Opinion
Case No. 20100352-CA.
Filed September 2, 2010. Not For Official Publication
Appeal from the Third District, Salt Lake Department, 080918693 The Honorable Vernice Trease.
Robert A. Berkowitz, Anderson, South Carolina, Appellant Pro Se.
Thomas T. Billings and Seth M. Mott, Salt Lake City, for Appellee.
Before Judges Davis, Orme, and Voros.
MEMORANDUM DECISION
Robert A. Berkowitz appeals the district court's order granting Advanta Bank Corp.'s motion for summary judgment and denying his motion to dismiss. This matter is before the court on Advanta's motion for summary disposition. Berkowitz did not file a response to the motion.
Berkowitz first argues that the district court did not have subject matter jurisdiction because there was no valid contract. "The district court has original jurisdiction in all matters civil and criminal, not excepted in the Utah Constitution and not prohibited by law." Utah Code Ann. § 78A-5-102(1) (2008). This was a civil matter involving the alleged breach of a contract. Accordingly, the district court had subject matter jurisdiction over the case.
Similarly, Berkowitz argues that the district court was not a proper venue for the action. In so doing, Berkowitz confuses subject matter jurisdiction with venue. Jurisdiction concerns whether the district courts in the state of Utah have the authority to hear an action. Venue, on the other hand, deals with which district court within the state is the proper location for the case. In the present case, the district court was a proper venue.See Utah Code Ann. § 78B-3-304(3) (2008) ("If none of the defendants reside in this state, the action may be commenced and tried in any county designated by the plaintiff in the complaint."). Thus, venue was proper in the third district.
Berkowitz next asserts that the district court lacked personal jurisdiction over him because he does not transact any business within Utah and does not contract to supply goods or services in Utah. In so arguing, Berkowitz is asserting that he does not have minimum contacts with the state of Utah. However, this analysis is inapplicable because Berkowitz consented to personal jurisdiction in this state. See Phone Directories Co. Inc. v. Henderson, 2000 UT 64, ¶ 14, 8 P.3d 256 (determining that a forum selection clause will be upheld when there is a rational nexus between the forum selected and "either the parties to the contract or the transactions that are the subject matter of the contract"). Further, the Utah Supreme Court has determined that one party's connection to Utah is sufficient to satisfy the rational nexus inquiry. See Jacobsen Constr. Co. v. Teton Builders, 2005 UT 4, ¶ 43, 106 P.3d 719. The district court determined that Advanta has sufficient connections to the state of Utah to satisfy the rational nexus test. Berkowitz failed to address the rational nexus test in the district court and failed to address its applicability to the facts of this case. Accordingly, we do not address the issue on appeal. See Holman v. Callister, Duncan Nebeker, 905 P.2d 895, 899 (Utah Ct. App. 1995) (stating that ordinarily a party must raise an issue with the district court in order preserve the claim for appeal).
Berkowitz next asserts that the district court erred in determining that he was properly served. The record demonstrates that on December 1, 2008, Advanta effected service of process on Berkowitz. This service of process is supported by an affidavit of service, which clearly states that Berkowitz was served by means of service at his "usual place of abode" on a "person of suitable age and discretion there residing." See Utah R. Civ. P. 4(d)(1)(A). This court has previously determined that once a party presents the prima facie evidence of proper service of process the burden shifts to the other party to prove by clear and convincing evidence that service of process was invalid.See Classic Cabinets v. All Am. Life Ins. Co., 1999 UT App 88, ¶ 11, 978 P.2d 465. Here, Berkowitz failed to present any affidavit or other sworn evidence to demonstrate by clear and convincing evidence that service was improper. Accordingly, the district court properly denied Berkowitz's motion to dismiss on the ground of improper service of process.
Finally, Berkowitz asserts that Advanta failed to set forth sufficient evidence to support its cause of action for breach of contract. Berkowitz's claim is based solely upon the fact that there is no signed agreement to reflect a contract. However, in Utah, a credit agreement need not be signed to be enforceable as long as certain preconditions are met. See Utah Code Ann. § 25-5-4(e) (2007). Here, Advanta alleged all such facts in both its complaint and motion for summary judgment. Further, it offered affidavits to support the allegations. Berkowitz never offered any affidavits or other evidence to create an issue of material fact. See Utah R. Civ. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the pleadings, but the response, by affidavits, or as otherwise provided by this rule, must set forth specific facts showing that there is a genuine issue for trial."). As such, there were no disputed issues of material fact. Those material facts, in turn, support the district court's determination that Advanta was entitled to judgment as a matter of law.
Affirmed.
James Z. Davis, Presiding Judge, Gregory K. Orme, Judge, J. Frederic Voros Jr., Judge.