Eastin v. Franklin, 16826

• Decision Date: 06 February 1991
• Docket Number: No. 16826,16826
• Parties: Gayle EASTIN and Mary Gooding, Plaintiffs-Respondents, v. J.C. FRANKLIN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 57

806 S.W.2d 57

Gayle EASTIN and Mary Gooding, Plaintiffs-Respondents, v. J.C. FRANKLIN, Defendant-Appellant.

No. 16826.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 6, 1991.

Motion for Rehearing or Transfer Denied

Feb. 28, 1991.

Janice P. Noland, Camdenton, for defendant-appellant.

Alice Yahnig, Curran and Clifford, Osage Beach, for plaintiffs-respondents.

SHRUM, Judge.

In this case we are asked to decide if the defendant J.C. Franklin was denied due process of law when judgments were entered against him in a trial conducted without the presence of him or his lawyer. The defendant claims he and his lawyer did not receive notice of the trial setting. From our review of the record, we conclude that the defendant did not receive notice of the trial setting and, under the facts of this case, the lack of notice deprived the defendant of due process of law. We reverse the judgment and remand the case for a new trial.

PLAINTIFFS' MOTION TO DISMISS APPEAL

Before analyzing the principal issue, we address the plaintiffs' request that we dismiss the defendant's appeal.

First, the plaintiffs urge dismissal of the defendant's appeal because the notice of appeal fails to specify the judgment or order appealed from, in violation of Rule 81.08(a). In the portion of the notice of appeal form, designated "Judgment or Order Appealed From," the defendant entered, "see attached Exhibit 'A.' " He then attached a complete copy of the two and one-half page trial court docket. One entry on the docket sheets is an abbreviated version of the court's judgment. The legal file for this appeal contains a copy of the formal judgment. This court can readily discern, from the record, the judgment from which the defendant appeals. See Allison v. Sverdrup & Parcel and Associates, Inc., 738 S.W.2d 440, 442-44 (Mo.App.1987). The plaintiffs do not advise us how they have been prejudiced by the defendant's somewhat circuitous compliance with Rule 81.08(a). See Id.; Williams v. MFA Mut. Ins. Co., 660 S.W.2d 437, 439 (Mo.App.1983).

Second, the plaintiffs urge dismissal because the defendant "has appealed from the trial court's denial of a motion for new trial which is not a judgment appealable under § 512.020, RSMo 1986." The plaintiffs correctly point out that the defendant, in the statement of facts portion of his brief, says that he is appealing from the trial judge's order overruling his motion for a new trial. However, the defendant, in his point relied on, alleges error in the trial court's judgment. We conclude the defendant has made a good faith effort to present cognizable issues, discernable from the briefs and record. The doctrine of leniency applies to excuse any deficiencies. See Ridley v. Newsome, 754 S.W.2d 912, 914 (Mo.App.1988).

Third, the plaintiffs urge dismissal contending the defendant's statement of facts is not "a fair and concise statement of the facts relevant to the questions presented for determination without argument," a violation of Rule 84.04(c). To support their contentions, the plaintiffs argue that the defendant's statement of facts is "totally devoid of any facts favorable to the [plaintiffs], including the fact that this case was discussed by [defendant's] and [plaintiffs'] counsel three days prior to the trial." In support, the plaintiffs direct our attention to pages 15-16 of the legal file. The plaintiffs also point out the following "conclusions and opinions of a purely argumentative nature" in the defendant's statement of facts: " 'Neither defendant-appellant nor his attorney received a notice of this hearing date. (L.F. P.P. 34, 35).' (Appellant's Brief p. 3). 'The first notice that the defendant-appellant received of the hearing was the receipt of a copy of the judgment entry. (L.F. P. 39).' (Appellant's Brief p. 4)."

There is nothing in the legal file at pages 15 and 16 related to any discussion of the case by counsel three days prior to the trial. As the plaintiffs point out, the defendant makes appropriate cross-references in his statement of facts to affidavits of the defendant and his attorney and other portions of the record. Although the defendant's statement of facts is not a model of legal draftsmanship, we perceive no attempt by counsel to distort or misrepresent the facts, and we decline to dismiss the appeal for violation of Rule 84.04(c). See French v. Tri-Continental Leasing Co., 545 S.W.2d 345, 347 (Mo.App.1976).

Last, the plaintiffs complain that the defendants included irrelevant materials in the record on appeal and ask this court, as an alternative to dismissal, "to strike and disregard those [irrelevant] portions of the Record on Appeal and Appellant's Brief...." In our consideration of this case, we have disregarded the portions of the record and the defendant's brief about which the plaintiffs complain.

We overrule the plaintiffs' motion to dismiss the defendant's appeal.

FACTS

Initially, the plaintiffs filed a small claims court petition seeking $1,500.00 from the defendant. In their petition, the plaintiffs alleged (a) they had hired the defendant to clear underbrush and a limited number of trees from the plaintiffs' land, (b) they had paid the defendant $700.00 for the work but he had failed to Following assignment to the Circuit Court, the plaintiffs filed an amended petition in which they prayed for $15,000.00 in damages. The defendant filed an answer and other pleadings in the associate division. The trial court continued the case several times and a docket entry on December 1, 1989, reads, "Case reset to 1/12/90 at 9:00 AM." The record contains a letter from the trial court file, dated December 19, 1989, correctly addressed to the respective attorneys, advising them the "matter has been reset to January 12, 1990, at 9:00 a.m." The record contains no entry about mailing of the letter.

complete the work, and (c) he had taken out more trees than he was supposed to in certain areas. The plaintiffs sought $800.00 damages and return of the $700.00 paid. The defendant counterclaimed for $1,612.50, resulting in transfer and assignment to the Circuit Court, Associate Division.

The trial court's docket entry on January 12, 1990, reads, in part, "Plaintiff in person and by attorney Yahnig. Defendant fails to appear in person or by counsel by 9:35 P.M. [sic] Evidence heard...." The trial court then entered judgment for the plaintiffs for $11,255.12 and against the defendant on his counterclaim.

The defendant timely filed post-trial motions for new trial and to set aside the judgment, with accompanying affidavits by the defendant and his lawyer, claiming that the defendant had no notice of the January 12, 1990, trial setting. The defendant's motions, when read in combination, allege that the lack of notice of the trial setting denied the defendant the right to a fair hearing and, hence, due process. As part of the post-trial motions, the defendant's counsel signed an affidavit which states, in part:

"2. As attorney for defendant I was advised that I would be notified of the date of trial so that my client and I could appear, but I received no such notice as to the January 12, 1990 hearing date.

....

4. Moreover, attorney for Plaintiffs asked me if she could continue the case again because she had not been able to find a witness, and I agreed. No date for hearing was discussed."

The plaintiffs filed no affidavits in opposition to the defendant's post-trial motions and affidavits.

ISSUES AND STANDARD OF REVIEW

On appeal, the defendant alleges the trial court erred in entering judgment against him in his absence. He contends he had no notice of the pendency of the trial and, therefore, was denied due process of law.

In Greene v. Lindsey, 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982), the Supreme Court reiterated the long-standing principle that the "fundamental requisite of due process of law is the opportunity to be heard." Id. at 449, 102 S.Ct. at 1877, 72 L.Ed.2d at 254-55. If the right to be heard is to be more than illusory, a party must be informed of "any proceeding which is to be accorded finality" either by actual notice or by some "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. at 449-50, 102 S.Ct. at 1877-78, 72 L.Ed.2d at 255 (emphasis in original).

A judgment may be set aside if there is a failure to adhere to some prescribed rule or mode of procedure. Credit Card Corp. v. Jackson County Water Co., 688 S.W.2d 809, 811 (Mo.App.1985). Unless the record establishes that the complaining party was provided notice of a trial setting, a court may conclude the complaining party did not receive notice. Irving v. Brannock, 756 S.W.2d 585, 587 (Mo.App.1988). A court has little discretion when it considers an irregularity on the face of the record. Credit Card Corp., 688 S.W.2d at 811. The record before us does not establish that the defendant had actual notice of the trial setting or that there existed notice reasonably calculated, under the circumstances, to apprise him of the pendency of the action.

ANALYSIS AND DECISION

The record in this case contains no entry indicating the December 19, 1989, letter was mailed to defendant or his attorney. The record likewise reveals no testimony or affidavit by the clerk describing the actual mailing or the clerk's office's custom or practice of mailing notices of trial settings. ¹

The plaintiffs argue that the December 19, 1989, letter, found in the court file, was "sent by ordinary mail to the attorneys of record advising of the January 12, 1990 trial date," and, according to Rule 43.01(c)(2), service by mail is complete upon mailing. This argument presupposes that there was evidence that the letter was mailed. The existence of the letter in the trial court's file is not evidence the letter was mailed to the defendant's lawyer. We cannot use Rule 43.01(...