Moore v. Dahlberg, WD

• Decision Date: 02 July 1991
• Docket Number: No. WD,WD
• Citation: Moore v. Dahlberg, 810 S.W.2d 730 (Mo. App. 1991)
• Parties: R.L. MOORE and Sharon Moore, Respondents, v. Judy Kay DAHLBERG, Appellant. 43749.
• Court: Missouri Court of Appeals

Page 730

810 S.W.2d 730

R.L. MOORE and Sharon Moore, Respondents, v. Judy Kay DAHLBERG, Appellant.

No. WD 43749.

Missouri Court of Appeals Western District.

July 2, 1991.

Edward L. Campbell, Campbell & Benson, Kirksville, for appellant.

Jack Peace, Stockard, Andereck, Hauck, Sharp & Evans, Trenton, for respondents.

Before LOWENSTEIN, P.J., and TURNAGE and FENNER, JJ.

TURNAGE, Judge.

R.L. Moore and his wife, Sharon, filed suit against Judy Kay Dahlberg for breach of contract. On failure of Dahlberg to file an answer, the Moores took a default judgment. Dahlberg thereafter filed a motion pursuant to Rule 74.05(c) to set aside the default. The court denied the motion and Dahlberg contends that she made the requisite showing of good cause and a meritorious defense. Reversed and remanded.

In January, 1983, the Moores entered into a contract for deed with Judy Dahlberg and her husband, George, for the sale of real estate located in Grundy County. The purchase price was $31,500.00 and after a down payment the balance of $27,641.00 was to be paid at the rate of $350.00 per month until February, 1988, when the entire balance was due. The contract contained a clause that if the Dahlbergs failed to make any payment for a period of 20 days beyond the due date the Moores at their option could consider the contract null and void, re-enter the property, and keep the payments which had been made by the Dahlbergs as liquidated damages. The contract stated that actual damages were difficult, if not impossible, to ascertain. The contract also gave the Moores the option to retain the payments made by the Dahlbergs as fair and reasonable rental for the time the Dahlbergs had possession.

The contract further provided that the Moores would deposit a warranty deed in escrow to be delivered to the Dahlbergs when payment had been completed. The contract also provided the Dahlbergs would execute a quit-claim deed to be held in escrow and delivered to the Moores if the Dahlbergs defaulted in complying with the contract.

In February, 1990, the Moores filed suit against Judy Dahlberg and alleged the execution of the contract and attached a copy thereto. The petition alleged the Dahlbergs had breached the contract by failing to make payments when due and that there was $26,567.00 due under the contract and prayed judgment in that amount. No allegation was made as to the amount paid nor was there any allegation concerning the deeds placed in escrow.

Judy Dahlberg failed to file an answer and on March 26, 1990, the court entered a default judgment against her in the amount of $26,567.00 plus interest. On April 24, 1990, the Moores filed their application for execution on the judgment and on April 26 the sheriff of Grundy County gave notice that he had levied on the real estate described in the contract between the Moores and the Dahlbergs under a general execution to satisfy the sum of $27,552.00. ¹

On May 21, 1990, Judy Dahlberg filed a motion to set aside the default. The motion alleged that Dahlberg had a meritorious defense under the liquidated damage provision of the contract and good cause existed to set aside the judgment because Dahlberg suffered from a nervous condition that made it difficult for her to understand and act on legal matters. Suggestions in support of the motion stated the defense was that the contract gave the Moores the right to retain payments made as liquidated damages and this was their exclusive remedy.

The court held two hearings on the motion to set aside and received a number of affidavits in support of the motion but did not hear any live testimony. A psychiatrist filed an affidavit in which he stated that he had examined Judy Dahlberg and that it was his...