Brockhoff v. Leary

• Decision Date: 17 June 1986
• Docket Number: No. 67613,67613
• Citation: Brockhoff v. Leary, 711 S.W.2d 869 (Mo. 1986)
• Parties: Larry BROCKHOFF, Appellant, v. Charles LEARY and The City of Lee's Summit, Missouri, Respondents.
• Court: Missouri Supreme Court

Page 869

711 S.W.2d 869

Larry BROCKHOFF, Appellant, v.Charles LEARY and The City of Lee's Summit, Missouri, Respondents.

No. 67613.

Supreme Court of Missouri En Banc.

June 17, 1986.

Rehearing Denied July 15, 1986.

Irving Achtenberg, Kansas City, for appellant.

Reggie C. Giffin, Holly McCoy Zimmerman, George E. Leonard, Russell S. Jones, Jr. and Thomas J. Whittaker, Kansas City, for respondents.

WELLIVER, Judge.

This case involves a discrimination suit brought by appellant, Larry Brockhoff, against respondents, Police Chief Charles Leary and the City of Lee's Summit.Appellant sued on two counts, and the jury returned a verdict in favor of appellant and against the City on one count in the amount of $20,000, but the jury verdict was against appellant on the remaining count against the City and against appellant on both counts against Leary.The court of appeals dismissed the appeal, concluding that the notice of appeal was not timely filed.¹We granted transfer to decide whether the appeal was properly dismissed.

The procedural history of the case was aptly summarized by the court of appeals in the following outline of the chronology:

     Date                            Description
                --------------  -----------------------------------------------------
                April 9, 1984   The jury returned its verdict and the court entered
                                judgment thereon.  2
                April 20, 1984  The City filed a motion for judgment n.o.v. or, in
                                the alternative, for a new trial on plaintiff's
                                claim against the City on Count I
                April 23, 1984  Brockhoff filed a motion for new trial as against
                                the City on Count II and as against Leary on
                                both counts
                May 9, 1984     The court entered an order stating "(t)he court, on
                                its on initiative, does hereby order a new trial
                                on all issues, legal and equitable, on the ground
                                of inconsistency of the verdict."
                May 15, 1984    Leary filed a motion for reconsideration or
                                modification of the court's order of May 9
                May 17, 1984    City of Lee's Summit filed motion requesting that
                                the court reconsider or modify its May 9, 1984 order
                May 18, 1984    Brockhoff filed a motion for reconsideration of the
                                court's May 9 order.
                May 18, 1984    The court entered an order vacating its order of May
                                9 and further ordered that all post trial motions
                                were deemed reinstated.
                July 18, 1984   The court overruled all motions for new trial except
                                it granted the City's motion for new trial on
                                Count I.
                July 27, 1984   Brockhoff filed notice of appeal.
                

The court of appeals held that the May 9th order granting a new trial on all counts was a final and appealable judgment from which the parties had ten days to file a notice of appeal.³The appellate court further held that the trial court, while it retained jurisdiction over its judgment for 30 days, thereafter has no authority to reconsider its post-trial order granting or denying a new trial and that any subsequent action, therefore, is outside the authority of the trial court.

Respondents reply by arguing that we should treat the trial court's May 9th order as void, thereby reviving the post-trial motions and vesting the trial court with jurisdiction for 90 days or until it ruled on those pending motions.Rule 81.05(a).Respondents contend that the May 9th order is void because the court ruled on its own initiative on a ground not raised in the post-trial motions, without giving the parties a reasonable opportunity to be heard.They refer this Court to our opinions in Hoppe v. St. Louis Public Service Co., 361 Mo. 420, 235 S.W.2d 347(Mo. banc 1950) and Savings Trust Co. v. Skain, 345 Mo. 46, 131 S.W.2d 566(Mo. banc 1939), where we held that due process requires notice to the adversely affected party or parties before a trial court enters a post-trial order on its own initiative.Certain language in these and subsequent cases suggests that such an order entered without notice is void and a nullity.E.g., Hewitt v. Chicago, Burlington & Quincy Railroad Co., 426 S.W.2d, 27, 29(Mo.1968);Dixon v. Bi-State Development Agency, 636 S.W.2d 696, 698(Mo.App.1982).⁴

In Caldwell Paint Manufacturing Co. v. Lebeau, 591 S.W.2d 1(Mo.App.1979), for example, the trial court, during the period when it retains control over the judgment, vacated a default judgment without giving notice to the plaintiff.Shortly thereafter, the plaintiff filed a motion to vacate that order and reinstate the default judgment, which the trial court sustained 18 days following its order vacating the judgment.The defendants appealed from the last order.The court of appeals held that the order vacating the default judgment without notice was void and a nullity, and thus the appellate court treated the trial court as not having acted at all and the initial default judgment became a final judgment after 30 days, from which the parties had ten days to appeal.The appeal was dismissed and the initial default judgment prevailed.⁵But cf.Dayringer v. Mullen, 651 S.W.2d 500(Mo.App.1983).

Clearly, notice must be provided to the adversely affected party when the trial court acts on its own initiative within the 30 day period when it retains control over the judgment.Hoppe and its progenies, however, are relics from a prior procedural code that have little need under today's practice.When Hoppe was decided, both the statute and the predecessor to present Rule 75.01, did not require notice.§ 510.370, RSMo 1978;Rule 75.01(prior to 1981).The present Rule 75.01 was amended in 1981 to require that notice be given, and the failure to provide notice should now be treated as a violation of the rule.

While the parties, in effect, ask us to decide whether a violation of the notice requirement creates a void or voidable order, we do not believe the case turns on such a distinction.Had one or more of the parties chosen to file a notice of appeal within the ten day period following entry of the order, this would have been an issue.However, none of the parties chose to file a notice of appeal.Instead, each party filed a motion before the trial court requesting the trial court to reconsider or vacate its order of May 9th.In these motions, each party in addition thereto dealt with the issues raised in the party's first after trial motion.On May 18, the next to the last day for filing notice of appeal from the May 9th order, the trial court entered the following order:

After hearing in chambers with all attorneys of record, on Plaintiff's Motion for Reconsideration, ⁶the Court hereby VACATES its Order of May 9, 1984, ordering a new trial.

It is further Ordered that all post-trial motions are hereby deemed reinstated.

Our rules contemplate at least two instances where a trial court has jurisdiction to set aside his prior order after a judgment has become final.These are set forth in Rule 74.78, covering an analogous situation, and Rule 75.01, which provides, in part:

After the filing of notice of appeal and before the filing of the record on appeal in the appellate court, the trial court, after the expiration of such thirty-day period, may still vacate, amend or modify its judgment upon stipulation of the parties...