Miller v. Rothschild Management Group

• Citation: 184 S.W.3d 575
• Decision Date: 28 June 2005
• Docket Number: No. ED 84886.,ED 84886.
• Parties: Margaret MILLER, Appellant, v. ROTHSCHILD MANAGEMENT GROUP, Respondent.
• Court: Court of Appeal of Missouri (US)

184 S.W.3d 575

Margaret MILLER, Appellant, v. ROTHSCHILD MANAGEMENT GROUP, Respondent.

No. ED 84886.

Missouri Court of Appeals, Eastern District, Division Three.

June 28, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.

Case Transferred to Supreme Court August 30, 2005.

Case Retransferred to Court of Appeals January 31, 2006.

Original Opinion Reinstated February 27, 2006.

James G. Enright, St. Louis, MO, for respondent.

James P. Leonard, St. Louis, MO, for appellant.

OPINION

GLENN A. NORTON, Judge.

Margaret Miller appeals the trial court's order setting aside a $3,000,000 default judgment against Rothschild Management Group on her personal injury claims. She argues that the order is void for lack of jurisdiction. We agree and dismiss the appeal.

I. BACKGROUND

Miller filed a petition against RMG, claiming that she sustained personal injuries after falling on property allegedly owned by RMG. RMG was properly served with Miller's petition, but never responded. After an evidentiary hearing on damages, the court entered a default judgment in Miller's favor for $3,000,000. Within thirty days, RMG filed a motion to set aside the default judgment under Rule 74.05(d) (2004).¹ Therein, it claimed that it had a meritorious defense because it did not own the property on which Miller was injured and that it did not intentionally or recklessly act to impede judicial process. RMG alleged that the employee who had accepted service was told by the insurance carrier to which the employee forwarded the petition that there was no coverage for Miller's claim and that the file was silent as to what else, if anything, had been done with the petition. RMG indicated that the employee had been terminated. In the supporting affidavit attached to that motion, RMG's chief executive officer stated that RMG did not own the property on which Miller was injured and indicated that she was waiting to hear back from the former employee who had mishandled the petition.

Then RMG filed an amended motion to set aside the default judgment under Rule 74.05(d).² This amended motion was filed more than thirty days after the default judgment was entered, but within ninety days of the filing of the first motion to set aside. Therein, RMG restated the grounds for relief set forth in its first motion: that it had a meritorious defense because it did not own the property and that there was good cause to set aside the default judgment because its failure to respond to Miller's petition was the result of conduct not intentionally or recklessly designed to impede judicial process. In the amended motion, RMG alleged—and the second affidavit of the CEO stated—that the former employee forwarded the petition to an insurance agent who thereafter failed to forward it to the appropriate insurance company. RMG also asserted that the former employee did not recall any conversation with the insurance agent as to why he had not forwarded the petition to the appropriate insurer. The factual allegations in the amended motion and the CEO's assertions in her second affidavit regarding the meritorious defense were identical to those in the first motion.

The trial court held an evidentiary hearing and then—over ninety days after the first motion to set aside was filed—ordered the default judgment set aside under Rule 74.05(d). The court concluded that RMG's conduct constituted an "excusable series of unintended mistakes" and that RMG had a meritorious defense. Miller appeals.

II. DISCUSSION

Miller argues that the trial court did not have jurisdiction to enter its order setting the default judgment aside over ninety days after RMG's first motion to set the judgment aside was filed. We agree.

Because the first motion to set aside was filed within thirty days of the entry of the default judgment—that is, before the default judgment became final—it is treated as an authorized after-trial motion, which extended the trial court's control over the default judgment for ninety days from the date the motion was filed. See Popular Leasing USA, Inc. v. Universal Art Corporation of New York, 57 S.W.3d 875, 877 (Mo.App. E.D.2001); Klaus v. Shelby, 4 S.W.3d 635, 637-38 (Mo.App. E.D.1999). Because that motion was not ruled on within the ninety-day period, it was deemed overruled on the ninetieth day. See Rule 81.05(a)(2)(A). Thereafter, the court did not have jurisdiction to enter its order setting the default judgment aside. See Budd v. Budd, 157 S.W.3d 229, 230 (Mo.App. E.D.2004).

RMG claims that the first motion was abandoned when it filed the amended motion and that the amended motion should be treated as an independent...