Opinion
112,048.
04-24-2015
David TARHINI, Appellee, v. Joseph AMRO, Appellant.
Joseph P. Amro, appellant pro se. Jim Lowing, of Wichita, for appellee.
Joseph P. Amro, appellant pro se.
Jim Lowing, of Wichita, for appellee.
Before McANANY, P.J., BRUNS, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Joseph Amro appeals from the district court's order granting David Tarhini's motion to revive a dormant judgment. On appeal, Amro challenges the validity of Tarhini's service of process on him and contends that the district court erred when it approved that service and granted the revivor motion. We find that the district court's finding of proper service of process on Amro is supported by substantial competent evidence, and its decision to revive the judgment was not an abuse of discretion. We affirm the district court.
Factual and Procedural Background
On July 1, 2006, Amro went to Tarhini's home and shot him eight or nine times causing him severe injuries. Amro later pled guilty to one count of aggravated battery for the shooting and served time in prison.
On July 17, 2006, Tarhini filed a civil suit in Sedgwick County district court alleging Amro's actions in shooting him were malicious and intentional. The district court held a bench trial on November 5, 2007. Amro did not appear. The district court awarded Tarhini $80,046.04 in pecuniary damages, $250,000 in noneconomic damages, and $150,000 in punitive damages, for a total judgment of $480,046.04. Because Tarhini did not execute on or renew the judgment, it became dormant on November 5, 2012.
On April 3, 2014, less than 2 years after the judgment became dormant, Tarhini filed a motion to revive the dormant judgment. The motion contained a notice of hearing stating that the motion would be heard May 9, 2014, at 9 a.m. According to the certificate of service, on the day the motion was filed Tarhini's counsel mailed a copy of the motion to Amro at 5785 West 43rd Street, Indianapolis, IN 46254. Tarhini's counsel also arranged to have process served on Amro at that address.
On May 5, 2014, Amro filed his response to the motion. He specifically challenged the validity of Tarhini's service of process on him. He asserted the defective service deprived the district court of the jurisdiction necessary to consider the motion to revive the dormant judgment. Amro also included background information on his current circumstances. He indicated that he had filed a Chapter 7 bankruptcy November 26, 2013, in Indiana. He acknowledged he had resided at the address Tarhini used for service on him back at the time he filed the bankruptcy, but claimed that he had left that residence shortly after receiving his March 11, 2014, bankruptcy discharge.
Amro also acknowledged that around the time he moved he became aware that Tarhini had filed an adversary action in his bankruptcy seeking to have the debt to Tarhini declared nondischargeable. He received that claim and responded to the bankruptcy court that the judgment was dormant. Finally, he acknowledged that Tarhini had filed documents in the Indiana bankruptcy court that included a verified Affidavit of Service by Indiana process server Bill Rorie confirming that on April 9, 2014, Rorie had posted notice of Tarhini's motion to revive at the 5785 West 43rd Street address. Amro included a copy of Rorie's Affidavit of Service as an exhibit to the motion. Again, Amro claimed he had moved by the time of that service. Amro complained that the service was not “personal service,” which he contended was required under the revivor statute, K.S.A 60–2404.
Amro's response also contained a lengthy memorandum of fact and law challenging service, jurisdiction, the propriety of the original judgment, and asserting there was good cause to deny revivor. Amro's signature block did not contain a physical address but rather a post office box number.
On May 9, 2014, the district court conducted the hearing on Tarhini's motion to revive the dormant judgment. Amro, pro se, appeared by telephone. Tarhini appeared by counsel, Jim Lawing. Amro, as he had in his response, claimed that he did not receive proper service of the motion to revive. Amro admitted that he received in the mail at 5785 West 43rd Street, Indianapolis, IN 46254, a copy of his bankruptcy discharge, which discharge was entered March 11, 2014. He alleged, though, that he moved from that address shortly after receiving the discharge notice and thereafter stayed in various hotels and shelters. He was adamant that he had promptly, upon moving, notified the bankruptcy court of his new post office box mailing address. He said he had not received notice of the revivor proceedings from Lawing but rather obtained the revivor documents from the bankruptcy court.
Lawing confirmed the steps he had taken to serve process on Amro regarding the motion to revive. He indicated that an Indiana attorney for Tarhini had filed an adversary proceeding in Amro's bankruptcy claiming that the debt to Tarhini was nondischargeable as a judgment for intentional injuries. The address Amro had used in the bankruptcy court was 5785 West 43rd Street, Indianapolis, IN 46254. Lawing knew that Amro was receiving documents at that address because he had evidence that Amro was participating in the adversary bankruptcy proceeding as early as March 11, 2014. Lawing asserted that he obtained service by causing notice to be left at the address Amro used in his bankruptcy, which posting service was confirmed by the process server's affidavit, and Lawing's mailing of notice of the motion to that address by first class mail.
Lawing was able to take advantage of Amro's contention that he had notified the bankruptcy court as soon as he moved from the 5785 West 43rd Street, Indianapolis, IN 46254, address. Lawing had the bankruptcy court's docket, which showed that Amro did not actually change his address with the bankruptcy court until April 28, 2014, well after the process server posted the notice on April 9, 2014.
The district court held that Tarhini had properly served Amro April 9, 2014, by leaving notice at his residence and mailing a copy to that address by first class mail. Moreover, the court found that Amro had actual notice of the motion in that he had been in contact with Tarhini's counsel seeking a dismissal of the revivor and had timely filed his response to the revivor motion. The district court granted Tarhini's motion to revive the dormant judgment.
Amro timely appealed.
Analysis
Amro makes three arguments in support of his contention the district court erred in granting Tarhini's motion to revive dormant judgment: (1) he did not receive proper service; (2) the long-arm statute precluded jurisdiction; and (3) the district court should have held a separate hearing on his arguments in opposition to the merits of Tarhini's motion.
A proceeding to revive a dormant judgment is governed by K.S.A. 60–2404. The service of process at issue here is controlled by K.S.A.2014 Supp. 60–303. Interpretation of a statute is a question of law over which we have unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). Whether jurisdiction exists is likewise a question of law over which our scope of review is unlimited. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013). However, because this case involves a factual dispute over whether Amro resided where he was purportedly served, we are reviewing a mixed question of fact and law. In such a case we apply a bifurcated standard of review. We review the district court's factual findings under the substantial competent evidence standard. Our review of the conclusions of law the district court draws from those facts is unlimited. See Gannon v. State, 298 Kan. 1107, 1175–76, 319 P.3d 1196 (2014). Substantial competent evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. 298 Kan. at 1175.
Amro was properly served
A judgment may “become dormant after 5 years unless an attempt is made to execute upon the judgment or a renewal affidavit is filed, and a judgment that remains dormant for 2 years is extinguished. [Citation omitted.]” Casey v. Plake, 45 Kan.App.2d 99, 102, 244 P.3d 689 (2010) ; see K.S.A.2014 Supp. 60–2403(a)(1).
Amro claims that the district court erred when it revived the judgment because he was not properly served under K.S.A. 60–2404. The statute requires a motion, notice, and a hearing and provides in pertinent part as follows:
“A dormant judgment may be revived and have the same force and effect as if it had not become dormant if the holder thereof files a motion for revivor and files a request for the immediate issuance of an execution thereon if such motion is granted. Notice of the filing of the motion shall be given as for a summons under article 3 of this chapter. If the motion for revivor was filed within two years after the date on which the judgment became dormant ... on the hearing thereof the court shall enter an order of revivor unless good cause to the contrary be shown, and thereupon the execution shall issue forthwith.” (Emphasis added.) K.S.A. 60–2404.
Here Tarhini lived out of state. K.S.A.2014 Supp. 60–308(a) governs service outside this state and provides that, generally, service may be made “[i]n the same manner as service within this state.” K.S.A.2014 Supp. 60–308(a)(2)(A).
K.S.A.2014 Supp. 60–303 governs service within this state. In this case, Tarhini relied on the service option in K.S.A.2014 Supp. 60–303(d)(1)(C), which provides that if personal or residential service cannot be made,
“service is effected by leaving a copy of the process and petition or other document at the individual's dwelling or usual place of abode and mailing to the individual by first-class mail, postage prepaid, a notice that the copy has been left at the individual's dwelling or usual place of abode.”
On appeal, Amro asserts that Tarhini's posting and mailing service was improper because Amro had moved from the address on file with the Indiana bankruptcy court. Specifically, Amro argues: “[T]he District Court's finding ... that Amro received residential service of the Motion to Revive ... is not supported by the record, substantial competent evidence or any evidence in the case.” Lawing stated at the revivor hearing he mailed, via first class mail, notice of the motion to Amro in addition to having the motion posted at Amro's residence. The record contains an affidavit from the Indiana process server, which shows he left at the residence “a true copy of the Summons for Out of State Defendant, Motion to Revive Judgment, and Notice of Hearing.” Tarhini's motion to revive contains a certification that Lawing mailed a copy of the motion and notice of hearing to Amro's address of record on April 3, 2014.
Amro asserted at the revivor hearing the residential address he provided the Indiana bankruptcy court was “not my residence. That was [a] temporary residence because I was out of state.... I never was at the residence....” We can understand why the district court was not persuaded by this testimony. Amro did not deny that he represented to the bankruptcy court that, when he filed the case, he lived at the residence. Importantly, Amro testified that he received a copy of his bankruptcy discharge, entered March 11, 2014, at that address. He also claimed he moved shortly thereafter, which contradicts his claim that he “never was at” the address on file in the bankruptcy court. One cannot move from a place where one never resided.
Amro also confirmed that he received notice there of Tarhini's adversary proceeding filing in March 2014. Finally, Amro's adamance that he notified the bankruptcy court of his new address as soon as he moved compromised his credibility on when he moved: the process was posted April 9, 2014, but Amro did not notify the bankruptcy court that he had moved until April 28, 2014. A clear, permissible inference from Amro's own testimony is that he resided where the documents were posted at the time they were posted, and, if he moved, he moved after the posting.
The district court chose what evidence it believed and determined that Amro had been properly served on April 9, 2014. As noted above, this factfinding is supported by substantial competent evidence, i.e., such evidence a reasonable person might accept as being sufficient to support a conclusion.
The presumed remedy under K.S.A. 60–2404 for a timely filed motion to revive a dormant judgment is that “the court shall enter an order of revivor unless good cause to the contrary be shown.” Here, the court heard facts as to the basis for the original judgment. It then heard Amro's testimony against reviving the judgment. Amro stated: “There's like a black vale on me, to do something I don't want to do. I don't want to have nothing to do with them.” The district court revived the judgment. We cannot say that the district court abused its discretion in finding no good cause was shown by Amro contrary to the entry of the revivor, as a reasonable person could clearly take the position taken by the district court. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006).
Amro's Long–Arm Statute Argument is Irrelevant
Amro argues that even if the notice was sufficient for the revivor action, he is not subject to the personal jurisdiction of Kansas courts under the Kansas long-arm statute, K.S.A.2014 Supp. 60–308(b). Specifically, Amro argues the long-arm statute might apply to an original tort judgment but not a subsequent motion to revive that judgment.
This argument is irrelevant to an action to revive a dormant judgment. Again, K.S.A. 60–2404 specifically governs revivor proceedings. All the jurisdiction necessary for revivor is obtained when this requirement has been met: “[N]otice of the filing of the motion shall be given as for a summons under article 3 of this chapter.” K.S.A. 60–2404. The district court found that Tarhini had complied with that requirement.
The Structure of the Hearing Complied With K.S.A. 60–2404
Amro's criticisms of the structure of the revivor motion hearing are difficult to follow. It appears that he argues that he made a “limited” appearance only to challenge the propriety of service and jurisdiction, so the court improperly proceeded to hear the merits of the motion once the court determined that service was valid. Amro's own written response belies that contention. The response addresses not just the propriety of service but also the propriety of the original judgment and the propriety of any revivor, citing a case on laches as authority that the court could deny revivor if good cause to the contrary was found.
Amro did not just file a motion to dismiss the revivor invoking K .S.A.2014 Supp. 60–212(b)(2) regarding lack of jurisdiction, he filed a response that also addressed the merits of the motion. Amro himself raised issues that were separate from his jurisdictional challenge. The hearing transcript demonstrates the district court conducted a thorough inquiry concerning Amro's jurisdictional defense of ineffective service of process. But the district court also heard Amro's testimony that, from his perspective, there was not good cause to revive the judgment. We disagree with Amro's contention that the court needed to conduct two separate hearings on the motion, one on his service defenses and one on his merit defenses. The hearing the district court conducted complied with K.S.A. 60–2404 and the pleadings.
Tarhini's judgment was dormant. The revivor motion was timely filed within the requisite 2 years. The district court's finding of proper service is supported by substantial competent evidence. The district court conducted a proper hearing under K.S.A. 60–2404. The district court did not abuse its discretion when it did not find good cause contrary to revivor. The district court did not err when it entered its order reviving Tarhini's dormant judgment.
Affirmed.