Bramer v. Abston

Decision Date29 June 2018
Docket NumberNo. SD 35074,SD 35074
Citation553 S.W.3d 872
Parties John BRAMER, Plaintiff-Respondent, v. Rani ABSTON, Defendant-Appellant.
CourtMissouri Court of Appeals

Appellant’s Attorney: John W. Shikles, of Columbia, Missouri.

Respondent’s Attorney: Tyce S. Smith, of Waynesville, Missouri.


Rani Abston ("Abston") appeals the judgment of the trial court, in which the trial court denied Abston’s "Motion to Set Aside or Vacate Default Judgment." In three points, Abston asserts the trial court erred in overruling her motion because it erroneously found the judgment was not void for being entered without due process, and that it abused its discretion in denying Abston’s motion to set aside the default judgment. Finding no merit to any of these points, we affirm the judgment of the trial court.

Facts and Procedural Background1

Abston entered into a "Residential Lease" with Bramer for the premises located at 15875 Springhill Drive, Rolla, Missouri ("the premises"). The term of the lease was from September 7, 2013 to September 7, 2014, and Abston was to pay Bramer rent in the amount of $1,400 per month for the premises.

On December 9, 2013, Bramer filed a petition for rent and possession in the Associate Division of the Circuit Court of Phelps County, Case No. 13PH-CV01874. Abston filed a counterclaim for monies she alleged were owed to her by Bramer. On December 27, 2013, after a hearing,2 the trial court entered judgment in favor of Bramer and against Abston in the amount of $492.

On February 10, 2014, Bramer filed a "Petition by Landlord for Unpaid Rent and Possession," with the Associate Division of the Circuit Court of Phelps County, Case No. 14PH-CV00227, seeking possession of the premises, and damages for unpaid rent and late fees from January 1, 2014 through February 4, 2014, in the amount of $2,965. A hearing was scheduled for March 3, 2014.

On February 28, 2014, an attorney entered an appearance on behalf of Abston, and requested a continuance of the March 3, 2014 hearing. The hearing was rescheduled for March 17, 2014.

On March 13, 2014, Abston filed a motion to pay rent into the court; a motion for leave to file answer, affirmative defenses and counterclaim; and a notice calling these motions up for hearing on March 17, 2014.

On March 17, 2014, a hearing was held on Abston’s motion to pay rent into court. Both parties appeared in person and by counsel. The trial court sustained Abston’s motion.

Abston was also granted leave to file an answer to Bramer’s petition, including affirmative defenses that: (1) Bramer breached the implied warranty of habitability of the property; (2) the petition failed to state a cause of action upon which relief may be granted, and (3) Bramer provided insufficient and improper notice of termination of Abston’s lease, pursuant to section 441.060.3

Abston also filed a counterclaim for breach of implied warranty of habitability for Bramer’s failure to address defects of the leased premises. Bramer thereafter filed a reply to Abston’s counterclaim. On April 9, 2014, Bramer filed a motion to strike Abston’s affirmative defenses and counterclaim relating to Count II.4 Thereafter, Abston filed a response to Bramer’s motion to strike.

Trial was held on April 17, 2014, with both parties appearing in person and by their attorneys. Evidence was heard and the case was taken under advisement. On May 23, 2014, judgment was entered in favor of Bramer in the total amount of $11,677.36, and Bramer was awarded possession of the premises.

On May 30, 2014, Abston filed an application for trial de novo and the matter was transferred to the Phelps County Circuit Court, Case No. 14PH-CV00227-01.

On January 20, 2015, Bramer filed a motion to amend his petition. The next day, Abston’s counsel filed a motion to withdraw as attorney.

A motion hearing was held on January 23, 2015, and the trial court sustained Abston’s counsel’s motion to withdraw. The trial court also sustained Bramer’s motion to amend his pleadings. Bramer then filed his "First Amended and Supplemental Petition." Trial was reset for March 6, 2015.

On February 2, 2015, a new attorney entered an appearance on behalf of Abston. On February 21, 2015, Abston filed a motion to strike those counts in Bramer’s first amended petition not tried in the Associate Circuit Court. Bramer filed a response to the motion to strike, and Abston filed suggestions in opposition to Bramer’s response.

Trial was held on March 6, 2015, with both parties and their attorneys present. Bramer testified, and before cross-examination of Bramer commenced, Abston’s counsel moved to strike and/or dismiss Bramer’s unlawful detainer counts for failure to file a verified petition. The trial court recessed the case and gave counsel an opportunity to submit briefing to the court. The parties submitted briefs and the trial court overruled Abston’s motion to strike.

On March 10, 2015, Bramer filed a motion for leave to file a second amended petition, and a memorandum of law in support of the motion. On March 16, 2015, Bramer filed a motion for leave to file a first amended answer and affirmative defense to Abston’s counterclaim.

On March 17, 2015, Abston filed a motion to reconsider her motion to strike, requested findings of fact and conclusions of law, and also filed suggestions in opposition to Bramer’s motion for leave to file second amended petition.

On March 19, 2015, a conference call was held between the parties and the trial court regarding Abston’s motion to reconsider and suggestions in opposition. There is nothing in the record as to the trial court’s ruling on these matters.

On May 12, 2015, the trial court granted Abston’s second attorney leave to withdraw.

On June 15, 2015, Bramer filed a verified second amended petition. Thereafter, the trial court set the conclusion of the trial de novo for September 2, 2015.

On September 1, 2015, Bramer filed three motions: (1) "Motion that [Abston] Not Having Answered [Bramer]’s Second Amended and Supplemental Petition that all Allegations Set Forth in [Bramer]’s Second Amended and Supplemental Petition be Deemed Admitted and [Abston] not be Allowed to Submit Contrary Evidence," (2) "Motion that Counterclaim and any Equitable Defense not be Considered in a Decision of this Court on the Unlawful Detainer Count," and (3) "Motion that [Bramer] be Allowed to Amend to State the New Amount of Damages as to Date."

On September 2, 2015, the conclusion of the trial de novo was held. Bramer appeared in person and with his attorney, and Abston appeared acting pro se. Prior to the beginning of trial, Abston was personally served with Bramer’s three motions. After hearing argument, the trial court sustained the motions. Bramer, upon request by the trial court, advised the trial court that total relief was to find Abston in default for failing to file an answer to the second amended petition, that all the allegations in the second amended petition be admitted, and that Abston be limited to contesting damages. The trial court granted that request for relief in Bramer’s case in chief. Abston did not request to file an answer and affirmative defenses out of time.

The trial court heard Bramer’s evidence as to damages, including designations from Abston’s deposition of her admissions against interest. When Abston was given the opportunity to present evidence, she declined.

On September 25, 2015,5 the trial court entered judgment against Abston. The trial court found that Bramer had "submitted all necessary evidence to make a submissible case on all necessary elements to receive the actions pleaded and the relief sought in counts I, II, and III of his Second Amended and Supplemental Petition[,]" and that "[a]ll issues are determined in favor of [Bramer] and against [Abston]."

On October 5, 2015, Abston filed a Notice of Appeal from the September 25, 2015 judgment.

On February 2, 2016, this Court dismissed Abston’s appeal for "fail[ure] to take further steps to secure appellate review within the period of time allowed and that good cause has not been shown why this appeal should not be dismissed."

On February 9, 2016, the trial court issued an order that due to the dismissal of Abston’s appeal, all monies held in the court’s registry were to be released to Bramer. This amount included monies held under the trial de novo , Case No. 14PH-CV00227-01, including the posted bond for the trial de novo on Case No. 14PH-CV00227; and the sum of $7,000 held by the clerk, pursuant to agreement of the parties in Case No. 14PH-CV00227. The total amount held in the court’s registry was $57,136.92; the total amount of judgment as of February 2, 2016, was $65,871.93, including interest. The trial court also issued a writ of execution ordering Abston to quit possession of the premises if Abston had not made restitution.

On March 1, 2016, (at Abston’s request, after she promised to "order the record as soon as the action is reinstated"), this Court recalled the mandate and reinstated Abston’s appeal. On March 8, 2016, this Court filed an order denying Bramer’s motions challenging this Court’s authority to recall mandate and to set aside the March 1, 2016 order. This Court also granted leave to the trial court to consider any applications to execute on the judgment or to set bond.

On April 26, 2016, this Court again dismissed Abston’s appeal for failure to secure appellate review and, on May 12, again issued mandate.6

On May 17, 2016, a Writ of Execution was issued by the trial court ordering Abston to quit possession of the premises. On May 27, 2016, the writ was executed.

On September 26, 2016, Abston filed in the trial court a "Motion to Set Aside or Vacate Default Judgment," of the September 25, 2015 judgment, pursuant to Rule 75.05(d) and Rule 75.01. Abston argued that the judgment should be set aside because: (1) the trial court lacked legal authority to enter the judgment in that Missouri law did not require Abston to file an answer to an amended...

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