K.M.R. v. D.G.B., III

• Court: Missouri Court of Appeals
• Decided: September 24, 2019
• Docket: ED107247
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION TWO

K.M.R., ) No. ED107247 ) Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) ) Honorable Lynne R. Perkins D.G.B., II, ) ) Appellant. ) FILED: September 24, 2019

Introduction

Appellant D.G.B., II (“D.G.B.”) appeals from the judgment of the trial court granting a

full order of protection against him. On appeal, D.G.B. argues that the trial court lacked personal

jurisdiction due to improper service of process under Section 455.0401 and that the trial court

lacked substantial evidence to support its conclusion that D.G.B. had committed stalking under

Section 455.010. Because the record does not show that D.G.B. received proper service of

process, we hold that the trial court improperly exercised personal jurisdiction over D.G.B.

Accordingly, we reverse the judgment of the trial court and remand with directions to dismiss for

lack of personal jurisdiction.

1 All Section references are to RSMo (2016), unless otherwise indicated. Factual and Procedural History

In September 2018, K.M.R. sought both an ex parte order of protection and a full order of

protection against her neighbor D.G.B. K.M.R.’s petition (the “Petition”) consisted of fourteen

pages: five pages were a court form (one page of which expressly stated that it should not be

served), and nine pages were appended hand-written and typed materials describing various

incidents between D.G.B. and either K.M.R. or other neighbors. Several pages of the Petition

contained K.M.R.’s personal information, such as her address, date of birth, home phone

number, and place of employment.

Subsequently, the trial court issued an ex parte order of protection (the “Protection

Order”) against D.G.B. The Protection Order consisted of three pages: two pages were a form

completed by the trial court and the third page was a return form to be completed at a later time

by whoever effected service. Aside from her full name, the Protection Order did not contain any

of K.M.R.’s personal information.

A few days later, a police officer filed a return (the “Return”) stating that process was

served on D.G.B. on September 8, 2018. The Return consisted of four pages which, except for a

few additions, were identical to the Protection Order. The additional page was nearly blank,

appearing to be the reverse side of one of the other pages of the Protection Order. The police

officer did not complete the return form provided on page three of the Protection Order; rather,

the police officer affixed text completed in part by stamp and in part by hand providing that the

police officer delivered a “copy of the same to the within named defendant [D.G.B.].” Certain

information requested by the return form, such as the method of service, was not specified.

D.G.B. moved to quash service in the trial court. D.G.B. did not dispute that he was

served the Protection Order. Rather, D.G.B. stated that he was not served the Petition as

required by Section 455.040.2. 2 The trial court held a hearing on the motion to quash to determine what documents had

been served on D.G.B. The first witness to testify was D.G.B.’s father (“Father”), who lived

with D.G.B. at the time. Father testified that two police officers approached D.G.B. and Father’s

home and placed some papers in their mailbox. One of the police officers informed Father that

they had properly served the Protection Order. Father then retrieved the papers from the

mailbox, which only consisted of two or three pages containing what he described as “order of

protection information.”

K.M.R. testified next. K.M.R. called the police on September 8 because she believed

D.G.B. was violating the Protection Order. K.M.R. possessed two copies of what she identified

as the Petition because “when you get a petition you get two copies” and “one is a police copy.”

Police officers arrived, and one of the police officers took a copy of the Petition. The police

officer told K.M.R., “I’m only going to give [D.G.B.] the top three or four sheets because the rest

of it has sensitive information and I don’t want [D.G.B.] to have that sensitive information.” The

sensitive information referred to by the officer included K.M.R.’s address. K.M.R. handed the

police officer three or four pages, which she testified included the list of incidents based on

which the trial court granted the Protection Order. Due to their proximity as neighbors, K.M.R.

overheard the police officer tell Father that D.G.B. was being served and that the police officer

was placing the pages in Father and D.G.B.’s mailbox.

Following the taking of evidence, the trial court acknowledged uncertainty about what

documents were served on D.G.B.:

I don’t know what was served upon [D.G.B.]. While [K.M.R.] did indicate that she believes the [police] officers took three or four pages to serve him with, I don’t know what three or four pages that the [police] officers took.

The trial court then commented on the Return and Father’s testimony:

3 And to be honest with you I have [the Return] from the [police officer] indicating that proper service was had. I don’t believe [Father] when he indicates that [D.G.B.] was not there on that particular day, which brings into question his credibility as to what [Father] did or did not take from the [police officer].

The trial court concluded:

I believe the proper protocol would have been to call the [police officer] in question to give evidence as to what they did or did not do on that particular day. For those reasons I’m going to deny the Motion to Quash and move forward with the [P]etition.

The trial court proceeded with the hearing for the full order of protection. At its conclusion, the

trial court expressly deemed K.M.R. a credible witness and entered a full order of protection.

D.G.B. now appeals.

Points on Appeal

D.G.B. raises two points on appeal. Point One argues that the trial court lacked personal

jurisdiction over D.G.B. because he did not receive proper service of process under Section

455.040.2. Point Two contends the trial court lacked substantial evidence to support its

conclusion that D.G.B. had committed stalking under Section 455.010.

Standard of Review

We review the determination of personal jurisdiction de novo as a question of law.

Killingham v. Killingham, 530 S.W.3d 633, 635 (Mo. App. E.D. 2017) (citing Bate v.

Greenwich Ins. Co., 464 S.W.3d 515, 517 (Mo. banc 2015)). However, where issues of personal

jurisdiction present mixed questions of law and fact, we review the legal conclusions de novo

and defer to the trial court’s assessment of the evidence, including credibility determinations.

Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012) (per curiam) (internal citations omitted).

Discussion

Point One reasons that the trial court lacked personal jurisdiction over D.G.B. due to

improper service of process. Specifically, D.G.B. posits service was improper because D.G.B.

4 did not receive the Petition as required under Section 455.040.2. If the trial court lacked

personal jurisdiction over D.G.B., then the trial court lacked the authority to adjudicate the

proceeding seeking the order of protection. See Worley v. Worley, 19 S.W.3d 127, 129 (Mo.

banc 2000) (per curiam) (internal citation omitted).

“Proper service of process is a prerequisite to personal jurisdiction.” Killingham, 530

S.W.3d at 635. With regard to an order of protection, Section 455.040.2 provides, in relevant

part:

The court shall cause a copy of the petition and notice of the date set for the hearing on such petition and any ex parte order of protection to be served upon the respondent as provided by law or by any sheriff or police officer at least three days prior to such hearing.

(Emphasis added). Similarly, Rule 54.042 provides that “[a] copy of the summons and petition

shall be served together except when service is by publication.” (Emphasis added). Actual

notice does not cure a failure to serve process in the manner prescribed by the relevant statute or

rule. Worley, 19 S.W.3d at 129 (internal citations omitted). A motion to quash for lack of

personal jurisdiction places the burden to make a prima facie showing of personal jurisdiction on

the complaining party. Moore v. Christian Fidelity Life Ins. Co., 687 S.W.2d 210, 211 (Mo.

App. W.D. 1984) (internal citation omitted); see also Bryant v. Smith Interior Design Group,

Inc., 310 S.W.3d 227, 231 (Mo. banc 2010) (internal citation omitted).

Additionally, regarding the return of service, every police officer serving process within

the state shall make a return in writing including the time, place, and manner of service. Rule

54.20(a)(1). Such returns “shall be considered prima facie evidence of the facts recited therein.”

Rule 54.22(a). “To impeach a return of service there must be clear and convincing evidence

corroborating the denial of the party alleged to have been served[.]” Cook v. Polineni, 967

2 All Rule references are to Mo. R. Civ. P. (2018).

5 S.W.2d 687, 690 (Mo. App. E.D. 1998). Evidence is clear and convincing when it leaves us with

an “abiding conviction that the evidence is true.” Greeno v. State, 59 S.W.3d 500, 505 (Mo.

banc 2001) (internal citation omitted).

Under Section 455.040.2, proper service on D.G.B. required service of both the Petition

and the Protection Order. The requirements of Section 455.040.2 are mandatory. The record

before us compels a finding that the trial court lacked personal jurisdiction because D.G.B. was

not served the Petition as required by statute.

We reject the trial court’s sole reliance on the Return to find that the Petition was

properly served in light of the undisputed testimony that only three or four pages of unknown

contents were served on D.G.B. First, we dismiss the suggestion that the Return constitutes

prima facie evidence showing D.G.B. was served with the Petition. See Rule 54.22. Rule

54.22(a) provides that a return is “prima facie evidence of the facts recited therein.” The Return

at issue states only that D.G.B. was delivered “a copy of the same.” Importantly, the Return does

not include the Petition, thus “a copy of the same” necessarily would not have included the

Petition. Nor does the Return affirmatively state that a copy of the Petition was served on

D.G.B. Further, even if we were to entertain the argument that the Return constituted prima

facie evidence of proper service, that prima facie evidence is impeached by clear and convincing

evidence that D.G.B. was not properly served. See Cook, 967 S.W.2d at 690.

We first note that the trial court acknowledged uncertainty as to what papers D.G.B.

actually received from the police officer who attempted to make service. While some

uncertainty is understandable given the facts of this case, the evidence in the record strongly

suggests that the Petition was never served on D.G.B along with the Protection Order. In

particular, both Father and K.M.R. testified that the police officers only served between two and

6 four pages on D.G.B. The Protection Order contained three pages and the Petition contained

thirteen pages (fourteen pages minus the page intended to be excluded from service). Even if we

assume the trial court found Father completely non-credible (as it found him non-credible at least

with respect to some points) and properly excluded his testimony from consideration, K.M.R.’s

own testimony unequivocally confirms that the total number of pages with which D.G.B. was

served was only three or four pages, far fewer than the Protection Order and Petition’s combined

total of sixteen pages. See Pearson, 367 S.W.3d at 44 (internal citations omitted) (providing for

deference to the trial court’s credibility determinations in de novo review of mixed questions of

law and fact). Unlike Father, the trial court expressly found K.M.R. to be a credible witness.

See id.

Additionally, regarding the contents of the served pages, K.M.R. testified that the police

officers did not take and serve on D.G.B. at least some pages containing her personal

information. The Petition contained K.M.R.’s personal information while the Protection Order

did not. The evidence logically suggests that the pages removed from the documents to be served

on D.G.B. came from the Petition and not the Protection Order. If the police officers removed

all of the pages containing K.M.R.’s personal information—such as her address and place of

employment—they would have removed at least six pages of the Petition, and could not have

served the required thirteen pages of the Petition to D.G.B. We recognize that K.M.R. also

testified that the police officers took some pages containing the list of incidents from the Petition.

Even if these pages were served on D.G.B., at most this evidence demonstrates that some of the

Petition may have been served on D.G.B. But Section 455.040.2 requires a copy of the Petition

be served. K.M.R. presents no authority, and we are aware of no authority, holding that serving

a portion of the petition satisfies this statutory requirement.

7 After review of the record before us, and giving proper deference to the trial court’s

assessment of the evidence, we possess an abiding conviction that D.G.B. was not served with a

complete copy of the Petition. See Greeno, 59 S.W.3d at 505 (evidence is clear and convincing

when it leaves us with an “abiding conviction” that it is true); Cook, 967 S.W.2d at 690; Pearson,

367 S.W.3d at 44 (internal citations omitted). We do not share the trial court’s reliance upon the

Return filed by the serving police officer given the deficiencies of the Return. Accordingly,

because the trial court erred in finding it had personal jurisdiction to issue the full order of

protection against D.G.B., we reverse the trial court’s judgment and remand with directions to

dismiss for lack of personal jurisdiction. See Killingham, 530 S.W.3d at 635. Point One is

granted. Because we hold that the trial court lacked personal jurisdiction, Point One is

dispositive and we need not address the substantive issue raised in Point Two.

Conclusion

The judgment of the trial court is reversed and remanded with directions to dismiss for

_____________________________________ KURT S. ODENWALD, Judge

Philip M. Hess, P.J., concurs. Lisa P. Page, J., concurs.