SCOVT reverses "judgment on the pleadings" for failure to serve because the court lacked sufficient evidence to determine whether service was completed.

Messier v. Bushman, 2018 VT 93 [filed 8/24/2018]

EATON, J. On January 16, 2014, Michael Messier and Kay Bushman were involved in an auto accident in Berlin. Both were the drivers of their respective vehicles and were then-alleged to be Vermont residents. On January 13, 2017, shortly before the statute of limitations was to expire, Messier filed suit against Bushman for negligence. The trial court granted a motion for judgment on the pleadings filed by Bushman on the basis that neither personal nor substituted service had been accomplished on Bushman.. We reverse and remand .

The pleadings were not closed when the motion was filed, and the service issues were not apparent from the face of the pleadings. Although styled as a motion for judgment on the pleadings, the gravamen of the motion was that service of process had not been accomplished on Bushman. Thus, the motion was akin to one seeking dismissal under V.R.C.P. 12(b)(5). This is a distinction with a difference. Judgment on the pleadings, as the name suggests, results in a judgment and is an adjudication on the merits. A dismissal for failure to properly serve the summons and complaint results in a dismissal and is not a merits adjudication.

.We do not agree with Messier that Bushman waived the  defense of improper service  by failing to raise it by motion or answer within the time allowed for answer under V.R.C.P. 12(a) following actual notice. An answer filed a few days late, if this one was, which raised the defense of insufficient service of process  did not  waive the defense. 

On a motion to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, or insufficiency of service of process, consideration of matters outside the pleadings is permissible. Here, the court lacked sufficient evidence to determine whether Messier completed § 892(a)’s requirements by providing Bushman with a copy of the return showing service on the Commissioner. The failure to at least acknowledge Messier’s assertion that the affidavit was referring to the Commissioner’s return suggests that the court did not consider all the evidence it had before it.