Labor Commission v. Price

2020 UT App 24

THE UTAH COURT OF APPEALS

LABOR COMMISSION,
Appellant and Cross-appellee,
v.
DEREK PRICE,
Appellee and Cross-appellant.

Amended Opinion 1
No. 20170734-CA
Filed February 13, 2020

Third District Court, Salt Lake Department
The Honorable Su Chon
No. 126918635

Sean D. Reyes and Brent A. Burnett, Attorneys for
Appellant and Cross-appellee
Mark D. Tolman and Jessica P. Wilde, Attorneys for
Appellee and Cross-appellant

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.

MORTENSEN, Judge:

¶1 As specifically provided for in Utah Code section 34-28-
9(4)(a) (LexisNexis Supp. 2019), the Labor Commission
(Commission) filed in the district court an abstract of judgment

1. This Amended Opinion replaces the Opinion in Case No.
20170734-CA that was issued on December 12, 2019. Footnote 9
has been revised to address an issue Derek Price raised in a
petition for rehearing, and we hereby grant the petition to that
limited extent. See Utah R. App. P. 35(j). The petition for
rehearing is denied in all other respects.
Labor Commission v. Price

obtained in an administrative proceeding against Derek Price
and others. 2 Some years later, when the Commission garnished
his wages, Price filed a motion to vacate that judgment. Focusing
on due process, specifically service by mail, Price claimed that
the judgment was obtained without jurisdiction and was
therefore void. He also argued that the judgment was
unenforceable against him in light of Heaps v. Nuriche, LLC, 2015
UT 26, 345 P.3d 655, a decision from our supreme court that
delineated the extent of personal liability of corporate officers
and agents for unpaid wages. The district court agreed on both
counts. However, rather than vacating the Commission’s
judgment, the district court quashed the garnishment and
ordered Price to pursue a motion to set aside the judgment with
the Commission. We reverse.

BACKGROUND

¶2 In May 2010, Marc Cummings filed a wage dispute claim
with the Commission against Level 11 Mentoring (Level 11) and
Mad Cow Productions (Mad Cow). In the articles of organization
for the two companies, Price was listed as the sole member-
manager and registered agent of Mad Cow and one of the four
member-managers of Level 11. The Commission commenced a
wage claim against these employers and several individuals
associated with them, and it identified Price as a respondent in
the wage claim action filed by Cummings. The other
respondents also identified by the Commission included
(1) Level 11, (2) Mad Cow, (3) Aaron Christner (a member-
manager of Level 11), and (4) Ryan Jensen (the registered agent
and a member-manager of Level 11).

2. Because there have been no significant changes to the relevant
sections of the Utah Code, we cite the most current version
unless otherwise noted.

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Labor Commission v. Price

¶3 In September 2010, the Commission issued and mailed
notices of the wage claim. The notices advised the respondents
that they could either pay the wages or submit a form detailing
their disagreement with the allegation. In November 2010,
having received no response from any of the respondents, the
Commission issued and mailed a preliminary finding stating
that respondents owed Cummings $4,721 in unpaid wages. The
respondents were advised that if they disagreed with the
preliminary finding, they could request a review or informal
hearing. On January 27, 2011, the Commission issued and mailed
a default order (Default Order) directing the respondents to pay
(1) $4,721 in wages to Cummings, (2) a $4,721 fine, and (3) $3,148
in attorney fees, for a total award of $12,590. The Default Order
concluded with the following notice:

Both parties are advised that this [Default Order] is
the final agency action, when mailed, unless a
written request for agency reconsideration is
received within 20 days of the date of this [Default
Order]. . . . Additionally, the parties are advised
that pursuant to Utah Code § 63G-4-401, they may
appeal a final agency decision to the District Court.
That appeal must be made within 30 days of the
date of the final agency action.

¶4 Copies of these three documents (viz., the wage claim, the
preliminary finding, and the Default Order) were sent via first-
class mail to Price at the two addresses—one in Orem, Utah, and
another in Salt Lake City, Utah—listed for him in the Utah
Department of Commerce’s records. None of these mailings
were returned to the Commission as undeliverable by the U.S.
Postal Service. The Commission also mailed the same documents
to the other respondents at their recorded addresses.

¶5 Price claimed that he never received the mailings,
explaining that he had not lived at the Orem address since the

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early 1990s and that he had never lived at and did not recognize
the Salt Lake address, which the Commission also identified as
the address of Mad Cow. Price also asserted that Christner and
Jensen had listed him as the registered agent and a member-
manager of Mad Cow without his knowledge or consent. Price
further claimed that he had quit working for Mad Cow around
September 2010 after his paychecks bounced and he lost
confidence in the company’s ability to pay him for his work.
Price stated that he was living in Sandy, Utah, around the time
he quit. He then moved to California for a few years, eventually
returning to St. George, Utah, in 2015, and later moving to
Midvale, Utah, in 2016.

¶6 In June 2012, the Commission sought to collect on the
Default Order by filing an abstract of final award with the
district court identifying the amount of unpaid wages, fines, and
attorney fees detailed therein. In January 2017, an administrative
writ of garnishment was issued and served on Price’s employer.
After learning of the garnishment from a coworker, Price filed a
request for a hearing on the matter in district court. In response,
the court, on February 17, 2017, stayed the writ of garnishment
for thirty days to allow Price to try to resolve his concerns with
the Commission. Price claimed that he “sent certified mail
containing several papers” to the Commission explaining that he
was never an owner of Mad Cow. 3 Having received no response,
Price asserted that he attempted to make contact with the
Commission through phone calls, personal visits, and email. On
April 4, 2017, Price received an email from the Commission
stating,

3. Jensen also filed a request for hearing, claiming that Price and
Christner were the owners of Mad Cow and that Price owed him
money.

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Proper notice of this claim, and its progression,
was sent to numerous addresses of all principals of
the business, including yourself, Mr. Christner, and
Mr. Jensen. This includes the initial notice of claim,
subsequent Preliminary Finding, and subsequent
Order on Default and Order to Pay.

Numerous opportunities were given to appeal or
dispute the claim, and the involvement or lack
thereof as to the named Respondents therein. This
claim was originally filed in May 2010, with a
subsequent order to pay issued on January 27,
2011. The time to dispute this claim has long since
passed.

¶7 Price, who up until this point had been acting pro se,
retained counsel and filed in the district court a motion to vacate
the Commission’s judgment. The Commission filed a
memorandum in opposition.

¶8 In August 2017, the district court issued a memorandum
decision in which it ruled that (1) the res judicata doctrine did
not bar Price from pursuing judicial review of the Commission’s
action; (2) service by first-class mail was insufficient to provide
Price notice and afford him due process; and (3) Heaps v. Nuriche,
LLC, 2015 UT 26, 345 P.3d 655, applied retroactively to shield
Price from personal liability for the amounts owed pursuant
to the Default Order because he was not an “employer” under
the Utah Payment of Wages Act, see Utah Code Ann. § 34-28-
2(1)(c) (LexisNexis Supp. 2017). However, the district court did
not vacate the Commission’s Default Order against Price.
Instead, it quashed the writ of garnishment and ordered Price to
“pursue a motion to set aside in the administrative proceeding
with notice to all interested parties.” The Commission appeals,
and Price cross-appeals the denial of his request for attorney
fees.

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ISSUES AND STANDARDS OF REVIEW

¶9 The threshold issue before this court is whether the
district court had jurisdiction to consider Price’s challenge to the
Commission’s enforcement of the Default Order against him.
“Whether the district court has jurisdiction is a question of law
that we review for correctness, giving no deference to the lower
court.” Potts v. Potts, 2018 UT App 169, ¶ 7, 436 P.3d 263 (cleaned
up).

¶10 The second issue is whether the district court erred in
ruling that first-class mail was insufficient to provide Price
notice of the wage claim, the preliminary finding, and the
Default Order. “Constitutional issues, including questions
regarding due process, are questions of law that we review for
correctness.” Salt Lake City Corp. v. Jordan River Restoration
Network, 2012 UT 84, ¶ 47, 299 P.3d 990 (cleaned up). 4

4. The parties raise two additional issues. First, the Commission
argues that res judicata precluded the district court from
reviewing the Commission’s decision to reach a determination
whether Heaps v. Nuriche, LLC, 2015 UT 26, 345 P.3d 655, applied
retroactively. We agree that the district court should not have
addressed the applicability of Heaps, not because of res judicata
principles, but instead because we conclude that the district
court acted without jurisdiction in resolving this question.
Price argued below that the Commission acted without
authority in rendering the Default Order against him because
Heaps, decided years after the claim was determined here,
should be retroactively applied to limit the extent of personal
liability of corporate officers and agents for unpaid wages.
Specifically, he asserts that Heaps clarified that the Default Order
should not apply to him, relying on Utah Code section 63G-4-
501(3)(b) (LexisNexis 2016) which provides, “In a proceeding for
(continued…)

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ANALYSIS

I. Jurisdiction of the District Court

¶11 Under the Utah Administrative Procedures Act (UAPA),
Utah Code Ann. §§ 63G-4-101 to -601 (LexisNexis 2016), parties
typically have thirty days to file a petition for judicial review of a
final agency action. Id. § 63G-4-401(3)(a). “The timeliness” of
Price’s petition to review the Commission’s Default Order “is a
question of jurisdictional significance. To preserve the right to

(…continued)
civil enforcement of an agency’s order, in addition to any other
defenses allowed by law, a defendant may defend on the ground
that . . . the order does not apply to the defendant . . . .” But Price
mischaracterizes the statute. Section 63G-4-501(3)(b) confers
jurisdiction for the court to hear the defense that a defendant has
been misjoined (e.g., someone who was not named in the order
or someone who was mistakenly joined because he shared the
same name with the responsible party), not for a defendant to
claim that he was improperly held responsible for the unpaid
wages. Price is not contending that he was mistakenly joined.
Rather, he is arguing that even though he is the Derek Price
named in the Default Order, he should not have been held
responsible either because the Commission lacked personal
jurisdiction over him or because he should not be held liable for
the unpaid wages under Heaps. Thus, because Price was not
misjoined in this proceeding, we conclude that the district court
acted without jurisdiction in addressing the applicability of
Heaps to Price’s case.
Second, Price asserts that the district court erred in not
awarding him attorney fees. Because we reverse on the issue of
the sufficiency of service by first-class mail, we need not address
awarding attorney fees incurred in the district court or on
appeal.

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challenge an agency decision, an interested party must file a
request for review within thirty days. If no such request is filed,
the agency action is final and conclusive and may not be subject
to collateral attack.” Living Rivers v. U.S. Oil Sands, Inc., 2014 UT
25, ¶ 18, 344 P.3d 568; see also Perez v. South Jordan City, 2013 UT
1, ¶ 10, 296 P.3d 715 (“[T]he requirement of a timely appeal is
jurisdictional.”); Blauer v. Department of Workforce Services, 2007
UT App 280, ¶ 7, 167 P.3d 1102 (“The timely filing of petitions
for review, like that of notices of appeal from judicial orders, is
jurisdictional, and failure to timely file results in dismissal.”
(cleaned up)). Thus, the Commission argues that the district
court lacked jurisdiction to hear Price’s challenge to the Default
Order because he failed to timely file a petition for judicial
review.

¶12 The Commission’s argument fails because jurisdiction in
this case obtains by statutory grant. Price did not seek review of
the Default Order; rather, he sought to defend against the
garnishment. Thus, the jurisdiction question must be resolved
within the framework of the garnishment proceeding, not in the
context of judicial review of an agency action. And Price
correctly argues that the district court in fact had jurisdiction to
hear at least one of his defenses to the Commission’s
enforcement of the Default Order under a relevant exception
provided by the UAPA:

In a proceeding for civil enforcement of an
agency’s order, in addition to any other defenses
allowed by law, a defendant may defend on the
ground that: (a) the order sought to be enforced
was issued by an agency without jurisdiction to
issue the order [or] (b) the order does not apply to
the defendant . . . .

Utah Code Ann. § 63G-4-501(3)(a)–(b) (LexisNexis 2016).

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¶13 Price asserts that the writ of garnishment was a
“proceeding for civil enforcement” of the Default Order against
which he is mounting a defense recognized by section 63G-4-
501(3). Therefore, he argues that the district court had
jurisdiction to hear his case under the narrow statutory grant of
this authority. See id. The Commission counters by citing our
decision in Utah State Tax Commission v. Echols, 2006 UT App 19U
(per curiam), in which we stated that a district court lacks
“subject matter jurisdiction to consider a collateral attack on an
underlying judgment in the context of the garnishment
proceedings.” Id. para. 4. But our decision in Echols addressed
the lack of jurisdiction to attack an underlying judgment during
a garnishment proceeding in broad terms. It did not address the
statutory grant of jurisdiction. 5 So, while the general rule (viz.,
that a garnishment proceeding cannot be used to mount a
collateral attack of an underlying judgment) expressed in Echols
remains valid, 6 the district court in Price’s case possessed

5. In addition to the defense that an agency acted without
jurisdiction and that an order does not apply to a defendant, the
statute also allows a defendant to assert the following defenses
in a proceeding for civil enforcement of an agency order: (1) “the
defendant has not violated the order” or (2) “the defendant
violated the order but has subsequently complied.” Utah Code
Ann. § 63G-4-501(3)(c)–(d) (LexisNexis 2016).

6. Caselaw from other jurisdictions supports this general rule.
See Koors v. Great Sw. Fire Ins. Co., 538 N.E.2d 259, 260 (Ind. Ct.
App. 1989) (“[I]t is well established that [an order of
garnishment in] proceedings supplemental cannot be used to
collaterally attack the underlying judgment.”); Estate of Droomers
ex rel. Droomers v. Parnell, Nos. 333691, 333692, 334822, 2017 WL
4654416, at *8 (Mich. Ct. App. Oct. 17, 2017) (per curiam) (“[I]n a
(continued…)

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jurisdiction to consider a narrow category of challenges under a
specific statutory grant of authority.

¶14 Thus, we conclude that the defense Price raised in the
context of the garnishment proceeding conferred jurisdiction on
the district court to determine whether the Commission acted
without jurisdiction in rendering the Default Order.

II. Sufficiency of Notice by First-class Mail

¶15 Price asserts that serving the notice of the wage claim by
first-class mail deprived him of due process, resulting in the
Commission acting without jurisdiction to render the Default
Order against Price. While it is true that proper service is
required to exercise jurisdiction over a party, see Cooper v.
Dressel, 2016 UT App 246, ¶ 3, 391 P.3d 338 (stating that “a
judgment entered against party that was never properly served
is void” for lack of personal jurisdiction), the question here is
whether service via first-class mail in an administrative wage
claim proceeding satisfies due process under the particular facts
of this case.

¶16 The UAPA requires an agency to “mail the notice of
agency action to each party” when “adjudicative proceedings are
commenced by the agency.” Utah Code Ann. § 63G-4-201(2)(b)(i)
(LexisNexis 2016). The statute is silent regarding what type of
mail must be used, but the Commission has defined mail to
mean “first class mailing sent to the parties of a wage claim or
claim of retaliation, to the last known address on the
Commission’s record.” Utah Admin. Code R610-3-2(I). Here, the
Commission used first-class mail to notify Price of the wage

(…continued)
garnishment proceeding, a party may not attack the underlying
judgment . . . .”).

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claim, the preliminary finding, and the Default Order. See id.
R610-3-4(F). In response to Price’s motion to vacate the judgment
against him, the district court made the following determination
regarding service:

Service by first class mail may be adequate most of
the time, but this situation is a reminder that the
Department of Commerce’s business directory is
open to fraud when people can register a business
in the name of another without their knowledge or
consent. . . . The burden on the Commission to alter
its service requirement to certified mail would be
minimal for its outgoing mail.

While the effect of this analysis is not altogether clear, Price and
the Commission seem to agree that the district court decided
that the Commission was required to use certified mail to serve
notice and so satisfy the requirements of due process. Thus, it
appears that the district court determined certified mail should
be required to prevent fraud, even though the court
acknowledged that there was no evidence fraud had ever
actually occurred in a wage claim proceeding. The court also
concluded that certified mail was more likely to apprise
someone in Price’s position of a wage claim. Ultimately, we
disagree with the district court and determine that service by
first-class mail satisfied the requirements of due process.

¶17 Price asserts that two Utah cases support his position that
the Commission was required to notify him using certified mail.
In Anderson v. Public Service Commission, 839 P.2d 822 (Utah
1992), the Motor Carrier Act required that service of process be
made by certified mail. Id. at 825. The Public Service
Commission (PSC) complied and sent notice of a proposed order
to Anderson via certified mail. Id. When the proposed order was
returned, Anderson argued that the PSC had a duty to take
additional steps to ensure that he received notice. Id. Our

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supreme court disagreed and held that the Motor Carrier Act
“makes no reference to any sort of personal service or actual
notice requirement. The most burdensome form of service
articulated is certified mail. Thus, we can infer that, at most, the
legislature intended that the [PSC] be obligated to serve its
orders by certified mail, not by personal service.” Id. In John
Kuhni & Sons Inc. v. Labor Commission, 2018 UT App 6, 414 P.3d
952, the labor commission successfully sent notice to Kuhni via
FedEx. Id. ¶ 3. But the governing statute required that notice be
made by “certified mail.” Id. ¶ 10. We determined that “the term
‘certified mail,’ as used in the relevant statute, encompasses only
items sent via certified mail through the United States Postal
Service,” and we held “that the State did not properly serve
Kuhni when it sent the Citation to Kuhni via FedEx.” Id. ¶ 21.

¶18 Price argues that Anderson and Kuhni support his
“position that service by certified mail would have been a more
reliable way to notify him than first class mail.” But neither case
stands for the proposition Price asserts, namely that the
Commission must use certified mail to satisfy the demands of
due process. Anderson and Kuhni dealt with the issue of whether
an agency must follow statutory directives with regard to
providing service, not whether the statutory requirements
themselves met the demands of due process. In both of those
cases, service by certified mail was required—nothing more,
nothing less—and no substitute would suffice. Thus, Price’s
argument misses the mark. These cases are not about the
superiority of certified mail; rather, they merely stand for the
proposition that agencies are required to use the statutorily
authorized method of providing service. 7 In no way do they

7. In Anderson v. Public Service Commission, 839 P.2d 822 (Utah
1992), our supreme court determined that certified mail met the
demands of due process, but the court did not opine on whether
(continued…)

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categorically mandate that state agencies must use certified mail
to provide notice of proceedings. The most that can be inferred
from these cases is that certified mail meets the demands of due
process in certain circumstances, not that first-class mail fails to
do so.

¶19 Price also argues that due process required the
Commission to have been more diligent in its efforts to find him,
implying that the Commission had a responsibility to ensure
that Price “received the mail.” “An elementary and fundamental
requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their
objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950). And as our supreme court has noted,
“sufficiency of ‘notice’ for due process purposes is more limited
in administrative matters than in other areas of the law.”
Anderson, 839 P.2d at 825 (quoting Worrall v. Ogden City Fire
Dep’t, 616 P.2d 598, 602 (Utah 1980) (Hall, J., dissenting)). Thus,
“notice must be reasonably calculated under all the
circumstances to give interested parties an opportunity to
protect their interests. Under this standard, the proper inquiry

(…continued)
first-class mail fell below that standard: “To comport with due
process, notice must be reasonably calculated under all the
circumstances to give interested parties an opportunity to
protect their interests. . . . Although certified mail will not ensure
actual notice in all cases, it is a method reasonably calculated to
inform certificate holders of Commission orders.” Id. at 825–26
(cleaned up). The Anderson court did not opine about whether
first-class mail would meet the same standard but examined
only the standard of certified mail that the legislature had
expressly designated.

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focuses on whether the agency acted reasonably in selecting
means likely to inform persons affected, not whether each
affected person actually received notice.” Id. (cleaned up); see also
State v. King, 111 P.3d 1146, 1147 (Or. Ct. App. 2005) (“In general,
due process under the Fourteenth Amendment is a flexible
concept that calls for such procedural protections as the
particular situation demands.” (cleaned up)); Withrow v. Schou,
13 S.W.3d 37, 40 (Tex. App. 1999) (“As to Constitutional
concerns, actual notice is not and has never been the standard for
determining whether due process has been afforded a litigant.
Rather, due process only requires notice, reasonably calculated
under the circumstances, to be given.”).

¶20 Here, in the context of a garnishment proceeding flowing
from an administrative proceeding, we must examine these
circumstances under the factual underpinnings of the
administrative adjudication. In this case, the Commission was
working under the premise that Price was a manager of Mad
Cow, which registered Price’s address as a manager, placing
upon Price a concomitant duty to keep the Department of
Commerce apprised of his address, see Utah Code Ann. § 16-17-
206 (LexisNexis 2013); id. § 48-3a-111(2) (2015). If these facts are
actually based upon fraud, then that is a claim that should be
brought before the Commission. However, assuming that Price
was a registered manager of Mad Cow with an ongoing duty to
keep his address current with the Department of Commerce, we
conclude that the Commission’s use of service by first-class mail
was reasonably calculated to provide notice to Price of the wage
claim proceedings and thus comported with the demands of due
process under the limited requirements of administrative
proceedings.

¶21 First, it was reasonable for the Commission to follow the
statutory requirements for providing notice of the
commencement of adjudicative proceedings. The relevant statute
required only that upon the commencement of agency

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proceedings, the agency “mail the notice of agency action to each
party,” id. § 63G-4-201(2)(b)(i) (2016), and rule R610-3-2(I) of the
Utah Administrative Code required that notice of a wage claim
be sent by “first class mailing . . . to the last known address on
the Commission’s record.” Consistent with these requirements,
the Commission sent notice of the wage claim by first-class mail
to Price at the addresses it had on file for him. See Anderson, 839
P.2d at 825 (stating that the most burdensome form of service
required is that articulated by the legislature); Kuhni, 2018 UT
App 6, ¶ 20 (stating that agencies are required to comply with
statutorily mandated methods of service); Saysavanh v.
Saysavanh, 2006 UT App 385, ¶ 25, 145 P.3d 1166 (requiring
service to be “in conformance with the mode prescribed by
statute” for a court to have jurisdiction (cleaned up)); see also
State v. Lewis, 953 P.2d 1016, 1019, 1027 (Kan. 1998) (stating that
statutory notice provisions requiring notice be sent by first-class
mail “comport with notice requirements of the Due Process
Clause of the United States Constitution”); Banks v.
Unemployment Comp. Board of Review, 370 A.2d 1234, 1237 (Pa.
Commw. Ct. 1977) (“Taking into consideration the type of
hearing and rights adjudicated, [notification by means of regular
mail] is a reasonable means of providing for service of notice.
When the State Legislature prescribes a reasonable method of
service, it is due process as to persons resident herein and as to
parties to lawsuits in our State courts.”).

¶22 Second, the Commission acted reasonably in sending
notices to the addresses it had on file for Price because
attempting to contact him at these addresses provided the most
likely means to inform Price of the matter under the
circumstances of this case. See Salt Lake City Corp. v. Jordan River
Restoration Network, 2012 UT 84, ¶ 162, 299 P.3d 990 (Lee, J.,
dissenting) (“[F]irst-class mail notice (or its equivalent) [is
required] before a judgment can extinguish a claim belonging to
known claimants. Mere publication is categorically insufficient

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as a primary form of notice for known claimants under the Due
Process Clause. It withstands constitutional scrutiny only as a
supplement to individual notice or for claimants whose identity
or location is unknown.”); see also Prince v. Marion County
Auditor, 992 N.E.2d 214, 221 (Ind. Ct. App. 2013) (concluding that
notice sent by first-class mail of a tax sale process “met the
requirements of due process”); In re License of West Side Pawn,
587 N.W.2d 521, 523 (Minn. Ct. App. 1998) (concluding that
notice sent by first-class mail revoking a business license
“satisfied due process”); Wells Fargo Bank, NA v. Ferreri, 199 A.3d
892, 897 (Pa. Super. Ct. 2018) (concluding that service by first-
class mail was “reasonably calculated to inform [an] appellant of
the pending [sheriff’s] sale and contained the information
necessary to provide an opportunity to present objections”
(cleaned up)). 8

¶23 Third, while certified mail may have made actual notice
more likely, it may have also had the opposite effect. As the
Supreme Court noted, certified mail provides superior service
only

8. Price asserts that he was listed as the registered agent and the
member-manager of Mad Cow without his knowledge or
consent, thus implying that his name was fraudulently added to
the Department of Commerce’s record. Apart from his assertion
that his name was fraudulently listed, Price has provided no
evidence of such fraud, and the district court also noted that
“[n]either party has presented evidence of whether this sort of
[fraudulent] situation has occurred in the past and how often.”
As we note, supra note 3, another respondent claimed that it was
Price who was the wrongdoer. This is the kind of factually open
question that should be addressed to the Commission in the first
place. See A-Fab Eng'g v. Tax Comm'n, 2019 UT App 87, ¶ 20, 444
P.3d 547.

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when someone is home to sign for the letter, or to
inform the mail carrier that he has arrived at the
wrong address. Otherwise, certified mail is
dispatched and handled in transit as ordinary mail,
and the use of certified mail might make actual notice
less likely in some cases—the letter cannot be left like
regular mail to be examined at the end of the day,
and it can only be retrieved from the post office for
a specified period of time.

Jones v. Flowers, 547 U.S. 220, 234–35 (2006) (emphasis added)
(cleaned up). Following this reasoning, first-class mail may have
provided a more certain means of giving notice to Price because
the letters that the Commission sent remained at Price’s last
known addresses for a longer period of time, thus increasing the
probability that he would receive them. Certified mail would not
have provided this prolonged opportunity for discovery.

¶24 Fourth, the fact that the notices were never returned to the
Commission as undeliverable indicates that they were received
and remained at the addresses available to the Commission and
associated with Price. In other words, the Commission acted on
a reasonable assumption that Price had received the notices
because they were not returned as undeliverable. See Griffin v.
Bierman, 941 A.2d 475, 487 n.14 (Md. 2008) (“If first-class mail is
undeliverable, it is returned to the sender. At which point, the
sender knows that notice was not received.”); id. at 484 n.11
(noting that if first-class-mail notices are returned undelivered or
certified mail is returned as unclaimed, then “reasonable follow-
up measures . . . might be required” to give notice to the
interested party); see also In re Foreclosures of Liens for Delinquent
Land Taxes by Action in rem Collector of Revenue, 334 S.W.3d 444,
457 (Mo. 2011) (en banc) (stating that to meet the due process
standard articulated in Flowers, “in the absence of a postal
service record, the city should maintain records detailing when
notices are ‘returned to sender’”).

20170734-CA 17 2020 UT App 24
Labor Commission v. Price

¶25 Thus, providing notice by first-class mail did not deprive
Price of due process; accordingly, the Commission had
jurisdiction to render the Default Order.

CONCLUSION

¶26 The district court had jurisdiction—in the context of a
garnishment proceeding under section 63G-4-501(3)(a) of the
Utah Code—to consider Price’s defense that the Commission
acted without jurisdiction. However, the district court erred in
determining that service by first-class mail violated Price’s right
to due process. 9

¶27 Reversed.

9. Price may not be without remedy. As a defaulted party, he can
“seek to have the agency set aside the default order . . . by
following the procedures outlined in the Utah Rules of Civil
Procedure.” Utah Code Ann. § 63G-4-209(3)(a) (LexisNexis
2016). He would do so by filing a motion “to set aside [the]
default and any subsequent order” with the presiding officer at
the Commission. Id. § 63G-4-209(3)(b). The presiding officer’s
decision on the motion to set aside the default would be subject
to agency review and, if necessary, district court and appellate
court review. Id. § 63G-4-209(3)(c). At oral argument, Price
indicated that just such a proceeding is pending at the
Commission, but he represented it had been stayed awaiting the
disposition of this appeal.

20170734-CA 18 2020 UT App 24