Robinson v. Lohman

949 S.W.2d 907, 1997 Mo. App. LEXIS 1365, 1997 WL 413664
CourtMissouri Court of Appeals
DecidedJuly 21, 1997
DocketNo. 21281
StatusPublished
Cited by6 cases

This text of 949 S.W.2d 907 (Robinson v. Lohman) 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
Robinson v. Lohman, 949 S.W.2d 907, 1997 Mo. App. LEXIS 1365, 1997 WL 413664 (Mo. Ct. App. 1997).

Opinion

CROW, Presiding Judge.

This ease confirms that although eighteen years have passed since the Missouri court system was restructured, the misconception that there is an associate circuit court has stubbornly resisted extinction.

Pursuant to § 302.505,1 the Director of Revenue (“Director”) suspended the license of James Carol Robinson (“Robinson”) to operate a motor vehicle. Subsequent administrative review per § 302.530 resulted in “a determination adverse to [Robinson].”

Robinson thereupon commenced this action by filing a petition June 7, 1996, in the Circuit Court of Camden County, Associate Circuit Judge Division. Robinson’s petition sought trial de novo pursuant to § 302.535.2

The court clerk issued a summons to Director showing a “Court Date and Time” of “7/18/96 01:00 P.M.” The summons stated, inter alia: “If you fail to appear at the time and place stated in this summons, judgment by default may be taken against you for the relief demanded in the petition.”3

The record indicates that a copy of the summons, accompanied by a copy of Robinson’s petition, was delivered to Director by the United States Postal Service on June 26, 1996.

On July 15, 1996 (three days before the “Court Date” designated in the summons), counsel for Director filed an “Entry of Appearance and Answer” in the trial court. The answer admitted some averments of Robinson’s petition, but pled facts which, if true, supported the suspension of Robinson’s license.

On July 18, 1996, Robinson and his lawyer appeared in the trial court at the appointed time. No one appeared for Director.

The trial court asked Robinson’s lawyer whether he had been contacted by Director about a continuance. Robinson’s lawyer replied, “No, I have not, Your Honor.”

The trial court announced Director had filed no request for a continuance, and inasmuch as the burden of proof was on Director, the court found “all issues in favor of [Robinson] against [Director].” Later that day, the court entered a “Judgment and Order” commanding Director to rescind any suspension [909]*909of Robinson’s license and to immediately return the license to Robinson.

On August 19, 1996, Director filed in the trial court a “Motion to Set Aside Order for Lack of Jurisdiction.” We henceforth refer to the motion as the “post-judgment motion.” The post-judgment motion averred, inter alia:

“1. That [Robinson] filed his petition in the associate circuit court which is the improper court pursuant to § 302.535 RSMo which requires the petition for trial de novo be filed in the circuit court.
2. That this court lacked jurisdiction pursuant to statute to enter its order re quiring [Director] to reinstate [Robinson’s] driving privileges.”

The post-judgment motion prayed the trial court to set aside the judgment of July 18, 1996, for “lack of jurisdiction.”

The trial court denied the post-judgment motion on September 26,1996.

Director commenced this appeal by filing a notice of appeal on October 3,1996.

Before reaching the assignment of error in Director’s brief, we confront a motion by Robinson to dismiss the appeal on the ground that Director’s notice of appeal was untimely.

Robinson points out that Rule 81.04(a)4 provides that no appeal shall be effective unless the notice of appeal is filed not later that ten days after the judgment or order appealed from becomes final. According to Robinson, the judgment here became final thirty days after the trial court entered it. Robinson bases that conclusion on Rule 75.01, which provides that a trial court retains control over judgments during the thirty-day period after entry. Robinson asserts that inasmuch as the trial court left the judgment undisturbed during the thirty-day period, the judgment became final August 17, 1996.

Robinson reminds us that Director waited until October 3, 1996, to file the notice of appeal. That was more than six weeks after expiration of the thirty-day period specified in Rule 75.01. Consequently, proclaims Robinson, Director missed the ten-day deadline established by Rule 81.04(a).

Had Director not filed the post-judgment motion, Robinson’s premise that Director’s notice of appeal was untimely would be correct. However, Director’s post-judgment motion brought Rule 81.05(a) into play. It reads, in pertinent part:

“In the event a motion for a new trial is timely filed, the judgment becomes final at the expiration of ninety days after the filing of such motion or, if such motion is ruled on at an earlier date, then at the later of the date of disposition of said motion or thirty days after entry of judgment. Authorized after-trial motions shall be treated as, and as a part of, a new trial motion for the purpose of ascertaining the time within which an appeal must be taken, and all such after-trial motions shall be disposed of at the same time.”

Evidently aware of the above rule, Robinson insists that Director’s post-judgment motion was not an authorized after-trial motion within the meaning of Rule 81.05(a), hence it did not postpone finality of the judgment.5

In support of his position, Robinson cites cases where appellate courts have held various types of motions were not authorized after-trial motions. However, the motions in those cases differ from Director’s post-judgment motion to such an extent that those cases are not controlling.

Director cites Hoey v. Royston, 723 S.W.2d 929 (Mo.App. E.D.1987), for the proposition [910]*910that a motion to set aside a judgment constitutes a motion for new trial. In Hoey, the appellate court, after examining a motion to set aside an order, concluded (as did the trial court) that the motion should be considered a motion for new trial. Id. at 930[2]. Unfortunately, the opinion does not set forth the reason presented by the motion for setting the order aside, hence we cannot measure Director’s post-judgment motion against the motion in Hoey.

However, as noted earlier, Director’s post-judgment motion averred the trial court should set aside the judgment because the court lacked jurisdiction to enter it, as Robinson filed his petition in the wrong court. The purpose of a motion for new trial is to give the trial court the opportunity to correct error without the delay, expense and hardship of an appeal. Pruitt v. Commimity Tire Co., 678 S.W.2d 424, 429[2] (Mo.App. W.D.1984). Inasmuch as that was the purpose of Director’s post-judgment motion, we hold the motion should be considered a motion for a new trial.

It follows that Rule 81.05(a) postponed finality of the judgment until September 26, 1996, the date the trial court denied Director’s post-judgment motion. Consequently, Director’s notice of appeal was timely. Robinson’s motion to dismiss the appeal is denied.

Director’s sole point relied on reads:

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949 S.W.2d 907, 1997 Mo. App. LEXIS 1365, 1997 WL 413664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-lohman-moctapp-1997.