Hoffman v. Quality Chrysler Plymouth Sales, Inc., 50004

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PUDLOWSKI; CRANDALL, P.J., and KELLY
• Citation: 706 S.W.2d 576
• Parties: Linda M. HOFFMAN and Norton L. Hoffman, Plaintiffs-Appellants, v. QUALITY CHRYSLER PLYMOUTH SALES, INC., Quality Volkswagen Sales, Inc., and Mike Sheahan, Defendants-Respondents.
• Docket Number: No. 50004,50004
• Decision Date: 11 March 1986

Page 576

706 S.W.2d 576 Linda M. HOFFMAN and Norton L. Hoffman, Plaintiffs-Appellants,
v.
QUALITY CHRYSLER PLYMOUTH SALES, INC., Quality Volkswagen
Sales, Inc., and Mike Sheahan, Defendants-Respondents. No. 50004. Missouri Court of Appeals,
Eastern District,
Division Four. March 11, 1986.

Page 578

Carla Kay Evans, St. Louis, for plaintiffs-appellants.

David O. Danis, St. Louis, for defendants-respondents.

PUDLOWSKI, Judge.

Linda and Norton Hoffman, appellants, appeal from the trial court's order setting aside a default judgment entered against Quality Chrysler Plymouth Sales, Inc., Quality Volkswagen Sales, Inc., and R. Michael Sheahan, respondents. We reverse and remand.

On August 15, 1984, the Hoffmans purchased a 1983 Volkswagen Quantum from Mr. Sheahan, president of Quality Chrysler Plymouth and Quality Volkswagen. In exchange for the Volkswagen, the Hoffmans traded in their 1975 Chevrolet Impala and paid $10,000 by check. When they bought the car, Mr. Sheahan gave them a title application and told Mrs. Hoffman that the actual title would be mailed to her in two days.

At the time of purchase, however, Mrs. Hoffman was unaware that the respondents did not have title to the car. The Volkswagen sold to them was pledged as security to the Boatmen's Hampton Bank in connection with loans from the bank to the respondents.

When the Volkswagen's title failed to arrive, Mrs. Hoffman phoned Mr. Sheahan who repeated his promise to send the title. Because her efforts were unsuccessful, Mrs. Hoffman hired a lawyer to obtain the car's title or a refund of her trade-in and the sum paid. Thereafter, the Hoffmans' attorney made numerous calls to Mr. Sheahan. These contacts resulted in the return of $5,000 to the Hoffmans.

On October 3, 1984, the Hoffmans filed their action against the respondents in three counts: fraud, breach of contract, and conversion. The summons in this proceeding was shown by the sheriff's return to have been served on Mr. Sheahan, individually, and in his capacity as president of both respondent corporations on October 12, 1984, at 9:10 a.m. at 4315 South Kingshighway. Thereafter, the respondents never filed an answer. On November 21, 1984, default and inquiry was granted and a hearing on damages was set for December 3, 1984. ¹

On December 3, 1984, the Honorable Gary M. Gaertner rendered a default judgment against all three respondents, jointly and severally, on the Hoffmans' cause of action based upon fraud. The trial court also granted damages of $8,350 with interest at the rate of 9% from the date of purchase, $1,500 in attorney's fees, and $25,000 in punitive damages. The court further dismissed the Hoffmans' actions for breach of contract and conversion without prejudice.

On January 11, 1985, the Honorable George A. Adolf entered another judgment

Page 579

on the Hoffmans' cause of action. ² His order repeated the above judgment and recorded that the parties appeared by their respective attorneys [sic], that trial by jury was waived, and that the Hoffmans dismissed their breach of contract and conversion counts without prejudice.

On February 28, 1985, the respondents filed a motion to set aside the judgment dated January 11, 1985, and in the alternative, a writ of error coram nobis in which the respondents denied process. On March 14, 1985, a hearing was held and over the objection of the Hoffmans' attorney, Mr. Sheahan testified that he had not received service on behalf of the respondent corporations or for himself. Thereafter, on April 8, 1985, the Honorable George A. Adolf sustained the respondents' motion to set aside the default judgment.

On appeal, the Hoffmans contend the trial court erred in sustaining the respondents' motion to set aside. Although a number of issues are raised, we need not look beyond the resolution of two questions: (1) whether a sheriff's return may be challenged by a motion to set aside a judgment and (2) whether the trial court's award of attorney's fees constituted an error patent on the face of the record sufficient to sustain a motion to set aside under Rule 74.32.

The Hoffmans first assert that the trial court erred in setting aside the default judgment because a motion to set aside is not the proper avenue to challenge service of process. They suggest the respondents' only remedy is an action against the sheriff's bond. We disagree.

The Hoffmans' argument correctly states the law before Rule 54.22 was amended by the legislature. Laws of 1984, H.B. 947, Section 1 at 792 (effective August 13, 1984). ³ Under old Rule 54.22, Missouri courts long followed the common law or verity rule that a sheriff's return of process was conclusive on the parties to the suit in which service was issued. Hallowell v. Page, 24 Mo. 590 (1857); State ex rel. Seals v. McGuire, 608 S.W.2d 407, 408 (Mo. banc 1980). The verity rule applied equally to proceedings at law and in equity. Roberts v. King, 641 S.W.2d 475, 477 (Mo.App.1982). Under this rule, the sheriff's return could not be impeached by parol evidence. State ex rel. Moore v. Morant, 266 S.W.2d 723, 726 (Mo.App.1954). The only exception recognized by the courts was where the plaintiff aided or knowingly took advantage of a false return. In the Marriage of Benz, 669 S.W.2d 274, 277 (Mo.App.1984). Otherwise, the only remedy of a party denying service was an action for a false return against the sheriff on his bond. O'Neill v. Winchester, 505 S.W.2d 135, 137 (Mo.App.1974).

Under Rule 54.22, as amended, the legislature discarded the principle that the sheriff's return must be accepted as verity in favor of the more liberal rule that the return is only prima facie evidence of the facts recited therein. Rule 54.22 now permits "the party served ... to show the true facts of service and impeach the return when the return does not comport with the facts as found by the court." If the court finds that 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.

Although the legislature's amendment of Rule 54.22 permits the direct impeachment of a sheriff's return, the legislature did not address the question of what quantum of proof is necessary to do so. Our review of the jurisprudence of our sister states reveals the view that a proper return of service is presumed to be true and accurate until the presumption is overcome by clear and convincing evidence. See 62 Am.Jur.2d, Process Section 181 at 960 (1972); 72 C.J.S., Process Section 102(b) at 1144-1145 (1951).

Page 580

In Illinois, the sheriff's return is prima facie evidence that process was properly served upon the defendant in person. Four Lakes Management & Development Co. v. Brown, 129 Ill.App.3d 680, 84 Ill.Dec. 803, 806, 472 N.E.2d 1199, 1202 (1984). Before service may be impeached, every presumption in favor of the return is indulged. Miura v. Famous Cab Co., 107 Ill.App.3d 803, 63 Ill.Dec. 599, 603, 438...