2005 UT 90
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
No. 20040734
Plaintiff and Respondent,
v.
All Real Property, Residence &
Appurtenances Located at 736 North
Colorado Street, Salt Lake City,
Utah 84116,
Defendant.
F I L E D
Bruce Petersen,
Petitioner.
December 16, 2005
---
Third District, Salt Lake
The Honorable Stephen Henriod
No. 970903755
Attorneys: Steven B. Wall, Salt Lake City, for petitioner
David E. Yocom, Clark Harms, Chad L. Platt, Salt Lake
City, for respondent
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1
In this case, we must determine whether Bruce Petersen
is barred from raising a defense based on insufficient service of
a complaint. Both the district court and the court of appeals
determined that Petersen waived the right to raise that defense
in his second rule 60(b) motion because he did not raise it in
his first rule 60(b) motion. We affirm.
BACKGROUND
¶2
Pursuant to Utah Code section 58-37-13 (Supp. 1996),
the State initiated forfeiture proceedings against Petersen to

---

seize his property located at 736 North Colorado Street, Salt
Lake City, UT. The State sent the Notice of Seizure/Notice of
Intent to Forfeit along with the Verified Complaint for
Forfeiture to that address via certified mail. After
unsuccessful attempts to deliver the notice and complaint, the
United States Postal Service returned the package to the State.1
The State subsequently moved for the entry of a default judgment,
which motion the district court granted. The court then entered
a judgment of forfeiture against Petersen.
¶3
When Petersen learned that the district court had
entered a default judgment against him and a judgment of
forfeiture against the Colorado Street property, he filed a
motion under Utah Rule of Civil Procedure 60(b)2 in an attempt to
have the judgment set aside. In support of that motion, Petersen
argued that Utah Code section 58-37-13(9)(d), which controls the
method of serving a notice of seizure, mandated that a notice of
seizure be personally served and that the service by mail was

1 The United States Postal Service properly forwarded this
package to 626 North Colorado Street, the residence where
Petersen admittedly resided from February 8 to June 23, 1997.
After attempting to deliver the package to that address on the
fourth and tenth of June, the post office returned the package to
the State on June 20, 1997.

2 Rule 60(b) provides, in relevant part,
the court may in the furtherance of justice
relieve a party . . . from a final judgment,
order, or proceeding for the following
reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence
could not have been discovered in time to
move for a new trial under Rule 59(b); (3)
fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or
other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been
satisfied, released, or discharged, or a
prior judgment upon which it is based has
been reversed or otherwise vacated, or it is
no longer equitable that the judgment should
have prospective application; or (6) any
other reason justifying relief from the
operation of the judgment.
Utah R. Civ. P. 60(b).
No. 20040734
2

---

improper under Utah Rule of Civil Procedure 4.3 In that motion,
Petersen did not directly refer to or specifically raise a
defense based on insufficient service of the complaint.
¶4
The district court denied Petersen's motion on the
ground that the service by mail of the notice of seizure was
proper under section 58-37-13, that it was Petersen's own errors
or mistakes that prevented him from receiving the notice, and
that Petersen had not established a meritorious defense to the
original action. Petersen moved for reconsideration, and, after
his motion was denied, he appealed. On appeal, Petersen argued,
among other things, that the district court had lacked
jurisdiction over Petersen at the forfeiture proceedings because
he had not received personal service of the complaint. The court
of appeals dismissed that argument on the ground that Petersen
had failed to raise it below and therefore could not raise it on
appeal. State v. All Real Prop., 2001 UT App 361, ¶ 10 n.5, 37
P.3d 276.
¶5
Instead of seeking review of that decision, Petersen
filed a second rule 60(b) motion with the district court. In
this motion, Petersen argued, as he had in his appeal from the
initial rule 60(b) motion, that the district court lacked
jurisdiction to enter a default judgment against him because he
was not personally served with the complaint. The district court
denied the motion, concluding that Petersen had waived that
defense by not raising it in his initial rule 60(b) motion.
Petersen again appealed to the court of appeals, which affirmed,
holding that by failing to include the defense based on
insufficient service of the complaint in his initial rule 60(b)
motion, he had waived that defense. State v. All Real Prop.,
2004 UT App 232, ¶ 13, 95 P.3d 1211. We granted certiorari to
review the court of appeals' decision. We have jurisdiction
pursuant to Utah Code section 78-2-2(5) (2002).
STANDARD OF REVIEW
¶6
"On certiorari, we review the court of appeals'
decision for correctness." Utah v. Garner, 2005 UT 6, ¶ 7, 106
P.3d 729 (internal quotation marks omitted).

3 Although Petersen did not articulate which prong of rule
60(b) he brought his motions under, it appears that the motions
were rule 60(b)(4) motions to set aside a default judgment
because "the judgment is void." The district court characterized
the motions as such, and Petersen has not contested this
characterization.
3
No. 20040734

---

ANALYSIS
¶7
The only issue before us is whether Petersen is barred
from raising a defense based on insufficient service of the
complaint ("complaint defense") in his second rule 60(b) motion.
On appeal, Petersen argues first that the waiver rule established
by rule 12(h) of the Utah Rules of Civil Procedure does not apply
to rule 60(b) motions. Second, he claims that even if the waiver
rule applies to such motions, he did in fact challenge the
service of the complaint in his initial rule 60(b) motion, and
was therefore entitled to reassert that defense in his second
rule 60(b) motion. We conclude that rule 12(h) applies to rule
60(b) motions, that Petersen is precluded from arguing that he
raised his complaint defense in the initial rule 60(b) motion,
and that he therefore waived his right to do so. We will address
each argument in turn.
I. AN INSUFFICIENT SERVICE DEFENSE MUST BE RAISED IN AN INITIAL
RULE 60(b) MOTION OR IT IS WAIVED.

¶8
Rule 12(b) of the Utah Rules of Civil Procedure
provides that a party who wishes to assert a personal
jurisdiction defense such as insufficient service of a complaint
must do so in the first responsive pleading or by a motion. Utah
R. Civ. P. 12(b). Rule 12(h) provides that if a party fails to
assert such a defense in the first responsive pleading or by a
motion filed prior to the first responsive pleading, the defense
is waived. Id. 12(h).
¶9
The question before us is whether a rule 60(b) motion
is subject to the rule 12(h) waiver, a question we have never
before specifically addressed. We can find no principled basis
for treating rule 60(b) motions differently than other motions in
this regard. The first document Petersen filed in this action
was his rule 60(b) motion to have the default judgment set aside.
He could have asserted his complaint defense in that motion but
did not.
¶10
Our conclusion that the waiver rule applies to rule
60(b) motions is consistent with the federal courts'
interpretation of the corresponding Federal Rules of Civil
Procedure.4 See In re Worldwide Web Sys., Inc. v. Feltman, 328

4 "This court recognizes the persuasiveness of federal
interpretations when the state and federal rules are similar and
few Utah cases deal with the rule in question." Barton v. Utah
(continued...)
No. 20040734
4

---

F.3d 1291, 1300 (11th Cir. 2003) ("[W]hen a party asserts a Rule
60(b) challenge to a default judgment, absent a compelling
showing that we should make an exception to this rule, challenges
under Rule 60(b)(4) on insufficient service of process grounds
are waived if not squarely raised." (internal citation omitted));
Ladder Man, Inc. v. Mfr's. Distrib. Servs., Inc., No. 99-4217,
2000 U.S. App. LEXIS 27982, at *7 (6th Cir., Oct. 31, 2000)
(unpublished table decision) (holding appellant's failure to
raise personal jurisdiction challenges in his rule 60(b)(4)
motion to vacate a default judgment results in a waiver of that
argument); Swaim v. Moltan, 73 F.3d 718 (7th Cir. 1996) (dictum)
("[I]n personam jurisdictional challenges to default judgments
are forfeited if not asserted in a Rule 60(b) motion, if such a
motion is made.").
¶11
We therefore conclude that a party waives the right to
bring an insufficient service defense if the party does not raise
that defense in his initial rule 60(b) motion. Having so
concluded, we now turn to Petersen's argument that he did not
waive his right to raise his complaint defense because he raised
it in his initial rule 60(b) motion.
II. PETERSEN IS PRECLUDED FROM ARGUING THAT HE RAISED HIS
COMPLAINT DEFENSE IN HIS INITIAL RULE 60(b) MOTION.
¶12
On appeal, Petersen argues that, even if the waiver
rule applies to rule 60(b) motions, it does not preclude him from
bringing his complaint defense in his second rule 60(b) motion,
because he properly raised that defense in his initial rule 60(b)
motion.5 Even were this the case, in his first appeal, the court

4 (...continued)
Transit Auth., 872 P.2d 1036, 1039 n.5 (Utah 1994); see also
Gold Standard, Inc. v. Am. Barrick Res. Corp., 805 P.2d 164, 168
(Utah 1990) ("In construing our rule, we freely refer to
authorities which have interpreted the federal rule."). The
language of rule 12 and rule 60 of the Federal Rules of Civil
Procedure is nearly identical to that of the corresponding Utah
Rules of Civil Procedure, and counsel have not directed us to,
nor has our own research revealed, any Utah cases addressing the
applicability of the waiver rule to rule 60(b) motions.

5 Although Petersen concedes that he did not explicitly list
his complaint defense in his first motion or raise that defense
at the hearing, Petersen maintains that he was simultaneously
challenging the sufficiency of service of the complaint and the
notice. This is a substantial departure from the arguments
(continued...)
5
No. 20040734

---

of appeals concluded otherwise, holding that he had not raised
that defense in his initial rule 60(b) motion. Petersen did not
seek review of that holding. It has therefore been established
for purposes of this case that Petersen failed to raise his
complaint defense in his initial rule 60(b) motion.
¶13
Under the collateral estoppel branch of the res
judicata doctrine, a party is precluded "from relitigating issues
which were once adjudicated on the merits and have resulted in a
final judgment." Murdock v. Springville Mun. Corp., 1999 UT 39,
¶ 18, 982 P.2d 65. On appeal from the district court's denial of
his initial rule 60(b) motion, Petersen had a full and fair
opportunity to litigate the issue of whether he had brought the
complaint defense in that motion. In its opinion on that appeal,
the court of appeals held that Petersen had not raised his
complaint defense in the district court and was therefore
prohibited from raising it at the appellate level. State v. All
Real Prop., 2001 UT App 361, ¶ 10 n.5, 37 P.3d 276. If Petersen
believed that the court of appeals' decision was incorrect, his
remedy was to seek review of that decision as prescribed by the
Utah Rules of Appellate Procedure. See Collins v. Sandy City Bd.
of Adjustment, 2002 UT 77, ¶ 20, 52 P.3d 1267 (holding that
failure to challenge a decision on direct appeal results in
forfeiture of right to relitigate that issue). Petersen instead
chose to file a second rule 60(b) motion with the district court.
When Petersen failed to seek review of the court of appeals'
decision, that decision became final. Thereafter, Petersen was
precluded from relitigating the issue of whether he raised the
complaint defense in his initial rule 60(b) motion.
CONCLUSION
¶14
We conclude that a party who fails to raise an
insufficient service defense in the party's first rule 60(b)
motion, waives that defense. That Petersen did not raise an
insufficient service of the complaint defense in his initial rule
60(b) motion has already been determined for the purposes of this
case. We therefore conclude that Petersen waived his right to
raise that defense in the current rule 60(b) motion. Affirmed.
---
(...continued)
Petersen raised in the memorandum he submitted to the district
court to support his second rule 60(b) motion. There he argued
that in his initial rule 60(b) motion, he had raised only the
improper service of notice argument.
No. 20040734
6

---

¶15
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant's
opinion.
7
No. 20040734

---