Opinion
No. WD54398
May 12, 1998
APPEAL FROM THE CIRCUIT COURT OF CLINTON COUNTY, THE HONORABLE STEPHEN K. GRIFFIN, JUDGE.
KELLEY VERWERS, P.O. BOX 126, LIBERTY, MO 64069, FOR APPELLANT.
GEORGE ALLEN PICKETT, 116 NORTH MAIN, PLATTSBURG, MO 64477, FOR RESPONDENT.
BEFORE BRECKENRIDGE, P.J., LOWENSTEIN and SPINDEN, JJ.
Michael Johnston appeals the circuit court's judgment to deny his petition for writ of mandamus against The Honorable Paul T. Luckenbill, Jr., judge of the associate circuit division of circuit court. Johnston complains that the associate circuit division of circuit court did not obtain jurisdiction over him, yet Luckenbill refused to grant his motion to set aside a default judgment entered against him in a rent and possession action, Clinton County Convalescent Center, Inc. v. Johnston, No CV1096-163AC. We agree that the associate circuit division of circuit court did not have jurisdiction over Johnston when it entered its judgment. We, therefore, reverse the circuit court's judgment and remand to the circuit court.
The parties do not dispute the facts. The associate circuit division of circuit court endeavored to obtain jurisdiction over Johnston when a sheriff's deputy served a summons to him on May 8, 1996. The return date appearing in the summons was May 23, 1996. In the meantime, Clinton County Convalescent Center made arrangements with the associate circuit clerk to move the hearing date from May 23 to May 16, 1996, and it sent a copy of its letter to the clerk confirming the change to Johnston.
On May 16, when Johnston did not appear for the rescheduled hearing, Luckenbill entered a default judgment against Johnston, and the clerk sent a copy of the judgment to Johnston. The next day, a sheriff's deputy served an execution on the default judgment to Johnston. Johnston did not act until May 23 when he appeared in court. The court informed him that it had already entered a default judgment against him.
On June 25, 1996, Johnston filed a motion pursuant to Rule 74.06 to have the judgment set aside. After oral arguments, Luckenbill denied Johnston's motion. Johnston appealed to this court, but we dismissed the appeal on October 10, 1996, on the ground that we did not have jurisdiction of the matter. We held that the denial of the Rule 74.06 motion "is not subject to appeal on the record pursuant to section 512.180, RSMo 1994[.]"
On December 10, 1996, Johnston asked the circuit court for a writ of mandamus ordering Luckenbill to set aside its default judgment. On December 18, 1996, the circuit court granted a preliminary order in mandamus; however, on May 13, 1997, the circuit court refused to make the preliminary order absolute and denied Johnston's petition. Johnston appeals to this court. He argues that Luckenbill exceeded his jurisdiction by entering a void default judgment.
The problem in this case stems from a letter written by Clinton County Convalescent Center's attorney, George A. Pickett, to the Clinton County's associate circuit clerk on May 9, 1996, the day after the deputy served Johnston with the plaintiff's petition. The letter said, "Please be advised that Defendant, Michael Johnston, was served May, [sic] 8, 1996, in regard to the [lawsuit]. This is to confirm that the case is now scheduled for hearing Thursday, May 16, 1996 at 1:30 p.m." The letter indicates that Pickett sent a copy to Johnston, but Johnston told the court that he did not receive it.
The record does not indicate any details concerning this rescheduling. We find nothing in the record contradicting Johnston's allegation that Pickett "unilaterally, and without a motion to the trial court or Court Order, changed the date of the hearing from the . . . 23rd . . . day of May, 1996, to the . . . 16th . . . day of May, 1996[.]"
Changing the hearing date to May 16 was unlawful. Chapter 517 governs procedures before the associate circuit judge in this case. Section 517.041.1 requires that the summons set the return date for "not less than ten days . . . from the date of service of the summons." The earliest return date which would have complied with § 517.041.1 was May 18.
Section 517.011.1(3) makes the procedural requirements of Chapter 517 applicable to "[a]ll cases arising under chapter . . . 535, RSMo[.]" All citations to statutes refer to the 1994 Revised Statutes.
Not all violations of Chapter 517 will deprive the associate circuit judge of jurisdiction. See, e.g., Hometown Lumber and Hardware, Inc. v. Koelling, 816 S.W.2d 914, 916 (Mo. banc 1991) (holding that requirement in § 517.041.1 — before the 1988 amendment that summons "advise the defendant of the pleadings required or permitted to be filed" is not jurisdictional but merely directory). The distinction drawn by the Supreme Court in Koelling was a defect in the summons' form as opposed to defects which deprive a defendant of more substantive rights. Id.
The defect in Johnston's summons was more than one of form. It deprived him of the minimum time — 10 days — mandated by the General Assembly to prepare his defense. "Inherent in our law," the Supreme Court noted in Koelling, "has long been the concept that the underlying principle of a summons is to place a defendant on notice of an action filed against the defendant to enable the defendant to appear and defend against the action." Id. This violation of the very purpose for § 517.041.1 — to provide Johnston adequate notice and time to prepare a defense — deprived the associate circuit division of circuit court of jurisdiction.
Violation of such fundamental requirements prescribed by statute renders the court powerless "to determine even whether it may assert jurisdiction over the defendant's person . . . unless the defendant has consented or waived his objections to personal jurisdiction." Krug v. Abel, 716 S.W.2d 17, 20 (Mo.App. 1986). Johnston did nothing to consent to jurisdiction or to waive his objection to personal jurisdiction. The associate circuit division of circuit court, therefore, lacked jurisdiction to enter its judgment against Johnston.
Even assuming, as Luckenbill contends, that the associate circuit division of circuit court rescheduled the hearing with Johnston's knowledge, it would not make a difference. We find no authority for an associate circuit division of circuit court to schedule a hearing date earlier than the summons date. Section 517.071 permits the granting of a continuance, but giving "continue" its plain and ordinary meaning, as we are obligated to do in construing a statute, City of Dellwood v. Twyford, 912 S.W.2d 58, 60 (Mo. banc 1995), this authority does not authorize setting the hearing for a date sooner than the summons date.
For a long time, Missouri courts have deemed a continuance to be a "postponement of action pending in court to a subsequent day or another term." Ferber v. Brueckl, 17 S.W.2d 524, 527 (Mo. 1929). This is consistent with the dictionary definition of "continuance:" "[t]he adjournment or postponement of a session, hearing, trial, or other proceeding to a subsequent day or time[.]" Black's Law Dictionary 321 (6th ed. 1990). The associate circuit division of circuit court had authority only to move Johnston's case to a date later than May 23 — not earlier.
Johnston, however, does not come here challenging directly the associate circuit division's jurisdiction over him. He does so indirectly by arguing that Luckenbill had no alternative but to grant his Rule 74.06 motion, so the circuit court erred in refusing to grant him a writ of mandamus. Luckenbill counters by arguing that his denial of Johnston's Rule 74.06 motion was discretionary and that Johnston had an adequate remedy at law; therefore, mandamus is not the appropriate remedy.
Rule 74.06 vests the circuit court with broad discretion in acting on motions to vacate judgments, and we will not interfere with the court's exercise of discretion unless the record convincingly demonstrates an abuse of discretion. Burris v. Terminal Railroad Association, 835 S.W.2d 535, 537-38 (Mo.App. 1992). Although mandamus will not lie to control the exercise of a discretionary power, it will lie when the discretionary power is exercised arbitrarily and capriciously. State ex rel. Kugler v. Tillatson, 312 S.W.2d 753, 757-8 (Mo. banc 1958). A writ will also issue to control the discretion of a court where the court "has acted unlawfully or wholly outside its jurisdiction or authority or has exceeded its jurisdiction, and also where it has abused whatever discretion may have been vested in it." State ex rel. Keystone Laundry Dry Cleaners, Inc. v. McDonnell, 426 S.W.2d 11, 14 (Mo. 1968).
Luckenbill abused his discretion and acted arbitrarily and capriciously when he denied Johnston's Rule 74.06 motion. As previously discussed, the underlying judgment against Johnston was void. A void judgment is:
"One which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. One which, from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. Judgment is a `void judgment' if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process." (citations omitted)
K K Investments, Inc. v. McCoy, 875 S.W.2d 593, 596 (Mo.App. 1994) (quoting BLACK'S LAW DICTIONARY 1574 (6th ed. 1990)). Luckenbill lacked jurisdiction and acted in a manner inconsistent with due process by entering the default judgment against Johnston. Given the flagrant due process violation, it was an abuse of discretion for Luckenbill to deny Johnston's Rule 74.06 motion.
The Missouri Supreme Court has defined "abuse of discretion" as:
"`Judicial discretion is abused when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Anderson v. Robertson, Mo. App., 402 S.W.2d 589(3-4).'"
Shirrell v. Missouri Edison Company, 535 S.W.2d 446, 448 (Mo. banc 1976) (quoting James v. Turilli, 473 S.W.2d 757, 763 (Mo.App. 1971)). Luckenbill's refusal to grant Johnston's Rule 74.06 motion indicates a lack of careful consideration and shocks our sense of justice.
Luckenbill also contends that mandamus is not the appropriate remedy because Johnston had an adequate remedy at law. He argues that the default judgment order was an appealable order; therefore, Johnston's only remedy was an application for trial de novo pursuant to § 512.180. We disagree.
In Plaza Point Investments, Inc. v. Dunnaway, 637 S.W.2d 303 (Mo.App. 1982), this court recognized that this court has general, superintending control over all courts in our jurisdiction pursuant to Article V, § 4, of the Missouri Constitution. The Dunnaway court noted that "the primary means by which appellate courts exercise their superintending control is by original extraordinary writs[.]" Id. at 306.
Hence, in this case, we exercise our supervisory authority over the associate circuit division of circuit court. We reverse the circuit court's judgment and remand with instructions that it make absolute its writ of mandamus. It shall order Luckenbill to set aside the judgment against Johnston in Case No CV1096-163AC as void for lack of personal jurisdiction.
Patricia Breckenridge, Presiding Judge, and Harold L. Lowenstein, Judge, concur.