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In the

Missouri Court of Appeals
Western District
A.D.D., ET AL., Appellants, v. PLE ENTERPRISES INC., D/B/A ROLLING HILLS AUTO PLAZA AND KDE ENTERPRISES INC., D/B/A ROLLING HILLS AUTO PLAZA, Respondents.            

WD75270 OPINION FILED: May 14, 2013

Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Weldon Clare Judah, Judge Before James Edward Welsh, C.J., Victor C. Howard, J., and Peggy Steven McGraw, Sp. J.

Lartarsh Woodrich and her son, A.D.D., appeal the circuit court's setting aside a default judgment that had been entered in their personal injury action against PLE Enterprises, Inc. and KDE Enterprises, Inc. d/b/a Rolling Hills Auto Plaza (hereinafter collectively referred to as Rolling Hills). Woodrich and A.D.D. contend that the circuit court erred in setting aside the default judgment as void because the circuit court had acted consistently with due process when it granted the default judgment and because Missouri Law authorized the circuit court to award damages jointly and severally against all defendants. We reverse the circuit court's judgment setting aside the default judgment and remand for reinstatement of the default judgment.

On March 30, 2009, Amy Caren Ballin rented a 2009 Toyota Corolla vehicle from Rolling Hills for a period of two weeks, but paid for only one week. At the time she entered the contract with Rolling Hills, Ballin had a relationship and was cohabitating with Keith L. Johnson. Johnson accompanied Ballin when she rented the vehicle.1 On April 13, 2009, Ballin allowed and permitted Johnson to drive the 2009 Toyota Corolla. At approximately 1:00 a.m., on April 13, 2009, A.D.D. was a passenger in a Ford Windstar van operated by his mother, Woodrich, traveling east on Commercial Street in St. Joseph, Missouri. Johnson was driving the Corolla south on 19th Street at an excessive speed. Where 19th Street intersects with Commercial, there is a stop sign. Johnson failed to slow or stop at the stop sign. Johnson drove the Corolla into the Windstar. The resulting collision threw A.D.D. out of the vehicle. A.D.D. landed face down on the asphalt road and suffered extensive injuries including a concussion, traumatic brain injury, fractured bones, partial paralysis of his legs and arms, bruising and abrasions, broken teeth, headaches, pain in the back, neck, and spine, curvature of the spine, neurological deficits, and multiple soft tissue injuries. On June 22, 2010, Woodrich and A.D.D. sued Johnson, Ballin, and Rolling Hills. Woodrich and A.D.D. asserted claims against Rolling Hills for "negligence and negligence per se" and "negligent entrustment." On July 6, 2010, Rolling Hills's registered agent, M.R.S. Service Corporation, was served with process. Rolling Hills never answered or otherwise defended as required by Rule 55.25. Additionally, on September 17, 2010, Woodrich and A.D.D. served M.R.S. Service Corporation with a notice of a default judgment hearing set for 9:30 a.m., on September 30, 2010. Rolling Hills did not appear at the default judgment hearing

Rolling Hills contends that the fact that Johnson was with Ballin when she rented the vehicle does not appear in the petition. This fact, however, was established at the hearing on the default judgment.

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despite this additional notice. At the hearing, Woodrich and A.D.D. offered arguments and evidence to the circuit court, and, following the hearing, Woodrich and A.D.D. filed a brief in support of their motion for default judgment. On October 28, 2010, the circuit court issued a Memorandum of Findings, which noted that Woodrich and A.D.D. should be entitled to entry of judgments in their favor against each of the defendants for $1,075,725.70. Thereafter, Woodrich and A.D.D. filed a motion for reconsideration of additional evidence pertaining to future damages, and the circuit court held a hearing on the motion. At the hearing, Woodrich and A.D.D. presented additional evidence of A.D.D.'s catastrophic, permanent injuries including the damage to his brain, his ability to interact with others, and his permanent physical limitations. Woodrich and A.D.D. presented the circuit court with pertinent medical records detailing the injuries received and treatments administered to A.D.D. The circuit court also received sworn testimony from the medical doctor that treated A.D.D. immediately after the collision and from his current treating physician detailing A.D.D.'s need for future surgery, treatment, therapy, and rehabilitation. Further, Woodrich and A.D.D. presented a videotape taken of A.D.D. in and around his home. On March 4, 2011, the circuit court entered a default judgment against Ballin, Johnson, and Rolling Hills and assessed damages. The circuit court found that Rolling Hills was lawfully summoned and given notice of the hearing and that Rolling Hills did not appear, plead, or otherwise defend the matter within the meaning of Rule 74.05(a). Further, the circuit court stated that it had jurisdiction over the parties and the subject matter of the action. The circuit court found that the allegations in Woodrich's and A.D.D.'s petition were deemed admitted against Rolling Hills since Rolling Hills had not denied them. The circuit court, therefore, concluded that "the evidence presented by [Woodrich and A.D.D.] persuades the Court that 3

[Woodrich and A.D.D.] are entitled to damages for past medical and economic damages, for past non-economic damages, and for future economic and non-economic damages[.]" Specifically, the circuit court ordered that "Plaintiffs [Woodrich and A.D.D.] are entitled to total damages in the amount of Two Million, Eight Hundred Sixty-five Thousand, Nine Hundred Eighty Dollars and 30 Cents ($2,865,980.30) against Defendants jointly and severally[.]" On April 20, 2012, more than one year after the entry of default judgment, Rolling Hills filed a motion to set aside the default judgment. On May 21, 2012, the circuit court granted Rolling Hills's motion and set aside the default judgment as to claims advanced against Rolling Hills. The circuit court ruled that the default judgment entered against Rolling Hills was void. In particular, the circuit court stated: This Court is persuaded to find that the allegations in the PETITION FOR DAMAGES contained within Counts III and IV thereof fail to state claims upon which relief may be granted against the ROLLING HILLS DEFENDANTS upon their default as provided for by Missouri Supreme Court Rule 74.05, and that the award of damages against [Rolling Hills], jointly and severally with the other Defendants, KEITH JOHNSON AND AMY BALLIN, contained within the FINAL JUDGMENT IN A CIVIL CASE dated March 4, 2011, (hereinafter "JUDGMENT") is not authorized by Missouri law, was erroneous and is void. Accordingly, this Court determines that the ROLLING HILLS DEFENDANTS have met their burden to demonstrate their entitlement to relief under their MOTION from the Court's JUDGMENT by way of Rule 74.06(b)(4) and that, therefore, their MOTION should be Granted.2 Woodrich and A.D.D. appeal from the circuit court's setting aside the default judgment. In their first point on appeal, Woodrich and A.D.D. contend that the circuit court erred in setting aside the default judgment as void because the circuit court had acted consistently with due process when it granted the default judgment.

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Generally, a defendant may move to set aside a default judgment by showing good cause and a meritorious defense. Rule 74.05(d). Such a motion, however, "shall be made within a reasonable time not to exceed one year after the entry of the default judgment." Id. In this case, Rolling Hills moved to set aside the default judgment more than a year after the default judgment was entered against it. Given the passage of time, Rolling Hills had no right to proceed under Rule 74.05(d). Instead, it invoked Rule 74.06(b)(4), arguing that the default judgment was "void." A Rule 74.06(b)(4) motion, which claims that a judgment is void, is not subject to any specific time limit but must be made "within a reasonable time." Rule 74.06(c). Rule 74.06(b)(4) provides that a "court may relieve a party or his legal representative from a final judgment or order . . . [if] the judgment is void." "Courts favor finality of judgments, so the concept of a void judgment is narrowly restricted." Sieg v. Int'1 Envtl. Mgmt., Inc., 375 S.W.3d 145, 149 (Mo. App. 2012). A judgment is "void" under Rule 74.06(b)(4) "only if the court that rendered it lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process of law." Forsyth Fin. Group, LLC v. Hayes, 351 S.W.3d 738, 740 (Mo. App. 2011). "'[W]hether a judgment should be vacated because it is void is a question of law that we review de novo; we give no deference to the circuit court's decision.'" Sieg, 375 S.W.3d at 149 (citation omitted). Personal service on Rolling Hills occurred as required by Rule 54.13(b)(3), by "delivering copies [of the summons and petition] to its registered agent[.]" See also,

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