Rhonda Cameron Rollo v. David W. Cameron
No. 12-166
Supreme Court of Vermont
September 13, 2013
2013 VT 74 | 82 A.3d 1184
Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 44. Further, we find no malice in contractor‘s refusal to release certain building lots from the lien so that developer could complete the sales for those lots, even assuming as developer alleges, that the remaining land was of sufficient value to cover contractor‘s claim. Nothing in the statute requires a contractor to reduce the amount of land validly covеred by a lien on the theory that the lien can cover only such land as is equal in value to the outstanding claim. As explained above, contractor had a good-faith claim for the amount it was owed under the contract, and filed the lien to ensure payment of that debt. Contractor was not obligated to release the lien, or part of it, so that developer could complete the sale of several lots. Neither was contractor completely intransigent on the issue; it negotiated with developer and released the lien after developer deposited the amount due in an escrow account. Therefore, the evidence supports the court‘s finding that contractor acted tо protect its interest in being paid and not out of malice or ill will.
Affirmed.
Rhonda Cameron Rollo, Pro Se, St. Albans, Plaintiff-Appellee.
David W. Cameron, Pro Se, Newport, Defendant-Appellant.
¶ 2. The record discloses that plaintiff filed a complaint on April 23, 2012, seeking to extend an existing relief-from-abuse order against defendant issued a year earlier based on threats that defendant would kill plaintiff when released from prison. Plaintiff
¶ 3. Plaintiff was present at the hearing on May 7, 2012. Defendant, however, failed to appear in person or by telephone. The court issued a final order, effective until May 7, 2015, that imposed restrictions on defendant that were contained in the temporary order and that precluded defendant from сontacting or threatening plaintiff. Defendant was personally served with the final order, again at the Lee Adjustment Center in Kentucky, and the record contains a return of service, dated May 8, 2012, indicating that a prison official from the Center hand delivered the final order to defendant, and that defendant refused to sign the acceptance of service.
¶ 4. On appeal, defendant contends that he did not receive notice of the final hearing. As noted, however, the record contains a return of service indicating that the complaint and the court‘s temporary order containing notice of the hearing, scheduled for May 7, 2012, were personally served on defendant on May 2, 2012. He had actual notice. Acсordingly, we find no merit to the claim.
¶ 5. Defendant also argues that he was not properly served because service was made by a prison official rather than a law enforcement officer. He challenges service under both
¶ 6. By statute, rеlief-from-abuse proceedings are governed by the Vermont Rules for Family Proceedings.
¶ 7. When an emergency relief order is sought in family court, the court can issue a temporary order when certain findings are made. See
¶ 8. Confusion is created by the inclusion of the “complaint” within
¶ 9. Defendant maintains that service was not effectuated in accordance with Civil Rule 4. His primary complaint focuses on a lack of evidence that the prison official was a person listed authorized to serve a complaint under Civil Rule 4. See
¶ 10. Nonetheless, what is clear from the record, and what is uncontested by defendant, is that defendant was afforded actual notice of the temporary order and complaint. We have held that a party who has received actual notice of a suit against him must raise all the jurisdictional objections in a timely manner. One such defense that may be waived if not timely filed is insufficiency of service of process. See, e.g., Myers v. Brown, 143 Vt. 159, 167, 465 A.2d 254, 258 (1983). “[I]nsufficiency of service of process” is specifically included among the defenses that may be waived if not timely raised under
¶ 11. To properly assert the defense of insufficient service of process, defendant needed to either file a motion to dismiss prior to the final relief-from-abuse hearing or raise the defense at the hearing itself. See Gaboriault v. Van Aelstyn, No. 2003-290, 2004 WL 5583286, at *2 (Vt. Jan. 7, 2004) (unpub. mem.), http://www.vermontjudiciary.org/d-upeo/upeo.aspx (holding that defendant waived his claim of improper service when he failed to raise such claim at hearing held less than twenty-four hours after he was served temporary relief-from-abuse order). Defendant failed to do either.
¶ 12. Accordingly, we have held that where, as here, a party was afforded actual notice of an action, and later suffers a default judgment, the failure to plead defective service results in a waiver оf the issue on appeal. Myers, 143 Vt. at 166-67, 465 A.2d at 258; see also In re Burlington Elec. Dep‘t, 141 Vt. 540, 546, 450 A.2d 1131, 1134 (1982) (explaining that where process is not in substantial compliance with requirements, “the defect may be waived” (quotation omitted)). Thus, any error in this regard was waived.
¶ 13. While the dissent faults plaintiff with failing to comply with the rules, given the process set forth in the Rules for Family Proceedings and the statutes governing emergency relief, that assignment of blame сannot stand. It is the court that initiates
¶ 14. In light of defendant‘s default, the remaining claims attacking the merits of the order were not raised below, and were not preserved for review. LaMoria v. LaMoria, 171 Vt. 559, 560, 762 A.2d 1233, 1235 (2000) (mem.). We therefore discern no basis to disturb the judgment.
Affirmed.
¶ 15. Dooley, J., dissenting. To initiate a lawsuit, a party, or the court on the party‘s behalf, must follow very specific requirements, and no relief is appropriate unless an action has been properly instituted. Plaintiff, оr the court, did not comply with the rules here, and plaintiff therefore was not entitled to the relief granted to her by the trial court. I would reach the merits of defendant‘s insufficient-service-of-process defense, and either direct that service be quashed or that the case be dismissed. I therefore dissent.
¶ 16. To initiate a relief-from-abuse case, a plaintiff must file а complaint supported by an affidavit.
¶ 17. By statute, relief-from-abuse proceedings are governed by the Vermont Rules for Family Proсeedings.
¶ 19. By rule, complaints and summonses must be served “by a sheriff or deputy sheriff, by a constable or other person authorized by law, or by some indifferent person specially appointed for that purpose by any superior judge, or a judge of the court to which it is returnable.”
¶ 20. Proper service of process is imperative. As we have explained, while a court may have subject matter jurisdiction over a case, it cannot exercise this authority on its own motion. Howe v. Lisbon Sav. Bank & Trust Co., 111 Vt. 201, 207, 14 A.2d 3, 6 (1940). Instead, the “parties and their case must be brought before it,” which “is accomplished by the use of process.” Id. The court is thereby “empowered to exercise its judicial authority and so when we state that process confers jurisdiction we mean that it empowers the court to exercise authority derived from law.” Id. at 208, 14 A.2d at 6 (explaining that this authority is passive in nature until made active by process or something that the law permits to perform the function of it). The U.S. Supreme Court expresses a similar view: “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). In other words, “one becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id.
¶ 21. While it is true that the defense of insufficient service of process can be waived, the conditions necessary for waiver are not
¶ 22. The relief-from-abuse process does not contemplate the filing оf an answer, however, nor will twenty days generally elapse before issuance of a final order. Indeed, the law requires that, where a temporary relief-from-abuse order has been granted, a final hearing must be held within ten days.
¶ 23. For the same reason, this case is also distinguishable from Myers v. Brown, 143 Vt. 159, 465 A.2d 254 (1983), cited by the majority. In Myers, a defendant sought to set aside a default judgment because it had never been served with either a complaint or a summons. The defendant had actual knowledge of the lawsuit, but the plaintiffs served the wrong party. Despite knowledge of the suit, the defendant did not file any motion, answer, or other responsive pleadings within the time permitted by Civil Rule 12. We agreed with the defendаnt that service had been insufficient, but concluded that this was a procedural shortcoming of the type that may be waived. As we explained, “a party who has received actual notice of a suit against him must raise all the jurisdictional objections listed in
¶ 24. Defendant here had no opportunity to raise the defense of insufficient service of process “within the time and in the manner prescribed” by Civil Rule 12 because a final order issued before twenty days elapsed. Thus, defendant could not have waived this defense.
¶ 25. The majority decision refers in numerous places to notice of the hearing and service of the temporary restraining order. Thе fact that defendant knew of the time and date of the hearing and did not appear, and knew of the issuance of the temporary ex parte order, is irrelevant to the determination of whether there
¶ 26. We should conclude that service was not properly made in this case, and direct the trial сourt to either dismiss the case or quash the service made on defendant. See generally 5B C. Wright & A. Miller, Federal Practice & Procedure § 1354, at 348 (3d ed. 2004) (explaining that where party moves to dismiss for insufficient service of process, court may either dismiss action or quash process without dismissing action, and noting that difference between two results is not substantial). Plaintiff can then either reinstitute the action, or, if service is quashed, simply reserve defendant in accordance with the rules. We should not allow plaintiff to avoid her responsibility for ensuring proper service, and we should not allow a court to grant relief where a lawsuit was not properly initiated.
¶ 27. I am authorized to state that Justice Robinson joins this dissent.