Blackhawk Townhouses Owners Association v. J.S.

2018 UT App 56THE UTAH COURT OF APPEALS
BLACKHAWK TOWNHOUSES OWNERS ASSOCIATION INC.,
Appellee,
v.
J.S.,
Appellant.
Opinion
No. 20160618-CA
Filed April 5, 2018
Second District Court, Ogden Department
The Honorable W. Brent West
No. 140901810
Zachary C. Myers, Attorney for Appellant
Richard W. Jones and Taylor R. Jones, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES DAVID N. MORTENSEN and DIANA HAGEN
concurred.
CHRISTIANSEN, Judge:
¶1 J.S. appeals from the district court’s order denying her
motion to set aside a judgment as void. J.S. contends that the
judgment was void because, as an incompetent person without
an appointed guardian, J.S. lacked notice of the suit. J.S. asserts
that the plaintiff, Blackhawk Townhouses Owners Association
Inc., had knowledge she was incompetent and should have been
required to move for appointment of a guardian for her. We
conclude that J.S. has failed to show clear error in the district
court’s findings that J.S. was not incompetent and that
Blackhawk did not have sufficient knowledge of her
impairments such that it should have instigated competency and
guardianship proceedings. We therefore affirm.
Blackhawk Townhouses Owners Association v. J.S.
BACKGROUND
¶2 In 2002, J.S. bought a condominium in the Blackhawk
Townhouses. Her ownership obligated her to pay assessments,
or HOA fees, to the Blackhawk Townhouses Owners
Association.
¶3 On March 14, 2014, Blackhawk brought suit against J.S.,
alleging that she had failed to pay HOA fees for a significant
period of time resulting in arrears exceeding $7,000. On April 2,
2014, Blackhawk served J.S. with the summons and complaint.
¶4 On April 8, 2014, J.S. sent a personally signed letter to
Blackhawk claiming that she had suffered strokes and seizures,
that she was “unable to communicate,” and that her estimated
recovery time would be at least six weeks. J.S. attached a letter
from a doctor explaining that J.S. was “unable to communicate
verbally due to her complex neurologic diagnosis.” On April 10,
2014, J.S. filed a request for continuance in the district court,
indicating that she had suffered from strokes and seizures and
that, “for me to regain my speech and memory it is estimated it
will take six weeks in the rehabilitation unit of the hospital.”
Nevertheless, on April 15, 2014, J.S. filed a pro se answer. Like
the April 8, 2014 letter and the April 10, 2014 continuance
motion, J.S. signed the answer personally.
¶5 Approximately six weeks later, on June 4, 2014,
Blackhawk filed a motion for summary judgment. On June 10,
2014, attorney J. Keith Henderson entered an appearance on
behalf of J.S. However, Henderson did not file an amended
answer or respond to the motion for summary judgment. On
July 7, 2014, in part because no response had been received by
the court, the district court granted the motion for summary
judgment in favor of Blackhawk, awarding it a total of
$19,409.76, including late fees, interest, and attorney fees.
Collection efforts ensued, resulting in a sheriff’s sale of J.S.’s
condominium on August 11, 2014.
20160618-CA 2 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
¶6 On April 21, 2015, Henderson filed a motion to set aside
the judgment against J.S. The motion sought “to set aside the
final judgment entered by the court on June 17, 2011” and asked
that “[J.S.] be permitted to file an answer.” The motion asserted
that “at all times during the pendency of this action [J.S.] was
and is mentally incompetent and unable to understand the
nature of the consequences of this case or of participating and
aiding in a defense.” The motion then stated that it was
supported “by the accompanying Memorandum” but no
memorandum was actually attached. Blackhawk opposed the
motion, noting (1) the absence of a memorandum providing
legal support, (2) that J.S. had already filed an answer, (3) that,
since June 10, 2014, J.S. had been represented by counsel but had
not raised a claim of incompetency, (4) that no documentation
supporting J.S.’s claim of incompetency had been provided,
(5) the non-existence of a June 17, 2011 judgment, and (6) that the
motion to set aside had not been filed within a reasonable time
as required by rule 60(b) of the Utah Rules of Civil Procedure.
The court did not rule on the motion, apparently due to J.S.’s
pending bankruptcy proceedings.
¶7 On December 2, 2015, attorney Zachary C. Myers filed an
appearance on behalf of J.S. On January 14, 2016, he filed a
second motion to set aside the judgment against J.S. on
incompetency grounds. The main points in the motion were (1)
that J.S. had been incompetent at the time the lawsuit was first
filed, (2) that Blackhawk knew or should have known J.S. was
incompetent, and (3) that Blackhawk had failed to provide valid
notice of the lawsuit to J.S. because “‘[n]otice to a person known
to be an incompetent who is without the protection of a
guardian does not’ meet the Constitutional requirement of due
process.” (Quoting Covey v. Town of Somers, 351 U.S. 141, 146–147
(1956).)
¶8 The second motion to set aside was accompanied by an
affidavit by H.B. In that affidavit, H.B. identified himself as J.S.’s
20160618-CA 3 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
partner. According to H.B., J.S. had suffered brain damage as a
result of falling down a flight of stairs in 2008. 1 H.B. stated that
he had prepared the letters and the answer signed by J.S. See
infra ¶ 26 note 3. He also stated that he had filed a petition for
guardianship of J.S. on August 6, 2014, and that the petition had
been granted on April 22, 2015.
¶9 The district court held hearings on March 16, 2016, and
April 14, 2016. At the hearings, J.S. argued that Blackhawk had
notice of J.S.’s incompetency and therefore should have moved
for appointment of a guardian. Blackhawk denied that it had
such notice and argued that it was not required to move for
appointment of a guardian for J.S. when J.S. had signed and filed
responsive pleadings and was represented by counsel. The court
heard testimony from H.B., Henderson, two members of
Blackhawk’s board of directors, and Matthew Koyle, an attorney
who had negotiated with Blackhawk on J.S.’s behalf but whom
J.S. had not been retained J.S. in any formal capacity.
¶10 On May 27, 2016, the court entered findings of fact and
conclusions of law denying J.S.’s motion to set aside the
judgment. The court found that H.B.’s testimony was “not
believable or credible” and that “[n]o reliable facts or testimony
were presented to the Court in support of a claim that [J.S.] was
incompetent at the time the complaint was filed or the summary
judgment was entered.” It ruled that, because “[n]o Court
determined [J.S.] was incompetent until April 22, 2015,” “[p]rior
to that date it is presumed [J.S.] was legally competent.” The
court further found that there were “no facts or testimony to
support a claim that Blackhawk knew or should have known
that [J.S.] was incompetent at the time the complaint was filed or
1. At some point prior to 2010, H.B. had been involved in an
attempt to appoint a guardian for J.S. The proposed
guardianship was not granted.
20160618-CA 4 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
the summary judgment was entered.” The court therefore ruled
that Blackhawk did not have a duty to move for appointment of
a guardian:
Blackhawk and it[s] legal representatives had no
duty to take any action or act in behalf of [J.S.] or
respond to concerns expressed about her claim of
disability since Blackhawk and its legal
representatives had no personal contact with her,
had not met her, did not know her, did not
represent her, had no reasonable ability to make
any informed conclusions regarding her mental
state, and only received vague and conflicting
comments and communications about her mental
state from those who personally knew her and
dealt with her. The people who had information on
her mental [state] took no legal action in her behalf
in this matter. Rather, those who dealt with [J.S.]
personally continued to represent her in this matter
and to deal with Blackhawk in a manner that
represented to Blackhawk that she was capable of
participating in these proceedings in a competent
manner.
¶11 Consequently, the court concluded that the judgment was
not void and that neither motion to set aside the judgment was
filed within a reasonable time, as required by rule 60(b) of the
Utah Rules of Civil Procedure. J.S. appeals.
ISSUES AND STANDARDS OF REVIEW
Voidness
¶12 J.S. first contends that the district court erred by failing to
set aside the judgment entered against her as void for lack of
notice. See Utah R. Civ. P. 60(b)(4). J.S. asserts that she lacked
20160618-CA 5 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
notice of the proceedings against her because she was
incompetent. She then argues that the district court should have
found that Blackhawk knew of her incompetence and thus
should have known that she had never received valid notice of
the suit against her. J.S. asserts that this court “should review the
record directly and determine whether the judgment is void,
without giving any discretion to the District Court’s findings of
fact.”
¶13 We disagree with the assertion that we may review the
findings of fact for correctness. J.S. argues that the correctness
standard applies based on her reading of Migliore v. Livingston
Financial, LLC, 2015 UT 9, ¶ 25, 347 P.3d 394. Specifically, she
draws support from our supreme court’s statement that “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.” Id. (quotation simplified).
J.S. also highlights the supreme court’s discussion of the record
evidence. See, e.g., id. ¶ 27 (“The record demonstrates that Mr.
Migliore had actual notice of all of Livingston’s claims[.] Mr.
Migliore attached a copy of the summons and complaint to his
motion[.]”).
¶14 If we were to read Migliore in this manner, every party
who loses a rule 60(b)(4) motion could, on appeal, have an
appellate court substitute its cold-record assessment of witness
credibility and conflicting evidence for that of the district court.
Doing so would ignore the district court’s privileged position to
judge the credibility of witnesses and to weigh conflicting
evidence. See Lunt v. Lance, 2008 UT App 192, ¶ 19, 186 P.3d 978;
see also State v. Calliham, 2002 UT 86, ¶ 23, 55 P.3d 573 (“We
review most evidentiary rulings and questions of fact with
deference to the trial court based on the presumption that the
trial judge, having personally observed the quality of the
evidence, the tenor of the proceedings, and the demeanor of the
parties, is in a better position to perceive the subtleties at issue
20160618-CA 6 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
than we can looking only at the cold record.”) Making
independent factual findings on appeal would improperly
transform the nature of appellate review into an appellate trial.
¶15 Our review of Migliore reveals that the supreme court did
not engage in such fact finding. The Migliore court indicated that
after a judgment has been found void, the district court has no
discretion as to the legal remedy: “the district court has no
discretion with respect to a void judgment because the
determination that a judgment is void implicates the court’s
jurisdiction.” Migliore, 2015 UT 9, ¶ 25. But the supreme court
did not substitute its own factual findings for those of the district
court. While Migliore did discuss the record directly, it did so in
the context of reviewing for clear error. See id. ¶ 27 (discussing
the undisputed facts and concluding that “the evidence on the
record clearly indicates that Mr. Migliore had notice”).
¶16 We conclude that, even in the context of a rule 60(b)(4)
challenge, the district court’s purely factual findings are afforded
deference. See C504750P LLC v. Baker, 2017 UT App 36, ¶ 7, 397
P.3d 599 (stating that, in reviewing the denial of a motion to set
aside judgment for voidness, “[w]e review the court’s
underlying [factual] findings for clear error”). It is only with
respect to the legal conclusion and remedy that the district court
lacks discretion. See id. Accordingly, we review for clear error the
factual findings of the district court, and we review for
correctness both the court’s legal conclusion regarding voidness
that flows from those findings and the court’s selection of an
appropriate remedy.
Evidentiary Error
¶17 J.S. also contends that the district court erred by “refusing
to let a fact witness testify regarding the veracity of another
witness’s testimony.” We review the legal questions underlying
the admissibility of evidence for correctness and the district
20160618-CA 7 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
court’s decision to admit or exclude evidence for an abuse of
discretion. State v. Griffin, 2016 UT 33, ¶ 14, 384 P.3d 186.
ANALYSIS
I. Voidness as a Consequence of Incompetency
¶18 J.S. contends that the judgment was void because she did
not receive effective notice of the suit. Specifically, she asserts
that her receipt of the summons and complaint did not impart
effective notice to her, because, as an incompetent person, she
was unable to comprehend the nature of the proceedings against
her.
¶19 A judgment is void if the judgment was entered without
the notice required by due process. Judson v. Wheeler RV Las
Vegas, LLC, 2012 UT 6, ¶ 18, 270 P.3d 456 (“A judgment is void
under rule 60(b)(4) if the court that rendered it lacked
jurisdiction of the subject matter[] or parties or [if] the judgment
was entered without the notice required by due process.”
(citation and internal quotation marks omitted)). Due process is
not satisfied by “[n]otice to a person known to be an
incompetent who is without the protection of a guardian.” Covey
v. Town of Somers, 351 U.S. 141, 146 (1956) (holding that mere
compliance with the service of process statute was insufficient to
satisfy the notice requirement when the recipient was known to
be incompetent because, “when notice is a person’s due, process
which is a mere gesture is not due process” and “the means
employed must be such as one desirous of actually informing
the absentee might reasonably adopt to accomplish it.”
(quotation simplified)).
¶20 Here, the district court ruled that J.S. was presumed
competent until April 22, 2015, when a court of competent
jurisdiction found her to be incompetent and appointed a
guardian. J.S. does not directly challenge the court’s
20160618-CA 8 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
determination, 2 and her failure to do so is fatal to her contention
on appeal.
2. J.S. does not identify this ruling in her statement of issues
presented on appeal. Accordingly, she does not identify the
standard of review or discuss the preservation of a challenge to
the ruling. However, J.S. appears to challenge the ruling in a
single paragraph several pages into section VII of her brief (titled
“Marshalling of Evidence”).
In that paragraph, J.S. refers to one of her trial exhibits
consisting of three medical records. She argues that these records
“refer repeatedly to [her] brain injury and diminished mental
capacity” and thus contradict the court’s finding that “[n]o
reliable facts or testimony were presented to the Court in
support of a claim that [J.S.] was incompetent at the time the
complaint was filed or the summary judgment was entered.”
Each of the three medical records is present only in fragmentary
form: the first is marked “Page 2 of 2,” the second is marked
“Page 3 of 4,” and the third is marked “P.002/004.”
The first record documents that J.S. became mute
overnight and was tentatively diagnosed as having suffered a
stroke. The record is primarily concerned with CT scans, MRI
scans, and an EEG test. It notes that “we cannot really confirm a
psychosis or altered mental status as opposed to aphasia at this
point.” It does not directly touch upon competency and appears
to be dated either July 2 or July 3 of 2014 (approximately four
months after Blackhawk filed and served the complaint and one
month after Blackhawk moved for summary judgment).
The second record states, under the heading
“communication,” that J.S. had “[s]ignificant problems with
speech fluidity and pronunciation. Some word finding
problems.” But the record further states that J.S. was able to
“express[] her primary concern,” and that “[i]t is hard to tell how
(continued…)
20160618-CA 9 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
¶21 If, as the court found, J.S. was legally competent until
April 22, 2015, she received proper notice of the proceedings on
April 2, 2014, when Blackhawk served her with the summons
and complaint. The fact that J.S. was later deemed legally
incompetent—after she filed an answer, after Blackhawk filed a
summary judgment motion, after summary judgment was
granted, and more than six months after the resulting sheriff’s
(…continued)
much is deficit and how much is aphasia.” The second record is
dated May 16, 2014.
The third record is titled “Speech Therapy Report.” It
documents J.S.’s speech problems and inability to communicate
verbally but does not delve into her cognitive abilities. It is dated
April 18, 2014.
On appeal, J.S. asserts that these records show that “[t]he
District Court’s finding that [J.S.] was competent, was in error
and was against the weight of the evidence.” But the district
court actually found that there were no reliable facts or
testimony showing J.S. was incompetent at the time the
complaint was served. The court could have reasonably
determined that medical records made after Blackhawk served
its complaint were not relevant to determining J.S.’s competence
at the time of service. Or the court may have concluded that
reports of speech impairments were not pertinent to determining
competency. Or the court could have reasoned that individual
pages of medical reports, shorn of their context, were not
reliable. In any event, J.S.’s single paragraph statement regarding
this point is inadequate to carry her burden of persuasion
because she does not identify any supporting authority and does
not even identify it as an issue on appeal. See, e.g., Bank of
America v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196 (“An appellant
that fails to devote adequate attention to an issue is almost
certainly going to fail to meet its burden of persuasion on
appeal.”).
20160618-CA 10 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
sale—did not retroactively rob her of that notice. Accordingly,
we agree with the district court that, based on its factfinding to
which we defer, J.S.’s due process right to notice was satisfied
and that the resulting judgment was not void.
II. Blackhawk’s Duties
¶22 J.S. urges this court to adopt a rule that “[i]f a party learns
that there is a significant risk that a defendant may be
incompetent, that party must take additional reasonable steps to
ensure notice was effective, including notifying the court and
asking the Court to appoint a guardian.” On the basis of the
proposed rule, J.S. argues that Blackhawk had a duty to move
for appointment of a guardian for her because, in her view,
Blackhawk knew or should have known that she was
incompetent. Although unstated, we presume that the thrust of
this argument is that, had Blackhawk begun competency
proceedings during the pendency of the foreclosure case, J.S.
would have been ruled legally incompetent before the district
court granted judgment, and therefore the alleged lack of
effective notice would have been brought to light.
¶23 J.S. devotes much of her brief to outlining the exact
contours of the proposed rule. But under even the broadest
version of such a rule, J.S. would still have to show that
Blackhawk knew of J.S.’s alleged incompetency during the
pendency of the suit. To do so, she would have to demonstrate
clear error in the district court’s findings that Blackhawk lacked
“any knowledge or information that should or could have led
[Blackhawk] to know that [J.S.] was disabled or incompetent”
and that “[t]he court does not find by a preponderance of the
evidence that Blackhawk knew or should have known that [J.S.]
was incompetent at any time in 2014.” See Utah R. Civ. P.
52(a)(4) (“Findings of fact, whether based on oral or other
evidence, must not be set aside unless clearly erroneous[.]”);
accord C504750P LLC v. Baker, 2017 UT App 36, ¶ 7, 397 P.3d 599.
20160618-CA 11 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
Findings of fact are clearly erroneous only if no reasonable
factfinder could review the evidence presented and arrive at the
disputed finding. See, e.g., Gardner v. Madsen, 949 P.2d 785, 790
(Utah Ct. App. 1997) (holding that “factual findings are clearly
erroneous only if they are against the clear weight of the
evidence” and that “the existence of conflicting evidence does
not give rise to clear error as long as evidence supports the trial
court’s decision” (quotation simplified)).
¶24 J.S. argues that the district court “erred by making a
factual determination that ‘[n]o credible evidence or testimony
has been presented that Blackhawk knew or should have known
[J.S.] was disabled to the degree that Blackhawk should have
been obligated to take action[.]’” (First alteration in original.) To
show error, she highlights several pieces of evidence that could
support a contrary finding: an email from H.B. to Blackhawk’s
attorneys, a doctor’s letter filed with the court, H.B.’s testimony
that he verbally told Blackhawk’s attorneys that J.S. needed a
guardian, an email and phone call from Koyle to Blackhawk’s
attorneys, and Henderson’s testimony.
A. J.S.’s and H.B.’s Communications
¶25 H.B. emailed Blackhawk’s attorneys on March 18, 2014, a
few days after Blackhawk filed suit. In that email, H.B. stated
that “[J.S.] was admitted to the hospital a week ago” but gave no
further details. H.B. also testified that he called Blackhawk’s
attorneys and told them J.S. needed a guardian. And an April 8,
2014 doctor’s letter filed with the court stated that “[J.S.] is
unable to communicate verbally due to her complex neurologic
diagnosis [and] should be excused from external responsibilities
at this time.”
¶26 The district court found that H.B.’s testimony was not
credible and that the remaining evidence was inconclusive as to
whether Blackhawk knew or should have known of J.S.’s alleged
incompetency, in light of the fact that shortly afterwards J.S.
20160618-CA 12 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
communicated in writing with Blackhawk, stating that she
would need six weeks’ recovery time, and filed a signed pro se
answer. 3
B. Koyle’s Communications
¶27 Koyle emailed Blackhawk’s attorneys on April 28, 2014. In
the email, he stated: “[M]y observation is that [J.S.’s]
understanding of this matter and my involvement is quite
limited.” Koyle also testified that he called one of Blackhawk’s
attorneys and told him that J.S. “seemed completely out of touch
with what was going on and didn’t understand what I was
doing.”
¶28 The district court found that “Koyle did not provide
notice to Blackhawk that [J.S.] was disabled or not capable of
understanding the nature of the proceedings.” In his testimony,
Koyle had denied telling Blackhawk’s attorneys explicitly that
J.S. was incompetent: “And I mean in hindsight saying that [J.S.]
probably isn’t competent to be involved in a legal proceeding
might have been a smart thing to say, but that’s not what I said.”
And despite the absence of a guardian, Koyle admitted that he
had entered into settlement negotiations on J.S.’s behalf.
3. J.S. asserts that, in considering her communications with
Blackhawk and her answer, the court should have given more
weight to H.B.’s claim that he prepared those documents for J.S.
and that she merely signed them. However, as noted, the court
found H.B.’s testimony not credible. And even if true, H.B.’s
authorship was not known to Blackhawk at the time and is
therefore irrelevant to considering whether Blackhawk’s
quantum of knowledge during the suit was such that Blackhawk
knew or should have known of J.S.’s later-alleged incompetency.
20160618-CA 13 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
C. Henderson’s Communications
¶29 Henderson testified that, shortly after beginning his
representation of J.S., he talked to Blackhawk’s attorneys and
“mentioned at that time about the possibility of a
conservatorship or a guardianship because [he] felt somebody
had to be appointed to represent her as her guardian at that
time.” Henderson further testified that Blackhawk’s attorney
“indicated that . . . there [was] another attorney who had
represented [J.S.]” who had “raised the issue of her
competency.” And Henderson may have testified that, although
he had been retained as J.S.’s attorney, he had been unsure
whether she was mentally competent to hire an attorney. 4
4. When asked whether he had informed Blackhawk’s attorneys
about a possible conservatorship, Henderson testified,
We discussed about the conservatorship with
regard to having filed the one that was going to be
filed because I indicated I would. I just hadn’t been
physically able to do anything at that time [due to
surgery]. I subsequently, and again point out that,
you know, if her competency, and I know I had,
you know, he had mentioned that, enter an
appearance and was sending things to me, and I,
you know, my issue was that she was incompetent
and I didn’t feel that my appearance that I’d enter
into before the surgery, that, you know, I had the
authorization or her appointment as counsel
because I didn’t think she had the mental
competency to, you know, hire an attorney.
On appeal, J.S. characterizes this testimony as “Mr. Henderson
told [Blackhawk’s attorney] that, in his opinion, he could not
represent [J.S.] because she did [not] have the mental
competency to hire an attorney.” But Henderson appears to have
(continued…)
20160618-CA 14 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
¶30 The district court found that “Henderson’s testimony at
the evidentiary hearing and in his affidavit filed in this case is
self-serving and unreliable.” The court found that Henderson’s
testimony was an attempt to “shift any responsibility for his
actions and decisions in representing [J.S.] to Blackhawk’s
attorney[s].” 5 J.S. does not challenge this credibility finding. And
at oral argument before this court, J.S. conceded that appellate
review does not extend to revisiting credibility determinations.
¶31 While J.S. discusses this evidence at length, she relegates
contrary evidence to a separate section near the end of her
opening brief. There, J.S. concedes that some record evidence
supported the district court’s findings; specifically, testimony by
Blackhawk’s board members and Blackhawk’s attorneys, the
documents signed and filed by J.S., and the testimony of two
attorneys who worked on J.S.’s behalf (Henderson and Koyle).
She responds to each identified piece of contrary evidence with
an assertion that the court should not have found it credible.
(…continued)
been testifying as to his own belief in J.S.’s competency, not as to
what he told Blackhawk’s attorneys. In any event, the court did
not find Henderson’s testimony credible, noting that it appeared
to be self-serving.
5. Even if Henderson’s testimony had been found credible, it
does not show that Blackhawk knew or should have known J.S.
was incompetent at the time it served its complaint on J.S.
Instead, the testimony suggests only that Blackhawk knew that
Henderson feared there was a risk J.S. was incompetent. And
Blackhawk could reasonably have concluded that Henderson’s
initial fears had been alleviated by subsequent events because
Henderson did not file a petition seeking guardianship or
incompetency and did not even inform the court of the risk of
incompetency.
20160618-CA 15 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
However, as we have noted above, the court’s decisions to find
some evidence credible and other evidence not credible is
generally unassailable on appeal.
¶32 The contrary evidence credited by the court paints a
compelling picture that Blackhawk did not have actual
knowledge of incompetency and that any suspicion Blackhawk
may have had was defused by the actions of J.S., H.B., and the
attorneys associated with or retained by J.S. For example,
although J.S. sought an extension of time due to her hospital
stay, she then filed a pro se answer and motion to dismiss,
ostensibly prepared and signed by her. And although Koyle and
Henderson hinted that J.S. might need a guardian appointed,
they both apparently felt she was competent enough to
communicate her desire to have them act on her behalf in the
lawsuit.
¶33 We conclude that competent evidence supported each of
the district court’s findings. To be sure, contrary evidence was
also presented. But it is the province of the factfinder to resolve
evidentiary conflicts, and the mere existence of evidence
contradicting the court’s findings does not render the findings
clearly erroneous. See, e.g., Gardner v. Madsen, 949 P.2d 785, 790
(Utah Ct. App. 1997). Accordingly, J.S. has failed to demonstrate
clear error in the district court’s finding that Blackhawk did not
know and did not have reason to know of J.S.’s alleged
incompetency during the pendency of the suit.
¶34 As noted above, Blackhawk’s knowledge—imputed or
actual—is a requisite showing under any formulation of the rule
J.S.’s urges us to adopt. Because J.S. has not shown that
Blackhawk knew or should have known of her alleged
incompetency, her claim would fail no matter what version of
the proposed rule applied. Consequently, resolution of this case
does not require adoption, modification, or rejection of the
proposed rule. We leave for another day the question of what
20160618-CA 16 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
additional steps a plaintiff must take to ensure adequate notice
when the plaintiff knows or has reason to know of a defendant’s
alleged incompetency.
III. Whether Blackhawk Took Reasonable Steps
¶35 J.S. also contends that “Blackhawk did not take reasonable
steps to ensure notice required by due process.” This contention
is predicated on the assumption that Blackhawk knew or had
reason to know that J.S. was incompetent and that the normal
service of process was therefore insufficient to ensure actual
notice. But, as we have explained, J.S. has not shown that she
was incompetent at the time Blackhawk filed the suit or served
the complaint, and she has not shown that Blackhawk knew or
had reason to know of such incompetence. Therefore, the default
rule that proper service of process imparts notice to the recipient
applies. See, e.g., Skanchy v. Calcados Ortope SA, 952 P.2d 1071,
1074–75 (Utah 1998) (holding that the recipient defendant bears
the burden of showing that service was invalid). Moreover, the
fact that J.S. filed a signed pro se answer and a motion to dismiss
effectively dispelled any incertitude Blackhawk might have had
that J.S. lacked notice of the suit. Cf. Bel Courtyard Invs., Inc. v.
Wolfe, 2013 UT App 217, ¶ 13, 310 P.3d 747 (“But even where a
party has not been adequately served with process, a defect in
service can be waived if the party makes a general
appearance.”).
¶36 Because J.S. has not shown that Blackhawk should have
known she lacked notice due to incompetence, she cannot
successfully challenge Blackhawk’s failure to take additional
steps to ensure she received notice.
IV. Guardianship
¶37 J.S. next contends that, “[b]ecause [J.S.] was incompetent,
she could not be a party to the case without a guardian.” But, as
we have noted, J.S. has not successfully demonstrated error in
20160618-CA 17 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
the court’s finding that she was competent at the time
Blackhawk served the complaint on her. And because she was
legally competent, Utah Rule of Civil Procedure 17(b) did not
require her to appear via a guardian.
V. Representation
¶38 J.S. contends that “[t]he fact that [J.S.] was represented
does not excuse Blackhawk’s due process obligation.” She
argues that her retention of an attorney “does not excuse
Blackhawk’s obligation to request a guardian for [J.S.] when it
learned she could not understand the proceedings.”
¶39 However, as discussed above, supra ¶¶ 32–33, Blackhawk
did not learn at the relevant time that J.S. could not understand
the proceedings. Any suspicion Blackhawk may have had
regarding J.S.’s inability to understand the proceedings was
reasonably dispelled by J.S.’s election to file a pro se answer and
motion to dismiss, ostensibly prepared and signed by herself,
that addressed the merits of those proceedings. Accordingly,
even assuming J.S.’s proposed rule was in effect, Blackhawk had
no legal obligation to request a guardian because it was not
aware of “a significant risk that a defendant may be
incompetent.” See supra ¶¶ 22, 34.
¶40 Moreover, the district court did not rule that J.S.’s
retention of an attorney excused any of Blackhawk’s legal
obligations; rather, the court considered the effect such retention
reasonably had on Blackhawk’s knowledge. When J.S.’s own
counsel (who had the most contact with her) continued to act on
her behalf without a guardian, it was reasonable for opposing
counsel (who had only limited contact with her) to assume that
any prior concerns about her competency had been resolved.
¶41 The district court considered J.S.’s representation by
counsel as evidence relevant to determining a factual question. It
did not, as J.S. now asserts, rule that such representation relieved
20160618-CA 18 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
Blackhawk of a legal burden. We therefore reject J.S.’s contention
in this regard.
VI. Meritorious Defense and Timeliness
¶42 The district court ruled that J.S. had not presented a
meritorious defense in rule 60(b) motion to set aside the
judgment as void and that the motion, filed seventeen months
after entry of the judgment, had not been filed within a
reasonable time. J.S. contends that she “does not need a
meritorious defense” because a void judgment “must be set
aside regardless of whether there is [a] meritorious defense.” She
further argues that “a motion to set aside [a judgment as void] is
always timely.”
¶43 J.S.’s argument is predicated on the notion that, because
she was incompetent, she did not receive effective notice of the
suit, and that the district court therefore lacked jurisdiction over
her. See, e.g., Cooper v. Dressel, 2016 UT App 246, ¶ 3, 391 P.3d 338(explaining that a “district court lacks personal jurisdiction when
there has not been effective service of process”). But the court
did not find J.S. incompetent until more than a year after
Blackhawk initiated this suit and more than nine months after
the district court granted summary judgment, and J.S. has not
shown that such a finding was erroneous. See supra ¶ 20. We
therefore need not and do not address the hypothetical questions
of whether J.S., if she had been incompetent when she was
served, would need to demonstrate timeliness 6 and a
6. We note that the “within a reasonable time” requirement may
still apply when the motion is brought pursuant to rule 60(b)(4)
on the ground that the judgment is void. See Matter of Estate of
Willey, 2016 UT 53, ¶ 16, 391 P.3d 171 (“It is an unsettled
question in Utah whether all claims that judgments are void
under rule 60(b)(4) are subject to the reasonable time limit
(continued…)
20160618-CA 19 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
meritorious defense in her rule 60(b) motion to set aside the
judgment as void.
VII. Rebuttal Testimony
¶44 J.S. contends that the district court “wrongfully excluded
testimony that was being offered to rebut facts presented by
another witness.”
¶45 A Blackhawk board member testified that she had
stopped by a yard sale conducted by J.S. in 2014 and had talked
to J.S. She further testified that, on that occasion, J.S. had called
her by name and that J.S.’s speech was slurred but
understandable. The board member testified that there was no
indication that J.S. had any mental incapacity and that she had
attributed J.S.’s slurred speech to being intoxicated. The board
member explained that when J.S. had been on Blackhawk’s
board in 2002 and 2003, J.S. had come to several meetings while
intoxicated. J.S. then called H.B. to testify. On direct
examination, counsel for J.S. asked H.B. several questions related
to the board member’s testimony:
Q [H.B.], would you like to say anything in
response to [the board member’s] testimony?
A Well, I just felt that she thought [J.S.] had the
slurry speech because she was drinking.
Q And what do you think about that?
A Well, it’s not the case. [J.S.] has difficulty
with her speech.
(…continued)
imposed by rule 60(c).”); see also id. ¶¶ 16–19 (discussing but
declining to rule on this issue).
20160618-CA 20 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
Q Do you think that what [the board member]
said is true? Do you think she truly thought that
[J.S.] was drunk?
[Blackhawk’s attorney]: I’ll object, your
Honor.
THE COURT: Sustained. We don’t get to
comment on the truth or veracity of some other
witness.
¶46 On appeal, J.S. suggests an exception to the general rule
that a witness may not testify as to the veracity of another
witness. Specifically, J.S. relies on State v. Thompson, which held,
“[O]nce the defendant offers evidence or makes an assertion as
to any fact, the State may cross-examine or introduce on rebuttal
any testimony or evidence which would tend to contradict,
explain or cast doubt upon the credibility of his testimony.” 2014
UT App 14, ¶ 30, 318 P.3d 1221 (quotation simplified). On this
basis, J.S. asserts that, “[w]henever a witness makes a factual
assertion, evidence that rebuts that factual assertion is
admissible.”
¶47 “Asking a [witness] to comment on the veracity of
another witness is improper.” See State v. Davis, 2013 UT App
228, ¶ 38, 311 P.3d 538. This is because “[s]uch a question is
argumentative and seeks information beyond the [witness’s]
competence.” See id. In other words, a witness whose testimony
contradicts another witness’s testimony can explain how his or
her testimony differs, and such a witness may even explain why
his or her testimony should be afforded more weight. But it
would be improper speculation for the witness to offer an
opinion, unsupported by factual evidence, as to whether the
previous witness was being untruthful as opposed to being
mistaken or confused. Cf. State v. Emmett, 839 P.2d 781, 787 (Utah
1992) (holding that it was improper to ask a witness whether
another witness was lying because doing so “suggests to the jury
20160618-CA 21 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
that a witness is committing perjury even though there are other
explanations for the inconsistency”).
¶48 The exception advanced by J.S. would swallow the
general rule. If we were to characterize as testimonial evidence a
witness’s claim that “the other witness is lying,” never-ending
rounds of fact-less “rebuttal” testimony could ensue.
¶49 The key distinction overlooked by J.S. is the difference
between speculation and testimony based on actual knowledge.
Rebuttal evidence is still restricted to competent evidence.
Asking a witness to comment on the veracity of a prior witness
generally seeks speculation, because the witness has no factual
basis for differentiating between the possible reasons for the
prior witness’s contrary testimony, e.g., the prior witness’s poor
memory, differing vantage point, or outright lie. See Emmett, 839
P.2d at 787. Where the witness has no factual basis for claiming
the prior witness suffered from a failure of honesty rather than a
failure of memory, the witness’s speculation that the prior
witness lied does not have “any tendency to make a fact more or
less probable than it would be without” the speculation. See
Utah R. Evid. 401(a). Such speculative testimony is therefore not
admissible evidence.
¶50 Consequently, while it is true that evidence that rebuts
the factual assertion is admissible, see Thompson, 2014 UT App
14, ¶ 30, asking a witness to comment on the veracity of another
witness’s testimony does not introduce new facts and is
therefore not admissible evidence. We conclude that the district
court here correctly applied the rule and recognized that J.S. was
attempting to elicit an inadmissible speculative opinion rather
than factual evidence.
VIII. Attorney Fees on Appeal
¶51 Blackhawk seeks an award of its attorney fees incurred on
appeal. “[W]hen a party is entitled to attorney fees below and
20160618-CA 22 2018 UT App 56Blackhawk Townhouses Owners Association v. J.S.
prevails on appeal, that party is also entitled to fees reasonably
incurred on appeal.” Dillon v. Southern Mgmt. Corp. Ret. Trust,
2014 UT 14, ¶ 61, 326 P.3d 656 (citation and internal quotation
marks omitted). Blackhawk received attorney fees below
pursuant to an attorney fees clause in the declaration of
condominium and Utah Code section 57-8-49. Because
Blackhawk has prevailed on appeal, it is entitled to an award of
its attorney fees reasonably incurred on appeal.
¶52 Blackhawk furthermore requests that we deem the
appeal frivolous, as defined by rule 33 of the Utah Rules of
Appellate Procedure, and seeks an order requiring J.S.’s attorney
to pay for Blackhawk’s attorney fees. Although ultimately
unsuccessful, we do not consider J.S.’s appeal entirely frivolous
and therefore deny the request to hold her attorney personally
responsible for Blackhawk’s attorney fees.
CONCLUSION
¶53 J.S. has not shown error in the district court’s conclusion
that she was legally competent until her adjudication as
incompetent on April 22, 2015. Therefore, she has not shown that
she lacked actual notice of the lawsuit after she was served with
the summons and complaint on April 2, 2014. We affirm the
court’s finding that Blackhawk did not know and did not have
reason to know J.S. suffered from cognitive issues rendering her
incompetent. And we affirm the court’s decision to exclude
testimony regarding the veracity of another witness.
¶54 We remand for the limited purpose of calculating
Blackhawk’s attorney fees reasonably incurred on appeal and
appropriately augmenting Blackhawk’s existing judgment.
¶55 Affirmed.
20160618-CA 23 2018 UT App 56