Hoffman v. Quality Chrysler Plymouth Sales, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: PUDLOWSKI; CRANDALL, P.J., and KELLY
• Citation: Hoffman v. Quality Chrysler Plymouth Sales, Inc., 706 S.W.2d 576 (Mo. App. 1986)
• Decision Date: 11 March 1986
• Docket Number: No. 50004,50004
• 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.

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.

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 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).

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 N.E.2d 530, 534 (1982). Indeed, Illinois courts recognize that the stability of judicial proceedings require that the return of a sheriff made in due course of his official duty and under the sanction of his official oath should not be set aside merely upon the uncorroborated testimony of the person on whom the process was served but only upon clear and satisfactory evidence. Nibco, Inc. v. Johnson, 98 Ill.2d 166, 74 Ill.Dec. 618, 621, 456 N.E.2d 120, 123 (1983); Whitworth v. Morgan, 46 Ill.App.3d 292, 4 Ill.Dec. 823, 826, 360 N.E.2d 1198, 1201 (1977).

Likewise, in Florida, the sheriff's return of service is presumptively valid. Slomowitz v. Walker, 429 So.2d 797, 798 (Fla.App. 4 Dist.1983). A defendant may not impeach the return by simply denying service, but must present clear and convincing evidence to corroborate the denial. Id. at 799. Maryland courts also hold that the return of service is presumed to be true and accurate and a mere denial by a defendant, unsupported by corroborative evidence or circumstances, is not enough to impeach the return of the official process server. Ashe v. Spears, 263 Md. 622, 284 A.2d 207, 210 (1971), cert. denied, 406 U.S. 958, 92 S.Ct. 2061, 32 L.Ed.2d 344 (1972). The evidence must be clear and convincing. Guen v. Guen, 38 Md.App. 578, 381 A.2d 721, 725 (1978).

This is because the affirmative testimony of the official process server acting in the regular routine of duty without a motive to misrepresent must be preferred to the negative evidence of one claiming not to have been served, either for reasons of public policy or as a matter of probability, Sarlouis v. Firemen's Insurance Co., 45 Md. 241, 244 (1876).

Ashe, 284 A.2d at 210. ⁴

Having reviewed the decisions of the states where the sheriff's return is presumptively valid or prima facie evidence of service, we accept the rule that clear and convincing evidence corroborating the denial of the party alleged to have been served is necessary to impeach the verity of the return. We believe that clear and convincing proof is consistent with the legislature's intent to liberalize the harshness of old Rule 54.22 yet mindful of the amendment's effect on the integrity and conclusiveness of judicial proceedings. A lesser burden of proof would have a potentially destabilizing effect while the quantum of clear and convincing evidence follows from the well-settled presumption that an official duty, like service of process, has been regularly performed and from Rule 54.22's dictate that "[t]he return of service shall be considered prima facie evidence of the facts recited therein."

We therefore apply the standard of clear and convincing proof to the facts sub judice. 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). The respondents' evidence fails to meet this...