Considered Served?

[aratski]

What is the name of your state? Utah

I was involved, as a plaintiff, in a small claims case last year. I wrote about it then, and it still hasn't been resolved. We were suing an individual for damages to a rental property. He is listed as the registered agent of a corporation that his family operates (wife is office manager, several sons are employees). All correspondence has been to the address of the company, and the business address is also listed as his address if I look his name up in the phone book. This is the address that was on the affidavit that was filed with the courts.

The process server went to the address on a weekend and discovered the business closed. So he went back on a business day, but the defendant was not there. Prior to going again, he called the business and asked if the defendant was there. He then went there and served the papers. But...the defendants son was who the papers were served to. He responded when asked if he was the defendant.

Anyway, we went to court, and the defendant no showed. He then appealed it. At the trial de novo, his son appeared in court, claiming to not know anything about why he was being sued. The judge awarded us a default judgment because the defendant didn't show up. He also awarded us more than the small claims limit.

Now the defendants' attorney has filed a motion to set aside because: 1) the defendant was never served (his son was served), and 2) the judgment was more than the small claims limit.

I have read the Utah laws regarding service, but I would like to get other's opinions on this as well. Was the defendant properly served? Can the judgment be upheld even though it's more than the small claims limit? Thanks.

 

[JETX]

"Was the defendant properly served?"
*** In my opinion, unless you had an affidavit for alternate service, no.
The Utah rules (rule 4.e.1) require that personal service be made "by delivering a copy of the summons and/or the complaint to the individual 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, or by delivering a copy of the summons and/or the complaint to an agent authorized by appointment or by law to receive service of process"
Since the service was not made on the individual, nor was it left at his 'dwelling house' or abode, the service was not valid.
However, I think you have a possible 'out'. Clearly, the defendant was aware of the lawsuit when it was appealed. This would meet the service requirements of rule 4.h.5, "By the written admission or waiver of service by the person to be served, duly acknowledged, or otherwise proved." Further, the fact that he had to have filed the appeal and paid the fee, would be sufficient for any court that he was properly 'noticed'.

"Can the judgment be upheld even though it's more than the small claims limit? Thanks."
*** Utah Code 78-6-10 says, "(2) The appeal is a trial de novo and shall be tried in accordance with the procedures of small claims actions, except a record of the trial shall be maintained."
I would assume from that, the limits of small claims courts would apply to the appeal heard in District Court. I would suggest that you ask the court. One other thing to consider, are you sure that the judgment itself was in excess of the small claims limit ($5000). Utah Code (§78-6-1) says:
"(2) The judgment in a small claims action may not exceed $5,000 including attorney fees but exclusive of court costs and interest."

The small claims Codes can be found at:
http://www.le.state.ut.us/~code/TITLE78/78_0B.htm

 

[aratski]

Thank you for the reply JETX.

Let me add a few items for this discussion. We can't be sure it was the defendant that filed the appeal. We are suspecting it was the son acting as the defendant.

Regarding the service, what constitutes 'usual place of abode'? Every address that we could find on this guy listed his business address. Even his phone number in the phone book is his business number. In court, his son told the judge that all mail to the family goes to the business address. To me, this would be his 'usual place of abode', though I'm sure he doesn't live there.

Regarding the amount awarded in the judgment. In the small claims court, we were awarding the maximum $5,000 plus court costs, and going into the District Court we were expecting that amount as well. But after hearing our case and the actual damages, the judge awarded us $15,700. Both clerks in the court turned to the judge and said that the limit is $5,000. He then said that somebody appealed it to a higher court, and the higher court awards it at $15,700.

Thanks.