Faris v. Dewitt

947 S.W.2d 847, 1997 Mo. App. LEXIS 1307, 1997 WL 400314
CourtMissouri Court of Appeals
DecidedJuly 17, 1997
DocketNo. 21151
StatusPublished
Cited by6 cases

This text of 947 S.W.2d 847 (Faris v. Dewitt) 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
Faris v. Dewitt, 947 S.W.2d 847, 1997 Mo. App. LEXIS 1307, 1997 WL 400314 (Mo. Ct. App. 1997).

Opinion

PARRISH, Judge.

Jack Faris (plaintiff) appeals an order setting aside a judgment against Clovis Hau-bein, Dan T. Sullivan, Ramon A. Shane and Recovery Experts, Inc. (collectively referred to as defendants). The judgment against Haubein, Sullivan and Shane was against them individually and as statutory trustees of Recovery Experts, Inc. It was entered as a default judgment but later set aside when the trial court determined that a motion to dismiss had been pending at the time an interlocutory order in default was entered and when the final judgment was entered. This court affirms.

Plaintiff’s petition alleged that he suffered a fall due to the negligence of Recovery Experts, Inc., on property owned by the corporation, and that he was injured. He sought damages for his injuries.

The petition alleged that Recovery Experts, Inc., was a Missouri corporation whose corporate rights and privileges were forfeited by the Missouri Secretary of State; that the corporation’s “certificate or license” had been cancelled on or about October 30, 1985. The petition alleged the officers and directors of the corporation on October 30, 1985, immediately before forfeiture of its corporate rights and privileges were ■ W.E. DeWitt, Clovis Haubein, Ramon A. Shane, Dan T. Sullivan, James Heckman and “John Doe.” It explained, “John Doe is the fictitious name assigned to those other individuals who were officers and directors of Recovery Expert [sic], Inc. immediately prior to the forfeiture of its corporate rights and privilege on October 30, 1985, but whose identity is unknown to the Plaintiff[.]”

The petition was filed April 30, 1992. The ease number that was assigned was 192CC1118. On or about June 1,1992, within 30 days of the time the individual defendants had been served with process, attorney Will Fletcher mailed to plaintiffs attorney a copy of a motion to dismiss. The caption on the motion was “JACK FARIS Plaintiff, vs. WILLIAM DEWITT, et al Defendants.”

The motion stated, “COMES NOW Defendants, and through their attorney, move this Court to dismiss Plaintiffs petition filed herein.... ” It then alleged, as grounds for dismissal of plaintiffs petition, lack of personal jurisdiction over the defendants; lack of jurisdiction over the subject matter; failure to state a claim upon which the relief requested could be granted; failure to join an indispensable party; and running of “the statute of limitations.”

The motion to dismiss had no case number recorded on it when it was mailed from Mr. Fletcher’s office. Copies of the motion were sent to each individual defendant, although the only defendant who consulted Mr. Fletcher was W.E. Dewitt.

Plaintiffs attorneys “noticed” the motion to dismiss for hearing on June 11, 1992, and again on November 28,1994. Docket entries dated June 3, 1992, and November 18, 1994, state, respectively, “Pltfs Notice of Hearing, filed” and “Plaintiffs Notice of Hearing on 11-28-94 filed.” The record on appeal shows no action taken in response to the June 1992 notice. A docket entry dated November 28, 1994 states:

Plaintiff appears by Attorney James Cor-bett. Plaintiff dismisses as to Dft John Doe without prejudice. Interlocutory Judgment on Default entered in favor of Plaintiff and against all defendants.

By letter dated November 29, 1994, plaintiffs attorney advised Mr. Fletcher regarding “Faris vs. Dewitt, et al., Case No. 192CC1118”:

Please advised that I did appear on your Motion to Dismiss on November 28, 1994, before the Honorable Donald Bonacker, Judge. As is turns out, you apparently never filed your Motion to Dismiss with the Court, so therefore there was no Motion to Dismiss to take up on November 28, 1994. I did, however, move for an interlocutory order of default against all of the defendants except for John Doe, who I dismissed. On my motion, Judge Bonacker did enter an interlocutory order of default. I anticipate seeking a final default [849]*849judgment on or before December 30, 1994, unless prior to that time you have filed a motion to set aside the interlocutory order of default. Please give me a call if you have any questions.

On December 2, 1994, Mr. Fletcher filed a motion on behalf of defendant DeWitt to set aside the interlocutory judgment of default. The interlocutory judgment was set aside as to Mr. DeWitt on December 8, 1994, and he was given 21 days in which to answer. W.E. DeWitt testified that he sent a letter to each of the other individual defendants telling them that his attorney, Mr. Fletcher, could not represent them because of a conflict of interest. He testified he also called Dr. Sullivan and Mr. Haubein and told them they should get their own attorney. None of the other defendants took action to attempt to set aside the interlocutory judgment.1

Plaintiff and DeWitt commenced discovery. The trial court set the case for trial on October 16, 1995, and on that date made the following docket entry:

Plaintiff appears by Attorney Kurt Larsen. Defendant W.E. DeWitt appears by Attorney Jianbin Wei. Court Reporter Dan Cunningham present. On the record, Judgment against Defendant W.E. DeWitt agreed. Formal Judgment to be prepared by Attorney Larsen.

On October 20, 1995, plaintiff voluntarily dismissed his action as to James Heckman with prejudice. On June 28, 1996, defendants Haubein, Shane and Sullivan filed a motion to set aside the default judgment. The motion to set aside the default judgment was set for hearing on August 1, 1996. Following the hearing, the motion was granted and the judgment set aside. The trial court found:

The judgment entered on 11-28-94 and October 20, 1995 against Defendants Recovery Experts, Inc., Clovis Haubein, Ramon A. Shane and Dan T. Sullivan are [sic] set aside for the reason that, as it determined on 12-8-94 in setting aside the judgment against Defendant DeWitt the Defendants had filed Motions to Dismiss and other reasons set forth on the record.

In announcing his ruling on the motion to set aside the judgment, the trial judge made various observations concerning the status of the case. His observations included:

The court recalls the occasion when Mr. Corbett appeared for a hearing on a motion to dismiss and opposing counsel was not there. And there was nothing in the file, no motion to dismiss in the file.
And that was that occasion when I did enter, at the request of the plaintiffs attorney, Mr. Corbett, the interlocutory judgment, believing at that time that that would prompt a defense attorney to become aware there was a clerical error someplace so that the file, that was the file that governs litigation under the Missouri Supreme Court Rules, might be corrected by that attorney.
Then, when the attorney, Mr. Fletcher, appeared along with the Defendant, William DeWitt, and the attorney for the plaintiff, Mr. Corbett, on the 8th of December of 1994,1 accepted necessarily, when I set aside the judgment against Mr. De-Witt, the argument that ... a clerical error had been made. And that by some mistake, not of a party — because I don’t accept that — but by some mistake of someone else that the motion to dismiss did not appear in the file that I had before me which constitutes the litigation under the Missouri Supreme Court Rules.

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Cite This Page — Counsel Stack

Bluebook (online)
947 S.W.2d 847, 1997 Mo. App. LEXIS 1307, 1997 WL 400314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faris-v-dewitt-moctapp-1997.