Higher Education Assistance Foundation v. Hensley

871 S.W.2d 115, 1994 Mo. App. LEXIS 328, 1994 WL 57277
CourtMissouri Court of Appeals
DecidedMarch 1, 1994
DocketNo. WD 47487
StatusPublished

This text of 871 S.W.2d 115 (Higher Education Assistance Foundation v. Hensley) 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
Higher Education Assistance Foundation v. Hensley, 871 S.W.2d 115, 1994 Mo. App. LEXIS 328, 1994 WL 57277 (Mo. Ct. App. 1994).

Opinion

SMART, Judge.

Jeffrey M. Hensley appeals from the trial court’s amendment of a ruling previously rendered in favor of Hensley. The trial court’s amendment purported to clarify that the dismissal of October 22, 1991, was a dismissal without prejudice.

In 1982, Jeffrey Hensley executed two promissory notes in the principal amounts of $2,500.00 and $2,281.00 to finance a portion of his undergraduate education. In 1988, Hensley was accepted at the University of Missouri — Kansas City School of Law. After his acceptance, Hensley filed certain documents in an attempt to defer his student loan obligation until he finished his law school education. Although Hensley was actually enrolled and apparently entitled to the deferment, the deferment was not granted.

On August 9, 1990, the Higher Education Assistance Foundation (“HEAF”), as assign-ee, filed a petition on the notes alleging that Hensley had defaulted on the student loan obligation. Hensley’s answer admitted the execution of the notes but denied that there had been a default. At trial, the court heard evidence and determined that HEAF had not shown that Hensley was in default. The trial court concluded that Hensley would not be in default until approximately a year later, which would be six months after his May, 1991, graduation from law school. In its order, the trial court specifically stated: “At conclusion of evidence court sustains defendant’s motion to dismiss for plaintiffs failure to produce sufficient evidence of default or deferral.”

On November 13, 1991, twenty-two days after the entry of judgment, HEAF filed a Motion to Amend the Judgment Entry or, in the alternative, Motion for a New Trial. The motion requested that the trial court indicate to the parties whether the dismissal was with or without prejudice. HEAF cited various judicial comments in the trial transcript supporting its belief that the trial court dismissed the case “for prematurity of action” under Rule 67.03. The trial court declined to clarify the judgment, but granted HEAF a new trial instead. Hensley appealed the trial court’s judgment ordering a new trial, claiming that HEAF’s motion for new trial was filed out of time. Because Hensley was then employed as a law clerk for this court, the appeal was taken on transfer by the Missouri Supreme Court.

Following transfer, HEAF filed in the Supreme Court a motion seeking amendment of the judgment to correct a clerical mistake pursuant to Rule 74.06. In its opinion, in which it reversed the trial court’s grant of a new trial, the Supreme Court discussed HEAF’s motion as follows:

HEAF misconstrues Rule 74.06. That rule codifies the common law order nunc pro tunc. In so doing, Rule 74.06 limits itself to clerical mistakes “arising from oversight or omission.” A clerical mistake is “a mistake in writing or copying.”
No such clerical mistake is evident from this record. While our review of the record leads us to suspect that the trial court intended to dismiss this cause without [117]*117prejudice for prematurity of action, there is sufficient ambiguity in the record that it cannot be said with the requisite certainty that that is what the trial court intended. Nor does our speculation support an entry of an order pursuant to Rule 84.14, which permits an appellate court to “give such judgment as the [trial] court ought to give.”
In terms of the resources of the judicial system, it would have been far better for Hensley to act on appeal as he stated in the trial court — that he owed HEAF the money and intended to repay it. Hensley’s actions reveal that he apparently intends to offer the defense of res judicata should Hensley (sic) file a new action to collect on its note. Should that happen, the trial court will have ample opportunity to state its intentions with regard to its original order of dismissal.

Higher Educ. Assistance Foundation v. Hensley, 841 S.W.2d 660, 662-63 (Mo.1992) (citations omitted). The court held that the motion for new trial was filed out of time and ordered the trial court to enter judgment denying the motion for new trial. On remand, the trial court then made two entries in this case. The first entry dated December 1, 1992, read as follows:

The Court having received the opinion of the Supreme Court finds specifically that this Court’s order of 10/22/91 was a dismissal of the cause for “prematurity of action”, as defined by Supreme Court Rule 67.03. Thus it was the intent of the Court to dismiss said cause without prejudice and with the understanding that the Plaintiff may refile the cause at the appropriate time. Clerk is ordered to notify the parties of this finding and the clarification of Court’s previous order.

The second entry dated January 12, 1993, provided:

The Court reissues its findings of Dee. 1, 1992, and hereby incorporates its finding of Dec. 1,1992. The Court hereby formally orders that the original dismissal of this cause was without prejudice due to the prematurity of the action. The Court orders cause dismissed without prejudice and denies plaintiffs motion for new trial.

Hensley appeals from the trial court’s entry of December 1, 1992, where it specified that its prior judgment was a dismissal without prejudice for “prematurity of action.”

Hensley’s sole point on appeal is that the trial court erred in amending its original judgment in the underlying action because it was without jurisdiction to take that action. He suggests that the jurisdiction of the trial court on remand was limited to the sole issue presented by Hensley to the Supreme Court of whether HEAF’s motion for new trial was properly granted. Thus, Hensley concludes, the trial court’s action of amending the original judgment is null and void.

HEAF argues in response that the trial court amendment was authorized, but even if it were not technically authorized, there was no harm to Hensley because the amendment did not change the nature of the original judgment. Rule 67.03 then provided:

A dismissal without prejudice permits the party to bring another civil action for the same cause, unless the civil action is otherwise barred. A dismissal with prejudice bars the assertion of the same cause of action or claim against the same party. Any voluntary dismissal other than one which the party is entitled to take without prejudice, and any involuntary dismissal other than one for lack of jurisdiction, for prematurity of action, for improper venue or for failure to substitute a party for a decedent shall be with prejudice unless the court in its order for dismissal shall otherwise specify.

(Emphasis added.) Thus, under Rule 67.03, a dismissal for prematurity of action was equivalent to a dismissal without prejudice.1 HEAF urges that the trial court’s ruling was a dismissal for prematurity of action. HEAF points to the language used by the trial court in connection with the ruling:

Now I want to make it clear. I’m sustaining this motion because the Plaintiff has not sufficiently convinced me that a deferral was incomplete. And I’m going to [118]*118put that in my finding. I certainly don’t want this to reflect, and I want to make it clear on the record, that the Defendant doesn’t owe this obligation.

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Related

Overby v. Overby
682 S.W.2d 872 (Missouri Court of Appeals, 1984)
Higher Education Assistance Foundation v. Hensley
841 S.W.2d 660 (Supreme Court of Missouri, 1992)
Parker v. Parker
857 S.W.2d 873 (Missouri Court of Appeals, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
871 S.W.2d 115, 1994 Mo. App. LEXIS 328, 1994 WL 57277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higher-education-assistance-foundation-v-hensley-moctapp-1994.