Moore v. Crocker

• Decision Date: 03 May 2022
• Docket Number: ED 110006
• Citation: 643 S.W.3d 926
• Parties: Tabatha MOORE, Respondent, v. Dennis CROCKER and One Stop Muffler, Appellants.
• Court: Missouri Court of Appeals

643 S.W.3d 926

Tabatha MOORE, Respondent,

v.Dennis CROCKER and One Stop Muffler, Appellants.

No. ED 110006

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

FILED: May 3, 2022

For Appellants: David M. Duree, 312 S. Lincoln Ave., O'Fallon, IL 62269.

For Respondent: Jerrod D. Mahurin, P.O. Box 1551, Desloge, MO 63601, Lawrence G. Gillespie, 120 S. Central Ave., Ste. 650, Clayton, MO 63105.

MICHAEL E. GARDNER, Presiding Judge

Dennis Crocker and One Stop Muffler ("Appellants") appeal from a default judgment entered against them and in favor of Tabatha Moore. We must dismiss the appeal because Appellants’ claims are not cognizable by direct appeal since the issues they raise do not implicate the circuit court's subject matter jurisdiction.

Factual and Procedural Background

In March 2021, Moore filed suit seeking damages from Appellants for breach of contract and for conversion or replevin. The petition alleged that Moore contracted with Appellants to perform work on her vehicle and that Appellants (1) failed to perform as agreed, (2) caused damage to the vehicle, and (3) refused to repair or return the vehicle. After Appellants did not file answers or responsive pleadings, Moore filed a motion for default judgment and a notice of hearing. The circuit court heard the matter on July 12, 2021. Appellants did not appear at the hearing.

On August 5, 2021, counsel for Appellants entered his appearance and filed a "Motion to Set Aside Default and/or to Set Aside any Default Judgment" under Rule 74.05(d).¹ Appellants, however, did not file a notice of hearing with regard to their motion, and the circuit court never ruled on it. Instead, on October 6, 2021, the circuit court entered a default judgment in favor of Moore for $35,900 in damages plus $1,500 in attorney fees. In its judgment, the circuit court found that Appellants were duly served but failed to appear at the July 12, 2021 hearing and were in default. Appellants now appeal directly from the default judgment.

Discussion

Appellants raise six points on appeal. They contend the circuit court erred in entering the default judgment because: (1) Moore's petition failed to state a claim upon which relief could be granted, there was insufficient evidence to prove the claims, and her testimony constituted perjury; (2) the damages award was not supported by the evidence; (3) there was no basis on which to award attorney fees; (4) service of process was improper; and (5) the trial judge should have recused. In their sixth point, Appellants assert the default judgment is directly appealable because their claims challenge the sufficiency of the petition and the circuit court's personal jurisdiction over them. In addition to responding to the merits of these claims, Moore has filed a motion to dismiss the appeal, asserting that Appellants cannot appeal directly from the circuit court's default judgment. For the following reasons, we grant the motion to dismiss the appeal.

Rule 74.05 governs default judgments and relief therefrom. It provides that a party against whom a default judgment has been entered may file a motion to set aside that default judgment "within a reasonable time not to exceed one year after the entry of the default judgment." Rule 74.05(d). A motion filed under Rule 74.05(d) is "an independent action," and a court's ruling on a motion to set aside is eligible for immediate appellate review if it meets the requirements of a final judgment under Rule 74.01(a). Robertson v. Rosner , 641 S.W.3d 436, 439-40 (Mo. App. W.D. 2022). The "typical path" for appellate review of a default judgment is "filing a motion to set aside the default judgment under Rule 74.05(d), and then appealing from a judgment denying that motion." Id. at 440.

Appellants did not follow that procedure in this case. Instead, they filed a Rule 74.05(d) motion to set aside any default judgment before the circuit court actually entered the default judgment. As noted, Appellants never filed a notice of hearing with regard to their motion. And once the circuit court entered the default judgment, Appellants directly appealed that judgment instead of requesting the circuit court to rule on their Rule 74.05(d) motion.

Appellate courts have authority to consider a direct appeal from a default judgment only in the limited circumstance where an appellant challenges the circuit court's subject matter jurisdiction. Id. ; AMG Franchises, Inc. v. Crack Team USA, Inc. , 289 S.W.3d 655, 657 (Mo. App. E.D. 2009). Here, Appellants contend their direct appeal of the default judgment is proper because they challenge the sufficiency of the petition and the circuit court's...