Weidner v. Anderson
| Decision Date | 30 September 2005 |
| Docket Number | No. 26763.,No. 26854.,26763.,26854. |
| Citation | 174 S.W.3d 672 |
| Court | Missouri Supreme Court |
| Parties | Douglas WEIDNER, D.P.M., and Suzanne Weidner, Plaintiffs-Appellants, v. Sharon M. ANDERSON, D.P.M., Defendant-Respondent. |
Tyce S. Smith, Conway L. Hawn, Smith & Turley, Waynesville, for appellants.
William E. Hickle, Hickle Law Firm, Rolla, for respondent.
Douglas Weidner and Suzanne Weidner ("Plaintiffs") and Sharon M. Anderson ("Defendant") signed a contract under which Defendant was to initially operate Plaintiffs' podiatry clinic and ultimately become the owner thereof. After Plaintiffs sued Defendant for breach of contract and injunctive relief, Defendant responded with a four-count counterclaim. In it, Defendant sought damages for breach of contract, misrepresentation, libel, and slander.
A scheduled trial of Defendant's counterclaims was held without Plaintiffs being present. After learning of the judgment entry, Plaintiffs filed multiple motions seeking an order setting aside the judgment favorable to Defendant on two of her counterclaims.
Ultimately, all of Plaintiffs' motions to vacate the judgment were overruled and their suit was dismissed, with prejudice, for failure to prosecute. Plaintiffs' appeal raises five points of trial court error. Generally, the five claims traverse two main topics: (1) alleged trial court error for not vacating the judgment on Defendant's counterclaims; and (2) alleged insufficiency of the evidence to support the counterclaim judgment. In part, Plaintiffs' claims of trial court error have merit. Defendant failed to prove entitlement to the full amount of damages awarded on her breach of contract count. Moreover, there was insufficient evidence to support an award of damages to Defendant on her libel count. Accordingly, we amend the judgment related to the contract count by reducing the damage award. We reverse the judgment favorable to Defendant on Count II and remand. In all other respects, we affirm.
In August 1997, Plaintiffs and Defendant agreed via written contract that Defendant would operate Plaintiffs' podiatry clinic for two years. Moreover, Defendant was given an option to buy the clinic and business for $280,000. While operating the clinic for Plaintiffs, Defendant was to be paid for her services as follows: $5,000 per month for the first three months under the contract and after that, Defendant was to have all "net revenues" of the business.1 The parties operated under this contact for approximately ten months during which time Defendant received $50,000, i.e., $5,000 per month. In May 1998, Plaintiffs notified Defendant that "[e]ffective immediately, we are ... terminating you with cause under the TOMS agreement dated August 26, 1997."
On June 2, 1998, Plaintiffs sued Defendant, alleging she had breached the contract in multiple respects. They also sought injunctive relief based on several theories, including an allegation that she had started her own clinic in violation of non-compete provisions in the contract.
On June 24, 1998, Plaintiffs fired their attorney, Matthew Clement ("Clement"). That same day, Clement notified Defendant's lawyer, Roger Carnahan ("Carnahan"), that he no longer represented Plaintiffs. Clement moved to withdraw as Plaintiffs' lawyer. This motion was filed with the circuit clerk on June 29, 1998. Clement then wrote Carnahan on July 3, 1998, again advising he no longer represented Plaintiffs and that any future communications should be sent directly to them.
Despite the foregoing, Carnahan faxed Defendant's answer and four-count counterclaim to Clement on July 6, 1998. Clement then called up his motion to withdraw as Plaintiffs' lawyer on July 9, 1998, and the court sustained the motion that day.
On August 26, 1998, Carnahan filed a notice with the circuit clerk that recited he intended to "call up [Defendant's counterclaims] for hearing and disposition" on September 24, 1998.2 This notice contained a "Certificate of Service" in which Carnahan certified that on August 25, 1998, "a true and correct copy" of such notice was "deposited in the United States Mail, first class postage thereon prepaid, addressed to: Douglas and Suzanne Weidner, HCR 71, Box 750-5 Camdenton, MO. 65020."
When Defendant appeared on September 24, 1998, Plaintiffs were not in court. Even so, Carnahan opted to present Defendant's testimony and other evidence on Defendant's breach of contract count and her libel claim. Thereon, the court entered judgment against Plaintiffs on these counts for $425,560 and $137,500, respectively.
On November 3, 1998, Plaintiffs moved to set aside what they characterized as a "default judgment." This motion cited Rule 74.05 as authority for vacating the judgment. The essence of their unverified motion was that (1) they did not know Defendant had filed an answer and four-count counterclaim; (2) they had no notice that a hearing on Defendant's counterclaim was to be held September 24, 1998; and (3) they had meritorious defenses to the counterclaims.
Accompanying the motion was an affidavit from their former lawyer, Clement, in which he acknowledged receiving a "faxed" copy of the answer and counterclaim filed by Defendant. Clement's affidavit continued with this: 3
By the end of September 1999, the trial court had overruled Plaintiffs' two motions to set aside the judgment. For the next four years, the case lay virtually inactive. In February 2004, Defendant filed a motion to revive her judgment. This led to a spate of new filings in the case. Included were new motions by Plaintiffs asking that the judgment against them be vacated. Plaintiffs alleged various grounds for such relief, but the court refused to vacate the judgment. Thereon, Defendant dismissed her misrepresentation and slander counts, the trial court dismissed Plaintiffs' suit against Defendant for failure to prosecute (with prejudice), and this appeal by Plaintiffs followed.
Plaintiffs' first point maintains the money judgment against them was void because Plaintiffs were never served with the counterclaims and were never notified that a hearing on the counterclaims was scheduled for September 24, 1998; consequently, the trial court erred when it would not set aside the judgment per Plaintiffs' request.
Rule 74.06(b)(4) empowers a trial court to set aside a final judgment if the movant shows that the judgment is void. In part, a "void judgment" is one rendered in a manner inconsistent with due process. Baxi v. United Technologies Automotive, 122 S.W.3d 92, 96[7] (Mo.App.2003).
It has been held that a judgment may be void if rendered without compliance with the service requirements of Rule 43.01. Am. Econ. Ins. Co. v. Powell, 134 S.W.3d 743, 746[1] (Mo.App.2004). This follows because failure to give adequate notice violates the due process rights of the one entitled to notice. Cody v. Old Republic Title Co., 156 S.W.3d 782, 784 (Mo.App.2004); Powell, 134 S.W.3d at 746-47[3].4
Here, Plaintiffs' motion to vacate judgment alleged (1) that Clement never sent them a copy of the answer and counterclaims and (2) they were never given notice of the hearing on the counterclaims. They argue, therefore, that the judgement was void and the court erred when it refused to set it aside. There is, however, a fatal evidentiary flaw in Plaintiffs' claim.
Specifically, Plaintiffs' motion to set aside the judgment was unverified. A Rule 74.06(b) motion to set aside a judgment does not prove itself, any more than does any other unverified motion or pleading. Johnson v. Brown, 154 S.W.3d 448, 451[3] (Mo.App.2005). See also Snelling v. Reliance Auto. Inc., 144 S.W.3d 915, 918 (Mo.App.2004) (). "`If the [Rule 74.06(b)] motion contains sufficient allegations of fact for its support, the motion thus must be verified, or supported by affidavits or sworn testimony produced at the hearing on the motion.'" Dallas-Johnson Properties, Inc. v. Hubbard, 823 S.W.2d 5, 6 (Mo.App.1991) (citation omitted).
In this case, the court had personal jurisdiction over Plaintiffs when Defendant filed her counterclaims. This occurred when Plaintiffs initially sued Defendant. Consequently, the issue is not the validity of a summons or service of summons, but whether the record supports the trial court's implicit finding that Plaintiffs either knew about the counterclaims and the September 24, 1998, hearing, or they were chargeable with knowledge of their existence.
Plaintiffs assert that their motion to vacate the judgment alleged facts, which if proven, supported a finding that the judgment was void. The problem for Plaintiffs, however, is that they never presented any admissible evidence by which they denied receiving a copy of the answer and counterclaims before the subject judgment was entered. Nor did they offer sworn evidence in which they denied having knowledge that counterclaims had been filed in the suit. Inexplicably, the only evidence on this issue was Clement's affidavit in which he swore that (a) he received the answer and counterclaims, and (2) he had no office record to show those pleadings were forwarded to Plaintiffs. This is not evidence—even if believed—that inexorably compels the conclusion that Plaintiffs never had a copy of the counterclaims during the pre-judgment period, nor does it compel a finding that they never knew about the counterclaims before entry of the judgment. If Plaintiffs were wholly unaware that counterclaims had been filed, why not say so under oath? Why...
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