Opinion
No. 23191
February 2, 2000
Appeal From: Circuit Court of Christian County, Hon. John S. Waters.
REVERSED AND REMANDED WITH DIRECTIONS.
Donald L. Sanders, Counsel for Appellant. Richard D. Bender, Counsel for Respondent.
Crow, P.J. and Parrish, J., concur.
This is a domestic relations case that presents the question of whether service of process by a purported special process server who was not appointed by the trial judge or circuit clerk was defective, invalidating a default judgment. We answer, "Yes." We reverse and remand with directions.
On March 14, 1997, James D. Worley (Father) filed a motion to modify the child custody provisions of a dissolution judgment. The trial court's March 14 docket entry states, "Summons issued back to [Father] for service by special process server." The record does not reflect that Father nominated any particular person as special process server or that the trial judge or circuit clerk specially appointed any individual for the purpose of serving process.
On March 20, 1997, a document captioned "Affidavit of Service Of Process" was filed by Father's attorney. This document, signed under oath by Kevin Nichols, recites:
"1. That he [Nichols] secured service of a copy of the attached Summons upon Kathryn A. Worley . . . by personally delivering her a copy thereof.
"2. That said service occurred in Christian County, Missouri on March 16, 1997.
"3. That Affiant has no interest in the litigation herein."
The docket sheet does not show that Kathryn A. Worley (Mother) entered an appearance in this litigation by responsive pleading or otherwise. It does show that on April 17, 1997, Father's motion to modify was taken up and heard as a default matter and the dissolution decree was ordered modified. A judgment favorable to Husband was filed June 30, 1997.
On July 30, 1999, Mother filed a "Special Entry of Appearance" and asked the trial court to declare its judgment "null and void" because she was "never properly served with process." Mother moved the Court to "quash the purported service of process" because, inter alia, the purported process server, Kevin Nichols, was not the sheriff, a deputy sheriff, or the coroner of Christian County, and neither the trial court nor circuit clerk specially appointed him to serve Mother with process. The trial court denied Mother's motion to quash service and set aside the judgment. This appeal followed.
As an initial matter, this court considered whether this appeal emanated from an appealable judgment or order. Mother's motion, captioned "Special Entry of Appearance for the Purpose of Quashing Service," sought two things: (1) An order quashing service; and (2) a ruling that the trial court's default judgment was null and void. Our courts judge a pleading by its subject matter and not by its caption. Taylor v. Taylor, 742 S.W.2d 630, 631 (Mo.App. 1988). A trial court order denying a motion to quash service and refusing to set aside the trial court's decree is an "order in a special proceeding that attack[s] the enforcement of a judgment. As such it is appealable as a 'special order after final judgment in the cause.'" State ex rel. Houston v. Malen , 864 S.W.2d 427, 428 n. 1 (Mo.App. 1993) (questioned on other grounds in Brackett v. Laney , 920 S.W.2d 597 (Mo.App. 1996)); section 512.020 RSMo 1994. For the reason expressed in Malen , the order at issue here is appealable.
Under Point I of her brief, Mother argues that she was not served with process in the manner prescribed by section 506.140 and Rule 54.01. Specifically, Mother relies on language in section 506.140 that authorizes service of process by "some person, other than a sheriff or coroner," if that person is "specially appointed by the court or the circuit clerk." She also points to Rule 54.01, which authorizes delivery of "the required summons or other process . . . to the sheriff or other person specially appointed to serve it." (Emphasis added.) Based on these provisions, particularly section 506.140, Mother argues that before valid service of process can be served by anyone other than a sheriff, deputy sheriff, or coroner, the trial court or circuit clerk must enter an order specially appointing such other person. Here, there is no order specially appointing Kevin Nichols as process server. Mother contends that the absence of such an order is fatal to the service of process here, and that, as a result, the trial court never obtained personal jurisdiction over her. Based on this reasoning, Mother concludes that the trial court's judgment modifying the terms of child custody is null and void.
All references to section 506.140 are to RSMo Cum.Supp. 1996. All other statute references are to RSMo 1994. All rule references are to Missouri Supreme Court Rules (1997).
In its entirety, section 506.140.1 provides:
"1. Service of process, except as otherwise provided, shall be made by a sheriff, or such sheriff's deputy, or in case the sheriff in any cause is for any reason disqualified, then process may be issued to and served by the coroner of the county in which such process is to be served; or some person, other than a sheriff or coroner, may be specially appointed by the court or the circuit clerk following procedures established by local court rules for service of process in any cause, but such appointment shall be valid for service of the process only for which such person was specially appointed." (Emphasis added.)
In relevant part, Rule 54.01 provides:
"Upon filing of a pleading requiring service of process, the clerk shall forthwith issue the required summons or other processs and, unless otherwise provided, deliver it for services to the sheriff or other person specially appointed to serve it." (Emphasis added.)
Father responds that his motion to modify custody was "commenced in the manner provided by the rules of the supreme court," which he argues is all section 452.310 requires. He cites Rules 54.01 and 54.13(a) as authority for his selection and use of Kevin Nichols as process server. He asserts that "[s]ervice in this case was made under Rule 54.13(a)" — which is to say, by "a person over the age of 18 years who is not a party to the action" — and therefore constituted valid service under the applicable rules. Father also contends that Mother was, in fact, personally served here and that she waived any objection she may have had to service by not raising it in a timely pleading or motion as required by Rule 55.27(g)(1)(B). Accordingly, Father insists that the trial judge properly overruled Mother's motion to quash service.
In pertinent part, section 452.310 provides:
"1. All proceedings under sections 452.300 to 452.415 are commenced in the manner provided by the rules of the supreme court.
. . . .
"4. The other party must be served in the manner provided by the rules of civil procedure and applicable court rules. . . ."
See note 4 for the applicable provisions of Rule 54.01. Rule 54.13(a) provides:
" (a) By Whom Made. Service of process within the state, except as otherwise provided by law, shall be made by the sheriff or a person over the age of 18 years who is not a party to the action."
"The method of commencing an action and of serving process is a matter properly regulated by rule. . . ." Mathews v. Seeburger , 805 S.W.2d 731, 733[2] (Mo.App. 1991). Only by appearance or by service of process in a manner authorized by statute or rule can a court obtain jurisdiction to adjudicate the rights of a defendant. Roberts v. Johnson , 836 S.W.2d 522, 524[3] (Mo.App. 1992).
"When the requirements for manner of service are not met, a court lacks power to adjudicate." State ex rel. Plaster v. Pinnell , 831 S.W.2d 949, 951[2] (Mo.App. 1992). Actual notice is insufficient. Id. "Satisfying minimum standards of due process . . . does not obviate the necessity of serving process in the manner prescribed in our statutes and rules." Acapolon Corp. v. Ralston Purina Co. , 827 S.W.2d 189, 196[17] (Mo.banc 1992).
A judgment entered against a person by a court lacking personal jurisdiction over that person is void. Shapiro v. Brown , 979 S.W.2d 526, 528[5] (Mo.App. 1998). A default judgment that is void due to lack of personal jurisdiction is forever void, and any kind of proceeding to cancel it is proper. Id . at 528[6].
Father points out that section 452.310 requires only that "[t]he other party . . . be . . . served in the manner provided by the rules of civil procedure" and does not mandate compliance with any statutory procedural requirements. See note 5. Turning to the rules, we note that Rule 54.01 clearly contemplates appointment of special process servers where it authorizes delivery of a summons to some "other person specially appointed to serve it." See note 4. Rule 54.13(a) also appears to contemplate appointment of special process servers in that it authorizes service of process by someone other than a sheriff, provided he or she is over the age of eighteen years and is not a party to the action. The rules do not, however, expressly authorize such appointments or prescribe a process therefor.
This deficiency renders the rules ambiguous as to whether special process servers can be appointed at all in child custody modification cases. This follows because the rules can be read differently by reasonably well-informed individuals. See Spradlin v. City of Fulton , 982 S.W.2d 255, 258[2] (Mo.banc 1998).
On one hand, a reasonably well-informed individual could conclude that in any case under sections 452.300 to 452.415, service by a special appointee is altogether precluded. This theory is tenable because section 452.310 requires that service be made in accordance with the "rules of civil procedure," but the rules provide no procedural mechanism for specially appointing someone to serve process.
On the other hand, a reasonably well-informed individual might turn to Rule 41.04 for a solution. Rule 41.04 provides that "[i]f no procedure is specially provided by rule, the court having jurisdiction shall proceed in a manner consistent with the applicable statute, or statutes, if any, . . . not inconsistent with Rules 41 to 101, inclusive." In this manner, section 506.140 could be viewed as an "applicable statute" within the meaning of Rule 41.04 in that it vests courts and circuit clerks with authority to make special appointments of process servers.
Finally, a reasonably well-informed individual might conclude — as Father apparently did — that Rules 54.01 and 54.13(a) implicitly authorize a litigant to unilaterally select a special process server so long the person chosen meets the qualifications in Rule 54.13(a).
This case appears to be one of first impression. Neither party has provided us with on-point authority on this precise issue, and we have found none. Accordingly, we resort to rules of statutory construction to resolve the issue. In so doing, we note that the rules of construction employed when interpreting supreme court rules are identical to those employed when construing legislative enactments. Felton v. Hulser, 957 S.W.2d 394, 397[8] (Mo.App. 1997).
The ultimate goal in construing an ambiguous statute or rule is to determine and give effect to the intent of the enacting authority. Spradlin , 982 S.W.2d at 258[3]. To effectuate the intent of an enacting authority, courts are authorized "to make sense out of" ambiguous statutes and rules. Drew v. Chrysler Credit Corp. , 596 F. Supp. 1371, 1374[2] (W.D.Mo. 1984).
The actual words and phrases used in an enactment are our first source for determining the underlying intent. Eaton v. Director of Revenue, 929 S.W.2d 282, 284[3] (Mo.App. 1996). Unless defined by statute or otherwise, words will be given their plain and ordinary meaning with help, as needed, from the dictionary. American Healthcare Management, Inc. v. Director of Revenue , 984 S.W.2d 496, 498[4] (Mo.banc 1999).
As relevant to this case, the term "appoint" has been defined as follows: "[T]o name or assign to a position, an office, or the like; designate," The Random House Dictionary 102 (2d ed. 1987), "[t]o designate, choose, select, assign, ordain, prescribe, constitute, or nominate. . . . Term is used where exclusive power and authority is given to one person, officer, or body to name persons to hold certain offices." Black's Law Dictionary 99 (6th ed. 1990). In a similar vein, Black's Law Dictionary defines the term "appointment" as "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust." Black's Law Dictionary 99 (6th ed. 1990).
We are persuaded by these and other dictionary definitions that the plain and ordinary meaning of the term "appoint" does not support Father's assertion that Rule 54.01 authorized him to unilaterally appoint a process server. Rule 54.13(a) expressly denied Father the authority to serve process himself. To hold that the supreme court intended by its rules to vest litigants with authority to appoint process servers to discharge duties that the litigants themselves cannot perform would seem incongruent at best. We conclude, therefore, that the rules do not empower litigants to "specially appoint" process servers. Thus, Father had no power to appoint Kevin Nichols as process server in this case.
Moreover, a proper analysis of an ambiguous statute or rule does not end with an examination of the words used. Rather, we must also consider the purposes of the enacting authority and the evils it intended to cure. Eaton , 929 S.W.2d at 284[3]. The purpose of rules and statutes that authorize the use of special process servers is to provide an economical, efficient means of accomplishing service of process. State ex rel. Degeere v. Appelquist, 748 S.W.2d 855, 858 (Mo.App. 1988). That purpose is, however, necessarily subordinate to the more fundamental concern of ensuring that defending parties are, in fact, notified of the pendency of litigation. See Industrial Personnel Corp. v. Corcoran , 643 S.W.2d 816, 818 (Mo.App. 1981). To that end, "the courts and legislative bodies have devised an elaborate set of rules" to protect a defending party's guarantee of due process, i.e., that his or her rights will not be adjudicated without notice. Id. For example, Rule 54.13(b) and sections 506.150, 506.510, and 506.240 deal with the means by which service may be achieved. Id. Under these provisions, the supreme court and legislature authorized service on certain individuals other than the defending party who are "deemed sufficiently reliable to insure that notification will, in fact, be given to the defending party." Id . Another example is Rule 54.20, which establishes the proof that "must be presented to the court to establish that, in fact, the defendant has been notified of the pendency of the action." Id.
Considering that the purpose for these and other rules and statutes is to ensure that notification of litigation actually reaches a defending party, it would be improper to permit service of process by one not a sheriff, deputy sheriff, or coroner who is not specially appointed by the clerk or court. Were it otherwise, there would be no assurance that the selection of process servers would be limited to persons who are sufficiently reliable to assure that process would, in fact, be served on defending parties. In light of the due process protections afforded individuals as to service of process, we are convinced that the supreme court did not intend to abrogate the requirement that special process servers be appointed. We believe the supreme court promulgated Rule 41.04 for a situation such as this.
Rule 41.04 directs the court to "proceed in a manner consistent with the applicable statute" so long as the statute is "not inconsistent with Rules 41 to 101." Section 506.140 gives courts and circuit clerks the authority to appoint special process servers and is, therefore, "an applicable statute" within the meaning of Rule 41.04. Moreover, section 506.140 is not inconsistent with Rule 54.13 or any other rule. Both authorize a sheriff or deputy sheriff to serve process. Section 506.140 is silent about the qualifications of a special process server while Rule 54.13 requires that any such person be eighteen years of age or older and a non-party to the litigation. Similarly, Rules 54.01 and 54.13 are silent as to who can appoint a process server while section 506.140 authorizes courts and circuit clerks to make such appointments. Under these circumstances, we do not view these provisions as being inconsistent.
We conclude, therefore, that appointments of process servers must proceed "in a manner consistent with" section 506.140 because that provision is "applicable" and is not inconsistent with the rules of civil procedure. Rule 41.04. Since Kevin Nichols was not appointed by the trial judge or circuit clerk in accordance with section 506.140, he did not have the authority to serve process on Mother.
A party who elects to use a special process server does so at his or her own risk and bears a heavy burden of showing that every procedural requirement for service of process via a "specially appointed" individual has been met. Walker v. Gruner , 875 S.W.2d 587, 588[3] (Mo.App. 1994). Here, Father failed to carry that burden. Absent compliance with section 506.140, the trial court did not acquire personal jurisdiction over and was without power to adjudicate the rights and liabilities of Mother. See See v. Nesler , 692 S.W.2d 7, 8 (Mo.App. 1985).
In reaching this conclusion, we have not ignored Father's argument that Mother waived her claims of invalid service of process and lack of jurisdiction over her person by not raising those defenses in a timely motion or other pleading. This argument, based on Rule 55.27(g)(1)(B), is misguided. Under Rule 55.27(g)(1)(B), a defending party who wishes to raise defenses of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process must do so either in a preanswer motion or in the party's answer. However, the waiver provisions of Rule 55.27(g)(1)(B) are not triggered where a defendant does not appear. See Crouch v. Crouch , 641 S.W.2d 86, 90 (Mo.banc 1982). The Missouri Supreme Court explained this as follows:
"[A] defendant over whom the trial court could not otherwise constitutionally acquire jurisdiction does not waive the jurisdictional defense merely by his nonappearance. Two fundamental precepts must be borne in mind. First, a personal judgment rendered by a court without personal jurisdiction over the defendant is void and may be attacked collaterally. Second, a defendant 'is always free to ignore the judicial proceedings, risk a default judgment and then challenge that judgment on jurisdictional grounds in a collateral proceeding.' . . . Were we to hold that appellant waived the personal jurisdiction defense merely by failing to appear, it would produce the anomalous result that a defendant who has the right to ignore a judicial proceeding waives that right by asserting it. Nonappearance therefore, cannot constitute waiver."
Id . (Emphasis added.) (Citations omitted.) In a more recent case the eastern district has held that "[a] defendant, by merely staying out of court, even indefinitely, does not waive an objection to improper service." Sola v. Bidwell , 980 S.W.2d 60, 65[5] (Mo.App. 1998). Relying on Crouch and Sola , we hold that Mother's nonappearance did not waive her personal jurisdiction defense.
For all these reasons, we hold that the failure to appoint a process server in accordance with section 506.140 rendered the purported service of process on Mother defective. As a result, the trial court lacked personal jurisdiction over Mother and its default judgment is void. The trial court erred in overruling Mother's motion to quash service and failing to set aside the default judgment.
The judgment is reversed and remanded and we direct the trial court to quash the purported service of process and set aside its June 30, 1997, default judgment against Kathryn A. Worley.