Opinion
No. 55333 (Consolidated WD55334, 55462)
Filed: April 20, 1999
APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY The Honorable James W. Roberts, Judge
John McFarland, Kansas City, MO, for Appellant.
Keith Ferguson, St. Joseph, MO, for Respondent.
Ellis and Riederer, JJ., concur.
This cross-appeal arises out of a personal injury suit tried in Buchanan County circuit court. The plaintiff, Monica M. Nandan, was a pedestrian who was hit by a vehicle driven by the defendant, Catherine J. Drummond. On August 6, 1997, the jury returned a verdict of $150,000 for the plaintiff, apportioning 75 percent fault to the plaintiff and 25 percent fault to the defendant. On August 25, 1997, the trial court entered its initial judgment in accordance with that verdict. The court subsequently set aside its initial judgment and, on November 18, 1997, entered a new judgment in order to allow the plaintiff to timely file a motion for new trial. The plaintiff's motion for new trial was denied on December 22, 1997. The plaintiff appeals from the November 18, 1997 judgment, and the defendant cross-appeals. Because we hold that the trial court was without authority to set aside its earlier judgment, the trial court's judgment dated August 25, 1997, is reinstated and the plaintiff's appeal is dismissed.
On Sunday, March 25, 1995, at approximately 6:20 P.M., the plaintiff and her fiancé's mother went for a walk. They walked along the Briarwood Apartment complex private ingress/egress road until it intersected with Gene Field Road, a two-lane road that runs east and west. At the intersection, they turned westward and walked along the northern side of Gene Field Road, which does not have a sidewalk, and the area next to the road has an uneven, grassy slope. To accommodate a prior toe injury, the plaintiff was walking on the edge of the pavement that carries the water run-off next to the grass. The plaintiff testified that they were not walking toward oncoming traffic, because the traffic and the lack of a crosswalk across the road made Gene Field Road difficult to cross.
At the same time, the defendant was driving westbound on Gene Field Road when she encountered a low setting sun. Although she was wearing sunglasses, and had her car visor down, she testified that her vision of the roadway was blinded at times. At some point, the defendant had to strain to see the roadway in front of her, and she used her peripheral vision to see the center line of the road to her left and the curb on her right. The plaintiff had walked approximately 90 feet with the flow of traffic along Gene Field Road, when she was struck from behind by the defendant's car. The defendant never saw the plaintiff before hitting her with the right front corner of her car. She was unaware that she had hit anyone until she looked in her rear view mirror and saw the plaintiff lying in the road.
The defendant, in her cross-appeal, challenges the trial court's jurisdiction to set aside its initial judgment, entered in accordance with the jury verdict, in order to allow the plaintiff to timely file her motion for a new trial. We do not reach the merits of the plaintiff's argument, because the trial court had no basis to set aside its August 25th judgment. As a result, the plaintiff's motion for a new trial was filed out of time, and the plaintiff failed to preserve her allegations of error for our review, as Rule 78.07 requires that "[i]n jury tried cases, . . . allegations of error to be preserved for appellate review must be included in a motion for a new trial. . . ." Id.
The jury returned its verdict on August 6, 1997. Five days later, the trial judge sent a letter to the parties indicating that he would sign a judgment in accordance with the jury verdict on August 26, 1997. As a result, plaintiff's trial counsel calculated the 30-day period for filing a motion for new trial, per Rule 78.04, from the August 26th date. He subsequently received a copy of the court's judgment in the mail. The judgment was dated August 25, not August 26 — the date from which he calculated the 30-day time period.
Plaintiff's counsel filed the plaintiff's post-trial motions on September 25, 1997. The unfortunate result was that the plaintiff's post-trial motions were filed one day past the 30-day deadline. Upon discovery of this mistake, the plaintiff filed a motion to set aside the judgment. The plaintiff's motion was heard on November 17, 1997, at which time the court sustained the motion and based plaintiff's relief on Rule 74.06. Accordingly, the court set aside its August 25th judgment and re-entered a new judgment on November 18, 1997.
The trial court first found that the plaintiff's motion for new trial was:
[F]iled one day beyond the 30-day period after entry of judgment provided by Rule 78.04 for filing after-trial motions and is, therefore, untimely. Plaintiff had actual notice of entry of judgment through receipt by Plaintiff's counsel of a copy of the judgment signed by the Court on August 25, 1997, posted to Plaintiff's counsel on that date, and received by Plaintiff's counsel shortly thereafter.
Previously, Rule 78.04 required that a motion for new trial "shall be filed not later that 30 days after the entry of judgment on a jury verdict, which judgment shall be entered as of the date of the verdict." See Mosher v. Levering Inv., Inc., 806 S.W.2d 675, 676 (Mo. banc 1991) (ruling that the date that starts the time period for filing a motion for new trial is the date of the jury verdict). In 1994, the phrase "which judgment shall be entered as of the date of the verdict," was deleted. Although our review of the case law finds no Missouri court opinion that directly addresses this amendment to Rule 78.04, see e.g., Kessinger v. Kessinger, 935 S.W.2d 347, 349 (Mo. App. 1996), the deletion of the phrase indicates that the jury verdict no longer controls the filing deadline and that the triggering event, commencing the 30-day time period, would be the entry of the court's formal written judgment.
The trial court then denied the plaintiff's request to set aside the judgment pursuant to Rule 74.03, but found that:
Plaintiff's Motion for Relief From Judgment Pursuant to Rule 74.06 should be sustained and that the Court should grant the equitable relief prayed for because of inadvertence, mistake and/or excusable neglect. The Court finds no prejudice to the Defendant because of the one-day delay. The judgment entered August 25, 1997 should be set aside as if never entered[.]
The defendant claims that the trial court erred in granting plaintiff's motion to set aside the August 25th judgment, pursuant to Rule 74.06(b)(1), which allows the trial court to set aside a judgment for "mistake, inadvertence, surprise or excusable neglect." Of the procedural means for setting aside judgments, Rule 74.06 requires the highest standard for setting aside a judgment in light of the interest in stability of final judgments and precedent. Cotleur v. Danziger, 870 S.W.2d 234, 236 (Mo. banc 1994). However, "the trial court is afforded broad discretion when acting on a Rule 74.06 motion . . . [and an] appellate court should not interfere unless the record convincingly indicates an abuse of discretion." Gibson v. White, 904 S.W.2d 22, 24 (Mo. App. 1995).
In support of her argument that Rule 74.06 is inappropriate for setting aside the judgment, the defendant first argues that Rule 74.06 "only applies to mistakes or misconduct occurring before or at the time a court enters its judgment." The defendant maintains that the plaintiff's attorney's failure to "observe and note the date of the judgment [was] a post-judgment mistake." In response, the plaintiff claims that "the mistake occurred in the pre-judgment time frame when [plaintiff's] counsel mistakenly relied upon the trial judge's incorrect representation of the signing date in [its] August 11, 1997 letter." As a result, the plaintiff contends that the granting of the motion to set aside the August 25th judgment was "well within the wide discretion accorded the trial court when considering 74.06 motions."
In Willey v. Gum, this court determined that "Rule 74.06 contemplates `mistake' that leads to the judgment from which the movant seeks relief. Nothing in the rule suggests that it applies to post judgment mistake[s]." 902 S.W.2d 857, 859 (Mo. App. 1995). The Willey court then found that the trial court did not have jurisdiction to reinstate the case because, although the circuit court clerk erred in failing to send the attorney a copy of the costs assessed in the case following its dismissal, such post-judgment error was not a mistake contemplated by Rule 74.06(b)(1). Id. See also Missouri Dept. of Labor and Indus. Relations v. Ron Woods Mechanical, Inc., 926 S.W.2d 537, 541 (Mo. App. 1996)(ruling that Rule 74.06 "applies only to mistakes or misconduct before or at the time the court entered its judgment").
The issue then becomes whether plaintiff's counsel's error was made before or after the judgment was entered. Plaintiff's counsel's ultimate error involved filing of the plaintiff's post-trial motions after the judgment became final per Rule 78.04. This mistake arose from the plaintiff's counsel's post-trial error of failing to note the date the judgment was mailed to him, not his pre-judgment calculation of the motion's due date, based on an intended judgment date. It is a well established rule that a lawyer has a duty to know what is going on in his case, and he must vigilantly follow its progress. Vaughn v. Ripley, 446 S.W.2d 475, 480 (Mo. App. 1969). Equity will not provide relief from a mistake when the complaining party had within his reach the means of ascertaining the true state of facts and neglects to avail himself of his opportunities for information . Cozart v. Mazda Distrib., Inc., 861 S.W.2d 347, 353 (Mo. App. 1993). Counsel's failure to file the plaintiff's post-trial motions on time was a result of his failure to note the date of the judgment. As such, the error was a post-judgment mistake not contemplated by Rule 74.06.
Additionally, the defendant contends that the plaintiff's untimeliness was a "mistake of law" — as counsel's "failure to know that the judgment received by him was in fact the final judgment" which is also not a basis for setting aside the judgment under Rule 74.06. We agree with the plaintiff that her attorney's mistake was not a mistake of law. Counsel did not err in determining the legal effect of the judgment, nor did he err in assessing the correct time period in which to file the plaintiff's post-trial motions, rather he was mistaken about the date the judgment was entered.
The defendant also contends that plaintiff's counsel's error cannot be deemed "excusable neglect" pursuant to Rule 74.06(1). Excusable neglect is defined as:
Failure to take the proper steps at the proper time, not in consequence of the party's own carelessness, inattention, or willful disregard of the process of the court, but in consequence of some unexpected or unavoidable hindrance or accident, or reliance on the care and vigilance of his counsel or on promises made by the adverse party.
Gibson, 904 S.W.2d at 25 (quoting BLACK'S LAW DICTIONARY 566 (6th ed. 1990))(emphasis added). "[C]ourts have consistently held that circumstances involving the human element of forgetfulness do not constitute excusable neglect." Gibson, 904 S.W.2d at 25 (quoting Burris v. Terminal R.R. Ass'n., 835 S.W.2d 535, 539 (Mo. App. 1992)). See also Cotleur v. Danziger, 870 S.W.2d 234, 239 (Mo. banc 1994)(finding the appellant's attorney, who failed to appear at a scheduled court hearing, guilty of "inexcusable neglect" which was imputable to his client).
"Generally, actions of a party's attorney, including procedural neglect that precludes a client's substantive rights, are imputed to the client." Cotleur v. Danziger, 870 S.W.2d at 238. Counsel's reason for filing the plaintiff's post-judgment motions out of time — his failure to discern the actual judgment date — was not a matter of excusable neglect. Since there were no competent grounds under Rule 74.06(b)(1) to set aside the August 25th judgment, the trial court was without a legal basis to grant plaintiff's motion to set the judgment aside. Gibson, 904 S.W.2d at 26.
The plaintiff argues, in response, that the August 25th document was not a "judgment," in that it failed to meet the requirements of Rule 74.01(a) and Rule 43.02(b), because "it was not filed with the clerk on August 25, 1997, and the trial judge did not indicate a filing date on the document and transmit the same forthwith to the clerk." Rule 43.02(b), provides:
Filing with the Court — Defined. The filing of pleading and other papers with the court . . . shall be made by filing them with the clerk of the court, except that a judge may permit that papers to be filed with the judge, who shall note thereon the filing date, and forthwith transmit them to the office of the clerk.
The plaintiff suggests that the trial judge, after signing the August 25th document, put it in the case file in his division, but did not note thereon that the judgment had been filed, nor did the trial judge transmit it to the clerk. Thus, she argues, the document was not "filed" per Rule 43.02(b), and, in turn, not entered. Rule 74.01(a) provides:
"Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" is filed. The judgment may be a separate document or included on the docket sheet of the case.
The docket sheet has the following handwritten entry for August 25, 1997:
D files ltr oking P cost requests Ct takes up entry of jmt awards P jmt vs. D for net $37,057.65 (Dmgs 37,500 + P costs 624.50 less D costs 1066.85) cc attys to be mailed by clerk
The docket entry was signed with the initial R.
Rule 43.02(b) does not apply to judgments prepared, signed and entered by the court. Although we have not found any case law defining the phrase "pleadings and other papers," those cases addressing whether a document has been filed pursuant to Rule 43.02(b) and former Rule 43.01(h), relate to the filing of a document by the parties, not the court. See Thornton v. Deaconess Med. Ctr.-West Campus, 929 S.W.2d 872, 874 (Mo. App. 1996) (addressing a party's attempt to file a voluntary dismissal); Atteberry v. Hannibal Reg'l. Hosp., 926 S.W.2d 58, 60 (Mo. App. 1996) (regarding an application for change of judge); Hawthorne v. Hills, 861 S.W.2d 337, 340 (Mo. App. 1993) (regarding a motion for new trial); Morant v. State, 783 S.W.2d 139, 140 (Mo. App. 1989) (determining that a Rule 29.15(c) motion is not "considered filed until it is lodged in the clerk's office").
The case of Calvin v. Jewish Hosp. of St. Louis, concerned an order in a legal file and signed by the judge that a party had timely filed its notice of appeal on February 13, 1987. 746 S.W.2d 602, 603 n.1 (Mo. App. 1988). The Calvin court ruled that "[t]he fact that the circuit clerk did not stamp `filed' on the face of the Notice of Appeal until February 19, 1987 or record the filing on the . . . docket sheet until that date does not prevail over Judge Ryan's order." Id. Based on this reasoning, we conclude that documents initiated by the court, e.g. judgments, are deemed entered and filed on the date that they are signed by the court.
Moreover, there is no evidence that the document was not "transmitted to the office of the clerk," as the plaintiff asserts was required. See Linzenni v. Hoffman, 937 S.W.2d 723, 726 (Mo. banc 1997) (finding that documents in the file "point only" to a filing date of the date they were signed, and, therefore, the court ruled that it is presumed that the documents were filed as of the date they were dated). This rule requires that "a judgment must be (1) in writing, (2) signed by the judge, (3) denominated `judgment,' and (4) filed." Chambers v. Easter Fence Co., Inc., 943 S.W.2d 863, 865 (Mo. App. 1997). The August 25th judgment was in compliance with Rule 74.01(a) as it was in writing, signed by the judge, denominated `judgment,' and filed the day it was signed.
The plaintiff contends that her attorney requested the file from the clerk's office on October 14, 1997, the day the court heard arguments on the post-trial motions. On that date, the clerk indicated that they did not have the file. As such, the plaintiff concludes that the judgment was never transmitted to the clerk. This assumption is unfounded as it is just as likely that the file, and the judgment, were in the possession of the clerk prior to October 14, 1997, but that the file was returned to the judge for the hearing.
In fact, the docket entry indicates that copies of the judgment were to be mailed by the clerk to the attorneys. This is, at least, minimal evidence that the judgment was forwarded to the clerk, as it is undisputed that the attorneys subsequently received copies of the August 25th judgment in the mail. In any event, we do not consider the fact that a judgment has been sent to the clerk to be determinative of whether the judgment was filed.
Finally, the plaintiff maintains that the trial court erred in failing to set aside the August 25th judgment, pursuant to Rule 74.03, because the judgment did not contain a notice of the entry of the judgment. Rule 74.03 provides:
Immediately upon the entry of an order or judgment, the clerk shall serve notice of the entry by mail . . . upon each party. . . . If such notice is not given, the order or judgment shall be set aside for good cause shown upon written motion filed within six months from entry of the order or judgment.
The defendant, on the other hand, argues that since the plaintiff had actual notice of the judgment, no good cause exists to set aside the judgment and, therefore, the trial court did not err in failing to vacate the judgment pursuant to Rule 74.03. The plaintiff concedes that her counsel received a copy of the signed judgment, however, she contends it was deficient because it was not served with "notice of the entry," i.e., notice that the document had been filed of record in the case. As a result of this deficiency, plaintiff's counsel relied upon the letter from the judge indicating that a judgment would be entered on August 26, 1997.
In order to have the judgment set aside under Rule 74.03, the plaintiff must demonstrate "good cause to permit relief under Rule 74.03" and "must make a showing of some prejudice." In re Marriage of Dubois, 875 S.W.2d 223, 227 n.2 (Mo. App. 1994) (citing Herrin v. Straus, 810 S.W.2d 593, 598 (Mo. App. 1991)). "Good cause has been identified as an amorphous concept which generally includes `both a legitimate excuse for allowing the default to occur and a showing of some prejudice.'" Tinsely v. Gosnell, 873 S.W.2d 943, 944 (Mo. App. 1994) (quoting Krueger v. Perez, 764 S.W.2d 173, 175 (Mo. App. 1989)).
There are numerous cases in which courts have found that the party seeking to have a judgment set aside cannot show good cause, under Rule 74.03, when the party had actual knowledge of the judgment entered against them. See Carr v. Missouri Delta Med. Ctr., 890 S.W.2d 324, 327 (Mo. App. 1994) (holding that "[a] party who has knowledge of an order or judgment is not prejudiced by failure of the clerk to send notice that it was entered"). See also Marriage of Dubois, 875 S.W.2d at 227 n.2; Fireman's Fund Ins. Co. v. Brouk-Ziegler Motor Co., 841 S.W.2d 778, 780 (Mo. App. 1992); Warren v. Associated Farmers, Inc., 825 S.W.2d 901, 905 (Mo. App. 1992); and McDonald Co. Mercantile Bank v. Harp, 779 S.W.2d 21, 24 (Mo. App. 1989) (ruling that "failure to receive notice of the entry of the judgment from the court clerk . . . did not deprive [the complaining party] of any knowledge the notice would have imparted, as he already possessed that information"). The purpose of Rule 74.03 is to "afford parties time in which to challenge judgments or orders of which they were otherwise unaware." State ex rel. Vicker's, Inc. v. Teel, 806 S.W.2d 113, 117 (Mo. App. 1991) (emphasis added).
The plaintiff attempts to discredit this case law as "poor yardsticks by which to measure the good cause standard" because they were decided prior to the 1995 amendment of Rule 74.01(a). The amendment to Rule 74.01(a), which requires for an order to be deemed a "judgment," the document must be "filed," does not change the conclusion that actual awareness of a judgment defeats the claim of good cause pursuant to Rule 74.03. Moreover, the Eastern District, in August of 1995, endorsed the prior case law by finding that:
While apparently the court clerk did not send Plaintiff notice of the [judgment,] Defendants' attorney did and it was received by Plaintiff . . . at a time when the trial court still retained jurisdiction over the matter for fifteen days. Any failure of the court clerk in mailing the [judgment] to Plaintiff does not automatically affect its validity. . . . Plaintiff has not established prejudice. Furthermore, even if Rule 74.03 were the applicable rule, Plaintiff has not shown good reason or excuse nor good cause to have the [judgment] set aside.
Bell v. Wolff, 903 S.W.2d 291, 294 (Mo. App. 1995).
In this case, the trial court found that the "[p]laintiff had actual knowledge of the judgment signed by the Court on August 25, 1997, posted to Plaintiff's counsel on that date, and received by Plaintiff's counsel shortly thereafter." As a result, the plaintiff has failed to make the requisite showing of good cause under Rule 74.03, and the trial court did not err in denying her request to set aside the judgment under that rule. However, the trial court was without jurisdiction to set aside the August 25th judgment, as discussed supra, under Rule 74.06(b)(1). Therefore, we hold that the August 25, 1997 judgment of the trial court must be reinstated. As a result, we reluctantly conclude that the plaintiff's motion for new trial was filed out of time, and her appeal must be dismissed, as she has not preserved her allegations of error pursuant to Rule 78.07.
We have gratuitously examined the substantive points raised by the plaintiff, and conclude that even if they were properly preserved for review, they would not result in reversal.
The cause is remanded to the trial court with directions to reinstate the August 25, 1997, judgment.