Distribution Transp. Services v. Salihovic

• Decision Date: 10 August 1999
• Citation: 2 S.W.3d 822
• Parties: (Mo.App. E.D. 1999) . Distribution Transportation Services, Inc., Plaintiff/Respondent, v. Sead Salihovic, Defendant/Appellant. Case Number: 75107 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

2 S.W.3d 822 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Distribution Transportation Services, Inc., Plaintiff/Respondent, v. Sead Salihovic, Defendant/Appellant.

Case Number: 75107

Missouri Court of Appeals Eastern District

Handdown Date: 08/10/99

Appeal From: Circuit Court of St. Charles County, Hon. Terry R. Cundiff

Counsel for Appellant: James O. Hacking, III

Counsel for Respondent: David H. Bailey, Jr.

Opinion Summary: Sead Salihovic appeals the decision of an associate judge of the circuit court which denied him the opportunity to vacate a default judgment against him and to apply for a trial de novo.

REVERSED AND REMANDED.

Division One holds: The associate judge of the circuit court properly denied the motion to vacate the default judgment for failure to comply with the requirements of Rule 74.05(d); however, the application for trial de novo was improperly denied as Salihovic met the statutory requirements.

Opinion Author: James A. Pudlowski, Presiding Judge

Opinion Vote: REVERSED AND REMANDED. Ahrens, J., and Crist, S.J., concur.

Opinion:

Sead Salihovic (Salihovic) appeals the decision of an associate judge of the circuit court which denied him the opportunity to vacate a default judgment against him and to apply for a trial de novo. We reverse and remand.

Salihovic, a native born Bosnian, moved to the United States in 1994. He works as a truck driver and has a limited command of English.

Transportation Services, Inc. (DTS) employed Salihovic in September 1996 as a driver. Salihovic continued to be employed by DTS until approximately November 1997. Following Salihovic's departure from DTS, DTS filed suit against him on 2 February 1998 in the associate circuit court of Saint Charles County for money lent to Salihovic and allegedly not repaid.

Salihovic was constructively served by delivery of a summons to his wife at their home. On 2 March 1998, Salihovic appeared in court. At that time, the court advised Salihovic to retain an attorney since Salihovic was unfamiliar with the United States law and procedure, and had limited English comprehension. The court continued the matter until 6 April 1998.

Taking the advice of the court, Salihovic visited the office of the attorney who helped him with his immigration matters and explained the instant litigation. He believed that this attorney would represent him in the instant matter. Accordingly, he left all of his paperwork and information regarding the case with her.

On 6 April 1998, this attorney faxed a request for a continuance to the court. The matter was reset until 4 May 1998. On 30 April 1998, DTS faxed a request for another continuance. The matter again was reset until 8 June 1998. The clerk of the court sent notice of this continuance to the counsel for Salihovic who had earlier faxed the motion for continuance, but had not formally entered her appearance on Salihovic's behalf.

On 8 June 1998, no attorney appeared on Salihovic's behalf nor did he personally appear. The associate judge issued a default judgment against Salihovic in the amount of $4,842.88 plus court costs and interest.

On 2 July 1998, a different attorney entered his appearance on the behalf of Salihovic. This attorney filed a motion to set aside the default judgment. Following arguments, the court denied Salihovic's motion to set aside the default judgment on 14 July 1998.

Salihovic appealed seeking a trial de novo on 24 July 1998. Salihovic also filed a motion to vacate the prior denial of the motion to set aside the default judgment. On 3 August 1998, the associate judge denied the motion to vacate and the application for trial de novo. Salihovic filed notice of appeal on 9 September 1998.

Salihovic raises three points on appeal. He contends that the associate circuit court judge erred in: (1) refusing to grant Salihovic's request for a trial de novo because the decision of a trial court denying a motion to set aside a default judgment constitutes an independent judgment and an appeal from an associate circuit court judgment in cases involving less than $5,000 may only be effectuated by applying for a trial de novo, and Salihovic had a constitutional right to a trial de novo; (2) denying Salihovic's motion to set aside the default judgment because he proffered a meritorious defense and good cause under Missouri Rule of Civil Procedure 74.05(d), and because the associate circuit court entered the default judgment despite the fact that Salihovic never received notice of the 8 June 1998 trial setting; and (3) failing to treat Salihovic's motion to vacate as an equitable proceeding to set aside the default judgment because the motion sought to invoke the equitable powers of the court, pursuant to Rule 74.06(b), to relieve Salihovic from a final judgment due to the mistake of the court and of DTS's counsel in failing to notify Salihovic of the trial setting, thus denying his due process...