Jordan Credit Union v. Sullivan

2022 UT App 120

THE UTAH COURT OF APPEALS

JORDAN CREDIT UNION,
Appellee,
v.
PATRICK M. SULLIVAN,
Appellant.

Opinion
No. 20210484-CA
Filed October 27, 2022

Third District Court, Salt Lake Department
The Honorable Patrick Corum
No. 129917324

Patrick M. Sullivan, Appellant Pro Se
Richard C. Terry and Douglas A. Oviatt, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE DAVID N. MORTENSEN concurred. JUDGE GREGORY
K. ORME concurred, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1 Patrick M. Sullivan appeals the district court’s ruling
denying his motion to vacate a default judgment entered against
him. Sullivan argues the court lacks jurisdiction because he was
not properly served with process pursuant to rule 4(d)(1)(D) of
the Utah Rules of Civil Procedure. We agree and accordingly
reverse.

BACKGROUND

¶2 In 2008, Sullivan entered into a loan agreement with Jordan
Credit Union (Jordan) to purchase a vehicle. In 2012, Sullivan
Jordan Credit Union v. Sullivan

defaulted on the loan agreement. In response, Jordan filed a
Motion for Issuance of Order to Show Cause Why a Writ of
Replevin and Writ of Assistance Should Not Issue. The district
court granted the order to show cause on December 12, 2012.

¶3 On December 17, Sullivan—who was incarcerated at the
Utah County Jail on charges unrelated to this case—was
personally served by a Utah County deputy constable with the
order to show cause, summons, and complaint. On January 14,
2013, Sullivan was served with a writ of replevin, praecipe, writ
of assistance, and order of possession. At that time, Sullivan was
still incarcerated at the Utah County Jail and personal service was
again effected by a Utah County deputy constable. Thereafter,
Sullivan never appeared to answer Jordan’s complaint, and on
February 11, 2013, the district court entered default judgment
against Sullivan.

¶4 In February 2021, Jordan filed a Motion for Renewal of
Judgment against Sullivan. A copy of the motion was mailed to
Sullivan at his then-current residence, the Utah State Prison. The
district court granted Jordan’s motion and renewed the original
judgment against Sullivan.

¶5 In response, Sullivan filed a Motion to Vacate Order of
Default Judgment. Sullivan argued that he “was never aware of
[the 2013 default judgment], prior to [Jordan] filing a Motion for
Renewal of Judgment.” Sullivan maintained that he “was never
served with a copy of the summons and complaint” in the original
default action as required by rule 4(d)(1) of the Utah Rules of Civil
Procedure. Consequently, because service was deficient, Sullivan
requested the default judgment be vacated pursuant to rules 55
and 60 of the Utah Rules of Civil Procedure.

¶6 The district court denied Sullivan’s motion to vacate the
default judgment. In its ruling, the court rejected Sullivan’s claim
that he was not properly served under rule 4, finding that Jordan
“established service of process on December 20, 2012.” The court

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noted that Sullivan was “[i]n fact” served while he was
incarcerated at the Utah County Jail.

ISSUE AND STANDARD OF REVIEW

¶7 Sullivan now appeals the district court’s denial of his
motion to vacate the default judgment. Specifically, Sullivan
argues the court erred in determining that he had been properly
served pursuant to rule 4(d)(1)(D) of the Utah Rules of Civil
Procedure. “A denial of a motion to set aside a judgement is
ordinarily reviewed for an abuse of discretion.” Saysavanh v.
Saysavanh, 2006 UT App 385, ¶ 7, 145 P.3d 1166. “However, when
a motion to set aside a judgment is based on a claim of lack of
jurisdiction, the district court has no discretion.” Id. (quotation
simplified). The issue of “[w]hether service of process is proper
presents a question of law that we review for correctness.”
Stichting Mayflower Mountain Fonds v. Jordanelle Special Service
Dist., 2001 UT App 257, ¶ 7, 47 P.3d 86.

ANALYSIS

¶8 “For a court to acquire jurisdiction, there must be a proper
issuance and service of summons.” Weber County v. Ogden Trece,
2013 UT 62, ¶ 44, 321 P.3d 1067 (quotation simplified). Under Utah
law, service of process is governed by rule 4 of the Utah Rules of
Civil Procedure. Rule 4(d)(1)(A) provides that personal service
must be made “by delivering a copy of the summons and
complaint to the individual personally,” unless the individual is
“one covered by paragraphs (d)(1)(B), (d)(1)(C) or (d)(1)(D).”
Utah R. Civ. P. 4(d)(1)(A). As relevant here, subsection (d)(1)(D)
proscribes the service of process on a person “incarcerated or
committed at a facility operated by the state or any of its political
subdivisions.” Id. R. 4(d)(1)(D). Under that subsection, service
upon an individual incarcerated must be made “by delivering a
copy of the summons and complaint to the person who has the

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care, custody, or control of the individual . . . . The person to
whom the summons and complaint are delivered must promptly
deliver them to the individual.” Id.

¶9 Sullivan contends he was not properly served with process
under rule 4(d)(1)(D). At the time Jordan filed its complaint,
Sullivan was incarcerated at the Utah County Jail. Thereafter,
Jordan personally served Sullivan with a summons and copy of the
complaint. The proof of service clearly states that “a copy of the
attached process” was given to “Patrick Sullivan,” and the
document is signed by Sullivan. Indeed, Jordan does not dispute
this fact. It acknowledges the proof of service indicates that
“Sullivan was served personally while in custody.” (Emphasis
added.) However, under rule 4(d)(1)(D), personal service is not
sufficient where the individual being served is incarcerated. As
discussed above, the rule’s plain language carves out an exception
for personal service upon incarcerated individuals. That
exception applies here. And under that exception, service on an
inmate such as Sullivan must be made “by delivering a copy of
the summons and complaint to the person who has the care, custody,
or control of the individual.” See id. (emphasis added).

¶10 Jordan resists this conclusion on two grounds. First, Jordan
argues that service upon an inmate may also be accomplished
pursuant to rule 4(d)(2)(A), which provides that “[t]he summons
and complaint may be served . . . by mail or commercial courier
service.” See id. R. 4(d)(2)(A). But this argument misses the mark.
While service upon an incarcerated individual may be properly
accomplished by mail, that is not what happened here. Service
was not effectuated pursuant to this subsection of rule 4, a fact
that Jordan does not dispute. Thus, the availability of an
alternative method of service is irrelevant.

¶11 Second, Jordan argues the service completed in this case
satisfies the “purpose and intent” of rule 4 inasmuch as “the
preferred method is to serve the summons on the party directly,

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falling back to other methods when that cannot be accomplished.”
But to credit this position would require us to ignore the plain
language of the rule, which we cannot do. See Day v. Barnes, 2018
UT App 143, ¶ 15, 427 P.3d 1272 (“We interpret court rules, like
statutes and administrative rules, according to their plain
language. Courts are, in short, bound by the text of the rule.”
(quotation simplified)); see also St. Jeor v. Kerr Corp., 2015 UT 49,
¶ 13, 353 P.3d 137 (declining the defendant’s request to depart
from the plain language of rule 4 and “to ‘look to the spirit of
the rules’ rather than the text itself”); Redwood Land Co. v.
Kimball, 433 P.2d 1010, 1010 (Utah 1967) (holding that service
is proper only when effectuated in “strict compliance” with
the rules); Nolan v. RiverStone Health Care, 387 Mont. 97, ¶ 10, 391
P.3d 95 (“Because proper service of process is jurisdictional, . . .
strict compliance with the rules for service of process is
mandatory.”). Because subsections (d)(1)(A) and (d)(1)(D)
explicitly provide that personal service may be made “[u]pon any
individual other than” “an individual incarcerated,” and because
“it is service of process, not actual knowledge of the
commencement of the action, which confers [personal]
jurisdiction,” see Saysavanh v. Saysavanh, 2006 UT App 385, ¶ 25,
145 P.3d 1166 (quotation simplified), the district court was
without jurisdiction to enter default judgment against Sullivan,
see Meyers v. Interwest Corp., 632 P.2d 879, 880 (Utah 1981) (“It is
axiomatic that a court acquires power to adjudicate by proper
service of process which imparts notice that the defendant is being
sued and must appear and defend or suffer a default judgment.”
(quotation simplified) (emphasis added)).

¶12 In sum, “the district court lacks personal jurisdiction when
there has not been effective service of process,” and “judgments
entered by a district court lacking personal jurisdiction over the
defendant are void.” Cooper v. Dressel, 2016 UT App 246, ¶ 3, 391
P.3d 338 (quotation simplified). Here, Jordan failed to properly
serve Sullivan pursuant to rule 4(d)(1)(D) because Sullivan was
served personally while he was incarcerated at the Utah County

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Jail. Consequently, because service of process was defective, the
district court lacked jurisdiction and its judgment is void.

CONCLUSION

¶13 The district court erred in denying Sullivan’s motion to
vacate the default judgment. Under the facts of this case, Sullivan
was not properly served pursuant to the governing rule and the
court therefore lacked personal jurisdiction to enter a default
judgment against him. We reverse the court’s denial of Sullivan’s
motion, vacate the default judgment, and remand the case for
further proceedings as appropriate.

ORME, Judge (concurring):

¶14 I concur in the court’s opinion. Given the text of rule
4(d)(1)(D), I have no choice. But the rule we are bound to follow
leads to a result in this case that is nothing short of silly. Our
Supreme Court should change the rule. See generally Utah Const.
art. VIII, § 4 (“The Supreme Court shall adopt rules of
procedure[.]”).

¶15 Every judge and lawyer, and every law student who has
taken Civil Procedure, knows that the gold standard for service of
process is personal service, which is what happened here. All the
other variations of service, such as substitute service and service
by publication, exist to cover situations when personal service has
been avoided or is not possible.

¶16 And the logistical difficulty of effecting personal service on
an inmate is no doubt what our Supreme Court had in mind in
adopting rule 4(d)(1)(D). Surely any ol’ process server cannot
simply waltz into a correctional facility and hand a summons and
complaint to an inmate. And while this is absolutely true with the

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typical “person 18 years of age or older at the time of service and
not a party to the action or a party’s attorney,” see Utah R. Civ. P.
4(d)(1) (stating the eligibility requirements for process servers),
this is apparently not true when the process server is a constable—
a certified peace officer, albeit not one whose responsibilities
include correctional work, see Utah Code Ann. § 53-13-105(1)(a),
(1)(b)(ii) (LexisNexis Supp. 2022) (stating that a constable is “a
sworn and certified peace officer,” specifically a “special function
officer”); id. § 17-25-1 (2017) (listing the general powers and duties
of constables, including to “execute, serve, and return all process
directed or delivered to” the constable).

¶17 Here, the constable did nothing more than cut out a
pointless middle step. Instead of handing the summons and
complaint to the sheriff or the sheriff’s designee so the paperwork
could be handed to the inmate, the constable handed it to the
inmate directly. Voila! He could then personally vouch for actual
service on the inmate rather than just substitute service. See
generally Utah R. Civ. P. 4(d)(1)(D) (stating that service on an
inmate is accomplished by serving the inmate’s custodian, or the
custodian’s designee, who then, if all goes well, will “promptly”
deliver the summons and complaint to the inmate). And that is
the point, obviously—to get the summons and complaint in the
hands of the inmate, which is exactly what happened here
somewhat more efficiently than the rule contemplates.

¶18 The necessary adjustment to rule 4(d)(1)(D) is obvious and
requires the addition of only a few words, underlined below:

Upon an individual incarcerated or committed at a
facility operated by the state or any of its political
subdivisions, if personal service cannot be effected
on such individual, by delivering a copy of the
summons and complaint to the person who has the
care, custody, or control of the individual, or to that
person’s designee or to the guardian or conservator

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of the individual if one has been appointed. The
person to whom the summons and complaint are
delivered must promptly deliver them to the
individual[.]

Such a change will preclude the absurd result we had to announce
in this case given the current phraseology of the rule.

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