Peril of Proper Process: Certified Mail Fails Again

November 18, 2019 § Leave a comment

Donald Pritchard filed a Complaint for Divorce against his wife, Lisa, on March 17, 2017. Lisa by then had moved to Alabama.

Donald mailed a copy of the complaint and summons via certified mail to two addresses that Lisa was known to use in Alabama: her residence; and her mother’s. Neither envelope was marked, “restricted delivery.” The copy mailed to Lisa’s address was neither delivered nor refused; the postal service returned to sender stamped “unclaimed.”

As for the copy delivered to Lisa’s mother’s address, Lisa’s sister, Pamela Berthiaume, signed the receipt indicating she was Lisa’s agent (later denied by Lisa). Donald filed the receipt as proof of service. The clerk noted on the docket that Lisa’s answer was due on May 14, 2017. Lisa’s sister met with Lisa, gave her the copy of pleading and summons; and read it with her to help her understand.

On the day appointed for hearing, Lisa did not appear, and the chancellor granted a divorce on the ground of desertion, entering its final decree on June 5, 2017.

Lisa filed a motion to set aside the divorce judgment on June 13, 2017, claiming that the court lacked personal jurisdiction because she was never properly served with process. A hearing on the motion was held in April, 2018, and the court overruled it finding that: Lisa was properly served by certified mail; she had actual notice of the complaint, but she failed to answer or appear; and the court did consequently have jurisdiction.

On appeal, the COA reversed, vacated, and remanded. The case, Pritchard v. Pritchard, was handed down August 27, 2019. Predictably, the opinion penned by Judge Corey Wilson points out that the technical requirements of MRCP 4 were not met, and the fact that Lisa had actual knowledge of the suit was not enough to satisfy R4. There’s nothing novel here; you can read it for yourself.

In dissent, Judge Jack Wilson makes the intriguing argument that Lisa indeed was served with process — personally by her sister Pamela Berthiaume. Here’s how he explains it:

¶36. I agree with the majority that Donald’s attempts to serve Lisa by certified mail were ineffective because the mailing was not marked “restricted delivery” and was returned as “unclaimed.” See M.R.C.P. 4(c)(5); Long v. Vitkauskas, 228 So. 3d 302, 304 (¶6) (Miss. 2017) (“Mississippi Rule of Civil Procedure 4(c)(5) requires a mailing of process to an out-of-state, natural defendant be marked ‘restricted delivery.’”); Bloodgood v. Leatherwood, 25 So. 3d 1047, 1051 (¶16) (Miss. 2010) (“A returned envelope marked ‘unclaimed’ is insufficient to satisfy service requirements under Rule 4(c)(5).”).

¶37. However, the chancery court did not err by denying Lisa’s motion to set aside the divorce decree because there was sufficient evidence for the court to find that Lisa was personally served with the summons and complaint. A “sheriff or process server” may accomplish personal service on a competent adult “by delivering a copy of the summons and of the complaint to [her] personally.” M.R.C.P. 4(d)(1)(A). A “process server” may be “any person who is not a party and is not less than 18 years of age.” M.R.C.P. 4(c)(1).

¶38. Here, Donald mailed a copy of the summons and complaint by certified mail to Lisa at her mother’s address. Lisa did not accept the mailing. However, Lisa’s sister [Pamela] (Berthiaume) signed for it and then personally delivered the complaint to Lisa. Berthiaume testified that she even read the complaint to Lisa. [Fn 6] Thus, Berthiaume “personally” served the complaint consistent with the plain language and requirements of Rule 4(c)(1).

[Fn 6] At the hearing on Lisa’s motion to set aside the divorce decree, Berthiaume testified, in response to a direct question from the chancellor, that the document that she delivered to Lisa was Donald’s complaint for a divorce. In his bench ruling at the conclusion of the hearing, the chancellor found that Berthiaume had delivered the summons and complaint to Lisa. See Smith v. Church Mut. Ins., 254 So. 3d 57, 62 (¶11) (“As to issues of service of process, this Court reviews the trial court’s findings for an abuse of discretion.”). Berthiaume later signed an affidavit in which she claimed that she was “confus[ed]” when she testified in court. In her affidavit, Berthiaume asserted that the document that she delivered and read to Lisa was actually a proposal for an irreconcilable differences divorce, not a complaint. Lisa submitted Berthiaume’s affidavit in support of her motion to reconsider the denial of her motion to set aside the divorce decree. However, Lisa never produced the alleged proposal for an irreconcilable differences divorce. The chancellor denied Lisa’s motion to reconsider.

¶39. The majority opinion suggests that personal service was not effective because Donald never asked Berthiaume “to act as a process server consistent with Rule 4(c)(1)” or because “there is no proof of service to substantiate a date on which Lisa was personally served.” Ante at ¶27. The majority then states personal service was ineffective because there was not “strict compliance” with “the plain requirements of Rule 4.” Ante at ¶28.7 With respect, I disagree.

¶40. The plain language of Rule 4(c)(1) requires nothing more than personal delivery of the summons and complaint by a nonparty adult. As the chancellor found, that happened in this case. Rule 4(c)(1) does not require that the “process server” agree or even intend to act as such. In addition, Rule 4(f) specifically provides that “[f]ailure to make proof of service does not affect the validity of the service.” M.R.C.P. 4(f) (emphasis added). Because Donald did not file proof of personal service, he was not entitled to an evidentiary presumption of valid service. See Collins v. Westbrook, 184 So. 3d 922, 929 (¶18) (Miss. 2016) (explaining that a properly executed proof of service raises a rebuttable presumption that service occurred). However, based on Berthiaume’s own testimony, the chancellor found that personal service had in fact occurred. Thus, the lack of a properly executed and filed proof of personal service is unimportant.

¶41. Our courts have not addressed this issue previously, but the Washington Supreme Court held that similar “secondhand” service constituted valid personal service under that state’s substantively identical rules of procedure. See Scanlan v. Townsend, 336 P.3d 1155, 1160-62 (¶¶22-34) (Wash. 2014). In that case, “a process server delivered a copy of the summons and complaint to [the defendant’s father] at his home. But [the defendant (Townsend)] did not live at her father’s home. Townsend’s father later handed the summons and complaint directly to Townsend . . . .” Id. at 1156 (¶1). Townsend denied that such “secondhand” service was effective. However, the Washington Supreme Court rejected her argument, reasoning that “[n]othing in the plain language of [Washington Civil Rule] 4(c) precludes Townsend’s father, who is over 18 years old, is competent to be a witness, and is not a party, from having authority to serve Townsend.” Id. at 1161 (¶26).

¶42. In Scanlan, the Washington Supreme Court followed a prior Washington Court of Appeals decision in a case that involved personal service by the defendant’s neighbor. See id. at 1161-62 (¶¶31-34) (discussing Brown-Edwards v. Powell, 182 P.3d 441 (Wash. Ct. App. 2008)). In Brown-Edwards, a process server mistakenly delivered the summons and complaint to the defendant’s neighbor, but the neighbor then personally delivered the documents to the defendant. Scanlan, 336 P.3d at 1161 (¶31). The neighbor’s delivery was deemed valid personal service because the neighbor “certainly [met] the criteria for a process server.” Id. at (¶32) (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). As the court explained, Nothing in the rule requires that a process server have a contractual obligation to serve process. Nor is there any requirement of proof of intent to serve process. And we find nothing that would prohibit a person who comes into possession of a summons and complaint by defective service from being a competent process server. The rule prohibits only a party to the action from serving process. Id. (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). In short, a person can effect valid personal service even if she does so unwittingly.

¶43. The reasoning of the Washington courts is persuasive. Berthiaume came into possession of the summons and complaint as a result of a defective attempt at service by certified mail, but she then personally served Lisa in a manner consistent with the plain language and requirements of Rule 4(c)(1). We are bound to apply the “plain language” of the rule rather than “our own notions” of how the rule perhaps should read. Poindexter v. S. United Fire Ins. Co., 838 So. 2d 964, 971 (¶30) (Miss. 2003) (plurality op.) (applying Mississippi Rule of Civil Procedure 15(a)); accord id. at 972 (¶35) (Waller, J., concurring). On the facts of this case, valid personal service occurred under Rule 4(c).

¶44. In summary, there was sufficient evidence for the chancellor to find that Berthiaume personally delivered the summons and complaint to Lisa, and such personal service satisfies the plain language of Rule 4(c)(1). [Fn 8] I would affirm the decision of the chancery court
denying Lisa’s motion to set aside the divorce decree. Therefore, I respectfully dissent.

[Fn 8] Lisa did not receive notice of the hearing on Donald’s complaint. However, both this Court and the Supreme Court have held that there is no obligation to give notice of such a hearing to a party who fails to enter an appearance or answer a complaint for divorce. Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶11) (Miss. 2002); Stinson v. Stinson, 736 So. 2d 1259, 1261-62 (¶¶6-10) (Miss. Ct. App. 1999); Carlisle v. Carlisle, 11 So. 3d 142, 145 (¶10) (Miss. Ct. App. 2009).

Whichever opinion you find persuasive, you must admit that Judge Wilson has a good point (think about that for a minute).

It would be interesting to see what the MSSC would do with this issue.

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