Moore v. Crocker

• Court: Missouri Court of Appeals
• Writing for the Court: John P. Torbitzky, J.
• Citation: Moore v. Crocker, 674 S.W.3d 146 (Mo. App. 2023)
• Docket Number: ED 111163
• Decision Date: 27 June 2023
• Parties: Tabatha MOORE, Respondent, v. Dennis CROCKER and One Stop Muffler, Appellants.

674 S.W.3d 146

Tabatha MOORE, Respondent,

v.Dennis CROCKER and One Stop Muffler, Appellants.

No. ED 111163

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: June 27, 2023

Rehearing and/or Transfer Denied July 31, 2023

Application for Transfer to Supreme Court Denied September 26, 2023

FOR APPELLANTS: David M. Duree, 312 South Lincoln Avenue, O'Fallon, IL 62269.

FOR RESPONDENT: Lawrence G. Gillespie, 120 South Central Ave., Suite 650, Clayton, MO 63105, Jerrod D. Mahurin, PO Box 1551, Desloge, MO 63601.

John P. Torbitzky, J.

Introduction

Dennis Crocker and One Stop Muffler ("Appellants") appeal from the circuit court's order denying Appellants’ motions to set aside the default judgment entered against them and in favor of Tabatha Moore. Because Appellants waived the issues raised on appeal, we affirm.

Factual & Procedural Background

The procedural posture of this case is less than ideal. In March of 2021, Tabatha Moore sued Appellants for breach of contract and either conversion or replevin. Moore's lawsuit alleged that she brought her car into Appellants’ business for repairs and, rather than fixing it, Appellants caused additional damage, rendered the car inoperable, and refused to return it. On May 8, 2021, a special process server delivered two summonses to Crocker; one was issued to Crocker individually, and the other issued to One Stop Muffler. Neither Appellant filed an answer or responsive pleading. Accordingly, Moore filed a motion for default judgment and a notice of hearing. Appellants did not appear when the circuit court heard the matter on July 12, 2021.

Following the hearing, but before the circuit court entered a default judgment, counsel entered an appearance on behalf of Appellants and filed a "Motion to Set Aside Default and/or to Set Aside any Default Judgment" under Rule 74.05(d).¹ In the motion, Appellants alleged that they "inadvertently failed to contact an attorney to enter an appearance in this case because the Summons did not specify a specific appearance date[.]" Appellants also claimed that they had a "meritorious defense" and requested that the circuit court "permit them to defend [the] case on the merits." Appellants did not contest the validity of service in this motion.

The next day, Appellants filed a document titled "Supplement to Defendant's Motion to Set Aside Default and/or Any Default Judgment." In the Supplement, Appellants argued that Crocker had not been personally served. Appellants acknowledged that Crocker had been given two summonses, one for Crocker and for One Stop Muffler. Nevertheless, the Supplement asserted that Crocker had not been personally served because the affidavit of service for the summons directed to Crocker stated it had been delivered to "One Stop Muffler R/A Dennis Crocker," rather than to Crocker individually.

Appellants did not file a notice of hearing with the motion or the supplement, and the record shows no other efforts to bring the motion before the circuit court. For more than two months, Appellants took no other action in the suit. Without ruling on the motion, the circuit court entered a default judgment against Appellants on October 6, 2021, awarding Moore $35,900 in damages and $1,500 for costs and attorney fees. Appellants then appealed directly from the default judgment. This Court dismissed the appeal, holding that a direct appeal from a default judgment, as opposed to the denial of a motion to set aside, is generally impermissible. Moore v. Crocker , 643 S.W.3d 926, 929 (Mo. App. E.D. 2022).

After this Court issued its opinion, but before it issued its mandate, Appellants filed a "Motion to Vacate the Default Judgment of October 6, 2021 pursuant to Supreme Court Rule 74.06(b)" in the circuit court. Appellants claimed that Moore was a co-owner of the vehicle and therefore lacked standing to sue without joinder of the other owner, that One Stop Muffler was a "non-entity" that was not subject to suit, and that Crocker was not served in his individual capacity before the default hearing. The Court held a hearing on this motion and the motion to set aside filed before the default judgment.

After the hearing, Appellants filed a "Motion to Vacate the Default Judgment of October 6, 2021 pursuant to Rule 74.05(d)." This motion argued for the first time that the summonses served on Appellants were ineffective because the use of a private process server had not been approved by the circuit court. Appellants also argued that Moore did not sustain any damages because her vehicle was repossessed four days after the hearing on the default judgment. Appellant attached an affidavit from Crocker to support the final motion.

The circuit court denied Appellants’ motions to vacate the default judgment and concluded that Appellants failed to prove entitlement to relief under Rule 74.05(d) and Rule 74.06(b). This appeal follows.

Standard of Review

"When a party argues a default judgment should be vacated because it was void on jurisdictional grounds, the issue is a question of law that we review independently on appeal." Hinton v. Proctor & Schwartz, Inc. , 99 S.W.3d 454, 461 (Mo. App. E.D. 2003).

Discussion

Appellants raise four points on appeal. Appellants’ first three points argue that the circuit court erred in denying the motions to vacate the default judgment because the court lacked personal jurisdiction over Appellants at the time of the hearing on July 12, 2021. Specifically, Appellants argue that the circuit court lacked personal jurisdiction because the summonses and petition were served by an unappointed private process server, Crocker was not served in his individual capacity, and counsel did not enter an appearance until after the hearing. Finally, in their fourth point, Appellants argue that the circuit court erred in denying the motions to vacate the default judgment because Moore lacked standing to sue in replevin without joinder of an alleged joint owner of the vehicle. We find that Appellants waived the issues raised on appeal.

Personal Jurisdiction

Personal jurisdiction is "the power of a court to require a person to respond to a legal proceeding that may affect the person's rights or interests." J.C.W. ex rel. Webb v. Wyciskalla , 275 S.W.3d 249, 253 (Mo. banc 2009). A "judgment rendered by a court without personal jurisdiction over the defendant is void and may be attacked collaterally." Crouch v. Crouch , 641 S.W.2d 86, 90 (Mo. banc 1982). "Proper service of process is a prerequisite to personal jurisdiction." Killingham v. Killingham , 530 S.W.3d 633, 635 (Mo. App. E.D. 2017).

Because personal jurisdiction is a "personal privilege," it is waived if not raised at the first opportunity. State ex rel. Lambert v. Flynn , 348 Mo. 525, 154 S.W.2d 52, 57 (Mo. banc 1941) ; Interest of A.R.B. , 586 S.W.3d 846, 859 (Mo. App. W.D. 2019). If the defendant seeks affirmative relief prior to raising the issue, any challenge to personal jurisdiction, sufficiency of process, or sufficiency of service of process is waived. Clark v. Clark , 926 S.W.2d 123, 126 (Mo. App. W.D. 1996). In other words, by taking action inconsistent with a claim of lack of personal jurisdiction, a party is deemed to have submitted to the court's authority. A.R.B. , 586 S.W.3d at 859.

This basic principle applies equally to motions to set aside default judgments under Rules 74.05 and 74.06. This Court's opinion in Hinton v. Proctor & Schwartz is directly on point. See 99 S.W.3d at 461. After the circuit court entered a default judgment in Hinton , the defendants filed a motion to vacate under Rule 74.05(d). Id. at 457. The defendants did not contest personal jurisdiction in that motion. Id. at 461. Later, the defendants filed a motion for relief from the default judgment pursuant to Rule 74.06(b)(4) arguing that the judgment was void because the court lacked personal jurisdiction. Id. at 460. On appeal, this Court concluded that the failure to include claims regarding personal jurisdiction in the first filed motion waived any claims that the judgment was void for lacking personal jurisdiction. Id. at 461. Rather than raising issues of personal jurisdiction, the defendants had first "sought affirmative relief in the form of setting aside the default judgment because of good cause shown and the existence of meritorious defenses." Id. Having done so, the defendants waived any claim of lack of personal jurisdiction. Id.

Similarly, Appellants here waived any objection to the court's personal jurisdiction when they filed their initial "Motion to Set Aside Default and/or to Set Aside any Default Judgment" and argued only that the motion should be set aside because Appellants had good cause for not answering and a meritorious defense. Not only did Appellants’ initial motion omit any objection to the court's exercise of personal jurisdiction or the sufficiency of service, but it also acknowledged that Appellants had received the summonses and argued the circuit court should "permit them to defend [the] case on the merits."

We are mindful that the day after filing their initial motion to vacate the default judgment, Appellants filed a document purporting to supplement that motion to add claims that Appellant Crocker had not received a copy of the summons in his "individual capacity." But the law requires that such a claim be raised at the earliest opportunity or it is waived. A.R.B. , 586 S.W.3d at 859 ; Hinton , 99 S.W.3d at 461 ; see also McGee ex rel. McGee v. City of Pine Lawn , 405 S.W.3d 582, 587 (Mo. App. E.D. 2013) ("Because the [defendant's] motion to set aside failed to challenge the [circuit] court's personal jurisdiction over the [defendant], it has waived its right to challenge the default judgment based on lack of personal jurisdiction"); Rule 55.27(g)(1) (stating that claims related to personal jurisdiction and service of process are waived if not included in an answer or any responsive pleading). As a result, we conclude that Appellants waived any challenge to...