Arbogast v. River Crossings

2010 UT 40
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Arbogast Family Trust, 	No. 20080699
Plaintiff and Respondent,
v.
F I L E D
River Crossings, LLC,
Defendant and Petitioner. 	May 14, 2010
---
Fifth District, St. George
The Honorable Eric A. Ludlow
No. 60500096
Attorneys: 	Scott M. Lilja, Nicole M. Deforge, Salt Lake City,
for plaintiff
Tyler T. Todd, Chad J. Utley, Shawn T. Farris,
St. George, for defendant
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	This case presents us with the question of what a party
must do to “appear” under rule 5(a)(2)(B) of the Utah Rules of
Civil Procedure. 	We hold that the court of appeals correctly
determined that a rule 5(a)(2)(B) appearance requires a party to
make a formal presentation or submission to the trial court.
Because River Crossings failed to make an appearance as required
by this rule, we affirm.
BACKGROUND
¶2 	In this opinion, we include only those facts we deem
relevant to the specific question presented to us. 	A more
detailed recitation of the facts and proceedings can be found at

No. 20080699 	2
Arbogast Family Trust v. River Crossings, LLC, 2008 UT App 277,
¶¶ 2-9, 191 P.3d 39.
¶3 	In September 2004, Arbogast Family Trust loaned River
Crossings, LLC, $2,450,000. 	The loan repayment was due
approximately one year later, on September 16, 2005. 	The loan
agreement included a penalty provision imposing a six percent
late fee if payment was more than five days overdue.
¶4 	River Crossings repaid the loan in full on October 7,
2005, approximately twenty-one days after the due date. 	Because
the loan was more than five days overdue, Arbogast claimed it was
entitled to collect a late fee of over $148,000 plus interest.
River Crossings claimed it owed no additional fees because
Arbogast granted it an extension of time to repay the loan.
Because of the dispute, River Crossings authorized Southern Utah
Title Company to hold $178,000 in escrow until the matter was
resolved. 	These funds were eventually deposited with the
district court.
¶5 	On January 10, 2006, Arbogast filed a Complaint for
Declaratory Judgment to obtain the funds held in escrow.
Arbogast granted River Crossings an extension of time to answer
the complaint or to communicate a settlement offer. 	On June 28,
2006, River Crossings made a settlement offer to Arbogast. 	The
next day Arbogast sent a letter rejecting the offer and stating:
My client has previously granted your client
an extension of time within which to answer
the complaint. 	However, given the present
state of the case, I am, on behalf of my
client, hereby requesting that your client
file an Answer to the [C]omplaint within
twenty (20) days of the date of this letter.
Id. ¶ 4.
¶6 	Approximately one month later, River Crossings sent an
email to Arbogast’s principal proposing the parties “discuss the
direction of [the] lawsuit.” 	Id. ¶ 5. 	No further communication
occurred. 	On July 31, more than thirty days after the June 29
letter, Arbogast obtained a certificate of default from the court
clerk. 	Arbogast did not alert River Crossings or provide it with
a copy of its request for default judgment. 	On August 10,
default judgment was entered against River Crossings. 	Notice of
default was sent to River Crossings on August 15. 	Id.

3 	No. 20080699
¶7 	On September 26, 2006, River Crossings filed a rule 60
motion to set aside the default judgment. 	The trial court denied
the motion, and River Crossings appealed. 	River Crossings argued
to the court of appeals that the district court abused its
discretion when it refused to set aside the default judgment
because Arbogast failed to provide notice of default to River
Crossings as required by rule 5 of the Utah Rules of Civil
Procedure. 	River Crossings further argued that the district
court’s refusal to set aside the default judgment was based on
faulty findings of fact.
¶8 	The court of appeals affirmed the district court’s
refusal to set aside the default judgment. 	Id. ¶ 35. 	Citing our
decisions in Central Bank & Trust Co. v. Jensen, 656 P.2d 1009
(Utah 1982) and Lund v. Brown, 2000 UT 75, 11 P.3d 277, the court
of appeals reasoned that Arbogast was not required to give notice
to River Crossings before seeking default judgment because River
Crossings failed to make a formal appearance through a pleading
in the action as required by Utah Rule of Civil Procedure
5(a)(2)(B). 	Arbogast, 2008 UT App 277, ¶ 16. 	The court of
appeals further found that the district court’s refusal to set
aside the default judgment was not based on faulty findings of
fact and that River Crossings did not show any reasonable
justification or excuse for its failure to answer Arbogast’s
complaint. 	Id. ¶¶ 29-31.
¶9 	River Crossings petitioned for certiorari. 	We granted
the petition to decide whether the court of appeals erred in its
determination that River Crossings did not “appear” under Utah
Rule of Civil Procedure 5(a)(2)(B) such that Arbogast was
required to give River Crossings notice before default judgment
was entered. 	We have jurisdiction in this case pursuant to Utah
Code section 78A-3-102(3)(a) (2008).
STANDARD OF REVIEW
¶10 	On certiorari, “we review the decision of the court of
appeals, not the decision of the district court.” 	Nolan v.
Hoopiiaina, 2006 UT 53, ¶ 19, 144 P.3d 1129. 	“The interpretation
of a rule of procedure is a question of law that we review for
correctness.” 	State v. Rodrigues, 2009 UT 62, ¶ 11, 218 P.3d 610
(internal quotation marks and alteration omitted).
ANALYSIS
¶11 	According to Utah Rule of Civil Procedure 5(a)(1)
“every judgment, every order . . . every pleading . . . every
paper . . . , every written motion . . . , and every written

No. 20080699 	4
notice, appearance, demand, offer of judgment, and similar paper
shall be served upon each of the parties.” 	Although this rule
expresses a general policy that parties should have notice of any
activity in the case, rule 5 goes on to denote a limit to this
policy. 	Under rule 5(a)(2)(B) “[n]o service need be made on
parties in default . . . for failure to appear.” 	Utah R. Civ. P.
5(a)(2) (emphasis added).
¶12 	Although rule 5 clearly articulates that notice,
including notice of default, need not be given to parties who
fail to appear in a proceeding, the rule does not answer the
question presented here: 	What does it mean to “appear”?
¶13 	River Crossings contends that the court of appeals
erred when it concluded that only a “formal appearance” before a
court, such as filing an answer, could constitute an appearance
under rule 5(a). 	Directing our attention to federal circuit
court interpretations of the federal equivalent of rule 5, River
Crossings promotes a more expansive definition of appearance, one
that would include some level of informal contacts or
negotiations between the parties. 	According to River Crossings,
this more generous definition is most consistent with the policy
of hearing cases on the merits and is more in accord with our
case law and the Utah Standards of Professionalism and Civility.
¶14 	In contrast, Arbogast asks us to affirm the court of
appeals’ decision that only a formal appearance will suffice to
trigger notice requirements under rule 5. 	Arbogast contends that
this view is most consistent with our decisions in Central Bank &
Trust Co. v. Jensen, 656 P.2d 1009 (Utah 1982) and Lund v. Brown,
2000 UT 75, 11 P.3d 277, and that this approach will most
effectively foster a just, expedient, and predictable process.
¶15 	We hold that the court of appeals correctly determined
that (1) a party must make a formal filing or submission to the
district court in order to make an appearance under rule 5(a) and
(2) although not required by rule 5, the Utah Standards of
Professionalism and Civility encourage attorneys to attempt to
provide a final notification to the opposing party before
entering default judgment.
I. 	THE COURT OF APPEALS CORRECTLY DETERMINED THAT RULE 5
REQUIRES PARTIES TO FORMALLY APPEAR BY A FILING OR SUBMISSION TO
THE DISTRICT COURT
¶16 	This case presents us with the task of interpreting a
single word within one of our procedural rules. 	When interpreting
a rule of civil procedure, “we look to the express language of

5 	No. 20080699
that procedural rule and to the cases interpreting it.” 	First
Equity Fed., Inc. v. Phillips Dev., LC, 2002 UT 56, ¶ 11, 52 P.3d
1137. 	“[T]o the extent that they are similarly worded,” we can
also turn to the federal rules of civil procedure and cases
interpreting them for further guidance. 	Bichler v. DEI Sys.,
Inc., 2009 UT 63, ¶ 24 n.2, 220 P.3d 1203; First Sec. Bank v.
Conlin, 817 P.2d 298, 299 (Utah 1991). 	In conducting this
analysis, it is “most important . . . that the rules be
understood, and applied, with clarity and consistency,” and that
“the defendant, the court, the state, and others be able to
determine [the meaning of the rule].” 	State v. Todd, 2006 UT 7, ¶
8, 128 P.3d 1199.
¶17 	Rule 5 expressly provides that all pleadings, papers,
and any other information related to the lawsuit must be served on
each of the parties except that “[n]o service need be made on
parties in default . . . for failure to appear.” 	Utah R. Civ. P.
5(a) (emphasis added). 	The parties do not dispute that failing to
make an appearance in a lawsuit may relieve the opposing party
from having to give notice and serve pleadings. 	Rather, the only
dispute is what a party must do to “appear” under the rule to
trigger the right to receive notice of all filings and proceedings
from opposing counsel.
¶18 	When we interpret a procedural rule, we do so according
to our general rules of statutory construction. 	See Burns v.
Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370 (“We interpret court rules,
like statutes and administrative rules, according to their plain
language.”). 	Thus, in our quest to define the word “appear,” we
start by examining the ordinary meaning or usually accepted
interpretation. 	See State v. Rothlisberger, 2006 UT 49, ¶ 15, 147
P.3d 1176; Keene v. Bonser, 2005 UT App 37, ¶ 10, 107 P.3d 693
(“In construing the plain language of a [rule], words which are
used in common, daily, nontechnical speech, should, in the absence
of evidence of a contrary intent, be given the meaning which they
have for laymen in such daily usage.” (internal quotation marks
omitted); State v. Parker, 872 P.2d 1041, 1046 (Utah Ct. App.
1994) (stating courts interpreting rules should look to the
usually accepted definition). 	Though helpful, this exercise
suggests that the word “appear” may have more than one reasonable
interpretation. 	On the one hand, “appear” means “to become
visible” or “to come before the public.” 	American Heritage
Dictionary 120 (2d ed. 1985). 	This definition suggests that when
a person appears, his or her presence is obvious, or easily
perceived. 	On the other hand, the word “appear” is also less
concretely defined as “to seem or look to be.” 	Id. 	While this
definition indicates that a party may look like it is present,
this definition also suggests an appearance may be less definite,

No. 20080699 	6
and that a person’s presence or state of being may be more
difficult to ascertain.
¶19 	Because the ordinary meaning of the word “appear” has
two common and somewhat competing interpretations, we delve
further into how the word has been historically defined and used
in our legal system and case law. 	See First Equity Fed., Inc.,
2002 UT 56, ¶ 11 (stating courts should look to cases interpreting
a procedural rule for interpretive guidance); In re Worthen, 926
P.2d 853, 866-67 (Utah 1996) (stating that when an interpretation
of a word or provision is ambiguous we may look beyond the plain
language to “historical evidence” and “policy arguments” for
further direction). 	We find less divergence here. 	Legal
definitions of “appearance” include “[t]o present oneself formally
before a court as defendant, plaintiff, or counsel,” American
Heritage Dictionary 120 (emphasis added), or to “com[e] into court
as a party or interested person” or by “participating in [a
lawsuit] by answer, demurrer, or motion.” 	Black’s Law Dictionary
107 (8th ed. 2004) (emphasis added). 	Historically, an appearance
required “some act by which a person who is sued submits himself
to the authority and jurisdiction of the court.” 	Black’s Law
Dictionary 107 (quoting Benjamin J. Shipman, Handbook of Common-
Law Pleading § 5, at 24 (Henry Winthrop Ballantine ed., 3d ed.
1923); see also Scott K. Zesch, Annotation, What Constitutes
“Appearance” Under Rule 55(b)(2) of Federal Rules of Civil
Procedure, Providing That if Party Against Whom Default Judgment
is Sought Has “Appeared” in Action, That Party Must be Served With
Notice of Application for Judgment, 139 A.L.R. Fed. 603 § 2 (2008)
(defining appearance as “an overt act by which a party comes into
court and submits himself to [a court’s] jurisdiction”). 	These
definitions of appearance contemplate more than “seeming to be”
one way or another; they suggest an obvious and definite presence
before a court. 	This formal showing leaves no question as to the
presence of a party or his intent to defend the suit.
¶20 	An examination of our own case law also demonstrates a
commitment to a more formal reading of the rule. 	Although we have
not previously been presented with the exact question before us,
we addressed the concept of an appearance under rule 5 in Central
Bank & Trust Co. v. Jensen, 656 P.2d 1009 (Utah 1982), and again
in Lund v. Brown, 2000 UT 75, 11 P.3d 277.
¶21 	In Central Bank, the plaintiff, Central Bank & Trust
Company, filed a complaint against defendants seeking a monetary
judgment for an unpaid credit card balance. 	656 P.2d at 1010.
Several weeks later, the defendants’ attorney contacted Central
Bank’s counsel to discuss the complaint. 	Id. 	Following the
conversation, defendants’ counsel wrote a letter to Central Bank’s

7 	No. 20080699
attorney “requesting copies of the pleadings and all other
documents.” 	Id. 	Central Bank’s counsel promptly answered the
letter, refusing to supply the documents, but expressing “a
willingness to cooperate if [the defendants] appeared generally.”
Id. 	When no answer was filed, default judgment was entered
without serving or otherwise notifying the defendants. 	Id. 	The
defendants filed a motion to set aside the default judgment,
arguing Central Bank’s counsel had an obligation under rule 5 to
give notice to the defendants. 	Id. at 1011. 	We concluded that
“[Central Bank] was under no duty to notify defendants of the
default,” because defendants failed to make an appearance as
required by rule 5. 	Id. at 1011-12. 	In doing so, we stated,
“[w]e are satisfied that defendants had actual notice of the suit
filed against them. . . . The defendants knowingly shirked their
duty to respond, and they have no valid basis for setting the
default aside.” 	Id. at 1012.
¶22 	In Lund, plaintiffs filed a complaint and the defendants
filed an answer and counterclaim. 	2000 UT 75, ¶ 3. 	The
plaintiffs failed to respond to the counterclaim. 	Defendants
obtained a default judgment without serving the plaintiffs with
copies of the request for default. 	Id. ¶ 5. 	After failing in
their attempt to have the judgment set aside, the plaintiffs
appealed the default judgment, arguing they were entitled to
notice under rule 5 before default judgment was entered. 	Id.
¶ 14. 	The defendants argued that under Central Bank, we held that
no notice was required for parties in default. 	Id. ¶ 27. 	We
agreed with plaintiffs, and reversed the entry of default
judgment. 	Id. ¶ 33. 	In doing so, we distinguished Lund from the
facts in Central Bank:
In [Central Bank] . . . we did not address the
circumstance where a party having already made
a formal appearance in a case is subjected to
a motion for default judgment on a
counterclaim. 	In [Central Bank], the
defaulting party never made an appearance
prior to having default judgment entered
against him.
Id. ¶ 27 (emphasis added).
¶23 	When read together, these cases form a consistent
approach to appearance under rule 5. 	We agree with the court of
appeals’ analysis of the relationship between these cases and its
formulation of the emerging rule: 	Central Bank and Lund stand for
the proposition that “unless a party enters a formal appearance
through a pleading in the trial court, it has not appeared and is

1 Because the language in Utah Rule of Civil Procedure 5(a)
is substantially similar to the language in Federal Rule of Civil
Procedure 55(b), we also look to federal cases interpreting the
federal rule for guidance. 	See First Sec. Bank v. Conlin, 817
P.2d 298, 299 (Utah 1991); Lund v. Brown, 2000 UT 75, ¶ 26, 11
P.3d 277 (“[F]ederal interpretation[s] [of rule 5 are] persuasive
in light of the fact that our rule 5 is ‘substantially similar’
to federal rule [55].”). 	Federal Rule of Civil Procedure 55(b)
provides:
If the plaintiff’s claim is for a sum certain
or a sum that can be made certain by
computation, the clerk--on the plaintiff’s
request, with an affidavit showing the amount
due--must enter judgment for that amount and
costs against a defendant who has been
defaulted for not appearing and who is
neither a minor nor an incompetent person.
Fed. R. Civ. P. 55(b)(1) (emphasis added).
No. 20080699 	8
not entitled to service under rule 5 of the Utah Rules of Civil
Procedure.” 	Arbogast Family Trust v. River Crossings, LLC, 2008
UT App 277, ¶ 16, 191 P.3d 39.
¶24 	Although we identify a trend in our own case law toward
requiring formal filing, we recognize that what it means to
“appear” and how much and what a party must do to “appear” has led
to a surprising amount of litigation in other parts of the
country. 	While some jurisdictions hold fast to a formal,
traditional interpretation of the rule, others embrace a looser,
more informal definition. 	The parties have pointed out to us that
in our limited case law discussion of rule 5 requirements, we have
never directly addressed these competing lines of litigation. 	We
take the opportunity to do so now. 1
¶25 	We begin by examining the majority view that “in order
to obtain a default judgment, a claimant must give [rule 5] notice
not only to parties who have appeared formally, but also to those
parties who have indicated to the moving party, in any manner, a
clear purpose to defend against the claims.” 	10 James Wm. Moore
et al., Moore’s Federal Practice § 55.33[4][a] (3d ed. 2008).
Commonly referred to as the “informal contacts” rule, this
approach requires courts to engage in a case-by-case, highly fact-
specific inquiry to determine whether a party’s actions taken as a
whole demonstrate a “clear intent to defend” the suit. 	See id.
¶26 	The benchmark case in the informal contacts camp is H.F.
Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d
689 (D.C. Cir. 1970). 	See Wilson v. Moore & Assocs., Inc., 564

9 	No. 20080699
F.2d 366, 369 (9th Cir. 1977) stating (H.F. Livermore is “the
benchmark case in respect to Rule 55(b)(2)”). 	In H.F. Livermore,
the defendant’s counsel sent two letters and engaged in a
telephone conversation regarding potential settlement
negotiations. 	432 F.2d at 690. 	The D.C. Circuit found that these
actions were enough to constitute an appearance, requiring notice.
Id. at 692. 	The court reasoned that the defendant “made its
purpose to defend the suit quite plain” and “neither party was in
any doubt that the suit would be contested if the efforts to agree
were unavailing.” 	Id.
¶27 	Many jurisdictions have followed the H.F. Livermore
informal contacts approach, although there is widespread
disagreement among them as to how many and what type of informal
contacts are needed to make an appearance. 	See, e.g., New York
Life Ins. Co. v. Brown, 84 F.3d 137, 142 (5th Cir. 1996) (finding
that participation in a telephone conference with other parties
and communicating to opposing counsel the intent to contest the
suit was enough to constitute an appearance); In re Roxford Foods,
12 F.3d 875, 880-81 (9th Cir. 1993) (finding that making a formal
appearance in a sufficiently related bankruptcy action was enough
to constitute an appearance in the civil case); Muniz v. Vidal,
739 F.2d 699, 700 (1st Cir. 1984) (“[The] presentation of defenses
and counterclaims to opposing counsel–-made out a sufficiently
strong indication of an intent to defend”); cf. Franchise Holding
II, LLC v. Huntington Rests. Group, Inc., 375 F.3d 922, 928 (9th
Cir. 2004) (holding that defendant did not appear when it failed
to file an extension of time to answer pleadings or any other
motion with the district court, failed to copy the district court
on any correspondence outlining its possible defenses in the
action, and made “no effort to preserve its interests in the
district court until [the opposing party] began collecting on the
default judgment.”); Direct Mail Specialists, Inc. v. Eclat
Computerized Techs., Inc., 840 F.2d 685, 689-90 (9th Cir. 1988)
(finding the defendant did not “appear,” either in fact or
constructively, when its settlement negotiations ended the day the
summons was served and no communications occurred thereafter).
¶28 	Courts adhering to the informal contacts rule stress the
need to “look beyond the presence or absence of . . . formal
actions to examine other evidence of active representation.” 	See,
e.g., Lutomski v. Panther Valley Coin Exch., 653 F.2d 270, 271
(6th Cir. 1981). 	By conducting a more searching inquiry as to
whether parties have appeared in a case, these jurisdictions
promote the policy of deciding cases on the merits rather than
disposing of them on a rule of procedure. 	See H.F. Livermore, 432
F.2d at 691 (“[T]he policy underlying the modernization of federal
procedure, namely, the abandonment or relaxation of restrictive

No. 20080699 	10
rules which prevent the hearing of cases on their merits, is
central to th[e] issue [of whether a party has made an
appearance].”).
¶29 	Though we find this liberal definition of “appear” to be
laudable in its theoretical effort to save a party from default
judgment, such a loose and nebulous definition of the word
“appear” may lead to a lack of clarity, practical difficulty, and
inconsistent results as to what conduct and level of participation
is needed to “appear.”
¶30 	Because of the practical challenges and burdensome fact-
specific inquiries required by the informal contacts rule, the
Seventh Circuit, and a minority of other jurisdictions “ha[ve]
rejected the idea that a claimant needs to give [rule 5] notice to
anyone who has not made a formal appearance in the action.” 	10
Moore’s Federal Practice § 55.33[4][b]; see also Zuelzke Tool &
Eng’g Co. Inc. v. Anderson Die Castings, Inc., 925 F.2d 226, 230
(7th Cir. 1991) (rejecting a broad definition of appearance in
favor of a bright-line rule requiring parties to make a formal
submission to the district court); Plaza del Lago Townhomes Ass’n,
Inc. v. Highwood Builders, L.L.C., 148 P.3d 367, 371 (Colo. App.
2006) (concluding “communication with the court is required” and
that the “phrase ‘appeared in the action’ . . . requires that a
defendant communicate with the court . . . that the defendant is
aware of the proceedings and intends to participate in them”);
Town & Country Kids, Inc. v. Protected Venture Inv. Trust #1, 178
F.R.D. 453, 455 (E.D. Va. 1998) (“Requiring a party to make at
least some submission to the district court to apprise the court
of a fact pertinent to its determination, i.e., whether that party
has an interest in defending the suit.”). 	Under this narrower
definition, a party must make a formal filing or submission to the
district court in order to make an appearance under rule 5. 	Once
a party formally files or submits a pleading to the court, it is
entitled to notice of all activity throughout the proceedings, and
no default judgment may be entered without first serving the
defaulting party. 	See Zuelzke, 925 F.2d at 230-31.
¶31 	Although the formal filing approach and the informal
contacts approach adhere to competing policy justifications, we
note that both definitions of “appear” share two common features.
First, the party claiming to have appeared must have done
something; just wishing to appear will not make it so. 	Second,
the acts that are claimed to constitute the appearance must be
communicated to or apprehended by someone. 	The difference between
the approaches centers on to whom the communication must be made.
In making this determination, we must consider the context of the
rule as a rule of civil procedure.

11 	No. 20080699
¶32 	Notably, rules of civil procedure govern the manner in
which civil disputes are presented to and decided by our courts.
Rule 5 is a rule promulgated by this court to govern judicial
actions. 	We must honor this contextual imperative in interpreting
the rule.
¶33 	When we examine the word “appear” in its context, we
find the formal filing approach to be most consistent with the
purpose of our rules of civil procedure. 	See 10 Moore’s Federal
Practice § 55.33[4][b]. 	Requiring a party to make a formal filing
or submission to the court creates a bright-line rule that “is
sensible and easy to administer.” 	Id. 	The formal filing approach
is “the better linguistic and practical argument,” and sends a
clear message to parties as to what is required to make an
appearance. 	Id. 	We find that this specific and more definite
meaning of “appear” best promotes our objective “that the rules be
understood, and applied, with clarity and consistency.” 	State v.
Todd, 2006 UT 7, ¶ 8, 128 P.3d 1199. 	Indeed, requiring a formal
filing as a predicate to an appearance under rule 5 will leave no
question in the minds of plaintiffs, defendants, or courts as to
who has made an appearance in a case. 	See id. (“[The] defendant,
the court, the state, and others [should] be able to determine
[the meaning of a rule]”). 	This rule will eliminate case-by-case
litigation over whether a party’s informal actions rise to the
level of an appearance and best promotes efficient court
management by allowing court clerks to quickly and easily
determine whether the defaulting party has appeared in an action.
See Zuelzke, 925 F.2d at 230.
¶34 	We hold that in every instance, communications and
conduct between parties will only enjoy the status of an
appearance under rule 5 if marked by a formal filing with the
tribunal in which the relevant action is pending.
¶35 	Having determined that Utah follows the minority
approach to defining “appear” under rule 5(a)(2)(B), we now turn
to River Crossings’ claim that adhering to this minority approach
runs afoul of our Utah Rules of Professionalism and Civility.
II. 	THE UTAH STANDARDS OF PROFESSIONALISM AND CIVILITY SUPPLEMENT
THE RULES OF CIVIL PROCEDURE BY ENCOURAGING COUNSEL TO GIVE NOTICE
TO THE DEFAULTING PARTY BEFORE ENTERING DEFAULT JUDGMENT
¶36 	Utah Standard of Professionalism and Civility 14-301(16)
states, “[l]awyers shall not cause the entry of a default without
first notifying other counsel whose identity is known, unless
their clients’ legitimate rights could be adversely affected.”

No. 20080699 	12
¶37 	River Crossings contends that a formal filing
requirement is at odds with this standard of professionalism and
civility because an attorney may “act in full compliance with Rule
5(a)” when he fails to provide notice of default to opposing
counsel, “while at the same time directly violating his
professional obligations under Rule 14-301(16).” 	River Crossings
argues that this precise conflict occurred in this case.
¶38 	Arbogast disagrees, asserting its attorney complied with
both the Utah Rules of Civil Procedure and the Utah Standards of
Professionalism and Civility because before filing for default,
Arbogast’s counsel sent a letter to River Crossings that provided
advance notice that it was time to file an answer to Arbogast’s
complaint.
¶39 	The court of appeals found no conflict between a formal
filing requirement under rule 5(a)(2)(B) of the Utah Rules of
Civil Procedure and the notification requirement under the Utah
Standards of Professionalism and Civility. 	Arbogast Family Trust
v. River Crossing, LLC, 2008 UT App 277, ¶ 21, 191 P.3d 39. 	It
reasoned that “a party can easily comply with the standards of
civility, even though service is not required under rule 5.” 	Id.
According to the court of appeals, counsel for Arbogast could have
complied with the Standards of Professionalism and Civility, even
without serving any papers, by simply calling, or sending a letter
to alert River Crossings that “default was imminent.” 	Id.
¶40 	We agree with the court of appeals’ assessment. 	A
party’s counsel can and should simultaneously comply with the
rules of civil procedure and the standards of professionalism and
civility. 	Our standards of professionalism and civility often
promulgate guidelines that are more rigorous than those required
by the Utah Rules of Civil Procedure and the Utah Code of
Professional Conduct. 	Adherence to those standards promotes
cooperation and resolution of matters in a “rational, peaceful,
and efficient manner.” 	Utah Standards of Professionalism and
Civility pmbl. 	The rules of civil procedure establish minimum
requirements that litigants must follow; the standards of
professionalism supplement those rules with aspirational
guidelines that encourage legal professionals to act with the
utmost integrity at all times. 	See Gus Chin, Utah Standards of
Professionalism and Civility: 	Standard 2 - Civility, Courtesy and
Fairness, 18 Utah Bar Journal 34, 35 (2005) (quoting Chief Justice
E. Norman Veasey, Making it Right: 	Veasey Plans Action to Reform
Lawyer Conduct, Bus. L. Today, Mar.-Apr. 1998, 42, 44) (“Ethics is
a set of rules that lawyers must obey. 	Violations of these rules
can result in disciplinary action or disbarment. 	Professionalism,

2 Like the court of appeals, we do not question the
sincerity of Arbogast’s counsel. 	Arbogast, 2008 UT App 277, ¶ 21
n.10. 	We recognize that Arbogast’s attorney believed its June 29
letter constituted sufficient notice of its intent to enter
default judgment against River Crossings and that Arbogast’s
attorney believed that this was all that was required under the
rules of civil procedure and the Utah Standards of
Professionalism and Civility. 	We do not fault Arbogast for its
assumption; rather, we seek to make clear for future cases what
is recommended of lawyers under our Standards of Professionalism
and Civility.
13 	No. 20080699
however, is not what a lawyer must do or must not do. 	It is a
higher calling of what a lawyer should do to serve a client and
the public.”).
¶41 	In this case, we interpret Utah Rule of Civil Procedure
5(a) to require parties to serve notice of pleadings and papers to
all parties who have formally appeared before the court in which
the matter is pending. 	Although not required by rule 5, our
standards of professionalism and civility further advise lawyers
to give notice of default to known parties before entering notice
of default, whether or not the parties have made a formal
appearance. 	Utah Standards of Professionalism and Civility
14-301(16). 	Adhering to such a practice is easy, promotes
fairness, and reduces the number of motions to set aside default
judgments filed under Utah Rule of Civil Procedure 60.
¶42 	In this case, we find that although Arbogast complied
with rule 5 of the Utah Rules of Civil Procedure, its attorney did
not fully comply with the Utah Standards of Professionalism and
Civility. 2 	Under this standard, Arbogast’s counsel should have
notified River Crossings before entering default judgment. 	As the
court of appeals suggested, such a burden is not onerous. 	See
Arbogast, 2008 UT App 277, ¶ 21. 	Notification can be given in any
form: 	a phone call, a letter, an email, or other communication
will suffice. 	If, after receiving notification of a party’s
intent to enter default judgment, the defaulting party still fails
to make an appearance by filing a document with the court, the
non-defaulting party may enter default judgment without any
further action, notice, or service.
¶43 	We find that requiring attorneys to give opposing
parties a final opportunity to make a formal appearance before
entering default judgment is urged by our Standards of
Professionalism and Civility and is a simple step that promotes
fairness and efficiency in our judicial system. 	We encourage
lawyers and litigants to follow this standard, and we caution that

3 Utah Standards of Professionalism and Civility 14-301(16).
No. 20080699 	14
lawyers who fail to do so without justification may open
themselves to bar complaints or other disciplinary consequences if
their conduct also runs afoul of the Utah Rules of Professional
Conduct.
CONCLUSION
¶44 	Today we affirm the decision and reasoning of the court
of appeals and make clear that parties seeking to “appear” under
rule 5(a)(2)(B) of the Utah Rules of Civil Procedure must make a
formal filing or submission to the court. 	Although not required
by rule 5, we also find the Utah Standards of Professionalism and
Civility encourage parties’ attorneys to make some effort at final
notification to opposing parties whose identity is known before
attempting to enter default judgment.
¶45 	Chief Justice Durham, Justice Wilkins, and Justice
Parrish concur in Justice Nehring’s opinion.
---
DURRANT, Associate Chief Justice, concurring:
¶46 	I concur fully in the majority’s conclusion, but write
separately because I would support incorporating the requirements
for notice set forth in Utah Standard of Professionalism and
Civility 14-301(16) (“Standard 16”) into the Utah Rules of Civil
Procedure. 	I agree with the majority’s conclusion that the plain
language of Utah Rule of Civil Procedure 5(a)(2)(B) does not
require notice prior to entry of a default judgment if the party
in default has failed to formally appear. 	As the majority’s
opinion makes clear, however, requiring formal appearance creates
an incongruity between this rule of civil procedure and Standard
16. 	That standard states that “lawyers shall not cause the entry
of a default without first notifying other counsel whose identity
is known, unless their clients’ legitimate rights could be
adversely affected.” 3 	In light of this standard, I would support
amending the Utah Rules of Civil Procedure.
¶47 	I believe that Standard 16 is superior to the standard
set forth at rule 5(a)(2)(B). 	First, where an attorney knows the
identity of opposing counsel, requiring that the attorney notify
opposing counsel before causing the entry of a default judgment
will presumably lead to fewer default judgments. 	This will

4 See Mason v. Mason, 597 P.2d 1322, 1323 (Utah 1979)
(“[C]ourts should be liberal in granting relief against judgments
taken by default to the end that controversies may be tried on
the merits.”).
5 McKean v. Mountain View Mem’l Estates, 411 P.2d 129, 130
(Utah 1966).
6 Supra ¶ 25.
7 Supra ¶¶ 25, 27-28.
8 Utah Standards of Professionalism and Civility pmbl.
15 	No. 20080699
advance the general policy of resolving disputes on their merits. 4
The benefits of this are clear--parties will be 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.” 5
¶48 	Second, Standard 16 will likely be easier to administer
than the “informal contacts” standard adopted by many
jurisdictions. 	As the majority points out, examining whether a
party’s conduct taken as a whole indicates the party’s intent to
participate in a lawsuit would be highly fact-intensive and would
require case-by-case application. 6 	Even given the relative
complexity of this standard, it has considerable support. 	Most
jurisdictions that have examined the issue have opted to employ
this “informal contacts” rule to promote resolution of cases on
their merits. 7 	The test set forth in Standard 16 will almost
certainly be easier to administer than the test adopted by most
jurisdictions because inquiring whether an attorney knew the
identity of opposing counsel is simpler than weighing the relative
value of an opposing party’s informal conduct as it relates to a
lawsuit.
¶49 	In short, I believe that incorporating Standard 16 into
the Rules of Civil Procedure would give rise to substantial
benefits. 	These benefits would likely outweigh the costs
associated with administering it--indeed, most jurisdictions that
have considered the question have adopted a more burdensome
standard in pursuit of the same benefits.
¶50 	The Utah Standards of Professionalism and Civility were
enacted to advance “the hallmarks of a learned profession
dedicated to public service.” 8 	I believe that incorporating
Standard 16 into the Utah Rules of Civil Procedure would
contribute greatly to this goal. 	Accordingly, while I agree with

No. 20080699 	16
the majority, I would support an amendment of the Utah Rules of
Civil Procedure that would incorporate the notice requirements set
forth in Standard 16, and would refer this issue to our Advisory
Committee on the Rules of Civil Procedure for study and
recommendation.
---
¶51 	Chief Justice Durham and Justice Parrish concur in
Associate Chief Justice Durrant’s concurring opinion.
---