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Breeden v. Hogan Transports11/15/2005
Opinion Vote: DISMISSED.
Crane, P.J., and Shaw, J., concur.
Opinion:
In this personal-injury action, defendant Hogan Transports, Inc., appeals from the trial court's judgment denying Hogan Transports' motion to set aside a default judgment entered against it and in favor of the plaintiffs, Theresa Breeden, Elijah Anderson, and Rachel Anderson. Because Hogan Transports' notice of appeal was untimely filed, we dismiss the appeal for lack of jurisdiction.
Factual and Procedural Background
The plaintiffs filed an action against Hogan Transports and Darrin Holt seeking damages for personal injuries suffered in a motor-vehicle accident allegedly caused by Holt, who was driving a truck for Hogan Transports. The plaintiffs filed their petition on March 11, 2003. Hogan Transports was personally served with the summons and petition, by service on its registered agent, on April 22, 2004. Hogan Transports filed no answer or other response to the plaintiffs' petition. The plaintiffs filed a motion for default judgment as to Hogan Transports. After considering evidence and testimony submitted by the plaintiffs, the trial court entered a default judgment against Hogan Transports on July 9, 2004.
Eleven days later, on July 20, 2004, Hogan Transports filed its motion to set aside the default judgment. An amended motion was filed two days later, on July 22nd. This amended motion merely restated the grounds for relief set forth in the first motion. The only amendments were the addition of more detailed allegations, and supporting exhibits, as to the requisite showings of good cause and meritorious defense to set aside the default judgment. The trial court held a hearing on the amended motion on July 23rd, and took the matter under advisement for ruling.
On December 14, 2004, one hundred and forty-five days after Hogan Transports filed its amended motion to set aside the default judgment, the trial court entered judgment denying Hogan Transports' motion, finding that although Hogan Transports had sufficiently alleged a meritorious defense, it had failed to demonstrate the required good cause for setting aside the default judgment. Hogan Transports appeals.
The plaintiffs have filed a motion to dismiss the appeal for lack of jurisdiction due to an untimely notice of appeal. The plaintiffs contend that Hogan Transports' motion to set aside the default judgment was deemed overruled for all purposes on October 20, 2004, ninety days after the filing of the amended motion. The plaintiffs further assert that when they voluntarily dismissed defendant Holt, on November 8, 2004, the default judgment became then and there appealable, with notice of appeal due December 18, 2004. The plaintiffs contend the trial court's December 14th order denying Hogan Transports' motion to set aside the default judgment was for naught, and, further, that Hogan Transports' notice of appeal, filed on January 20, 2005, was untimely filed.
Discussion
A party is entitled to file a motion to set aside a default judgment within a reasonable time for a period of up to one year. Rule 74.05(d); Popular Leasing USA, Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875, 877 (Mo.App. E.D. 2001). When such a motion is filed after the default judgment becomes final, it is treated as an independent proceeding, separate and apart from the underlying judgment itself. Popular Leasing, 57 S.W.3d at 878. When, however, such a motion is filed within thirty days of the default judgment, it is treated as an "authorized after-trial motion" and is deemed the equivalent of a motion for new trial. Popular Leasing, 57 S.W.3d at 877; Klaus v. Shelby, 4 S
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