Derrick, Inc. v. Quigless

408 S.W.3d 323, 2013 WL 5204996, 2013 Mo. App. LEXIS 1055
CourtMissouri Court of Appeals
DecidedSeptember 17, 2013
DocketNo. ED 99257
StatusPublished
Cited by3 cases

This text of 408 S.W.3d 323 (Derrick, Inc. v. Quigless) 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
Derrick, Inc. v. Quigless, 408 S.W.3d 323, 2013 WL 5204996, 2013 Mo. App. LEXIS 1055 (Mo. Ct. App. 2013).

Opinion

ROBERT G. DOWD, JR., Judge.

Kirk and Marsha Quigless (“Homeowners”) appeal from the judgment of the trial court in favor of Derrick, Inc. (“Contractor”). Homeowners contend the trial court erred in entering judgment against them because the judgment was in violation of due process and void in that they did not receive notice of the trial setting. We affirm.

Contractor is a Missouri corporation in the business of supplying labor and materials for residential construction and remodeling. Homeowners are married individuals residing in St. Louis, Missouri.

Contractor and Homeowners entered into a contract whereby Contractor was to provide remodeling work at Homeowners’ home. Contractor alleged Homeowners were in default on their payments for the work it completed on their home. Thus, Contractor filed an action against Homeowners for breach of contract and quantum meruit.

Homeowners were represented by Elbert Dorsey and filed an answer and counterclaim, which alleged numerous problems with the quality of Contractor’s work.

On January 20, 2011, the case was set for trial in Division 13 on February 14, 2011. On February 10, 2011, Contractor appeared for a pre-trial conference, but [325]*325Homeowners failed to appear. The trial court entered an order stating the case remained set for February 14, 2011. On February 17, 2011, the trial court entered an order returning the case to Division 1 for further proceeding. On March 17, 2011, the case was set for trial in Division 21 on April 11, 2011. On April 14, 2011, the trial court entered an order returning the case to Division 1 for further proceedings. The trial court also stated “Cause not reached because of trial.” On July 12, 2012, the case was set for trial in Division 7 on August 6, 2012.

On August 7, 2012, the trial court held a trial and Contractor presented evidence after which the trial court entered its judgment. It stated the case came before the court and Contractor appeared, but Homeowners failed to appear. The trial court entered judgment in favor of Contractor and against Homeowners in the amount of $48,510.64.

Later the same day, August 7, 2012, Homeowners filed a motion to set aside the judgment for the failure of notice. This motion was filed by Thomas Carter and indicated Homeowners were represented by Mr. Carter at this point.1 Homeowners also filed a motion for new trial on August 27, 2012, in which they alleged no notice of the trial was given to them and they did not have an opportunity to be heard and defend.

On September 4, 2012, the trial court denied Homeowners’ motion for a new trial without giving a reason.

Homeowners then filed a motion for clarification, stating they filed both a motion for new trial on August 27, 2012 and a motion to set aside the judgment on August 7, 2012. Homeowners were uncertain of the status of the motion to set aside the judgment, on which they contend the trial court had not specifically ruled.

The trial court issued an order stating “[Homeowners’] original [August 7, 2012] motion styled ‘Request for Reconsideration and, or in the Alternative, Motion for New Trial’ was considered by the Court as a motion for a new trial. That was the only motion properly before the Court. Said motion was denied by this Court’s Order on September 4, 2012.” Homeowners then filed an amended motion for new trial on September 28, 2012, which was also denied on October 17, 2012.

Homeowners filed a notice of appeal November 21, 2012. On January 2, 2013, this court issued an order to show cause why the appeal should not be dismissed for lack of a final, appealable judgment. We noted “[t]here [was] nothing in the record on appeal to demonstrate that the [Homeowners’] counterclaim [against Contractor] had been resolved.” Thus, Homeowners were directed to show cause on or before January 22, 2018 why this appeal should not be dismissed for lack of a final, appeal-able judgment. On January 17, 2013, the trial court issued a nunc pro tunc order to reflect that Homeowners’ counterclaim was denied in the August 7, 2012 judgment. This court issued an order stating “there [was] now a final, appealable judgment” in this case on January, 23, 2013.2

Initially, we note Contractor asserts this case should be dismissed because Homeowners’ November 21, 2012 notice of appeal was untimely. However, as noted above, there was not a final, appealable judgment until January 17, 2013 when the trial court issued a nunc pro tunc order denying the counterclaim, [326]*326which resulted in a final, appealable judgment.3 Thus, the November 21, 2012 notice of appeal was actually premature. We have held premature notices of appeal are considered as filed immediately after the time the judgment becomes final for the purpose of appeal. Reeves v. Allstate Ins. Co., 282 S.W.3d 368, 371 (Mo.App. S.D. 2009). Therefore, the notice of appeal in this case was timely.

We now turn to Homeowners’ sole point on appeal in which they claim the trial court’s judgment should be vacated because the judgment it entered against them was in violation of due process and was void in that they did not receive notice of the trial setting. We disagree.

Whether a judgment should be vacated because it is void due to a lack of notice of the trial setting is a question of law that we review de novo. Kerth v. Polestar Entertainment, 325 S.W.3d 373, 378 (Mo.App. E.D.2010).

A fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Id. The fundamental requirement of due process of law is the opportunity to be heard. Id. This right to be heard has little worth unless one is informed that a matter is pending and can choose whether to appear or default, acquiesce, or contest. Id. Missouri courts have held constitutional due process requires that for a judgment entered against a party not in default to be valid, there must have been notice of the trial setting and an opportunity to be heard must have been granted at a meaningful time and in a meaningful manner. Id.

Unless the record establishes that the complaining party was provided notice of a trial setting, we may conclude the complaining party did not receive notice. Breckenridge Material Co. v. Enloe, 194 S.W.3d 915, 920 (Mo.App. E.D.2006). What constitutes constitutionally-sufficient notice will vary with the circumstances and conditions of a particular case. Kerth, 325 S.W.3d at 380. In all instances, however, due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action. Id. at 381. When a person is due notice, the one attempting to notify must use means he or she reasonably calculates to actually provide notice to the other. Id. Process which is a mere gesture is not due process. Id.

Here, there is ample evidence in the record that Homeowners were provided notice of the August 6, 2012 trial setting.

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Bluebook (online)
408 S.W.3d 323, 2013 WL 5204996, 2013 Mo. App. LEXIS 1055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derrick-inc-v-quigless-moctapp-2013.