Cook v. Polineni

• Decision Date: 28 April 1998
• Docket Number: No. 72205,72205
• Citation: 967 S.W.2d 687
• Parties: Denise Zwick COOK, Plaintiff-Appellant, v. Subbarao POLINENI, M.D., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 687

967 S.W.2d 687

Denise Zwick COOK, Plaintiff-Appellant, v. Subbarao POLINENI, M.D., Defendant-Respondent.

No. 72205.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 28, 1998.

Roger G. Brown & Associates, Keith W. Brunstrom, Jefferson City, Tolin & Zevan, L.L.C., St. Louis, for appellant.

Seibel & Eckenrode, P.C., Robert C. Seibel, St. Louis, for respondent.

HOFF, Judge.

Denise Zwick Cook (Plaintiff) appeals from the trial court's Amended Order and Judgment ¹ setting aside a $700,000 default judgment entered against Subbarao Polineni, M.D., (Defendant) in July 1995. We affirm.

In October 1994, Plaintiff filed her medical malpractice petition against Defendant seeking damages for injuries she allegedly sustained as the result of surgical procedures and related care provided to her by Defendant. The return of service of summons states the deputy sheriff served Defendant at 10:05 a.m. on October 13, 1994, by delivering a copy of the petition "to Carol Benthal/Rec who accepted service thereof for and on behalf of Subbarao Polineni/MD 3655 Vista." When Defendant did not file a responsive pleading or entry of appearance, Plaintiff filed a motion for default judgment in April 1995. The trial court conducted "an inquiry hearing" on July 13, 1995, at which Defendant did not appear, and entered judgment against Defendant in the amount of $700,000 plus costs.

On August 8, 1996, approximately two days after Defendant reportedly first learned of the lawsuit, Defendant filed a motion to set aside the default judgment. ² After an evidentiary hearing in January 1997, the trial court, in relevant part, set aside the default judgment under Rule 74.06(b)(4) upon finding the judgment was void. ³ Specifically, the trial court concluded the judgment was void because: (1) Defendant is an individual who must be served pursuant to Rule 54.13(b)(1); ⁴ (2) the prima facie showing of proper service based upon the sheriff's return and Rule 54.22(a) ⁵ was rebutted by clear and convincing evidence corroborating Defendant's denial of service, because "several witnesses testified convincingly that [Defendant] never authorized ... Benth[a]l to accept service on his behalf, and no one testified that he had"; and, therefore, (3) Benthal was not authorized to accept service for Defendant. Accordingly, the trial court set aside the default judgment and reinstated the case on the trial docket. This appeal followed.

In her sole point, Plaintiff contends the trial court erred in ruling the default judgment was void for lack of personal service of process because Defendant failed to rebut the prima facie showing of proper service with clear and convincing evidence that Benthal was not an agent authorized by appointment to receive service of process on his behalf.

We have jurisdiction to address this appeal because the motion to set aside the default judgment and the trial court's ruling setting the default judgment aside were filed more than thirty days after entry of the default judgment. Continental Basketball Ass'n v. Harrisburg Professional Sports, Inc., 947 S.W.2d 471, 473 (Mo.App. E.D.1997); Gantz v. Director of Revenue, Mo., 921 S.W.2d 156, 157 (Mo.App. E.D.1996); Mid-States Tubulars, Inc. v. Maverick Tube Corp., 735 S.W.2d 142, 145-46 (Mo.App. E.D.1987). The appeal presents a question of law we review independently, rather than for abuse of discretion, because the issue on appeal focuses on Defendant's contention the default judgment was void for lack of personal jurisdiction. Laser Vision Ctrs., Inc. v. Laser Vision Ctrs. Int'l, SpA, 930 S.W.2d 29, 31 (Mo.App. E.D.1996).

Rule 74.06(b)(4) permits a court on motion to relieve a party from a final judgment or order, on such terms as are just, when the judgment is void. That Rule is applicable to default judgments. Williams v. Williams, 932 S.W.2d 904, 905 (Mo.App. E.D.1996); In re the Marriage of Brown, 878 S.W.2d 94, 96 (Mo.App. E.D.1994). A judgment entered against a defendant by a court lacking personal jurisdiction over that defendant is void. ⁶ K & K Invs., Inc. v. McCoy, 875 S.W.2d 593, 596 (Mo.App. E.D.1994).

Service of process is a prerequisite to the exercise of personal jurisdiction over a defendant. Id. Personal service within Missouri on an individual defendant may be effectuated by delivering a copy of the summons and petition to the individual personally, by leaving a copy of the summons and petition at the individual's dwelling house or usual place of abode with a family member over the age of fifteen years, or "by delivering a copy of the summons and of the petition to an agent authorized by appointment or required by law to receive service of process." Section 506.150.1(1) RSMo 1994 (emphasis added); Rule 54.13(b)(1). A return of service is prima facie evidence of service. Rule 54.22(a). To impeach a return of service there must be

clear and convincing evidence corroborating the denial of the party alleged to have been served....

* * *

... In Missouri, clear and convincing evidence is that 'which tilts the scales in the affirmative when weighted against evidence in opposition; evidence which clearly convinces the fact finder of the truth of the proposition to be proved.' In the Interest of J.A.J., 652 S.W.2d 745, 748 (Mo.App.1983).

Hoffman v. Quality Chrysler Plymouth Sales, Inc., 706 S.W.2d 576, 580 (Mo.App. E.D.1986); see also Van Vooren v. Schwarz, 899 S.W.2d 594, 595 (Mo.App. E.D.1995) ("Clear and convincing evidence corroborating the denial of the party alleged to have been served is necessary to impeach the verity of the return" of service). When a "court finds service as reflected by the sheriff's return was not correct, the court may set aside the judgment, modify it, or take whatever action justice requires." Hoffman, 706 S.W.2d at 579.

Neither the statute nor the rule defines the phrase "agent authorized by appointment" to accept service of process on behalf of an individual defendant. Plaintiff contends the trial court erroneously concluded Defendant must expressly authorize Benthal to accept process on his behalf. Plaintiff urges that, under the circumstances, Benthal had at least implied authority to accept service of process for Defendant.

An agency relationship may be created by written words, spoken words, or other conduct of the principal "which, reasonably interpreted, causes the agent to believe that the principal desires [the agent] so to act on the principal's account." Leidy v. Taliaferro, 260 S.W.2d 504, 506-07 (Mo.1953) (internal quotation marks and emphasis omitted) (quoting Restatement, Agency, section 26).

[A] principal ... is responsible for the acts and agreements of its agents which are within their actual or apparent authority.... Actual authority may be express or implied. Express authority is created when the principal explicitly tells the agent what to do. Implied authority consists of those powers incidental and necessary to carry out the express authority.

Nichols v. Prudential Ins. Co. of America, 851 S.W.2d 657, 661 (Mo.App. E.D.1993) (citations omitted).

The evidence reveals that Benthal had neither express nor implied authority to accept service of process on behalf of Defendant. The address where the summons and petition were served (3655 Vista) was office space within Bethesda Hospital shared by: Defendant, a hand surgeon; Dr. Babu R. Dandamudi, who specialized in geriatrics and family practice; and Dr. Ramarao Kaza, who specialized in urology. It is undisputed that Benthal was employed and paid only by Dandamudi and was the person most regularly at the office suite, between the hours of 8:00 a.m. and 4:00 p.m.

Each doctor had his own schedule of presence in the office suite, his own practice, and his own contract with Bethesda Hospital regarding rental of the space. Defendant was there on a regular basis up to two afternoons a week, ⁷ and at other times based upon appointment. Defendant and his assistant, Margaret Smith, usually arrived at the same time, at approximately 4:00 p.m., unless surgery obligations required Defendant to arrive at a different time. Smith ordinarily opened Defendant's mail, maintained his schedule, and paid bills related to Defendant's practice. Defendant instructed Smith not to accept service on behalf of Defendant.

The office activities Benthal performed for Defendant consisted of conferring with his assistant, picking up the mail and placing it on his assistant's desk, accepting certified mail, and answering his separate telephone line. ⁸ Neither Defendant nor his assistant expressly authorized Benthal to accept service on behalf of Defendant. Benthal testified she had not been given instructions on the receipt of service on behalf of Defendant. In fact, she testified she assumed she was not to receive any documents, other than mail, for Defendant. Prior to the receipt of service on behalf of Defendant in this case, ⁹ Benthal had accepted service of process on behalf of Dandamudi on at least one occasion, with his permission.

This evidence clearly establishes that Benthal was an employee of Dandamudi only and performed only very limited tasks for Defendant. Those tasks expressly authorized by Defendant included the receipt of his regular and certified mail, the answering of occasional telephone calls, and speaking with his assistant. None of these tasks encompass the power to receive service of process on behalf of Defendant. Therefore, Benthal did not have express actual authority to accept service of process on Defendant's behalf. Moreover, Benthal did not have implied actual authority to accept service of process on his behalf because the power to accept service of process was not "incidental and necessary to carry out the express authority" Defendant had given her.

Furthermore, the evidence reveals nothing Defendant did by word or conduct to indicate Benthal had apparent authority to accept service of process on Defendant's behalf.

[A]pparent...