This opinion is subject to revision before final

publication in the Pacific Reporter

2013 UT 27

IN THE

SUPREME COURT OF THE STATE OF UTAH

METROPOLITAN WATER DISTRICT OF SALT LAKE and SANDY,

Plaintiff and Appellee,

v.

ZDENEK SORF,

Defendant and Appellant.

No. 20110443

Filed May 10, 2013

Third District, Salt Lake

The Honorable Joseph D. Fratto, Jr.

No. 100921025

Attorneys:

Shawn E. Draney, Scott H. Martin, David F. Mull, 

Salt Lake City, for appellee

Paul M. Belnap, Bradley Wm. Bowen, Jennifer R. Carrizal, 

Salt Lake City, for appellant

JUSTICE PARRISH authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

JUSTICE DURHAM, and JUSTICE LEE joined.

JUSTICE PARRISH, opinion of the Court:

INTRODUCTION

¶1 Petitioner Zdenek Sorf appeals the denial of his motion

to set aside a default judgment. The district court entered a default

judgment against Mr. Sorf, awarding the Metropolitan Water District

of Salt Lake and Sandy (District) certain rights over Mr. Sorf’s

residential property and enjoining him from making further

improvements to his backyard. The district court denied Mr. Sorf’s

motion to set aside the default judgment, holding that Mr. Sorf had

been properly served and that he had not proffered a meritorious

defense. We hold that the district court abused its discretion when

it refused to set aside the default judgment without determining

whether Mr. Sorf knew that he had been served and was required to
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Opinion of the Court

file an answer. We also conclude that Mr. Sorf alleged a meritorious

defense. Accordingly, we vacate the district court’s denial of Mr.

Sorf’s motion to set aside the default judgment and remand the case

for further proceedings consistent with this opinion.

BACKGROUND1

¶2 This dispute arises from an aqueduct and an easement

that cross Mr. Sorf’s residential property in Sandy, Utah. The

District currently holds multiple easements on parcels of private

property in Salt Lake County for the purpose of maintaining the Salt

Lake Aqueduct (Aqueduct), a water delivery pipeline that provides

much of the county’s water. The approximately 120-foot-wide

appurtenant easement at issue in this case (Easement) runs across

Mr. Sorf’s residential lot.2

 The District alleges that the terms of the

Easement provide it with certain rights over Mr. Sorf’s property.

¶3 In March 2009, Mr. Sorf began making improvements to

his backyard. Mr. Sorf removed several large trees, rocks, and

brush. Mr. Sorf also graded dirt, added a hot tub, gazebo, water

feature, cinder block wall, rock sidewalk, fence, garden boxes, a

shed, and a concrete pad. The parties communicated sporadically

regarding Mr. Sorf’s improvements from April 2009 until June 2010.3

Mr. Sorf maintains that these improvements are not directly over the

Aqueduct and that he complied with many of the District’s instructions regarding his improvements. The District contends that these

improvements constitute a risk to the Aqueduct and obstruct its

access to the Easement.

¶4 On October 28, 2010, the District filed a complaint against

Mr. Sorf. The District sought a declaratory judgment regarding its

rights under the Easement, as well as injunctive relief requiring Mr.

Sorf to remove the existing improvements and enjoining him from

making any additional improvements.

1

 The parties contest many of the events surrounding this dispute. 

Therefore, we recite the facts only as they are alleged. 

2

 The Easement originated in 1946 and has changed ownership

several times since its creation.

3

 The parties provide conflicting reports regarding how often they

were in contact, how responsive Mr. Sorf was to the District’s

concerns, and precisely what the District instructed Mr. Sorf to do

with respect to his improvements.

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¶5 That same day, the District attempted to serve the

summons and complaint on Mr. Sorf at his residence through a

private process server. An adult woman answered the door and

represented herself as Mr. Sorf’s wife.4

 The process server asked if

Mr. Sorf was home, and when the woman indicated he was not, the

process server attempted to hand the complaint to her, announcing

that he was serving her with process on Mr. Sorf’s behalf. When the

woman refused to accept the complaint, the process server dropped

the papers on the floor inside the front door. The woman closed the

door but then reopened it. She said that she refused to accept the

complaint, picked up the papers and threw them into the driveway. 

When the process server left Mr. Sorf’s residence, the summons and

complaint remained in the driveway.

¶6 Mr. Sorf maintains that he never received a copy of the

summons and complaint left in the driveway. But shortly after the

attempt to serve the complaint at his residence, Mr. Sorf received a

letter from the District referencing an attached complaint and urging

Mr. Sorf to contact the District to discuss a possible settlement.5

 Mr.

Sorf asserts that the “letter led [him] to believe that [the District]

would not file a lawsuit against [him] if [they] were able to reach an

amicable resolution to the dispute.” Despite the letter’s reference to

an attached complaint, Mr. Sorf asserts that no complaint was

attached and he never received a copy of the complaint.

¶7 After receiving the District’s letter, Mr. Sorf called

counsel for the District. During this call, both parties agree that the

District’s attorney encouraged Mr. Sorf to call the District directly in

an attempt to negotiate a settlement of the dispute. Counsel

provided Mr. Sorf with the names and phone numbers of two

District representatives. The District’s counsel maintains that he

informed Mr. Sorf during this phone call that the District would be

4

 At a motion hearing before the district court, the court determined that the woman who answered the door was not Mr. Sorf’s

wife, but instead was his long-term, live-in girlfriend.

5

 It appears that the letter was intended to be served with the

complaint. The record is unclear as to exactly how and when Mr.

Sorf received the letter. Mr. Sorf has indicated he received the letter

in early November. He also indicates he believes it “came in the

mail.” However, the District maintains it never sent the letter via

mail, but instead that it was attached to the complaint served on

October 28, 2010.

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Opinion of the Court

requesting a default certificate. But Mr. Sorf contends that he did

not understand the significance of a “default certificate” and that he

believed the District would refrain from pursuing legal action unless

they were unable to reach an amicable settlement.

¶8 After this conversation, Mr. Sorf claims that he attempted

to call the District to discuss settlement, but that the District

representatives did not answer or return his calls. The District

asserts that its phone records reflect no phone calls from Mr. Sorf

during December 2010 or January 2011.

¶9 In December, the District moved for default judgment

against Mr. Sorf on grounds that he had failed to answer the

complaint dated October 28, 2010. The district court granted the

motion and entered default judgment against Mr. Sorf on December

16, 2010. Mr. Sorf was personally served with notice of default

judgment on December 23, 2010. Upon receiving the notice, Mr. Sorf

obtained counsel. Mr. Sorf maintains that it was only after he

retained counsel that he first saw the District’s complaint and

understood that a default judgment had been entered against him. 

Shortly thereafter, Mr. Sorf moved to set aside the default judgment

under rule 60(b) of the Utah Rules of Civil Procedure, claiming that

he had failed to file an answer due to mistake, inadvertence,

surprise, or excusable neglect.

¶10 The district court denied Mr. Sorf’s motion, reasoning

that Mr. Sorf had been properly served with the complaint and

therefore had not proven excusable neglect, mistake, or inadvertence. The court’s written order also concluded that Mr. Sorf had not

alleged a meritorious defense. Mr. Sorf then petitioned for leave to

file a counterclaim pursuant to rule 13(d) of the Utah Rules of Civil

Procedure. The district court also denied this motion, reasoning it

could not grant leave to file a counterclaim without reopening the

judgment. Mr. Sorf filed a timely notice of appeal. We have

jurisdiction under section 78A-3-102(3)(j) of the Utah Code.

STANDARD OF REVIEW

¶11 On appeal, we must decide two issues. First, we must

determine whether the district court correctly determined that Mr.

Sorf did not establish mistake, inadvertence, surprise, or excusable

neglect under rule 60(b)(1) of the Utah Rules of Civil Procedure. 

Second, we must decide whether Mr. Sorf alleged a meritorious

defense.

¶12 With respect to the first issue, a district court has broad

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discretion in ruling on a motion to set aside an order or judgment

under rule 60(b), and “[t]hus, we review a district court’s denial of

a 60(b) motion under an abuse of discretion standard.” Menzies v.

Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480. But “the court’s discretion is

not unlimited.” Lund v. Brown, 2000 UT 75, ¶ 11, 11 P.3d 277. A

district court’s “discretion should be exercised in furtherance of

justice and should incline towards granting relief in a doubtful case

to the end that the party may have a hearing” on the merits of his

case. Id. ¶ 10 (internal quotation marks omitted). For instance, “if

default is issued when a party genuinely is mistaken to a point

where, absent such mistake, default would not have occurred, the

equity side of the court . . . [should] grant relief.” Id. (alterations in

original) (internal quotation marks omitted). Based on the equitable

nature of the rule, “it is quite uniformly regarded as an abuse of

discretion to refuse to vacate a default judgment where there is

reasonable justification or excuse for the defendant’s failure to

appear, and timely application is made to set it aside.” Id. ¶ 11

(internal quotation marks omitted).

¶13 With respect to the second issue, “we review . . . the

[district] court’s determination of whether a defense is meritorious”

for correctness. Id. ¶ 12.

ANALYSIS

I. THE DISTRICT COURT ABUSED ITS DISCRETION

BY DENYING MR. SORF’S MOTION TO SET ASIDE

 THE DEFAULT JUDGMENT

¶14 A movant is entitled to have a default judgment set aside

if “(1) the motion is timely; (2) there is a basis for granting relief

under one of the subsections of 60(b); and (3) the movant has alleged

a meritorious defense.” Menzies v. Galetka, 2006 UT 81, ¶ 64, 150 P.3d

480. In this case, timeliness was not at issue.6

 The district court

denied Mr. Sorf’s 60(b) motion on the basis that Mr. Sorf did not

qualify for relief under 60(b) because he had been properly served

with process and did not have a meritorious defense. We conclude

that the district court abused its discretion in denying Mr. Sorf’s rule

60(b) motion for two reasons. First, the relevant inquiry was not

whether Mr. Sorf had been properly served, but rather whether Mr.

6

 Indeed, the default judgment was entered on December 13,

2010, and Mr. Sorf filed his motion to set it aside on January 28, 2011,

well within the three-month period allowed under rule 60(b). See

UTAH R. CIV. P. 60(b).

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Sorf’s failure to respond was due to his mistake, inadvertence,

surprise, or excusable neglect. Second, we find as a matter of law

that Mr. Sorf did raise a meritorious defense. 

A. Mr. Sorf May Have Had a Reasonable

Mistaken Belief Under Rule 60(b)(1)

¶15 Rule 60(b)(1) provides that a “court may in the furtherance of justice relieve a party . . . from a final judgment, order, or

proceeding [because of] . . . mistake, inadvertence, surprise, or

excusable neglect.” UTAH R.CIV.P. 60(b)(1). Mr. Sorf argues that he

did not know that the complaint had actually been filed against him

or that he had an obligation to file a responsive pleading. And he

argues that he was surprised by the entry of the default judgment

because of the District’s representations that they were interested in

reaching an amicable resolution through settlement. He contends

that he qualified for relief under rule 60(b) and that the district court

abused its discretion in denying his motion to set aside the default

judgment. We agree that Mr. Sorf may have qualified for relief

under rule 60(b) and remand to the district court for factual findings

as to this issue.

¶16 In the hearing denying Mr. Sorf’s motion to set aside the

default judgment, the district court first stated, “[w]hat’s been

offered here as excusable neglect . . . is fairly characterized as Mr.

Sorf was not aware of the complaint.” However, the district court

then ruled that “the law is fairly clear that [when the rule for

perfecting service is complied with, that] is not excusable neglect.” 

This conflated the concept of proper service of process with the

concept of mistake. Specifically, the district court conflated the

provisions of rule 60(b)(1), which refers to instances of “mistake,

inadvertence, surprise, or excusable neglect” with the provisions of

rule 60(b)(4), which refers to instances where a judgment is void for

a failure of service of process. See, e.g., UTAH R. CIV. P. 60(b)(1), (4);

Garcia v. Garcia, 712 P.2d 288, 290–91 (Utah 1986) (recognizing that

an allegation that a default judgment is void for failure of service of

process is pled under rule 60(b)(4)). 

¶17 Service of process was adequate in this case because the

process server left the complaint with an adult of reasonable age and

discretion who resided at Mr. Sorf’s residence.7 But the fact that

7

 Rule 4 of the Utah Rules of Civil Procedure states that personal

service may be made “[u]pon any individual . . . by delivering a

(continued...)

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service of process was proper does not end the inquiry because Mr.

Sorf could have still been mistaken about whether he had been

served or was obligated to file an answer.

¶18 As we have previously held, “if default is issued when a

party genuinely is mistaken to a point where, absent such mistake,

default would not have occurred, the equity side of the court would

grant relief.” May v. Thompson, 677 P.2d 1109, 1110 (Utah 1984) (per

curiam). This is in accordance with the intent of rule 60(b) to ensure

that parties are afforded “a full opportunity to present their evidence

and contentions as to disputed issues so [that cases] may be

disposed of on substantial rather than upon technical grounds.” 

McKean v. Mountain View Mem’l Estates, Inc., 411 P.2d 129, 130 (Utah

1966).

¶19 Here, the district court refused to set aside the default

judgment based on its conclusion that Mr. Sorf had been properly

served with process. But the district court did not make any factual

findings with respect to Mr. Sorf’s claim under rule 60(b)(1) that the

default was the result of mistake, inadvertence, surprise, or excusable neglect, and Mr. Sorf’s claim in this regard was sufficient to

raise a factual dispute as to the reason he failed to file a timely

response to the complaint. 

¶20 When the process server arrived at Mr. Sorf’s home, a

woman who represented herself as Mr. Sorf’s wife answered the

door and told the process server that Mr. Sorf was not home. The

process server announced that he was serving her on behalf of Mr.

7

(...continued)

copy of the summons and the complaint to the individual personally, or by leaving a copy at the individual’s dwelling house or usual

place of abode with some person of suitable age and discretion there

residing.” UTAH R. CIV. P. 4(d)(1)(A). And “[i]f the person to be

served refuses to accept a copy of the process, service shall be

sufficient if the [process server] shall state the name of the process

and offer to deliver a copy thereof.” UTAH R. CIV. P. 4(d)(1). At the

motion hearing, the district court determined that the woman served

by the process server was a person of suitable age and discretion

residing at Mr. Sorf’s home. Therefore, the process server provided

proper service of process by explaining that he was serving the

woman who answered the door with the summons and complaint

on behalf of Mr. Sorf and by leaving a copy of the complaint and

summons.

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Sorf and attempted to hand her the summons and complaint, but she

refused to accept the papers. When the woman refused to take the

complaint, the process server left the papers on the floor inside the

door of Mr. Sorf’s home and walked away. According to the process

server’s signed affidavit, the woman slammed the door, reopened it,

picked up the papers and threw the summons and complaint at him. 

The papers landed in the driveway. Mr. Sorf was not at home when

the complaint was served, and when he arrived home the complaint

was no longer there.

¶21 Shortly after the District’s attempt to serve Mr. Sorf at his

residence, Mr. Sorf received a letter from the District dated October

28, 2010. The letter stated

Dear Mr. Sorf:

Please find enclosed a Summons and Complaint in the

above-referenced matter. While we have commenced

this lawsuit, [the District] remains willing to discuss

this matter with you in hopes of an amicable resolution.

Please contact the undersigned if you wish.

[Counsel for the District]

Mr. Sorf’s affidavit states that this “letter led [him] to believe that

[the District] would not file a lawsuit against [him] if [they] were

able to reach an amicable resolution to the dispute.” And while the

letter referenced a filed summons and complaint, Mr. Sorf asserts

that nothing was attached to the letter. Thus, while the letter asserts

that the District had commenced the lawsuit, the fact that no

complaint or summons was attached was consistent with Mr. Sorf’s

mistaken belief that, even if the District had attempted to initiate a

lawsuit, litigation could not have actually commenced since he had

not been personally served.

¶22 The letter and Mr. Sorf’s subsequent conversation with

counsel for the District suggested that the District was willing to

work out a settlement even though a complaint had been filed. After

receiving the letter, Mr. Sorf called counsel for the District. During

this phone call, the District’s attorney suggested that Mr. Sorf call the

District directly in an attempt to work out a settlement. The District’s attorney made this invitation even though the twenty-day

period to file an answer had already expired.8

8

 The District’s attorney also asserts that he informed Mr. Sorf

(continued...)

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Opinion of the Court

¶23 These claims are certainly sufficient to raise the possibility that Mr. Sorf’s failure to timely respond to the complaint was the

result of mistake, inadvertence, surprise, or excusable neglect. 

Because the district court did not make any factual findings

regarding these issues, it erred. We therefore vacate the district

court’s order refusing to set aside the default judgment and remand

this matter to the district court for a factual determination on this

issue.

B. Mr. Sorf Has Alleged a Meritorious Defense

¶24 The district court also denied Mr. Sorf’s rule 60(b) motion

on the basis that “those defenses proffered by [Mr. Sorf] . . . [were]

not meritorious as a matter of law.”9

 We disagree. “We have

[previously] held that relief from judgment requires a showing of a

meritorious defense to a claim.” Lund v. Brown, 2000 UT 75, ¶ 28, 11

P.3d 277. But this is a low bar, and “a party need not actually prove

its proposed defenses to meet this standard.” Id. ¶ 29. “The proffer

8

(...continued)

during this phone call that he would be seeking a “default certificate.” Even so, the attorney’s representation to Mr. Sorf that he

could still pursue settlement with the District perpetuated Mr. Sorf’s

belief that no final judgment would be entered unless he was unable

to reach an agreement with the District. Additionally, Mr. Sorf

maintains that he did not understand the significance of a “default

certificate” and believed that a court could not issue an order over

him until he had been personally served with a complaint.

9

 The district court’s conclusions on this issue were inconsistent. 

Initially, at the May 8, 2011 hearing, the district court noted that “I

don’t see that there’s a meritorious defense.” But during the May 12,

2011 hearing, the district court stated that, while it had previously

opined on the meritoriousness of Mr. Sorf’s defenses, it had not

concluded “that [Mr. Sorf’s proposed defenses] were frivolous

defenses, so . . . the merits of the matter have not been determined.” 

Then in its final, written order, the district court concluded that Mr.

Sorf’s proposed defenses were “not meritorious as a matter of law.” 

The district court appeared to apply the correct standard during the

May 12 hearing when it evaluated whether Mr. Sorf’s proposed

defenses were “frivolous on their face.” See Lund v. Brown, 2000 UT

75, ¶ 29, 11 P.3d 277. But the district court’s final, written conclusion

that Mr. Sorf’s defenses were not meritorious as a matter of law was

erroneous.

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of a meritorious defense under rule 60(b) is subject to a liberal

pleading standard analogous to that prescribed under rule 8, which

requires only that a party state the basis for its claims or defenses ‘in

short and plain terms.’” Judson v. Wheeler RV Las Vegas, L.L.C., 2012

UT 6, ¶ 23, 270 P.3d 456 (quoting UTAH R. CIV. P. 8). Indeed, the

purpose of the rule “is simply to prevent the necessity of treating

defenses that are frivolous on their face.” Lund, 2000 UT 75, ¶ 29. 

“Thus, where a party presents a clear and specific proffer of a

defense that, if proven, would preclude total or partial recovery by

the claimant . . . , it has adequately shown a nonfrivolous and

meritorious defense for the purposes of its motion to set aside a

default judgment.” Id. Mr. Sorf’s proposed defenses meet this

standard.

¶25 In its complaint, the District alleges that the Easement’s

restrictions and regulations enable it to require Mr. Sorf to remove

his improvements and to enjoin him from making further improvements to his backyard. Mr. Sorf’s proposed answer directly refutes

these claims. Specifically, Mr. Sorf contends that the District’s

regulations exceed the express language of the Easement, that the

District has at least partially abandoned the Easement, and that the

doctrine of equitable estoppel precludes the District from asserting

certain rights under the Easement. These defenses, if proven, would

preclude total or partial recovery by the District. Therefore, Mr. Sorf

has proven that he has a meritorious defense sufficient to satisfy rule

60(b).10

CONCLUSION

¶26 Mr. Sorf may have had a reasonable mistaken belief that

entitled him to relief under rule 60(b)(1) of the Utah Rules of Civil

Procedure and he proffered a meritorious defense. We therefore

vacate the district court’s denial of Mr. Sorf’s motion to set aside the

default judgment and remand for determination of whether Mr.

Sorf’s failure to respond to the complaint was the result of mistake,

inadvertence, surprise, or excusable neglect. 

10 Mr. Sorf also argues the district court erred when it denied his

leave to file a counterclaim. Because we vacate the district court’s

denial of Mr. Sorf’s motion to set aside the default judgment and

remand the case for further proceedings, we do not address this

issue. In the event the default is set aside on remand, Mr. Sorf may

answer the District’s complaint and assert any potential counterclaims.

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11