Gardiner v. Vanderwerff , 2014 UT 56 ( 2014 )


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  •                  This opinion is subject to revision before
                       publication in the Pacific Reporter
    
                                    
    2014 UT 56
    
                                     IN THE
         SUPREME COURT OF THE STATE OF UTAH
                           JANETTA J. GARDINER,
                          Petitioner and Appellant,
                                        v.
        NEDRA V. TAUFER; JANICE V. DOBBINS; CONNIE V. MORGAN;
                     and JOHN M. VANDERWERFF,
                      Respondents and Appellees.
    
                               No. 20120554
                          Filed December 9, 2014
    
                      Second District, Ogden Dep’t
                     The Honorable Mark R. DeCaria
                           No. 104900910
    
                                  Attorneys:
                  Robert J. Fuller, Eden, for appellant
                 Samuel A. Hood, Ogden, for appellees
    
        ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of
      the Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,
                 JUSTICE PARRISH, and JUSTICE LEE joined.
    
    
       ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
                            INTRODUCTION
        ¶ 1 This case involves a challenge by relatives of
    Mr. Kenneth Vanderwerff to an action for a posthumous
    declaration     of    unsolemnized    marriage    brought    by
    Mr. Vanderwerff’s romantic partner and personal representative
    of his estate—Ms. Janetta Gardiner. We are asked to determine
    when and how service of process is to be made in the unusual
    circumstance where a petitioner seeks a declaration of marriage
    between herself and someone who has died. This case was
    certified to us by the court of appeals and comes to us with a
    complicated procedural history. Ms. Gardiner appeals from the
    court’s sua sponte order dismissing the case approximately two
    years after the petition was granted for untimely service under
                        GARDINER v. VANDERWERFF
                           Opinion of the Court
    
    rule 4(b)(i) of the Utah Rules of Civil Procedure. On appeal,
    Ms. Gardiner challenges the grant of intervention to
    Mr. Vanderwerff’s four cousins, the setting aside of the
    declaration of marriage under rule 60(b) of the Utah Rules of Civil
    Procedure, and the court’s subsequent dismissal of the marriage
    case. We reverse on all three issues and reinstate the declaration
    of marriage.
                            BACKGROUND
        ¶ 2 Appellant Ms. Gardiner and the late Mr. Vanderwerff
    were in a romantic relationship from approximately November
    2007 until Mr. Vanderwerff’s death at age 78 on April 22, 2010.
    Ms. Gardiner and Mr. Vanderwerff’s relationship was not
    solemnized as a marriage in any state during Mr. Vanderwerff’s
    lifetime. Mr. Vanderwerff had no children. About a month
    after Mr. Vanderwerff’s death, on May 18, 2010, Ms. Gardiner
    filed a petition for a ―judicial declaration of common law
    marriage‖ under Utah Code section 30-1-4.5 (marriage case). The
    following day, William Francis, Mr. Vanderwerff’s step-grandson
    (a descendant of Mr. Vanderwerff’s first wife), filed a probate
    action concerning Mr. Vanderwerff’s estate (probate case). That
    same day, Mr. Francis was appointed special administrator of the
    estate. After Ms. Gardiner was served with notice of the probate
    action on May 20, 2010, she sought to have Mr. Francis removed
    from his position as special administrator and to have herself
    appointed as the estate’s personal representative.
       ¶ 3 On June 8, 2010, Mr. Francis sought to intervene in the
    marriage case, both in his individual capacity and as special
    administrator of Mr. Vanderwerff’s estate.         He objected to
    Ms. Gardiner’s petition for a judicial declaration of unsolemnized
    marriage and styled his motion in the form of an answer.
    Ms. Gardiner timely opposed Mr. Francis’s motion. However,
    Mr. Francis did not file a reply or request to submit the motion for
    decision. As a result, the court did not rule on Mr. Francis’s
    motion.
        ¶ 4 Subsequently, in the probate case, on August 2, 2010, the
    court held a hearing on Ms. Gardiner’s motion to remove
    Mr. Francis as the special administrator. Ms. Gardiner produced
    a copy of Mr. Vanderwerff’s will. Based on the terms of the will,
    Mr. Francis and Ms. Gardiner stipulated to Mr. Francis’s removal
    
    
    
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    and Ms. Gardiner’s appointment as personal representative of the
    estate.
       ¶ 5 That September, the court held a hearing in the marriage
    case. The hearing was held without formal notice to Mr. Francis
    or any members of Mr. Vanderwerff’s family.           The only
    individuals present were Ms. Gardiner, her counsel, and
    Ms. Gardiner’s two witnesses. The court granted the marriage
    declaration the same day.
       ¶ 6 Two months later, on November 9, 2010, Mr. Francis
    moved to set aside the declaration of marriage under Utah Rule of
    Civil Procedure 60(b) on the basis of surprise, fraud, and ―any
    other reason justifying relief from the operation of the judgment.‖
    Mr. Francis’s primary argument under rule 60(b) was that he had
    not been served with notice of the original petition or of the
    hearing.
        ¶ 7 Instead, on March 10, 2011, the court concluded that
    Mr. Francis had no standing to move to set aside the marriage
    determination. In so deciding, the court noted that Mr. Francis is
    a ―step grandson not having been adopted by decedent
    [Mr. Vanderwerff] nor is he a child or adopted child of a natural
    child [of] the decedent.‖ ―As such,‖ the court continued,
    Mr. Francis ―lacks standing to contest the determination by the
    court as to whether the relationship between Kenneth J.
    Vanderwer[ff] and Janetta J. Gardiner constituted a marriage at
    common law.‖
        ¶ 8 Then in August 2011, four of Mr. Vanderwerff’s cousins,
    Nedra Taufer, Janice Dobbins, Connie Morgan, and John
    Vanderwerff (Cousins), moved to set aside the judgment under
    rule 60(b) on grounds of surprise, fraud, and for ―any other reason
    justifying relief.‖ In an affidavit accompanying the motion, one
    of the Cousins, Ms. Taufer, declared that she ―was aware of
    [Mr. Francis’s] petition to be appointed special administrator, as
    well as his agreement that Janetta Gardiner would be appointed
    as personal representative of the estate.‖ She went on to say that
    she ―was also aware of Ms. Gardiner’s petition to be made a
    common law spouse.‖ Ms. Gardiner filed a motion to strike and
    argued that the Cousins, as nonparties, could not make a motion
    
    
    
    
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                        GARDINER v. VANDERWERFF
                           Opinion of the Court
    
    in the case. 1 She argued that because the Cousins were not
    parties to the marriage action, they therefore could not file any
    substantive motions other than a motion to intervene. In
    response, on October 11, 2011, the Cousins filed a motion to
    intervene—over a year after the marriage petition was granted.
    Both the motion to strike and the motion to intervene were fully
    briefed and submitted to the court for decision, but the Cousins’
    rule 60(b) motion to set aside the judgment was not.
        ¶ 9 On February 27, 2012, the court heard oral argument on
    the motions. At the hearing, the court orally granted a ―limited‖
    motion to intervene and provisionally set aside the declaration of
    marriage to take further evidence on the issue of whether
    Ms. Gardiner and Mr. Vanderwerff’s relationship satisfied the
    statutory elements for a determination of marriage. The Cousins
    submitted a proposed order setting aside the determination of
    marriage and granting the motion to intervene. Ms. Gardiner
    objected to the proposed order, in part because she was never
    given an opportunity to brief the merits of her opposition to the
    Cousins’ rule 60(b) motion to set aside the declaration of
    marriage.
        ¶ 10 At a hearing on March 12, 2012, the court acknowledged
    Ms. Gardiner’s objection to the motion to set aside the declaration
    of marriage and set a hearing date. Nevertheless, three days
    later the court signed the Cousins’ proposed order, setting aside
    the declaration of marriage and granting intervention to the
    Cousins.
       ¶ 11 Then, about a month later, on April 18, 2012, the court,
    on its own initiative, ordered the marriage case dismissed in its
    entirety and without prejudice under rule 4(b)(i) of the Utah Rules
    of Civil Procedure on the basis of Ms. Gardiner’s alleged failure to
    serve process within 120 days of the filing of the marriage
    petition.
       ¶ 12 On May 21, 2012, Ms. Gardiner filed a motion to extend
    her time to appeal under rule 4(e) of the Utah Rules of Appellate
    
       1  In addition to moving to strike the nonparty motion,
    Ms. Gardiner also asked the court to extend her time to respond to
    the motion to set aside the judgment until after the motion to
    intervene was ruled upon.
    
    
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    Procedure. The court granted the motion and Ms. Gardiner
    timely appealed. We have jurisdiction under Utah Code section
    78A-3-102(3)(b).
                  ISSUES AND STANDARD OF REVIEW
        ¶ 13 The Cousins challenge our jurisdiction on appeal.
    They argue that we lack jurisdiction because the district court
    abused its discretion when it granted Ms. Gardiner a time
    extension under Utah Rule of Appellate Procedure 4(e).
    ―Whether this court has jurisdiction over an appeal is a question
    of law that can be raised for the first time on appeal.‖ 2 Because
    we conclude that we have jurisdiction, we address the three issues
    that Ms. Gardiner brings before us on appeal. First, she
    challenges the court’s sua sponte dismissal of her marriage action
    for failure of service under rule 4 of the Utah Rules of Civil
    Procedure. ―[T]he interpretation of a rule of procedure is a
    question of law that we review for correctness.‖ 3 Second,
    Ms. Gardiner argues that the district court improperly set aside the
    judgment of marriage. The district court has broad discretion to
    decide whether to set aside a judgment, and thus we ―will not
    reverse . . . absent an abuse of discretion.‖4 Third and finally,
    Ms. Gardiner challenges the district court’s decision to allow the
    intervention of the Cousins. ―As a general matter, the factual
    findings underpinning an intervention ruling are subject to a
    clearly erroneous standard‖ while the district court’s legal
    conclusions are reviewed for ―correctness.‖5
    
    
    
    
       2 Utah Down Syndrome Found., Inc. v. Utah Down Syndrome
    Ass’n, 
    2012 UT 86
    , ¶ 7, 
    293 P.3d 241
     (internal quotation marks
    omitted).
       3  State v. Rodrigues, 
    2009 UT 62
    , ¶ 11, 
    218 P.3d 610
     (alteration
    in original) (internal quotation marks omitted).
       4   Cedar Surgery Ctr., L.L.C. v. Bonelli, 
    2004 UT 58
    , ¶ 7, 
    96 P.3d 911
    .
       5 Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss,
    LLC, 
    2013 UT 7
    , ¶ 14, 
    297 P.3d 599
    .
    
    
    
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                        GARDINER v. VANDERWERFF
                           Opinion of the Court
    
                                ANALYSIS
        ¶ 14 As a threshold matter, we address the Cousins’
    contention that we lack jurisdiction on appeal. The Cousins
    argue that the district court abused its discretion when it granted
    Ms. Gardiner a time extension to file her notice of appeal. They
    contend that ―confusion, advanced age, and a desire for more
    time . . . do not constitute good cause,‖ and thus the district court
    abused its discretion when it granted Ms. Gardiner extra time to
    file her appeal under rule 4(e). A party may move to dismiss an
    appeal at any time ―on the basis that the appellate court lacks
    jurisdiction.‖6
       ¶ 15 The district court’s discretion to grant a party additional
    time to file an appeal is ―very broad and fundamentally equitable
    in nature.‖7 Here, the district court did not abuse its discretion
    when it determined that Ms. Gardiner’s advanced age and the
    complex issues involved8 constituted ―good cause‖ to allow her
    additional time to decide whether to appeal.9 Accordingly, Ms.
    Gardiner’s appeal was timely filed and we have jurisdiction. We
    now turn to the merits of Ms. Gardiner’s claims on appeal. We
    hold that the district court improperly set aside the declaration of
    marriage, granted intervention, and dismissed the case of its own
    accord for failure of service.
    
       6 UTAH R. APP. P. 10(a)(1); Utah Down Syndrome Found., Inc. v.
    Utah Down Syndrome Ass’n, 
    2012 UT 86
    , ¶ 7, 
    293 P.3d 241
     (―[A]
    lack of jurisdiction can be raised at any time by either party or by
    the court.‖ (internal quotation marks omitted)).
       7  Pruett v. Anderson, 
    2013 UT App 33
    , ¶ 1, 
    296 P.3d 797
     ; see also
    Reisbeck v. HCA Health Servs. of Utah, Inc., 
    2000 UT 48
    , ¶¶ 6, 15,
    2 sP.3d 447.
       8 The court stated that ―this case has been confusing, I think,
    for Ms. Gardiner and all of the parties with regard to the—how
    the probate and the common law marriage issues intertwine.‖
       9 See Parke-Chapley Constr. Co. v. Cherrington, 
    865 F.2d 907
    , 909
    & n.5 (7th Cir. 1989) (interpreting the federal counterpart to Utah
    Rule of Appellate Procedure 4(e) and stating that ―good cause‖ is
    ―undefined, being left to judicial interpretation‖ and that the
    ―good cause‖ standard allows district judges ―to accommodate a
    wide[] array of circumstances‖).
    
    
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                              Opinion of the Court
    
            I.   THE DISTRICT COURT IMPROPERLY GRANTED
                  INTERVENTION WITHOUT CONSIDERING
                         THE RULE 24(a) FACTORS
        ¶ 16 Ms. Gardiner argues that the district court erred when it
    granted the Cousins’ motion to intervene because they failed to
    satisfy the elements of rule 24(a) of the Utah Rules of Civil
    Procedure, which governs intervention of right. At the time the
    parties submitted briefing, State v. Bosh established our standard
    of review concerning the propriety of a grant of intervention of
    right.10 Just one week after briefing was completed in this case,
    we issued Supernova Media, Inc. v. Pia Anderson Dorius Reynard &
    Moss, LLC, which clarified our standard of review for motions to
    intervene under rule 24(a).11 In Bosh, we stated that a motion to
    intervene of right was reviewed for correctness, 12 but in
    Supernova Media we clarified that ―ruling on a motion to intervene
    encompasses several types of analysis, each subject to a different
    standard of review.‖13 ―As a general matter, the factual findings
    underpinning an intervention ruling are subject to a clearly
    erroneous standard, and the district court’s interpretation of rule
    24(a) is reviewed for correctness.‖14
       ¶ 17 A party attempting to intervene under rule 24(a) of the
    Utah Rules of Civil Procedure must establish four elements:
             (1) that its motion to intervene was timely, (2) that it
             has an interest relating to the property or transaction
             which is the subject of the action, (3) that the
             disposition of the action may as a practical matter
             impair or impede [its] ability to protect that interest,
             and (4) that its interest is not adequately represented
             by existing parties.15
    
    
       10   
    2011 UT 60
    , ¶ 5, 
    266 P.3d 788
    .
       11   
    2013 UT 7
    , ¶¶ 14–18, 
    297 P.3d 599
    .
       12   Bosh, 
    2011 UT 60
    , ¶ 5.
       13   Supernova Media, 
    2013 UT 7
    , ¶ 14.
       14   Id. (citation omitted).
       15 Id. ¶ 22 (alteration in original) (internal quotation marks
    omitted).
    
    
    
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                          GARDINER v. VANDERWERFF
                             Opinion of the Court
    
        ¶ 18 In this case, the district court’s order granting the motion
    to intervene did not state the basis for the court’s decision, nor did
    the court make findings on the rule 24(a) elements at the
    February 27, 2012, hearing.16 Instead of analyzing the propriety of
    intervention under the Supernova Media factors, the court appears
    to have erroneously based its decision on its conclusion that
    Ms. Gardiner was required to serve the Cousins and that the
    Cousins should have had an opportunity to present evidence
    at the marriage adjudication. Significantly, the court failed
    to address the timeliness of the Cousins’ motion to intervene,
    which was filed over a year after the declaration of
    marriage was entered.       As a general rule, ―intervention is
    not     to be permitted after entry of judgment.‖ 17 We regard
    ―[p]ostjudgment intervention . . . with disfavor‖ due to its
    ―tendency . . . to prejudice the rights of existing parties‖ and
    unduly interfere with the ―orderly processes of the court.‖ 18
    Thus, we are ―reluctant to make exceptions to the general rule.‖19
    Postjudgment intervention should be allowed ―only upon a strong
    showing of entitlement and justification, or such unusual or
    compelling circumstances as will justify the failure to seek
    intervention earlier.‖20
        ¶ 19 In this case, the Cousins sought intervention over a year
    after the marriage declaration was entered, even though it
    appears that at least one of them was aware of the marriage
    
    
       16 The order simply states that ―[t]he motion to intervene in
    this action brought by [the Vanderwerff Cousins], who are
    cousins and potential heirs of Kenneth Vanderwerff, is hereby
    granted.‖
       17  Jenner v. Real Estate Servs., 
    659 P.2d 1072
    , 1074 (Utah 1983);
    see also Supernova Media, 
    2013 UT 7
    , ¶ 24 (―Generally, a motion to
    intervene is timely if it is filed before the final settlement of all
    issues by all parties, and before entry of judgment or dismissal[.]‖
    (citation omitted) (internal quotation marks omitted)).
       18   Jenner, 659 P.2d at 1074; accord Supernova Media, 
    2013 UT 7
    ,
    ¶ 23.
       19   Jenner, 659 P.2d at 1074.
       20   Id. (footnotes omitted).
    
    
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                           Opinion of the Court
    
    proceeding at the time it occurred.21 If this is true, it appears that
    if the Cousins choose to seek intervention again on remand, they
    will have a difficult time showing that their motion to intervene
    was timely.22
        ¶ 20 We stop short of weighing in on the question of whether,
    assuming their motion was timely, the Cousins could have shown,
    as a matter of law, that they had an ‖interest relating to the
    property or transaction which is the subject of the action.‖23 This
    court discussed that question in In re Marriage of Gonzalez but
    failed to achieve a majority resolution.24 Because the timeliness
    of the Cousins’ motion is a threshold question that is ―determined
    under the facts and circumstances of [the] particular case, and in
    
    
    
    
       21  The declaration of Nedra Taufer states that ―I was aware . . .
    that Janetta Gardiner would be appointed as personal
    representative of the estate. I was also aware of Ms. Gardiner’s
    petition to be made a common law spouse as well as her
    attorney’s acknowledgement in court in August 2010 that the two
    cases could be consolidated.‖
       22  See Supernova Media, 
    2013 UT 7
    , ¶ 24 (―A party may waive
    its right to intervene by substantially and unjustifiably delaying
    its motion to intervene.‖); Bosh, 
    2011 UT 60
    , ¶ 8 (―As a general rule
    intervention is not to be permitted after entry of judgment . . . .‖
    (internal quotation marks omitted)); Republic Ins. Grp. v. Doman,
    
    774 P.2d 1130
    , 1131 (Utah 1989) (affirming denial of intervention
    when a party had ―notice and opportunity to intervene at an
    earlier stage of the proceeding,‖ yet waited until a motion for
    summary judgment had been submitted before requesting
    intervention).
       23 Supernova Media, 
    2013 UT 7
    , ¶ 22 (internal quotation marks
    omitted); UTAH R. CIV. P. 24(a)(2).
       24  
    2000 UT 28
    , ¶¶ 49, 50, 
    1 P.3d 1074
     (Zimmerman, J.,
    concurring) (2-1-2 decision) (in an action for adjudication of an
    unsolemnized marriage, a majority of the court upheld the
    parties’ stipulation to intervention of a third party but the court
    was split on the question of whether intervention by third parties
    in marriage adjudications is generally proper as a matter of law).
    
    
    
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                          GARDINER v. VANDERWERFF
                             Opinion of the Court
    
    the sound discretion of the court,‖25 we remand but stop short of
    deciding whether intervention would be proper considering the
    other three Supernova Media factors for rule 24(a) intervention.26
    Because the district court failed to make findings on the necessary
    elements for granting intervention, especially timeliness, we
    reverse the grant of intervention without prejudice27 and instruct
    the district court to conduct a full analysis of the Supernova Media
    factors if the Cousins attempt to intervene again.
            II. THE DISTRICT COURT IMPROPERLY SET ASIDE
                  THE MARRIAGE DECLARATION AND
                         DISMISSED THE CASE
        ¶ 21 Ms. Gardiner argues that the court improperly set aside
    the marriage declaration and then dismissed the marriage case
    sua sponte under Utah Rule of Civil Procedure 4(b)(i) for failure
    of service.
                   A. The District Court Improperly Set Aside
                         the Declaration of Marriage
        ¶ 22 There was some confusion at the hearing on February 27,
    2012. On that day, the only motions fully briefed and submitted
    to the court for decision were Ms. Gardiner’s motion to strike the
    Cousins’ rule 60(b) motion to set aside the declaration of marriage
    as a nonparty motion and the Cousins’ subsequent motion to
    intervene. Ms. Gardiner had not briefed the Cousins’ rule 60(b)
    motion on its merits—she had moved to strike it only because it
    was filed before the Cousins’ motion to intervene, and before any
    grant of intervention to the Cousins. Nevertheless, at the hearing
    
    
       25 Supernova Media, 
    2013 UT 7
    , ¶ 23 (internal quotation marks
    omitted).
       26   Id. ¶ 22.
       27 Uhrhahn Constr. & Design, Inc. v. Hopkins, 
    2008 UT App 41
    ,
    ¶ 29, 
    179 P.3d 808
     (―Generally, when a trial court fails to make
    factual findings on a material issue, such failure constitutes
    reversible error, and we remand to the trial court to enter the
    necessary findings unless we determine that such error is
    harmless, i.e., the undisputed evidence clearly establishes the
    missing findings or the missing findings may reasonably be
    implied.‖).
    
    
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    on February 27, 2012, the court addressed the merits of the
    Cousins’ motion to set aside the marriage declaration, in violation
    of Utah Rule of Civil Procedure 7(d), which states that ―[i]f no
    party files a request [to submit], the motion will not be submitted
    for decision.‖ Following the hearing, and over Ms. Gardiner’s
    objection, the court signed an order setting aside the marriage
    declaration under rule 60(b)(6) of the Utah Rules of Civil
    Procedure on the basis that Ms. Gardiner had failed ―to serve the
    estate of [Mr.] Vanderwerff with process, or to serve any other
    individual or entity with process in this matter.‖
        ¶ 23 District courts are typically granted broad discretion to
    issue rulings on rule 60(b) motions ―because most are equitable in
    nature, saturated with facts, and call upon judges to apply
    fundamental principles of fairness that do not easily lend
    themselves to appellate review.‖28 Nevertheless, we review the
    district court’s legal conclusions in the context of a rule 60(b)
    ruling for correctness.29 In this case, the court’s order setting
    aside the marriage petition under rule 60(b)(6) was based entirely
    on its erroneous legal conclusion that Ms. Gardiner had failed to
    serve Mr. Vanderwerff’s estate.30 The district court also ruled on
    the rule 60(b) motion in violation of Utah Rule of Civil Procedure
    7(d) because the motion had not been submitted for decision and
    Ms. Gardiner had not had the opportunity to brief her opposition
    to it. This procedural error was not harmless, because if
    Ms. Gardiner had been able to fully brief her opposition to the
    Cousins’ rule 60(b) motion, it is reasonably likely that the district
    court might not have erroneously granted the motion.31 Thus,
    
    
       28   Fisher v. Bybee, 
    2004 UT 92
    , ¶ 7, 
    104 P.3d 1198
    .
       29  See id. (―Because the trial court’s ruling turned on its
    conclusion that rule 60(b)(1) did not apply to [the judge’s]
    treatment of [the party’s] motions to renew the judgment, a
    decision dependent upon the legal question of how rule 60(b)(1)
    should be interpreted, we therefore review the decision for
    correctness.‖).
       30   See infra Part II.B.2.
       31 See Crookston v. Fire Ins. Exch., 
    817 P.2d 789
    , 796 (Utah 1991)
    (holding that where a party was not given the opportunity to file
    opposition to a motion for summary judgment, a ―technical
                                                                  (con’t.)
    
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                        GARDINER v. VANDERWERFF
                           Opinion of the Court
    
    the court erred when it granted the Cousins’ rule 60(b) motion
    both as a matter of procedure and as a matter of law.
        ¶ 24 As explained in Part II.B.2, infra, service was not
    improper because Ms. Gardiner was the personal representative
    of the estate and timely waived service on the estate. Because
    service was properly waived, the district court had no reason to
    set aside the marriage determination for lack of proper service.
    Accordingly, the district court erred when it set aside the
    marriage determination. 32 We therefore reinstate the district
    court’s September 13, 2010, order establishing an unsolemnized
    marriage between Ms. Gardiner and Mr. Vanderwerff.
                B.   The District Court Improperly Dismissed
                            the Marriage Action
         ¶ 25 Ms. Gardiner first argues that the court erred when it
    dismissed the marriage action without giving her the opportunity
    to raise defenses. Second, she argues that service was not
    improper and the district court should not have dismissed the
    action under rule 4(b)(i) for three reasons: (1) Mr. Francis, in
    his capacity as special administrator, waived service when he filed
    a motion to intervene in the marriage case; (2) Mr. Francis
    stipulated to Ms. Gardiner’s appointment as personal
    representative and thereby waived any objection to a potential
    conflict of interest; and (3) in any event, service was proper
    because the personal representative of the estate (Ms. Gardiner
    herself) waived service within 120 days of the filing of the
    marriage petition. We first address the propriety of the district
    court’s dismissal of the action on its own initiative under rule
    4(b)(i) and find that it was improper. We then turn to the issue
    of service and hold that service was proper because the personal
    representative of the estate waived service within 120 days of the
    filing of the marriage petition.
    
    
    
    
    violation‖ of the Utah Rules of Civil Procedure will ―void the
    grant‖ of the motion unless ―the violation amounts to harmless
    error‖).
       32As explained in Part II.B, infra, the court also erred when it
    subsequently dismissed the marriage action entirely.
    
    
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    1. The District Court Erred in Sua Sponte Dismissing the Action
       Without First Giving Notice to Ms. Gardiner
        ¶ 26 On April 18, 2012, the district court dismissed the
    probate case ―upon its own initiative‖ under Utah Rule of Civil
    Procedure 4(b)(i). It dismissed the case because it found that
    Ms. Gardiner had ―not served process on anyone since filing her
    petition for determination of common law marriage‖ and
    therefore the action had to be ―dismissed, without prejudice.‖33
    The court’s actions cannot be squared with the rules of civil
    procedure taken as a whole. ‖When we interpret a procedural
    rule, we do so according to our general rules of statutory
    construction.‖34 Thus we ―read the plain language of the [rule]
    as a whole, and interpret its provisions in harmony with other
    [rules].‖35
        ¶ 27 There is some tension between Utah Rules of Civil
    Procedure 4(b)(i) and 4(e)(3).       Rule 4(b)(i) states, ―[i]f the
    summons and complaint are not timely served, the action shall be
    dismissed, without prejudice on application of any party or upon
    the court’s own initiative.‖ 36 However, rule 4(e)(3) states,
    ―[f]ailure to make proof of service does not affect the validity of
    the service.‖37 At a minimum, before a court dismisses an action
    for untimely service under rule 4(b)(i), it must first give the
    plaintiff an opportunity to respond.          A plaintiff facing a
    challenge to the timeliness of service may argue that service was
    valid despite a failure to provide proof of service or that the
    opposing party waived service of process under rule 12(h) of the
    Utah Rules of Civil Procedure. Under rule 12(h), a party waives
    its right to challenge the sufficiency of service of process if it did
    ―not present[]‖ that claim ―either by motion or by answer or
    
    
       33   See UTAH R. CIV. P. 4(b)(i).
       34  Arbogast Family Trust v. River Crossings, LLC, 
    2010 UT 40
    ,
    ¶ 18, 
    238 P.3d 1035
    .
       35 Bd. of Educ. v. Sandy City Corp., 
    2004 UT 37
    , ¶ 9, 
    94 P.3d 234
    (internal quotation marks omitted); see also Arbogast Family Trust,
    
    2010 UT 40
    , ¶ 18.
       36   UTAH R. CIV. P. 4(b)(i).
       37   Id. 4(e)(3).
    
    
    
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                           GARDINER v. VANDERWERFF
                              Opinion of the Court
    
    reply.‖ 38 Indeed, these are the very arguments Ms. Gardiner
    now presents on appeal because she was not given the
    opportunity to raise them below. We interpret rule 4(b)(i) to
    allow a court to raise the issue of sufficiency of service of process
    upon its own initiative, but it may not dismiss an action on that
    basis without first giving the plaintiff notice and an opportunity
    to raise defenses.39 Accordingly, we hold that the district court
    improperly dismissed the action under rule 4(b)(i) without giving
    Ms. Gardiner an opportunity to respond. We now turn to the
    merits of the question and determine that service was proper.
    2. Ms. Gardiner Waived Service of Process on the Estate of
       Mr. Vanderwerff in Her Capacity as Personal Representative of the
       Estate
        ¶ 28 Rule 4(b)(i) of the Utah Rules of Civil Procedure requires
    that in every action, a ―summons together with a copy of the
    complaint shall be served no later than 120 days after the filing of
    the complaint.‖ A petition for a marriage declaration ordinarily
    must be served on the putative spouse—in this case,
    Mr. Vanderwerff. Unfortunately, Mr. Vanderwerff was already
    deceased when Ms. Gardiner petitioned to have their relationship
    declared a marriage.           Courts cannot exercise personal
    jurisdiction over individuals who have died.40 Instead, a party
    must ―obtain appointment of a personal representative to give a
    trial court personal jurisdiction over the estate‖ and then serve the
    personal representative.41
    
    
    
    
       38   Id. 12(b)(5) & (h).
       39  This interpretation is in line with the federal rule that reads:
    ―If a defendant is not served within 120 days after the complaint is
    filed, the court—on motion or on its own after notice to the
    plaintiff—must dismiss the action without prejudice against that
    defendant or order that service be made within a specified time.‖
    FED. R. CIV. P. 4(m) (emphasis added).
       40   Berneau v. Martino, 
    2009 UT 87
    , ¶ 18, 
    223 P.3d 1128
    .
       41 Id. (internal quotation marks omitted); see also UTAH CODE
    § 75-3-602 (―Notice of any proceeding shall be delivered to the
    personal representative . . . .‖).
    
    
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                            Opinion of the Court
    
        ¶ 29 At the time Ms. Gardiner filed the marriage petition,
    Mr. Francis had been appointed the special administrator of
    Mr. Vanderwerff’s estate, and Ms. Gardiner was aware of that
    appointment. Ms. Gardiner did not serve the petition upon
    Mr. Francis—though she should have. Nevertheless, Mr. Francis
    had actual knowledge of the marriage petition, and attempted to
    intervene both in his individual capacity and in his capacity as the
    estate’s special administrator. In addition to his motion to
    intervene, Mr. Francis filed a memorandum objecting to
    Ms. Gardiner’s marriage petition—and at no point raised a
    challenge to the sufficiency of service. The court never ruled on
    Mr. Francis’s motion, however, because it was never submitted
    for decision. Then one month before the adjudication of the
    marriage, and within 120 days from the filing of the marriage
    petition, Mr. Francis stipulated to his own removal as special
    administrator and Ms. Gardiner’s appointment as personal
    representative of the estate.
       ¶ 30 As a result, at that point in the marriage case,
    Ms. Gardiner, as personal representative of the estate, would have
    been required to serve herself with her own marriage petition.42
    The Cousins argue that this apparent conflict invites fraud and
    creates a nonadversarial proceeding, and is thus against sound
    public policy. They also argue that Ms. Gardiner’s conduct
    violated her fiduciary duties as personal representative.
       ¶ 31 While we recognize the Cousins’ public policy concerns,
    we note that being a personal representative and a potential
    beneficiary of a will does not create a per se conflict of interest
    that constitutes fraud. 43 Generally, for there to be a serious
    
       42  UTAH CODE § 75-3-602 (―By accepting appointment, a
    personal representative submits personally to the jurisdiction of
    the court in any proceeding relating to the estate that may be
    instituted by any interested person. Notice of any proceeding
    shall be delivered to the personal representative . . . .‖); see also id.
    § 75-3-608 (indicating that a personal representative whose
    appointment has not been terminated has the ―authority to
    represent the estate in any pending or future proceeding‖).
       43  Farnsworth v. Hatch, 
    151 P. 537
    , 541 (Utah 1915) (―[A] person
    may not be disqualified merely because he claims property which
    is also claimed by the estate.‖).
    
    
    
                                       15
                        GARDINER v. VANDERWERFF
                           Opinion of the Court
    
    conflict of interest that would justify removal, the personal
    representative must commit some negligent act or
    mismanagement of the estate that leads the heirs to sue. 44
    Regardless, whether Ms. Gardiner breached her fiduciary duties
    as personal representative of Mr. Vanderwerff’s estate is not the
    issue before us—the Cousins did not directly bring this
    claim—and therefore we must simply determine whether service
    was proper.45
       ¶ 32 An alleged breach of fiduciary duty does not render
    otherwise proper service invalid—it is an independent claim.46
    The rules required Ms. Gardiner to effectuate service or a waiver
    of service on the estate of Mr. Vanderwerff by serving the
    
    
       44 Id. (―But when the claims of the representative are resisted
    by the estate, and litigation ensues, then the interests between the
    estate and the representative may become so conflicting and so
    serious that it is no longer proper for the representative to remain
    in office.‖); In re Bogert’s Estate, 
    290 P. 947
    , 949 (Utah 1930)
    (explaining that personal representative was properly removed
    where ―she turned over to her then attorney certain Liberty bonds
    of the value of $1,500 . . . and that owing to her incompetency,
    negligence, and carelessness the attorney kept $500 thereof which
    he has failed to return and . . . . she is incompetent to act as
    executrix of the estate, and has neglected, mismanaged, and wasted
    the assets of the estate‖).
       45 We note that under the Utah Uniform Probate Code, with
    some exceptions, ―any transaction which is affected by a
    substantial conflict of interest on the part of the personal
    representative, is voidable by any person interested in the estate.‖
    UTAH CODE § 75-3-712. However, because the Cousins did not
    bring a claim under this statute or argue it on appeal, we do not
    address it, nor will we analyze any related questions, such as
    whether a petition for a declaration of unsolemnized marriage
    under Utah Code section 30-1-4.5(1) falls within the definition of a
    ―transaction‖ for purposes of this provision of the Utah Uniform
    Probate Code.
       46   See Norman v. Arnold, 
    2002 UT 81
    , ¶ 35, 
    57 P.3d 997
     (―In
    Utah, a claim for breach of fiduciary duty is an independent
    tort . . . .‖).
    
    
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                            Cite as: 
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                           Opinion of the Court
    
    personal representative of the estate.47 Ms. Gardiner, acting in
    her capacity as personal representative, waived such service
    within 120 days of the filing of her petition.           Therefore,
    Ms. Gardiner satisfied rule 4 of the Utah Rules of Civil Procedure
    and the court erred when it dismissed her petition for insufficient
    service of process.
        ¶ 33 The district court erred when it dismissed the action on
    its own initiative under rule 4(b)(i) of the Utah Rules of Civil
    Procedure without notice to Ms. Gardiner and without affording
    her the opportunity to object—and the court erred because service
    was in fact proper. Because Mr. Vanderwerff was deceased at
    the time of the petition, Ms. Gardiner was required to effectuate
    service of process on—or obtain a waiver of service from—his
    estate. Ms. Gardiner waived service on the estate in her capacity
    as personal representative before the expiration of 120 days from
    the filing of the marriage petition, and therefore service was valid.
                              CONCLUSION
        ¶ 34 In sum, we hold that the district court erred when it
    allowed the Cousins to intervene, set aside the declaration of
    marriage, and then dismissed the case. Where a petitioner seeks
    a posthumous determination of an unsolemnized marriage, he or
    she must serve process upon the estate of the deceased. In this
    case, Ms. Gardiner waived service on behalf of the estate as the
    personal representative of Mr. Vanderwerff.          The court
    erroneously concluded that Ms. Gardiner failed to validly
    effectuate service. Because the court allowed the Cousins to
    intervene, granted their rule 60(b) motion to set aside the
    marriage declaration, and then dismissed the case on its own
    
    
       47 See UTAH R. CIV. P. 4(d)(1)(A) (providing that personal
    service shall be made ―by delivering a copy of the summons and
    the complaint to an agent authorized by appointment or by law to
    receive service of process‖); Utah Uniform Probate Code, UTAH
    CODE § 75-3-602 (―Notice of any proceeding shall be delivered to
    the personal representative . . . .‖); see also Garcia v. Garcia, 
    712 P.2d 288
    , 290 (Utah 1986) (―The final method by which process
    may be served . . . is by delivering a copy to an agent authorized
    by appointment or by law to receive service of process.‖ (internal
    quotation marks omitted)).
    
    
    
                                     17
                        GARDINER v. VANDERWERFF
                           Opinion of the Court
    
    initiative all on the basis of that error, we reverse those decisions
    and reinstate the September 13, 2010, declaration of marriage
    between Ms. Gardiner and Mr. Vanderwerff.
    
    
    
    
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