Defford v. Zurheide-Hermann, Inc.

• Citation: 536 S.W.2d 804
• Decision Date: 16 March 1976
• Docket Number: No. 36881,INC,ZURHEIDE-HERMAN,36881
• Parties: John DEFFORD, Appellant, v., Respondent. . Louis District, Division Three
• Court: Court of Appeal of Missouri (US)

Page 804

536 S.W.2d 804

John DEFFORD, Appellant, v. ZURHEIDE-HERMANN, INC., Respondent.

No. 36881.

Missouri Court of Appeals, St. Louis District, Division Three.

March 16, 1976.

Motion for Rehearing or Transfer Denied April 13, 1976.

Application to Transfer Denied June 14, 1976.

Roger M. Hibbits, Florissant, for appellant.

Thomas, Busse, Goodwin, Cullen, Clooney & Ottsen, Donald H. Clooney, St. Louis, for respondent.

GUNN, Judge.

Plaintiff-appellant John Defford appeals from a judgment of the trial court sustaining a motion to dismiss Defford's five count petition requesting that a default judgment be set aside and for other relief. We affirm the trial court's action.

In the tedious journey to the denouement of this case, we must briefly indite the past involutions of this terribly jaded litigation which lead to its present status. The germ root of this litigation was planted long ago--August 11, 1967--when Zurheide-Hermann, Inc. (defendant-respondent here) filed suit for breach of contract against Defford and three corporations. ¹ Answers and a reply were filed on behalf of Defford and the other defendants. Many days and legal maneuverings passed, including the withdrawal of Defford's attorneys on June 9, 1969. On July 19, 1969 Zurheide-Hermann filed interrogatories to be answered by Defford with copies of the interrogatories served on Defford by registered mail. On August 27, 1969 Zurheide-Hermann filed a motion to compel Defford to answer the interrogatories with notice that the motion to compel answers was set for hearing on September 5, 1969. At the September 5 hearing, for which Defford did not appear, the trial court sustained the motion to compel answers and set September 20, 1969 as the date by which Defford was to answer the interrogatories with failure to do so to result in the striking of Defford's pleadings. Defford was notified of the trial court's action, and still nothing was forthcoming from him or any of the corporate defendants. On September 29, 1969 default and inquiry was granted to Zurheide-Hermann, and Defford's and the other defendant's pleadings were thrown out. On October 21, 1969 Zurheide-Hermann's motion for default judgment was heard and granted with judgment entered against Defford and the other defendants for $31,350.57. ²

On September 28, 1972, nearly three years after the entry of the default judgment, Defford and the corporate defendants filed a joint motion to set aside the judgment. The allegation was made that the default judgment was defective for irregularities patent on the face of the record. Defford's argument was that he was never in default; that the interrogatories and motion to compel answers were improperly mailed; and that inadequate notice was given of the hearing to compel answers or strike defendant's pleadings. ³ The trial court overruled Defford's motion to set aside the default judgment, and the trial court's ruling in that regard was appealed to the Missouri Supreme Court. On December 14, 1973, the Supreme Court in ZURHEIDE-HERMANN, INC. V. LONDON SQUARE DEVELOPMENT CORP., 504 S.W.2D 161 (MO.1973)⁴, found that the default judgment was not defective and affirmed the trial court's order overruling Defford's motion to set aside the judgment. Specifically, the Supreme Court found that the written interrogatories, motions to compel answers and notices of hearing on the motion to strike pleadings were properly served. It was held that Defford was afforded adequate notice and opportunity to be heard. All of the foregoing brings us to the controversy confronting this court.

Having failed before the Supreme Court to have the default judgment set aside for errors patent on the pleadings, Defford, on August 9, 1974, as plaintiff to this case, filed a five count petition seeking: 1) to set aside the default judgment of October 21, 1969, by writ of coram nobis on the ground that Zurheide-Hermann had committed fraud in failing to carry out a settlement agreement; 2) that the judgment be set aside for fraud; 3) that judgment be entered in Defford's favor on the alleged settlement; 4) that damages be awarded Defford by reason of Zurheide-Hermann's malicious prosecution of the default judgment; 5) that garnishment and execution by Zurheide-Hermann on the default judgment be quashed. The basic thrust of Defford's new suit is whether Zurheide-Hermann obtained the default judgment against Defford by fraud. Going to the heart of Defford's current action, which is the five count petition against Zurheide-Hermann, ⁵ is Defford's allegation that before the default was entered, the case had been settled as to him. According to Defford it was agreed that Zurheide-Hermann would dismiss the action against Defford and Project Development Leasing, Inc. and take a consent judgment against the other defendants. Supposedly, the settlement agreement that the action against Defford would be dropped took place while Defford was represented by counsel (prior to June 9, 1969, the date when Defford's attorney withdrew). Thus, according to Defford, all the actions of Zurheide-Hermann in serving interrogatories, motions, notices and the taking of the default judgment during the months of August, September and October were contrary to an alleged agreement made sometime prior to June, 1969. Accordingly, Defford alleges the default was obtained by deceit and fraud.

Zurheide-Hermann as defendant in this action filed a motion to dismiss Defford's petition, or in the alternative, to make it more definite. The trial court sustained Zurheide-Hermann's motion to dismiss, and Defford's motion to set aside the motion, or, in the alternative, motion for new trial was overruled.

Defford initially asserts that after the trial court had dismissed his petition, opportunity should have been given to him to amend his petition and present evidence to counter Zurheide-Hermann's allegations in its motion to dismiss. Defford also complains that the trial court failed to make written findings of fact or conclusions of law in support of its rulings. We forebear any discussion as to these assertions, for we find that the trial court was correct in dismissing Defford's petition. For the reasons which follow, Defford failed to state a cause of action, and no further evidence or amendment of petition would enable him to do so.

The first issue, which we consider as raised by Defford is that the default judgment of October 21, 1969, should have been set aside in equity on the ground of fraud in the procurement. Defford contends that prior to the entry of the default judgment that a settlement had been reached between Zurheide-Hermann and him; that in view of the settlement, the default judgment was fraudulently obtained. We find that Defford's action in this regard is barred by the doctrine of res judicata and by Defford's own inaction.

At the outset of this proceeding, Zurheide-Hermann filed a motion to dismiss Defford's petition, asserting as one of its grounds that the doctrine of res judicata proscribed Defford's action. In support of the motion to dismiss, Zurheide-Hermann submitted an affidavit as to the facts and circumstances of the previous litigation involving Zurheide-Hermann's default judgment against Defford with a copy of the Supreme Court's opinion in Zurheide-Hermann, Inc. v. London Square Development Corp., supra (the default judgment appeal based on errors patent) and a copy of the transcript of proceedings in that case. The issue of res judicata was thus properly raised by Zurheide-Hermann in this case, although Defford contends that res judicata may not be raised in a motion to dismiss. As stated in State ex rel. United States Fidelity & Guaranty Co. v. Walsh, No. 36,050 (Mo.App.St.L.Dist. Dec. 23, 1975):

'(R)es judicata may be raised by a 'speaking motion to dismiss' even though it is an affirmative defense under Rule 55.27 if it will dispose of an action groundless on the merits (cites omitted).'

A 'speaking motion to dismiss' for failure to state a claim upon which relief can be granted, by referring to material not in the pleadings, such as a prior judgment, becomes in effect a motion for summary judgment. State ex rel. United States Fidelity & Guaranty Co. v. Walsh, supra; Rule 55.27(a). The facts and circumstances contained in the Supreme Court's decision in Zurheide-Hermann, Inc. v. London Square Development Corp., Inc., and the accompanying affidavit and transcript of proceedings in the default judgment case establish that there is no genuine issue in this case as to any material fact. Therefore, Zurheide-Hermann is entitled to summary judgment as a matter of law. Kuhlman Plastics Co. v. Kansas City Power & Light Co., 400 S.W.2d 409 (Mo.1966). As shall be discussed hereinafter, the Supreme Court opinion in the default judgment case (Zurheide-Hermann, Inc. v. London Square Development Corp., supra) and the accompanying transcript show irrefutably that this action is interdicted by the doctrine of res judicata. It would therefore be unavailing to allow Defford additional time to submit evidence in opposition to Zurheide-Hermann's motion to dismiss or to allow him to amend his pleadings, and the trial court did not err in refusing to do so.

Defford contends that the doctrine of res judicata cannot apply because the parties to the default judgment proceeding and this case are not identical. Defford points to the initial suit where Zurheide-Hermann sued Defford and certain other corporations as parties defendant while in this suit Defford has sued Zurheide-Hermann, Inc. and three individual agents of Zurheide-Hermann, Inc. who were not parties to the original action. Defford's position in this regard is untenable. It is true that parties to the former and subsequent actions must be the same. Plaza Express Co. v. Galloway, 365 Mo. 166, 280 S.W.2d 17 (banc 1955); Woodford v. Ill. Central Gulf RR Co., 518 S.W.2d 712 (Mo.App.1974). But that tenet is sufficiently met in this case. The...