Barney v. Suggs

688 S.W.2d 356, 1985 Mo. LEXIS 255

• Court: Supreme Court of Missouri
• Decided: April 2, 1985
• Docket: 65980
• Status: Published

Opinions

BILLINGS, Judge.

Consolidated appeals by defendant-dentist seeking relief from a $300,000 default judgment in favor of plaintiff-patient. The court of appeals concluded under Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984), after retransfer, 666 S.W.2d 426 (Mo.App.1984), it had no jurisdiction over defendant’s direct appeal because of the absence of a timely motion to vacate the judgment. However, the court of appeals considered defendant’s multi-pronged motions, filed subsequent to his notice of appeal, as a motion to set aside for irregularity under Rule 74.32 and opined that the lack of substantial evidence to support the damage award was an irregularity entitling defendant to a new trial on the issue of damages. Because of the importance and general interest of the issues involved, the cause was transferred to this Court. We affirm.

The relevant dates and proceedings are as follows:

DATE EVENT

August 12, 1980 Defendant performed oral surgery on plaintiff.

August 10, 1982 Plaintiff’s petition filed.

August 27, 1982 Personal service on defendant.

November 17, 1982 Trial court granted plaintiff’s motion for interlocutory judgment of default.

February 23, 1983 Plaintiff presented evidence on damages.

March IS, 1983 Final judgment of default for $300,000.00 entered.

DATE EVENT

June 15, 1983 Eastern District granted defendant’s motion to file late notice of appeal.

June 23, 1983 Notice of appeal of the default judgment filed.

June 27, 1983 Defendant filed motions in the trial court for a writ of error eoram nobis to set aside the default judgment, alternatively, to vacate or equitably set the judgment aside.

November 4, 1983 Trial court heard and denied defendant’s motions.

November 9, 1983 Notice of appeal of November 4 ruling filed.

December 29, 1983 Eastern District granted a motion to consolidate appeals. The appeal of the default judgment was consolidated with the appeal of the November 4th denial of defendant’s motions.

May 1, 1983 Eastern District filed an opinion on the consolidated appeals.

As demonstrated, supra, the case under consideration involves two consolidated but distinct appeals. The first is a late but direct appeal of the default judgment. The second is an appeal of trial court’s denial of defendant’s motions to set aside the default judgment for alleged irregularities.

We initially note that in defendant’s reply brief in the court of appeals he took the position that the damage award was reviewable on direct appeal but was not reviewable under a writ of error coram nobis, a petition in equity, or motion to set aside for irregularities under Rule 74.32. Further, such motions did not afford him an opportunity to inquire into the substantiality of the evidence supporting the judgment. However, in supplemental briefs filed with this Court defendant has hitched his appellate wagon to both direct appeal and irregularities in seeking barnyard equity to extricate himself from the judgment.

The court of appeals correctly held that the direct appeal of the default judgment should be dismissed for failure to satisfy a mandatory prerequisite. A default judgment cannot be appealed unless the trial court has previously heard a motion to set aside or vacate the judgment. Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984), after retransfer, 666 S.W.2d 426 (Mo.App.1984); In re Marriage of Arnold, 684 S.W.2d 451 (Mo. App.1984); Blackmore v. Blackmore, 639 S.W.2d 268 (Mo.App.1982). Motions filed after the notice of appeal do not satisfy the Vonsmith requirement. Defendant failed to file a timely motion to set aside or vacate the default judgment and direct appellate review is not available to him.

Defendant’s second appeal involves the trial court’s denial of his June 27, 1983, motions. The trial court had already lost jurisdiction because the default judgment had become final due to the passage of time. Further, defendant filed these motions after he had earlier filed a notice of appeal of the default judgment and paid the docket fee. Assuming viable jurisdiction, the trial court at that moment was divested of jurisdiction because it had lodged in the appellate court. Gieselmann v. Stegeman, 470 S.W.2d 522 (Mo.1971); State ex rel. Brooks Erection Co. v. Gaertner, 639 S.W.2d 848 (Mo.App.1982). Nevertheless, because Rule 74.32 authorizes and permits a motion to set aside a judgment for irregularities to be filed within a three-year period following the judgment, and because the issue of alleged irregularities has been squarely raised and presented in the briefs and arguments of the parties in this Court, we will consider and treat defendant’s motions as an independent motion for relief under rule 74.32.

Many opinions have discussed the irregularity requirement of a motion to set aside a judgment. The present Rule 74.32, and its statutory predecessors, recognizes a common law remedy and adds a new time limit of three years. Comment, Procedure-Setting Aside Final Judgments in Missouri, 28 Mo.L.Rev. 281, 286 (1963). The remedy is very narrow. State ex rel. Brooks Erection and Construction Co. v. Gaertner, 639 S.W.2d 848, 850 (Mo.App.1982). The irregularity must render the judgment contrary to a proper result. Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672 (1908), overruled on other grounds, Simms v. Thompson, 291 Mo. 493, 236 S.W. 876 (banc 1921). It must be patent on the record and must not depend on proof beyond the record. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132 (banc 1952); Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1 (1946). The irregularity must indicate that the judgment was materially contrary to an established form and mode of procedure for the orderly administration of justice. Cross, supra. Rule 74.-32 only reaches procedural errors that if known would have prevented the entry of the judgment; irregularities are not ordinary judicial errors in a judgment that are reached through proper procedures and the motion does not allow review of judicial errors committed in the rendering of a judgment. Casper, supra.

An irregularity may be defined to be the want of adherence to some procedural rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conduct of a suit, or doing it in an unseasonable time, or improper manner.

Id. 245 S.W.2d at 138. The motion is not a substitute for a direct appeal. Robinson v. Martin Wunderlich Construction. Co., 72 S.W.2d 127 (Mo.App.1934). It does not test the sufficiency of the evidence supporting the default judgment. Id. The sufficiency of evidence at the damage stage must be assumed during review for irregularities. Head v. Ken Bender Buick Pontiac, Inc., 452 S.W.2d 596 (Mo.App.1970).¹

Defendant claims two irregularities. First, he alleges the evidence was insufficient to justify the damage award. See, e.g., Smith v. Sayles, 637 S.W.2d 714 (Mo.App.1982). Although this ground can be advanced in a proper direct appeal, the judgment cannot be set aside for such an alleged irregularity. The alleged error is judicial, not procedural, and it is not subject to review under Rule 74.32.

Second, he alleges the default judgment should be set aside for failure to give constitutionally required notice. The procedure plaintiff utilized followed our rules, the statutes, and decisional law, and does not constitute an irregularity under Rule 74.32. When damages are unliqui-dated, the default procedure has two stages. First, if defendant fails to file a timely pleading plaintiff may obtain an interlocutory judgment of default. Rule 74.-045. Second, damages are assessed and a final judgment is entered. Rule 74.09-.il. No time interval between the stages or additional notice is required.

Here, defendant was personally served with summons and petition and was put on notice of every stage of the proceeding. Rule 43.01(a). Courtin v. McGraw Construction Co., 639 S.W.2d 286 (Mo.App.1982); Korn v. Ray, 434 S.W.2d 798 (Mo.App.1968).² Service of a valid summons gives a defendant reasonable notice of the suit and the damage assessment upon default. There is simply no constitutional, statutory, or procedural irregularity in the present case and Rule 74.32 is of no aid to defendant.

Defendant negligently disregarded legal process. Once he was validly served he was charged with notice and in court for all subsequent proceedings. Plaintiff proceeded properly under the rules. Defendant ignored them. If judgments are properly rendered they should not be disturbed by loose interpretations of cases and newly created and imposed rules. Dereliction by a defendant should not be so rewarded. No additional notice was required under the law. Defendant’s argument that the failure to give a defaulting defendant a second notice is an irregularity subject to a motion to vacate would open the door on default judgments and completely undermine our recent ruling in Vonsmith, supra.

The judgment is affirmed.

HIGGINS and GUNN, JJ., concur. DONNELLY, J., concurs in separate opinion filed. WELLIVER and BLACKMAR, JJ., dissent in separate opinions filed. RENDLEN, C.J., dissents and concurs in separate dissenting opinion of BLACK-MAR, J.

1 . Examples of irregularities include: (1) failing to provide required notice, Murray v. United Zinc Smelting Corp., 263 S.W.2d 351 (Mo.1954); Pikey v. Pikey, 605 S.W.2d 215 (Mo.App.1980), (2) rendering a judgment for an amount greater than the petition prayed for, Rook v. John F. Oliver Trucking Co., 505 S.W.2d 157 (Mo.App.1973); Boggess v. Jordan, 283 S.W. 57 (Mo.App.1926), (3) failing to appoint a guardian ad litem to protect the interests of a minor, McDaniel v. Lovelace, 439 S.W.2d 906 (Mo.1969), modified on other grounds by rule change, see Hawkins v. Hawkins, 533 S.W.2d 634 (Mo.App.1976), and (4) entering a judgment prematurely, ABC Fireproof Warehouse Co. v. Clemans, 658 S.W.2d 28 (Mo. banc 1983).

2 . Defendant cites Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347 (banc 1950), to support the requirement that a plaintiff notify a defendant in default when the hearing on damages will be conducted. In Hoppe the trial court, sua sponte, ordered a new trial without giving notice or a hearing to the parties. A statute gave the trial court the power to order a new trial within 30 days of a judgment, but the Court had to prescribe the manner in which the power could be exercised. The Court held reasonable notice was required because the rights of persons and property were at issue. The key factor was that the adversely affected party had no notice that his interests were being considered. Hoppe does not control the present case because Dr. Suggs had notice. He received a valid summons and proceeded at his own risk.

Defendant argues that the only two cases to consider the constitutionality of notice mandate the judgment be set aside for irregularity. His conclusion is incorrect. He cites In re Estate of Sympson, 577 S.W.2d 68 (Mo.App.1978). Sympson was a statute ex parte action, not a default. The court held that the constitution may independently impose notice requirements when a proceeding directly affects a party. The facts mandated notice because no notice was ever sent to the adversely affected parties, and the ex parte action was taken in the middle of an actively contested dispute. In the instant case notice was originally served and defendant did not act. The facts that made failure to send notice in Sympson a violation of due process are not present in the instant case. Traders Bank of Kansas City v. Cherokee Investment Co., 642 S.W.2d 122 (Mo.App.1982), also imposed a notice requirement as a matter of due process. Traders is distinguishable because defendant was actively involved, and the notice involved the disposition of defendant’s motions. No case cited by the defendant holds the default procedure unconstitutional. Reasonable notice was given by an initial summons that advised defendant of the consequences of default. Defendant did nothing. All cited cases are distinguishable because they involved a participating defendant.