State ex rel. Burns v. Gillis

• Decision Date: 25 March 2003
• Docket Number: No. WD 61324.,WD 61324.
• Citation: 102 S.W.3d 66
• Parties: STATE ex rel. William BURNS, Relator, v. The Honorable Gregory B. GILLIS, Judge, Associate Circuit Court of Jackson County, Respondent.
• Court: Missouri Court of Appeals

Page 66

102 S.W.3d 66

STATE ex rel. William BURNS, Relator, v. The Honorable Gregory B. GILLIS, Judge, Associate Circuit Court of Jackson County, Respondent.

No. WD 61324.

Missouri Court of Appeals, Western District.

March 25, 2003.

Rebecca S. McGinley, Overland Park, KS, for relator.

Harlene J. Hipsh, Kansas City, MO, for respondent.

Before NEWTON, P.J., BRECKENRIDGE and SMART, JJ.

PATRICIA BRECKENRIDGE, Judge.

Relator William Burns filed a petition for a writ of mandamus in this court, seeking to compel Respondent, the Honorable Gregory B. Gillis, to set a trial date for his damages suit. In his petition, Mr. Burns claims that Judge Gillis has personal jurisdiction over the defendant in the damages suit because the defendant was properly served with process, and the failure to comply with a local rule regarding the timing of the filing of the return of service does not prohibit Judge Gillis from setting a trial date. In response, Judge Gillis argues that the lack of compliance with the local court rule precludes him from setting a trial date. Because this court finds that Judge Gillis has personal jurisdiction over the defendant and the lack of compliance with the local court rule regarding the timing of the filing of the return of service does not prohibit him from exercising his jurisdiction in the underlying action, this court's preliminary writ of mandamus is now made absolute.

Factual and Procedural Background

On October 19, 2001, Mr. Burns filed a petition with the Circuit Court of Jackson County, claiming property damage arising out of an automobile accident. On November 5, the court issued a summons against the defendant. The summons was served on the defendant on November 23 by a court services officer in Anchorage, Alaska, where the defendant was being held in a pre-trial detention facility. According to the summons, the defendant was to appear in the associate circuit division on December 5. The case was not docketed and a trial was not held on December 5, however, because the return of service had not yet been filed. On December 8, the return of service was filed.

On February 25, 2002, Mr. Burns filed a motion for entry of default judgment against the defendant. In support of his motion, Mr. Burns asserted that he was entitled to a default judgment because the defendant had not filed an answer or any responsive pleadings to the petition. On March 7, Judge Gillis denied Mr. Burns' motion for entry of default judgment because the return of service was not filed three days prior to the return date of December 5, in violation of Local Rule 63.1 of the Sixteenth Judicial Circuit. This rule provides that "[a]ll returns on services of summons in Associate Circuit Judge Division cases shall be filed with the Department of Civil Records no later than three (3) days prior to the return date." The court further denied the default judgment on the basis that under section 517.031,¹ RSMo 2000,² the defendant was not required to file a responsive pleading.

Subsequently, Mr. Burns filed a motion for a trial setting. On March 21, Judge Gillis denied the motion for a trial setting because "Local Rule 63.1 was not complied with." Mr. Burns then filed a writ of mandamus with this court seeking to compel Judge Gillis to set a trial setting in the underlying action. Mr. Burns claims that because the defendant was properly served, Judge Gillis has personal jurisdiction over the defendant and the lack of compliance with Local Rule 63.1 does not preclude the judge from setting a trial date. This court issued a preliminary writ of mandamus.

Writ of Mandamus Proper

Before reaching the merits of Mr. Burns' petition for writ of mandamus, this court considers whether a writ of mandamus is proper in the circumstances of this case. "The extraordinary relief of mandamus has limited application." Jones v. Carnahan, 965 S.W.2d 209, 212 (Mo. App.1998). A writ of mandamus "will lie both to compel a court to do that which it is obligated by law to do and to undo that which the court was by law prohibited from doing." State ex rel. Leigh v. Dierker, 974 S.W.2d 505, 506 (Mo. banc 1998). A writ of mandamus cannot compel the performance of a discretionary act, however. Jones, 965 S.W.2d at 212. "A discretionary act is one requiring the exercise of reason in determining how or whether the act should be done." Id. at 213.

Judge Gillis argues that a writ of mandamus is not appropriate in this case because the "[a]cceptance or rejection of a return of service is a discretionary issue to be resolved by the judge who is able to examine that return." In support of his argument, Judge Gillis cites Rule 54.22(a). Rule 54.22(a) states that "[t]he 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." This portion of Rule 54.22(a) is inapplicable, however, because it concerns the court's discretion in allowing a return of service to be filed.

The return of service was accepted and filed on December 8. Thus, the issue is not whether Judge Gillis was correct in allowing the return of service to be filed, which is a discretionary act.³ Instead, the issue is whether Judge Gillis was correct in declining to exercise his jurisdiction because the return of service was not filed within the time required by the local rule. This is an issue of law. The Supreme Court has held that mandamus is the proper remedy to resolve legal issues concerning the trial court's misconception of its jurisdiction:

[W]hen, upon a preliminary question of jurisdiction depending wholly upon the law and not upon the facts, the court misconceives its jurisdiction of the case or of the parties and refuses to proceed to its final determination upon the merits then the appellate court will issue its writ to compel the lower court to reinstate the matter and proceed to its final determination without attempting to dictate what the result of such determination shall be.

State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009, 1011 (1940). See also State ex rel. Streeter v. Mauer, 985 S.W.2d 954, 956 (Mo.App.1999) (holding "mandamus will lie to reinstate a case improperly dismissed because the court misconstrued its jurisdiction to hear it"). A writ of mandamus is proper in the circumstances of this case.

Lack of Compliance With Local Rule Does Not Prohibit Trial Court From Setting Trial Date

In his petition, Mr. Burns claims he is entitled to a writ of mandamus compelling Judge Gillis to set a trial date. Mr. Burns argues that Judge Gillis has personal jurisdiction over the defendant because the defendant was properly served with process, and the failure to file the return of service three days prior to the return date as required by the local rule does not prohibit Judge Gillis from exercising his jurisdiction by docketing the case and setting a new trial date.

Under Rule 54.22(a), "[t]he return of service shall be considered prima facie evidence of the facts recited therein." The return of service "creates a presumption of proper service that can be impeached only by clear and convincing evidence that a party was not served." State ex rel. Dep't of Soc. Serv., Div. of Child Support Enforcement v. Stone, 71 S.W.3d 643, 646 (Mo.App.2002). Once the defendant has been properly served with process, the court "obtain[s] jurisdiction to adjudicate the rights of a defendant." Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000).

According to the return of service in this case, the defendant was served on November 23, twelve days before the return date of December 5. Section 517.041.1 provides that "[t]he summons shall command the defendant to appear before the court on a date and time, not less than ten days nor more than thirty days from the date of service of the summons." Although the return of service was not filed three days before the return date as required by Local Rule 63.1, it was accepted and filed on December 8. Thus, under Rule 54.22(a), the filed return of service is prima facie evidence that the defendant was properly served. The presumption of proper service stands, as there is no clear and convincing evidence that the defendant was not properly served. See Stone, 71 S.W.3d at 646. Because the defendant was properly served, Judge Gillis has personal jurisdiction over him. Worley, 19 S.W.3d at 129. Indeed, Judge Gillis admits that the defendant was properly served and that the court "technically has personal jurisdiction" over the defendant.

Nevertheless, Judge Gillis argues that it would have been inappropriate for him to exercise his jurisdiction over the defendant and hold trial on December 5 because the return of service was not filed three or more days before the December 5 return date as required by Local Rule 63.1. This court agrees with Judge Gillis that Mr. Burns' case could not be tried on December 5 because there was no return of service filed with the trial court on that date. Since there was no proof, at that time, that the defendant had been properly served, trying the case on the return date would have been improper.

Judge Gillis argues, however, that because Mr. Burns failed to comply with Local Rule 63.1, the court had the discretion to decide, when the return of service was eventually filed showing that the defendant was served, whether to exercise jurisdiction over the defendant at all and permit the case to proceed. He makes this argument despite the fact that Local Rule 63.1 provides no consequences for failing to file the service return no later than three days prior to the return date, and certainly provides no mechanism for the trial court to decline to exercise jurisdiction over a properly-served defendant. Nevertheless, Judge Gillis contends that, for the court to exercise jurisdiction over the defendant and permit the case...