Court of Appeals of Missouri, Eastern District, Third Division
UNIVERSAL CREDIT ACCEPTANCE, INC., ASSIGNEE OF INSTACREDIT AUTOMART, Respondent,
RENWICK WARE, Appellant.
from the Circuit Court of St. Charles County 1511-AC02090-01
Honorable Rebeca M. Navarro-McKelvey.
M. CLAYTON III, JUDGE.
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.
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.
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
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."
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
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"),
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
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
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.
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.
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.
Plaintiffs Motion Taken with the Case
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."
to section 512.020 RSMo Supp. 2005,  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.
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.
Whether Judge Navarro-McKelvey had Authority to Reconsider
the April 2017 Order
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