Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF OZARK COUNTY Honorable Cynthia Ann
W. LYNCH, P.J.
Investments, Inc. ("CII"), as an alleged contract
assignee, filed a petition for breach of contract against
Clinton W. Dieter under the provisions of chapter
517. On March 18, 2016, Dieter was
personally served a summons with a copy of CII's petition
attached and showing a return date and time of April 27,
2016, at 9:00 a.m. On that return
date and time, the trial court called the case for trial,
noted that CII failed to appear, and entered judgment in
favor of Dieter. CII timely appeals that judgment.
single point relied on, CII claims "[t]he trial court
erred in calling the case for trial and hearing evidence and
finding in favor of [Dieter] without the presence of [CII] or
providing notice that a trial would take place by denying its
right to due process." Because this claim was not raised
in the trial court, it was not preserved for appellate
allegations of error shall be considered in any civil appeal
except such as have been presented to or expressly decided by
the trial court." Section 512.160.1; see also Rule
84.13. "'An issue that was
never presented to or decided by the trial court is not
preserved for appellate review.'" Brown v.
Brown, 423 S.W.3d 784, 788 (Mo. banc 2014) (quoting
State ex rel. Nixon v. Am. Tobacco Co., Inc., 34
S.W.3d 122, 129 (Mo. banc 2000)). As required by Rule 78.09,
the trial court must be given the opportunity to rule on a
question. Brown, 423 S.W.3d at 787. Adherence to
this rule assists in resolving any alleged error at the
earliest possible opportunity by "allowing the trial
court to rule intelligently." Id. at 787-88. It
is a critical component in the efficient and timely
resolution of disputes and the conservation of the
parties' and the courts' limited resources.
Id. at 788.
to make known to the court an objection to the action of the
court and grounds therefor will constitute a waiver of that
objection on appeal. Mayes v. St. Luke's Hosp. of
Kansas City, 430 S.W.3d 260, 267 (Mo. banc 2014) (citing
Pollard v. Whitener, 965 S.W.2d 281, 291 (Mo.App.
1998) and Niederkorn v. Niederkorn, 616 S.W.2d 529,
535 (Mo.App. 1981)). A properly preserved objection will
identify the law with respect to the particular legal claim,
provide citation to authority, and apply that law to the
facts of the case. Mayes, 430 S.W.3d at 270.
in the day on April 27, CII filed a motion for
reconsideration and to set aside the judgment. That motion,
however, did not raise any claim that the trial court's
entry of the judgment violated due process, as CII now claims
on appeal. CII filed nothing else with the trial court before
filing its notice of appeal.
failed to preserve its claimed trial court error for our
appellate review, CII's appeal is denied, and the trial
court's judgment is affirmed. Brown, 423 S.W.3d at 789.
E. SCOTT, J. - concurs in separate opinion
WILLIAM W. FRANCIS, JR., J. - concurs
E. SCOTT, J.
opted to file in the associate division, triggering
advantages to itself as a creditor-plaintiff under Chapter
517 generally and § 517.051 in particular, including a
chance to take judgment on the return date if Dieter did not
appear. CII offers no due-process concern as to that
procedure, so I cannot credit its due-process complaint about
a judgment for Dieter when CII (who had sued and bore the
burden of proof) failed without excuse to appear on the
return date, under a statute ...