Dixon v. Thompson, No. 27529 (Mo. App. 7/11/2007)
| Decision Date | 11 July 2007 |
| Docket Number | No. 27529,27529 |
| Parties | Terry W. Dixon and Cynthia Crossland, Plaintiffs/Respondents v. Thomas D. Thompson, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Barry County, Hon. Carr L. Woods.
Craig F. Lowther and C. Matthew Towns, Counsel for Appellant.
David A. Cole and J. Michael Riehn, Counsel for Respondent.
Before Rahmeyer, P.J., and Scott, J.
On March 20, 2007, this court issued an opinion in this case. On May 31, 2007, by order of the Supreme Court of Missouri, this case was transferred to that court. On July 3, 2007, the Supreme Court entered an order retransferring the case to this court. The original opinion of this court, which follows, is now readopted and reissued.
Thomas D. Thompson (defendant) seeks to appeal a judgment quieting title to certain real estate that was the subject of a tax sale in Barry County at which Terry W. Dixon and Cynthia Crossland (plaintiffs) purchased real estate owned by defendant. Plaintiffs subsequently received a collector's deed to the property. Judgment was entered in the Circuit Court of Barry County quieting title to the property in plaintiffs. The judgment declared that defendant, his heirs, grantees, devisees, consorts, successors and assigns have no right, title, or interest to that property. Defendant filed a motion seeking to set aside the judgment. The trial court denied the motion. Defendant seeks to appeal that order. The parties have not questioned this court's authority to proceed with this appeal. This court is required, nevertheless, to determine, sua sponte, if it has jurisdiction to do so. Schulze v. Erickson, 17 S.W.3d 588, 590 (Mo.App. 2000).
Judgment was entered in this case November 22, 2005.1 Defendant thereafter sought to set aside the judgment pursuant to Rule 74.06(b). He filed a motion to set aside the judgment on December 9, 2005; then, on December 20, 2005, an amended motion to set aside the judgment. The motion was heard December 21, 2005, and taken under advisement. The trial court entered the following order January 20, 2006, denying the motion.
This matter comes on from advisement, the matter of Defendant, Thomas D. Thompson's Motion To Set Aside Judgment having been tried to the Court on the record on the 21st day of December 2005 at which time the Defendant, Thomas D. Thompson appeared in person and with his attorney, Craig Lowther, the Plaintiffs appeared by Plaintiff, Terry W. Dixon, in person and with their attorneys, David Cole and Michael Riehn, and the Guardian ad Litem, Robert Foulke, appeared in person. Evidence was adduced on behalf of the Defendant, Thomas D. Thompson, and the Plaintiffs. Plaintiffs and Defendant were granted until January 10, 2006 to file written suggestions and any responses at which time the matter was considered submitted.
The Court after carefully considering the testimony and credibility of the witnesses, the trial exhibits as well as Defendant Thomas D. Thompson's Suggestions and Plaintiffs' Post Hearing Brief and after carefully considering Supreme Court Rule 74.05(d), denies Defendant Thomas D. Thompson's Motion to Set Aside Judgment.
This order shall become effective for appeal purposes on January 25, 2006.
SO ORDERED ON THIS 20th DAY OF JANUARY 2006.
CARR L. WOODS-JUDGE
Defendant filed Notice of Appeal February 3, 2006.
The motion by which defendant sought to have the judgment set aside was entitled "Amended Verified Motion to Set Aside Judgment for Fraud and Defective Service of Process." It sought, "pursuant to Rule 74.06(b)," to set aside the November 22, 2005, judgment "for the reason that said judgment was obtained through fraud" and, in the alternative, "to set aside the judgment . . . for the reason of mistake, inadvertence, surprise or excusable neglect." Notwithstanding the motion seeking relief pursuant to Rule 74.06(b), the trial court's order denying the motion recites that the trial court considered Rule 74.05(d). On appeal, defendant asserts in Point II that the trial court erred in not granting relief on the basis of Rule 74.06, and in Points I and III that the trial court erred in not granting relief on the basis of Rule 74.05.
The trial court's judgment was entered November 22, 2005. A judgment becomes final 30 days after its entry if no timely authorized after-trial motion is filed. Rule 81.05(a)(1). If an authorized after-trial motion is filed, a judgment becomes final at the earlier of 90 days from the date of filing the after-trial motion or the date the after-trial motion has been ruled. Rule 81.05(a)(2). Rule 74.06(b) motions are "authorized after-trial motions." Tompkins v. Baker, 997 S.W.2d 84, 88 (Mo.App. 1999). See McGee v. Allen, 929 S.W.2d 278, 280 (Mo.App. 1996). An appeal must be filed no later than ten days after the judgment appealed becomes final. Rule 81.04(a). The judgment that is appealed became final the date the amended motion to set it aside was denied. That occurred January 20, 2006. To be effective, Rule 81.04(a) required the notice of appeal to be filed not later than ten days after the judgment appealed became final, within ten days after January 20, 2006. The last day the notice of appeal was permitted to be filed was January 30, 2006. The notice of appeal was not filed until February 4, 2006.
The record on appeal offers no explanation for the last sentence in the trial court's January 20, 2006, order regarding an effective date "for appeal purposes." Notwithstanding the extraneous statement, the judgment was entered January 20, 2006, in that it was signed and filed that date. It disposed of all issues pending before the trial court. Nothing remained for the trial court's consideration. The time for filing a...
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