Allison v. Tyson

• Decision Date: 14 October 2003
• Docket Number: No. WD 62195.,No. WD 62098.,WD 62098.,WD 62195.
• Citation: 123 S.W.3d 196
• Parties: Joe ALLISON, Respondent, v. Gene TYSON and B and N Construction, Defendants, Sarai Construction, Inc., Appellant.
• Court: Missouri Court of Appeals

123 S.W.3d 196

Joe ALLISON, Respondent, v.Gene TYSON and B and N Construction, DefendantsSarai Construction, Inc., Appellant.

No. WD 62098.

No. WD 62195.

Missouri Court of Appeals, Western District.

October 14, 2003.

Motion for Transfer to Supreme Court Denied November 25, 2003.

Application for Transfer Denied January 27, 2004.

Leonard Wagner, Kansas City, for Appellant.

David Kraft, Kansas City, for Respondent.

Phillip Anthony Brooks, Kansas City for Defendant.

Gene Tyson, pro se.

PAUL M. SPINDEN, Presiding Judge.

This appeal involves a garnishment proceeding and the consequences flowing from a garnishor's failure to timely file his exceptions to a garnishee's interrogatory answers.We hold that the failure to timely file exceptions deprives the circuit court of jurisdiction to proceed further and terminates the garnishment action.We, therefore, reverse the judgments and remand this case for dismissal by the circuit court.

On November 1, 1996, Joe Allison obtained a monetary judgment against Gene Tyson from a Texas state court.On June 8, 2000, Allison registered the foreign judgment in the circuit court for Jackson County.He also sought to execute the judgment through a garnishment action directed to Sarai Construction, Inc.

Sarai Construction had a contract with Kansas City's Board of Parks and Recreation Commissioners, which had subcontracted with B and N Construction, a firm that had financial ties to Gene Tyson.¹After learning of the contract, Allison obtained a writ of garnishment notifying Sarai Construction that anything of value owed to Tyson and in its possession, charge, or control from the date of service until the return date of December 31, 2001, was attached and subject to garnishment.

Authorities served the summons and writ of garnishment and the required interrogatories to Sarai Construction on October 18, 2001.Sarai Construction's registered agent served the corporation's verified answers by mail on November 8, 2001, and denied that it held or owed anything belonging to Tyson from the date of service through the return date.

Allison filed his exceptions to the interrogatory answers 18 days after Sarai Construction's mailing, on November 26, 2001.He asserted that Tyson was doing business as B and N Construction and that any money that Sarai Construction owed to B and N Construction was subject to the writ of garnishment.Sarai Construction did not respond to the exceptions.

The circuit court convened an evidentiary hearing on the exceptions.Sarai Construction asked the court to dismiss Allison's action because he had not filed his exceptions to the interrogatory answers on time.The circuit court agreed.It ruled that, because Allison received the mailed interrogatory answers on November 13, 2001, the deadline for his exceptions was November 23, 2001.Because Allison filed them on November 26, the circuit court ruled that it did not have jurisdiction, and it entered judgment for Sarai Construction.

In a motion to reconsider, Allison argued to the circuit court that its clerk's office was closed for Thanksgiving through November 25 and, under Rule 44.01(a), those dates were not to be counted in calculating the deadline.The circuit court agreed and set aside its judgment.

The circuit court reconvened a hearing on Allison's exceptions on July 19, 2002, and entered judgment finding that Tyson owned B and N Construction and that Sarai Construction paid $47,902.82 to B and N Construction after it was served with the summons and writ of garnishment and before the return date.On October 16, 2002, the circuit court ordered Sarai Construction to pay $47,902.82 to the circuit court within 20 days.Sarai Construction appealed.

On November 19, 2002, after 20 days had elapsed without payment, the circuit court entered judgment against Sarai Construction and in favor of Allison for $47,902.82 plus post-judgment interest.Sarai Construction filed a second appeal.Because both appeals arise from the same set of facts, we consolidated the cases.

In its first point, Sarai Construction argues that the circuit court erred by entering judgment for Allison because Allison's not filing his exceptions on time deprived the circuit court of jurisdiction to proceed.We agree.

A garnishment action is a creature of statute in derogation of the common law.State ex rel. Eagle Bank and Trust Company by Roderman v. Corcoran,659 S.W.2d 775, 777(Mo. banc 1983).Strict compliance with the statutes and rules governing such actions is, therefore, essential to confer and to support jurisdiction.Id.;Beatty v. Conner,923 S.W.2d 455, 460(Mo.App.1996);Board of Regents of Southwest Missouri State University v. Harriman,792 S.W.2d 388, 394(Mo.App.1990);Landmark Bank of Ladue v. General Grocer Company,680 S.W.2d 949, 953(Mo.App.1984).A garnishor's failure to proceed as required by statute and rule constitutes abandonment or discontinuance of a garnishment proceeding, and the circuit court loses its jurisdiction to proceed.Corcoran,659 S.W.2d at 777;State ex rel. Bagnell Investment Company, Inc., v. Luten,647 S.W.2d 539, 541(Mo. banc 1983).

Rule 90.07(c) gives a garnishor only 10 days after service of the garnishee's answers to file exceptions:

The garnishor, within ten days after service of the garnishee's answers to interrogatories, shall file any exceptions to the interrogatory answers asserting any objections to the answers and asserting all grounds upon which recovery is sought against the garnishee.The garnishee's answers to interrogatories are conclusively binding against the garnishor if the garnishor does not timely file exceptions to the interrogatory answers.

Sarai Construction served Allison with its answers to interrogatories by mail on November 8, 2001.That Allison did not receive them until November 13, 2001, is of no significance because in a garnishment action we deem service complete on mailing pursuant to Rule 90.03(b) that says, "All pleadings and papers subsequent to service of the summons and writ of garnishment shall be served as provided in Rule 43.01"Rule 43.01(c)(2) allows for service by mail and says that service is "complete upon mailing."The circuit court, therefore, erred in using the date on which Allison received the answers to calculate the period within which the exceptions were due.

Because service was by mail, Allison's deadline for filing the exceptions was 13 days.Rule 44.01(e).November 21 was the 13th day after November 8.Allison did not file his exceptions with the circuit clerk until November 26, 2001.That Allison may have placed them in the mail within the allotted time is not enough.Rule 90.07(c) specifically requires that the exceptions be "filed."Service, or mailing, is not the same as filing.State ex rel. Schnuck Markets, Inc. v. Koehr,859 S.W.2d 696, 698(Mo. banc 1993).

Because Allison did not file his exceptions to interrogatory answers within the allotted time, the circuit court was obligated to accept Sarai Construction's answers denying that it held or owed anything belonging to Tyson from the date of service through the return date.Rule 90.07(c);Section 525.210, RSMo 2000;Luten,647 S.W.2d at 541.Moreover, the circuit court erred in proceeding to a hearing and in entering judgment for Allison.Allison, in effect, had abandoned his garnishment proceeding.The circuit court lost jurisdiction to proceed when Allison did not file his exceptions to the interrogatory answers on time.Luten,647 S.W.2d at 541;Propes v. Rhodes,706 S.W.2d 914, 915-16(Mo.App.1986).

Allison recognizes the holdings of Luten and Propes, but he endeavors to distinguish them.He argues that the courts' rulings in those cases resulted from, in Luten, the garnishor's waiting two months to file exceptions and, in Propes, the garnishor's waiting two years.Although these delays were longer than Allison's, the holdings of Luten and Propes did not depend on the length of the delays.Exceptions must be filed within the allotted period and jurisdiction terminates when they are not, no matter how long the delay.Luten,647 S.W.2d at 541;Propes,706 S.W.2d at 915-16.

Allison also argues that Sarai Construction did not follow the rules in answering the interrogatories, and that its decision to answer sooner than it was supposed to and in an untruthful manner should not shorten the proceeding.We reject any contention that untruthfully answered interrogatories, although certainly not commendable, relieves the garnishor from filing exceptions on time.This is not an action in equity, as Allison seems to contend, but a creature of statute in which the circuit court was obligated to construe the statutory provisions strictly.Indeed, by allowing for exceptions, the law implicitly recognizes that a garnishee might not answer the interrogatories accurately.

We also reject Allison's argument that Sarai Construction's noncompliance with the garnishment rules somehow alleviated his obligation to file his exceptions on time.Rule 90.07(b) says, "The garnishee shall file and serve verified answers to the interrogatories within ten days after the return date of the writ."Although Sarai Construction did not strictly comply with the rule, the law is more forgiving of a garnishee's failure to comply than it is of a garnishor's.A garnishee is a third party who has been drawn into a dispute not his own; i.e.,he has been drawn into the garnishor's attempts to execute a judgment rendered against his judgment debtor.

In Luten, both the garnishee and garnishor failed to comply with the garnishment rules.The garnishee filed her answers to interrogatories late, and the garnishor filed his exceptions late.Although the rules imposed time constraints in terms of answering and excepting as do the current rules, the Luten court overlooked the garnishee's failings but deemed the garnishor's failings to be fatal to the action.647 S.W.2d at 541.The Luten court...