Plaza Point Investments, Inc. v. Dunnaway

637 S.W.2d 303, 1982 Mo. App. LEXIS 3078
CourtMissouri Court of Appeals
DecidedJune 29, 1982
DocketNo. WD 32814
StatusPublished
Cited by11 cases

This text of 637 S.W.2d 303 (Plaza Point Investments, Inc. v. Dunnaway) 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
Plaza Point Investments, Inc. v. Dunnaway, 637 S.W.2d 303, 1982 Mo. App. LEXIS 3078 (Mo. Ct. App. 1982).

Opinion

WASSERSTROM, Judge.

Plaintiff lessor sued in Associate Circuit Court for an alleged breach of apartment lease by the defendant lessee. Judgment “by default” was entered against defendant. She moved in the Associate Circuit Court to set aside that default. From an overruling of that motion, she appeals to this court.

In January 1981, the case was at issue on pleadings filed by both parties, and the associate circuit judge before whom the case was then pending notified counsel that the case was set for trial on May 6, 1981. In February the case was transferred to a different division, and the judge of the new division rescheduled the case for trial on March 20, 1981. Although the court record states that the parties were notified on March 2 of the new setting, defendant contends that no notice of the reassignment or of the rescheduling was given to her or to her counsel.

When the case came up for hearing on March 20, no appearance was made for defendant, for which reason the case was continued to March 27. Plaintiff’s counsel says that he called the office of defense counsel to give notice of the March 27 setting, but defense counsel and his associates contend that no such notice was ever received by them. In any event, the case again came before the associate circuit judge on March 27 and no appearance was made for defendant. Judgment (described by the court record as “by default”1) was then entered against defendant on March 27, 1981, for $901.25. Apparently no notice was given to defendant or her counsel of that entry of judgment.

On April 7, one of the attorneys for defendant called plaintiff’s counsel to discuss what defendant’s counsel thought was still the trial setting for May 7,1981. Plaintiff’s attorney told defendant’s attorney that judgment had already been entered on March 27. Defense counsel say that was the first they knew of the judgment, and on April 20 defendant filed motion to set aside the judgment of March 27. Plaintiff resisted on the ground among others that more than 10 days had expired since judgment and the court no longer had jurisdiction because of the provisions of Section 517.-480-2.2 Associate Circuit Judge Iannone overruled defendant’s motion to set aside on May 28, 1981, for lack of jurisdiction.

On June 3, defendant filed application for trial de novo and submitted an appeal bond which was approved by the associate circuit judge. The court record contains a notation on that date: “TRIAL DE NOVO WITH BOND.” Two days later, on June 5, defendant also filed notice of appeal to this court from the order of May 28, 1981. Plaintiff moved to dismiss the case in the [305]*305circuit court, and that motion was sustained on July 8, 1981, on the ground that new trial was time-barred by reason of the requirement of Section 512.190-1.3 Thereupon plaintiff instituted execution upon the appeal bond and effected collection.

Defendant’s basic claim on this appeal is that the associate circuit court erred in denying its jurisdiction to set aside the “default judgment.” Her points as to this may be summarized as follows: (1) the procedure under which the judgment of March 27, 1981, was entered contained irregularities which warranted remedy under Rule 74.32; (2) the motion to set aside the judgment should have been entertained as a direct attack upon the judgment under what defendant claims was the equitable jurisdiction of the associate circuit court; (3) the lack of notice to defendant as a matter of constitutional principle deprived the associate circuit court of jurisdiction to enter judgment; (4) the associate circuit court had the power to set aside defaults; and (5) the associate circuit court had the power to set aside the judgment under Rule 74.78. For her sixth point on appeal, defendant contends that the circuit court should not have ordered the court administrator to pay over the proceeds of defendant’s appeal bond, and that this court should now order plaintiff to pay back those proceeds.

None of those six points can be reached on this appeal. We must sustain plaintiff’s objection that no jurisdiction by this court has been properly invoked.

The right of appeal is purely statutory. Dillen v. Remley, 327 S.W.2d 931 (Mo.App.1959); State ex rel. Blackwell v. Elrod, 604 S.W.2d 768 (Mo.App.1980). The only right of appeal direct to this court from an associate circuit court appears in Section 512.180-2 which provides as follows: “In any case tried with a jury before an associate circuit judge or on assignment under such procedures applicable before circuit judges a record shall be kept and any person aggrieved by a judgment rendered in any such case may have an appeal upon that record to the appropriate appellate court....” The circumstances of the present case do not comply with those requirements. Where those requirements are not met, no appeal will lie. State v. Fender, 600 S.W.2d 683 (Mo.App.1980).

Although Fender was a misdemeanor case, and was considered under the appeal provisions of Section 543.335, those provisions are substantially a counterpart in misdemeanor cases of the provisions of Section 512.180 which covers civil cases. As stated by one legal writer: “Without a doubt, the logic of the argument made by the court in the Fender case has equal force when applied to appeals and applications for trial de novo from civil cases tried before associate circuit judges.” Mo. Civil Actions, Vol. II, The Missouri Bar Sec. 24.27, page 24-16 (1981); Cohen, Civil Practice Before Associate Circuit Judges Since the Court Reform, 37 J.Mo.Bar 217, 221 (1981).

In order to support jurisdiction in this court over this appeal, defendant makes various arguments. She argues first: “The Order by which defendant was aggrieved in this litigation was the court’s Order refusing to set aside the default judgment, not the judgment itself. There being neither a judgment nor a trial, the trial de novo procedures simply do not apply. In those instances where the trial de novo methods are not available, appeals are taken directly to the Court of Appeals.”4 Defendant argues in essence that direct appeal [306]*306to the Court of Appeals is a residual procedure by which to remedy any grievance not covered by the trial de novo procedure.

That argument is in contradiction to the provisions of Section 512.180-2, which grants right of direct appeal only under the limited circumstances specified. Defendant nevertheless seeks authority for its position from Section 512.190-2 which provides that “Appeals to the court of appeals or to the supreme court shall be governed by the same rules applicable to appeals from judgments rendered by circuit judges.” The statutory provision just quoted was not intended to nor does it have the effect sought to be put on it by defendant. That section merely prescribes the procedure applicable to eases in which direct appeal to the Court of Appeals has been granted by Section 512.180-2. The only grant of such a right of appeal must be found, if at all, in Section 512.180-2.

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Bluebook (online)
637 S.W.2d 303, 1982 Mo. App. LEXIS 3078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plaza-point-investments-inc-v-dunnaway-moctapp-1982.