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City of Kansas City v. Ross

Court of Appeals of Missouri, Western District, First Division

January 24, 2017

CITY OF KANSAS CITY, MISSOURI, Appellant,
v.
DANIEL J. ROSS, Respondent.

         Appeal from the Circuit Court of Jackson County The Honorable Mary Frances Weir, Judge

          Before: Anthony Rex Gabbert, P.J., and Thomas H. Newton and Alok Ahuja, JJ.

          Alok Ahuja, Judge

         In 2005, the City of Kansas City filed suit against Daniel J. Ross in the Circuit Court of Jackson County to recover past-due City profits taxes. The City obtained a default judgment against Ross in 2005. When the City sought to execute on the default judgment in 2015, Ross filed a motion to set aside the default judgment, alleging that he had never been properly served with process. The circuit court granted Ross' motion to set aside the default judgment, and set the case for trial. On the morning of trial, the circuit court dismissed the action on the basis that, as of that time, the City had still not properly served Ross.

         The City appeals. The circuit court's dismissal of the action is presumed to be without prejudice pursuant to Supreme Court Rule 67.03. Because the City is free to re-file its tax-collection suit, and properly serve Ross in that new lawsuit, we conclude that the dismissal of the present action without prejudice is not appealable. The appeal is accordingly dismissed.

         Factual Background

         On April 8, 2005, the City sued Ross for past-due City profits taxes for the 2001, 2002, and 2003 tax years. The City sought to recover past-due taxes of $3, 900.60, as well as $896.75 in prejudgment interest, and $975.15 in penalties, for a total of $5, 772.50 as of the date the petition was filed. Ross asserts that no taxes were owed because he had agreed to a payment plan with the City, and satisfied the terms of that payment plan.

         A summons was issued on April 11, 2005, and returned non est. An alias summons was later issued, although the City and Ross dispute the date on which that occurred. A special process server's return indicates that the alias summons was personally served on Ross on October 8, 2005.

         The return of service states that Ross was served at 701 Westport Road #131 in Kansas City. Ross denies that he was personally served at that place and time, and contends that although he was previously a resident of the 701 Westport Road address, he had moved out of that location over ten years earlier.

         Ross did not appear in response to the City's petition, and a default judgment was entered against him on October 26, 2005.

         In February 2015, the City attempted to execute on the 2005 default judgment by serving a writ of garnishment on UMB Bank (it had apparently made no earlier collection efforts). In response to the City's efforts to execute on the judgment, Ross filed a Motion to Set Aside the default judgment on March 23, 2015.

         In his Motion to Set Aside, Ross argued that the default judgment was void ab initio because the Circuit Court did not have personal jurisdiction over him, because he had not been served with process in 2005. Ross' Motion also alleged that he had a meritorious defense to the underlying tax-collection action, because he had entered a payment plan with a City tax-collection employee in 2005, and had satisfied the terms of that payment plan, in full satisfaction of his tax liability for the years in question.

         On April 1, 2015, nine days after the filing of Ross' Motion to Set Aside, the City filed a motion for an extension of time to respond, asserting that it had not yet received a copy of the underlying case file from the court, and could not respond to Ross' Motion without that file. That same day, the court issued an order granting Ross' Motion and setting aside the 2005 default judgment.

         On April 27, 2015, the City filed a Motion to Reconsider the order setting aside the default judgment. The Motion to Reconsider argued that, based on the special process server's return of service, Ross was indeed personally served at 701 Westport Road on October 8, 2005. The City also argued that the circuit court had erroneously granted Ross' Motion to Set Aside before the City's time to respond had expired. The City argued that, if it had been given an ...


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