Breckenridge Material Co. v. Enloe, ED 86488.
| Decision Date | 30 June 2006 |
| Docket Number | No. ED 86488.,ED 86488. |
| Citation | 194 S.W.3d 915 |
| Parties | BRECKENRIDGE MATERIAL COMPANY, Plaintiff/Respondent, v. Stanley ENLOE and Tammy Enloe, d/b/a Precision Concrete, Defendants/Appellants. |
| Court | Missouri Court of Appeals |
Daniel L. Goldberg, St. Charles, MO, for appellant.
Floyd Terral Norrick, Robert W. Bilbrey — co-counsel, Hillsboro, MO, for respondent.
Stanley and Tammy Enloe d/b/a Precision Concrete (Appellants) appeal from the trial court's order refusing to set aside an amended judgment in favor of Breckenridge Material Company. (Respondent).
On November 19, 2003, Respondent filed a petition against Appellants alleging that they had failed to pay for construction materials and services that Respondent had provided to them. On January 15, 2004, Appellants, through their attorney, E. Darrell Davis (Davis), filed an answer to the petition. On September 15, 2004, Respondent filed a request for trial. On October 8, 2004, Davis filed a motion to withdraw from the case. In a letter dated October 19, 2004, Davis informed Appellants that the trial court had granted his motion to withdraw from their case on October 15, 2004, and also wrote:
There are no court dates scheduled, no discovery is outstanding and no Motions have been filed which need to be heard. There is a request by Breckenridge for a trial setting, which I anticipate the court will grant and set the matter for trial sometime in November, December or January. You should immediately notify the court of your current addresses in order that you will be notified of any trial setting or other matter.
On October 22, 2004, the trial court ordered the matter set for a bench trial on January 13, 2005. The record indicates that notice of the trial setting was sent to James Mattingly (Mattingly), Respondent's attorney, but not to Appellants. On January 13, 2005, the court held a bench trial. Respondent appeared; Appellants did not. On January 14, 2005, the trial court entered a "Default Judgment"1 in favor of Respondent and against Appellants on the petition's breach of contract claim, awarding Respondent $82,498.11.2 The record indicates that notice of the judgment was sent to Respondent, but again, not to Appellants. The judgment incorrectly denominated the trial court as the Twentieth Judicial Circuit and the county as Franklin County. On January 20, 2005, the trial court amended the judgment to correctly list the county, St. Charles County, but left the circuit incorrectly denoted as the Twentieth rather than the Eleventh Judicial Circuit.
On May 13, 2005, a garnishment was issued to the sheriff of St. Charles County enabling Respondent to collect on its judgment. On May 18, 2005, Floyd Norrick (Norrick), counsel for Respondent, sent a letter to Stanley Enloe notifying him of the sheriff's sale to satisfy the judgment. The letter was addressed to Stanley d/b/a Precision Concrete at three different addresses, two in O'Fallon and one in Wentzville.
On May 24, 2005, Appellants filed a motion to set aside the judgment by default and to quash execution of the garnishment, pursuant to Rules 74.03 and 74.06(b). In affidavits attached to the motion, Appellants state that they received no notice of the trial setting or judgment entered thereon. On June 8, 2005, Respondent filed a memorandum of law in opposition to Appellants' motion to set aside the judgment. On June 10, 2005, the trial court heard the motion and took it under advisement. On June 20, 2005, the trial court denied the motion. Appellants' property was then sold at a public auction. This appeal follows.
Appellants present three points on appeal. In their first point, they claim that the trial court erred by not setting aside the amended judgment and quashing the garnishment on their property because they did not receive notice of the trial setting, thereby violating their rights of due process. In their second point, Appellants argue that the trial court erred by not setting aside the amended judgment and quashing the garnishment on their property because they did not receive notice of the entry of the judgment, thereby causing prejudice to them. In their third point, Appellants allege that the trial court erred by not quashing the execution on their property because the amended judgment is not a final judgment.
The trial court is vested with broad discretion when acting on a motion to set aside a judgment. Burris v. Terminal Railroad Ass'n, 835 S.W.2d 535, 537-38 (Mo.App. E.D. 1992). The appellate court should not interfere unless the record convincingly demonstrates an abuse of discretion. Id. at 538.
Since Appellants' third point involves finality of the judgment, we address it first. Appellants allege that the trial court erred by not quashing the execution on their property because the amended judgment is not a final judgment. They contend that since Respondent's counsel left a memorandum with the court that stated the disposition of Counts I and II, but made no mention of Counts III and IV, the court's judgment that purported to dispose of all counts was not a final judgment.
A prerequisite to appellate review is that there be a final judgment. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo.banc 1997). An appealable judgment resolves all issues in a case, leaving nothing for future determination. Id. Although a trial court may designate its judgment final as to particular claims, this designation is effective only when the order disposes of a distinct "judicial unit," which has a settled meaning: "the final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or occurrence which does not dispose of the claim." Id.
In the instant case, Appellants argue that the handwritten memorandum that Respondent's attorney prepared and the trial court signed was not a final judgment because it made no reference to two of the counts. However, the handwritten memorandum, which was dated January 13, 2005, stated, "Leave of seven days is granted to file a formal judgment." The formal judgment filed January 18, 2005 found in favor of Respondent for $82,498.11 on Count I and stated that "the remaining counts are dismissed." The judgment was later amended on January 20, 2005 to correct the county name. Both the January 18, 2005 judgment and the January 20, 2005 amended judgment found in favor of Respondent on Count I and dismissed the remaining counts.
The trial court's judgment was a final appealable order, and as such, Point III is denied.
Appellants' first and second points regarding lack of notice of the trial setting and of the judgment may be combined for discussion.
There is no evidence in the record that Respondent made any attempt to notice Appellants with its request for trial setting. Furthermore, there is no evidence in the record that any attempt was made by the trial court to serve Appellants with notice of the order of trial setting or judgment, in accordance with Rule 74.03. The trial court had a duty to send Appellants notice of the trial setting once ordered by the trial court, as well as notice of the judgment, to their last known address.
Immediately upon the entry of an order or judgment, the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 43.01 upon each party who is not in default for failure to appear and who was not present in court in person or by attorney at the time of the entry of such order or judgment. . . .
Rule 74.03. (Emphasis added.)
Rule 43.01 provides, "Each affected party shall be served with: (1) Every pleading subsequent to the original petition; (2) Every written motion, other than one that may be heard ex parte; and (3) Every written notice, appearance, demand, offer of judgment, order, and similar paper that by statute, court rule or order is required to be served." Service is shown by Rule 43.01.
The only time service of notice is not required is when a party is in default: "No service need be made on parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons." Id. In the instant case, Appellants were not in default, as they filed an answer and other responsive pleadings to the petition. Rule 74.05(a), Wilson v. Wilson, 925 S.W.2d 218, 219 (Mo.App. E.D. 1996). Therefore, they were entitled to notice of the trial setting and the entered judgment. Rule 74.03.
There is no showing of service in the record before us. There is nothing in the record to indicate that any notice was sent to any of Appellants' three addresses contained in the court file. Unless the record establishes that the complaining party was provided notice of a trial setting, we may conclude the complaining party did not receive notice. Irving v. Brannock, 756 S.W.2d 585, 587 (Mo.App. W.D. 1988).
Respondent maintains that Appellants were negligent in not providing the trial court with an updated address. Whether or not Appellants were negligent in not providing the trial court with their most current address is irrelevant to the fact that no attempt was made to send notice to Appellants at all, when there were three addresses for them in the record. No attempt was made to send notice to Appellants' last known address, or to the addresses listed on Appellants' former attorney's letter.3
A judgment entered without notice to an adversely affected party who has filed...
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