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Coastal Credit, LLC v. McNair

Court of Appeals of Kansas

July 12, 2019

Coastal Credit, LLC, Appellee,
v.
Brian Bland McNair, Appellant.

         SYLLABUS

         1. The 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.

         2. When 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.

         3. The 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.

          Appeal from Riley District Court; James R. Kepple, judge.

          Noah K. Garcia, of Knight Nicastro, LLC, of Kansas City, Missouri, for appellant.

          David A. Kraft, of David A. Kraft & Associates, LLC, of Kansas City, for appellee.

          Before Leben, P.J., Malone and Gardner, JJ.

          Malone, J.

         Brian 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.

         Factual and Procedural Background

         In May 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 interest.

         From 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.

         McNair 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.

         On 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.

         In 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.

         Coastal 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.

         McNair 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 ...


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