Thorpe v. Meier, 15273

• Decision Date: 25 July 1988
• Docket Number: No. 15273,15273
• Citation: 755 S.W.2d 683
• Parties: Casper A. THORPE and Rose Thorpe, Respondents, v. Richard B. MEIER and Cheryl Z. Clark, Appellants.
• Court: Missouri Court of Appeals

Page 683

755 S.W.2d 683

Casper A. THORPE and Rose Thorpe, Respondents, v.Richard B. MEIER and Cheryl Z. Clark, Appellants.

No. 15273.

Missouri Court of Appeals,

Southern District,

Division One.

July 25, 1988.

Brad D. Eidson, Houston, for appellants.

Ralph J. Haslag, Thomas, Birdsong, Clayton & Haslag, P.C., Rolla, for respondents.

CROW, Chief Judge.

Richard B. Meier and Cheryl Z. Clark("defendants") appeal from an order denying their amended motion under Rule 74.78¹ to set aside a $10,711.92 judgment against them and in favor of Casper A. Thorpe and Rose Thorpe("plaintiffs").We recite only the facts necessary to resolve the appeal.

On July 8, 1986, plaintiffs filed an unlawful detainer action under chapter 534, RSMo 1986, against defendants in an associate division of the Circuit Court of Phelps County.The cause was set for trial August 6, 1986; summonses were issued to, and served on, defendants.

On August 6, 1986, attorney Ralph J. Haslag, representing plaintiffs, and attorney Roger A. Carnahan, representing defendants, filed a written stipulation in the trial court, providing, in pertinent part:

"1) ... plaintiffs are entitled to possession of the real estate more particularly described in their petition and defendants shall vacate said premises no later than 11:59 p.m. on August 6, 1986.

2) All other matters shall be continued to be set at a later date."

The trial court's docket sheet bears the following entry dated August 6, 1986:

"Counsel for both sides file stipulation.Stipulation approved and order per Memo filed.Per stipulation, case reset for 11:00 AM on 9-26-86."

On August 14, 1986, a motion was filed in the trial court by attorney Carnahan seeking leave to withdraw as counsel for defendants; it was set for hearing August 26, 1986.The trial court's docket sheet bears the following entry dated August 26, 1986:

"Motion for Leave to Withdraw filed by Roger A. Carnahan is called and sustained.Roger A. Carnahan allowed to withdraw as attorney for defendants.Clerk is directed to notify defendants."

On September 26, 1986, plaintiffs appeared in the trial court with their attorney.Defendants failed to appear, either in person or by attorney.Evidence in support of the petition was presented by plaintiffs and heard by Honorable B.B. Turley, an associate circuit judge.Judge Turley's entry on the docket sheet that date states, in pertinent part:

"Counsel for plaintiffs advise that communication with office of Roger Carnahan indicates that defendants were notified in writing of trial setting by letter of 8-12-86."

Judge Turley found that plaintiffs were entitled to possession of the subject property and to damages in the aggregate amount of $10,711.92, pursuant to § 534.330, RSMo 1986.A formal judgment to that effect was entered October 2, 1986.

On March 23, 1987, with the assistance of the attorney now representing them in this appeal, defendants filed in the trial court an amended motion to set aside the judgment.The motion averred, among other things, that defendants did not recall being advised that the cause had been set for September 26, 1986, that the clerk of the trial court did not serve notice of the entry of the judgment on defendants as required by Rule 74.78, ² and that defendants did not discover the existence of the judgment until on or about December 15, 1986.The motion prayed the trial court to set aside the judgment and to schedule the cause for trial on the merits.

On April 21, 1987, Judge Turley conducted a hearing on defendants' motion.Defendant Meier testified he was aware, as of September 26, 1986, that attorney Carnahan no longer represented him.Meier explained that during a telephone conversation with Carnahan, Carnahan had stated he was going to withdraw.Asked whether he recalled anything else about that conversation, Meier responded, "He said that--that the unlawful detainer that they had entered into some sort of an agreement that I had to be out by August 6, and that it was indefinitely continued."Meier added that Carnahan had instructed him to "come by his office and pick up the remainder of the retainer I had paid him."Asked what he did as a result of the telephone conversation, Meier answered, "I started looking for another attorney and went by [Carnahan's] office and picked up the remainder of my check."

Meier testified he obtained another attorney on September 25, 1986, but did not inform the attorney that there was a trial date of September 26, as he(Meier) did not know about it.Meier insisted he never received any written notification concerning the judgment that had been rendered against him.

At the instance of plaintiffs, Judge Turley received in evidence an affidavit of attorney Carnahan.No hearsay objection was registered to the affidavit, and no error is assigned here regarding its admission.The affidavit said:

"Roger Andrew Carnahan ... states: He was the attorney for [defendants] in the [unlawful detainer] case on August 6, 1986, and that thereafter, he sent to the ... Defendants a letter dated August 12, 1986, a copy of which is attached to this Affidavit ... and incorporated by reference.He further states that enclosed in that Letter was a refund of retainer check, which check has been since cashed by Defendants."

Attached to Carnahan's affidavit was a copy of a letter dated August 12, 1986, addressed to defendants.It stated, in pertinent part:

"Enclosed are the following documents:

....

3.Copy of Motion for Leave to Withdraw filed in the rent and possession action filed against you by Mr. and Mrs. Thorpe.

4.Copy of a letter to Judge Turley, asking that he grant leave to withdraw.

....

The rent and possession action scheduled for hearing on August 6, 1986, a stipulation was entered whereby it was agreed Thorpes were entitled to possession of the property on August 6, 1986, and that you would vacate the same.This was done pursuant to your agreement with Thorpes you would be out on August 6th if they gave you a price for the kennels.The other issues in the case were continued for hearing on September 26, 1986, at 11:00 a.m.

You should obtain the services of an attorney to represent you in these matters.Please do this as soon as possible so he will have time to prepare.

Also enclosed is a statement for services rendered.This statement shows you are entitled to a credit on the initial retainer.Enclosed is my check for the refund.

You are welcome to review your file at any time and to have documents or copies of any of the items you or your attorney may desire.Please make an appointment to come by my office and pick these items up...."

Defendant Meier, during cross-examination, denied receiving the above letter.He reiterated he went to Carnahan's office and picked up the check from Carnahan's secretary.

John D. Beger, a Rolla attorney, testified that defendant Meier conferred with him about the unlawful detainer action "sometime in August,"1986.Beger recalled telling Meier that he(Beger) wanted to look at Carnahan's file.The next day, according to Beger, he obtained the file and found no indication in it of the trial date of September 26, 1986.In December, 1986, upon learning about the judgment, Beger called Carnahan and asked whether he had ever sent any notice to Meier of the trial date.Beger quoted Carnahan as saying he had, and that he had a copy of the letter.

Defendant Clark did not appear at the hearing on the motion to set aside the judgment.

At the conclusion of the hearing, Judge Turley found that defendants had actual knowledge of the September 26, 1986, hearing date.Judge Turley subsequently entered a formal order denying defendants' amended motion to set aside the judgment.Included in the order was a finding that defendants had failed to show good cause why such relief should be granted.This appeal followed.

Defendants' first point avers the trial court erred in entering the judgment of October 2, 1986, in that such judgment "exceeds the jurisdictional amount" of an associate circuit judge.Defendants rely on § 534.060, RSMo 1986, which provides:

"... unlawful detainers ... may be heard and determined by any associate circuit judge of the county in which they are committed....Such cases shall be heard and determined by associate circuit judges unless a circuit judge is transferred or assigned to hear such case or cases or unless the plaintiff pursuant to subsection 2 of section 478.250, RSMo, has designated the case as one to be heard under the practice and procedure applicable before circuit judges and the case is heard by a circuit judge.If the case is heard before an associate circuit judge who has not been specially assigned to hear the case on the record, to the extent practice and procedure are not provided in this chapter the practice and procedure provided in chapter 517, RSMo, shall apply...."

Defendants direct our attention to § 517.010.1, RSMo 1986, which states that the provisions of chapter 517, RSMo, shall apply to the practice and procedure in civil actions before associate circuit judges in hearing and determining cases within those classes of cases enumerated in subdivisions (1), (2) and (8) of subsection 2 of § 478.225, RSMo.³Section 478.225.2(1), RSMo 1978, which was in effect at the time the judgment was entered, provided that an associate circuit judge within the county for which he was an associate circuit judge could hear and determine, except as otherwise provided by law, all civil actions and proceedings for the recovery of money when the sum demanded, exclusive of interest and costs, did not exceed five thousand dollars.⁴

Defendants insist that by reason of the above statutes, the trial court was without jurisdiction to enter the $10,711.92 judgment against them.

Plaintiffs respond that chapter 534, RSMo 1986, sets no limit on the amount of damages an associate circuit judge can award in an unlawful detainer action heard and determined by such...