Kountze v. Domina Law Group
A-16-033, A-16-272
| Neb. Ct. App. | May 16, 2017Background
- Domina Law Group sued Edward Kountze in Sept. 2013 for unpaid legal fees and mailed the summons and complaint by certified mail to 12 residential addresses obtained from a Westlaw people search, including a Portland Place (Boulder, CO) residential address; Domina did not mail to a Boulder PO box it had used for billing.
- Domina filed proof of service showing delivery at the Portland Place address; Kountze did not appear, and Domina obtained a default judgment in June 2014.
- Kountze alleged he never received the summons and, in 2015, sought to vacate the default judgment under Neb. Rev. Stat. § 25-2002; the district court vacated the judgment, finding service was not reasonably calculated to give notice.
- The district court concluded Domina should have attempted service at the Boulder PO box (which Domina had used for billing and which appeared in public records) and that the signed receipt did not clearly show who signed for the certified mail.
- Because more than six months had elapsed since filing and service had not been properly perfected, the district court dismissed the original 2013 action under Neb. Rev. Stat. § 25-217 as a matter of law.
Issues
| Issue | Plaintiff's Argument (Domina) | Defendant's Argument (Kountze) | Held |
|---|---|---|---|
| Whether certified-mail service to Portland Place was reasonably calculated to give notice | Reliance on an address listed as Kountze’s legal address with Colorado DMV and liberal construction of service statutes made the Portland Place service adequate | Service was not reasonably calculated; Domina knew and used a Boulder PO box for billing and should have served there | Service to Portland Place was not reasonably calculated; vacatur of default judgment affirmed |
| Whether service may be perfected to a PO box by certified mail | Domina argued PO box was unreliable and believes PO boxes can’t perfect service | Kountze pointed to Domina’s long use of the PO box as evidence it could give notice | Court held nothing prohibits serving a PO box by certified mail and Domina should have attempted service there |
| Whether vacating default judgment was an abuse of discretion | Domina contended vacatur was erroneous if service was proper | Kountze argued due process required vacatur because he lacked notice | Vacatur was within court’s discretion given insufficient notice under due process |
| Whether § 25-217 required dismissal after vacatur | Domina argued dismissal was improper if service had been adequate | Kountze argued mandatory dismissal because no proper service within 6 months | Dismissal under § 25-217 was mandatory; case dismissed without prejudice |
Key Cases Cited
- Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010) (due-process standard: service must be reasonably calculated to apprise defendant of the action)
- State on behalf of Ja’Quezz G. v. Teablo P., 293 Neb. 337, 878 N.W.2d 358 (2016) (certified-mail service upheld where address was provided by defendant to state and someone in defendant's family signed)
- Capital One Bank (USA), N.A. v. Lehmann, 23 Neb. App. 292, 869 N.W.2d 917 (2015) (certified-mail service upheld where notice was sent to address defendant provided to bank and was signed for by spouse)
- County of Hitchcock v. Barger, 275 Neb. 872, 750 N.W.2d 357 (2008) (post office box can satisfy due-process notice in appropriate circumstances)
- Carrel v. Serco Inc., 291 Neb. 61, 864 N.W.2d 236 (2015) (standard of review for vacating default judgment: appellate review for abuse of discretion)