REAVES v. HARVEY MOLD LADY AND CONSTRUCTION SERVICES LLC (2026)

Introduction

In this action against Defendant P. Harvey's Mold Lady and Construction Services, Plaintiff Mindy Reaves appeals the circuit court's judgment granting Defendant's Motion for Relief Pursuant to Rule 74.06(b)(4) and setting aside as void a default judgment entered against Defendant. We hold Defendant's motion did not state grounds for finding a void judgment. We thus reverse the circuit court's judgment and remand the cause to the circuit court for reentry of the default judgment that the circuit court set aside.

Factual and Procedural Background

Plaintiff brought the present action to recover damages for serious medical injuries allegedly suffered as a result of mold present in a house Plaintiff leased from Defendant. At the heart of this appeal is whether service was had upon Defendant. Plaintiff filed her Petition against Defendant in August of 2010. Service of the Petition was attempted upon Registered Agent Judith Bray at a residential address in Chesterfield, Missouri. On the third attempt, the process server determined that Bray no longer lived at this address. Plaintiff's counsel then filed another Request for Alias Summons and for the appointment of a Special Process Server. The entity Plaintiff requested to be appointed was Judicial Process and Support, International (“Foreign Process Server”). In addition to these requests, Plaintiff's counsel also filed a motion for extension of time to obtain service. In the Motion, Plaintiff stated that the address found for Ms. Bray was in the United Kingdom, that Plaintiff had contracted with the Foreign Process Server to obtain service upon Defendant under the Hague Convention in the United Kingdom, and that service under the Hague Convention could take up to one year.¹ Each of these statements was supported by an affidavit submitted by the President of the Foreign Process Server. The circuit court granted the motion for continuance and extension of time on June 15, 2021.

On August 20, 2021, Plaintiff filed a Return of Service upon Bray with the circuit court. The cover letter for the Return of Service indicates that it comes from the Scottish Government, Justice Directorate, Civil Law & Legal System Division and states that service was obtained upon Judith J. Bray in accordance with Scottish Law. The return of service, entitled Request for Service Abroad of Judicial or Extrajudicial Documents, is enclosed with the letter. Page Two of the return is a Certificate stating that the Summons and petition were served upon Bray at 11 High Street, Cromarty, IVII 8UZ on June 17, 2021. Also contained on the third page is a signature and a stamp with the following: Central Authority for Scottish Government, Justice Directorate. Defendant did not answer or otherwise respond.

On December 21, 2021, Plaintiff filed her Motion for Default Judgment. The circuit court held a hearing on the motion on June 1, 2022.² Plaintiff did not personally appear due to health concerns but appeared through counsel. The circuit court called for Defendant three times. Defendant, however, failed to appear personally or by any representative. The circuit court entered its Default Judgment on the record on that date but did not file a judgment pending the submission of an affidavit from Plaintiff as to her damages. Plaintiff submitted this affidavit on June 9, 2022, and the circuit court entered its Default Judgment on that day. In the Default Judgment, the circuit court expressly found that service was obtained through the Hague Convention of 15 November 1965 on the Service of Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, and that it had been served in accordance with the laws of Scotland of the United Kingdom. The circuit court awarded damages in the sum of $87,000,000.

On April 28, 2023, Plaintiff filed a pro se Motion to Dismiss counsel. Plaintiff also filed her Motion to Amend/Correct Name of Defendant. Plaintiff sought to change the name of the Defendant from “P Harvey Mold Lady and Construction Services, LLC” to “P. Harvey’s Mold Lady and Construction Services, LLC.” (adding a “.” after P and adding a “’s” to Harvey). Plaintiff submitted an amended petition with the corrected name of Defendant throughout. The circuit court on May 5, 2023, granted Plaintiff's motion and entered an amended judgment reflecting this name change.

Several weeks later, on June 7, 2023, a garnishment order was issued. On August 10, 2023, Defendant's counsel entered a limited appearance solely to contest the entry of the Default Judgment and filed a Motion for Relief from Judgment pursuant to Rule 74.06(b)(4).³ Defendant set forth multiple grounds for relief in its motion. Defendant first argued that Missouri law, not the Hague Convention, applied in this case. Defendant then argued that service did not comply with Missouri law for the following reasons:

(1) Plaintiff asked the circuit clerk to appoint a corporation as a process server. Defendant asserted the relevant Missouri statutes and rules precluded the circuit clerk from appointing anyone but a natural person to be a process server. Thus, Defendant argued service was improper because the circuit clerk purported to appoint a corporation and not a natural person to be a process server.

(2) the corporation appointed to be the process server did not ever attempt service; rather, service was ostensibly attempted by a member of the Scottish Central Authority. Thus, Defendant argued service was improper because the appointed process service did not claim to have attempted service;

(3) the purported service was pursuant to a summons that had no legal effect because it was served outside of the time permitted by Rule 54.21, and therefore service was improper.

(4) the summons issued by the circuit clerk stated several conditions for proper service, for example, that (a) service was to occur in the United States; (b) the process server was to submit an affidavit providing details of service; (c) the return was to reach the Court within 30 days after service, and (d) service was to be made personally, and none of those conditions were satisfied.

Next, Defendant argued that even if the Hague Convention applied, service did not comply with the Hague Convention because the request for service filled out by Plaintiff was incomplete because it did not identify any method for service of the summons and petition, and because it did not identify Ms. Harvey's relationship to Defendant (e.g., the reason she was being served). Additionally, Defendant argued the unverified Return states, “the document has been served ․ by delivery to the addressee, if he accepts it voluntarily,” but Ms. Harvey's sworn statements show that service was neither “voluntarily” accepted (because suit papers were delivered to a mailbox), nor delivered to the addressee (but rather suit papers went to an unrelated business).

Next, Defendant argued that service did not comply with Scottish law because there was no evidence service was executed by an authorized person or properly transmitted, and because service did not occur at Defendant's registered office, another official address for Defendant, or a place of business of Defendant.

Defendant also argued the default judgment was void for additional reasons beyond improper service. First, Defendant argued the default judgment was void because the circuit court lacked jurisdiction to amend the default judgment to substitute Defendant's name nearly eleven months after the default judgment was entered and without notice to Defendant. Finally, Defendant asserted the “grossly excessive” award violated Defendant's due process rights because there was not a damage hearing and there was no probative evidence supporting the award.

After multiple continuances over the next two years, the circuit court ultimately granted Defendant's motion, setting aside the default judgment. The circuit court did not articulate a reason for its decision.

Plaintiff now appeals, setting forth two points on appeal. She alleges the circuit court erred in granting Defendant's motion for relief because service was properly obtained under the Hague Convention and because judgment was not void under the rule as violating due process for the reason that the entry of a judgment that is erroneous is not an adequate basis to vacate the judgment. For the reasons that follow, we grant Plaintiff's points and reverse the circuit court's judgment.

Standard of Review

Whether a judgment should be vacated because it is void is a question of law that this Court reviews de novo. New LLC v. Bauer, 586 S.W.3d 889, 895 (Mo. App. W.D. 2019). This Court gives no deference to the circuit court's decision. A.D.D. v. PLE Enters., Inc., 412 S.W.3d 270, 275 (Mo. App. W.D. 2013).

Analysis

It is critical in this case to remember that Defendant brought its motion seeking relief from judgment pursuant to Rule 74.06(b)(4). Defendant did not bring its motion pursuant to Rule 74.05(d), which permits the circuit court to set aside a default judgment “upon motion stating facts constituting a meritorious defense and for good cause shown.” Rule 74.06 governs relief from judgments. Rule 74.06(b)(4) authorizes the circuit court to relieve a party from a final judgment that is void.⁴ “Courts favor finality of judgments, so the concept of a void judgment is narrowly restricted.” Goins v. Goins, 406 S.W.3d 886, 891 (Mo. banc 2013); New LLC, 586 S.W.3d at 895; Brown v. Haley, 687 S.W.3d 27, 35 (Mo. App. S.D. 2024) (“The concept of a void judgment is narrowly restricted to protect the strong public policy interest in the finality of judgments”). A judgment is void under Rule 74.06(b)(4) only if the circuit court that rendered it lacked subject matter jurisdiction, lacked personal jurisdiction over the defendant, or entered the judgment in a manner that violated due process. Goins, 406 S.W.3d at 891-92. Rule 74.06(b)(4), which permits a court to relieve a party from a final judgment when the judgment is void, is applicable to default judgments. Cook v. Polineni, 967 S.W.2d 687, 690 (Mo. App. E.D. 1998).

“A party may seek relief from a void judgment pursuant to Rule 74.06(b) at any time.”⁵ New LLC, 586 S.W.3d at 895. “It is well-established that, with respect to a motion to set aside a default judgment under Rule 74.05(a), the movant bears the evidentiary burden of proving entitlement to the relief requested.” New LLC, 586 S.W.3d at 895 (internal quotation omitted). “This principle applies with equal--if not greater--force where a defendant files a motion to set aside the default judgment under Rule 74.06(b)(4).” New LLC, 586 S.W.3d at 895 (citing Ground Freight Expeditors, LLC v. Binder, 407 S.W.3d 138, 141 & 143 (Mo. App. W.D. 2013) (noting that placing the burden on the party filing a Rule 74.06(b)(4) motion is warranted as such a motion can be filed years after a judgment is entered)).

Defendant moved for relief on a number of grounds. The circuit court did not specify a ground or articulate a reason for its decision.⁶ We thus presume the circuit court's ruling was based on one of the reasons specified in the motion. See Tuttle v. Dobbs Tire & Auto Centers, Inc., 590 S.W.3d 307, 310 (Mo. banc 2019) (motion to dismiss); Amoroso v. Truman State Univ., 683 S.W.3d 298, 302 (Mo. App. W.D. 2024) (summary judgment). Plaintiff challenged each of the grounds raised in her brief to this Court. Accordingly, we must look to all grounds advanced, to see if any ground articulated would support a finding that the default judgment in this case was void. We first address service in this case.

Service

Defendant in its motion for relief first argued the default judgment was void because service in this case did not comply with Missouri law, nor the Hague Convention, nor Scottish law. In other words, Defendant contended the circuit court lacked personal jurisdiction over Defendant, rendering the default judgment void. We disagree with Defendant's contention that service here was not proper.

“[P]ersonal jurisdiction refers ․ to the power of a court to require a person to respond to a legal proceeding that may affect the person's rights or interests.” J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009). A challenge to the circuit court's personal jurisdiction is simply an argument that “the constitutional principle of due process bars [the court] from affecting the rights and interests of a particular person, whether such a ‘person’ be an individual or an entity such as a corporation.” Id. “Service of process is a predicate to the circuit court's jurisdiction to adjudicate the rights of the defendant, and when the requirements for manner of service are not met, the court lacks the power to adjudicate.” New LLC, 586 S.W.3d at 895-96 (internal quotation omitted). “A judgment entered against a defendant by a court lacking personal jurisdiction over the defendant is void.” Marti v. Concrete Coring Co. of N. Am., 630 S.W.3d 920, 922 (Mo. App. E.D. 2021).

Defendant first argued that Missouri law, not the Hague Convention, applied here and thus Plaintiff needed to, but did not, comply with Missouri's service requirements in several respects, rendering the default void for lack of personal jurisdiction. Plaintiff argues the circuit court erred in setting the default judgment aside as void because service was accomplished through, and complied with, the Hague Convention. Defendant acknowledged that the Hague Convention can pre-empt state law when it applies. We hold the Hague Convention applies in this case.

The Hague Convention is a multilateral treaty formulated in 1964 by the Tenth Session of the Hague Conference of Private International Law “to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). The United States and the United Kingdom are signatories to the Hague Convention.⁷ Peabody Holding Co., Inc. v. Costain Grp. PLC, 808 F. Supp. 1425, 1439-41 (E.D. Mo. 1992). Article 1 defines the scope of the Hague Convention, and says: “The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Volkswagenwerk Aktiengesellschaft, 486 U.S. at 699, 108 S.Ct. 2104.

Defendant argued that international service was not required, and thus the Hague Convention did not apply in this case, because Missouri law, specifically Section 347.033.3, authorized the Missouri Secretary of State to accept service as an agent of Defendant. Defendant relied on Volkswagenwerk Aktiengesellschaft and argued the case stands for the proposition that the Hague Convention does not apply where international service is not required because a state's long-arm statute authorized domestic service through a subsidiary. Volkswagenwerk Aktiengesellschaft is distinguishable on its facts and Defendant misconstrues the holding of the case.

The plaintiff in Volkswagenwerk Aktiengesellschaft filed a wrongful death action in an Illinois state court, alleging that Volkswagen of America, Inc. (“American subsidiary”) had designed and sold the automobile that his parents were driving, and that defects in the automobile caused or contributed to their deaths. Volkswagenwerk Aktiengesellschaft, 486 U.S. at 696, 108 S.Ct. 2104. Volkswagen of America answered and denied that it had designed or assembled the automobile. Id. The plaintiff then amended his complaint to add as a defendant Volkswagen Aktiengesellschaft, a corporation established under the laws of the Federal Republic of Germany that has its place of business in Germany. (“German Corporation”). Id. at 696-97, 108 S.Ct. 2104. Volkswagen of America was a wholly owned subsidiary of the German corporation (“American Subsidiary”). Id. at 697, 108 S.Ct. 2104. Plaintiff served his amended complaint on the German corporation by serving the American subsidiary as the German corporation's agent. Id. The Illinois long-arm statute authorized the plaintiff to serve the German corporation by substituted service on the corporation's American subsidiary without sending documents to Germany. Id. at 706, 108 S.Ct. 2104.

The German corporation filed a special and limited appearance for the purpose of quashing service. Id. at 697, 108 S.Ct. 2104. The German corporation asserted that it could be served only in accordance with the Hague Convention, and that the plaintiff had not complied with the Convention's requirements. Id. The Illinois court denied the motion, concluding that because service was accomplished within the United States, the Hague Convention did not apply. Id. The case eventually made its way to the United States Supreme Court. The German corporation did not contest that service was proper as a matter of Illinois law. Id. at 706, 108 S.Ct. 2104. Instead, the German corporation contended that service on it was not complete until the American Subsidiary transmitted the amended complaint to the German Corporation in Germany. Id. According to the German corporation, this transmission constituted service abroad under the Hague Convention. Id. at 706-07, 108 S.Ct. 2104. The United States Supreme Court rejected this argument, stating: “Where service on a domestic agent is valid and complete under both state law and the Due Process Clause, our inquiry ends and the Convention has no further implications.” Id. at 707, 108 S.Ct. 2104. The Supreme Court noted that “[w]hatever internal, private communications take place between the agent and a foreign principal are beyond the concerns of this case. The only transmittal to which the Convention applies is a transmittal abroad that is required as a necessary part of service.” Id. As service had already been made, the Supreme Court found that the case did not present an “occasion to transmit a judicial document for service abroad within the meaning of Article I,” and therefore the Hague Convention did not apply. Id. at 707-08, 108 S.Ct. 2104.

Volkswagenwerk Aktiengesellschaft does not stand for the proposition that simply because there is a provision in state law allowing service on someone in the state, the Hague Convention does not apply and a party must complete service via state law, as Defendant would have it. The Hague Convention did not apply in Volkswagenwerk Aktiengesellschaft because service had been made under Illinois law and thus there was no “occasion to transmit a judicial document for service abroad.” Our situation is entirely different. Here, service was not made under Missouri law. Plaintiff, after multiple attempts, could not find Defendant's registered agent in Missouri. It was determined that Defendant's registered agent no longer lived in Missouri, and the address in the articles of organization had not been updated. Plaintiff turned to the Hague Convention after finding the registered agent in Scotland.

It is true that Missouri law authorizes the Missouri Secretary of State to accept service as an agent of Defendant. Section 347.033.3 provides, in relevant part: that when the registered agent for a limited liability company cannot be located in the exercise of due diligence, then for as long as the default exists, the Missouri Secretary of State shall be automatically appointed as an agent of that limited liability company, and service may be made upon the Secretary:

In the event that a limited liability company shall fail to appoint or maintain a registered agent in this state or in the event neither the registered agent, an authorized person, nor an organizer for the limited liability company can be located in the exercise of due diligence, then the secretary, as long as such default exists, shall be automatically appointed as an agent of such limited liability company upon whom any process, notice, or demand required or permitted by law to be served upon the limited liability company may be served․

(Emphases added). But the statute provides only that service may be served on the Secretary. The statute does not mandate that service be made on the Secretary. Further, Section 347.033.3 also provides that:

Nothing contained in this section shall limit or affect the right to serve any process, notice or demand required or permitted by law to be served upon a limited liability company in any other manner now or hereafter permitted by law.

In other words, Missouri law contemplates, and does not prohibit, service by other means allowed by law. “It is well-settled that any party who wishes to effect service of process on another party living in a foreign country must comply with the requirements of an international treaty, such as the Hague Convention.” State v. Irwin, 592 S.W.3d 96, 109 (Mo. App. E.D. 2019) (citing Peabody Holding Co., Inc. v. Costain Grp. PLC, 808 F. Supp. 1425, 1439-41 (E.D. Mo. 1992) (holding that a defendant, who resided in England, was not properly served even though he received process according to Missouri rules and statutes because service did not comply with the requirements of the Hague Convention)).

After the exercise of due diligence, service had not been made in this case, and service was not required to be made on Missouri's Secretary of State. Instead, Plaintiff, wishing to effect service of process on Defendant's registered agent in a foreign country, was required to comply with the requirements of an international treaty such as the Hague Convention. We hold the Hague Convention applied in this case. The Hague Convention can pre-empt state law when it applies. Volkswagenwerk Aktiengesellschaft, 486 U.S. at 699, 108 S.Ct. 2104. Accordingly, Defendant's contentions that Plaintiff's failure to comply with Missouri law provided no grounds for finding improper service and a void judgment. To the extent the circuit court relied on this ground in granting relief and setting aside the default judgment, the circuit court erred.

Next, Defendant argued that even if the Hague Convention applied, service did not comply with the Hague Convention because the request for service filled out by Plaintiff was allegedly incomplete in two respects, and thus did not conform with the model annexed to the Hague Convention, as required. Plaintiff contends she complied with the requirements of the Hague Convention.

The primary innovation of the Hague Convention is that it requires each signatory state to establish a Central Authority to receive requests for service of documents from other countries. Hague Convention Article 2; Volkswagenwerk Aktiengesellschaft, 486 U.S. at 698, 108 S.Ct. 2104. “The Hague Convention provides for service in the following manner. First, the plaintiff, through a ‘requesting authority,’ sends a request to make service to the agency designated by each signatory to the treaty as its Central Authority to accept such requests.” Pennsylvania Orthopedic Ass'n v. Mercedes-Benz A.G., 160 F.R.D. 58, 59 -60 (E.D. Pa. 1995) (citing Hague Convention Articles 2 & 3). A request for service must conform with the model annexed to the Hague Convention. Pennsylvania Orthopedic Ass'n, 160 F.R.D. at 60. Article 3 of the Hague Convention provides:

The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalization or other equivalent formality.

(Emphasis added). Here, Plaintiff, through a “requesting authority” (Judicial Process and Support, International), requested to obtain service under the Hague Convention. The documents were then sent to the Scottish Central Authority, who accepted such request. If the Central Authority “considers that the request does not comply with the provisions of the present Convention it shall promptly inform the applicant and specify the objections to the request.” Hague Convention Article 4. Otherwise, the Central Authority is to effect service. Hague Convention Article 5; Pennsylvania Orthopedic Ass'n, 160 F.R.D. at 60.

Defendant did not assert and provided no evidence that the Central Authority here considered Plaintiff's request as not complying with the provisions of the present Convention. Instead, the Central Authority effectuated service. To the extent the circuit court relied on this ground in granting relief and setting aside the default judgment – that service did not comply with the Hague Convention because the request for service did not conform with the model annexed to the Hague Convention – the circuit court erred.

Defendant next argued that service was insufficient because under Article 5 of the Hague Convention, to be competent, service must be “by delivery to an addressee who accepts it voluntarily,” or comply “with the law of [Scotland].” And here, Defendant contended that service was neither voluntarily accepted nor complied with Scottish law. Plaintiff argues that when process is served and the return of process is completed by an official of a country that is a signatory to the Hague Convention in accordance with Article 6 of the convention, service is sufficient. Bevilacqua v. U.S. Bank, N.A., 194 So.3d 461, 464 (Fla. Dist. Ct. App. 2016).

Article 6 of the Hague Convention mandates that once service has been effectuated, the Central Authority “shall complete a certificate in the form of the model annexed to the present Convention.” “The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered.” Hague Convention Article 6. “The return of the Central Authority's completed certificate of service is prima facie evidence of service by the Central Authority.” Bevilacqua, 194 So.3d at 464.

Here, the Scottish Central Authority executed a return of process and a certificate of service. The certificate complied with the requirements of the Hague Convention, as it included the method, the place and the date of service and the person to whom the documents were delivered. The certificate states that “[t]he undersigned authority (Central Authority for Scotland) has to honour to certify, in conformity with Article 6 of the Convention that the document (summons and petition) has been served.” The certificate contains a stamp of the Central Authority for Scotland. The cover letter with the certificate, signed by the Central Authority & International Law Team of the Scottish Government, states “I can confirm that the documents have been served in accordance with the law of Scotland.”

The duly-executed return of process and certificate of service from the Central Authority is prima facie evidence that service was sufficient, leaving available to Defendant only a claim that it was denied constitutional due process or that it was somehow prejudiced by the allegedly deficient service of process: “[T]o rebut the prima facie case established by the completed certificate of service requires a defendant to show lack of actual notice of the proceedings or that the defendant was prejudiced in some way as a result of the alleged deficiency.” Bevilacqua, 194 So.3d at 464–65.

Defendant with its motion for relief filed two documents, which we will consider as being filed to rebut the prima facie evidence that service was sufficient, though not expressly stated as being filed for such purpose: first, an affidavit of Judith Jenson Harvey née Bray, and second, a letter from a Scottish firm that had been engaged by an insurance company, regarding a request for a legal opinion as to whether the Notice of Service filed with the circuit court on August 20, 2021, demonstrates service on Defendant that complies with Scots law. We find neither the affidavit nor the legal opinion letter sufficient to rebut the prima facie case, established by the completed certificate of service, that service was sufficient.

The affidavit of Judith Jenson Harvey née Bray disputed that service was “voluntarily accepted (or that she was even asked to accept service) because “suit papers ․ were delivered to a mailbox.” Ms. Harvey admitted that she was a member of Defendant and that she was listed as the registered agent of Defendant at the time of Defendant's creation. Ms. Harvey, however, did not aver that she was “never served” or that she “never received the documents.” Rather, she stated: “In or about 2021, suit papers were delivered to a mailbox for an unrelated business I previously operated in Scotland․” Further, she averred: “Neither I nor anyone else on Defendant's behalf ever signed for service or were handed service papers, or otherwise voluntarily accepted service in this matter.” The legal opinion letter from the Scottish firm opined that the Notice of Service failed to demonstrate adequately that the summons and petition” referenced in the request and certificate were served on Defendant in accordance with Scottish law, as it applied to procedures before the Court of Session.⁸

Neither Ms. Harvey nor the legal opinion letter, nor anyone else on Defendant's behalf ever averred that Defendant had no actual notice or that Defendant was prejudiced in some way. It is clear from the affidavit that Ms. Harvey received the documents. She only complains that they were not delivered to a mailbox specifically for Defendant and disputes that she “voluntarily” accepted service. However, Article 5 permits service by the Central Authority by any method prescribed by its internal law for service upon persons who are within its territory. Similarly, the legal opinion letter stated: “We are advised that Ms. Bray has stated that papers for this action were delivered to a mailbox for an unrelated business.” (Emphasis added). Critically, the legal opinion is not sworn to and thus does not constitute competent evidence. Bertocci v. Thoroughbred Ford, Inc., 530 S.W.3d 543, 551 (Mo. App. W.D. 2017) (unsworn declarations attached to motions filed are not evidence and are not self-proving); Metzger by & Through Metzger v. United Servs. Auto. Ass'n, 694 S.W.3d 128, 132 (Mo. App. W.D. 2024) (“It is not sufficient to attach hearsay testimonial documentation in support of a motion to set aside default judgment as such testimony is unsworn.”). Nonetheless, the opinion also cautioned and noted that Article 5 of the Convention permits service by any method prescribed by Scottish law upon persons who are within its territory. Further, upon receipt of the request, the Team had the option to effectuate alternative service.

Defendant's contention that service of process was deficient under the Hague Convention fails, given that the Scottish Central Authority, pursuant to its own laws and the Hague Convention, returned a certificate attesting to the fact that service was properly effectuated. This certificate established prima facie evidence of proper service, which the trial court may not look beyond. Defendant could overcome this prima facie evidence only by alleging and establishing a lack of actual notice of the proceedings or that it was prejudiced as a result of the alleged deficiency. Defendant failed to meet this burden. We hold the affidavit and unsworn legal opinion letter are insufficient to rebut the prima facie case, established by the completed certificate of service, that service was sufficient. Defendant's contention that Plaintiff's request for service failed to comply with Hague Convention, or that it failed to comply with Scottish law, is not supported in the record as a basis for finding the default judgment void for improper service and lack of personal jurisdiction. To the extent the circuit court relied on this ground in granting relief and setting aside the default judgment, the circuit court erred.

In sum, to the extent the circuit court granted relief and set aside the default judgment on the basis that service was insufficient, the circuit court erred. We hold service was proper and sufficient under the Hague Convention. We grant Plaintiff's first point on appeal.

Additional Reasons

Defendant in its motion for relief contended the default judgment was void for additional reasons: the name change and the damage award. Plaintiff argues that to the extent the circuit court based its decision on one of these additional reasons, the circuit court erred. We find that the additional reasons stated by Defendant also do not provide grounds for finding the default judgment void. We thus grant Plaintiff's second point on appeal.

Name Change

Defendant sought relief on grounds the default judgment was void because the circuit court lacked jurisdiction to amend the default judgment to substitute Defendant's name nearly eleven months after the default judgment was entered and without notice to Defendant. Again, Plaintiff in her petition named “P Harvey․” as a defendant, not “P. Harvey's․” The default judgment was likewise entered against “P Harvey” instead of “P. Harvey's․” The circuit court, on Plaintiff's motion, later amended the default judgment to substitute the correct spelling of Defendant's name. Defendant argues this defect – “P Harvey” instead of “P. Harvey's” – renders the default judgment unenforceable as to Defendant.

Plaintiff argues the misspelling of Defendant's name was a misnomer that can be changed at any time, and that the default judgment was not affected by any mistake in the Defendant's name. Aman Collection Service, Inc. v. Burgess, 612 S.W.2d 405 (Mo. App. W.D. 1981).

“A misnomer is a misdescription or a mistake in some aspect of a party's name.” Johnson v. Delmar Gardens W., Inc., 335 S.W.3d 83, 87 (Mo. App. E.D. 2011); Bailey v. Innovative Management & Inv., Inc., 890 S.W.2d 648, 651 (Mo. banc 1994). A misnomer occurs where a summons is served on the right party but with the wrong name. Johnson, 335 S.W.3d at 87; P & K Heating & Air Conditioning, Inc. v. Tusten Townhomes Redevelopment Corp., 877 S.W.2d 121, 125–26 (Mo. App. E.D.1994); Orona v. Consolidated Cab Company, 373 S.W.2d 486, 488 (Mo. App.1963).

Here, the proper defendant was served, just under the wrong name. Plaintiff was simply mistaken as to some aspect of Defendant's name (a “.” and “’s” were missing). This is not a case where Plaintiff was mistaken as to the identity of the party and sued the wrong party. See, e.g., Johnson, 335 S.W.3d at 87 (no misnomer where plaintiff was not simply mistaken as to some aspect of the correct party's name but was mistaken as to the identity of the party and sued the wrong entity); accord Hummell v. Button, 541 S.W.2d 737, 737 (Mo. App. 1976). In such cases there is no misnomer but an addition of a defendant to the suit. Id. That is not the case here. The record shows Plaintiff knew the party to sue, after all, it was her landlord. Plaintiff made multiple attempts to serve Defendant's registered agent in Missouri; she then found the registered agent in Scotland. Ultimately, service was made upon the Defendant's registered agent in Scotland. Plaintiff sued and secured the service of process upon the party she intended to sue as defendant. She just did so with Defendant's name misspelled. The error in Defendant's name is a misnomer.

“A judgment against a misnamed party who was served with process is valid and binding.” P & K Heating & Air Conditioning, 877 S.W.2d at 125; Orona, 373 S.W.2d at 488.

A name is a means of identity; but the change of the name or the application of a wrong name does not change the thing identified. It is not the name that is sued, but the person to whom it is applied. Process served on a man by a wrong name is as really served on him as if it had been served on him by his right name, and if in such case he fail to appear, or, appearing, fail to object that he is sued by the wrong name, and judgment be rendered against him by such name, he is as much bound by the judgment as if it had been rendered against him by his right name. The use of the right name is every way preferable, since without it as a means of identification the evidence of the identity of the person sued may in process of time become lost; and hence the propriety of the amendment in this case; but so long as the defendant can be identified as the one against whom the judgment was rendered, he is as much bound by the judgment, and those claiming under the judgment are as much entitled to its benefits, to all intents and purposes, as if the defendant had been sued by his right name.

Orona, 373 S.W.2d at 488-89 (quoting Parry v. Woodson, 33 Mo. 347. 348 (Mo. 1863)). Further, “[a]s a misdescription, a correction of a misnomer is not considered to be a change in party requiring the plaintiff to meet the specific notice requirements of Rule 55.33.” Johnson, 335 S.W.3d at 87; Bailey, 890 S.W.2d at 651.

“A defendant who is misnamed in an action has a right to interpose a timely and proper objection to the defect and have it corrected.” Orona, 373 S.W.2d at 488; P & K Heating & Air Conditioning, 877 S.W.2d at 126. “[A]n objection based on a misnomer or misdescription of parties should be raised at the first opportunity in due order of pleading, before issue joined, and before trial, verdict or judgment.” Orona, 373 S.W.2d at 488. “If a party defendant is personally served with process, even though in the wrong name, he is obligated to appear and call attention to the defect.” Aman Collection Service, 612 S.W.2d at 408. “If he fails to do so and allows judgment to go against him by default, the misnomer is waived.” Id. “Failure to object at the proper time, and in the proper manner constitutes a waiver of the objection, as where, instead of objecting that he is sued by the wrong name, the defendant enters a general appearance, pleads to the merits, or suffers judgment by default.” Orona, 373 S.W.2d at 488. When summons is actually served on the correct party but by the wrong name, the error becomes immaterial because the correct party has notice of the suit. Aman Collection Service, 612 S.W.2d at 408.

Further, aside from these general principles,

it is settled law in Missouri that the mere misnomer of a corporate defendant is immaterial if the corporation was not thereby misled and if there was no substantial mistake indicating an intention on the part of plaintiff to sue a different entity. A judgment against a corporation sued as the intended defendant by the wrong name, but in reality served with process, is a valid judgment and binding upon defendant whether it appears or makes default.

Orona, 373 S.W.2d at 488. We find Blades v. Cinder Block Co., 10 S.W.2d 319 (Mo. App. 1928), is instructive. The plaintiff in Blades filed a personal injury suit naming “Cinder Block Company of St. Louis” as defendant; the actual name of the defendant was “Cinder Block Company of Kansas City’.” Service was obtained by delivery of process to the vice-president of the defendant corporation at its usual business office. There, as in this case, defendant defaulted and judgment was rendered in favor of plaintiff and against the defendant as misnamed in the petition. Also, as in this case, the defendant resisted execution and claimed the judgment was invalid by reason of the misnomer. The court rejected the defendant's contention, stating:

The general rule is that, in actions at law and other judicial proceedings, the mere misnomer of a corporate defendant in words and syllables is immaterial, that is, provided there is no substantial mistake so as to indicate a different entity; that a judgment in the action will bind such defendant, if it in reality is duly served with process, whether it appears or makes default; and that the misnomer should be held immaterial, if it appears that the corporation could not have been, or was not, misled thereby.

Blades, 10 S.W.2d at 320.

Here, the correct defendant was served but by the misspelled name. The identity of Defendant did not change. Defendant did not answer or otherwise defend and did not object to the misnomer at the first opportunity. Defendant had the right and obligation to object and call attention to the error. “If one served with process in a wrong name desires to take advantage of the situation, he must appear and raise the question in the court where the suit is brought before judgment is rendered against him.” Aman Collection Service, 612 S.W.2d at 408. Defendant failed to do so and instead allowed judgment to go against it by default. Defendant's failure to object at the proper time and in the proper manner constitutes a waiver of any objection Defendant may have regarding the misnomer. Summons was served on Defendant, and Defendant had notice of the suit. The misnomer, then, becomes immaterial. Based on record here we cannot say Defendant was misled by the misnomer. The variance between its true name and the inaccurate designation is so very slight. A “.” and a “’s” are the only variances. It cannot be said there was a substantial mistake so as to indicate a different entity. Defendant's registered agent was a member of Defendant and knew she was Defendant's registered agent. The agent admitted she received the summons and petition, complaining only that the documents were left in a mailbox for some other business she operated in Scotland. Defendant is bound by the default judgment as first entered, and Plaintiff claiming under that judgment is entitled to its benefits, as if the default judgment had been rendered against Defendant by its correctly-spelled name.

We turn briefly to the timing of the amended judgment of default. It is true that a circuit court generally retains control over a judgment for thirty days after entry of judgment to vacate, reopen, correct, amend or modify its judgment. Rule 75.01. The circuit court here issued an amended default judgment eleven months after its initial judgment of default. The circuit court did not change the substance of the judgment – it only corrected the spelling of Defendant's name. Even if the circuit court lacked authority to make the name change, rendering the amended judgment void and of no effect, the original default judgment would remain, and Defendant is bound by that judgment. Plaintiff, wishing to execute on the default judgment, had the right to enforce that default judgment and show the correct spelling of the name of Defendant, which she did by her motion to correct the spelling of Defendant's name.

The misnomer and the circuit court's amended default judgment correcting the spelling of Defendant's name do not provide grounds for setting aside the default judgment as void. To the extent the circuit court relied on this ground in granting relief and setting aside the default judgment, the circuit court erred.

Award

Defendant contended that the grossly excessive award violated Defendant's due process rights because there was no damage hearing and because there was no probative evidence supporting the award. A judgment is void under Rule 74.06(b)(4) if the circuit court entered the judgment in a manner that violated due process. Goins, 406 S.W.3d at 891-92. However, Defendant's due process arguments are without merit and thus we hold that to the extent the circuit court relied on due process grounds in granting relief, the circuit court erred. We address each argument in turn.

Defendant first contended its due process rights were violated because there was no damage hearing. Due process concerns a party's constitutional rights to notice and an opportunity to be heard. Chick v. Moving Proz, LLC., 699 S.W.3d 449, 457 (Mo. App. W.D. 2024). “The well-established meaning of procedural due process is that “parties whose rights are to be affected must be given notice and the opportunity to be heard.” A.D.D. v. PLE Enters., Inc., 412 S.W.3d 270, 275 (Mo. App. W.D. 2013) (internal quotation omitted). “Thus, judgments have been declared void for lack of due process when litigants have been denied notice of critical proceedings or were subject to involuntary waiver of claims.” Id. But, “these due process concerns typically do not arise in cases of default judgment, where the defendant received proper notice of the proceedings and waived rights as a result of his own failure to appear.” Id. Defendant here was properly served under the Hague Convention. Defendant had notice and an opportunity to be heard. Defendant, however, did not avail itself of this opportunity but instead failed to answer or otherwise defend.

In light of this default, the circuit court followed the procedures of Rule 74.05(a) and granted judgment as requested by Plaintiff. The circuit court did not proceed in a manner inconsistent with Defendant's due process rights. See A.D.D., 412 S.W.3d at 280 (quoting Forsyth Fin. Group, LLC v. Hayes, 351 S.W.3d 738, 740 (Mo. App. W.D. 2011)). “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, upon proof of damages or entitlement to other relief, a judgment may be entered against the defaulting party.” Rule 74.05(a). “A default judgment may include an award of damages․” Rule 74.05(c). “When a claim is unliquidated, such as a typical tort claim, a default judgment is processed in two steps, pursuant to Rule 74.05. The court enters an interlocutory order of default, without a damage determination, and then the court separately conducts a hearing on damages.” Duvall v. Maxey, 249 S.W.3d 216, 222 (Mo. App. W.D. 2008). The court may proceed to determine damages in the absence of a defaulting party. Id. The circuit court processed its default judgment in two steps. The court entered its default judgment on liability and then later entered its default judgment including damages after receiving Plaintiff's affidavit. Due to Plaintiff's disability and significant health concerns, Plaintiff was unable to appear in person for a hearing but appeared by counsel. Plaintiff submitted an affidavit, with supporting documentation from her physician, as to why she could not appear. The circuit court found Plaintiff was not able to appear for good cause shown and accepted Plaintiff's affidavit as proof of damages. Defendant's presence for a determination of damages was not required. Accordingly, we hold the default judgment is not void as a violation of Defendant's due process rights. To the extent the circuit court relied on this ground in granting relief and setting aside the default judgment, the circuit court erred.

Defendant next contended that the grossly excessive award violated Defendant's due process rights because there was no probative evidence supporting the award.

Defendant's contention regarding the lack of probative evidence to support the award is a merit defense disguised as a due process argument. Metzger by & Through Metzger v. United Servs. Auto. Ass'n, 694 S.W.3d 128, 133 (Mo. App. W.D. 2024). This argument does not constitute a ground upon which to set aside a default judgment under Rule 74.06(b)(4). Id. “A judgment is not ‘void’ merely because it is alleged to be erroneous.” Id. (internal quotation omitted). While Defendant could have raised this argument if it had appeared to defend the suit or filed a Rule 74.05(d) motion within one year after the entry of the default judgment, the argument is not proper under a Rule 74.06(b)(4) motion. Id. at 133. “A challenge to the sufficiency of the evidence does not raise a jurisdictional or constitutional issue that would render a judgment ‘void.’ ” Goins, 406 S.W.3d at 892.

We acknowledge there are cases supporting the proposition that probative evidence must support a damage award, even in a judgment by default. McGee ex rel. McGee v. City of Pine Lawn, 405 S.W.3d 582, 588 (Mo. App. E.D. 2013); Court of 5 Gardens Condo. Ass'n v. 10330 Old Olive, LLC, 326 S.W.3d 834, 836 (Mo. App. E.D. 2010); Duvall v. Maxey, 249 S.W.3d 216 (Mo. App. W.D. 2008). Where a plaintiff sues for an unliquidated sum and takes a default judgment, “there must be some proof of damages to validly support an assessment of damages.” McGee, 405 S.W.3d at 588; accord Court of 5 Gardens Condo. Ass'n, 326 S.W.3d at 838; Duvall, 249 S.W.3d at 222. We find these cases distinguishable and unavailing to Defendant, in two respects. First, these cases were proceedings to set aside a default judgment under Rule 74.05(d); they did not involve a motion brought pursuant to Rule 74.06(b)(4), attempting to set aside judgment as being void as violating due process. Thus, the court in McGee and Court of 5 Gardens Condo. Ass'n remanded for a hearing on damages. McGee, 405 S.W.3d at 584; Court of 5 Gardens Condo. Ass'n, 326 S.W.3d at 839. The procedure for setting aside a judgment under Rule 74.06(b)(4) has its own standard of relief. Gibson v. White, 904 S.W.2d 22, 24 (Mo. App. W.D. 1995). Second, even if a challenge to the sufficiency of the evidence could be raised under Rule 74.06(b)(4), the cases are factually distinguishable, as there was a complete lack of evidence to support the award in the other cases. There was “no evidence whatsoever” in McGee – not even an affidavit from the plaintiff. McGee, 405 S.W.3d at 588. Similarly in Court of 5 Gardens Condo. Ass'n, there was “not a modicum of probative evidence to support the award of damages” where no witnesses were presented at a hearing, no affidavit was filed, nothing was verified, and no document was filed that possessed any indicia of reliability. Court of 5 Gardens Condo. Ass'n, 326 S.W.3d at 839. The only “evidence” of damages were allegations in a petition, which is not evidence and is not self-proving. Id. at 838. In Duvall, the plaintiff tried to base damages on the defendant's failure to answer a request for admission. Duvall, 249 S.W.3d at 23. Here, the circuit court had Plaintiff's affidavit as evidence upon which to base its award. This is not a case where the circuit court awarded damages on no evidence whatsoever.

To reverse and thus allow the damage award to stand in this case is unsettling to this Court. The averments in Plaintiff's affidavit arguably may not support an award of 86 million dollars. But Plaintiff, in her affidavit filed in support of damages, described how her health had worsened after moving into the rental home owned by Defendant. She described how she suffers from multiple respiratory problems. She averred she incurred at least $200,000 in medical expenses and expected to incur more in the years ahead – as much as ten million dollars according to her treating physicians. She further averred that she incurred over $27,000 in expenses for having to move into a motel for nine months, and $9,000 in associated fees for food and other miscellaneous items. She described how she lost personal items in the amount of over $100,000 because they were covered with mold. Plaintiff also averred that her life has been “turned upside down” due to Defendant's negligence. She stated her quality of life had become “nonexistent” because she has to stay away from everyone, including family and friends. She had not seen her mother in more than four years. She averred that she had lost her capacity to enjoy life because she is always trying to avoid issues that could cause her to become sick. She averred that she spent almost all day, every day, in her home as a “prisoner” because of her health issues that were exacerbated and created solely due to the negligence of Defendant. Finally, Plaintiff averred that “due solely to the actions of Defendant ․ I have suffered a great deal of pain and suffering, past, present, and future.” Plaintiff then requested she be compensated in the amount of 86 million dollars. Of course, the circuit court was free to believe Plaintiff's affidavit, give it whatever weight, and enter a final judgment.

We make no pronouncement on whether the circuit court's judgment was erroneous. Even if it is, “[a] judgment is not void simply because it is erroneous” under Rule 74.06(b)(4). Brown, 687 S.W. 3d at 35; see also State ex rel. Franklin v. Burlison, 469 S.W. 3d 498, 500 (Mo. App. E.D. 2015); A.D.D., 412 S.W.3d at 280 (alleged pleading deficiency did not render default judgment void under Rule 74.06(b)(4) as a violation of due process where Defendant was served with notice of petition but failed to answer or appear); accord Forsyth Fin. Group, 351 S.W.3d at 741. Unfortunately, Defendant's motion seeking relief was not under Rule 74.05(d), but under Rule 74.06(b)(4). This Court is constrained by the procedural posture of the case and must follow the rules and controlling precedent. This Court has found no authority, and none has been cited, that granted relief under Rule 74.06(b)(4) and set aside a judgment as void as violating due process because of the lack of evidence to support the damages award.

Defendant's contention regarding the lack of probative evidence to support the circuit court's award of damages does not provide grounds for finding the default judgment to be void as violating due process. To the extent the circuit court relied on this ground in granting relief and setting aside the default judgment, the circuit court erred.

Conclusion

As stated at the outset, it is important to remember that this is a proceeding under Rule 74.06(b)(4), and a request to set aside the default judgment as void. Again, a judgment is void under Rule 74.06(b)(4) only if the circuit court that rendered it lacked subject matter jurisdiction, lacked personal jurisdiction over the defendant, or entered the judgment in a manner that violated due process. Goins, 406 S.W.3d at 891-92. On this record, none of the grounds advanced in Defendant's motion for relief provide a basis for setting aside the default judgment as void. Defendant makes no contention that the circuit court lacked subject matter jurisdiction. Service was proper under the Hague Convention, and thus the circuit court had personal jurisdiction over Defendant. And lastly, the circuit court did not take any action inconsistent with due process of law. The circuit court's judgment, therefore, is not void under Rule 74.06(b)(4). The circuit court erred in granting relief and setting aside the default judgment as void. Accordingly, we reverse the circuit court's judgment and remand the case to the circuit court for reentry of the default judgment that the circuit court set aside.

FOOTNOTES

1.   In general, the Hague Convention is an international treaty by which a party makes service of process on another party living in a foreign country.

2.   The record indicates that a default hearing was held, but no transcript was provided of the hearing on appeal. Thus, the record includes an affidavit filed by Plaintiff in support of damages and the parties’ motions and legal memorandums along with certain exhibits.

3.   No transcript of the hearing was filed on appeal. Therefore, we set forth the grounds raised in Defendant's motion.

4.   Rule 74.06(b) provides that “[o]n motion and upon such terms as are just,” the circuit court “may relieve a party or his legal representative from a final judgment or order for the following reasons: ․ (4) the judgment is void․” Rule 74.06(b)(4).

5.   In contrast, Rule 74.06(c) requires that motions brought pursuant to Rule 74.06(b)(1) for mistake, inadvertence, surprise, or excusable neglect; or Rule 74.06(b)(2) for fraud, misrepresentation or other misconduct of an adverse party; or Rule 74.06(b)(3) for irregular judgment be brought within a reasonable time and not more than one year after the judgment was entered. A motion brought pursuant to Rule 74.06(b)(5), seeking relief for the reason that the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment remain in force, must be brought within a reasonable time.

6.   Rule 74.06(b) does not require the circuit court to state a reason for its judgment.

7.   The United Kingdom is comprised of England, Scotland, Wales, and Northern Ireland.

8.   The Court of Session is the highest civil court in Scotland. The opinion acknowledged that other rules applied to service not before the Court of Session, as applicable here. But those rules were not discussed in the legal opinion in accordance with Scottish law.

Angela T. Quigless, J.

Virginia W. Lay, P.J. and Thomas C. Clark, II, Judge, concur.