case to the district court for further
Cooper v. Dressel

proceedings as appropriate. Given our resolution, we need not
and do not address the rule 60(b)(1) aspects of this case.

¶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.” Utah R. Civ. P.
4(d)(1)(A) (2015). 1

¶4 In November 2013, Nate Dressel, purporting to act for
himself and for Jen McKellar (later Dressel), signed a twelve

1. Rule 4 of the Utah Rules of Civil Procedure was amended after
this case was briefed and argued. The changes are not material
to our analysis, and we quote and cite the pre-amendment
version of the rule.

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Cooper v. Dressel

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).

¶5 On August 22, 2014, the Coopers sued the Dressels,
seeking over $11,000. 3 In order to serve their complaint upon the
Dressels, the Coopers subpoenaed the local United States
Postmaster, who then revealed that the Dressels’ mail was being
forwarded to the Sequim Address. The Coopers also consulted
an online database, which likewise pointed them to the Sequim

2. According to the letter, the Dressels believed they had been
constructively evicted because the Coopers had allegedly
“repeatedly breached our rights to privacy and quiet and
peaceable enjoyment of our rental property.” Such disturbances
may have been related to the Coopers’ preparation for the sale of
the property, subject to the lease. On August 8, 2014, the Coopers
signed a warranty deed transferring the property to certain
buyers. The Dressels and those buyers entered into a “Lease
Termination Agreement” on August 12, 2014, which noted that
the property sale included the transfer of the lease. In that
document, the Dressels and the buyers agreed to terminate the
lease “immediately upon the close of the sale transaction”
between the Coopers and the buyers.

3. The Coopers’ complaint demanded the early termination fee
of $4,050, liquidated damages of $1,650, property damages in
excess of $4,000, and attorney fees of at least $1,500.

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Address. Accordingly, although they had no evidence that the
Dressels’ “usual place of abode” was at the Sequim Address, the
Coopers hired a process server to effect personal service on them
at that address. The process server filed an affidavit stating that
she had served the complaint and summons upon the Dressels
on September 26, 2014, by “personally delivering ONE true and
correct copy [of the documents] and leaving the same with MRS.
McKELLAR, MOTHER OF JEN DRESSEL.” However, Mrs.
McKellar later filed an affidavit stating, “When the process
server approached me, I told the process server that neither Nate
Dressel nor Jen Dressel resided at the address. . . . I refused to
accept any papers from the process server.” Because neither
Dressel answered or otherwise appeared in the action, the
district court issued a default judgment against the Dressels on
November 13, 2014, in the amount of $13,005.70. On December 5,
2014, the Coopers’ attorney mailed a notice of entry of judgment
to the Dressels at 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 rule 60(b), and that the complaint should be
dismissed pursuant to rule 12(b)(6). See generally Utah R. Civ. P.
12(b)(5) (insufficiency of service); id. R. 60(b) (relief from
judgment due to mistake, inadvertence, excusable neglect, newly
discovered evidence, fraud, etc.); id. R. 12(b)(6) (failure to state a
claim upon which relief can be granted).

¶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

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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 rule 60(b) aspects of the motion. The
court later issued a written order confirming the oral rulings;
that written order was supported by four “findings.” The
entirety of the court’s written findings as to service consisted of a
single sentence, which actually set forth a legal conclusion: “The
Court finds [the Dressels] were lawfully and validly served at
[the Sequim Address].”

¶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 Utah R. Civ. P. 4(d)(1)(A) (2015) (providing that personal
service may be accomplished when the plaintiff causes, inter
alia, a copy of the summons and complaint to be left “at the
[defendant’s] dwelling house or usual place of abode with some
person of suitable age and discretion”), with id. R. 4(d)(2)
(detailing the requirements for accomplishing service by mail),

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Cooper v. Dressel

and id. R. 4(d)(4) (detailing the requirements for accomplishing
service by publication or other means).

¶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, 108 P. 931, 933 (Utah 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 rule 4. Id.
(citation and internal quotation marks omitted). Accordingly, the
court considered “the totality of the circumstances,” including
(1) that the plaintiff had demonstrated the defendant’s presence

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Cooper v. Dressel

in the community around the time of the service, (2) that the
defendant had listed his home address as his parents’ house on
his tax returns for the previous two years, (3) that the defendant
had resided there during the pendency of the recent divorce, and
(4) that the defendant had not shown that he lived elsewhere. Id.
Given these facts, the Reed court held that “the district court was
justified in concluding that [the defendant’s] parents’ home was
his usual place of abode.” Id.

¶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, 954 S.W.2d 907, 908–10 (Ark.
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., 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

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provide the address of their actual residence. Again, the critical
distinction between the cases is the relevance to determining the
recipient’s “usual place of abode.” In Reed, the supreme court
explained that “[t]he sheriff’s return of service of process is
presumptively correct and is prima facie evidence of the facts
stated therein.” 806 P.2d at 1185. Thus, the defendant bore the
burden of showing that those facts were incorrect—a burden the
supreme court noted he failed to carry. Id. Here, the process
server 4 did not state in her affidavit that the Dressels actually
lived at the Sequim Address. It follows that the Dressels did not
bear the burden of disproving residence. But even if they had,
they did. The Dressels presented affidavits from Jen Dressel,
Nate Dressel, and Mrs. McKellar stating that Jen Dressel had not
lived at the Sequim Address since 2012 and that Nate Dressel
had never lived there, while the process server’s affidavit made
no mention of whether the Dressels resided there. Thus, the
evidence before the district court was that the Dressels were not
actually residing at the Sequim Address. Consequently, while
the Reed defendant was expressly found by the district court to
have been residing at his parents’ house and failed to show
otherwise on appeal, the evidence here showed that the Dressels
were not actually residing at the Sequim Address, and the court
did not find that they were. This distinction is at the heart of the
“usual place of abode” analysis.

¶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

4. A process server’s return of service is entitled to the same
presumption of correctness as a sheriff’s. Cooke v. Cooke, 2001 UT
App 110, ¶ 9, 22 P.3d 1249.

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Cooper v. Dressel

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

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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

¶15 Our correctness review is hampered by the district court’s
single-sentence written “finding” as to the service that was
effectuated here. But even considering the record facts in the
light most favorable to the district court’s ruling, we cannot
agree that the Sequim Address was the Dressels’ usual place of
abode. The Coopers presented no evidence demonstrating the
contemporaneous presence of either Dressel in the community of
Sequim. There was no evidence that either Dressel listed the
Sequim Address as a home address; rather, the evidence simply
showed that they listed it as a forwarding address for their mail

5. Personal service is not the only manner in which service of
process may be accomplished. The Utah Rules of Civil Procedure
also provide for service by mail. See Utah R. Civ. P. 4(d)(2)(A)
(2015). And in cases where “the identity or whereabouts of the
person to be served are unknown and cannot be ascertained
through reasonable diligence, . . . or where there exists good
cause to believe that the person to be served is avoiding service
of process,” as the district court implied might be the case here,
“the party seeking service of process may file a motion
supported by affidavit requesting an order allowing service by
publication or by some other means . . . reasonably calculated,
under all the circumstances, to apprise the interested parties of
the pendency of the action.” Id. R. 4(d)(4)(A), (B). While serving
the summons and complaint upon Mrs. McKellar at the Dressels’
mailing address might have been sufficient to accomplish service
under this rule, the Coopers never sought leave of court to do so.
And the district court considered only whether personal service
had been accomplished via substitute service at the Dressels’
putative “usual place of abode.”

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Cooper v. Dressel

while they resided elsewhere. And there was no evidence that
either Dressel had recently resided at the Sequim Address. Thus,
unlike in Reed, there was no evidence presented to the court that
the party to be served actually lived at the delivery address at
the time the summons and complaint were purportedly served
there. Considering the totality of the circumstances, we must
conclude that the Sequim Address was not the Dressels’ “usual
place of abode.” Cf. Earle v. McVeigh, 91 U.S. 503, 503 (1875)
(holding that a notice posted upon a house seven months after it
had been vacated by the defendant was not posted upon his
usual place of abode and that a judgment founded on such
defective notice was absolutely void). It follows that personal
service of process was not accomplished, because copies of the
summons and complaint were not left “at the individual’s
dwelling house or usual place of abode.” See Utah R. Civ. P.
4(d)(1)(A) (2015).

¶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.

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