When can intentionally misleading affidavits void default judgments in Utah? Bonneville Billing v. Whatley Explained

The Utah Court of Appeals in Bonneville Billing v. Whatley addressed the critical requirements for obtaining valid alternative service and the consequences of submitting misleading affidavits to support such requests.

Background and Facts

Whatley’s wife incurred medical expenses, listing her husband as responsible and providing his Salt Lake City business address. When Bonneville Billing sought to collect the debt, the constable attempting service noted that Whatley was not at the Salt Lake office and “believe[d] he works out of Long Beach, Calif. office.” Despite this clear indication of Whatley’s California location, plaintiff’s attorney filed an affidavit stating that Whatley “is employed at Kemper” and that “personnel at Kemper… would not allow the defendant to be personally served there,” without mentioning the California reference or clarifying that the Salt Lake employees had indicated Whatley wasn’t there.

Key Legal Issues

The court examined two fundamental requirements for alternative service under Utah Rule of Civil Procedure 4(g): whether the supporting affidavit contained false or misleading statements, and whether the plaintiff exercised due diligence in attempting to locate the defendant before seeking alternative service.

Court’s Analysis and Holding

The court found the affidavit was “intentionally misleading” because it implied Whatley worked at the Salt Lake City Kemper office when evidence showed he worked in California. The court emphasized that good faith representations are required, and “a presentation of a willfully false affidavit… is itself an act of fraud.” Additionally, the plaintiff failed to meet the due diligence requirement by not attempting to contact the California office despite clear notice of Whatley’s potential location there. The court clarified that 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.”

Practice Implications

This decision reinforces that trial courts lack personal jurisdiction when alternative service is based on defective affidavits. The constitutional due process requirement demands that plaintiffs “act diligently and take such steps in attempting to give the defendant actual notice… as are reasonably practicable.” When challenging default judgments based on defective service, the standard of review is correctness rather than abuse of discretion because jurisdictional determinations involve questions of law.