Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dennis v. Berger

Supreme Court of Missouri, En Banc

September 26, 2017

THOMAS DENNIS and SONYA CHERRY, Appellants,
v.
RIEZMAN BERGER, P.C. and MERCY HOSPITAL JEFFERSON, Respondents.

         APPEAL FROM THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS The Honorable Robert S. Cohen, Judge

          W. BRENT POWELL, JUDGE.

         Thomas Dennis and Sonya Cherry appeal the circuit court's dismissal of their petitions against Mercy Hospital Jefferson and its collection law firm, Riezman Berger P.C. The circuit court dismissed their petitions, which alleged, in part, the improper collection of post-judgment interest. The circuit court ruled the petitions failed to state a claim on which relief can be granted because nontort judgments automatically accrue post-judgment interest even when the judgments do not expressly award such interest. While the petitions may have adequately stated a claim for relief against Mercy Hospital and Riezman Berger for other reasons, this Court agrees with the circuit court's ruling that nontort judgments automatically accrue post-judgment interest. The circuit court's judgment is vacated, and the case is remanded for the circuit court to consider Dennis' and Cherry's remaining claims following the circuit court's dismissal of the claims related to post-judgment interest.[1]

         I. Factual and Procedural History

         Mercy Hospital provided medical services for both Thomas Dennis and Sonya Cherry in separate and unrelated circumstances. After Dennis and Cherry failed to pay for the services rendered, Mercy Hospital sued both Dennis and Cherry in separate actions for breach of contract. Dennis entered into a consent judgment in which he agreed to pay Mercy Hospital $850 plus court costs of $122.94. Similarly, Mercy Hospital obtained a default judgment from Cherry for an outstanding balance of $23, 325.30. Neither the consent judgment nor the default judgment expressly provided for the recovery of post-judgment interest pursuant to § 408.040, RSMo Supp. 2013.[2]

         Mercy Hospital, through its counsel, Riezman Berger, sought to execute on the judgments and collect the amounts it was owed, including post-judgment interest. Dennis and Cherry, in separate petitions, sued Mercy Hospital and Riezman Berger for violating the Federal Debt Collection Practices Act and the Missouri Merchandising Practices Act, asserting, among other allegations, the underlying breach-of-contract judgments did not expressly award post-judgment interest. The petitions alleged Mercy Hospital was not entitled to post-judgment interest and attempts to collect it were fraudulent.

         Both Mercy Hospital and Riezman Berger filed motions to dismiss the petitions for failure to state a claim on which relief can be granted. Riezman Berger argued in its motions that § 408.040 does not require nontort judgments to expressly award post-judgment interest in order for it to bear such interest. Mercy Hospital included no legal reasoning in its motions.

         After the cases were consolidated, the circuit court sustained all the motions to dismiss because the petitions failed to state a claim on which relief could be granted. Dennis and Cherry appealed and, after opinion by the court of appeals, this Court transferred the case pursuant to article V, § 10 of the Missouri Constitution.

         II. Analysis

         Dennis and Cherry argue in their first point on appeal that § 408.040 does not provide for automatic accrual of post-judgment interest. Section 408.040 provides, in relevant part:

1.In all nontort actions, interest shall be allowed on all money due upon any judgment or order of any court from the date judgment is entered by the trial court until satisfaction be made by payment, accord or sale of property; all such judgments and orders for money upon contracts bearing more than nine percent interest shall bear the same interest borne by such contracts, and all other judgments and orders for money shall bear nine percent per annum until satisfaction made as aforesaid.
2.Notwithstanding the provisions of subsection 1 of this section, in tort actions, interest shall be allowed on all money due upon any judgment or order of any court from the date of judgment is entered by the trial court until full satisfaction. All such judgments and orders for money shall bear a per annum interest rate equal to the intended Federal Funds Rate, as established by the Federal Reserve Board, plus five percent, until full satisfaction is made. The judgment shall state the applicable interest rate, which shall not vary once entered.

         This Court reviews a circuit court's grant of a motion to dismiss for failure to state a claim de novo. Anderson v. Union Elec. Co., 463 S.W.3d 783, 786 (Mo. banc 2015). When there is no factual dispute, the interpretation and application of a statute is also reviewed de novo. Billings v. Div. of Emp't Sec., 399 S.W.3d 804, 806 (Mo. banc 2013). "This Court's primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue." Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). While § 408.040 distinguishes between nontort and tort actions, both sections provide post-judgment interest "shall be allowed." Notwithstanding this mandatory language of the statute dictating recovery of post-judgment interest, Dennis and Cherry argue post-judgment interest does not automatically accrue without an express award included in the judgment. They argue, therefore, it was fraudulent for Mercy Hospital and Riezman Berger to attempt to collect post-judgment interest not specifically delineated in the judgments.

         Dennis and Cherry rely on this Court's decision in McGuire v. Kenoma, LLC, 447 S.W.3d 659 (Mo. banc 2014), to support their contention that a nontort judgment does not accrue post-judgment interest unless the judgment expressly so provides. However, McGuire, which dealt with the proper use of nunc pro tunc, was a tort case to which subsection 2 of § 408.040 applied. Id. at 661. McGuire dealt solely with a tort action and referred specifically to the requirement in subsection 2 of § 408.040 that post-judgment interest was not collectible unless it "shall be stated" in the judgment. Id. at 667 (failure to state the applicable rate in the judgment precludes post-judgment interest in a tort action, and this failure cannot be rectified by a nunc pro tunc change). There is an important distinction between ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.