District Court, Provo Department The Honorable James R.
Taylor No. 140401249
Gregory N. Hoole, Attorney for Appellant
Kelly Nash and Kimberly N. Baum, Attorneys for Appellee Judge
Gregory K. Orme authored this Opinion, in which Judges
Michele M. Christiansen and Kate A. Toomey concurred.
Appellant Staci Baker challenges the district court's
denial of her motion for relief from a default judgment. We
Baker purchased a forty percent interest in a parcel of land
(the Property) for $5, 070 at a tax sale in 2013. The other
sixty percent interest in the Property remained with its
original owner. Approximately one year after Baker purchased
her interest in the Property, the original owner entered a
real estate purchase contract (the REPC) to sell the Property
to C504750P LLC (C5). Under the REPC, C5 was to buy all of
the Property, including Baker's interest, for $15, 000.
See Utah Code Ann. § 59-2-1351.7 (LexisNexis
2015) (stating that the sale of property previously subject
to a tax sale cannot be prevented by the tax sale purchaser
if that purchaser owns less than forty-nine percent and will
receive the greater of its purchase price plus twelve percent
interest or its pro rata share of the sales price).
Shortly thereafter, Baker received a letter notifying her of
her right to a pro rata share of the purchase price of the
Property and inviting her to attend a closing for the
Property where she would sign a quitclaim deed for her
interest in exchange for forty percent of the $15, 000
purchase price-approximately an eighteen percent return on
her investment. Baker's husband replied to the letter on
her behalf, stating that Baker would not cooperate with the
sale. In light of Baker's refusal to participate, C5
placed the $15, 000 in escrow, obtained a quitclaim deed from
the original owner, and sued Baker for specific performance
under the REPC.
After filing its complaint, C5 began its efforts to serve
Baker with process. Over an eighteen-day period, C5
repeatedly tried to serve Baker at her last known address,
where the previous letter had been sent. On five occasions-on
varying days of the week and at different times each day-a
process server (Server) attempted personal service at
Baker's residence. During these attempts, Server saw
people in the house and cars in the driveway, but no one ever
answered the door. On one occasion, Server even saw a man
working in the home's office and made eye contact with
him, but after Server knocked and no one answered, Server saw
that the blinds to the office had been closed. Server also
spoke with several neighbors, all of whom told him that Baker
resided at the house. On another occasion, Server left his
business card so that Baker could contact him, but she did
not. Meanwhile, a paralegal who worked for C5's counsel
did an electronic address search to verify that Baker's
last known address was still this address and mailed a
certified letter to Baker with return receipt requested. The
letter was returned unclaimed. As a result of these many
failed attempts at service, Server recommended that C5 seek
permission to use an alternative method to serve Baker.
Following Server's advice, C5 requested approval from the
district court to serve Baker through publication.
See Utah R. Civ. P. 4(d)(5)(A). In support of its
request, C5 submitted a declaration of nonservice from Server
and a declaration from the paralegal regarding the certified
letter. With regard to the request, the district court made
the following findings of fact:
1. [Baker] has avoided personal service and there are no
other means to personally serve [Baker].
2. The whereabouts of [Baker] are either unknown and cannot
be ascertained through reasonable diligence, or there exists
good cause to believe that [Baker is] avoiding service of
process, and service by normal means is unreasonable and
impracticable under the circumstances.
district court authorized C5's request, requiring
publication on two occasions on consecutive weeks "in a
newspaper of general circulation in Utah County, Utah."
In accordance with the district court's order, C5
published its notice in The Daily Herald. Baker did
not file an answer, and the district court entered default
judgment against her. The judgment quieted title to the
Property, obligated C5 to pay Baker her share of the
proceeds, and awarded C5 its costs and fees-totaling $5,
126.20-to be deducted from Baker's share of the proceeds.
Notice of the judgment was then mailed to Baker's last
known address. Shortly thereafter, the mailed notice having
apparently reached her, Baker moved the court to set aside
the judgment. Citing rule 60(b) of the Utah Rules of Civil
Procedure, Baker claimed that the order allowing service
through publication was void because C5 "failed to use
reasonable efforts to serve" her. The district court
denied that motion. Baker appeals, arguing that she was
entitled to relief because she was not afforded due process,
as she was not properly served prior to entry of the
judgment; because the fee award in the judgment was not
proper in that she was not a party to the contract containing
the attorney fee provision; and because she has a meritorious
defense to the underlying claims that entitles her to have
the default judgment set aside.
"A district court has broad discretion to rule on a
motion to set aside a default judgment under rule 60(b) of
the Utah Rules of Civil Procedure, " so we generally
review such a denial for an abuse of discretion. Menzies
v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480. But
when considering whether a judgment is void, as Baker's
argument suggests, we apply a heightened standard of review,
affording "the district court . . . no discretion . . .
because the determination that a judgment is void implicates
the court's jurisdiction." Migliore v.
Livingston Fin., LLC, 2015 UT 9, ¶ 25, 347 ...