Quash Service
Court of Appeals of Utah.
BONNEVILLE BILLING, Plaintiff and Appellee, v. Rick WHATLEY and Maryam Whatley, Defendants and Appellant.
No. 970148-CA.
Decided: December 04, 1997
Find the case here:
Background
In 1990, Whatley’s wife agreed to pay two different physicians for their medical services. Rick Whately, her husband, was named as the responsible party to be billed. She listed his business address as 50 W. Broadway, SLC, UT. The charges were incurred and were sent, by the medical providers, to Bonneville Billings & Collections, Inc. (Bonneville). Bonneville filed a complaint against Mr. and Mrs. Whatley for $3500, but the constable was unable to serve Whatley. The constable crossed out the address of 50 W. Broadway, SLC, UT and noted, “Not here. They believe he works out of Long Beach, Calif. office.” Bonneville filed a motion with the court for an option of delivery by mail to the residence’s last known address; the court granted the motion. After another unsuccessful attempt to deliver the summon’s at Whatley’s place of employment, Bonneville filed a motion for alternative service. The motion was granted and the summons was mailed to Whatley’s place of employment. After these many attempts of service, no answer had been filed by the defendant within the 21-day allotment (FRCP Rule 12) https://www.federalrulesofcivilprocedure.org/frcp/title-iii-pleadings-and-motions/rule-12-defenses-and-objections-when-and-how-presented-motion-for-judgment-on-the-pleadings-consolidating-motions-waiving-defenses-pretrial-hearing/. The trial court entered a default judgment on Whatley along with writs of garnishment. In 1995 Whatley became aware of the judgments made against him while he was in the process of purchasing a home. “On November 6, 1995, Whatley made a special appearance and moved under Rule 60(b)(5) of the Utah Rules of Civil Procedure to quash service and set aside the default judgment, arguing that the judgment was void.”
https://1.next.westlaw.com/Document/I009e9fa2f57311d9bf60c1d57ebc853e/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad73aa5000001660d2091c0cc2f4835%3FNav%3DCASE%26fragmentIdentifier%3DI009e9fa2f57311d9bf60c1d57ebc853e%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=7114931fecb7f036ec3bafbb2f9b729d&list=ALL&rank=2&sessionScopeId=7f5b10bec188f07cc3024230e3c1f9b327421617030ff44e7c1b55f369ec442e&originationContext=Smart%20Answer&transitionType=SearchItem&contextData=%28sc.Search%29
Utah Rules of Civil Procedure:
Due Diligence
Is this a case of the defendant trying to avoid paying his bills, or did he honestly not realize he owed money to these medical providers? Do you think Bonneville did their due diligence in trying to track down and service the defendant? What was the defendant’s prayer for relief? The defendant made a “special appearance” claiming, according to our reading in THOMAS A. MAUT & DAVID MARCUS, PRETRIAL, NINTH EDITION, a Rule 12(b) defense of lack of jurisdiction. Mr. Whatley claimed he was not served properly. Why would the court lack personal jurisdiction of Whatley?
Conclusion
The appellate court reversed “the trial court’s denial of Rule 60(b) motion, set aside the default judgment, and quash service." When it comes to due diligence, this case proves that the plaintiff must exhaust all his resources in servicing a complaint to the defendant. Due process is provided for the defendant who has the right under Amendments V and XIV of the United States Constitution, to know who is suing him and why.
1. I don’t think Whatley was avoiding service. Based on what I read, it seems as though he legitimately did not know about the outstanding medical bills that Bonneville was trying to collect.
ReplyDelete2. I don’t think Bonniville did there due service in trying to serve the defendant with the summons. It seems that no attempt was made to locate Whatley's address in California. Bonniville had information about his place of employment in California and failed to use that information to locate him. The court wrote, “Due diligence is not ‘diligence which stops just short of the place where if it were continued might reasonably be expected to uncover an address of the person on whom service is sought,’ and ‘must be tailored to fit the circumstances of each case.”
3. I’m assuming that the prayer for relief is Whatley's Rule 60(b)(5) 2 motion to vacate the default judgment. However, I’m not sure. I don’t know what was in the complaint, or if there would have been something listed on the complaint what the courts requirements are for writing the totality of one’s prayer for relief in the actual case.
4. The Court wrote that the affidavit upon which the motion for alternative service was granted was defective, and the trial court could not have obtained personal jurisdiction based on alternative service granted pursuant to it.
(I wasn’t able to access some of the links. They went to the Westlaw login page when I tried.)
Great comments! I put the link to the Westlaw in case anyone wanted to access the actual case, but it was mostly all there on the caselaw website.
DeleteWith access to the Internet being more widespread and cheaper than it was in the 1990s, it is a lot easier to find parties and to serve documents on them. When I draft a summons at work, my to go-to locations are the Utah Business entity search website https://secure.utah.gov/bes/index.html for companies and Lexis Nexis' Public Records database (available via subscription). As an aside, there is a lot of information on Lexis Nexis including partial social security numbers, court record listings, vehicle ownership etc. that I am sure most people are not aware of. This is very valuable information in finding people but there are gaps, especially with people who move around a lot or are not on a lease. We had to serve a father at a hotel recently because we did not have a firm address for him and he was being extremely uncooperative in talking with our clients about an adoption case so we had to move quickly in serving him and get all of the documents prepared, including the notice of hearing from the court.
ReplyDeleteWith regard to the case at hand, it sounds like Whatley was trying to get out of paying the collection bill and associated fees but there was no adequate attempt to locate Whatley in California. Avoidance of service is common in collection actions. My firm performs its own collection actions and we had difficulty location one of our former clients who had over a hundred thousand dollars in unpaid bills. After looking into numerous locations, we were finally able to default her after she signed for our certified mail summons.
Another case we had involved a divorce where the respondent actively hid from the process server. After seven attempts, the process server posted the summons on the respondent's house. A motion to quash service was later filed by the respondent's attorney, so our process server had to update her return of service (ROS) to include more detailed information about her attempts in serving the respondent. My favorite line from her first ROS was "Defendant was extremely uncooperative and has no respect for the law." We were able to avoid the motion to quash going to the judge by working with opposing counsel on how to handle the divorce and future deadlines.
In reading through the Utah Court of Appeals decision, the conclusion reads, "Because the Kaufman affidavit was false and did not demonstrate that Bonneville had exercised due diligence in attempting to serve Whatley in California, the trial court improperly granted the motion for alternative service."
DeleteHowever, in the footnotes section, the court also mentioned that "In Bonneville's brief, it asserts that “[a]ttempts were made to contact Whatley [at the Long Beach, California office] ․ to no avail.” A review of the record reveals that no such claim was made to the court below at any time."
If I'm understanding this correctly, Bonneville likely would have won if they had simply included their attempt(s) to serve Whatley in CA in their original claim to the District Court.
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DeleteLeila, I wonder if Bonneville would have won or if they would have still thought it to be a false affidavit?
DeleteLeila and Raelene...the appellate court found that the original motion for alternative service was improperly granted for two separate reasons (1) the supporting attorney affidavit was false and (2) Bonneville failed to exercise due diligence in its efforts to locate Whatley. Thus, including the specifics of Bonneville's efforts to locate Whatley in California in the affidavit may have solved the falsity problem, but not necessarily the due diligence problems.
DeleteI don’t think Whatley was avoiding payment at all, and even if he was I do not think that provides an excuse for Bonneville Billing & Collections to make a lesser effort in their due process. I believe that it is inadequate for the plaintiffs to focus on only two sources, in addition to not pursuing the lead that was given the constable (the lead that he worked out of the California office now). I think attempting delivery at the main address then mailing a letter to a previous address does not demonstrate reasonable due process.
ReplyDeleteOnce the plaintiff was informed that Whatley could potentially be in California, it would be a necessary part of due process to attempt to contact him at the California location and the plaintiff failed to fulfill that.
Testing the Westlaw link here -- Raelene, let me know if this is the right one! (I think the text window must have truncated your URL.)
ReplyDeleteIn reading over the appellate decision, a question immediately jumped out of me: how do you serve process on someone with a PO Box listed as their residential address? The Utah rules of CivPro don't have a specific provision regarding PO boxes in their service-by-mail sections, as far as I can find, but they do stipulate that the defendant must sign for receipt, and service is not complete until s/he has done so.
Further, PO boxes are property of the US Postal Service, which does not accept personal service of process on behalf of a boxholder -- and which now has a policy for process servers and its own employees to follow to furnish a boxholder's residential address information when this situation arises. (That said, 39 CFR 265.13 may be younger than this case. Here's where I welcome Prof. Dryer's response on this point...)
The initial refusal of service at his work address and subsequent attempt at same, and the plaintiff's sloppy follow-up to mail service to a PO box instead of obtaining a street address demonstrate a lack of diligence. It seems at least as likely that the plaintiff hoped not to reach the defendant as vice-versa.
The argument can be made that Mrs. Whatley gave the business address in an attempt to frustrate service, but this is only conjecture; most patients do not fill out medical forms expecting to be sued later. Kaufman's failure to complete due process is, meanwhile, multi-pronged: in his insistence that service to a workplace would be more effective than a public notice; in his repeat attempt to serve on a business address of Kemper, rather than investigating a residential address; and in his efforts to serve the defendant using the USPS as an agent and to document service of the summons without providing the return thereof. The brittle foundation of process service results in an unsupportable affidavit by Kaufman. Whatley's affidavit effectively addressed its flaws. The trial court should not have granted the motion for alternative service, nor denied the defendant's quash motion in response. I agree with the appellate court's reversal.
Thanks Erin! I never thought of the PO box that way.
DeleteNot only did the plaintiff not fully meet the requirements of service but they falsely filed an affidavit misleading the court to file the default judgment. As explained in the court's decision Rule 4(g)of the Utah Rules of civil procedure require the plaintiff to not only show that the defendants location is unknown but also that all reasonable due diligence to identify their location have been exhausted. They had reason to believe Whatley was in California, but yet did not attempt to locate him there. If attempts to locate him in California were made, this was never an argument presented to the court. Nor did they provide any evidence of such attempts. Regardless of whether Whatley was trying to avoid paying his bills, I agree with the Court of Appeals decision to quash service based on the false affidavit and lack of due diligence in attempting to serve Whatley.
ReplyDeleteRegardless of whether Whatley was intentionally trying to avoid service, the court does explain that the affidavit indicated that Whatley was working for Kemper in Salt Lake City and not in California. It goes so far as to emphasize that Bonneville’s affidavit was misleading, and that the facts indicated that Whatley was not properly served. I agree with the appellate court that Bonneville did not do its due diligence in serving Whatley, even if his actions seem suspect.
ReplyDeleteMy gut tells me that Whatley was not necessarily avoiding this bill, but may have misunderstood what, if anything, was due with these medical services. Raelene asks, "why would the court lack personal jurisdiction of Whatley?". The court would lack personal jurisdiction if Whatley was domicile in California. If his intention was to reside in CA, rather than UT, then the Bonneville Billing company would not have jurisdiction over him. However, I think this specific situation would allow for the UT long-arm statute because Whatley had transact[ed] business within the state by inquiring and accepting this medical care.
ReplyDeleteThe central question before the Court was not whether the Utah court COULD obtain personal jurisdiction over Whatley regarding the unpaid bills, but whether they DID, in fact obtain personal jurisdiction over him through a proper service of the Summons and Complaint. Personal service is the most common way of giving a defendant notice of a suit and asserting personal jurisdiction. Alternative service was improperly granted because (1) the affidavit supporting the motion for service by mail was false and (2) Bonneville did not comply with the requirements of Rule 4 that due diligence be exercised to locate the defendant before alternative means of service is sought.
DeleteThe trial court lacked personal jurisdiction for the deficiency service process, but general jurisdiction exists, the responsibility lies on the party attacking to prove its absence. We see the plaintiff failed to serve the defendant properly as stated on Rule 5. “Whatley contended that the trial court lacked personal jurisdiction because Whatley had never been properly served and that the underlying affidavit supporting alternative service was misleading or false and did not show that Kaufman had exercised due diligence.” Service and filing of pleadings and other papers. Failed to comply with (b)(3) Methods of service. A paper is served under this rule (A-G) (b)(3)(E) leaving it at the person’s office with a person in charge or, if no one is in charge, leaving it in a receptacle intended for receiving deliveries or in a conspicuous place. This is what the court of appeals said, The copy of the summons clearly stated that Whatley was not at the Kemper Salt Lake office but that whomever the constable had spoken with at that office told him that Whatley may have been working at the Long Beach, California office. Despite the indication on the summons, Kaufman's affidavit did not show that any attempt was made to locate Whatley's address in California. Where is (d) Certificate of service.? A paper required by this rule to be served, including electronically filed papers, must include a signed certificate of service showing the name of the document served, the date and manner of service and on whom it was served. Except in the juvenile court, this paragraph does not apply to papers required to be served under paragraph (b)(5)(B) when service to all parties is made under paragraph (b)(3)(A). The plaintiff needed to exhaust all its efforts and resources to serve the plaintiff properly, not just simply imply that there was an attempt made, the court see that as a fraud, (e) Filing. Except as provided in Rule 7(j) and Rule 26(f), all papers after the complaint that are required to be served must be filed with the court. As frequently stated by the courts, a plaintiff who seeks to avail himself of the statutory mode [or Rule 4(g) ] for a constructive service of summons must exercise good faith in his representations to the court or judge. A presentation of a willfully false affidavit, for the purpose of obtaining an order for service of the summons by publication, is itself an act of fraud. The courts of appeals has made the correct judgment in my personal opinion.
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ReplyDeleteGreat questions Raylene. From my experience volunteering in the small claims courts, the judges just try to clear these cases off docket as efficiently as possible, and I have never seen/heard a judge, or pro tem ever question the validity of service. Most of the time the plaintiff sends a representative to the court with a stack of cases 6” deep (literally), the judge briefly looks over the proof of service documents, they give it a few seconds to make sure the defendant isn’t in the Jon, and blam. . .default judgement in favor of plaintiff. About 8 out of 10 of the respondents called are not present at those hearings, and it’s always been difficult for me to believe that out of all of those cases, every one of the respondents were properly served. People move, leave the country, go out of town, work in the evening and the like, so the odds might suggest that not every “I” is dotted and “t” is crossed when it comes to process service. Since the courts don’t really “probe” it wouldn’t be surprising if a few process servers get a little loose with the details.
ReplyDeleteThere have been instances where unethical process servers have filed false returns of service. Court simply do not have the time or resources to independently verify every affidavit that is filed under oath and must necessarily rely on the truthfulness of the affidavits. That is what happened in the Whatley case and this issue never would have been brought to a court's attention if it had not been for the fact that Whatley subsequently tried to buy a house and no doubt the judgment against him showed up on his credit report.
DeleteInteresting comments. I had a similar situation happen to me and my husband when we were purchasing our first home. My husband and his father have the same name; my husband uses "Jr." Sr. opened a credit line at R.C. Wiley for his children to purchase furniture for a condo Sr. owned and the children lived in. The account did not use "Jr." We opened our own line of credit at R.C. Wiley, using "Jr." Somehow R.C. Wiley mixed up the two and they were trying to send us Sr.'s bills. Sr. wasn't getting the bills so he didn't pay, but Jr.'s social security number was on the account so the missed payments were affecting Jr.'s credit. We never saw a bill nor did a bill collector contact us, but the account was "in collections". I feel Whatley's pain--it wasn't until we were initially denied in the preapproval process that the error was caught. Thankfully Sr. was able to pay off the bill and R.C. Wiley agreed to take the collections off our account. I believe the error was with the collections company.
ReplyDeleteThere are two primary takeaways from this case:
ReplyDelete1. Courts are reluctant to punish a party if there is doubt about whether the party had actual notice they were being sued, and
2. Courts must necessarily rely on affidavits and returns of service (which are sworn statements) in deciding whether proper service was or was not made and whether a request for alternative service should be granted.