Chapman v. Commerce Bank of St. Louis

896 S.W.2d 85, 1995 Mo. App. LEXIS 657, 1995 WL 142296
CourtMissouri Court of Appeals
DecidedApril 4, 1995
DocketNo. 67233
StatusPublished
Cited by6 cases

This text of 896 S.W.2d 85 (Chapman v. Commerce Bank of St. Louis) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chapman v. Commerce Bank of St. Louis, 896 S.W.2d 85, 1995 Mo. App. LEXIS 657, 1995 WL 142296 (Mo. Ct. App. 1995).

Opinion

GARY M. GAERTNER, Judge.

Appellants, F.A. Chapman and Carol Chapman, appeal from an order entered in the Circuit Court of the County of St. Louis finding that service was proper and reviving a judgment against appellants and in favor of respondent, Commerce Bank of St. Louis (“Bank”). We remand for actions in accordance with our opinion herein.

On July 7, 1981, Bank obtained judgment against appellants jointly and severally in the amount of $137,919.02, plus costs, with interest thereon at the rate of 9% per annum.1 The judgment was revived on July 1, 1991, pursuant to Rule 74.09. Between July of 1991 and June, 1994, Bank made several attempts to execute the judgment, all of which were unsuccessful. Bank also obtained Orders for Examination of Judgment Debtors which were delivered to the St. Louis County Sheriff, but which were returned unexecuted.

On June 80, 1994, Bank filed a Motion to Revive Judgment, pursuant to Rule 74.09.2 [86]*86The court issued its Orders to Show Cause why the judgment should not be revived. The St. Louis County Sheriff attempted to serve these orders, but they were returned after four unsuccessful attempts at delivery.

On September 2, 1994, the court issued Alias Orders to Show Cause. Utilizing Rules 54.16 and 74.09, Bank attempted service of the Alias Orders by mail. Although the notices were mailed to appellants on September 13, 1994, Bank did not receive the acknowledgments accompanying the notices during the intervening thirty days.

A hearing was held on Bank’s Motion to Revive Judgment on October 13, 1994. Attorneys for both parties were in the courtroom. At the close of the hearing, the court entered its order reviving the judgment. On October 24, 1994, counsel for appellants entered a limited entry of appearance. On the same date, appellants filed a motion for amendment of the court order. The motion was denied on November 8, 1994. This appeal ensued.

Appellants argue the order reviving the judgment was improper because the court lacked personal jurisdiction over them. Appellants contend the service by mail was defective in that the record contains no ac-knowledgement of service as is required by Rule 54.16. In response, Bank asserts that because counsel for appellants appeared at the hearing on the Motion to Revive Judgment, and did not file his entry of limited appearance until 11 days after the hearing on Bank’s motion, appellants waived any concerns regarding personal jurisdiction.

We address Bank’s contention first. Bank argues whether or not service was proper is immaterial. Bank contends the appearance of counsel at the October 13, 1994, hearing constituted a general appearance, thus waiving any claims of improper jurisdiction. We disagree.

Upon review of a court-tried case, we will sustain the judgment of the circuit court unless it is unsupported by substantial evidence, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will set aside a judgment only upon a firm belief the decree is wrong. Id.

Rule 55.27(a) addresses a party’s utilization of the defense of lack of personal jurisdiction. Rule 55.27(a) states in pertinent part:

Every defense, in law or fact, to a claim in any pleading, ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
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(2) lack of jurisdiction over the person;
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A motion making any of these defenses shall be made within the time allowed for responding to the opposing party’s pleading, or, if no responsive pleading is permitted, within thirty days after the service of the last pleading.... If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to the claim for relief.

This court has interpreted Rule 55.27 to mean that

‘special appearances’ are no longer required and that waiver of a defense or objection listed in 55.27(a) occurs (1) when that defense or objection is not raised in a motion raising other defenses or objections or (2) in the event that no such motion is filed then when the defense or objection is not raised in responsive pleading.

Kloos v. Corcoran, 643 S.W.2d 94, 96 (Mo.App.E.D.1982).

Here, we find no waiver. Counsel for Bank indicated to the court he received a phone call from appellants’ counsel the day before the hearing. During that conversation, counsel for Bank was informed appellants were going to contest service. At the hearing, appellants’ counsel made no statement for the record until the moment the court began to enter its order sustaining Bank’s Motion to Revive Judgment. At that time, counsel interrupted the court to establish that his clients were contesting service. [87]*87Counsel never addressed the merits of the Motion to Revive Judgment. He simply argued that Bank’s attempt at service by mail was defective.

Relying on Rule 55.27 and this Court’s interpretation of that rule in Kloos, we find appellants adequately raised the issue of the court’s lack of personal jurisdiction. Although a written motion is preferred, an oral motion in open court is sufficient. King v. Clifton, 648 S.W.2d 193, 196 (Mo.App.S.D.1983); Machens v. Machens, 263 S.W.2d 724, 733 (Mo.1953). Our review of the entire record indicates that, to date, appellants have not addressed the merits of Bank’s motion and have solely contested the issue of personal jurisdiction. Appellants have not waived the defense of lack of personal jurisdiction. Having so decided, we now turn to appellants’ point on appeal.

Appellants suggest the trial court lacked personal jurisdiction over them due to ineffective service, thus rendering the court’s order sustaining Bank’s motion void. We agree.

Bank concedes that after the St. Louis County Sheriffs Office was unable to serve the Orders to Show Cause upon appellants, Bank utilized Rule 54.16 in an attempt to serve Alias Orders by mail. Bank also admits that though the notices were mailed to appellants on September 13, 1994, the acknowledgments indicating receipt of the Orders had not been returned by the Post Office during the intervening thirty days. Rule 54.16 provides in pertinent part:

Service of the summons and petition upon a resident ... defendant ... may be made by mailing a copy of the summons and petition by first class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Civil Procedure Form 4B or Civil Procedure Form 4C and a return envelope, postage prepaid addressed to the sender. If no acknowledgment of service under this Rule 54.16 is completed and returned to the sender, service of the summons and petition shall be made as otherwise provided by statute or rule.

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Bluebook (online)
896 S.W.2d 85, 1995 Mo. App. LEXIS 657, 1995 WL 142296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chapman-v-commerce-bank-of-st-louis-moctapp-1995.