Zions FNB v. Christensen

----ooOoo----

Zions First National Bank, a national association,
Plaintiff and Appellee,

v.

Richard A. Christensen;
Richard F. McKeen and Maurine G. McKeen, his wife;
New Empire Development Company;
Backman Abstract and Title;
Capitol Thrift and Loan; Franklin Financial;
Traverse Hills Associates;
Valley Bank & Trust Company;
Myron B. Child, Jr. dba Child & Associates;
State Tax Commission; and Martha W. Snyder,
Defendants and Appellant.
______________________________

Uwe Michel, Annette Michel, Ullrich Michel, and Corolla Michel,
Intervenors.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981733-CA

F I L E D
March 16, 2000
  2000 UT App 76 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Denver C. Snuffer, Jr., Sandy, for Appellant
Bruce J. Nelson, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Jackson, and Davis.

DAVIS, Judge:

Defendant Richard A. Christensen appeals the trial court's denial of his Renewed Motion to Vacate Judgment. Defendant first argues that the 1982 judgment must be vacated for lack of in personam jurisdiction. "'A denial of a motion to vacate a judgment under rule 60(b) is ordinarily reversed only for an abuse of discretion. However, when a motion to vacate a judgment is based on a claim of lack of jurisdiction, the district court has no discretion: if jurisdiction is lacking, the judgment cannot stand without denying due process to the one against whom it runs. Therefore, the propriety of the jurisdictional determination, and hence the decision not to vacate, becomes a question of law upon which we do not defer to the district court.'" Classic Cabinets, Inc. v. All Am. Life Ins. Co., 1999 UT App 88, ¶9, 978 P.2d 465 (citations omitted).

Defendant has the burden to show that the trial court lacked the requisite jurisdiction to adjudicate defendant's rights. "'When a judgment, including a default judgment, has been entered by a court of general jurisdiction, the law presumes that jurisdiction exists, and the burden is on the party attacking jurisdiction to prove its absence.'" Bonneville Billing v. Whatley, 949 P.2d 768, 775 n.7 (Utah Ct. App. 1997) (alteration and citation omitted); accord State v. Vijil, 784 P.2d 1130, 1133 (Utah 1989); see also Skanchy v. Calcados Ortope SA, 952 P.2d 1071, 1074-75 (Utah 1998) ("[Defendant] had the burden of showing that the service was invalid."); Reed v. Reed, 806 P.2d 1182, 1185 (Utah 1991) ("[T]he burden was upon defendant to prove that service was improper."). "This presumption is based at least partially on necessity." Vijil, 784 P.2d at 1133. The presumption is that judgments of superior courts of general jurisdiction are regularly rendered even though the record does not disclose that the court acquired jurisdiction and the fact that there was no allegation or finding as to a jurisdictional requirement is not grounds for setting aside the judgment after the expiration of the time for appeal. The distinction to be made is between a record on the face of which lack of jurisdiction is apparent and one which is silent or incomplete as to some jurisdictional fact. In the latter instance the mere absence from the record of necessary jurisdictional facts will not overcome the presumption of jurisdiction. Coshatt v. Calmac Mfg. Corp., 602 P.2d 845, 846 (Ariz. Ct. App. 1979) (emphasis added).

"[T]he invalidity or absence of service of process can be shown by clear and convincing evidence." Carnes v. Carnes, 668 P.2d 555, 557 (Utah 1983); see also Classic Cabinets, 1999 UT App 88 at ¶13. The only "evidence" defendant has provided is the lack of a return of service in the original trial court's file. Noticeably absent is a sworn affidavit by defendant denying that he was served. SeeCarnes, 668 P.2d at 557 (holding defendant's affidavit denying that he was served with process was sufficient to preclude trial court's grant of summary judgment); Classic Cabinets, 1999 UT App 88 at ¶13 (holding affidavit providing that company had no "record of receiving" service of process was not clear and convincing evidence sufficient to rebut constable's Affidavit of Service); but see Casida v. Deland, 866 P.2d 599, 602 (Utah Ct. App. 1993) ("While the judge 'should not arbitrarily reject competent, credible, uncontradicted testimony, nevertheless he [or she] is not compelled to believe evidence where there is anything about it which would reasonably justify refusal to accept it as the facts, and this includes the self-interest of the witness.'") (citation omitted). To overcome his burden, defendant was required to provide competent evidence showing that service of process was not completed or was improper. SeeSkanchy, 952 P.2d at 1075 (holding defendants' argument regarding invalid service failed because defendants offered no supporting evidence); Reed, 806 P.2d at 1185 (stating it was defendant's burden to provide evidence that service was improper); cf. Utah R. Civ. P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence . . . ."); Redevelopment Agency v. Daskalas, 785 P.2d 1112, 1126 (Utah Ct. App. 1989) ("It takes only one competent sworn statement to . . . create an issue of fact."). Because defendant has only generally argued through counsel, as opposed to providing sworn testimony, that he was never served, he has failed to meet his burden of proof that the 1982 judgment was entered without the requisite in personam jurisdiction.(1)

Defendant argues next that "[t]he failure to give notice of the summary judgment motion deprived Richard A. Christensen of due process." However, defendant fails to develop this argument and merely reargues his position that the lack of any record evidence regarding service of process supports his contention that he was never served. Accordingly, we do not address this argument further. See Salt Lake City v. Wood, 1999 UT App 323, ¶5, 991 P.2d 595 (opinion of Bench, J.) (stating this court will not address "cursorily presented issues" "unaccompanied by argument, analysis, or citation to any authority").

Lastly, defendant argues that the 1982 judgment should be vacated because his surname is misspelled on the caption of the pleadings. Defendant maintains that the misspelling by the one letter creates an ambiguity regarding who the judgment affects: Richard A. Christensen, or Richard A. Christenson. While we agree that "accuracy is always to be desired[,] . . . there should be no penalty or adverse effect for mere error which causes no harm." Downey State Bank v. Major-Blakeney Corp., 545 P.2d 507, 509 (Utah 1976).

Defendant claims he is prejudiced in the amount of $1,850,000. However, his "prejudice" arises from the existence of the judgment, not from the misspelling of one letter in his last name. Defendant does not claim that because of the misspelling, he was not put on notice that the "Richard A. Christensen" in the caption referred to him. See Sulzen v. Williams, 1999 UT App 76, ¶15, 977 P.2d 497 (holding that amendment of caption in complaint was appropriate because, although defendants were incorrectly named, they "were sufficiently alerted to the proceedings").

Furthermore, if defendant was not the same person named in the caption, except for the incorrect letter, he would be without the necessary standing to challenge the lack of service of process and the trial court's resulting lack of in personam jurisdiction. Cf. Overturf v. University of Utah Med. Ctr., 1999 UT 3, ¶5, 973 P.2d 413 ("'Persons who are not parties of record to a suit have no standing therein which will enable them to take part in . . . the proceedings.'") (citation omitted; alteration in original).

Finally, defendant fails to cite any authority for the proposition that a judgment must be vacated when a defendant's name is misspelled by one letter. Thus, defendant's failure to comply with Utah Rule of Appellate Procedure 24(a)(9) provides an additional basis to reject his argument.

In sum, because defendant has failed to meet his burden of showing that he was never served with process, and judgments are presumed to be entered with the requisite jurisdiction, we affirm the trial court's denial of defendant's Renewed Motion to Vacate Judgment. We also deny defendant's request to vacate the 1982 judgment on the basis that his name was incorrectly spelled in the caption.(2)

Affirmed.
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge

1. During his sworn deposition, when asked whether he knew if he was served in the earlier action, defendant candidly admitted, "No, I don't."

2. Based on our disposition of the issues, we do not address intervenors' arguments regarding the timeliness of defendant's motions and the prejudice to intervenors if the 1982 judgment is vacated.