Thursday, November 7, 2013

Waiver of Service?

Rollo v. Cameron, 2013 VT 74

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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