Frank Morris v. Roger Wallach
440 S.W.3d 571
| Mo. Ct. App. | 2014Background
- Morris sued Wallach for breach of contract seeking $60,000; summons returned non est twice and court appointed private server Gateway Investigations (Timothy Woodburn).
- Woodburn filed a proof of service stating he personally served Wallach on January 5, 2010 at 6:30 p.m.; Woodburn testified he approached two men at a driveway, called Wallach’s name, handed papers to one who matched a photo, and that neither man spoke.
- Wallach did not file an answer; court entered default judgment for $78,108.49 after a default hearing on May 18, 2010.
- Wallach moved under Rule 74.06(b) to set aside the default judgment (filed Jan. 6, 2012), claiming he was never served and the court lacked personal jurisdiction.
- At an evidentiary hearing, the special process server testified to personal service; Wallach stipulated he would deny service. Trial court found the server credible, denied the motion, and allowed plaintiff to amend the proof of service to identify the place of service.
- Wallach appealed, arguing defective proof of service under Rule 54.20 and that he presented clear and convincing evidence he was not served; the appellate court affirmed.
Issues
| Issue | Morris's Argument | Wallach's Argument | Held |
|---|---|---|---|
| Was the default judgment void for lack of personal jurisdiction because proof of service violated Rule 54.20? | Proof of service (as amended) satisfied Rule 54.20; any facial defects were cured by amendment under Rule 54.22. | Proof of service had multiple facial defects (wrong court, omitted document type, no place of service, false statement about ID), so judgment is void. | Amended proof of service cured the only Rule 54.20 defect (place of service); court retained jurisdiction. |
| Could plaintiff amend the defective return under Rule 54.22? | Amendment was proper and related back to original return; no prejudice shown. | Amendment should not cure fundamental jurisdictional defect. | Court permissibly allowed amendment; Wallach did not challenge that ruling on appeal. |
| Did Wallach overcome the presumption of proper service by clear and convincing evidence? | The server’s sworn return and testimony created a prima facie presumption of service. | Wallach’s denial and affidavit impeached the return; factual inconsistencies required setting aside judgment. | Wallach’s evidence was self-serving and not clear and convincing; trial court credited server. |
| Did any irregularities render the judgment void under Rule 74.06(b)(4)? | No — final judgment not void where personal service established by amended return and credible testimony. | Yes — alleged procedural defects meant lack of personal jurisdiction. | Judgment was not void; Rule 74.06(b)(4) relief denied. |
Key Cases Cited
- Christianson v. Goucher, 414 S.W.3d 584 (Mo. Ct. App.) (amendment of return can cure deficient proof of service where defendant not prejudiced)
- Walker v. Gruner, 875 S.W.2d 587 (Mo. Ct. App.) (special process-server returns are not conclusively presumed)
- Russ v. Russ, 39 S.W.3d 895 (Mo. Ct. App.) (return must show on its face compliance; appellate deference to credibility findings)
- Cook v. Polineni, 967 S.W.2d 687 (Mo. Ct. App.) (service is prerequisite to personal jurisdiction; corroboration required to impeach return)
- Reisinger v. Resinger, 39 S.W.3d 80 (Mo. Ct. App.) (heavy burden when using specially appointed process server; proof must show time, place, manner)