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Lundahl v. Gregg

Supreme Court of Wyoming

September 5, 2014

HOLLI LUNDAHL, Appellant (Plaintiff),
v.
ROBERT GREGG, VICKY GREGORY, KATHLEEN GITTENS, and WELLS FARGO BANK, Appellees (Defendants)

Page 559

Appeal from the District Court of Uinta County. The Honorable Dennis L. Sanderson, Judge.

Holli Lundahl, Appellant, Pro se.

For Appellees: No appearance.

Before BURKE, C.J., HILL, KITE[*], and DAVIS, JJ., and CRANFILL, D.J.

OPINION

Page 560

KITE, Justice.

[¶1] Holli Lundahl appeals from a district court order dismissing her case for failing to properly serve the defendants within ninety days of filing the complaint. She contends service was proper on three of the defendants and the fourth defendant waived any objection to lack of proper service. She further contends the district court erred in failing to enter a default against the defendants. Finally, she asserts the district judge was biased against her and should have transferred the case to another district court as she requested. We reverse and remand for further proceedings consistent with this opinion.

ISSUES

[¶2] We paraphrase Ms. Lundahl's statements of the issues as follows:

1. Whether Robert Gregg waived any objection to lack of proper service by making a general appearance and moving for dismissal of the claims against him without asserting lack of personal jurisdiction.

2. Whether Vicky Gregory and Kathleen Gittens were properly served as provided in Wyo. Stat. Ann. § 5-1-107 and W.R.C.P. 4(l)(1).

3. Whether Wells Fargo Bank (Wells Fargo) was properly served as provided in Wyo. Stat. Ann. § 17-28-104(b).

4. Whether the district court erred in denying her request for entry of default against Wells Fargo, Ms. Gittens and Ms. Gregory.

5. Whether the district court erred in declining to transfer the case to another district court.

FACTS

[¶3] Ms. Lundahl filed her complaint against the four defendants on January 25, 2013, in Uinta County, Wyoming. She alleged that they conspired to fabricate a mental incompetency determination in connection with criminal proceedings filed against her in Utah. The clerk of district court issued summonses for each of the defendants the same day the complaint was filed. The record on appeal contains affidavits signed by someone named Helen Nelson stating that she had served copies of the summons and complaint on Ms. Gregory personally and by mail at her residence in Salt Lake City, Utah on March 16, 2013; on Ms. Gittens personally and by mail at her residence and by mail at her place of employment in Logan, Utah on March 14, 2013; on Mr. Gregg by certified mail at an address in Fort Worth, Texas on March 23, 2013; and on Wells Fargo by facsimile at its legal department in Maricopa County, Arizona on March 23, 2013. The affidavits bear the stamp of Utah notary public Steven Rey Fritts; however, they are signed Steven-Ray:Fritts.

[¶4] None of the defendants answered the complaint within thirty days of service as required under W.R.C.P. 12. On August 12, 2013, Ms. Lundahl filed a pleading to which she attached original certified mail return receipts for service on Mr. Gregg and Wells Fargo. In contrast to the affidavits of service filed earlier, the return receipts showed service on Mr. Gregg on March 25, 2013, rather than March 23, 2013, and on Wells Fargo by certified mail rather than facsimile on March 26, 2013, rather than March 23, 2013. In her pleading, Ms. Lundahl stated

Page 561

that the receipts were inadvertently mailed to her rather than the clerk of court as contemplated by W.R.C.P. 4(l)(2).[1]

[¶5] On August 27, 2013, over five months after the dates the affidavit and return receipt indicated he had been served, Mr. Gregg filed a pro se motion to dismiss the claims against him, asserting no evidence existed that he had harmed Ms. Lundahl. Concluding that Mr. Gregg's statements in his motion meant he was no longer involved in the alleged conspiracy against her, Ms. Lundahl moved to dismiss her claims against him without prejudice. She asked the district court to enter certificates of default against the remaining defendants. The district court declined to enter the certificates and did not rule on Ms. Lundahl's motion to dismiss the claims against Mr. Gregg.

[¶6] In September 2013, Ms. Lundahl filed a motion asking the district court to reconsider its refusal to enter the defaults or, in the alternative, transfer the case to another county " where a fair trial can be had." She subsequently filed a motion to transfer the case to Teton County pursuant to W.R.C.P. 40.1(a)(1), asserting the Uinta County district judge was prejudiced against her. On November 1, 2013, citing Rule 203(b) of the Uniform Rules for District Courts, the district court entered an order dismissing the complaint on the ground that none of the defendants had been properly served with process and nine months had passed since the complaint was filed.[2] It does not appear from the record that a ...


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