Treetop Village Property Owners v. Miller

• Decision Date: 10 May 2004
• Docket Number: No. 25527.,25527.
• Citation: 139 S.W.3d 595
• Parties: TREETOP VILLAGE PROPERTY OWNERS ASSOCIATION, Plaintiff-Respondent, v. Avilda MILLER and G. Spencer Miller, Defendants-Appellants.
• Court: Missouri Court of Appeals

139 S.W.3d 595

TREETOP VILLAGE PROPERTY OWNERS ASSOCIATION, Plaintiff-Respondent, v. Avilda MILLER and G. Spencer Miller, Defendants-Appellants.

No. 25527.

Missouri Court of Appeals, Southern District, Division One.

May 10, 2004.

Motion for Rehearing or Transfer Denied June 8, 2004.

Application for Transfer Denied August 24, 2004.

Appeal from the Circuit Court of Camden County, James A. Franklin, Jr., J G. Spencer Miller, Maryland & Maryville, for Appellants.

V. Jack Muehlenkamp, St. Charles, for Respondents.

ROBERT S. BARNEY, P.J.

Appellants Avilda Miller and G. Spencer Miller appeal from a judgment finding them in default, subsequent to a motion for default judgment filed by Respondent Treetop Village Property Owners Association ("Treetop"), based on Appellants' failure to answer interrogatories propounded to Appellants by Treetop. In its judgment, the trial court ordered foreclosure of certain property in Camden County, Missouri, to pay a debt, legal fees, and costs owed to Treetop.

Appellants raise four points on appeal. In Point One, Appellants allege the trial court erred by failing to cause the proceedings at the hearing to be recorded so that a transcript could be prepared. In Point Two, Appellants assert the trial court erred in entering judgment against Appellant Avilda Miller because there was no evidence she was in default or failed to respond to any discovery requests. In Point Three, Appellants variously complain that the trial court erred in entering a default judgment against Appellant G. Spencer Miller because he was not in default; erred in failing to continue the hearing; and erred in entering judgment against Appellants because there was no record of credible or probative evidence to establish the assessment of any damages. Lastly, in Point Four and in response to Treetop's motion to dismiss, Appellants maintain that, given the facts of the case, their failure to file a motion to set aside the trial court's judgment preliminary to filing their appeal is not fatal to their appeal.

The record shows that on November 13, 2001, Treetop filed a petition to foreclose assessment lien in which it alleged that Appellants were owners of a particular interval estate and parcel within the Treetop Village Development. Treetop further alleged that, pursuant to the amended declaration of the development, Treetop was empowered to assess owners of interval estates and parcels an annual assessment. According to Treetop, Appellants had an unpaid assessment of $1625.71 (including late charges). The petition also requested $600.00 in legal fees, plus costs. Attached to the petition was a notice of delinquent assessments and lien outlining the amounts.

On December 31, 2001, Appellants filed a joint answer denying the allegations, but admitting that Appellant G. Spencer Miller was "the legal owner of said interval estates." Appellants requested that the petition be dismissed for failure to state a cause of action.

In January 2002 (the docket indicates it was January 7, but the file stamp denotes January 17), Treetop filed interrogatories, more fully set out below, that requested they be answered by Appellant G. Spencer Miller only. On April 29, 2002, Treetop filed a motion to compel answers to interrogatories, indicating that the time for filing answers to the interrogatories had expired. Treetop "request[ed] that [Appellants'] answer be stricken and that [Treetop] be allowed to proceed with its cause of action as if no answer has been filed."

On June 11, 2002, a hearing was held on Treetop's motion to compel. Appellants were not present. In its docket entry that date, Appellants were ordered to answer the interrogatories within twenty days or their pleadings would be stricken.¹

The record is devoid of a showing that the interrogatories were ever answered. Treetop filed a motion for default judgment on July 29, 2002. The case was set for hearing but later continued, due to the hospitalization of Treetop's counsel; a re-notice for hearing was filed on February 24, 2003.

The hearing was held as scheduled on March 11, 2003, and the judgment filed that same day. Appellants failed to appear and were found in default. The judgment then ordered foreclosure of the property for recovery of the debt, legal fees, and costs owed to Treetop. Also on March 11, 2003, the record indicates and the docket sheet acknowledges that Appellant G. Spencer Miller faxed a letter to the trial judge noting that he "fully intended to attend the hearing set for this morning in regard to the Treetop ... matter." According to the letter, Appellant G. Spencer Miller was involved in a trial, and he requested "that the matter be set over to the next date opposing counsel is available." The cover sheet and the letter itself show that the letter was faxed at 9:11. There are two docket entries for March 11, 2003. The first notes that the judgment was filed and second that the letter was received.² This appeal followed.

Point IV: Must the appeal be dismissed?

Appellants raise four points on appeal. We will first address their Point IV, in which they respond to Treetop's motion that the appeal should be dismissed because Appellants failed to file a motion to set aside the judgment preliminary to filing their appeal. Treetop contends that Appellants' failure in this regard precludes them from going forward with their appeal.

Treetop is correct that, in the absence of a motion to set aside or vacate, a default judgment is not appealable. Niemann v. Kasch, 740 S.W.2d 706, 707 (Mo.App.1987). The filing of such a motion is a mandatory prerequisite to securing direct appellate review of a default judgment. Barney v. Suggs, 688 S.W.2d 356, 358 (Mo. banc 1985).

The principles stated above, however, only apply to a default judgment entered under Rule 74.05. Tinsley v. Gosnell, 873 S.W.2d 943, 944 (Mo.App.1994). Where a party has filed an answer, a subsequent judgment is not a default judgment, but a judgment on the merits. DuPont v. Bluestein, 994 S.W.2d 96, 97 (Mo.App.1999). Further, if a party files an answer, but fails to appear for trial, the judgment is still not considered a default judgment under Rule 74.05; it is a judgment on the merits. See Cotleur v. Danziger, 870 S.W.2d 234, 237 (Mo. banc 1994). As more fully explained below, the same is true of a judgment, as here, that follows the striking of pleadings for failure to obey a discovery order; it is not considered a default judgment, "`but is treated as a judgment upon trial by the court.'" In re Marriage of DeWitt, 946 S.W.2d 258, 261 (Mo.App.1997) (quoting In re Marriage of Dickey, 553 S.W.2d 538, 539 (Mo.App.1977)).

Thus, Appellants' failure to move to set aside or vacate the judgment is not fatal to their appeal. As the judgment is a final judgment, in that it determines all of the issues in the case, we will proceed to consider the matter on its merits. See Simpkins v. Ryder Freight System, Inc., 855 S.W.2d 416, 420 (Mo.App.1993).

Point I: Effect of failure to cause hearing to be recorded.

In Point I, Appellants argue that the judgment should be reversed because the trial court failed to cause the March 11, 2003, hearing to be recorded so that a transcript could be prepared. According to Appellants, due to this failure, it is impossible to determine what evidence was considered and whether the evidence was sufficient to support the judgment. Within the judgment at issue in this case, in addition to finding that Appellants were in default, the trial court indicated that the cause was "taken up and heard and submitted to the [c]ourt upon the pleadings and evidence...."

"At the request of either party, the proceedings at the trial level should be recorded, preserved and included in the transcript on appeal where necessary to present a claim of trial error." In re Marriage of Osborne, 895 S.W.2d 285, 289 (Mo.App.1995). An inability to secure a complete trial transcript, if prejudicial, requires a reversal and remand for new trial. Loitman v. Wheelock, 980 S.W.2d 140, 142 (Mo.App.1998). Reversal and remand is unwarranted if the party seeking a reversal, failed to make a request that the proceeding be recorded. Osborne, 895 S.W.2d at 289.

Cases exist where the cause was remanded with directions that a hearing be held on the record, where it was determined that the matter could not be fully reviewed without such a record, or where the evidentiary basis for the judgment was unclear from the record. See Rivard v. Director of Revenue, 969 S.W.2d 864, 865 (Mo.App.1998) (factual dispute existed, requiring a record of the proceedings); Wolansky v. Director of Revenue, 936 S.W.2d 578, 579 (Mo.App.1996) (evidentiary basis for trial court's decision unclear from the record). If the resolution of the appeal turns on questions of law that may be answered by reference to the record before the court, it is unnecessary to remand. See Silman v. Director of Revenue, 880 S.W.2d 574, 575 n. 3 (Mo.App.1994).

However, none of the cases cited in the above paragraph involved a situation similar to the case at bar, where the party complaining of the failure to record the hearing also failed to appear at the hearing. As previously set out, under Osborne, reversal and remand is unwarranted if the party seeking a reversal failed to make a request that the proceeding be recorded. 895 S.W.2d at 289. Furthermore, under Loitman, it is necessary to reverse and remand for a new trial when the inability to secure a complete trial transcript is prejudicial. 980 S.W.2d at 142.

Taking these cases together, we hold that reversible error cannot be found here because Appellants failed to appear at the hearing and thereby waived any right they may have had to complain about the fact that no record of the hearing was preserved. Point I is denied.

Point II: Appellant Avilda Miller was not in default and did not fail to respond to discovery requests.

In their second point, Appellants contend that the trial court...