LaRose v. Letterman

• Decision Date: 13 December 1994
• Docket Number: No. 19489,19489
• Citation: 890 S.W.2d 347
• Parties: Mark W. LaROSE, Plaintiff-Respondent, v. Dennis LETTERMAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 347

890 S.W.2d 347

Mark W. LaROSE, Plaintiff-Respondent, v. Dennis LETTERMAN, Defendant-Appellant.

No. 19489.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 13, 1994.

David C. Vaughn, III, Fredrick, Rogers & Vaughn, P.C., Springfield, for defendant-appellant.

Richard D. Crites, Springfield, for plaintiff-respondent.

GARRISON, Judge.

This appeal involves a default judgment entered against Appellant Dennis Letterman (Defendant). Respondent Mark LaRose (Plaintiff), a Springfield Missouri police officer filed suit against Defendant alleging that he was struck, assaulted, battered and kicked while attempting to arrest Defendant three days earlier. As a result, he alleged that he suffered "personal injuries, pain and suffering and cuts, bruises and scrapes" and "property damage to the police uniform" which he was wearing. The prayer of the petition requested $50,000 in compensatory damages and $150,000 in punitive damages. ¹

When the petition was filed on February 8, 1993, Plaintiff's attorney instructed the circuit clerk to "[h]old service; atty will call with service address." Nothing further appears in the record concerning service until January 14, 1994 when an alias summons was issued and served on Defendant in the Greene County Jail. Defendant had, that same day, been incarcerated for what the parties agree was a plea of guilty to a charge of assault arising from the same events as those described in Plaintiff's petition.

No entry of appearance or responsive pleading was filed in behalf of Defendant within thirty days, and Plaintiff, on February 16, 1994, obtained a default judgment for $500,000 compensatory damages and $1,750,000 punitive damages with interest from that date. The only indication of evidence which was presented to the trial court consists of a recital in the judgment that the court heard "the testimony of the Plaintiff." The docket sheet entry for that date reflects Plaintiff's appearance with his attorney and states: "Deft remains in default. Hearing held-evidence heard. Judgment for Pltf vs Deft. Judgment executed, filed and made a part hereof." No record exists of the hearing for the default judgment other than the written judgment and the docket entry.

On March 1, 1994, Defendant filed a "Motion To Set Aside Default Judgment" pursuant to Rule 74.05(c). ² The motion was overruled by the trial court on March 3, 1994 after having been heard and taken under advisement the previous day. This appeal followed.

Before discussing the merits, we first consider Plaintiff's Motion To Dismiss Appeal in which he claims that the notice of appeal was untimely. He argues that pursuant to Rule 81.04 a notice of appeal must be filed not later than ten days after the judgment or order appealed from becomes final. In the instant case, the default judgment was entered on February 16, 1994. Plaintiff argues that the judgment became final thirty days later (March 18, 1994) with the result that the time for filing an appeal expired ten days thereafter, on March 28. Therefore, he reasons that the notice of appeal filed on April 11, 1994 was untimely.

The first of Defendant's two points on appeal, which we find determinative, concerns the failure of the trial court to sustain his Motion To Set Aside Default Judgment. Such a motion is an independent action, the determination of which is an independent judgment. Kueper v. Murphy Distributing, 834 S.W.2d 875, 878 (Mo.App.E.D.1992). That judgment becomes final thirty days after its entry and an appealing party then has ten days thereafter within which to appeal. In the instant case, the denial of the motion occurred on March 3, 1994. The notice of appeal, filed thirty-nine days later on April 11, was timely. Because we need not reach Defendant's second point, the timeliness of the appeal as to it is moot.

Plaintiff also alleges that Defendant's points relied on are deficient under the requirements of Rule 84.04(d) because they do not set forth wherein and why the trial court's rulings were erroneous and do not state the reasons why the refusal to set aside the default judgment was an abuse of discretion. As a result, Plaintiff contends that nothing has been preserved for appellate review.

Defendant's first point on this appeal is:

The trial court's refusal to set aside its judgment of February 16, 1994, was erroneous, in that it erroneously applied the law and abused its discretion as appellant had, pursuant to Missouri Supreme Court Rule 74.05(d), presented the necessary showing to compel the court's default judgment be set aside.

We agree that this point fails to comply with Rule 84.04(d). Notwithstanding such deficiencies, where the basis of the issue is cognizable from the argument section of the brief, an appellate court may, in its discretion, proceed to review the point in the interests of justice. First Assembly Church v. Ticor Title Ins., 872 S.W.2d 577, 582 (Mo.App.S.D.1994). Additionally, even though not raised or preserved, an appellate court may review to determine if plain error affecting substantial rights has occurred which resulted in manifest injustice or miscarriage of justice. Rule 84.13(c); Gill v. Farm Bureau Life Ins. Co., 856 S.W.2d 96, 97 (Mo.App.S.D.1993).

In support of his first point, Defendant argues that the trial court abused its discretion in not setting the judgment aside pursuant to his motion under Rule 74.05(d). ³ He argues that good cause was demonstrated in his motion as well as a meritorious defense to Plaintiff's claim.

A motion to set aside a default judgment is addressed to the sound discretion of the trial court, the exercise of which will not be interfered with on appeal unless the record demonstrates an abuse of that discretion. Hughes v. Christian, 586 S.W.2d 788, 790 (Mo.App.W.D.1979). The law favors a trial on the merits but also defends the integrity of the legal process and procedural rules and therefore does not sanction the disregard thereof. Sprung v. Negwer Materials, Inc., 775 S.W.2d 97, 100 (Mo. banc 1989). The discretion not to set aside a default judgment is a good deal narrower than the discretion to set one aside, with the result that appellate courts are more likely to interfere when the trial court has denied such a request. Boatmen's First Nat. Bank v. Krider, 844 S.W.2d 10, 12 (Mo.App.W.D.1992); Volvo Finance North America v. Raja, 754 S.W.2d 955, 957 (Mo.App.W.D.1988). The reason is that when a default judgment is set aside, the case is reopened and justice will be done on a trial on the merits. Rattner v. Nations, 737 S.W.2d 490, 494 (Mo.App.E.D.1987).

In his motion, Defendant alleged that he had been available for service after the petition was filed but that Plaintiff's attorney withheld that service until the day he was incarcerated, which inhibited his efforts to obtain counsel; that after one week in the Greene County Jail he was transferred to the Fulton Reception and Diagnostic Center where he was held until February 15, 1994, at which time he was taken to the Algoa prison facility in Jefferson City; that Defendant's mother attempted to obtain the services of an attorney to defend the case, but the two attorneys contacted were either unable to take the case or requested more money than he could afford; that assistance was requested from the ACLU and Legal Aid without success; that the attorney who filed the motion had been contacted on Saturday, February 19, 1994 and retained on February 21; and that he had "a meritorious defense to the claims of the plaintiff."

A proposed answer to the petition was filed with the motion, which consisted of a general denial and allegations that the petition did not state a claim, the doctrine of comparative fault should be applied, and the petition should be dismissed on the theory of laches.

Also attached to the motion was the affidavit of Defendant's mother which stated that: Defendant mailed the summons and petition to her from the Greene County Jail and telephoned her concerning legal assistance because he did not know how to respond to the petition; Defendant was moved from the Greene County Jail within one week after being served; and it described her unsuccessful efforts to obtain...