Lambert Bros., Inc. v. Tri City Const. Co.

• Decision Date: 08 October 1974
• Docket Number: Nos. 9576,9577,s. 9576
• Citation: 514 S.W.2d 838
• Parties: LAMBERT BROTHERS, INC., Plaintiff-Respondent, v. TRI CITY CONSTRUCTION COMPANY, a corporation, Defendant-Appellant. LAMBERT BROTHERS, INC., Plaintiff-Appellant, v. TRI CITY CONSTRUCTION COMPANY, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 838

514 S.W.2d 838

LAMBERT BROTHERS, INC., Plaintiff-Respondent, v. TRI CITY CONSTRUCTION COMPANY, a corporation, Defendant-Appellant.

LAMBERT BROTHERS, INC., Plaintiff-Appellant, v. TRI CITY CONSTRUCTION COMPANY, a corporation, Defendant-Respondent.

Nos. 9576, 9577.

Missouri Court of Appeals, Springfield District.

Oct. 8, 1974.

L. R. Buehner, Charles, E. Buchanan, Buehner & Buehner, Joplin, for defendant-appellant.

Woolsey, Fisher, Clark, Whiteaker & Stenger, Russell G. Clark, Springfield, for plaintiff-respondent.

FLANIGAN, Judge.

Neither plaintiff Lambert Brothers, Inc. (Lambert) nor defendant Tri City Construction Co. (Tri City) is happy with the result in the trial court and both have appealed. On October 10, 1972, the trial court entered a default judgment in favor of Lambert in the amount of $30,520. On October 16, 1972, the trial court set this judgment aside. A jury trial, which ended on March 16, 1973, resulted in a verdict and judgment in favor of Lambert in the amount of $18,000.

Lambert seeks reinstatement of the $30,520 judgment. Tri City, content with the setting aside of the $30,520 judgment, seeks reversal of the $18,000 judgment. Neither succeeds.

The appeals will be discussed separately.

APPEAL OF PLAINTIFF LAMBERT

Lambert seeks reinstatement of the default judgment ¹ in the amount of $30,520. The following chronology is germane to that effort:

May 6, 1972 Lambert filed this action against Tri City seeking $30,520 in damages ($22,500 for alleged damage to a tractor, $5,000 for alleged damage to a trailer, $1,270 for expenses incurred in obtaining a wrecker and cleaning up the highway and $1,750 for loss of use of the tractor-trailer unit).

June 19, 1972 Tri City filed its motion to dismiss. ²

August 21, 1972 The trial court overruled the motion to dismiss and gave Tri City 20 days in which to plead.

August 22, 1972 Russell G. Clark, one of Lambert's attorneys, wrote a letter to Lloyd Buehner, one of Tri City's attorneys, informing him of what had transpired on August 21.

September 22, 1972 Attorney Clark, by letter to Attorney Buehner, reminded him of the contents of his letter of August 22, 1972. The letter of Mr. Clark then stated: 'I did not want to take a default judgment without first having given you notice that you were in default.'

October 10, 1972 A hearing was held before the trial judge, Hon. William H. Pinnell. Lambert appeared by its attorney, Russell Clark, but there was no appearance by Tri City or its attorney. The court entered a judgment in favor of Lambert in the sum of $30,520, and a copy of the judgment was mailed to Mr. Buehner.

October 13, 1972 Tri City filed its 'Motion to Set Aside Default Judgment,' to which an affidavit was appended. ³

October 16, 1972 Judge Pinnell entered an order sustaining the motion to set aside the default judgment and granting Tri City leave to answer.

October 19, 1972 Lambert filed its reply to the answer. ⁴

March 16, 1973 A jury trial culminated in a verdict and judgment in favor of Lambert in the sum of $18,000.

At the hearing of October 10, 1972, when the default judgment in the amount of $30,520 was entered in Lambert's favor, Lambert offered no evidence with regard to the amount of damages it sustained. The figure of $30,520 was suggested to the court by Attorney Clark but there was no testimony to support that suggestion. ⁵

Rule 75.01, V.A.M.R., provides in part: 'The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time. . . .'

It is the position of Lambert that there was no 'good cause' for the setting aside of the default judgment and thus the order of October 16, 1972, which did so, was erroneous. This contention has no merit.

The affidavit of Attorney Buehner, which was appended to the Tri City motion to set aside the default judgment, contained Tri City's motion, filed on October 13, 1972, stated in part that 'during the leave period within which to file answer and for some time thereafter' Mr. Buehner was 'busily engaged in appellate matters' involving Lambert's law firm; that at the same time, Mr. Buehner was involved in the dissolution of a partnership which was time-consuming. ⁶

certain recitals of fact pertaining to the manner in which the collision had occurred. Lambert, with commendable candor, has conceded that the facts contained in that affidavit amount to a meritorious defense to the cause of action stated in the petition.

The motion also stated: 'That the course of dealing between the plaintiff's firm and the defendant's firm, and certain correspondence concerning that relationship was of such a nature that defendant's counsel did not seriously believe that plaintiff's counsel would take a default judgment in the matter without specific notice of the time and place when such default judgment might be taken.'

Mr. Buehner's affidavit, which was appended to the motion, supported its factual allegations. The affidavit also referred to Attorney Clark's letter of September 22, 1972, and stated: 'Said letter contained the equivocal announcement, 'I did not want to take a default judgment without first having given you notice that you were in default.' That such statement was not taken by affiant to mean that counsel for the plaintiff had a present intention to take such default judgment without further notice as regards the specific time when he would do so. By virtue of the premises set forth herein this affiant states that he was possibly lulled into not paying strict attention to the pleadings and the time schedule pertaining thereto and relied, without justification, on the past lenient dealings between the party (sic) in this case and other cases.'

Attached to the affidavit were copies of Mr. Clark's letters of August 22, 1972, and September 22, 1972. Also attached was a copy of a letter from Mr. Buehner to Mr. Clark dated June 8, 1972, in which Mr. Buehner expressed to Mr. Clark his appreciation for his 'courtesies in this matter,' the letter referring to the granting of extra time in which to file the motion to dismiss. In another attached letter dated June 17, 1972, from Mr. Buehner to Mr. Clark, Mr. Buehner enclosed a copy of the motion to dismiss, again thanked Mr. Clark for his courtesies, and stated 'I now have a file on hand and will discuss this matter at length with you at a later date.'

Judgments by default are not favored. 49 C.J.S. Judgments § 187, p. 326, n. 24 (1947). 'The entry of a default judgment against a party litigant is a harsh and drastic action.' 47 Am.Jur.2d Judgments § 1154, p. 185 (1969). A default judgment which has been set aside by a trial court within the 30-day period prescribed by Rule 75.01, V.A.M.R., has little chance of rebirth in an appellate court.

In Kollmeyer v. Willis, 408 S.W.2d 370 (Mo.App.1966), this court reviewed the propriety of an order of the trial court setting aside a default judgment, the order having been entered less than 30 days after entry of the judgment. The following general principles were stated: The setting aside of a default judgment is a matter resting largely in the discretion of the trial judge. It is not a mental discretion to be exercised ex gratia, but a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve, and not impede or defeat the ends of substantial justice. Kollmeyer, supra, 408 S.W.2d at 380(12). The principle that each case must be ruled upon its own particular With regard to the 'good cause' language of Rule 75.01, V.A.M.R., in Kollmeyer, this court said at page 381: '(I)nsofar as we have been able to determine, no Missouri court has undertaken to define 'good cause' in a case involving the vacation of a default judgment; and it would seem both unnecessary and unwise for us to do more than suggest that, in this as in other categories of cases, "(g)ood cause' depends upon the circumstances of the individual case, and a finding of its existence lies largely in the discretion of the officer or court to which the decision is committed' (Wilson v. Morris, Mo., 369 S.W.2d 402, 407(7)--see also Buttinger v. Ely & Walker Dry Goods Co., Mo.App., 42 S.W.2d 982, 984) subject to the limitation that a judgment may not be set aside arbitrarily or capriciously (Willis v. Willis, Mo.App., 274 S.W.2d 621, 625(5)) or without giving the party to be affected adversely reasonable notice and an opportunity to be heard. Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566, 574(14).'

facts is especially applicable to an inquiry as to whether a trial court has been guilty of an abuse of discretion in setting aside or in refusing to set aside a default judgment. Kollmeyer, supra, 408 S.W.2d at 380(13). An appellate court is less likely to interfere when the trial court has set aside a default judgment than when it has not. This is for the reason that when the judgment is set aside, the case is reopened and justice will yet be done on the merits and is in keeping with and in furtherance of the policy of the law to try and determine cases on their merits when that will not result in harmful delay. Kollmeyer, supra, 408 S.W.2d at 380(14). The trial court has, during the period of 30 days after entry of judgment, the same inherent power to vacate a judgment 'for good cause' as, under prior practice, it did during the judgment term. Kollmeyer, supra, 408 S.W.2d at 381(15).

In Vaughn v. Ripley, 416 S.W.2d 226 (Mo.App.1967), referring to the 'good cause' language of Rule 75.01, V.A.M.R., the court said at page 228: 'Error implies fault. 'Good cause' for remedying it begins with that premise and concerns itself only with whether the fault should be excused or extenuated in the interests of justice. The term 'good cause', as used in this connection, is not susceptible of precise definition, but it was obviously coined to serve a remedial purpose in...