Commerce Bank N.A. v. Fry

983 S.W.2d 221, 1999 Mo. App. LEXIS 40, 1999 WL 10150
CourtMissouri Court of Appeals
DecidedJanuary 13, 1999
DocketNo. 22190
StatusPublished
Cited by3 cases

This text of 983 S.W.2d 221 (Commerce Bank N.A. v. Fry) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commerce Bank N.A. v. Fry, 983 S.W.2d 221, 1999 Mo. App. LEXIS 40, 1999 WL 10150 (Mo. Ct. App. 1999).

Opinion

CROW, Judge.

Defendants, Donna J. Fry and Danny C. Fry, appeal from a money judgment against them in favor of Plaintiff, Commerce Bank N.A. Defendants’ sole point relied on avers the trial court lost jurisdiction of the action prior to entering the judgment. Defendants’ contention requires a chronological account of the significant events during the ease’s tortile march through the trial court.

December 12, 1996. Plaintiff files petition. Case set for trial January 22,1997.

January 22, 1997. Handwritten memorandum filed; it states, inter alia:

“Plaintiff does not appear. Defendants appear by counsel. Cause dismissed, without prejudice at Plaintiff’s costs.”

Beneath the above-quoted handwriting is an illegible signature, inferably that of Wayne Gifford, a lawyer.1

At the foot of the memorandum appear the printed words: “So Ordered.” Those words are followed by illegible handwritten initials. This court divines from other documents in the record that the initials are those of Honorable Tracy L. Storie, an associate circuit judge of the Circuit Court of Pulaski County.

February 3, 1997. Plaintiff files “Motion to Set Aside Dismissal.” It avers, inter alia:

“Due to a miseommunication between the Plaintiffs attorney and local counsel, an appearance was inadvertently not entered.”

Attached to the motion is a certificate of Plaintiff’s counsel reciting that a copy of the motion was mailed to Defendants January 30, 1997. The motion is accompanied by a notice that Plaintiff shall call the motion up for hearing February 19, 1997. Attached to the notice is a certificate of Plaintiff’s counsel reciting that a copy of the notice was mailed to Defendants January 30,1997.

February 19, 1997. Handwritten memorandum filed; it states, inter alia: “Plaintiff Motion To Set Aside Dismissal is granted.” Memorandum bears handwritten initials, in-ferably “TLS.”

April 16, 1997. Typewritten docket entry stating, inter alia: “Judge Storie Disqualifies. TLS Judge!.]”

May 30, 1997. Presiding Judge assigns case to Honorable Mary W. Sheffield.2

July 16, 1997. Defendants, by lawyer Gif-ford, file handwritten memorandum averring:

“Come now Defendants, by counsel, and moves [sic] the court to dismiss the above entitled cause as Defendants were represented by counsel and no notices, motions, discovery, or otherwise were served on counsel for Defendants and, therefore, any orders reinstating the cause were without jurisdiction by the Court as no proper service/notice was given to Defendants. Further, as no trial de novo was filed within 10 days after the dismissal, this Court is without jurisdiction as the Motion to Set Aside was not heard within 10 days.”

At the foot of the memorandum appear the printed words: “So Ordered.” Following those words is more handwriting, evidently penned by someone other than lawyer Gif-ford. That handwriting states:

“Court sustains [Defendants’] Motion to Dismiss for lack of notice and Court places [Plaintiff’s] Motion to Set Aside Dismissal and Notice of Hearing on July 22,1997 [at] 1:30 P.M. Court [at] request of defendant [sic] sets aside Judge Stories Order Setting Aside the Dismissal as Mr. Gifford [223]*223was not notified by [Plaintiff]. Kelly Walker appears for [Plaintiff]. All parties notified of hearing in person_”

No signature or initials appear at the end of the above-quoted handwriting. However, the docket sheet displays a typewritten version of the above-quoted handwriting. The typewritten version is followed by a typewritten notation: “MWS Judge.”

August 18, 1997. Handwritten memorandum filed. It is dated July 22, 1997, and states, inter alia:

“Both parties appear by counsel, on motion of Plaintiff, Motion to Set Aside Dismissal is sustained and case is ordered reinstated to trial docket. Discovery is to be completed by October 1, 1997. Case is to be set for trial, by phone, at 8:30 a.m., Wednesday, October 8,1997.”

At the foot of the memorandum appear the printed words: “So Ordered.” Following those words are the handwritten digits “8-15-97” and a signature appearing to be that of Judge Sheffield.3

October 6, 1997. Defendants file “Motion to Dismiss for Lack of Jurisdiction.” It avers, inter alia:

“1. That on July 16, 1997, the above entitled cause was dismissed by the Court.
2. That on August 18, 1997, the Court purported to set aside said dismissal.
3. That Rule 75.01 states that the trial court has control over judgment for 30 days.
4. That the order purporting to set aside the dismissal was more than 30 days after the dismissal and that, therefore, the Court lost jurisdiction over the matter.”

October 10,1997. Order hearing signature appearing to be that of Judge Sheffield filed. Order states, inter alia:

“Defendant’s [sic] Motion to Dismiss for Lack of Jurisdiction called and heard. Motion overruled pursuant to Civil Rule 74.06.”

Plaintiff subsequently filed a motion for summary judgment. The trial court granted it and, on December 1, 1997, entered the judgment from which Defendants bring this appeal.

Defendants’ point relied on proclaims:

“[Defendants’] Motion to Dismiss [for Lack of Jurisdiction] should have been sustained as, under Rule 75.01, the trial court only retains jurisdiction over a judgment for 30 days and the order dismissing the case was entered on July 16, 1997, and the order purportedly setting aside the dismissal was entered on August 18, 1997, obviously more than 30 days after the dismissal and, therefore, the discovery propounded ... while the case was dismissed was a nullity and the [judgment] entered on December 1, 1997, was beyond the jurisdiction of the court and void.”

Adjudicating Defendants’ claim of error begins by determining the effect of the handwritten memorandum filed January 22, 1997 (quoted earlier). As we have seen, it purported to dismiss this action.

The version of Rule 74.01(a) appearing in Missouri Rules of Civil Procedure (1996) took effect January 1,1995, and was in force when the memorandum of January 22, 1997, was filed. That version of Rule 74.01(a) read, in pertinent part:

“A judgment is entered when a writing signed by the judge and denominated ‘judgment’ is filed.”

In Lowery v. Air Support International, Inc., 971 S.W.2d 323, 324 (Mo.App. S.D.1998), this court, in discussing that version of Rule 74.01(a), explained:

“Rule 74.01(a) ... provides that a judgment is entered when: (1) a writing, (2) signed by the judge, (3) denominated ‘judgment’ (4) is filed.”

In Lowery, the trial court undertook to grant a motion by the defendant to dismiss the plaintiffs petition. The trial court’s rul[224]*224ing was set forth in a docket entry and in a facsimile transmission to the court clerk.

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Bluebook (online)
983 S.W.2d 221, 1999 Mo. App. LEXIS 40, 1999 WL 10150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commerce-bank-na-v-fry-moctapp-1999.