Gorman v. Cornwell Quality Tools, WD

Citation752 S.W.2d 844
Decision Date19 April 1988
Docket NumberNo. WD,WD
PartiesWilliam J. GORMAN, Appellant, v. CORNWELL QUALITY TOOLS, Respondent. 39810.
CourtCourt of Appeal of Missouri (US)

John C. Russell, Raytown, for appellant.

Bernard J. Rhodes, Gage and Tucker, Kansas City, for respondent.

Before NUGENT, P.J., and CLARK and COVINGTON, JJ.

CLARK, Judge.

William J. Gorman secured a default judgment against respondent when the latter filed no answer to Gorman's complaint for breach of contract. On motion of respondent, however, the default judgment was set aside, respondent filed a counterclaim and a trial was had on the merits. The verdict was for respondent on Gorman's petition and in favor of respondent on the counterclaim. On this appeal, Gorman contends that the trial court abused its discretion in setting aside the default judgment. He also argues that the court erred in awarding respondent interest and attorney fees.

The peculiar history of this case commenced March 26, 1985 when Gorman filed suit against his employer, respondent, for breach of a contract engaging Gorman as a dealer representative for respondent. The suit papers were served on respondent at its office in Ohio, April 15, 1985. According to respondent, the papers were mailed to an attorney in Kansas City on April 22, 1985, but no answer to the petition was filed. In later testimony, the attorney stated he had not received the papers and had no knowledge about the case until respondent contacted him after the default judgment had been entered. That judgment, in the amount of $100,000.00, was rendered against respondent on May 28, 1985.

Respondent filed a motion to set aside the default judgment June 6, 1985. Attached to the motion was the affidavit of one Deborah Senko, an employee of respondent, who stated, among other facts, that she had mailed the suit papers to the Kansas City attorney along with a memo on April 22, 1985, and had heard nothing more about the case until notified of the default judgment on May 31, 1985. Based on the motion and affidavit, the court ordered the judgment set aside on June 21, 1985.

Respondent thereafter filed a counterclaim against Gorman for the value of inventory furnished. The case was tried to a jury commencing July 28, 1987 and resulted in a verdict for respondent on Gorman's petition and a verdict for respondent and against Gorman in the amount of $3583.89 on respondent's counterclaim. That amount was increased by an added award to respondent of $887.04 prejudgment interest, $8210.17 attorney fees and $524.95 expenses.

The present appeal is from the order setting aside the default judgment and from the allowances of interest, attorney fees and expenses. Gorman has expressly abandoned any claim of error as to the trial and judgment, except in the particulars noted.

In his first point, Gorman contends the trial court abused its discretion in setting aside the default judgment because respondent failed to show it had exercised reasonable diligence with respect to its receipt and disposition of the suit papers and also failed to offer a reasonable excuse for suffering the default. Respondent cites in particular Hughes v. Christian, 586 S.W.2d 788 (Mo.App.1979).

There is a distinction which renders Hughes inapplicable as authority. There the claim was made that a clerk either had mislaid the suit papers or, if they were forwarded to an attorney, he negligently failed to file a pleading and a default judgment was rendered. What distinguishes Hughes is that the court in that case overruled the motion thus rendering the default judgment a final judgment subject to appeal.

In the present case, as was noted, the court sustained the motion, the default judgment was set aside and after a trial on the merits, a judgment was entered which has now become final. If any appeal lies, it is from that judgment and not from the order setting aside the default judgment. Setting aside a default judgment, if ordered within thirty days of rendition of that judgment, is a discretionary act from which no appeal lies. Obermann v. Obermann, 701 S.W.2d 162, 164 (Mo.App.1985). As is explained in Diekmann v. Associates Discount Corp., 410 S.W.2d 695, 697 (Mo.App.1966), a judgment remains within the breast of the court for thirty days following its rendition. So long as the judgment has not become final, the court may set it aside and there is no appeal from that discretionary act. Id.

This case is to be distinguished from cases in which the order appealed from was made after the default judgment became final. An appeal lies in that circumstance because the order is a special order after final judgment in the case and therefore within the scope of § 512.020, RSMo 1986, which authorizes appeals from special orders made after final judgment in the cause. In like manner, an order setting aside a default judgment before that judgment has become final is not appealable because not within the grant of...

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5 cases
  • Green v. Plaza in Clayton Condo. Ass'n
    • United States
    • Court of Appeal of Missouri (US)
    • October 1, 2013
    ...of its discretion, a decision reviewable only upon a claim that the court has abused its discretion.” Gorman v. Cornwell Quality Tools, 752 S.W.2d 844, 847 (Mo.App.W.D.1988). In the context of attorneys' fees, ‘The trial court is considered to be an expert on the question of attorney fees; ......
  • State ex rel. Chase Resorts, Inc. v. Campbell
    • United States
    • Court of Appeal of Missouri (US)
    • November 14, 1995
    ...affidavits as to hours and services and oral testimony as to the charges made, received and paid. See, e.g., Gorman v. Cornwell Quality Tools, 752 S.W.2d 844, 847 (Mo.App.1988); Davis v. Stewart Title Guaranty Co., 726 S.W.2d 839, 852-53 (Mo.App.1987); cf. Hibbs v. Jeep Corp., 666 S.W.2d 79......
  • Brown v. Donham, 77645
    • United States
    • United States State Supreme Court of Missouri
    • June 20, 1995
    ...and there are no genuine issues of material fact. Cf. McHaffie v. Bunch, 891 S.W.2d 822, 830 (Mo. banc 1995); Gorman v. Cornwell Quality Tools, 752 S.W.2d 844, 847 (Mo.App.1988). In this case, Ms. Brown filed an amended petition claiming prejudgment interest, which was answered by Ms. Donha......
  • Terry v. Korn, WD 79702.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 2017
    ...judgment has not become final, the court may set it aside and there is no appeal from that discretionary act. Gorman v. Cornwell Quality Tools , 752 S.W.2d 844, 846 (Mo. App. 1988). Section 535.030.4, RSMo Cum. Supp. 2015, declares that a tenant defendant in a landlord tenant action has ten......
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