Smiley v. Cardin, 13084

• Decision Date: 20 July 1983
• Docket Number: No. 13084,13084
• Citation: 655 S.W.2d 114
• Parties: Bobie SMILEY, Plaintiff-Respondent, v. Floyd C. CARDIN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 114

655 S.W.2d 114

Bobie SMILEY, Plaintiff-Respondent, v.Floyd C. CARDIN, Defendant-Appellant.

No. 13084.

Missouri Court of Appeals,

Southern District,

Division One.

July 20, 1983.

Loren R. Honecker, Sherwood, Honecker & Bender, Springfield, for plaintiff-respondent.

Joseph A. Bohrer, Yates, Mauck, Robinett & Bohrer, Inc., Springfield, for defendant-appellant.

TITUS, Judge.

Plaintiff on October 18, 1982, filed her petition seeking $600 actual and $50,000 punitive damages against defendant because the latter had "intentionally, willfully, unlawfully, maliciously, and without just cause or excuse" converted a washing machine, refrigerator and two stoves belonging to plaintiff to his own use.Albeit defendant was personally served, he did not plead or otherwise appear in the cause.On November 30, 1982, the court entered its interlocutory judgment of default and on the following date, after hearing plaintiff's testimony, entered a judgment for plaintiff awarding her $600 actual and $10,000 punitive damages.Defendant's motion to set aside the default judgment was filed December 29, 1982.After hearing defendant's testimony on December 30, 1982, the court overruled his motion and this appeal ensued.

Plaintiff's petition and evidence showed that in September 1982she moved from a Springfield apartment rented from defendant and discovered that defendant had taken the above named appliances.When plaintiff asked defendant to return her property, he"just kind of snickered" and said he would do so when paid some back rent he claimed she owed.Thereafter plaintiff's lawyer wrote defendant demanding the return of the appliances but obtained no response.Plaintiff then, for the second time, asked for the appliances but received from defendant another "snicker" and assurances the items would be returned when plaintiff paid her debt.

In addition to the foregoing, plaintiff related how she was caused to incur expenses to compensate for the absence of the appliances and how her credit rating was adversely affected because the additional expenses precluded her from maintaining mortgage payments on the taken appliances.

While testifying on his motion, defendant acknowledged being personally served in the case on October 27, 1982.He said he intended taking the served papers to his lawyer but "just absolutely forgot it."Defendant said the reason he forgot was that he was then involved in a divorce and was "closing out a couple of stores" in addition to operating five other out-of-town businesses which required his absence from Springfield four days a week.Defendant contended he had obtained a $390 judgment for apartment rent against plaintiff and it was his personal belief he had a right to keep the appliances on the same property until the judgment was satisfied.On cross-examination defendant acknowledged that in his 20 years experience of renting property, he had secured judgments against delinquent renters and was aware "that it's the Sheriff who does executions."Defendant said he knew the law "provides for certain exemptions for certain property with respect to executions" and acknowledged his domestic relations case "had been on file long before"he was served in the present suit.He also admitted he had conferred with his lawyer in the divorce case on several occasions after being served in the instant action but did not tell counsel of the lawsuit brought by plaintiff because "I just forgot it."Defendant admitted it was careless of him to forget about the lawsuit when he did not forget about the divorce case or tending to his rental properties or businesses located in various cities.Defendant recalled a telephone conversation and explanation from plaintiff's counsel that he was legally bound to return to plaintiff the property he had come by through self-help.When asked if in the course thereof he had told the lawyer to "Go fuck yourself,"defendant replied, "I sure do."

In view of defendant's lone point relied on, infra, we are uncertain if indeed his appeal is from denial of his motion to set aside the default judgment.If so, the principles applying thereto are well enumerated in Davis v. Moore, 610 S.W.2d 665, 669[3-4](Mo.App.1980).Under such principles we may not interfere with the ruling of the court nisi unless the record discloses that the trial court abused its discretion and rendered a judgment which was erroneous.To be entitled to a reversal of the trial court's refusal to set aside its judgment against a defaulting defendant, the defaulter must show as basic prerequisites that he had a meritorious defense and that good reason or excuse existed which could explain away the default.Schoenhoff v. Owens, 564 S.W.2d 273, 275(Mo.App.1978).Defendant's carelessly forgetting he had been sued does not constitute good reason or a valid excuse for the default.Likewise, his claim of a right to set off the alleged delinquent rent judgment does not amount to a showing of a meritorious defense to plaintiff's claims.Such being the case, we may not hold that the trial court abused its discretion in refusing to set aside the default judgment, or rendered a judgment which was erroneous.

Turning to defendant's point relied on he is, in essence, claiming the trial court erred by awarding plaintiff $10,000 in punitive damages because plaintiff's evidence (1) did not show damages to plaintiff upon which such a sum could be based, (2) failed to establish that defendant's acts were characterized by actual malice or that defendant willfully and wantonly attempted to injure plaintiff and (3) was as consistent with a good faith mistake by defendant as with actual malice.

From reading the argument portion of defendant's brief anent (1), supra, we gather he is contending that plaintiff's proof justified nothing more than an award of nominal actual damages and this would not suffice to support an award for punitive damages.In part, the argument is predicated upon the fact that there was no explicit evidence showing the...