James and Susanne Scholz v. Wayne "Ross" Schenk and Stacy Michelle Schenk

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JAMES and SUSANNE SCHOLZ, )
)
Respondents, )
)
WD78292
v. )
)
OPINION FILED:
)
March 1, 2016
WAYNE “ROSS” SCHENK and STACY )
MICHELLE SCHENK, )
)
Appellants. )
Appeal from the Circuit Court of Johnson County, Missouri
The Honorable W. Sue Dodson, Judge
Before Division Two: Cynthia L. Martin, Presiding Judge, and
Mark D. Pfeiffer and Karen King Mitchell, Judges
Wayne and Stacy Schenk appeal the trial court’s judgment in favor of James and Susanne
Scholz for delinquent rent and possession of property. The Schenks argue that the trial court
lacked personal jurisdiction over them because they were not properly served with process. We
affirm.
Facts1
The Schenks entered into a written agreement in January of 2014 to rent a home in
Warrensburg, Missouri, from the Scholzes. Under the agreement, the Schenks were to pay rent
in the amount of $1,054 by the third day of each month. When the Schenks failed to timely pay
the rent for the months of October, November, and December of 2014, the Scholzes filed the
present action, requesting possession of the house, as well as all past-due rent. Included with the
lawsuit was a motion that Tom Ilgenfritz be appointed special process server, which the circuit
clerk granted. Ilgenfritz filed the affidavit of service, stating that he had served the Schenks “by
leaving a copy of the complaint at the dwelling place or usual abode of [the Schenks] with Jolene
Parr R/M a person of the [Schenks’] family over the age of 15 years.”
The Schenks appeared at trial solely to contest the court’s personal jurisdiction, arguing
that they had not been served. Wayne Schenk testified that he did not receive the materials that
had been served. He further testified that Jolene Parr was a friend of his daughter, and that she
did not reside at the Schenks’ house. Mr. Schenk testified that Parr lived in Carrolton, Missouri,
and was visiting the Schenks’ home when Ilgenfritz attempted service.
Ilgenfritz testified that, when he arrived at the Schenks’ residence, he encountered a
group of people leaving, and he asked whether any of them were Stacy Schenk. Someone in the
group responded “no, she’s standing in the living room.” Ilgenfritz then knocked on the door,
and the woman who answered the door told him that the Schenks were home but unavailable.
Ilgenfritz waited outside the residence, and approximately 30 minutes later, he again knocked on
the door, and the same woman answered. The woman identified herself as Jolene Parr and told
1
The facts are stated “in a light most favorable to the judgment.” State v. Russell, 462 S.W.3d 878, 882
(Mo. App. E.D. 2015).
2
Ilgenfritz that she “resided there.” Ilgenfritz then presented the papers to Parr and filed the
return with the court.
At the close of evidence on the preliminary issue of service, counsel for the Scholzes
argued that, once Parr identified herself as residing in the home, Ilgenfritz was “thereby entitled
to effect abode service upon the residen[ts] of that house via her.” The court determined that it
“might be inclined to rule for the Schenks,” were it not for “the letters [R/M on the return of
service] which I take to mean roommate.” This, the trial court reasoned, was sufficient for it to
hold that “the inquiry was made” as to whether Parr resided at the home, and that service was
therefore sufficient. The Schenks did not participate any further in the trial.
Following trial, the court entered judgment in favor of the Scholzes in the amount of
$3,162, and ordered that possession of the property be delivered to the Scholzes. The Schenks
timely appealed.
Standard of Review
Appellate review of a court-tried case is under the standard announced in Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Accordingly, we will affirm the circuit court’s
judgment unless there is no substantial evidence to support it, it is against the weight of the
evidence, or it erroneously declares or applies the law.” Walker v. Lonsinger, 461 S.W.3d 871,
874 (Mo. App. W.D. 2015) (citing Murphy, 536 S.W.2d at 32). “We defer to the court’s
determinations regarding witness credibility, and we view the evidence and any inferences
therefrom in the light most favorable to the judgment.” Id. “We review all questions of law
de novo.” Minana v. Monroe, 467 S.W.3d 901, 904 (Mo. App. E.D. 2015).
3
Analysis
The Schenks present three points on appeal: (1) the trial court erred as a matter of law in
determining that the process server making an inquiry into whether Parr resided at the home was
sufficient to render service effective, regardless of whether she actually resided there; (2) the trial
court’s determination that Parr was “family” for purposes of service of process was not
supported by substantial evidence; and (3) the trial court’s determination that Parr was “family”
for purposes of service of process was against the weight of the evidence. We address the points
together.
“Service of process is a predicate to the trial court’s jurisdiction to adjudicate the rights of
the defendant, and when the requirements for manner of service are not met, the court lacks the
power to adjudicate.” Manzella v. Dorsey, 258 S.W.3d 501, 504 (Mo. App. E.D. 2008). “To
prove that the ‘proper method of service has been followed,’ a plaintiff must present proof of
service in accordance with Rule 54.20.”2 Morris v. Wallach, 440 S.W.3d 571, 576 (Mo. App.
E.D. 2014) (quoting Russ v. Russ, 39 S.W.3d 895, 897 (Mo. App. E.D. 2001)). “If service of
such process is made by a person other than an officer such person shall make affidavit as to the
time, place and manner of service thereof.” Rule 54.20(a)(2). “‘In the absence of proof of
service in accord with the rule, the court lacks the proof established by the Supreme Court as
necessary to determine that the court has jurisdiction of the person of the defendant.’” Morris,
440 S.W.3d at 576 (quoting Indus. Pers. Corp. v. Corcoran, 643 S.W.2d 816, 818 (Mo. App.
E.D. 1981)).
Service “shall be made by the sheriff or a person over the age of 18 years who is not a
party to the action.” Rule 54.13(a). Service by other than the sheriff must be by a “person
specially appointed to serve it.” Rule 54.01(b)(1). “When a party elects to use a special process
2
All rule references are to the Missouri Supreme Court Rules (2015), unless otherwise noted.
4
server, that party bears the burden of showing that all of the procedural requirements for proper
service of process have been met.” Maul v. Maul, 103 S.W.3d 819, 821 (Mo. App. E.D. 2003).
“Unlike a sheriff’s return, a special process server’s return . . . must show on its face that every
requirement of the rule has been met and may not be aided by intendments or presumptions.”
O’Hare v. Permenter, 113 S.W.3d 287, 289 (Mo. App. E.D. 2003) (quoting Walker v. Gruner,
875 S.W.2d 587, 588 (Mo. App. E.D. 1994) (emphasis added)).
The Missouri Rules provide three methods for service upon an individual: personal
service “by delivering a copy of the summons and petition personally to the individual”; abode
service “by leaving a copy of the summons and petition at the individual’s dwelling house or
usual place of abode”; and service upon “an agent authorized by appointment or required by law
to receive service of process.”3 Rule 54.13(b)(1). The Scholzes argued below only that they
effectuated abode service.
When abode service is chosen, the process must be left “with some person of the
individual’s family over the age of fifteen years.” Id. Missouri courts have not strictly defined
“family” as meaning blood relation. “Arguably, . . . to permit service of process on ‘a member
of the household’ may more accurately reflect the real meaning of the [rule] . . . .” Douglas v.
Hoeh, 595 S.W.2d 434, 439 (Mo. App. E.D. 1980). “‘If the relation between him and the other
persons of the household is of a permanent and domestic character and not intended to be merely
temporary, he is regarded as a person of the family on whom constructive service of process
against another may be made.’” Midwest Acceptance Corp. v. Blount, 777 S.W.2d 645, 646
(Mo. App. E.D. 1989) (quoting Colter v. Luke, 108 S.W. 608, 609 (Mo. App. 1908)).
3
In landlord-tenant actions for possession of property, there is a procedure to “serve the [summons] by
securely affixing a copy of such summons and the complaint in a conspicuous place on the dwelling of the premises
in question . . . and by also mailing a copy of the summons and complaint to the defendant at the defendant’s last
known address . . . .” § 535.030.2. The Scholzes did not argue that they followed this process or effectuated service
in this manner.
5
The Scholzes used a special process server to obtain abode service. Accordingly, the
return of service must show on its face that the service was to a member of the Schenks’ family
over the age of fifteen years. If the return is facially valid, it is “considered prima facie evidence
of the facts recited therein.” Rule 54.22(a). The Schenks do not challenge the return’s facial
validity, so it falls to the Schenks to rebut this prima facie evidence. 4 “‘To impeach a return of
service there must be clear and convincing evidence corroborating the denial of the party alleged
to have been served.’”5 Morris, 440 S.W.3d at 578 (quoting Cook v. Polineni, 967 S.W.2d 687,
690 (Mo. App. E.D. 1998)).
In order to rebut the case that they had been served, the Schenks offered the testimony of
Mr. Schenk, who testified that Parr was not a member of the family, did not reside with the
Schenks, and was, in fact, merely visiting their daughter. Mr. Schenk also testified that he did
not personally receive the paperwork that Ilgenfritz delivered. Normally, it would suffice to note
that “the trial court was free to believe or disbelieve [the Schenks’] evidence and to give it such
weight as the trial court thought proper.” Pasternak v. Pasternak, 467 S.W.3d 264, 274 n.6
(Mo. banc 2015).
4
The Schenks argue that, where a special process server is used, as opposed to the sheriff, the party
asserting abode service should bear the burden of proving service. But Rule 54.22(a) does not provide for differing
treatment of facially valid returns of service: “The return of service shall be considered prima facie evidence of the
facts recited therein.” Once a party provides prima facie evidence, the burden shifts to the opposing party “to
produce substantial evidence to rebut the prima facie case.” Milum v. Marsh ex rel. Lacey, 53 S.W.3d 234, 238
(Mo. App. S.D. 2001).
5
The Schenks appear to argue that, in cases in which a special process server effectuates service, a lower
standard of proof should apply. But again, Rule 54.22(a)’s mandate that “[t]he return of service shall be considered
prima facie evidence of the facts recited therein” does not explicitly contemplate differing standards for facially
valid returns. Moreover, the rationale for applying the clear and convincing standard to sheriff’s returns applies
equally to those filed by special process servers: “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.” Hoffman v. Quality Chrysler Plymouth Sales, Inc., 706 S.W.2d 576, 580
(Mo. App. E.D. 1986). “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.’” Id.; see Morris v. Wallach, 440 S.W.3d 571, 578-79 (Mo. App.
E.D. 2014) (applying clear and convincing standard to service by special process server); Van Vooren v. Schwarz,
899 S.W.2d 594, 595 (Mo. App. E.D. 1995) (Both Rule 54.22’s mandate that the return is prima facie evidence, and
the clear and convincing standard, are “applicable to all process servers, not sheriffs and deputies exclusively.”).
6
In response, the Schenks point to the trial court’s statement that it “might be inclined to
rule for the Schenks” but for the fact that the face of the return showed that Ilgenfritz had made
sufficient inquiry into whether Parr resided with the Schenks. The Schenks argue that these
comments show that the trial court believed the Schenks’ evidence that Parr did not reside with
them and, therefore, that the trial court’s ruling was either based on a misapplication of the law
or against the weight of the evidence.6
But the Schenks provide no argument as to why we should disregard the general rule that
“oral comments should not be considered where findings of fact and conclusions of law have not
been requested but are gratuitously provided by the trial court.” Harvey v. Dir. of Revenue, 371
S.W.3d 824, 827 (Mo. App. W.D. 2012). These gratuitous “oral pronouncements are not part of
the trial court’s order or judgment and may be considered only as an explanation of the order or
judgment.” Id. at 828 (quoting Matter of Fulton, 863 S.W.2d 931, 933 (Mo. App. W.D. 1993)).
Certainly, “[w]here a judgment is ‘ambiguous, uncertain, or incomplete, an appellate court may
properly look . . . to the contemporaneous oral statement of the judge, [insofar] as the same may
throw light upon the view the court took of the case during its progress and at the time of its
[judgment].’” Noble v. Noble, 456 S.W.3d 120, 128 (Mo. App. W.D. 2015) (quoting Ponyard v.
Drexel, 205 S.W.2d 267, 270 (Mo. App. 1947)). But the judgment here contains no ambiguity
whatsoever on the issue of service. Rather, it plainly states that the Schenks were “duly served
with the[] petition.”
Where, as here, there is no ambiguity in the judgment and “neither party requests that the
court make specific findings of fact or conclusions of law, we must resolve all factual issues in
accordance with the result reached and must affirm the judgment under any reasonable theory
6
Because we conclude that the court’s oral comments cannot be considered in this case, we take no
position as to whether the Schenks’ interpretation of these comments is appropriate.
7
supported by the evidence.” Harvey, 371 S.W.3d at 828 (quoting Fulton, 863 S.W.2d at 933).
As noted supra, the return of service included the letters “R/M,” which the trial court interpreted
as meaning that Parr was the Schenks’ roommate. A roommate can be considered a family
member for purposes of accomplishing abode service. See Midwest Acceptance, 777 S.W.2d at
647 (Where respondent and “roommate resided together at the place of service of process . . .
[and] they intended to permanently reside together for the period of a lease . . . [the] roommate
was properly regarded by the sheriff as a member of [respondent’s] family for purposes of
service.”). Where, as here, there is no challenge to the facial validity of the return and the return
states a factual basis for abode service, the return is prima facie evidence of service, and the
party challenging service has the burden to rebut service by clear and convincing evidence.
Morris, 440 S.W.3d at 578. Although the Schenks presented evidence that Parr did not
permanently reside with them, the trial court was free to disbelieve that evidence.7 And, under
our standard of review, where the trial court expressly found that the Schenks were “duly
served,” we must conclude that the trial court found that the Schenks did not meet their burden
and therefore did not rebut the prima facie evidence of service.
Conclusion
The trial court’s determination that the Schenks were served with process is supported by
the evidence. The judgment is affirmed.
Karen King Mitchell, Judge
Cynthia L. Martin, Presiding Judge,
and Mark D. Pfeiffer, Judge, concur.
7
Although the trial court was free to simply disbelieve Mr. Schenk’s testimony, we note that, here, there
was evidence to support the conclusion that the Schenks were attempting to avoid service. This certainly could have
led the court to question the veracity of Mr. Schenk’s testimony.
8