James and Susanne Scholz v. Wayne "Ross" Schenk and Stacy Michelle Schenk
2016 Mo. App. LEXIS 192
| Mo. Ct. App. | 2016Background
- In Jan. 2014 Wayne and Stacy Schenk rented a Warrensburg, MO home from James and Susanne Scholz; rent due by the 3rd of each month.
- The Schenks fell behind on October–December 2014 rent; Scholzes sued for possession and past-due rent and moved for appointment of a special process server.
- Special process server Tom Ilgenfritz filed a return stating he left the complaint at the Schenks’ dwelling with “Jolene Parr R/M a person of the [Schenks’] family over the age of 15 years.”
- At a preliminary hearing on service, Mr. Schenk testified Parr was a friend visiting their daughter and did not reside with them; Ilgenfritz testified Parr told him she resided there and accepted the papers.
- The trial court found the return’s “R/M” (interpreted as roommate) and the inquiry by the server sufficient, concluded the Schenks were duly served, entered judgment for $3,162 and possession, and the Schenks appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was abode service valid when papers were left with Jolene Parr labeled “R/M”? | Scholz: Return facially shows abode service on a family/household member (R/M = roommate); return is prima facie evidence. | Schenk: Parr did not reside there or qualify as family; he was not personally served. | Court: Affirmed—facially valid return creates prima facie evidence; Schenks failed to rebut by clear and convincing evidence. |
| Burden of proof when special process server used | Scholz: Return is prima facie and shifts burden to challenger to rebut. | Schenk: Special server return should not get same deference as sheriff’s return. | Court: Rule 54.22 treats returns as prima facie regardless of server; challenger must rebut. |
| Meaning of “family” for abode service | Scholz: "Family" can include household members/roommates who permanently reside together. | Schenk: Parr was only a temporary visitor, not family or household member. | Court: "Family" may include a roommate; court may disbelieve Schenk’s testimony and uphold return. |
| Use of trial court’s oral comments | Schenk: Oral comments indicate court believed Schenks and thus misapplied law. | Scholz: Judgment is unambiguous; oral remarks are not part of the judgment. | Court: Judgment unambiguous; oral comments not controlling; affirm judgment. |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of appellate review for court-tried cases)
- Morris v. Wallach, 440 S.W.3d 571 (Mo. App. E.D. 2014) (return of service and rebuttal standard; clear and convincing evidence required)
- O’Hare v. Permenter, 113 S.W.3d 287 (Mo. App. E.D. 2003) (special process server’s return must show rule compliance on its face)
- Midwest Acceptance Corp. v. Blount, 777 S.W.2d 645 (Mo. App. E.D. 1989) (roommate/household member may qualify as family for abode service)
- Maul v. Maul, 103 S.W.3d 819 (Mo. App. E.D. 2003) (party using special process server bears burden to show procedural requirements were met)
- Hoffman v. Quality Chrysler Plymouth Sales, Inc., 706 S.W.2d 576 (Mo. App. E.D. 1986) (discussion of rationale for clear and convincing standard for service returns)