2016 UT App 185
THE UTAH COURT OF APPEALS
GO INVEST WISELY LLC,
Appellee,
v.
BLAINE MURPHY,
Appellant.
Memorandum Decision
No. 20140822-CA
Filed September 1, 2016
Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 090403475
Karthik Nadesan, Attorney for Appellant
Victor A. Sipos, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and KATE A. TOOMEY
concurred.
CHRISTIANSEN, Judge:
¶1 Appellant Blaine Murphy appeals the district court’s
denial of his rule 60(b) motion for postjudgment relief. See Utah
R. Civ. P. 60(b). We affirm in part, vacate in part, and remand for
further proceedings.
BACKGROUND
¶2 In November 2013, Go Invest Wisely LLC (GIW) filed an
amended complaint against Murphy, a resident of North
Carolina, alleging three causes of action: (1) fraud, (2) negligent
misrepresentation, and (3) unlawful formation and use of Bryce
Peters Financial Corporation (BPFC) in violation of law. The
Go Invest Wisely v. Murphy
complaint also named as defendants Odell Barnes and BPFC. See
generally Go Invest Wisely LLC v. Barnes, 2016 UT App 184.
¶3 Copies of the summons and amended complaint were
served on Murphy at the correctional facility in Ohio where he
was then incarcerated. Several days later, Murphy sent a letter to
the district court and GIW’s counsel ‚to request an extension of
time in which to submit [a] response/answer due to [his] current
incarceration.‛ At a pretrial conference on January 6, 2014, the
district court acknowledged that it had received Murphy’s letter;
however, the court did not respond to, or formally rule on,
Murphy’s request for an extension. Ultimately, in March 2014,
the district court entered a default judgment against Murphy for
$1,183,496.14.
¶4 Three months later, Murphy’s current counsel entered an
appearance and filed a motion for relief from the judgment
pursuant to rule 60(b) of the Utah Rules of Civil Procedure. In
his motion, Murphy requested oral argument and asked the
court to set aside the judgment as void for lack of jurisdiction
under rule 60(b)(4) and on grounds of mistake and excusable
neglect under rule 60(b)(1). In support of his motion, Murphy
submitted a declaration setting forth his version of the facts
regarding jurisdiction and his reasons for failing to timely
answer GIW’s complaint. Thereafter, GIW filed an opposition to
Murphy’s rule 60(b) motion, contending that the district court
could exercise jurisdiction over Murphy because, among other
things, ‚Murphy had numerous contacts with GIW, knowing it
was a Utah company. Murphy received hundreds of thousands
of dollars from GIW related to his criminal acts.‛ GIW’s
opposition was not supported by any affidavits, declarations, or
other sworn testimony, but GIW did submit approximately 430
pages of documents as exhibits (the Motion Exhibits), including
what purported to be (1) Murphy’s Ohio criminal indictment;
(2) a press release from the Cuyahoga County Prosecutor’s
Office stating that Murphy had been released from prison on
January 17, 2014; (3) several email exchanges between GIW and
Marty Franks acting on behalf of BPFC; (4) several email
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Go Invest Wisely v. Murphy
exchanges between GIW and Sandy Warren acting on behalf of
BPFC; (5) unsigned copies of purported sales agreements
between GIW and BPFC; (6) several email exchanges between
GIW and Andi Davis acting on behalf of BPFC; and (7) the
district court’s order denying codefendant Odell Barnes’s motion
to dismiss for lack of personal jurisdiction. See Go Invest Wisely
LLC v. Barnes, 2016 UT App 184.
¶5 Murphy then filed a reply memorandum, asserting that
GIW had ‚failed to establish personal jurisdiction over Murphy‛
and ‚failed to proffer an affidavit or other admissible evidence
in support of its argument for personal jurisdiction.‛ Murphy
contended that the Motion Exhibits constituted ‚inadmissible
hearsay in the absence of a supporting affidavit‛ and that the
district court was therefore required to accept as true the facts in
Murphy’s declaration. In addition, Murphy attached a
supplemental declaration, a copy of a complaint filed against
GIW for fraud, an Ohio Court of Appeals decision affirming
GIW’s misdemeanor convictions entered on no contest pleas,
and a Cleveland Municipal Court Capias Warrant Report
showing an outstanding warrant for GIW.1
¶6 In August 2014, after the conclusion of Barnes’s trial, see
generally Barnes, 2016 UT App 184, ¶ 7 n.1, the district court
entered an order denying Murphy’s motion for relief from the
default judgment. In denying Murphy’s motion, the district
court stated that ‚Murphy did not support his motion with any
admissible evidence.‛ The court then found that it had
jurisdiction over Murphy pursuant to section 78B-3-205 of the
Utah Code:
1. Black’s Law Dictionary defines ‚capias‛ as ‚*a+ny of various
types of writs that require an officer to take a named defendant
into custody. A capias is often issued when a respondent fails to
appear . . . .‛ Capias, Black’s Law Dictionary (10th ed. 2014).
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Murphy claims the court lacks general and specific
jurisdiction over him. However, he offers no
affidavit supporting his alleged facts. Sin[c]e he
wants instead to rely on the complaint and
seemingly convert his motion to a motion to
dismiss on this point, the Court notes the
complaint contains facts indicating Murphy was
transacting real estate sales with [GIW] which was
located in Utah and Murphy received payments
sent [to] him from Utah by that Utah company. He
did business using emails and couriers going to
and from Utah and provided fraudulent materials
to Utah. He thus engaged in transactions, supplied
documents and caused injury in Utah according to
the complaint. Plaintiff also provided exhibits
establishing these facts.
The court further concluded that ‚Murphy also made a general
appearance in the case when he wrote and filed a letter asking
for an extension of time.‛ Regarding Murphy’s mistake claim,
the court ruled that Murphy had ‚assumed the Court gave him
more time to answer‛ and that
he received no such grant from the Court and his
claim to making such an assumption is belied by
the fact he waited a half year after being served,
including four and a half months after getting out
of jail, to do anything, far beyond any reasonable
amount of time even if his assumption was correct
(he conveniently left out of his ‚facts‛ the date he
got out of jail—plaintiff had to research the date to
respond to the motion).
Likewise, the district court found no excusable neglect for
Murphy’s failure to respond to the complaint because Murphy
provided ‚no facts showing that once he got out of jail,
circumstances made him unable to act for six weeks.‛ According
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Go Invest Wisely v. Murphy
to the district court, even if Murphy had ‚been served the day of
his release, he would have had to answer in 30 days, but did
nothing for 45 days to the default date, and then continued to do
nothing thereafter for another 90 days.‛ Consequently, the
district court denied Murphy’s rule 60(b) motion in its entirety.
The court did not address Murphy’s claim that the Motion
Exhibits submitted by GIW constituted ‚inadmissible hearsay in
the absence of a supporting affidavit.‛
¶7 Apparently recognizing that the district court’s order
contained factual errors, GIW filed a motion to correct the
record. Specifically, GIW observed that the district court’s order
erroneously stated ‚that Murphy did not request oral argument
and that Murphy did not support his motion with admissible
evidence.‛ Murphy opposed the motion, arguing that the district
court lacked jurisdiction to alter the order because Murphy had
already filed his notice of appeal and because the relief GIW
sought was not authorized under the rules for correcting the
record. The district court granted GIW’s motion and amended its
order, concluding that ‚*e+ven if *Murphy+ requested a hearing
related to his motion for relief from the default judgment, a
hearing would not have materially affected the Court’s
decision.‛ In addition, the district court acknowledged that
Murphy had filed two declarations related to his motion for
relief. The district court stated that it had ‚reviewed those
affidavits and nothing contained therein alters the substantive
nature of the rulings in this Court’s August 5 Order. Plentiful
evidence shows that this Court has personal jurisdiction over
Murphy related to this action.‛ Murphy appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 On appeal, Murphy first contends that the district court
erred in denying his motion for relief from judgment under rule
60(b)(4) because the court lacked personal jurisdiction over him.
‚A denial of a motion to vacate a judgment under rule 60(b) is
ordinarily reversed only for an abuse of discretion.‛ Department
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Go Invest Wisely v. Murphy
of Social Services v. Vijil, 784 P.2d 1130, 1132 (Utah 1989).
‚However, when a motion to vacate a judgment is based on a
claim of lack of jurisdiction, the district court has no discretion: if
jurisdiction is lacking, the judgment cannot stand without
denying due process to the one against whom it runs.‛ Id. Thus,
‚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. ‚Although
jurisdictional questions present issues of law, the burden of
demonstrating a lack of jurisdiction lies on the party challenging
jurisdiction.‛ Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶ 9, 100
P.3d 1211. ‚‘When a judgment, including a default judgment,
has been entered by a court of general jurisdiction, the law
presumes that jurisdiction exists, and the burden is on the party
attacking jurisdiction to prove its absence.’‛ Id. (quoting Vijil, 784
P.2d at 1133).
¶9 Alternatively, Murphy contends that he ‚should be
granted relief as a result of mistake and excusable neglect.‛ We
review the district court’s denial of Murphy’s motion for relief
from judgment under rule 60(b)(1) for an abuse of discretion. See
Jones v. Layton/Okland, 2009 UT 39, ¶ 10, 214 P.3d 859.
ANALYSIS
I. Personal Jurisdiction
¶10 Murphy first contends that he ‚should be granted relief
from the default judgment because Utah does not have personal
jurisdiction over [him].‛ As part of this contention, Murphy
argues that, ‚in the absence of sworn testimony, *the Motion
Exhibits] supplied by GIW constitute inadmissible hearsay
documents and lack foundation.‛2 Thus, according to Murphy,
2. In a similar vein, Murphy argues that ‚*e+vidence from the
trial of Odell Barnes is not part of the record for purposes of
(continued<)
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(