This is a pro se appeal from a final relief-from-abuse order. Despite defendant–appellant’s putatively
valid claims of improper service, the SCOV majority affirms.
Plaintiff filed a complaint “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 didn’t show for the final hearing
and the original order expired. A few
days afterward, plaintiff filed another complaint on the same basis, explaining
that a death in the family caused her to miss the previously scheduled final
hearing. Defendant was [allegedly]
served with the paperwork and notice of hearing in prison by a prison official. Defendant [allegedly] refused to sign the
acceptance of service. The prison official’s
return of service made it into the court’s file.
Plaintiff made it to the second final hearing, but defendant did
not. The trial court issued a three-year
final order. Defendant was again served
by a prison official and again refused to accept service. The prison official’s return of service again
made it into the court’s file.
On appeal, defendant’s first claim is lack of notice of the final
hearing. The majority says there’s a
return of service in the file. “He had
actual notice.” Next . . .
Defendant’s claim is improper service—that he was served by a
prison official and not a law-enforcement officer. This is a much thornier issue and the majority
does not resolve it directly (though there’s a simply riveting discussion of
the service provisos of the Rules of Civil Procedure as applicable under the
Rules for Family proceedings). Rather,
the majority concludes that because it is apparently undisputed that defendant
had actual notice, he needed to address the improper-service argument to the
trial court. Because he didn’t, he fails
to preserve the issue for appeal.
The majority does not address defendant’s other arguments after
finding him to have waived his improper-service argument and therefore
affirms.
Justice Dooley, joined by Justice Robinson, dissents. The dissent notes that the burden is on the
plaintiff (and sometimes the court on a plaintiff’s behalf) to “follow very
specific requirements, and no relief is appropriate unless an action has been
properly instituted.” The dissent would
direct that service be quashed or the case be dismissed.
The dissent begins with a similar-to-the-majority review of the
service-of-process provisos. The dissent
takes it a step further, however, opining that service by a sheriff or deputy
(as required by the rule or so it would seem) is “a critical neutral
requirement to ensure due process of law. Defendant was not served in
accordance with this rule. He was served by a unit manager at the prison,
and the lawsuit was therefore never properly initiated.” The dissent maintains that proper service is
an essential prerequisite to a properly issued final order.
The dissent notes that while an insufficient-service-of process
defense can be waived, “the conditions necessary for waiver are not present
here.” The dissent notes the summary
nature of relief-from-abuse proceedings—a final hearing must be held within ten
days of a temporary order’s issuance—in comparison to the filing of a civil
complaint, which a defendant has twenty days to answer and assert defenses such
as—you guessed it—insufficient service.
The dissent concludes: “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.”
If nothing else, this case is worth looking at for interesting
service-related arguments. If not
limited specifically to relief-from-abuse proceedings, it certainly seems to be
a pro-plaintiff decision—but who really knows how it will all sugar out. The SCOV may even reverse
itself if the right argument comes along.
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