Opinion
Case No. 20020928-CA.
Filed November 4, 2004. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable Roger A. Livingston.
Donald V. Greco, Salt Lake City, Appellant Pro Se.
Barry N. Johnson and Ryan B. Braithwaite, Salt Lake City, for Appellee.
Before Judges Billings, Orme, and Thorne.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law.
Willowbrook presents firm grounds for affirming the district court's decision based on mootness and issue preservation. Because we can readily affirm on that basis alone, we address only Greco's argument premised on rule 10(a) of the Utah Rules of Civil Procedure.
Greco failed to support his contention that he was never served. The return of service affidavit in the record duly reflects that the summons and complaint were served pursuant to rule 4(d)(1)(A). See Utah R. Civ. P. 4(d)(1)(A). Greco bears the burden of proving otherwise. See Reed v. Reed, 806 P.2d 1182, 1185 (Utah 1991) (noting "return of service of process is presumptively correct and is prima facie evidence of the facts stated therein").
Greco argues that the summons was fatally defective because it failed to bear the case number and the name of the judge to whom the case was assigned. Greco incorrectly cites rule 10(a) in support of this argument. Greco misapplies the content requirements of rule 10(a) to summonses, the contents of which are in fact governed by rule 4 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 4(c).
Greco does not, however, claim that his defense of this action was somehow prejudiced by the lack of this information on the summons. He merely asserts that because the technicalities of proper pleading were breached, the action should be dismissed for lack of jurisdiction.
Rule 10 mandates the form that papers should take when "filed with the court" and directs what information should be contained in the caption. Utah R. Civ. P. 10(a). The language of rule 10 makes clear that its requirements apply only to pleadings and papers actually filed with the court. Even if rule 10 applied to summonses, which are served on defendants rather than filed with the court, failure to include the information rule 10(a) requires would not be jurisdictionally fatal to the underlying case. In fact, rule 10 expressly precludes the fatal effect on nonconforming papers that Greco suggests. Instead, rule 10 specifies how it is to be enforced and what effect, if any, deviation from its requirements will have. See Utah R. Civ. P. 10(f) (giving clerk of court broad discretion to accept filing of nonconforming pleadings and papers, allowing parties to substitute conforming pleadings and papers, and granting clerk of court the power to waive rule 10's requirements for certain parties).
Professors Wright and Moore's discussion of the federal counterpart to rule 10 is instructive:
Although helpful to the district court, the contents of the caption usually are not considered a part of the pleader's statement of the claim or response thereto for purposes of applying the pleading rules. Moreover, the caption is not determinative as to the identity of the parties to the action or the district court's personal jurisdiction over the defendant or its subject matter jurisdiction. . . .
. . . .
This . . . seems appropriate inasmuch as a defective caption or even its complete absence is merely a formal error and never should be viewed as a fatal defect, particularly when it can be remedied early in the action.
5A Charles A. Wright Arthur R. Miller, Federal Practice Procedure § 1321, at 388-93 (3d ed. 2004) (footnotes omitted).
Willowbrook correctly argues that it complied with the Utah Rules of Civil Procedure in filing its complaint and in serving the summons and complaint on Greco. Willowbrook filed the underlying complaint with the district court pursuant to rule 3(a)(1) and then included the necessary information in the summons under rule 4(c)(1) when it served Greco. As noted above, rule 10 does not impose any additional content requirements on summonses that go beyond the "[c]ontents of summons" requirements of rule 4(c)(1).
Willowbrook asserts that Greco's appeal is frivolous and requests attorney fees and costs incurred in this appeal pursuant to rule 33(a), Utah Rules of Appellate Procedure. Although Greco's argument is without merit, it is not wholly frivolous. Thus, we decline Willowbrook's request.
Affirmed.
WE CONCUR: Judith M. Billings, Presiding Judge William A. Thorne Jr., Judge.