Phillips v. Bradshaw

• Citation: 859 S.W.2d 232
• Decision Date: 13 August 1993
• Docket Number: No. 18562,18562
• Parties: Liddie PHILLIPS, Plaintiff-Respondent, v. Robert L. BRADSHAW d/b/a DISTINCTIVE EXTERIORS COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 232

859 S.W.2d 232

Liddie PHILLIPS, Plaintiff-Respondent, v. Robert L. BRADSHAW d/b/a DISTINCTIVE EXTERIORS COMPANY,

Defendant-Appellant.

No. 18562.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 13, 1993.

Donald Rhodes, Michael Moroni, Bloomfield, for defendant-appellant.

James M. McClellan, Dempster, Barkett, McClellan & Edwards, Sikeston, for plaintiff-respondent.

CROW, Presiding Judge.

Defendant, Robert L. Bradshaw, doing business as Distinctive Exteriors Company, appeals from an order denying his motion to set aside a default judgment against him. The judgment awards Plaintiff, Liddie Phillips, $500 actual damages and $12,500 punitive damages, and strikes a deed of trust from the public records of Scott County.

Defendant presents three points relied on; however, we address only the first two because the third violates Rule 84.04(d), ¹ which reads:

The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous....

Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule.

The purpose of the rule and the necessity of obeying it are explained in the leading case of Thummel v. King, 570 S.W.2d 679, 684-88 (Mo. banc 1978).

Defendant's third point reads:

The trial court committed reversible error in failing to relieve Appellant of the default judgment entered herein as there appear such irregularities on the face of the record as to entitle Appellant to have the default judgment set aside or vacated.

The point yields no clue as to what the "irregularities on the face of the record" are, and furnishes no hint as to wherein and why such irregularities require vacation of the default judgment. The point therefore presents nothing for appellate review. Cain v. Buehner and Buehner, 839 S.W.2d 695, 697 (Mo.App.S.D.1992). Draper v. Aronowitz, 695 S.W.2d 923, 923-24 (Mo.App.E.D.1985); Tripp v. Harryman, 613 S.W.2d 943, 950 (Mo.App.S.D.1981).

By his first point, Defendant maintains the trial court erred in refusing to set aside the default judgment in that Plaintiff's petition failed to state a cause of action.

A default judgment should not be entered for a party if his petition fails to state a cause of action. Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907, 910 (1948). A pleading which states no cause of action confers no subject matter jurisdiction on a court and is subject to dismissal. Sisco v. James, 820 S.W.2d 348, 351 (Mo.App.S.D.1991); Wright v. Mullen, 659 S.W.2d 261, 263 (Mo.App.W.D.1983). The only power a court without subject matter jurisdiction possesses is the power to dismiss the action. Rule 55.27(g)(3); Sisco, 820 S.W.2d at 351; Wells v. Noldon, 679 S.W.2d 889, 891 (Mo.App.E.D.1984); Gaslight Real Estate Corp. v. Labor and Industrial Relations Commission, 604 S.W.2d 818, 820 (Mo.App.W.D.1980). Inasmuch as failure to state a cause of action is jurisdictional, the issue may properly be raised anytime during the proceedings, even for the first time on appeal from a default judgment. Harding v. State Farm Mutual Automobile Ins. Co., 448 S.W.2d 5, 7-8 (Mo. banc 1969); Eilers v. Kodner Development Corp., 513 S.W.2d 663, 665 (Mo.App.1974). Defendant's first point thus requires us to determine whether Plaintiff's petition pled a cause of action.

The record on appeal contains a copy of the three-count petition Plaintiff filed in the trial court. It is obvious that one or more pages were missing from the petition at time of filing. The first page begins with Count I and sets forth paragraph 1 and part of paragraph 2 of that count. The next page begins with two lines of allegations, followed by the prayer of Count I. Immediately thereunder is Count II, which begins:

1. That the Plaintiff realleges, restates and incorporates by reference the allegations contained in paragraphs one through seven of Count I of the Petition.

It is thus evident that part of paragraph 2 of Count I, all of paragraphs 3 through 6 of Count I, and part of paragraph 7 of Count I are missing from the petition Plaintiff filed in the trial court.

After incorporating the allegations of Count I, the remainder of Count II appears (intact) on the second and third pages. Count III appears (intact) on the third page. Paragraph 1 of Count III realleges and incorporates by reference each and every allegation in Count II. The result is that four full paragraphs and parts of two others are missing from all three counts.

In determining whether Plaintiff's petition, despite the missing allegations, stated a cause of action, we begin by noting that Defendant failed to challenge the petition until after the default judgment was entered. Where a petition is not attacked until after judgment, the intendments are taken most strongly in favor of the pleader. Therrien v. Mercantile-Commerce Bank & Trust Co., 360 Mo. 149, 227 S.W.2d 708, 712 (banc 1950). A petition will be found sufficient after judgment if, after allowing those reasonable inferences and matters necessarily implied from the facts stated, the allegations are sufficient to advise the defendant with reasonable certainty as to the cause of action he is called upon to meet and bar another action for the same subject matter. Sumpter v. J.E. Sieben Construction Co., 492 S.W.2d 150, 152-53 (Mo.App.1973).

The following averments appear in Plaintiff's petition. For convenience, we have numbered them, and have slightly paraphrased some.

1. At all pertinent times, Plaintiff was the owner of a house and lot at 612 North Street, Sikeston.

2. On or about July 6, 1987, Plaintiff and Defendant discussed a contract for siding to be placed on the house.

3. Plaintiff is not bound by any such contract in that she rescinded said contract orally and in writing within a reasonable time.

4. The rescission was supported by consideration in the form of the mutual release of the parties' respective....

5. Defendant has been unjustly enriched by his failure to return Plaintiff's $500 deposit.

6. Defendant, "maliciously compriving [sic]" to prevent Plaintiff from selling or mortgaging the property, did falsely, maliciously and without probable cause, publicly

record a deed of trust in the office of the Recorder of Scott County. Attached to Plaintiff's petition and incorporated by reference is a copy of a deed of trust securing a note made by Plaintiff to Defendant for $12,682. The deed of trust is dated July 6, 1987, and describes a parcel of real estate by lot and block, "also known as 612 North St." The deed of trust shows it was signed by Plaintiff on July 6, 1987, and recorded October 2, 1987.

7. Defendant's acts and conduct were willful, wanton and malicious, entitling Plaintiff to punitive damages.

The prayer of Count I seeks an order setting aside the deed of trust and striking it from the Recorder's records, together with judgment "against the Plaintiff [sic]" in the amount of $500 plus interest "from the time when said deposit was due to Plaintiff."

The prayer of Count II seeks judgment for fair and reasonable damages "in excess of the jurisdiction of this Court."

The prayer of Count III seeks punitive damages.

Plaintiff argues her petition pleads she made a contract with Defendant for installation of siding on her house at 612 North Street, she deposited $500 with him per the contract, and she thereafter rescinded the contract but Defendant failed to return the $500.

We agree that Plaintiff's petition, taking its intendments most strongly in her favor and according it all reasonable inferences and conclusions necessarily implied from its allegations, is sufficient to state a cause of action for $500. However, the default judgment granted more relief than that. Consequently, we must determine whether the petition pleads facts warranting the additional relief.

Giving the petition every inference to which it is entitled after judgment, we hold its allegations are sufficient to support the relief of nullifying the deed of trust and striking it from the Recorder's records. The allegations of the petition, combined with the provisions of the deed of trust, support a reasonable inference that the note and deed of trust constituted consideration from Plaintiff to Defendant per the contract.

Rescission of a contract extinguishes it as effectually as if it had never been made, and restores the parties to the positions they occupied before the contract was executed. Alexander v. Link's Landing, Inc., 814 S.W.2d 614, 620 (Mo.App.S.D.1991); Henges Co., Inc. v. May, 223 S.W.2d 110, 113 (Mo.App.1949). In other words, the parties are revested with their original rights regarding the subject matter, and they are no longer bound by the contract in regard to their subsequent actions. Alexander, 814 S.W.2d at 620; Henges Co., Inc., 223 S.W.2d at 113.

Here, the pleaded rescission of the contract entitled Plaintiff to the relief granted regarding the deed of trust.

We reach a different result as to the $12,500 punitive damages. While the face of the deed of trust shows it was recorded October 2, 1987 (some three months after the contract was made), the petition does not allege Defendant recorded the deed of trust after Plaintiff rescinded the contract. If Defendant recorded the deed of trust before Plaintiff rescinded the contract, we fail to see how that would support an award of punitive damages, and Plaintiff offers no explanation.

Expressed another way, Plaintiff's right to relief upon rescission of the contract (return of her $500 deposit and cancellation of the deed of trust) did not automatically entitle her to punitive damages merely because Defendant recorded the deed of trust. Plaintiff would have a claim for punitive damages only if Defendant's recording of the deed of trust constituted an independent tort and his conduct was malicious.

The test to be applied...