Southland Cnst. v. Semnani

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Southland Construction,
Plaintiff and Appellee,

v.

Ghazaleh Semnani and Khosrow B. Semnani,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990193-CA

F I L E D
October 15, 1999
    1999 UT App 300 -----

Third District, Murray Department
The Honorable Michael K. Burton

Attorneys:
Gary A. Weston and D. Scott Crook, Salt Lake City, for Appellants
Randy B. Birch, Heber City, for Appellee

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Before Judges Greenwood, Davis, and Orme.

PER CURIAM:

Appellants appeal an order of the district court denying their motion to set aside default judgment and quash writ of execution. We affirm.

Utah Rule of Civil Procedure 60(b) provides that "[o]n motion and upon such terms as are just, the court may in the furtherance of justice relieve a party . . . from a final judgment, order or proceeding for the following reasons: . . . (4) the judgment is void." In considering a motion to set aside a default judgment under Rule 60(b)(4) based on lack of jurisdiction, the district court has no discretion. If service of process is invalid, the trial court lacks jurisdiction and the default judgment is void and should be set aside. See Skanchy v. Calcados Ortope Sa, 952 P.2d 1071, 1074 (Utah 1998). The defendant bears the burden of showing that service was invalid. See id. at 1075.

In order to obtain jurisdiction over a defendant, process must be served in accordance with Utah Rule of Civil Procedure 4(e)(1), which provides that personal service shall be made upon an individual by delivering a copy of the summons or complaint 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." A person's usual place of abode is the place he or she lives at the time of service. See Reed v. Reed, 806 P.2d 1182, 1185 (Utah 1991).

The constable's affidavit of service recites that he served appellants at their usual place of abode by leaving the summons and complaint with an unknown person of suitable age residing thereat. A "constable's Affidavit of Service is prima facie evidence of proper service of process and is deemed presumptively correct." Classic Cabinets v. All Amer. Life Ins. Co., 978 P.2d 465, 468 (Utah Ct. App. 1999). Thus, the constable's affidavit is prima facie proof that appellants were properly served at their usual place of abode in conformance with Rule 4(e)(1). The burden "shifts to [appellants] to prove, by clear and convincing evidence, that service was improper." Id.

Appellants' evidence that they did not live at the Mulholland Property at the time of service consists solely of Ghazaleh's affidavit. Appellants have submitted no independent proof to support the affidavit, such as utility bills, phone book listings, tax returns, or a copy of a lease agreement with the alleged tenant. Appellants' affidavit is insufficient, by itself, to overcome the presumption of correctness. See id. (holding unsupported affidavit filed by corporate defendant alleging it never received service of process to be insufficient to overcome presumption); Guthrie v. Ray, 335 S.E.2d 146, 149 (N.C. 1977) (stating that return of service by sworn officer and judgment based thereon "may not be set aside unless the evidence consists of more than a single contradictory affidavit (the contradictory testimony of one witness) and is clear and unequivocal"). Accordingly, appellants have failed to meet their burden of proof that they were not properly served and the district court did not err as a matter of law in denying the motion to set aside the default judgment.(1)

Affirmed.
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Gregory K. Orme, Judge

1. Appellants accurately note that the district court improperly denied their motion based on its finding that appellants knew about the lawsuit in 1996.  "Service of summons in conformance with the mode prescribed by law is deemed jurisdictional, for it is service of process, not actual knowledge of the action which confers jurisdiction."  Murdock v. Blake, 484 P.2d 164, 167 (Utah 1971); see also Weber v. Snyderville West, 800 P.2d 316, 318 (Utah Ct. App. 1990).  However, it is a well-established rule of
appellate review that the lower court may be affirmed on any grounds, even if not relied upon below.  See White v. Deseelhorst, 879 P.2d 1371, 1376 (Utah 1994); Limb v. Federated Milk Producers Ass'n, 461 P.2d 290 (Utah 1969).