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Universal Credit Acceptance, Inc. v. Ware

Court of Appeals of Missouri, Eastern District, Third Division

May 29, 2018

UNIVERSAL CREDIT ACCEPTANCE, INC., ASSIGNEE OF INSTACREDIT AUTOMART, Respondent,
v.
RENWICK WARE, Appellant.

          Appeal from the Circuit Court of St. Charles County 1511-AC02090-01 Honorable Rebeca M. Navarro-McKelvey.

          ROBERT M. CLAYTON III, JUDGE.

         Renwick Ware ("Defendant") appeals the judgment of the Associate Circuit Division of the Circuit Court of St. Charles County granting Universal Credit Acceptance, Inc., Assignee of Instacredit Automart's ("Plaintiff) motion to reconsider and finding Plaintiffs voluntary dismissal dismissed Defendant's previously filed counterclaims. We reverse and remand.[1]

         I. BACKGROUND

         On April 7, 2015, Plaintiff filed its petition for breach of contract seeking a deficiency judgment after Defendant failed to make payments on a vehicle he purchased from and financed through Plaintiff. After Plaintiffs first two attempts to serve Defendant were unsuccessful, Defendant was allegedly served on September 21, 2015 with a summons and instructions to appear on September 29, 2015. Defendant failed to appear on September 29, 2015, and the trial court entered a default judgment against him.

         On August 16, 2016, Defendant moved to set aside the default judgment ("the motion to set aside") because of improper service; Defendant alleged he had good cause and a meritorious defense. In his motion to set aside, Defendant also requested "[fourteen] days to answer the Petition or otherwise respond." While the motion to set aside was still pending, Plaintiff filed two notices of voluntary dismissal and Defendant filed a proposed answer and counterclaims.

         On September 27, 2016, the Honorable Norman C. Steimel III ("Judge Steimel") entered a judgment ("the September 2016 Judgment") stating, (1) the default judgment against Defendant was set aside; (2) the default judgment closed the case at the time it was entered, the only filings allowed on a closed case are motions under Missouri Supreme Court Rules 74.05 or 74.06 (2016), thus, all filings submitted by the parties other than the motion to set aside were "nullities and of no effect[;]" (3) "the parties are now free to file whatever pleadings they deem appropriate[]" and (4) the case was continued to the October 25, 2016 docket for "further announcement."

         On September 28, 2016, the day after the default judgment was set aside, Defendant filed his answer and counterclaims. Six minutes later, Plaintiff filed a notice of voluntary dismissal.

         The parties appeared before Judge Steimel on October 25, 2016. After several months of inactivity, the court entered an order on April 19, 2017 scheduling the matter for the May 5, 2017 docket for setting or disposition. The next day, Defendant applied for a change of judge and the request was granted by the trial court. Plaintiff then moved to strike Defendant's application for change of judge ("the motion to strike"), arguing the voluntary dismissal it filed on August 19, 2016, while the motion to set aside was still pending, was effective on the date it was filed and deprived the trial court of jurisdiction to take any further action in this case. The motion to strike was denied by Judge Steimel in an "[o]rder/[j Judgment" entered on April 28, 2017 ("the April 2017 Order"), [2] as he found the September 2016 Judgment reset the return date to October 25, 2016, and thus, Defendant's answer and counterclaims filed on September 28, 2016 were timely and operative.

         The case was thereafter assigned to the Honorable Matthew Thornhill. On May 23, 2017, Plaintiff applied for and was granted a change of judge; the case was then transferred to the Honorable Rebeca M. Navarro-McKelvey ("Judge Navarro-McKelvey").

         On June 14, 2017, Plaintiff filed a motion to reconsider the April 2017 Order ("the motion to reconsider"). In support of the motion to reconsider, Plaintiff argued the court had no jurisdiction over the matter after Plaintiff filed a notice of voluntary dismissal. On August 29, 2017, Judge Navarro-McKelvey entered an order and judgment ("the August 2017 Judgment") concluding, (1) Defendant's answer and counterclaims were untimely and invalid because Defendant failed to seek leave of the court to file them and no new return date was set; and (2) the voluntary dismissal filed after the default judgment was set aside was valid, ended the case at that time, and the court had no further jurisdiction to act after it was filed.

         Defendant then filed the instant appeal from the August 2017 Judgment. Subsequently, Plaintiff filed a motion to dismiss the appeal for lack of jurisdiction. Our Court ordered Plaintiffs motion to dismiss to be taken with the case, and the submission of this appeal followed.

         II. DISCUSSION

         In this case, we first consider Plaintiffs motion to dismiss the appeal for lack of jurisdiction, which was taken with the case. Then, we will address Defendant's three points on appeal in the following order. In Defendant's third point on appeal, he argues Judge Navarro-McKelvey had no authority to reconsider the April 2017 Order. In his first and second points on appeal, Defendant asserts Judge Navarro-McKelvey erred in granting Plaintiffs motion to reconsider.

         A. Plaintiffs Motion Taken with the Case

         We initially consider Plaintiffs motion to dismiss the appeal for lack of jurisdiction, in which Plaintiff argues Defendant was not aggrieved by the August 2017 Judgment because the court ordered the dismissal without prejudice as to Defendant and Defendant was "free to file suit against [Plaintiff] in another action."

         Pursuant to section 512.020 RSMo Supp. 2005, [3] the right to appeal generally extends to "[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause." A party is aggrieved by a judgment when: it will directly, prejudicially, and immediately affect the party's personal or property rights or interests; or it practically terminates the case in the form it was filed or in the party's chosen forum. Universal Credit Acceptance, Inc. v. Randall, 541 S.W.3d 726, 728 (Mo. App. E.D. 2018). We determine whether a party was aggrieved by a judgment by examining the particular facts and circumstances of the case, always remembering the right to appeal is to be construed liberally and any doubts should be resolved in favor of allowing the appeal to proceed. Id.

         In response to Plaintiffs motion to dismiss, Defendant maintains he was aggrieved by the judgment he appealed from because it prevents him from bringing his claims against Plaintiff in the form they were filed (counterclaims) or in his chosen forum (state court). We agree. Because the August 2017 Judgment dismissed Plaintiffs petition, Defendant must file his claims as a plaintiff rather than asserting them as counterclaims in the present action. As a result, Defendant would incur additional expenses, his claims could be subject to additional defenses, and Plaintiff might seek to remove the case to federal court where it would be time-barred under the applicable statute of limitations. Liberally construing the right to appeal and resolving any doubts in favor of allowing this appeal to proceed, we find the August 2017 Judgment practically precludes Defendant from asserting his claims in his chosen form and forum, i.e., as counterclaims in state court. See id. at 728-29 (similarly finding). Accordingly, we deny Plaintiffs motion to dismiss the appeal for lack of jurisdiction and proceed to address the merits of Defendant's points on appeal.

         B. Whether Judge Navarro-McKelvey had Authority to Reconsider the April 2017 Order

         We now turn to Defendant's third point on appeal, in which he argues Judge Navarro-McKelvey had no authority to reconsider the April 2017 Order. Initially, Defendant asserts motions to reconsider "have no legal effect in that no [Missouri Supreme Court Rule] provides for such a motion." Defendant also contends Judge Navarro-McKelvey erred in ...


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