First Nat. Bank of Colorado Springs v. Mark IV Co., s. KCD29385

• Decision Date: 29 October 1979
• Docket Number: Nos. KCD29385,KCD29949,s. KCD29385
• Citation: 591 S.W.2d 63
• Parties: The FIRST NATIONAL BANK OF COLORADO SPRINGS, a National Banking Association, Plaintiff-Appellant, v. MARK IV CO., a Co-Partnership consisting of Ewell D. Harris and Marion Rupard, Jr.; South Street Management Company, a Colorado Corporation; Ewell D. Harris, Individually; Marion Rupard, Jr., Individually; Marjorie P. Rupard, Individually; and the Public Trustee of Douglas County, State of Colorado, Defendants-Respondents. The FIRST NATIONAL BANK OF COLORADO SPRINGS, a National Banking Association, Plaintiff-Appellant, v. Marion RUPARD, Jr., and Marjorie P. Rupard, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 63

591 S.W.2d 63

The FIRST NATIONAL BANK OF COLORADO SPRINGS, a National

Banking Association, Plaintiff-Appellant, v. MARK IV CO., a Co-Partnership consisting of Ewell D. Harris and Marion Rupard, Jr.; South Street Management Company, a

Colorado Corporation; Ewell D. Harris, Individually; Marion

Rupard, Jr., Individually; Marjorie P. Rupard, Individually;

and the Public Trustee of Douglas County, State of Colorado,

Defendants-Respondents.

The FIRST NATIONAL BANK OF COLORADO SPRINGS, a National

Banking Association, Plaintiff-Appellant, v. Marion RUPARD, Jr., and Marjorie P. Rupard, Defendants-Respondents.

Nos. KCD29385, KCD29949.

Missouri Court of Appeals, Western District.

Oct. 29, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 3, 1979.

Application to Transfer Denied Jan. 15, 1980.

George E. Feldmiller, W. Perry Brandt, Stinson, Mag, Thomson, McEvers & Fizzell, Michael E. Waldeck, Stephen S. Brown, Niewald, Risjord & Waldeck, Kansas City, for plaintiff-appellant.

Kent Snapp, Richard L. Martin, Johnson, Lucas, Bush & Snapp, Kansas City, for Rupard.

Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.

DIXON, Presiding Judge.

The complexities engendered by the filing of four separate lawsuits, each involving an attempt by plaintiff, The First National Bank of Colorado Springs, to register a foreign judgment obtained in the State of Colorado against the defendants Rupard, almost defy an orderly statement of the proceedings and issues in this case.

These two appeals were consolidated in this court. KCD29949 involved an appeal by plaintiff from a denial of relief in a declaratory judgment action in the Circuit Court of Platte County relating to a prior suit which is on appeal. KCD29385 is an appeal from the judgment of the Circuit Court of Jackson County in a suit attempting to register a foreign judgment. Two other circuit court proceedings are peripherally involved: a suit in the Circuit Court of Jackson County, now voluntarily dismissed without prejudice, and a pending suit in the Circuit Court of Platte County, both of which latter mentioned suits are also attempts to register the same foreign judgment.

The issues involved may be summarily stated as the question of the validity of the dismissal of the Platte County suit for declaratory judgment and the right of the plaintiff to a nunc pro tunc order in the Circuit Court of Jackson County in the first suit filed.

Because of the complex proceedings and difficulty in following what has occurred by reference to circuit court numbers and designations of these cases in this court by two separate numbers, a simplified reference to each of the four separate litigations will be employed. The suits were filed in this order:

Plaintiff first filed a suit to register a foreign judgment in the Circuit Court of Jackson County, Missouri. This will be referred to as the "first Jackson County suit." Subsequently, and after a disputed disposition of that suit, ¹ a second suit to register the foreign judgment was filed in Jackson County. That suit has been disposed of by a voluntary dismissal without prejudice and is only incidentally involved in this case. This will be referred to as the second Jackson County suit. The third suit was a suit filed in Platte County, Missouri, for the registration of a foreign judgment. That suit is still pending in Platte County and will be referred to as the "first Platte County suit." The fourth suit was filed in the Platte County Circuit Court by the same plaintiff, and it sounded in declaratory judgment to test a portion of the issues presented by the preceding litigation. That suit resulted in the trial court sustaining the defendants' motion for summary judgment. ²

With that summary statement of the various suits, the proceedings in each of them will require statement in detail before any resolution of the issues presented may be made.

The initial action, the first Jackson County case, was commenced on April 26, 1976 by the filing of a Petition for Registration of a foreign judgment. An order was entered registering the Colorado judgment against the defendants in Jackson County. On June 16, the defendants filed an answer attacking the registration upon the grounds that pleadings were defective and alleging a lack of jurisdiction in the Colorado court. On September 10 of 1976, the plaintiff filed a pleading which has given rise to the controversy in this case. That pleading was designated as follows: "VOLUNTARY DISMISSAL WITHOUT PREJUDICE." However, in the body of the pleading, there appears the following language: "Comes now plaintiff by and through its attorneys of record and voluntarily dismisses the above styled cause of action With prejudice at plaintiff's costs." (Emphasis supplied). On September 17, 1976, Judge Randall, who was then possessed of the cause, entered an order dismissing the action and setting aside the registration of foreign judgment. On September 10 and prior to the entry of this order of September 17, 1976, the plaintiff (apparently proceeding on the assumption that it had requested a voluntary dismissal without prejudice) commenced its second Jackson County action to register the judgment. That second Jackson County case was before Judge Meyers, and he, on the date of filing, entered an order registering the foreign judgment which the defendants moved to set aside on October 13, 1976. On October 28, 1976, Judge Meyers dismissed the plaintiff's second Jackson County action without prejudice and, on November 9, 1976, set aside the registration of foreign judgment in the second Jackson County case. However, on November 24, 1976, the court being advised that Rule 74.79(j) would require a finding that the setting aside of the registration of foreign judgment might be determined to be a final judgment on the merits he, therefore, set aside his ex parte November 9th order and entered another order. He made it clear that he was terminating the second Jackson County case on the ground of a lack of venue but that his order was not to be construed as a final judgment in favor of the defendants so as to bar the plaintiff from attempting to register the Colorado judgment in a court with proper venue.

On that same day, November 9, 1976, the plaintiff filed a petition for registration of a foreign judgment in Platte County, Missouri, in what will be referred to as the first Platte County case. Sometime later in November, plaintiff became aware of the September 17th order by Judge Randall in the first Jackson County case. Plaintiff filed on December 3, 1976, a motion to set aside the September 17 order of Judge Randall in the first Jackson County case. On December 20, 1976, Judge Randall heard the motion to set aside the September 17 order and sustained the motion to set aside the September 17, 1976 order on the sole ground that the plaintiff had not been notified of the filing of the order and that plaintiff was entitled to be heard before an order which disposed of the litigation was entered. At that point, it must be noted that the first Jackson County case was then still pending before Judge Randall. The plaintiff's ambiguous pleading of dismissal was still filed and had not been responded to by any order of the court. It is also clear that all of the parties were by then aware of the difficulty engendered by the ambiguous pleading which contained the apparent contradiction with respect to the nature of the dismissal which the plaintiff sought. The plaintiff then filed the motion for an order nunc pro tunc correcting the record in Judge Randall's court asking that the record be corrected to reflect "that the voluntary dismissal filed September 10, 1976 was without prejudice . . . ."

Thereafter and on January 19, 1977, the defendants filed a motion to set aside the registration of foreign judgment in the first Jackson County case. On January 27, 1977, Judge Randall denied the plaintiff's motion for an order nunc pro tunc and on the 15th day of February, 1977, Judge Moore, to whom the case had been transferred, entered an order in the first Jackson County case setting aside the registration of foreign judgment. A notice of appeal was filed in the first Jackson County action on March 4, 1977. The proceedings, however, were not halted in the first Jackson County case for, on March 15, 1977, Judge Moore set aside his February 15 order which set aside the registration of foreign judgment. At that point, the first Jackson County case was still within the 30-day period within which the trial court retained jurisdiction. This action by Judge Moore was subsequent to the dismissal of the second Jackson County suit by Judge Meyers for a lack of venue. The crucial nature of the Judge Moore order of March 15, 1977, requires its inclusion in full:

"This Court's Order of February 15, 1977, is hereby set aside and in substitution thereof, the Court FINDS as follows:

1. An Order was entered on April 29, 1976, registering a foreign judgment in the captioned matter;

2. Plaintiff filed a voluntary dismissal of this action on September 10, 1976;

3. There has been no hearing on the merits of the allegations contained in plaintiff's Petition for Registration of Foreign Judgment filed April 26, 1976;

4. There has been no hearing on the merits of the allegations contained in the answer filed by defendants Marjorie P. Rupard and Marion Rupard, Jr. on June 16, 1976;

5. On May 6, 1976, plaintiff requested garnishment against Marjorie P. Rupard and Marion Rupard, Jr.;

6. A Motion to Quash the aforesaid garnishment was filed on August 5, 1976;

It is, therefore, further

ORDERED that the aforesaid Motion to Quash Garnishment is sustained and that the aforesaid registration of foreign judgment dated April 29, 1976, be and is hereby held for naught.

Dated this 15th day of March, 1977."

Returning now to the proceedings in Platte County and recapping the posture of the litigation at this point, it is apparent...