Kiser v. Wideman

403 S.W.3d 130, 2013 WL 3246383, 2013 Mo. App. LEXIS 813
CourtMissouri Court of Appeals
DecidedJune 28, 2013
DocketNo. ED 98662
StatusPublished
Cited by1 cases

This text of 403 S.W.3d 130 (Kiser v. Wideman) 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
Kiser v. Wideman, 403 S.W.3d 130, 2013 WL 3246383, 2013 Mo. App. LEXIS 813 (Mo. Ct. App. 2013).

Opinion

ROBERT G. DOWD, JR., Presiding Judge.

William Wideman, Sr., James Wideman, (“the Widemans”) and Paradise Fiberglass Pools, LLC appeal from the trial court’s entry of a default judgment in favor of Craig Kiser (“Homeowner”). The Wide-mans and Paradise Fiberglass Pools, LLC make several arguments regarding the trial court’s failure to set aside the default judgments against them. In addition, the Widemans and Paradise Fiberglass Pools, LLC contend the trial court plainly erred in failing to immediately recuse itself sua sponte from hearing the cause. We dismiss in part and reverse and remand in part.

Homeowner entered into a contract with the Widemans, doing business as Paradise Fiberglass Pools, Inc.,1 for the construction of an in-ground swimming pool at his home. Subsequently, there were problems with the project, which ultimately rendered Homeowner’s retaining wall and in-ground swimming pool valueless causing him significant damages.

Thus, on October 7, 2010, Homeowner filed suit against the Widemans and Paradise Fiberglass Pools, LLC. Homeowner alleged the Widemans and Paradise Fiberglass Pools, LLC, acting directly or through their agents and employees, negligently and carelessly destroyed the “geo-grid” system, which had previously been installed in Homeowner’s backyard as part of a complex retaining wall system. As a result of this negligence, Homeowner alleged he sustained over $110,000 in damages because his retaining wall and in-ground swimming pool were rendered valueless. Homeowner also alleges the assets of Paradise Fiberglass Pools, Inc. have been transferred to Paradise Fiberglass Pools, LLC in an effort to thwart creditors of the Widemans. The case was assigned to Judge John Ross.

The Widemans and Paradise Fiberglass Pools, LLC did not file an answer or otherwise respond to the petition within thirty days. On April 26, 2011, the trial court entered an interlocutory order of default stating, “[mjore than thirty days having passed since the date of service, default and inquiry granted against the Defendants William Wideman, Sr., William [132]*132Wideman, Sr., Vice-President of Paradise Fiberglass Pools, LLC and James Wide-man.”

On May 16, 2011, the trial court held a hearing on damages, and the Widemans appeared pro se. The trial court deferred its ruling on the final default judgment until June 17, 2011. In deferring its ruling on entering a final default judgment, the trial court stated to the Widemans: “You are in default. You can file whatever motion you want to file. I’m giving you 30 days to file whatever you want to file.”

On June 3, 2011, the Widemans filed a “Notice of Motion to Set Aside Default Judgment,” arguing, among other things, that the personal liability incurred by them while Paradise Fiberglass Pools, Inc. was administratively dissolved was extinguished when Paradise Fiberglass Pools, Inc. was reinstated. Therefore, they could not be held personally liable. The Wide-mans also averred that they could not afford a lawyer and apologized to the trial court for missing deadlines due to their lack of knowledge of the judicial system. Thus, they requested the trial court set aside the default judgment against them personally.

On June 17, 2011, the trial court entered a default judgment against Paradise Fiberglass Pools, LLC for $89,381.00 plus costs. The trial court also denied the Widemans’ motion to set aside the interlocutory order of default as premature, but granted the Widemans leave to file an answer to Homeowner’s petition no later than June 24, 2011.2

On June 23, 2011, the Widemans filed an answer to Homeowner’s petition. In their answer, they alleged Paradise Fiberglass Pools, Inc. had been incorporated in Illinois in 1999 and was in good standing when the contract and work were performed for Homeowner. Thereafter, Paradise Fiberglass Pools, Inc. was administratively dissolved by the State of Illinois in June 2009. However, Paradise Fiberglass Pools, Inc. was later brought back into good standing in Illinois. The Wide-mans further alleged when excavating for the pool, the top couple of rows of “geo-grid” fell into the hole, but were restored to their original condition once the pool shell was installed. In addition, they noted the retaining wall was “kicking out” at the bottom due to improper installation, which was unrelated to the work they did to restore the top couple of rows. Lastly, they alleged no assets of Paradise Fiberglass Pools, Inc. have ever been transferred to Paradise Fiberglass Pools, LLC for the purpose of hindering, delaying, or defrauding its creditors.

On February 14, 2012, the trial court3 entered another judgment denying the Widemans’ motion to set aside interlocutory order of default, concluding the Wide-mans failed to show “good cause” to set aside the interlocutory default under Rule 74.05. The trial court then entered a judgment in favor of Homeowner and held the Widemans jointly and severally liable to Homeowner for $89,381 plus costs.

The Widemans filed a motion for new trial, contending they had not been afforded a hearing on their answer to Homeowner’s petition. The Widemans also filed [133]*133a motion to set aside the final default judgment. In that motion, the Widemans noted the trial court granted the Wide-mans leave to file an answer to Homeowner’s petition. In addition, the Wide-mans contended at the time of the court’s February 14, 2012 denial of the Widemans’ motion to set aside interlocutory order of default, there was no motion pending because it had been denied as premature. The trial court denied both of these motions on March 14, 2012.

On March 80, 2012, the Widemans filed a motion for change of judge, alleging they had been prejudiced by ex parte communications. On April 4, 2012, the trial court entered an order recusing itself due to the allegations in the Widemans’ motion for change of judge.

On April 20, 2012, the Widemans filed a motion for a new trial and to vacate the trial court’s February 14, 2012 judgment and March 14, 2012 judgment. On May 4, 2012, the trial court overruled both motions for lack of jurisdiction. This appeal follows.

Initially, we note while Paradise Fiberglass Pools, LLC is listed as an appellant on the notice of appeal, it was not a party to the Widemans’ June 8, 2011 motion to set aside the default judgment below. In addition, Paradise Fiberglass Pools, LLC was not a party to the Widemans’ March 8, 2012 motion for a new trial or motion to set aside the default judgment. Because it did not participate and no one purported to represent it,. Paradise Fiberglass Pools, LLC did not preserve anything for appellate review. Thus, we dismiss its appeal and find the default judgment entered on June 17, 2011 remains in effect with respect to Paradise Fiberglass Pools, LLC.

In their first point, the Widemans argue the trial court erred in denying their motion to set aside the interlocutory default judgment filed on June 3, 2011 because it was not premature in that: (a) the trial court entered an interlocutory order of default against the Widemans; (b) Rule 74.05(d) permits an interlocutory of default to be set aside upon the filing of a motion; (c) the Widemans filed a motion to set aside the interlocutory order of default; and (d) the Widemans’ motion was a proper motion as contemplated by the rules.

A decision on a motion to set aside a default judgment under Rule 74.05 is reviewed for abuse of discretion. Rosemann v. Rosemann,

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Bluebook (online)
403 S.W.3d 130, 2013 WL 3246383, 2013 Mo. App. LEXIS 813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiser-v-wideman-moctapp-2013.