Petition for Writ of Certiorari — Sorensen v. Carey

8 6 | | Supreme Court, U.S.

v - ] 9. FILED

| AUG 5 1986

No. JOSEPH F. SPANIOL

—Etf-fre—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

S. C. SORENSEN,

SORENSEN RAMBLER, INC.,

Petitioners,

vs.

PAUL J. CAREY and

MARILYN IREN CAREY POTTER,

Respondents.

ON PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME

COURT OF THE STATE OF NEVADA

PETITION FOR WRIT OF CERTIORARI

ROBERT K. DORSEY

Suite 807

302 East Carson Street

Las Vegas, Nevada 89101

(702) 384-2763

Counsel for Petitioners

Lawyers Brief Service / Legal Publishers / (213) 383-4457

a

QUESTIONS PRESENTED

l. Whether service of process by

publication to a non-resident not

reasonably calculated to give notice of

lawsuit to a defendant is sufficient to

give a court jurisdiction to render a

money judgment.

ae Whether service of process by

publication to a non-resident not

reasonably calculated to give notice of

lawsuit to a defendant affords due

process.

INDEX

Page

TABLE OF AUTHORITIES ii

OPINION BELOW 2

JURISDICTION 2

QUESTIONS PRESENTED 3

STATUTORY PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 4

REASONS FOR GRANTING THE WRIT

The decision of the

Nevada Supreme Court has

the effect of depriving

the defendants of their

fundamental rights without

due process. 8

CONCLUS ION 17

APPENDIX la

ORDER DISMISSING APPEAL 9/24/85 1b

ORDER DENYING REHEARING 6/26/86 le

RULES OF CIV. PROC., RULE 4 lf

RULES OF CIV. PROC., RULE 60 lh

TABLE OF AUTHORITIES

Barer v. Goldberg, 20 Wash.

App. 472 at 482, 582 P.2d

868 (1978)

Bartels v. International

Commodities Corp., 435

F.Supp. 865 (1977)

Bennett v. Supreme Tent of the

Knights of the Maccabees of

the World, 40 Wash. 431,

82 P. 744 (1905

Foster v. Lewis, 78 Nev. 330,

335-337, 372 P.2d 679 (1962)

Hatch v. Princess Louise

Corp., 13 Wash.App. 378,

Page

13

15

13,14

12

534 P.2d 1036 (1975) 12,13,14

MJS Enterprises, Inc., v.

The Superior Court of Kings

County, 154 Cal.App. 3rd.

535 (1984)

Mullane v. Central Hanover

Bank & Trust Co., 339 U.S.

306 (1950)

Nelson v. Sierra Construction

Corp., 77 Nev. 334, 364 P.2d

402 (1961)

wits.

11

16,17

12

TABLE OF AUTHORITIES (Cont'd)

Page

Ryland v. Universal Oil Co.,

8 Wash.App. 43, 504 P.2d ai 73

(1972) 13

Schell v. Tri-State Irrigation,

22 Wash.App. 788, 591 P.2d 1222,

1224 (1979) 14

Taylor v. United States, 145

F.2d 641, at 643 15

Vitek v. Jones, 445 U.S. 480,

490 fn 6 (1980) 16

Wildes v. Lou Dillon M. Co.,

41 Nev. 364, 170 P. 1046 11

STATUTES CITED:

U.S. Constitution, 14th

Amendment, Sec. 1 3,8

28 U.S.C. §1257(3). 3

NRCP 4(e)(1) 4

NRCP 60(b) and (c) 10

-iii-

IN THE

SUPREME COURT OF THE UNITED STATES

1986 TERM

NO.

B. Ce SORENSEN and SORENSEN RAMBLER,

INC., et al.,

Appellants,

ae

PAUL J. CAREY and MARILYN IREN CAREY

POTTER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE

OF NEVADA

The Petitioners S. C. Sorensen

and Sorensen Rambler, Inc. respectfully

pray that a writ of certiorari issue to

review the decision of the Nevada

Supreme Court dismissing appeal entered

in this matter on September 24, 1985.

ot

OPINION BELOW

The opinion of the Supreme Court

of the State of Nevada is not

published. A copy of the order

dismissing appeal appears in the

Appendix hereto. Order denying

rehearing also appears in the Appendix

hereto.

JURISDICTION

The Order of the Supreme Court of

the State of Nevada was entered on

September 24, 1985. Petition for

rehearing was timely filed on October

7, 1985. Order denying rehearing was

entered June 26, 1986. This petition

for a writ of certiorari was filed

within 90 days of the order dismissing

appeal, exclusive of the time during

which petition for rehearing was

pending. This Court's jurisdiction is

invoked under 28 G.8.¢C. Gi257(3).

-2-

QUESTIONS PRESENTED

he Whether service of process Dy

publication to a non-resident not

reasonably calculated to give notice of

lawsuit to a defendant is sufficient to

give a court jurisdiction tto render a

money judgment.

a Whether service of process by

publication to a non-resident not

reasonably calculated to give notice of

lawsuit to a defendant affords due

process.

STATUTORY PROVISIONS INVOLVED

United States Constitution 14th

Amendment; Section 1:

"No State shali make oor enforce

any law which’ shall abridge the

privileges or immunities of

citizens of the United States;

nor shall any State deprive any

person of life, liberty, or

property, without due process of

law; nor deny to any person

within its jurisdiction the equal

protection of the laws."

-3-

Nevada Rule of Civil Procedure 4(e)(1):

Copy attached in Appendix.

STATEMENT OF THE CASE

On or about December 5, 1979,

Careys filed a complaint in the Eighth

Judicial District Court of the State of

Nevada, for the County of Clark against

BS. €. Sorensen, individually, and

Sorensen Rambler, Inc., a Nevada

corporation [sic], Defendants. Such

complaint alleged that a lease was

entered into between Careys and Cascade

Mobile Homes, Inc., which lease was

assigned to Sorensen Rambler, Inc.;, as

assignee, on July 1l, 1974. st. is

alleged that Sorensen Rambier, Inc.,

failed to pay rents coming due under

such lease and that the corporate

Defendant Sorensen Rambler, Inc., was

the alter ego of the individual

Defendant, S. C. Sorensen. Sorensen

-4-

4

A

:

;

:

Rambler, Inc., is not a Nevada

corporation, but is in fact, a Montana

corporation. At the time the action

was commenced the individual defendant,

S. C. Sorensen, was a non-resident of

the State of Nevada, residing in the

State of Colorado. The Careys

purportedly served the individual

Defendant, S. Cc. Sorensen, by

publication and mailing and purportedly

served Sorensen Rambler, Inc. by some

sort of substituted service, as in the

case of a domestic Nevada corporation.

Judgment by default was entered July

29, 1980. Sorensen first learned of

the judgment in March of 1981, when

Careys enforced the Nevada default

judgment against Sorensen's Colorado

ranch.

Immediately after learning of the

judgment, S. C. Sorensen and Sorensen

-5-

Rambler, Inc., filed their motion to

quash service of process. The trial

Court denied the motion to quash

service and the Nevada Supreme Court,

in Case No. 14103 between the same

parties, dismissed appeal from order

denying motion to quash on the basis

that the trial Court's order was not

appealable. Promptly on remand to. the

trial Court on September 29, 1983, Ss.

C. Sorensen — Sorensen Rambler, Inc.

filed motion to vacate judgment. This

motion was denied and was appealed to

the Nevada Supreme Court,whose decision

dismissing appeal and denying rehearing

are the subject of this petition for

writ of certiorari.

The address used by Careys_ in

their publication and mailing of

process was a Montana business's address

which the corporation, Sorensen

-6-

i bot

Fatah Oree:

Rambler, Inc., had maintained years

before prior to assuming the lease, the

subject of the action, was never the

residence address of S. C. Sorensen,

and at the time of commencement of the

action, Sorensen was a resident of the

State of Colorado and never had any

notice of the lawsuit.

Petitioners raised the question

of their right to constitutional due

process at the trial level, and urged

this constitutional right on appeal and

in their petition for rehearing. Brief

of Defendant S. C. Sorensen in support

of motion to quash service of process,

filed June 17, 1981, p. 3, lines 29

through 31:

"(e) Due process requires that a

non-resident de fendant receive

actual notice of the pendency of

the action by personal delivery."

oJ

REASONS FO GRANTING THE WRIT

The decision of the Nevada Supreme

Court has the effect of depriving

petitioners of their property without )

due process. The 14th Amendment to the

United States Constitution guarantees

to all persons minimal due process of

law when they are to be deprived of

some right.

Section 1 of the 14th Amendment

states:

"ss ° - mor shall any State

deprive any person of life,

liberty or property, without due

process of law; nor deny to any

person within its jurisdiction

the equal protection of the law."

The rule authorizing service of

process by publication, or substituted

service, so as to secure an in

personam mone y judgment, is

unconstitutional, and constitutes the

taking of the property of the

~§-

PT I

appellants without due process of law

because the method of service did not

provide actual notice of the action to

the appellants, and was not reasonably

calculated to give actual notice of the

action to the appellants.

There was no unreasonable delay.

Appellants had r2 knowledge of the

judgment entered against them for more

than one year after the judgment was

entered. Upon learning of the

judgment, appellants immediately

brought a proceeding to quash service

of process. This motion was denied and

was appealed by appellants. After more

than a year before the Supreme Court,

the Supreme Court on its own mot ion

dismissed the appeal, ruling that the

denial of motion to quash _ service of

process was not an appealable order and

in making the dismissal, the Supreme

-9-

Court of the State of Nevada ignored

the request of both appellants and

respondents to consider the appeal as a

petition for extraordinary writ.

Promptly after the Supreme Court

dismissed the appeal as being froma

nonappealable order, appellants moved

the Court to vacate the judgment.

There was therefore, no violation of

either Nevada Rule of Civil Procedure

60(b) or (c) as to the time limits when

such motion could be made, as_ such

limitations could not apply where

appellants had no knowledge of the

judgment.

It would be specious to say that

such time limits provided by NRCP 60(b)

or (c) were triggered when appellants

learned of the judgment when such time

limits could not have been triggered at

the time of judgment.

-10-

there

Where there is defective summons

is no personal jurisdiction. See

MJS Enterprises, Inc., v. The Superior

Court

of Kings County, 154 Cal.App.

3rd.

535 (1984).

"Upon the hearing of the motion,

evidence was introduced to_ show

that appellants had been making

monthly payments to the 4Hursh

Agency for transmission to the

respondents for a period of more

than 10 years prior to the

commencement of the action in the

court below, and even made such

payments during the pendency of

the action and after judgment. It

appears to us that under these

circumstances the whereabouts of

the respondents could have _ been

ascertained by the exercise of

some diligence. Good faith and

due diligence on the part of

appellants, in our judgment, would

have prompted them to inquire of

the Hursh Agency as to the

residence of their clients. See:

Wildes v. Lou Dillon M. Co., 41

Nev. 364, 170 P. 1046.

"Although the trial court never

acquired jurisdiction to make the

order for publication of summons,

or to enter judgment, the lower

court did not specifically hold to

to such effect. Nonetheless,

since the order was void, a

judgment based the reon would

“lie

likewise be void. We have held

that a correct judgment will not

be reversed simply because it was

based on a wrong reason. Nelson

v. Sierra Construction Corp., 77

Nev. 334, 364 P.2d 402. There is

no reason why this rule should not

be extended to an appealable

order.

"Under NRCP 60(b), a motion to

set aside a void judgment is not

restricted to the six (6) months

period specified in the Rule.

NRCP 54(a) provides that the word

"judgment' as used in these rules

includes any order from which an

appeal lies. Therefore, there is

no merit to appellant's contention

that the motion to vacate the

judgment was not timely made.

"Affirmed. '" Foster v. Lewis,

78 Nev. 330, 336-337, 372 P.2d 679

(1962).

"Hatch v. Princess Louise Corp.

13 Wash.App. 378, 534 P.2d 1036

(1975) is directly on point and we

adopt the ratio decidendi

thereof. There Princess Louise

Corp. was personally served in

California, but did not appear in

the action in Washington. After

a_default judgment was entered,

the Plaintiff filed the statutory

affidavit. On appeal, the

judgment of the trial court was

reversed as to the exercise of

in personam jurisdiction over

the defendant, and the judgment

was held void.

"At the time the judgment was

«1 2-

poe sl by tates

entered against the Princess

Louise Corp. there had not been

substantial compliance with the

statute. Indeed, there had been

no compliance at all insofar as

the affidavit required by

subsection (4) is concerned. The

court acquired no jurisdiction and

and so its judgment is void.

"Hatch Vv. Princess Louise

Corp., supra, at 380, 534 P.2d

at 1038. The Schells maintain

that Hatch is’ in direct conflict

with Ryland v. Universal Oil Co.

8 Wash.App. 43, 504 P.2d 1171

(1972). In that case, the

affidavit, although late, was

filed be fore judgment and

jurisdiction over the defendant

was accordingly upheld. We fail

to see the conflict. As stated in

Barer v. Goldberg, 20 Wash.App.

472 at 482, 582 P.2d 868 (1978):

'No particular time of filing is

required as long as_ it precedes

the judgment.’ (Emphasis ours).

Here the statute was ignored. Any

other holding would eliminate the

statutory requirement of the

affidavit unless it was

challenged.

"According to CR55(c) anda

60(b)(5), a Gefault judgment may

be set aside if it is void. The

de fendant need not offer a

meritorious de fense if the

challenge to the judgment is

based upon lack of personal

jurisdiction. Hatch v. Princess

Louise Corp., supra; Bennett

v. Supreme Tent of the _ Knights

=-13<

of the Maccabees of the World,

40 Wash. 431, 82 P. 744 (1905).

‘Judgment is reversed.'

Schell v. Tri-State Irrigation,

22 Wash.App. 788, 591 P.2d 1222,

i224 (i979) .*

"This ‘long-arm' statute is

also limited by the due process

clause." Schell ws Tri-State

Irrigation, supra, at 1223.

"The Schells contend that the

required showing of injury to the

defendant ‘must, common sense

tells us, be something other than

the taking of the judgment.' We

disagree. A judgment entered

without valid personal

jurisdiction over the defendant

violates due process." Schell

Ws Tri-State Irrigation, supra

at 1224.

"If a court has never acquired

jurisdiction over a defendant or

the subject matter, failure to

abide by time limits is of no

consequence whatsoever, since any

judgment ultimately entered is

void and subject to collateral

attack. While both personal

jurisdiction and venue objections

can be waived, a defendant hardly

waives a jurisdiction objection by

the mere passage of time. Absence

of waiver is supported in this

case by the fact that the first

and only action taken by

de fendants was to move---albeit

after expiration of the time

alge

period established by the Rules---

to dismiss for lack of

jurisdiction.

"Accordingly, the fact of

default does not preclude

consideration of defendant's

objections to this court's

jurisdiction." Bartels Vv.

International Commodities Corp.,

435 F.Supp. 865 at 867 (1977), and

Ibid. fn 5, p. 867:

"Consideration of the motion to

dismiss would be proper even if

the jurisdictional objection did

not ultimately prevail. Given the

strong policy in favor of deciding

suits on the merits rather than by

default, 6 Moore's Federal

Practice §55,0l1[1], it would te

anomalous to hold defendants

disabled from defending the suit

on the merits because they relied

in good faith on a non-frivolous

but erroneous view of the law. on

jurisdiction. See Latini v. R.

M. Dubin Corp., 90 F.Supp. 212

(3.D.223. i950).°"

See also Taylor v. United States

145 F.2d 641, at 643.

There were substantial defenses to

the complaint of the Careys. It is

Genied that S. C. Sorensen, individual,

was the alter ego of Sorensen

=}$<

Rambler, Inc., an alleged Nevada

corporation, but in fact, a Montana

corporation. Additionally, the leased

property was re-leased during the same

period for which damages were

recovered. The judgment could never

have been entered if the Defendants’ had

ever been afforded notice and an

opportunity to be heard. The right to

procedural due process is a

\

constitutional guarantee. Vitek V.

Jones, 445 U.S. 480, 490 fn 6 (1980).

The case of Mullane v. Central

Hanover Bank & Trust Co., aa 6 6h Be

306 (1950) has long set the standard

for minimal due process:

"Many controversies have raged

about the cryptic and abstract

words of the Due Process Clause,

but there can be no doubt that

at a minimum, they require that

deprivation of life, liberty or

property by adjudication be

preceded by a notice and

opportunity for hearing

=-16-

appropriate to the nature of the

case.” inig. Gt Sis.

CONCLUS ION

The two-year delay decried by the

Nevada Supreme Court in its Order was

the two years it took the Nevada

Supreme Court to decide that an Order

denying motion to quash service was

non-appealable.

For the reasons presented above, a

writ of certiorari should issue _ to

review the judgment and opinion of the

Supreme Court of the State of Nevada.

DATED: July 30, 1986

Respectfully submitted,

ROBERT K. DORSEY

302 E. Carson, #807

Las Vegas, NV 89101

Telephone: (702)

384-2763

Counsel for Petitioners

«3 Pa

APPENDIX

la

IN THE SUPREME COURT OF THE STATE OF

NEVADA

S. C. SORENSEN, SORENSEN

RAMBLER, INC.,

)

)

) No. 1556]

Appellants, )

)

vs. )

, )

PAUL J. CAREY and )

MARILYN IREN CAREY )

POTTER, )

)

Respondents. )

)

)

FILED

SEP- 24 1985

Clerk of Supreme Court

By/s/Jeanne C. Richards

Deputy Clerk

ORDER DISMISSING APPEAL

This is an appeal from an order

of the district court refusing to set

aside a default judgment.

Appellants primarily contend that

the default judgment against S. C.

Sorensen was void because service of

process was ineffective. We disagree.

Our review of the record indicates that

lb

service of process upon appellant

Sorensen was properly effected pursuant

to NRCP 4(e)(1).

Appellants next contend that, in

any event, the district court abused

its discretion by refusing to set aside

the default judgment. We disagree.

Appellants brought their motion to. set

aside the default judgment over two

years after they learned of the

judgment. The motion to set aside the

judgment was thus untimely under either

NRCP 60(b) or (c). The district court

therefore properly refused to set aside

the judgment. See Rae Vv. All

American Life & Cas. Co., 95 Nev. 920,

923, 605 P.2d 196, 198 (1979). We have

considered appellants' remaining

contentions and conclude that they also

lack merit.

Accordingly, we hereby

s¢

ORDER this appeal dismissed.

/s/Springer

Springer

/s/Mowbray

Mowbray

/s/Gunderson

Gunderson

/s/Steffen

Steffen

/s/Young

Young

1d

’

Coals

IN THE SUPREME COURT OF THE STATE OF

NEVADA

S. C. SORENSEN, SORENSEN

RAMBLER, INC.,

)

)

) No. 15561

Appellants, )

)

vs. )

)

PAUL J. CAREY and )

MARILYN IREN CAREY )

POTTER, )

)

Respondents. )

)

) FILED

JUN 26 1986

By/s/Judith Fountain

Clerk of Supreme Court

ORDER DENYING REHEARING

Rehearing denied. NRAP 40.

It is so ORDERED.

/s/Springer » Cd.

Springer

/s/Mowbray » Je

Mowbray

, /s/Gunderson » Be

Gunderson

/s/Steffen » we

Steffen

/s/Young » &y

Young

le

RULES OF CIVIL PROCEDURE RULE 4

RULE 4. PROCESS

(e). Same: Other Service.

(1) Service by Publication.

(i) General. When the person on

whom service is to be made resides out

of the state, or has departed from the

state, or cannot, after due diligence,

be found within the state, or conceals

himself to avoid the service of

summons, and the fact shall appear, by

affidavit, to the satisfaction of the

court or judge thereof, and it shall

appear, either by affidavit or bya

verified complaint on file, that a

cause of action exists against’ the

defendant in respect to whom the

service is to be made, and that he is a

necessary or proper party to the

action, such court or judge may grant

an order that the service be made by

the publication of summons.

Provided, when said affidavit is

based on the fact that the party on

whom service is to be made resides out

of the state, and the present address

of the party is unknown, it shall te a

sufficient showing of such fact if the

affiant shall state generally in such

affidavit that at a previous time such

person resided out of this state in a

certain place (naming the place and

stating the latest date known to

affiant when such party so resided

there); that such place is the last

place in which such party resided to

lf

RULE 4. PROCESS (Continued)

the knowledge of affiant; that such

party no longer resides at such place;

that affiant does not know the present

place of residence of such party or

where such party can be found; and that

affiant does not know and has never

been informed and has no reason to

believe that such party now resides in

this state; and, in such case, it’ shall

be presumed that such party stiil

resides and remains out of the state,

and such affidavit shall be deemed to

be a sufficient showing of due

diligence to find the defendant. This

rule shall apply to all manner of civil

actions, including those for divorce.

RULES OF CIVIL PROCEDURE RULE 60

RULE 60. RELIEF FROM JUDGMENT OR ORDER

(b) Mistakes; Inadvertence;

Excusable Neglect; Fraud, Etc. On

motion and upon such terms as are just,

the court may relieve a party or his

legal representative from a final

judgment, order, or proceeding for the

following reasons: (3) mistake,

inadvertence, surprise, or excusable

neglect; (2) fraud (whether heretofore

denominated intrinsic or extrinsic),

misrepresentation or other misconduct

of an adverse party which would have

heretofore justified a court in

sustaining a collateral attack upon the

judgment; (3) the judgment is void; or,

(4) the judgment has-' been satisfied,

released, oor discharged, or a prior

judgment upon which it is’ based has

been reversed or otherwise vacated, or

it is no longer equitable that an

injunction should have prospective

application. The motion shall be made

within a reasonable time, and for

reasons (1) and (2) not more than six

months after the judgment, order, or

proceeding was entered or taken. x

motion under this subdivision (b) does

not affect the finality of a judgment

or suspend its operation. This rule

does not limit the power of a court to

entertain an independent action tc

relieve a party from a judgment, order,

or proceeding, or to. set aside a

judgment for fraud upon the court. The

procedure for obtaining any relief from

a judgment shail be by motion as

prescribed in these rules or by an

independent action.

lh

RULES OF CIVIL PROCEDURE RULE 60

RULE 60. RELIEF FROM JUDGMENT OR ORDER

(c) Default Judgments: De fendant

Not Personally Served. When a default

judgment shall have been taken against

any party who was not personally served

with summons and complaint, either in

the State of Nevada or in any other

jurisdiction, and who has not entered

his general appearance in the action,

the court, after notice to the adverse

party, upon motion made within six

months from the date of rendition of

such judgment, may vacate such judgment

and allow the party or his legal

representatives to answer to the merits

of the original action. When, however,

a party has been personally served with

summons and complaint, either in the

State of Nevada or in any other

jurisdicticn, he must make his

application to be relieved from a

default, a judgment, an order, or other

proceeding taken against him, or for

permission to file his answer, in

accordance with the provisions of

subdivision (b) of this rule.

li