Court of Appeals of Missouri, Western District, First Division
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.
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.
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
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
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.
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.
did not appear in response to the City's petition, and a
default judgment was entered against him on October 26, 2005.
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.
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.
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.
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 ...