Christianson v. Goucher

• Decision Date: 24 December 2013
• Docket Number: No. WD 75791.,WD 75791.
• Parties: Timothy CHRISTIANSON, Respondent, v. Ron GOUCHER d/b/a Goucher Trucking, Appellant.
• Court: Missouri Court of Appeals

414 S.W.3d 584

Timothy CHRISTIANSON, Respondent,

v.Ron GOUCHER d/b/a Goucher Trucking, Appellant.

No. WD 75791.

Missouri Court of Appeals,

Western District.

Oct. 1, 2013.

Motion for Rehearing and/or Transfer to the Supreme Court Denied Oct. 29, 2013.

Application for Transfer Denied Dec. 24, 2013.

Tom Hershewe, Kansas City, for Respondent.

Theresa S. Hall, Kansas City, for Appellant.

Before Division I: VICTOR C. HOWARD, Presiding Judge, JOSEPH M. ELLIS, Judge and ANTHONY REX GABBERT, Judge.

VICTOR C. HOWARD, Judge.

Ron Goucher d/b/a Goucher Trucking appeals from the judgment of the trial court denying his Rule 74.06 motion to quash service and/or set aside a default judgment entered in favor of Timothy Christianson. He claims that the default judgment was void for lack of personal jurisdiction and for violating his procedural and/or substantive due process rights. The judgment is affirmed.

Background

On May 3, 2010, Christianson filed suit against Goucher and Thomas Borden seeking damages for personal injuries sustained in an automobile accident involving several vehicles. The petition asserted a claim for negligence against Borden, who was driving a 1994 dump truck owned by Goucher, and claims for respondeat superior, negligent hiring, and negligent supervision against Goucher.

Christianson hired a private process server, Brent Burmeister, to serve Goucher and Borden. Christianson filed a motion for appointment of special process server on the same day that he filed his petition. The circuit clerk issued the summons three days later on May 6. Burmeister filed the server's return on July 23, 2010. On the return, he indicated that he served Goucher on May 10, 2010, at 10:00 a.m. at 5019 S. Emery, Kansas City, Missouri, Jackson County. The return was not notarized and did not include an affidavit of the process server.

Goucher never appeared in the case, and on April 1, 2011, the trial court held a default hearing. Christianson testified at the hearing and introduced several medical records and bills and the police report from the accident. Following the hearing, Christianson voluntarily dismissed his claim against Borden, and the trial court entered a default judgment against Goucher in the amount of $745,000 plus post-judgment interest.

On August 16, 2012, Goucher filed a motion to quash service and/or set aside the default judgment pursuant to Rule 74.06. He argued that the default judgment was void for lack of personal jurisdiction due to deficient proof of service. Specifically, he asserted that the private process server failed to make the required affidavit under Rule 54.20(a)(2). He also argued the default judgment was void for violating due process because it awarded excessive damages, he did not receive notice of the amount of damages claimed, and he did not receive timely notice that a default judgment had been entered against him.

On September 10, 2012, Christianson filed a response to Goucher's motion to set aside and a motion to amend the return to cure the defect in it pursuant to Rule 54.22. He attached to the motion to amend the process server's affidavit of service in which Burmeister stated that he delivered to Goucher copies of the summons and the petition on May 10, 2010, at 10:00 a.m. at 5019 S. Emery, Kansas City, MO in Jackson County. He also attached the June 2, 2011 affidavit of Goucher in which Goucher conceded that he was served with a copy of the lawsuit on May 10, 2010, at 10:00 am. at 5019 S. Emery, Kansas City, Missouri, as indicated on the server's original return.

On September 28, 2012, the trial court entered an order directing Christianson to file his amended return of service within fourteen days. On October 10, 2012, Christianson filed a notarized amended return of service that included the special process servicer's affidavit of service. On October 22, 2012, the trial court entered its amended order and judgment denying Goucher's motion to quash service and/or set aside the default judgment. This appeal by Goucher followed.

Standard of Review

Generally, the trial court's ruling on a motion to set aside a judgment under Rule 74.06 is reviewed for abuse of discretion. Sieg v. Int'l Envtl. Mgmt., Inc., 375 S.W.3d 145, 149 (Mo.App. W.D.2012). However, whether a judgment should be vacated because it is void is a question of law that is reviewed de novo. Id.

Point One

In his first point on appeal, Goucher contends that the trial court erred in allowing Christianson to correct the deficiencies in the process server's original return and then denying his motion to set aside the default judgment under Rule 74.06. He asserts that the default judgment was void for lack of personal jurisdiction. Specifically, he argues that Christianson's failure to comply with the return of service requirements in Rule 54.20 deprived the court of jurisdiction to issue any rulings in this case.

Rule 74.06(b)(4) provides that a “court may relieve a party or his legal representative from a final judgment or order ... [if] the judgment is void.” “Courts favor finality of judgments, so the concept of a void judgment is narrowly restricted.” Sieg, 375 S.W.3d at 149. A judgment is void under Rule 74.06(b)(4) only if the trial court that rendered it lacked subject matter jurisdiction, lacked personal jurisdiction, or entered it in a manner that violated due process. Id.

Personal jurisdiction refers to the power of a court to require a person to respond to a legal proceeding that may affect the person's rights or interests. J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009). Such power flows from the court's conformity with due process. Kerth v. Polestar Entm't, 325 S.W.3d 373, 389 (Mo.App. E.D.2010)(citing J.C.W. ex rel. Webb, 275 S.W.3d at 253). “The existence of personal jurisdiction depends upon the presence of reasonable notice to the defendant that an action has been brought and a sufficient connection between the defendant and the forum as to make it fair to require defense of the action in the forum.” State ex rel. Sperandio v. Clymer, 581 S.W.2d 377, 381 (Mo. banc 1979).

Service of process is the fulfillment of the due process requirement of notice. Silinzy v. Williams, 247 S.W.3d 595, 599 (Mo.App. E.D.2008). “Only by service of process authorized by statute or rule (or by appearance) can a court obtain jurisdiction to adjudicate the rights of a defendant.” Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000). “[T]he underlying principle of a summons is to place a defendant on notice of an action filed against the defendant to enable the defendant to appear and defend against the action.” Hometown Lumber & Hardware, Inc. v. Koelling, 816 S.W.2d 914, 916 (Mo. banc 1991).

Goucher argues that the process server's original return failed to comply with the return of service requirements of Rule 54.20(a)(2); therefore, the trial court lacked personal jurisdiction to issue any rulings in this case. Rule 54.20(a)(2) provides that if service of process “is made by a person other than an officer such person shall make affidavit as to the time, place and manner of service thereof.” While the process server indicated on the original return that he served Goucher on May 10, 2010 at 10:00 a.m. at 5019 S. Emery, Kansas City, Missouri, Jackson County, the return was not notarized and did not include an affidavit of the process server. Goucher relies on three cases, T.W.I. Investments, Inc. v. Pacific Aggregates, Inc., 726 S.W.2d 807 (Mo.App. E.D.1987); See v. Nesler, 692 S.W.2d 7 (Mo.App. E.D.1985); and Industrial Personnel Corp. v. Corcoran, 643 S.W.2d 816 (Mo.App. E.D.1981), to support his argument that the defective original return in this case deprived the trial court of personal jurisdiction. In T.W.I. Investments and Nesler, the Eastern District held that the absence of an affidavit in the return as required by Rule 54.20(a)(2) deprives a court of personal jurisdiction. 726 S.W.2d at 809–10,692 S.W.2d at 8. In Industrial Personnel Corp., it held that in the absence of certification as to the authority to serve process required by Rule 54.20(b)(1), the service was manifestly deficient and did not confer personal jurisdiction. 643 S.W.2d at 818.

The cases relied on by Goucher, however, cite or trace back to dicta in In re Marriage of Bradford, 557 S.W.2d 720 (Mo.App.1977). After discussing the return of service and its failure to comply with Rule 54.20(b)(1), the Springfield District held that “the defense of lack of personal jurisdiction was not presented nor mentioned, and ... must be considered waived.” Id. at 729. Nevertheless, the court stated, “because the return was deficient, the service of process was not effective to confer personal jurisdiction.” Id. Significantly, this dicta was unsupported by any authority.

Moreover, none of the cases relied on by Goucher discuss the effect of amendment of a defective return of service to comport with the facts of service or the Missouri Supreme Court cases that hold that service, not the return, establishes jurisdiction. Rule 54.22(a) provides, “The court may in its discretion allow any process, return or proof of service thereof to be filed or amended at any time unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.” See also§ 506.190, RSMo 2000. Under the rule, the return of service is “considered prima facie evidence of personal service upon a party.” State ex rel. Dep't of Soc. Servs., Div. of Child Support Enforcement v. Stone, 71 S.W.3d 643, 646 (Mo.App. W.D.2002). “[A] return may be amended to conform to the facts.” Eagle Star Group, Inc. v. Marcus, 334 S.W.3d 548, 555 (Mo.App. W.D.2010). The time when a return can be amended is not limited to before the judgment is entered; rather, it may be amended after judgment. In re Marriage of Benz, 669 S.W.2d 274, 278 (Mo.App. E.D.1984). “When a return of service is amended, it relates back to the date...