Estep v. Atkinson

• Decision Date: 25 October 1994
• Docket Number: No. 18869,18869
• Citation: 886 S.W.2d 668
• Parties: Bobby Roland ESTEP and Kathryn Estep, Respondents, v. Ray ATKINSON, Appellant.
• Court: Missouri Court of Appeals

Page 668

886 S.W.2d 668

Bobby Roland ESTEP and Kathryn Estep, Respondents, v.Ray ATKINSON, Appellant.

No. 18869.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 25, 1994.

Richard L. Schnake, Neale, Newman, Bradshaw & Freeman, Springfield, for appellant.

Leland C. Bussell, Richard L. Rollings, Jr., Bussell, O'Neal & Hall, Springfield, for respondents.

CROW, Judge.

Defendant, Ray Atkinson, appeals from an order denying his "Motion to Set Aside Default Judgment."His two points relied on present legal and factual issues.Discussing those issues requires an account of the undisputed facts.

Bobby Roland Estep("Bobby") commenced the litigation May 10, 1990, by filing an affidavit in Associate Division Two of the Circuit Court of Douglas County.The affidavit stated, in substance: (a) Bobby owns a tract of land in that county, (b) in June, 1985, he agreed Defendant could live on the tract rent-free for one year with the option to buy it at year's end, (c)Defendant never endeavored to buy the tract, and (d) Bobby served notice April 5, 1990, on Defendant to vacate the tract within 31 days.The affidavit prayed for an order directing the sheriff to remove Defendant from the tract.

Defendant, by counsel, filed an answer May 22, 1990, generally denying Bobby's allegations.Defendant's answer was accompanied by a two-count counterclaim.Count I averred that Bobby sold Defendant the tract, that Defendant was ready, willing and able to comply with the terms of sale, and that Bobby failed to deliver an abstract and deed to Defendant.Count I prayed for specific performance.Count II pled that Defendant had improved the tract in reliance on Bobby's promises, and that returning the tract would unjustly enrich Bobby by $5,000, the value of the improvements.Count II prayed for judgment in that amount.

During the ensuing 15 months: (1) a lawyer entered an appearance for Bobby, (2)the case was continued by agreement, (3) a motion for change of judge was granted, (4)the case was reset for trial, (5) Bobby's original lawyer was replaced by lawyer John Bruffett, (6)the case was again continued, (7)the case was reset for trial, (8)Defendant's lawyer was granted leave to withdraw, and (9)the case--for reasons undisclosed by the record--was not tried as scheduled.

On September 4, 1991, Bobby moved to add Kathryn Estep as a plaintiff.The motion was granted.Bobby and Kathryn, henceforth referred to as "Plaintiffs," were granted leave to file an amended petition, which they did.The amended petition repeated, in substance, the allegations in the affidavit by which Bobby had commenced the suit.The amended petition prayed for recovery of the tract, $1,000 damages for "unlawfully withholding" it, and $35 per month rent beginning June, 1986.

The case was then transferred to the presiding judge of the circuit, and subsequently assigned to a special judge ("the trial court").

On February 13, 1992, lawyer Philip S. Huffman entered his appearance as counsel for Defendant.

The next day (February 14, 1992), the trial court set the case for trial April 10, 1992.The docket entry provided: "No further continuances.All responsive pleadings to be filed on or before February 25, 1992."We infer the trial court's reason for the latter order was that Bobby had filed no reply to Defendant's counterclaim, and Defendant had filed no answer to Plaintiffs' amended petition.

On the scheduled trial date, April 10, 1992, the trial court received a "faxed"motion for continuance from lawyer Huffman.The trial court granted the motion and reset trial for May 15, 1992.

The next documented activity occurred on July 27, 1992, when the circuit clerk sent a letter to the trial court.The letter stated Bobby had called the clerk, asking that the case be reset (the record does not explain why it was not tried May 15, 1992).

On September 15, 1992, the trial court set the case for trial November 13, 1992, and directed the circuit clerk to notify the parties and counsel.

On September 17, 1992, the circuit clerk sent a letter to: (a) Bobby, (b)Defendant, (c) lawyer Bruffett, and (d) lawyer Huffman.The letter stated the trial court had set the case for November 13, 1992, at 9:00 a.m. Huffman received the letter September 21, 1992.

Three days later, on September 24, 1992, Huffman sent a letter to the circuit clerk.The text of the letter was:

"Mr. Ray Atkinson has called our office and asked that the above named case be rescheduled.The case was to be heard at Friday, November 13, 1992 at 9:00.Mr. Atkinson will be out of town at that time."

The circuit clerk stamped the letter "filed"September 25, 1992.

On November 13, 1992, Plaintiffs and lawyer Bruffett appeared for trial.Neither Defendant nor lawyer Huffman appeared.The trial court announced:

"The case was set for trial today on September 15th, 1992.The parties were notified in writing by the Circuit Clerk on September 17.We've had some proceeding prior to going on the record regarding whether or not the case should be heard today since neither Mr. Huffman nor Mr. Atkinson is present.

Mr. Bruffett has conferred with his client.There is no motion for continuance in the file.There is a letter from Mr. Huffman in the file which indicates that he was aware of the setting today.And for record purposes, I'm not treating the letter from Mr. Huffman, dated September 24th, as a motion for a continuance.It doesn't, in any way, comply with the rules on continuances.

Plaintiffs have--I've advised them prior to going on the record that the Court was ready to proceed today, if they wished to proceed, we would.Otherwise, if they wished it continued, we would do it that way.And Plaintiffs have decided, after conferring with Mr. Bruffett, to proceed today."

Lawyer Bruffett thereupon made an opening statement, presented testimony by Bobby and by Defendant's ex-wife, and introduced photographs of the tract.After the evidence, Bruffett made a closing argument.

The trial court found Plaintiffs were entitled to the relief sought, and that Defendant's counterclaim should be denied.The court directed Bruffett to "prepare formal judgment for signature."

On December 2, 1992, the trial court signed a judgment consistent with its findings of November 13, 1992.The circuit clerk stamped the judgment "filed"December 3, 1992.

On February 18, 1993, lawyer Huffman, on behalf of Defendant, filed the motion referred to in the first sentence of this opinion.The motion averred Defendant was outside Missouri on November 13, 1992, and was unaware the case was being taken up by the court.The motion further pled that Huffman had been informed by court personnel that the case had been continued as a result of Huffman's letter of September 24, 1992(quotedsupra ).Attached to the motion were "affidavits" of (1) Huffman, (2) his secretary, and (3)Defendant.¹

The affidavits, in the aggregate, presented the narrative in the seven numbered paragraphs below.

1.Within a "day or two" after Huffman received notice of the November 13, 1992, setting, Defendant informed Huffman's secretary ("Brenda") that Defendant had a long-standing commitment to be outside Missouri that date.As a consequence, Huffman asked Brenda to try to obtain a new setting.

2.Brenda phoned the circuit clerk's office September 23, 1992, and told the lady who answered that Defendant was going to be out of town November 13, 1992, hence she(Brenda) needed to get the case rescheduled.The lady told Brenda "it would not be a problem," and to write the court a letter explaining the situation.Brenda sent the letter of September 24, 1992.

3.On November 2, 1992, Defendant called Huffman's office to get the new date.Huffman asked Brenda whether she had gotten the case rescheduled.She said she had, and showed him the September 24, 1992, letter, but stated she had not received a new court date.At Huffman's request, Brenda called the lady to whom she had spoken September 23, 1992, and was told it was "on record" that she(Brenda) had called earlier because there was "a note attached to the file."The lady assured Brenda that "everything had already been taken care of, but that she did not know the new date."

4.Brenda then called the trial court's office.The lady who answered was familiar with the case.The lady got the judge's date book and went over some available dates.Following that conversation, Brenda informed Defendantthe case was being rescheduled so he could go on his trip.

5.Brenda received no notice of the new date, so she phoned the trial court's office November 12, 1992, telling the lady who answered that she(Brenda) wanted to confirm "that the case was off for the 13th."Brenda explained to the lady that she did not want the judge to make an unnecessary trip to Douglas County.²The lady told Brenda the judge had other cases to be heard November 13, but confirmed the case was "off for the 13th."

6.Brenda also phoned lawyer Bruffett's office November 12, 1992.Her affidavit is unclear as to whether this was before or after phoning the trial court's office; however, telephone records appended to her affidavit indicate the call to Bruffett's office preceded the call to the trial court's office.Bruffett was gone when Brenda called.Brenda told Bruffett's secretary the case had been continued and they needed another court date.Bruffett's secretary could provide no dates, as Bruffett had his calendar.

7.Huffman assumed the trial court would reset the case when the court obtained Bruffett's available dates.

The affidavits also explained how and when Huffman and Defendant discovered the judgment had been entered.Inasmuch as those circumstances are irrelevant to the issues in this appeal, we need not recount them.

The trial court took up Defendant's motion to set aside the judgmentApril 30, 1993.The parties and their lawyers were present.No party presented evidence, thus the motion was "submitted...