Opinion
No. ED 85731.
November 15, 2005.
Appeal from the Circuit Court, City of St. Louis, Michael P. David, J.
Christopher A. Allen, St. Louis, MO, for appellant.
Roger K. Rea, St. Louis, MO, for respondents.
In this personal-injury action, defendant Hogan Transports, Inc., appeals from the trial court's judgment denying Hogan Transports' motion to set aside a default judgment entered against it and in favor of the plaintiffs, Theresa Breeden, Elijah Anderson, and Rachel Anderson. Because Hogan Transports' notice of appeal was untimely filed, we dismiss the appeal for lack of jurisdiction.
Elijah Anderson brought suit by and through his next friend Theresa Breeden, who is also his mother.
Rachel Anderson brought suit by and through her next friend Theresa Breeden, who is also her mother.
Factual and Procedural Background
The plaintiffs filed an action against Hogan Transports and Darrin Holt seeking damages for personal injuries suffered in a motor-vehicle accident allegedly caused by Holt, who was driving a truck for Hogan Transports. The plaintiffs filed their petition on March 11, 2003. Hogan Transports was personally served with the summons and petition, by service on its registered agent, on April 22, 2004. Hogan Transports filed no answer or other response to the plaintiffs' petition. The plaintiffs filed a motion for default judgment as to Hogan Transports. After considering evidence and testimony submitted by the plaintiffs, the trial court entered a default judgment against Hogan Transports on July 9, 2004.
Eleven days later, on July 20, 2004, Hogan Transports filed its motion to set aside the default judgment. An amended motion was filed two days later, on July 22nd. This amended motion merely restated the grounds for relief set forth in the first motion. The only amendments were the addition of more detailed allegations, and supporting exhibits, as to the requisite showings of good cause and meritorious defense to set aside the default judgment. The trial court held a hearing on the amended motion on July 23rd, and took the matter under advisement for ruling.
On December 14, 2004, one hundred and forty-five days after Hogan Transports filed its amended motion to set aside the default judgment, the trial court entered judgment denying Hogan Transports' motion, finding that although Hogan Transports had sufficiently alleged a meritorious defense, it had failed to demonstrate the required good cause for setting aside the default judgment. Hogan Transports appeals.
The plaintiffs have filed a motion to dismiss the appeal for lack of jurisdiction due to an untimely notice of appeal. The plaintiffs contend that Hogan Transports' motion to set aside the default judgment was deemed overruled for all purposes on October 20, 2004, ninety days after the filing of the amended motion. The plaintiffs further assert that when they voluntarily dismissed defendant Holt, on November 8, 2004, the default judgment became then and there appealable, with notice of appeal due December 18, 2004. The plaintiffs contend the trial court's December 14th order denying Hogan Transports' motion to set aside the default judgment was for naught, and, further, that Hogan Transports' notice of appeal, filed on January 20, 2005, was untimely filed.
Discussion
A party is entitled to file a motion to set aside a default judgment within a reasonable time for a period of up to one year. Rule 74.05(d); Popular Leasing USA, Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875, 877 (Mo.App.E.D. 2001). When such a motion is filed after the default judgment becomes final, it is treated as an independent proceeding, separate and apart from the underlying judgment itself. Popular Leasing, 57 S.W.3d at 878. When, however, such a motion is filed within thirty days of the default judgment, it is treated as an "authorized after-trial motion" and is deemed the equivalent of a motion for new trial. Popular Leasing, 57 S.W.3d at 877; Klaus v. Shelby, 4 S.W.3d 635, 638 (Mo.App.E.D. 1999); see also, Budd v. Budd, 157 S.W.3d 229, 230 (Mo.App.E.D. 2004); Arguin v. Arguin, 171 S.W.3d 116, 117 (Mo.App.E.D. 2005). As such, the motion extends the trial court's control over the default judgment from thirty days to ninety days from the day the motion is filed. Klaus, 4 S.W.3d at 637-8; see also, Popular Leasing, 57 S.W.3d at 877; Budd, 157 S.W.3d at 230; Arguin, 171 S.W.3d at 117-8. At the end of the ninety-day period, any "authorized after-trial motion" not ruled upon is automatically denied. Klaus, 4 S.W.3d at 637 citing Rule 78.06 and Rule 81.05; see also, Budd, 157 S.W.3d at 230; Arguin, 171 S.W.3d at 118.
Rule 78.06 provides, in part, that any after-trial motion is "overruled for all purposes if the trial court does not rule on it within ninety days after the date the last such timely motion is filed."
Rule 81.05(a)2(A) provides as follows:
"If a party timely files an authorized after-trial motion, the judgment becomes final at the earlier of the following:
(A) Ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled;. . . ."
In this case, Hogan Transports filed its motion to set aside on July 20, 2004 and its amended motion to set aside on July 22, 2004. Both of these filings came within thirty days of the entry of the default judgment, and, therefore, Hogan Transports' motions are treated as "authorized after-trial motions." The trial court's control over the default judgment extended no later than October 20, 2004, ninety days from the date Hogan Transports filed its amended motion, the last motion filed by Hogan Transports. As the trial court did not rule on Hogan Transports' motion within this ninety-day period, Hogan Transports' motion was automatically denied, and the trial court lost control of the default judgment, on October 20, 2004. Consequently, the trial court did not have jurisdiction on December 14, 2004 to rule on Hogan Transports' motion to set aside the default judgment, and its ruling is void. Budd, 157 S.W.3d at 230; see also, Arguin, 171 S.W.3d at 118.
We next address when this case became appealable. A prerequisite to appellate review is that there be a final judgment. Beckmann v. Miceli Homes, Inc., 45 S.W.3d 533, 538 (Mo.App.E.D. 2001). A judgment is final for purposes of appeal only when it disposes of all the issues for all parties in the case and leaves nothing for further determination. Id.
On October 20, 2004, the date that Hogan Transports' motion was deemed overruled, defendant Holt remained in the underlying action as a party defendant. Thus, the case was not appealable at this time. See Bailey v. Innovative Management Investment, Inc., 890 S.W.2d 648, 649 (Mo. banc 1994). "Even though a default judgment against one defendant in a multi-defendant case might be 'final' in virtually every other sense, it nevertheless is held in abeyance and does not truly become final until the claims against the other defending parties are disposed of." Beckmann, 45 S.W.3d at 539. The plaintiffs voluntarily dismissed Holt, the sole remaining defendant, on November 8, 2004. The plaintiffs' dismissal of Holt was effective as of November 8, 2004, the date it was filed. Freeman v. Leader National Insurance Co., 58 S.W.3d 590, 595 (Mo.App.E.D. 2001). At this point, there was a final judgment and the case became appealable. See Bailey, 890 S.W.2d at 649; Magee v. Blue Ridge Professional Building, Co., Inc., 821 S.W.2d 839, 842 (Mo. banc 1991); Snelling v. Masonic Home of Missouri, 904 S.W.2d 251, 252-3 (Mo.App.E.D. 1995). Hogan Transports then had forty days, until December 18, 2004, to file its notice of appeal. See Bailey, 890 S.W.2d at 650. Hogan Transports, however, did not file its notice of appeal until January 20, 2005. As such, its notice of appeal was not timely filed. The timely filing of a notice of appeal is a jurisdictional requirement. Popular Leasing, 57 S.W.3d at 877. If a notice of appeal is untimely, this Court is without jurisdiction and must dismiss the appeal. Id.
The plaintiffs' motion to dismiss is granted. Because Hogan Transports' notice of appeal was untimely filed, we dismiss the appeal for lack of jurisdiction.
The plaintiffs' Motion to Strike Portions of Hogan Transport's Statement of Facts and Argument is denied.
KATHIANNE KNAUP CRANE, P.J., and BOOKER T. SHAW, J., concur.