Lunde v. Scardacci

• Citation: 175 S.W.3d 676
• Decision Date: 28 November 2005
• Docket Number: No. WD 64457.,WD 64457.
• Parties: Chrystal D. LUNDE, Appellant, v. Carol A. SCARDACCI, Respondent.
• Court: Missouri Supreme Court

175 S.W.3d 676

Chrystal D. LUNDE, Appellant, v. Carol A. SCARDACCI, Respondent.

No. WD 64457.

Missouri Court of Appeals, Western District.

November 8, 2005.

As Modified November 28, 2005.

David H. Bony, Kansas City, MO, for appellant.

Martin M. Montemore, Howard D. Lay, and Matthew W. Geary, Kansas City, MO, for respondent.

Before: HOWARD, P.J., and SMART and NEWTON, JJ.

PER CURIAM.

Chrystal Lunde ("Plaintiff") appeals from the trial court's judgment setting aside the damages portion of a default judgment entered against Carol Scardacci ("Defendant") in Plaintiff's personal injury lawsuit. For the reasons set forth below, we reverse the trial court's judgment.

Background

The following chronology of relevant proceedings before the trial court aids in our resolution of this appeal.

On September 12, 2000, Plaintiff was riding as a passenger in a car that was rear-ended by Defendant. After the collision, Plaintiff observed that Defendant appeared intoxicated. The police arrived, and Defendant was arrested for driving while intoxicated. Plaintiff, who complained of neck, back, and shoulder pain, went to the hospital by ambulance. Plaintiff subsequently suffered from severe neck pain and headaches and received treatment from a chiropractor, who then referred Plaintiff to a neurosurgeon.

On May 31, 2002, Plaintiff filed a petition for personal injuries in the Circuit Court of Jackson County, seeking both actual and punitive damages from Defendant. The sheriff served Defendant with the petition and summons on or about June 9, 2002. When Defendant failed to answer within thirty days of service, as required by Rule 55.25, Plaintiff moved for a default judgment under Rule 74.05(a). Plaintiff sent Defendant notice of the October 18, 2002 default hearing, but Defendant did not appear.¹

On October 18, 2002, the trial court conducted a default hearing. Plaintiff testified about the collision and presented evidence of her resulting damages.

On October 22, 2002,² the trial court entered a default judgment against Defendant for $150,000 in actual damages and $50,000 in punitive damages.

Defendant filed for bankruptcy shortly after entry of the default judgment.³ Thereafter, Defendant's insurer became aware of the default judgment against Defendant, and on December 17, 2002, Defendant filed a Motion to Set Aside Default Judgment, in which she alleged, in relevant part:

7. Defendant set the papers aside and mistakenly believed that her insurance company would also be served with the lawsuit, papers, or at least would be aware of the lawsuit because plaintiff's attorney had been communicating with it.

8. This Motion to Set Aside Default Judgment is filed well within one (1) year of the entry of default judgment dated October 18, 2002.

9. Defendant's mistake was not intended to impede the judicial process. The undersigned has only recently been retained and is promptly filing this Motion to address the default entered against defendant.

10. The interests of justice require that defendant be given an opportunity to answer the Petition, attempt to resolve this matter, and, if unsuccessful at resolution, to proceed to trial on the merits of liability and damages.

Plaintiff filed suggestions in opposition to Defendant's motion, in which she argued that Defendant's motion to set aside was inadequate under the pleading requirements of Rule 74.05(d), because Defendant did not state any facts constituting a meritorious defense.

On January 8, 2003, the trial court entered an "ORDER" overruling Defendant's Motion to Set Aside.

On April 30, 2003, Defendant filed a "Motion for Reconsideration of Defendant's Motion to Set Aside Default Judgment" and requested a hearing on her motion. Plaintiff again filed suggestions in opposition.

On May 12, 2003, the trial court entered an "ORDER" overruling Defendant's Motion for Reconsideration and denying her request for a hearing.

On June 20, 2003, Defendant filed a notice of appeal from the trial court's May 12, 2003 order with this court.

On July 10, 2003, this court wrote counsel a letter stating, "It appears the order of May 12, 2003 was not `[a] writing signed by the judge and denominated "judgment"['].... [Rule 74.01(a)]; City of St. Louis v. Joseph Hughes, 950 S.W.2d 850 (Mo.1997)." We requested suggestions as to why the appeal should not be dismissed. No suggestions were filed.

On July 16, 2003, Defendant's counsel wrote Judge Roldan, enclosing this court's July 10, 2003 letter and stating, "We are unable to appeal your Order of May 12, 2003 because it is not a final, appealable judgment." Defendant did not specifically request the trial court denominate the order a "judgment" so that she could properly appeal from it. Rather, she again requested a hearing on her Motion to Set Aside and Motion for Reconsideration.

On August 4, 2003, this court entered an Order dismissing Defendant's appeal for lack of a final, appealable "judgment" pursuant to section 512.020, RSMo 2000, and Rule 74.01. On August 22, 2003, this court issued a mandate dismissing Defendant's appeal from the "Order" denying her Motion for Reconsideration.

Nothing further appears on the trial court's docket until February 19, 2004, when Plaintiff filed her "Request for Writ of Execution and/or Writ of Garnishment." The writ was served on Defendant's insurer on February 23, 2004.

On March 17, 2004, Defendant filed a motion entitled, "MOTION BY DEFENDANT TO SET ASIDE INTERLOCUTORY JUDGMENT OR IN THE ALTERNATIVE TO MAKE INTERLOCUTORY JUDGMENT FINAL TO PERMIT AN APPEAL AS WELL AS TWO DENIALS OF PRIOR MOTIONS TO SET ASIDE BY AN `ORDER', AND FOR FINDINGS OF FACTS AND CONCLUSIONS OF LAW." On March 31, 2004, Defendant's insurer also moved to quash the garnishment. Thereafter, Plaintiff filed suggestions in opposition, and Defendant filed supplemental suggestions in support.

On August 5, 2004, the trial court summarily entered a "JUDGMENT/ORDER" sustaining both Defendant's Motion to Quash filed on March 31, 2004, and Defendant's March 17, 2004 Motion to Set Aside as to damages but not liability.

This appeal follows.

"Interlocutory" Judgment

As a preliminary matter, we consider a matter regarding the default judgment that Defendant has raised. It appears from the October 22, 2002 Default Judgment in the record on appeal that it was originally titled "INTERLOCUTORY JUDGMENT," but Judge Roldan crossed out and initialed "INTERLOCUTORY." However, Judge Roldan did not cross out "Interlocutory" before the word "Judgment" in the body of the judgment. In the current appeal, Defendant has suggested in correspondence to this court that, as a result of the characterization of the judgment as "Interlocutory" in the body of the judgment, we do not have a final judgment for purposes of appeal. After receiving Defendant's correspondence and a response from Plaintiff, this court accepted the appeal and asked the parties to address the issue in their briefs. Plaintiff has not briefed the finality issue. Defendant discusses the interlocutory nature of the default judgment with regard to the timing of her March 17, 2004 Motion to Set Aside, but she does not argue that it deprives this court of jurisdiction for lack of a final judgment.

We must look at the judgment as a whole. The default judgment substantively disposed of all parties and all claims. See St. Joseph Ambulatory Surgery Ctr., L.P. v. Smith, 140 S.W.3d 619, 620 (Mo.App. W.D.2004) (quoting Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997), in explaining that "A judgment is final, and thus appealable, if it `resolves all issues in a case, leaving nothing for future determination.'"). There is nothing "interlocutory" about the default judgment in this case. To hold otherwise would exalt form over substance.⁴ By crossing out and initialing "Interlocutory" in the heading of the default judgment, Judge Roldan clearly intended it to be final; it appears a mere oversight that he did not also cross out "Interlocutory" in the body of the judgment.

Moreover, the allegedly "Interlocutory" default judgment is not the "judgment" Plaintiff has appealed from. The judgment appealed from here is the August 5, 2004 "JUDGMENT/ORDER" setting aside the default judgment (interlocutory or not) as to damages, and there is no issue regarding the finality of that judgment. Defendant's March 17, 2004 Motion to Set Aside, which the trial court granted with regard to damages, was filed after the default judgment became final. Thus, "it is treated as an independent proceeding, separate and apart from the underlying judgment itself. In such a case, the trial court's order granting or denying the motion to set aside default judgment is itself (assuming that all other prerequisites of appellate jurisdiction are met) a separately appealable judgment." Popular Leasing USA, Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875, 878 (Mo.App. E.D.2001) (citations omitted).

Timeliness of Motion to Set Aside Default Judgment

Before we can reach the merits of the trial court's judgment setting aside the default judgment, we must consider whether the trial court could properly consider Defendant's March 17, 2004 motion to set aside as timely under the requirements of Rule 74.05(d). Plaintiff argues in her first point on appeal that the trial court erred in granting Defendant's March 17, 2004 Motion to Set Aside the Default Judgment, because the motion was not filed in reasonable time or within a year of the default judgment. We agree.

Rule 74.05(d), which is the focus of this appeal, provides as follows:

When Set Aside. Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside. The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the...