Phillips v. Hasty

775 S.W.2d 191, 1989 Mo. App. LEXIS 851, 1989 WL 62843
CourtMissouri Court of Appeals
DecidedJune 13, 1989
DocketNo. 55131
StatusPublished
Cited by2 cases

This text of 775 S.W.2d 191 (Phillips v. Hasty) 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
Phillips v. Hasty, 775 S.W.2d 191, 1989 Mo. App. LEXIS 851, 1989 WL 62843 (Mo. Ct. App. 1989).

Opinion

STEPHAN, Judge.

This is an action for an attachment on real estate which arose out of business dealings between respondents, Guy A. and Jacqueline J. Phillips, and Kevin Hasty, defendant in the underlying action. Hasty sold the property to his parents who thereafter intervened in the action and are appellants herein. The trial court determined that it had jurisdiction over the property and subsequently imposed an attachment lien. We affirm.

On April 10, 1985 respondents filed a verified petition for writ of attachment alleging that Hasty made false assurances, representations and promises to respondents to induce them to invest $30,000 with Mileote & Associates, a sham company controlled by defendant. The petition requested that the court issue two writs of attachment: one on Hasty’s real property and the other on a bank account he maintained with the Missouri Savings Association. The petition was filed in accordance with § 521.010(14), RSMo 1978:

In any court having competent jurisdiction, the plaintiff in any civil action may have an attachment against the property of the defendant ... in any one or more of the following cases:
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(14) where the debt sued for was fraudulently contracted on the part of the debtor.

The trial court determined that the facts alleged in the petition were in accordance with Rule 85.04, that respondents had presented an attachment bond in the amount of $60,000 and that it was properly executed in accordance with Rule 85.08. The court, therefore, ordered that two writs of attachment issue immediately. The sheriff was ordered to execute the writ by attaching Hasty’s real property which had the following description:

Lot 304 of Riverwood Trails Plat 3, as per plat thereof recorded in Plat Book 207 Pages 29 and 30 of the St. Louis County Records, also known and numbered as: 1034 Pine Cone Trail Drive. Subject to building lines, easements, conditions, restrictions of record.

On April 11,1985 the sheriff of St. Louis County attached, levied upon and seized all right, title and interest in the property by filing an abstract of the attachment with the St. Louis County Recorder of Deeds. The writ and Attachment I (a description of the real property) were both affixed to the abstract filed with the Recorder of Deeds.

The sheriff filed the return of service on the writ non est because he could not obtain personal service on Hasty. On May 14, 1985 Hasty was served, through his attorney, with an alias summons and the writ by a special process server. The return of the special process server was not, however, verified under oath.

[193]*193On April 22, 1985 appellants purchased the property. The sale was consummated one day prior to Community Federal Savings & Loan Association’s foreclosure sale, and eleven days after the sheriff filed the abstract with the Recorder of Deeds.

Hasty filed an affidavit with the court on May 15, 1985, stating that he had received the writ of attachment, verified petition for writ of attachment, alias summons, notice and Attachment I. On June 27, 1985 he requested additional time to answer. Hasty entered his general appearance, by and through his attorney, Donald Janou-sek, on July 8, 1985, by filing an answer to the verified petition. He did not raise any jurisdictional defenses such as lack of in personam jurisdiction, insufficiency of process or insufficiency of service of process.1 On July 9, 1985 Hasty filed a motion to dissolve the attachment. The motion also failed to raise jurisdictional issues. Moreover, it was never argued and ruled on.

Appellants filed a motion for leave to intervene on May 26, 1986, which was granted on July 21, 1986. In the meantime, appellants filed a suit to dissolve the attachment and quiet title. A hearing was held September 2, 1986 before the Hon. Harry J. Stussie to determine if the attachment should be dissolved.

Judge Stussie entered his Findings of Fact and Order, Judgment and Decree on October 16, 1986. He found that the sheriffs return on the writ was not in compliance with § 521.170(3), RSMo, in that it failed to describe the real property, and that because the writ was never extended it had expired. He decreed that the court lacked jurisdiction over the res and the writ of attachment was void and of no effect.

Respondents filed a motion for new trial and/or motion to amend the October 16, 1986 order along with a motion for leave to file an amended sheriff’s return and a memorandum in support thereof. On December 3, 1986 the court granted respondents’ motion to amend the order, finding that it had acquired jurisdiction on April 11, 1985 and that Hasty, by filing a general answer, had waived any objections he may have had to insufficiency of process, service of process or jurisdiction. The court ruled that any right, title or interest appellants claimed in the property was subordinate and inferior to the attachment lien.

Respondents received $7,780 in restitution from the prosecutor’s office on December 31, 1986. On October 21, 1987 respondents, along with several other parties who had previously instituted suit against Hasty, entered into a Consent Memorandum for Judgment wherein Hasty agreed to pay respondents $7,269.11. Respondents retained in full force and effect their pending attachment action.

The matter of respondents’ verified petition came to trial on June 20, 1988 before the Hon. Richard F. Provaznik. At that time respondents settled with Hasty who signed a consent judgment. The court decreed that an attachment lien had been in effect since April 11, 1985 and entered judgment in favor of respondents in the amount of $12,236.58, consisting of $7,167.89 principal, $5,068.69 interest and $1.00 punitive damages. Costs were taxed against Hasty, including the cost of bond premiums totalling $2,460. This appeal was thereafter timely filed.

Appellants raise two substantive points on appeal.2 In their first point they claim that Judge Stussie erred in amending his order of October 16, 1986 and entering a new order on December 3,1986 because: 1) the general appearance by a defendant in an attachment action does not cure any statutory or procedural defects in the execution of the writ of attachment; 2) purely in rem proceedings in writ of attachment actions were basically abolished in 1979 by the repeal of various statutory provisions [194]*194of § 521.010 et seq., RSMo; and 3) the effect of the judge’s ruling stating that the general entry of appearance by a defendant bars defenses by intervenors having an interest in the real property attached constitutes a denial of due process and equal protection to the intervenors.

Relying principally on Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), appellants assert that absent a preseizure hearing, an attachment will be void ab initio. State ex rel. Williams v. Berrey, 492 S.W.2d 731, 735 (Mo.1973). They further argue that Mitchell v. W.T. Grant Company,

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Bluebook (online)
775 S.W.2d 191, 1989 Mo. App. LEXIS 851, 1989 WL 62843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-hasty-moctapp-1989.