most fundamental rule of statutory construction is that the
intent of the Legislature governs if that intent can be
ascertained. An appellate court must first attempt to
ascertain legislative intent through the statutory language
enacted, giving common words their ordinary meanings.
a statute is plain and unambiguous, an appellate court should
not speculate about the legislative intent behind that clear
language, and it should refrain from reading something into
the statute not readily found in its words. Only if the
statute's language or text is unclear or ambiguous does
the court use canons of construction or legislative history
to construe the Legislature's intent.
term "usual place of abode" as used in K.S.A. 2018
Supp. 61-3003(d)(1) and K.S.A. 2018 Supp. 77-201
Twenty-fourth is construed and applied.
from Riley District Court; James R. Kepple, judge.
K. Garcia, of Knight Nicastro, LLC, of Kansas City, Missouri,
A. Kraft, of David A. Kraft & Associates, LLC, of Kansas
City, for appellee.
Leben, P.J., Malone and Gardner, JJ.
Bland McNair appeals the district court's order denying
his motion to set aside a default judgment granted in favor
of Coastal Credit, LLC. McNair claims the district court
erred by finding that Coastal Credit properly served him with
process by leaving the summons and petition with McNair's
wife at the family's residence in Manhattan while he was
deployed overseas for six months in the military. We agree
with McNair that the district court erred in finding there
was proper residence service under Kansas law. As a result,
we reverse the district court's order and remand with
directions to set aside the default judgment against McNair.
and Procedural Background
2012, McNair entered into a financing contract with Coastal
Credit to buy a car. After McNair defaulted on the loan,
Coastal Credit repossessed the car and sold it, applying the
proceeds to the balance McNair still owed on the contract. On
February 6, 2014, Coastal Credit filed a limited action
lawsuit against McNair alleging breach of contract and
seeking to recover the remaining balance of $8, 854.99 plus
about two months before Coastal Credit filed the lawsuit
until about May 30, 2014, McNair, who was in the United
States Army, was stationed in Africa. His wife and their four
children lived in an off-base apartment in Manhattan, Kansas.
On February 19, 2014, a process server executed service by
"serving a true copy at [McNair's] usual place of
abode to" McNair's wife at the residence in
Manhattan. The process server noted on his field sheet that
McNair was in the military and deployed in Africa until June.
did not file an answer to the petition, nor did he appear at
a scheduled docket hearing on March 12, 2014. On March 25,
2014, the district court denied Coastal Credit's request
for a default judgment because it had not provided a military
service affidavit. Two months later, Coastal Credit filed an
affidavit stating that McNair was "active in the service
of the United States." On June 2, 2014, the district
court again denied Coastal Credit's request for a default
judgment, finding that it must appoint an attorney to
represent McNair because of his active service in the
military as required by the Servicemembers Civil Relief Act
(SCRA). On April 6, 2015, the district court appointed
counsel to represent McNair.
August 31, 2015, the district court granted a default
judgment for Coastal Credit, noting that McNair's
appointed counsel had informed the court that he was
"unable to reach or communicate with" McNair. On
February 16, 2016, the district court allowed McNair's
appointed counsel to withdraw.
October 2017, McNair noticed that his wages were being
garnished. On January 5, 2018, McNair moved to set aside the
default judgment and disgorge the garnished funds. In his
motion, McNair asserted that when he was purportedly served
with process in February 2014, he was deployed at Camp
Lemonnier in Africa. He contended that service to his wife in
Manhattan was improper and did not comply with controlling
federal regulations and the SCRA. He also contended the
garnished wages resulted from an improper default judgment
and asked the court to return all funds.
Credit responded to McNair's motion, arguing that federal
regulations did not apply and that leaving a copy of the
petition and summons with McNair's wife at their off-base
residence in Manhattan was sufficient under the Kansas law.
Coastal Credit also contended that the SCRA did not apply
because McNair had not argued that he had a meritorious or
legal defense to any part of the action. Finally, Coastal
Credit asserted that there was no statutory authorization for
the disgorgement of the garnished funds.
later filed additional written support of his motion to set
aside the default judgment. He claimed that his wife was
never served with process at the Manhattan residence as
reflected in the return summons, and he filed an affidavit to
support this claim. In the affidavit, McNair asserted that
his family did not reside at 1425 Flint Hills Place in
Manhattan in February 2014. Instead, he asserted that his
family resided at 1425 Flint Hills Place, Apt. 2306,
in Manhattan. He also attached mail from the Department ...