Sprung v. Negwer Materials, Inc.

SPRUNG, Jr., Melvin James

Respondent, INC., MATERIALS,

NEGWER

Appellant.

No. 71368. Missouri,

Supreme Court of

En Banc.

Aug. 1989.

Dissenting Opinion of Blackmar’s Justice

Opinion Sept. Corrected

Rehearing Sept. Denied Baldwin, Schoenbeck, E. Brent W.

Albert Louis, appellant. St. Merz, Louis, respon-

Charles L. St. dent.

BILLINGS, Judge. appearance request for an extension plead. of time to a, Sprung petition equity This is II— in judgment set aside a default after remand interlocutory The trial entered an court Following in Sprung Court I. an judgment against appellant of default on evidentiary hearing the trial court denied 28,1985. 11,1985, February On March Appeals, The relief. Missouri Court of judgment by trial court entered a final District, Eastern affirmed the order of the $1,500,000. in default the amount of Fur- lower court but ordered the case transfer- concerning ther facts will be adduced red to this Court. Affirmed. occasioning circumstances the default they ment as become warranted our principal opinion Judge Gary M. discussion of the issues. appeals, Gaertner for the court of modification, quotation minor and without 22, 1985, April respondent’s attorney On marks, adopted opinion as the of this appellant’s attorney informed a final Court, and is as follows: judgment Appellant had been entered. Negwer Materials, Inc., Appellant, ap 3, 1985, May filed on two motions to set peals overruling the order of the trial court judgment. aside the The trial court appellant’s petition equity to set aside a appellant’s overruled motion set aside $1,500,000.00 judgment for in favor judgment irregularity for and sustained Jr., respondent, Sprung, Melvin James appellant’s motion to set aside the default against appellant. appeal appellant On grounds judgment pursuant on (1) raises four issues: The trial incor court appeals Rule 75.01. The court of reversed rectly applied declared and the law deter the trial court’s order aside the mining appellant good did not have judgment equitable grounds and af- default1; (2) for reason or excuse denying firmed order motion to set respondent’s attorney failure of to advise irregularity. aside the appellant’s attorney judg that a default Sprung This Court in I decided the mo- requires judg ment had been entered irregular- tion to set aside the aside; (3) Imputing ment be set the conduct Further, ity properly denied. appellant’s attorney ap and insurer to cause should be remanded to the trial law; (4) pellant process violates due appellant’s with directions to treat motion Respondent’s petition fails to state a cause to set aside the final default as Finding appellant’s of action. contentions independent equity. an suit Court merit, to be without is af jurisdiction ruled the trial court lacked firmed. through set aside the the exer- respondent The evidence reveals filed a discretionary powers cise of its conferred petition on December for dam- 75.01, thirty pro- days Rule where cart, ages sustained when a which was expired prior to vided Rule 75.01 had appellant, tipped rented from the over and motion; instead, filing appellant’s an drywall respondent; appellant on the threw independent petition equity re- January personal received service on Inc., quired. Sprung Negwer Materials proceeded Appellant to deliver the 1987). (Mo. Upon 727 S.W.2d banc company to its insurance remand, following evidentiary then delivered it to a law firm. On Janu- hearing, court entered an order the trial 31, 1985, ary in the firm dictat- petition in appellant’s which it overruled entry appearance request ed an and a judgment. set aside the plead. Appellant for extension of time to appellant appeals. from this order that that, upon being asserts documents outset, recognizes the At the the Court signed by lawyer, secretary mailed The trial appropriate standard of review. company. Neither them the insurance unless court’s decree is to be sustained respon- the clerk of the circuit court nor support no substantial evidence to appellant’s dent’s received there is single presenting points appel- issue. one and two of lant's brief as 1. This Court treats evidence, [Appellant] failure to it, weight claims against it is mistake, inadvert- erroneously applies the answer resulted from or it declares or mischance, ence, [Respon- Carron, or accident. Murphy v. law. 1976). [appellant’s] Further, does not concede as noted dent] that, from ‘acci- I, proceeded motion is to failure to answer appellant’s inadvertence, dent, mistake, petition, “[Ap or unavoid- accorded the status plead with pellant] required only not its circumstances unmixed ne- able cause, [ap- it.” ... prove Sprung, also to 727 or whether glect but inattention.’ good for cause or excuse pellant] S.W.2d at had factual matter not its inattention point, appellant In its first claims proceedings in fully addressed the before refusing in the trial court erred set aside proceedings trial Further the court. equitable grounds. on the default required. prevail setting In order for one to in aside a (emphasis at 890 in Sprung, 727 S.W.2d equitable grounds, judgment on he default original). defense, good a meritorious rea show Thus, is wheth dispositive issue or for the and that no son excuse er not was evidence for or sufficient injustice party will accrue who ob appellant’s the trial to conclude that tained the default as a result of conduct, accident, mistake, be it considered judgment. aside the 727 Sprung, mischance, inadvertence, not or was un S.W.2d at neglect mixed with or inattention. Appellant’s principal argument is that of Appellant entry ap- admits that its wrong the trial court used the standard for pearance proposal for an extension of determining appellant good had whether plead by re- time to were never received Appel reason or excuse for the default. attorney spondent’s filed the trial or with lant maintains that a who seeks to copy original and of court. Both the only set need apparently ap- sent to the documents were diligence show “reasonable or excuse for pellant’s company. Appellant’s insurance citing Whitledge default” v. Anderson system firm utilized an internal to alert Activities, Inc., law 116 Air 276 S.W.2d an if an order mailed to the court (Mo.1955). Appellant notes amend further granted. receptionist not 74.05(c), 1988, was reviewed January ed Rule effective day Daily each to determine “good Record which states that cause includes a requests by law firm for ex- intentionally mistake whether or conduct that granted; if recklessly or tensions of time had been designed impede judi request process.” reflect Daily cial I un Record did not The Court in time, criteria, equivocally granted enunciated the at least had been within reasonable attorney to independent in the called for the context action the mechanism However, although equity, determining “good reason or no re- notified. flecting granting of an extension of Adopting language excuse”. contained Record, Hamm, appeared Daily v. 453 in the Hamm time ever firm to (Mo.App.1969), inquiry the court declared that was made the law deter- “good no further reason excuse” when the mine the status exists accident, approximately forty- "by default occurs reason mis action was taken until take, inadvertence, days prepared firm mischance or unavoid nine law pre- proposed order. In addition to the neglect able circumstances unmixed inattention_” ceding safeguard, firm also had a (emphasis original). the law whereby printout all court Fitzgibbon system Patterson v. See also Discount placed (Mo. relating to cases Corporation, 339 S.W.2d actions was attorney. on desk of each App.1960). opinion Sprung specif daily present case reflected ically defined the issue the trial court’s 15, 1985, printout. by stating: determination the March negli- part appellant’s gence of clients or the omission or Conduct on the company to the gence attorneys, insurance also contributed or both. appellant’s attorney and his default. Both observation, To this insurance carriers copies secretary testified that of court doc- should be added. plead requesting uments time to and en- The law is well-settled that the appearance routinely were not sent tries a defendant’s or his insurer which company. to the insurance The claims imputable results in a default manager company, the insurance who United, defendant. Ward Cook charged monitoring the file in the Inc., (Mo.App.1975). S.W.2d case, testified present that she had Luce, Appel- at 508. See also S.W.2d original yellow seen a court memorandum places lant much reliance on the decision requesting time to she re- before Activities, Air Whitledge v. Anderson present the one in the case. She ceived Whitledge at 114. The Court acknowledged ap- that it would have been general negligence reaffirmed the rule that parent cursory from a of the examination permitting attorney judg- an a default she from the firm documents received law imputable at 116. ment to the client. Id. that at least some of them were intended However, states, the decision does not “[I]t Nonetheless, for the court. the claims necessarily applica- the rule is follow that manager placed the documents insur- retained ble to a case where defendant has company’s ance file and advised no one. counsel, and counsel abandons the defense These facts indicate of the case without notice to his client-de- possible neglect ment the result of was holding Whitledge fendant....” The by appellant’s inattention firm and in law consistently has been restricted to cases particular company. the insurance attorney which an abandons his client. See authority supports Much the denial of Thrower, 40, 41-42 Rucker v. 559 S.W.2d judgment relief when a default is the result (Mo.App.1977). present case involves mishandling In of documents. Jones v. suggestion no claim or of abandonment. (Mo.App. Chrysler Corp., 731 S.W.2d 422 1987), I, which was decided after during progress lawyer charged states, “[Mjisrouting papers the court duty, pre in fact of a cause with the organization within an does not constitute sumed, going on in his to know what is good for default nor does it show cause 475, Vaughn Ripley, v. 446 S.W.2d case. Jones, neglect.” In excusable Id. at 427. (Mo.App.1969). vigilantly He must fol 480 secretary inadvertently for the defendant progress of a case which he low the dictated, sending letter, delayed timely v. Dodge also involved. Id. See Safe firm the defendant’s law until after a de (Mo. Inc., Sales, 101 Guard entered; refused fault had been the court And, although App.1962). the law favors judgment. to set aside the Id. at 425. merits, generalization trial on the such Further, where the default is caused applied facts of carefully must be mishandling of documents defendant’s for, justice; in the interest of each case Christian, legal department, Hughes v. 586 integrity equal vigor the law defends with (Mo.App.1979), 792 S.W.2d procedural rules legal process company, defendant’s insurance Luce v. disregard and, thus, does not sanction (Mo.App. Anglin, 535 S.W.2d 507 Luce, 507. This thereof. S.W.2d 1976),the trial court’s denial of relief to the point is denied.2 defaulting party upheld. As not has been Barney Suggs, appellant ed in v. claims point, In its second J., 1985) (Welliver, dissenting): attorney ad respondent’s the failure attorney a default appellant’s that are the result of vise judgments Default until after had entered negli- judgment intentional omission or been either the respondent no in- good termining would sustain appellant that failed to show 2. Because has default, delay justice were the as a result for the the Court need cause excuse set aside. trial court erred in de- not decide whether the attorney notify defendant’s setting plaintiff's entry provides a basis undisputed respon- appearance judgment. attorney, who had entered answer, appellant attorney dent’s was unaware filed an in the case but not represented by counsel or was intended take a plaintiff’s attorney intended to de- days fourteen defend claim until after judgment provided a basis for fault final had been entered. present judgment. aside the entered on March respondent’s attorney did not know that Respondent appellant’s received answer on by an appellant represented attorney 25, 1985, requests March 23 or judgment was en- until after the default Respon- March discovery on at- tered. Court concludes attorney appellant’s dent’s did not contact torney duty had no to inform the defendant attorney thirty days until over after the judgment had or its that a been There is was entered. no conten- entered. appellant’s tion that the conduct attor- point, appellant In its claims third bearing ney on the appellant’s imputing the conduct itself. should obtaining fault, S.W.2d at 359-60 In rejecting lowed sional law.... The procedure ... ^[******] this Court notify [DJefendant our interlocutory judgment rules, a contention that a defaulting stated: Barney was plaintiff statutes, personally defendant v. Suggs, utilized fol- and deci- plaintiff served nale for text. This unjust for a client to be bound of his 8 L.Ed.2d 734 appellant States ney Co., 370 U.S. attorney. Supreme distinguishing due point insurance 626, 634, process (1962). insurer Court Link Wabash Railroad is denied. company We discern of law. The United holds that between appellant S.Ct. by the in this 1386, 1390, an it is denied attor ratio con acts petition put point, appellant with summons and In its claims was fourth stage every proceed- respondent’s on petition notice does state a (citations omitted). remanding present cause of action.

case, Sprung suggest direct or I did not issue, that the trial consider this al court, though the thus issue was before This implicitly rejecting the claim. Court peti will nonetheless consider whether action. tion states cause of Initially, sufficiency notes the this Court stage petition may of a be raised at including appeal on after proceeding, judgment. Sumpter v. Sieben Con J.E. 150, (Mo. Co., 153 struction 492 S.W.2d App.1973). sufficiency

But when the attack on the petition for the first is made time Inc., Caring Group, In Friedman v. The good held appeal, pleading will be (Mo.App.1988), S.W.2d 103-04 wholly it fails to state a unless it issue of the conduct of a attor- [sic] action, in cause of this determina ney as of a default tion, given its petition fullest appellate squarely before the court.3 Elly for relief. The intendment as a claim court refused to hold the failure set presented in order to forth This notice of own records 3. issue was court in opinions briefs filed in that case. See Lemmon v. Conti- of cases to facts not within contained Co., Casualty nental Mo. guidance.) which looked (Mo.1943) (The judicial Court took Light Power wrongful involving gratui son et ux Missouri & death action Co., Mo.App., bailment; 717. the present A tous action involves after petition non-gratuitous point will be found sufficient This bailment. if, allowing reason those denied. necessarily able inferences and matters judgment of court is af- the trial stated, implied from the facts [are] firmed. [allegations] the de sufficient to advise certainty as fendant with reasonable COVINGTON, J., separate in concurs upon the cause of action it is called opinion filed. for the same meet and bar another action RENDLEN, J., separate in concurs Allright Kan subject-matter. Barber v. opinion separate filed and in concurs Inc., City, sas Mo.App., 472 S.W.2d COVINGTON, concurring opinion J. Sumpter, S.W.2d at J., HIGGINS, concurs in concurs and concurring separate opinion of respon Applying principles these COVINGTON, J. petition, finds that dent’s the Court damages petition states a valid claim ROBERTSON, J., dissents negli appellant's were the result of separate opinion filed. impli gence. petition alleges by clear BLACKMAR, C.J., dissents provide appellant duty cation opinion separate filed and concurs reasonably safe cart. It further states dissenting separate opinion of appellant duty by sup breached this ROBERTSON, J. reasonably plying a cart which Specifically, alleges petition safe. that WELLIVER, J., separate dissents poor the wheels on the in a state cart were opinion separate filed and concurs on un repair and not safe when used BLACKMAR, dissenting opinions of ground. further states even C.J., ROBERTSON, J. cart, rented, safe for was not COVINGTON, concurring. Judge, use intended it could not hold a the drywall tipping Although naturally over. The one is inclined to be load of without proximate permitting re to relief from the petition sympathetic concludes that as a dam in this the respondent sult of the breach the to characterize neglect or negligence— attorney’s All conduct excusable aged. the elements breach, ignores set- proximate dam duty, cause and mistake unmixed with stated, upset precedent and American age sufficiently tled threatens to —are rule. Mortgage Investment Co. v. Hardin- stability final Court’s litigation Corp., parties end Litigation must and to Stockton 671 S.W.2d 292-93 a finally to conclude appellant ability as to must have an (Mo.App.1984),to advise on the mer- however much decisions cause of action and to bar another action matter Sumpter, preferred. subject of a case on the same matter.

S.W.2d at 153. in a try makes little to to define It sense “mis- subjective such terms as respondent his claim chose to base vacuum take,” “inadvertence,” negli “mistake unmixed against appellant general upon a meaning neglect.” have gence theory. Appellant’s assertion that with These words specific only of action for in a factual context. states a cause therefore, do, instru the Court could negligently furnishing dangerous most that a request for an mentality sending “dan a is without The term to decide whether merit. in- client “dangerous of time to to a gerous” or does not extension condition” unmixed petition. Accordingly, appel of the court is a mistake appear stead already neglect. Prior seems Ridenhour v. Colson with reliance on case law lant’s issue; neglect on Corp., (Mo.App. Caster have resolved that S.W.2d 938 vacating 1985) lawyer prevent Ridenhour was a misplaced. part of the will Conduct, it is where Rules of Professional except where at- completely torney preamble: has abandoned the stated in the client. lawyer professional functions a all hearing after remand this competent, prompt

Since dili- should adopted the Court has a new default case gent. lawyer maintain commu- should rule, 74.05, Rule which contains concerning rep- a client nication with approach aside a a more liberal resentation. judgment when the motion do so attorney’s responsibility as an It was the problems year. If the is made within one sys- adversary in our advisor of client (Mo. I, 727 S.W.2d 883 banc he tem to do what did: 1987), Barney Suggs, clients, lawyer representative As a 1985), been could have re- advisor, performs functions. As various petition in equity, there would solved client an in- lawyer provides adopt a new default have been need understanding of the le- formed client’s judgment rule. It would be a distortion of problems gal obligations explains precedent say rights that these now along been resolved by could all have practical implications. their separate petition equity. That was not added.) (Emphasis Id. teaching Suggs, was, course, He more than advis- an problem, however, more serious or—he an advocate: precedent for case will be other advocate, lawyer zealously As asserts separate petitions cases—those filed as position the client’s under the rules equity as well as those filed under Rule system. adversary 74.06, permits a final to be mistake, inadvertence, for set aside sur- added.) (Emphasis Id. neglect. prise, peti- Neither a excusable communicating with the client and After proceeding tion in nor a Rule 74.06 terms, explicit explaining the situation applies limited to default cases. Each they as to the course of shared decision equally to cases decided on merits. A follow, action all consistent interpretation liberal “excusable ne- Rule 1.2 of Rule 4 which provisions of glect” neglect” or “mistake unmixed with that, specified in certain except indicates judgments undermine both default instances, by the shall abide

judgments in cases decided on merits. concerning the objectives decisions client’s approach The more liberal of Rule 74.05 Though in representation. the case appropriate defaults but not he was bar we need decide whether Notably, cases decided on the merits. obligated absolutely follow the client’s to approach applied more is to liberal not direction, plaintiffs it is clear that counsel year, and, notably, faults after one faith, difficult, good decision made a albeit petition are no time limitations on in As- say cannot was unethical. which we except equity for laches. arguendo suming respondent’s counsel I concur. disregard chosen to his client’s direction judgment and the had been vacated RENDLEN, Judge, concurring. conduct, clearly behest, or as a result of his outset, At the we should be mindful that failing charge comply he risk a to would adversary system ours is an it is in this and obligation imposed by the Rules of with an judi- context that evaluate the sub we case Conduct, say nothing of to Professional ce. malpractice claims his client that could When, during litiga- the course of this flow from the formidable choice he tion, respondent’s attorney received infor- required to make. appellant represent- indicating mation too, I For reasons concur counsel, these promptly he communicated ed opinion of Court. required majority this fact to his client as Rule ROBERTSON, dissenting. Judge, I. in Suggs First, prior exists the law

A fundamental tension case law to is consist- The law relating judgments. to default 74.06(b) permitting Rule in ent with conflicts; it also seeks favors resolution sitting equity in to a final set aside default of the justice. It is from the failure judgment on the basis of defendant’s every in justice law to do circumstance provided that that mistake mistake not emerged. the fourth cen- equity has From product neglect or inattention. Nei- B.C., philosopher tury the words of the “neglect” ther nor “inattention” have been purpose. “For equity’s that which describe in the context of default defined equity equitable just, seems As the ments. discussion follows beyond goes the written law.” justice that shows, purposes equity in of suits Rhetoric, Aristotle, Li- 1374 Loeb Classical judgments, neglect set aside default (1935). brary simply majority a careless act as the as- Barney v. In this Court decided sumes; majority’s it is inattention. 1985). (Mo. banc Suggs, 688 S.W.2d 356 conclusion, therefore, proceeds from a fail- decision, Prompted by that which demon- upon clearly ure to understand the test have overem- strated that “Missouri courts relies to case. which it decide the importance efficiency and phasized the Inc., Materials, Negwer Sprung v. finality an increas- and have demonstrated I), (Sprung 1987) ing disregard importance for the motion to held that the defendant’s set system’s to seek the judicial mission judgment eq- default established aside the truth,” Laughrey K. au- Professor Nanette grounds relief. The case came uitable articles, the reform thored two which led to judge to this Court after the circuit set adoption Rule 74 and the of Rule 74.06 equitable “on aside the default Laughrey, relating judgments. to default Appeals, grounds” and the Court of East- Missouri, Judgments 50 Mo.L. Default District, reversed. The issues before ern (1985) I), and Lau- (Laughrey Rev. Sprung I the Court were limited “the ghrey, Balancing Finality, Efficiency, of the circuit court to set aside jurisdiction Proposed and Truth: Reform grounds the default Provisions, Judgment Missouri Default propriety procedures em- II). (1986) (Laughrey 51 Mo.L.Rev. 63 ployed by the circuit court judge found that circuit aside.” Id. at 884. The timely defendant’s failure in a to answer mandate the case with Court’s remanded product mistake. Rule fashion was treat directions to circuit court to 74.06(b) language employ does pro- motion as a cases, found in the “unmixed with improper that basis. read ceed on the court permits or inattention” holding more the Court’s en- of a relieve broadly than that mandate. Under tered under these circumstances. 74.06(b), in this the new Rule defendant remand, the court found that the On trial would be the default case entitled to have prepared attorney for defendant averring upon set aside motion appearance proposed order extend- “mistake, inadvertence, or excusa- surprise, within three time which to neglect” filed the year within one ble receipt summons and days of his of the 74.06(c). judgment. entry of the Rule See and within from the defendant Orig- of defendant. twenty days service on argue Rule 74.- I do however that copies of documents were inals and these case; 06(b) been controls this it had neither carrier to the defendant’s insurance sent time adopted nor become effective at the attorney’s along original the of the with court issued Never- the circuit its decision. requesting clerk theless, letter to the circuit in favor two considerations militate proposed presented order setting of default signature. judge The circuit also judge for this case.

105 final ad which has on default and become that defendant filed its answer found term, 23, found judge journment The circuit of the is well established.” March 1985. mailed a 2 quotes defendant’s Jackson further that 748. also 131 S.W. at deposition take and a certificate “In all Jurisprudence, notice to Story Equity § 29, 1985. mailing interrogatories March mistake, accident, or fraud cases when place more than three All of this took advan party a has an unfair or otherwise plaintiffs informed counsel weeks law, tage which proceedings a court before that he counsel had obtained defendant’s instru necessarily make court an then, was, by fi- judgment, which therefore, is, injustice, ment of and nal. use that against conscience that he should advantage, equity a court of interfere will three The trial characterized using him from the advan and restrain mismailing original en- of the events—the . tage.” and memo- appearance time to try

randum, employee failure of an Judd, 161 Mo. cites Smoot v. McElvain signifi- company to insurance realize 854, (1901), authority 857 61 S.W. receipt original cance of the neglect with or inatten- for the “unmixed memorandum, and the failure of defen- Pomeroy’s Smoot language. quotes tion” receptionist notify attorney’s dant’s Jurisprudence Equity § report noting of the default in action at law “Where the defendant an constituting legal newspaper “ne- —as merits, good defense has a on the glect majority inattention....” prevented by from he is accident and, seizes this conclusion without burden- any making available, without up or analysis meaning an itself with part, negligence or inattention on “neglect” eq- or “inattention” within an him, against and a rendered context, affirms uity the trial court. on his equity jurisdiction exercise its will Hamm, 449, 453 Hamm v. by enjoining proceedings behalf further Sprung I (Mo.App.1969), upon cited in setting it judgment, or to enforce relies, majority which the tells us that aside, had on the so that trial against “[ejquity will relieve Pomeroy merits.” omitted]. [citation fraud, for extrinsic mistake accident and is there of accident And what said omitted], and where a defendant [citation concerning by the repeated same author present denied the occasion to a meritori added.) (Emphasis and fraud. mistake accident, mistake, ous reason of defense language origin find the At last we inadvertence, mischance cir or unavoidable in Hamm. phrase “unmixed found unmixed or inat neglect cumstances paraphrase inattention” is tention,” a court of vacate a Pomeroy’s Equity treatise on 836 § give par injured I do a Missouri Jurisprudence. not find ty present opportunity his defense to or “inatten- “neglect” which defines case origi (Emphasis the trier of the facts. Undoubtedly, courts felt tion.” nal.) Fitzgibbon Hamm cites Patterson v. phrase Pomer- to define because need Corp., 339 (Mo. Discount S.W.2d Pomeroy so. does states: oy’s treatise quoted App.1960), as authority for the occurrence ex- unexpected is an accident Pat analysis. statement without further by it.... ternal affected Wertheim, in turn cites Cherry terson v. internal; hand, Mistake, on the other 118, 121 (Mo.App.1930), likewise condition, conception, mental it is a analysis. Cherry Jackson without cites understanding, Chestnut, conviction Mo.App. 131 S.W. —erro- indeed, convic- neous, but none the less a Maloney, (1910), McElvain v. tion, and leads influences the will Jackson (Mo.App.1916). S.W. —which physical outward manifesta- accident, to some preventing “That an de states: distinguished It is also negli fense, tion. ... unmixed with fault from thought inattention absence gence litigant, of a sustain a bill will of negligence.... which are inherent against equity for relief a of Loepfe, Mistake, therefore, meaning F.2d within the 691 (D.C.Cir.1970)].” Laughrey II jurisdic- at equity, 74.06(b), as the occasion of 73. Rule of and if applied case, to this tion, condition, permit mental is an erroneous would default ment conviction, ig- to be set conception, induced aside. norance, misapprehension, or misunder- recognizes a new rule balance truth, negli- standing of the but without finality must be cast between and the resulting gence, in some act or omis- and view, justice. my search for In the new erroneously by sion done or suffered one entirely precedent rule consistent with transaction, parties or both the to a but properly attempts understood and the rule being in- its erroneous character justice policy regard- without to restore to the law’s time. judgments. justice or known default If is the tended laws, system particular- focus of our of Pomeroy, Jurisprudence Equity § acknowledges ly system added). neglect (emphasis Pomeroy, For equity injustices of need for to correct the are essentially synon- and inattention rules, applications harsh the result ymous; results from doing mistake an act ought the product this case to be of that erroneously from the not failure act justice, concern for not a mechanical and which constitutes or inattention. punitive application of now-abandoned equity, simply is not a care- mistake precedent. misinterpretation of rules and purposes less act Equity justice, not incantation. demands it is cor- judgments; thought fault an act I would reverse the trial court’s decision done, ultimately rect when but which and remand this case a trial on shown to erroneous. respectfully I merits. dissent. findings judge's In this the trial fact, generally great to which we accord BLACKMAR, Justice, Chief deference, show that defendant’s attor- dissenting. ney’s action and composed in principal opinion, product followed were not the of “inatten- Court, princi- three faulty in at least neglect”, Pomeroy appellate tion or as (1) departs pal respects, as from follows: phrase employed, to be intend decisions equity jurispru- principles established erroneous, belief, though but of a dence, clearly citing are distin- cases which exactly had been filed. This is answer authority guishable ignoring pertinent sort of mistake for which historical- which, deny as from so relief ly relating provides relief matters least, only final as the very at the became judgments. mistake; (2) it sanctions result of mutual professional standards the dilution II. condoning lawyer’s in deliberate- conduct Second, policy considerations favor- ly allowing proceed under opponent to “(1) ing finality no as- are three: there is correcting assumptions, the as- mistaken relitigation produce surance passage of rela- sumptions only result; (2) judicial economy de- different tively given him a decided short time had litigation (3) manifestly mands that there be advantage; an end it reaches a ...; (3) certainty result, compulsion finality produces unjust under the up- promote precedent authority, confi- the face of necessary law that is but holding very judgment without tri- judicial large II system.” Laughrey dence in the re- considerations, al. would vacate policy at 71. Of the three the de- mand directions set aside in the “only certainty compelling seems pro- trial to judgment and allow the fault ‘A default judgments. context of default ceed. normally be viewed adversary process only available when the 1. The Facts essentially has been halted because of principal opinion unresponsive party.’ Livermore The facts detailed [H.F. incomplete. The facts are uncontra- Aktiengesellschaft Gebruder Corp. lawsuit,” I told Carron, and that’s what dieted, it’s still a Murphy and so v. 1976), (Mo. no presents bar him. banc full to our review. Q Ely appeared you it to that Mr. So had realiza- filing was an answer and no 11, January The defendant was served on already tion been a that there had counsel, assigned The defendant’s judgment? fault company, received the its insurance 31, A That’s correct. January on summons and steps time immediately took to obtain to Q He you passed that information And answer, preparing request for file an Sprung? toon Mr. 21, but, through to March extension Right. force, the clerical mistake office insurance were mailed to the documents Ely ... have been Kortenhof copies routinely requested company which responsible for ... But I said the default documents, the court or of court and not to know, it you “I could talk to him about single This act to counsel. if If they’re and find out involved. to negligence, properly attributable involved, they’re file a to they’ll motion possible that the mistake could client. said, I set aside.” “If the insurance it if insurance com- been discovered the have they’re in- company’s involved and carefully papers pany had examined volved, they’re going still to file motion it, attorney’s if mailed to the defendant’s aside,” basically to it set it and that was Daily staff noted entries in the office had said, “Well, mean and he what will that Record, springs problem but the essential said, you I “There’s a chance me?” from the initial clerical mistake. said, (sic),” your can and he lose verdict quite properly filed a Plaintiff's counsel it.” "Don’t do judgment by on motion Febru counsel further testified: Plaintiff’s 28,1985, response ary he no when received day period So the 30 I waited Nothing petition. indicates that he days, until 10 more which would be represented idea who defen appeal and sometime after normal time He dant at this time. then obtained a that, 42nd, 41st, depending on maybe the evidence, setting, put granted and was was, I don’t day what week $1,500,- judgment in the amount of said, recall, phone I called Ben on the 000 on March 1985. The so “Ben, see I’d like come down and subject being set aside on obtained was said, you,” “Okay.” he And I came 10, 1985, April filed on or motion before Vandergriff on talked to him. downstairs and the discretion of the trial court. R.R., Missouri v. Pacific 1989). (Mo. banc Materials, Inc., 727 Negwer Sprung 1987) I), Defendant’s counsel did not (Sprung S.W.2d 883 prepared case. He and filed an answer on held stated claim these facts 23, 1985, mailing plain- copy March decide relief. now We prepared tiff’s counsel. He then written properly applied whether the trial court deposi- interrogatories and a notice to take principles jurispru- established mailing copies on March tions facts. For the undisputed dence plaintiff’s counsel. follow, did I submit that it reasons which not. response plaintiff’s counsel best words, described his own follows: “Neglect 2. “Mistake” vs. [Sprung, to tell plaintiff] I called him Inattention” day period there him that within the Judge expounds the sense Robertson and he asked had been an answer filed accurately, said, principal “I I whereas meant don’t me what that holding faulty. this, opinion’s analysis of its they but really know what mean circumscribing purpose There is an now thinks that who equitable power. plaintiff court's historic That ment when the out an sued execu- guilty counsel is of “mistake” totally distinguishable defendant’s tion. The case is neglect” “inattention rather than there the defendant had previously because proceeding by his with the other to set shown moved aside the default pretrial steps equi- Decades of took, case. perfect, and then but failed to ty support granting of relief un- cases judicata from the denial. Res appeal undisputed facts of this case. der the The clearly barred attack for collateral relief principal opinion simply ignores strong which could have obtained been on the authority. line of appeal. abandoned Covington suggests,

Judge I, in holding that the defendant’s [A]ny neglect part lawyer equity, on the necessarily motion stated claim in prevent vacating judg- respected will the default us to examine invites authorities except where ment has com- Pomeroy’s Equity Jurisprudence, such as pletely abandoned client. originally published his pas- in 1881. To the sages Robertson, by Judge relied on I suggestion flatly contrary to our This Ed., (5th the following would add opinion Whitledge Air Ac- v. Anderson 856b): Symons, § tivities, (Mo.1955), 276 S.W.2d 114 which Culpable Mistake Must Free from appeals control the court of cases would Negligence. requisite, a second principal opinion, cited in the to the extent —As general very has sometimes said in been any in- that there is conflict. That case resulting terms that mistake from the to volved confusion as whether the default- negligence complaining party’s own coverage. defendant insurance proposition never be relieved. This is not judge expressly The trial found as follows: sustained the authorities. It would be negligence is guilty Defendant say more accurate to where the mis- failing appear inexcusable wholly take is the want of that caused prior January in this case diligence care and the transaction 21st, 1954. by every person which should be used nevertheless an abuse of dis- We found prudence, reasonable and the absence of when the trial court refused to set cretion legal duty, would which be a violation aside on That motion. interpose a court of will not appears pertinent to be the latest relief; guarded more but even with this Court, ample from this furnishes au- word statement, neg- mode of each instance of1 thority for aside the default great ligence depend ato extent majority frankly say case. The should upon It its own circumstances. is not it is now overruled. negligence stay every that will the hand distinguish principal opinion The tries to of the court.... that case on the basis that it involves Missouri authorities consistent. rather than “mistake”. “abandonment” v. Fire and Moreland State Farm Casual per- not at all attempted The distinction is Co., ty (Mo.App.1983); 662 S.W.2d 556 suasive, on the law and the facts. Can it Sloan, 559 State Bank v. Cameron S.W.2d that a have relief if be the law client (Mo.App.1977); Berry v. Continental 564 fault, greatly but not if Co., Insurance Mo.App. 33 single logic The there is but a mistake? Life York Insur (1931); New S.W.2d holding escapes I such a me. cannot see Life Gilbert, Mo.App. ance Co. Whit- possible distinguishing basis (1923). S.W. ledge. opinion the defen- shows that performed essentially dant’s counsel concurrence, Judge Covington’s now counsel in this case. defendant’s speaking judges, give fails three pertinent equitable attention authorities. opinion qualification principal cites Thrower, suggested has been that the rules for Whitledge Rucker v. only 559 It judgments in which relief from differ from (Mo.App.1977), 41-42 principles sought governing contracts and defendant avoid a simply futility, should have sus- is not so is cise deeds. That this shown (Second) sug- Judgments judgment, as there Restatement tained § (1982): gested by Judge Rendlen. comment b neglect. The first re- b. Excusable 3. of Plaintiff’s quirement initial Effect is that failure Counsel’s Conduct respond plausi- of the action to notice requirement bly explained. This is com- can understand concern about final- ne- monly to as “excusable referred ity judgments any judgment if could be glect,” although that seems a misnomer opened simply finding up limit without excusing depends the because Contrary mistake or inadvertence. ini- circumstances only on the concurrence, suggestion in the this respond on the tial failure to but also danger. presents Equity record no such other stated in this Section. conditions has an this concern the re- answer for rate, anyAt must be is that what shown mistake, quirement justify in order to that respond was failure to attributable relief, equitable must mutual. The be mishap not indifference or deliberate consistently cases hold that the mistake of disregard notice.... of the party opposing one is if the mutual envisage quotation I is knows the mistake. cannot which appropriate more to describe the situation testimony Plaintiff’s counsel’s own in this case. perfectly that shows he was well aware of just happened Also consistent with the authorities what had when he received com- cited, supportive proposition that munications from defendant’s counsel on grounds equitable relief judg- from March 23 March 1985. He knew involving proceeding ments similar to those con- that counsel with the Overton, deeds, Overton assump- tracts is mistaken fense on the (1931). properly pending, 327 Mo. it There a tion that was that man papers had deeded acres of land to his son the extension have died, larger before he out of a reached him courthouse. He knew tract which or the alerted, he subsequent owned. On his his that if defense counsel were death partition probably heirs be filed a suit which the son default would set Vandergriff, supra. was named as a defendant aside as of because he had course. against claim the estate and to He also knew if the situation remained declined that join passed, as plaintiff. pre- April the same 10 had who until pared infinitely included the 12 default would more difficult to son’s circumstances, description Knowing acres in land these and the son set aside. answering partition deliberately allowed he refrained from en- tered, mail, assuming acknowledging plaintiffs’ from attor- even ney had described the land His conduct should shock correctly. Final communication. directing partition right-thinking lawyers. was entered all including property the 12 acres. The say not hesitate to that Court should conveyed acres sold and were to another unacceptable in kind of our this conduct party. held that the son We was entitled litiga- processing of civil profession. The against relief final requires lawyers deal with each tion negligence in spite ment in of his not check- highest in accordance with the stan- other description. opinion stated The two candor. com- dards of trust and negligence “superinduced” by this response within a for a munications called plaintiffs’ attorney. time, reasonable delay.” Perhaps the cases case means “without plain

It from cited that the duty to tell his counsel did not have a mistake of defendant’s does not counsel he many if sought, opponent bar the so words relief now otherwise default, very he at the least equity. available in Were other- taken but law wise, saying, “we have no Sprung would I have could dictate a letter been an exer- Appendix. See commerce. involvement the world of your

record of firm’s recog the courts have similar situations case.” nized In the equitable remedies. tradition lawyer that a has accept proposition I Columbian Nation exemplar, al casebook client’s all duty to advance his interest - Black, supra, Co. v. al Insurance Life means, reject and would honorable 574, the said: F.2d court courtesy” suggestion “professional the policy received prevail lawyer’s duty to his When over the [the insured] should did I as a he did or not notice error. client. would like to be remembered either it, lawyer who all out his clients. If not notice the mistake was went he did taking advantage stop I But would short If he did notice it and mutual. said to me. Nor I of a mistake known would nothing, guilty ineq- he was of such in which the Court sanction situation conduct to amount fraud. uitable get permits lawyers away other which a Here too there conduct legal equiva- which consider conduct equiv- legal hold should to be the National Columbian See lent of fraud. alent But not have of fraud. we do to Black, 35 F.2d Insurance v.Co. Life the conduct as fraudulent. characterize Court, (10th Cir.1929). This in the last gives “mutual Equity also relief for mis- the which Missouri analysis, sets standards take,” includes mistake of one which the It should not allow lawyers observe. party, the known to other. plaintiff profit his to this (Second) Judgments of The Restatement deceptive deceptive or si- from conduct c states as follows: comment § lence. If party obtaining the the [default] legal In one of the earliest treatises on indicating on notice facts ment was Sharswood, George Judge the late ethics insurer, neglect by or Pennsylvania, Chief sometime Justice weighing is a factor favor of that speaks as follows: relief. carefully most Let shun [the reader] Contracts, (3d 12 at Williston Vol. sharp practitioner. reputation of a 1970), (Saeger) Ed. comments: slips him over- Let be liberal to mistake, apart from sights opponent of his he can Unilateral even whenever so, plain knowledge party him- to the do cases not shelter other mistake, has behind instructions his client. been held self transaction require relief; it right justify has to him to to and has The client some cases up justice illiberal—and he should throw be been held with undeniable knowledge against do what by party brief sooner than revolts one mistake sense justify his own of what demanded the mistake the other will re- and propriety. (Empha- honor fully lief as mistake. as mutual added). sis Sharswood, An Eth- Essay on Professional (6th Ed.1930). ics, 73-74 Jurisdiction, su- Pomeroy’s Equity And following pra, require lawyers comply in the puts We should issue § standard, only as a language: not matter positive rule professional courtesy, but as a of a mistake be the effect Whatever duty reply Here of law. there was simple, no doubt that pure and there is and, correspondence, since there was defensive, relief, equitable or affirmative limit, response some sort of critical make ignorance granted or when the Lying in that time limit. until within wait concerning misapprehension stripped meaning of its response was which legal effect of transaction not be countenanced. should concerning legal his own engages, he or affected, is in- rights are to argue on But we do not have to the basis accompanied duced, aided, procured, legal profession. special rules par- the other inequitable conduct of really coun do not believe ineq- such acceptable necessary ties. sel’s conduct would be m absolutely no case has intentionally judgment. That should be conduct uitable present it should be situation because misleading, application much less that fraud; mis- enough actual indication whatsoever that there was no of, was the result conception of the law knew that the defendant plaintiff’s counsel incor- accompanied by, even aided or counsel, or had communi- retained statement, misleading or acts of rect or appears, It from counsel. cation with or party. the other rather, himself mis- the defendant applicable propositions placed and the That these the summons cases cited clearly shown Missouri is notify his insurance carrier. failed negligent opinion. A 2 of this in Part appeal could be simply holds that no case relief.1 equitable not bar mistake will motion to the default when no taken from had been filed.2 Ed.1983) vacate Couch, (2d Insurance In 17 66:36, author discusses § v. The Totally inapplicable is Friedman of insurance con- remedy of reformation Inc., (Mo. Caring Group, tracts, as follows: nothing more Friedman App.1988). held party is com- the mistake of one Where defaulting defendant was than that the knowledge of the other bined with having a default set entitled to party has made a party that the first he could not demonstrate aside when mistake, generally sufficient Id. at 105. It is in defense. meritorious though the ground for reformation even principal opinion strange that the fol deed merely uni- mistake that was made was citing appeals blindly in lows the court of sum, hold that the effect lateral. authority appeals decision a court party proceeds the other when analyze or discuss the which does not even laboring knowledge party that the first setting of aside a default issue mistake, “ineq- his conduct is under a plaintiff's attorney’s conduct. upon based and therefore warrants reforma- uitable” in try to bolster case law It is factitious tion. ... that the this manner. We must assume principal opinion nor the con- Neither the the matters the court opinion discussed curring opinion authori- why shows these controlling precedentially considered pertinent controlling under ties are not principal significant.3 The citation the undisputed the facts. The information then, opinion, spurious. plaintiffs counsel’s conduct is immaterial supported by in an action is not interesting plain- It is to consider what any authority I can find. if tiff’s counsel would have done defense telephone him the counsel had called on Barney v. principal opinion cites seeking arrange depositions. a time for (Mo. 1985), Suggs, 688 S.W.2d 356 banc hardly properly that he could have think attorney has no proposition that an date, advising counsel agreed without on obligation opposing party or to advise the example he had taken a default.4 This that he a default his counsel has taken Co., interestingly, only in Fried- Casualty More reference State 3. 1. Moreland v. Farm Fire attorney’s sup- plaintiffs’ conduct 556, to the man (Mo.App.1983); Cameron 662 S.W.2d 563 ports proposition I now advocate: Sloan, 564, 567-68 State Bank v. 559 S.W.2d plaintiffs brief here stated in his Counsel for (Mo.App.1977); Berry v. Insur Continental Life every attorney] [defendants’ that he extended Co., Mo.App. ance 224 courtesy.” "professional There reasonable (1931); New Co. v. 1018 York Insurance Life bench and bar who can remem- members of Gilbert, Mo.App. S.W. 151 phrase ad- would have included ber when that (1923). warning attorney adversary dilatory to a vance notice and immediate intent to seek default of Covington’s my ap- Judge suggestion obtained. that one had been justify reopening Barney proach would of added). Friedman, (emphasis supra, 104 n. 1 1985), Suggs, S.W.2d 356 is utter- oppo- Perhaps lawyers their must confront ly unjustified. Again, the successful telephone instead of face or nents face to using protected because the mistake was not would Clients of for routine notices. the mails mutual. the extra cost. would bear course plaintiff only beneficiary incidental of only degree and not kind from differs opportunity us. the default. He had the for an the actual situation before following Judge undelayed trial Adolf’s ini- suggested, unfortunately, It has been appeal, tial order. He took the first justified in do- plaintiffs counsel was binding inequity there is no him the might his client have as he did because appellate process.6 final of result malpractice.5 him for We should cer- sued say so all can tainly take this occasion 5. Concluding Observations oppos- communications between hear that important very also to consider the part prac- the normal ing counsel are a large error, judgment, relatively slight law, orderly essential in the han- tice and the short time within answer dling litigation, lawyer and that a cannot filed, against and to balance these subject malpractice liability himself to manifestly inequitable counsel’s acting oppo- honorably toward his forensic conduct. nents. point the Restatement notes: On Judge Covington professes “sympa- to be taking decision involves account of [T]he thetic,” consequences dire but foresees factors, several incommensurable some if as to and in other cases both defaults relating particular to the case and others judgments equity rules larger system jus- to the of administered years Equity are relaxed. courts over the relating particu- tice. The factors anticipated problems, such but have have magnitude lar case include the and conse- applying concepts trouble quences judgment, the relative so as to mutual mistake and extrinsic fraud clarity appears with which it Easterly, to all. See Sutter v. do unjust, ment was the relative fault (1945). 354 Mo. ..., parties requirements diligence precedents cite found to does not writer ..., equities and the in the interests in I cannot find them. compelling, so added). (Emphasis reliance. counsel, plaintiffs at the The conduct (Second) Judgments Restatement 74§ least, very demonstrates a mutual mistake g. comment authorizing equitable relief. Judge I cannot summarize better than Equity 4. Plaintiff E. of the Missouri Court of Robert Crist stage Appeals an earlier of this case: did at opinion principal does not reach the judgment A after a de- question a aside of the default taken whether negligently failed to file re- judgment is fair and from the fendant has valid, sponsive pleadings en- plaintiffs standpoint. question is easi- becomes timely ap- absent a ly the uncontradicted forceable answered because peal unusual circumstances. plaintiff knew of his and absent record shows that the and, an unusual circum- lawyer’s according to his believe there was conduct plaintiff’s knowledge stance in this testimony, counsel’s directed it. He thus case— negli- fully chargeable any inequity or im- and concealment of defendant’s gence pre- sufficient time to have propriety has done. within what becoming court, judgment from fi- day to his this vented the He entitled but chance” nal. Plaintiff had the “last clear connotes a trial. Default is an extraordi- being in designed prevent defendant from nary procedure protect to to unjustly plaintiff should not be processes of fault. A maintain the the court. Materials, Inc., consid- Negwer should be entitled to 6. A court of 1987) (Rendlen, plaintiff J. concur- on account of er some allowance to the ring) case; Judge Rendlen’s concurrence in this by mis- the defendant’s the trouble occasioned take, Dowd, unpublished opinion of J. for the as, appearances e.g., such the cost lawyers appeals court of in that case. Nor need interlocutory judgments. final default subject professional they will be to fear that discipline they if refuse to follow instructions gave. such as this client

H3 holds the notes secured negligent enriched defendant’s failure show who A, junior of trust. at the di- plaintiff deeds to has actual knowl- where bank, publishes proper rection of B notice edge negligence of such and has the sale, Tuesday, of a to held trustee’s finality of a means to avoid default September 12, Wednesday, Sep- 1989. On consequences judgment. I believe the to 6, 1989, X, A tember received a letter from final, this of a defendant default that he the note who advises him now owns ment, compared when to conse- second of trust and secured deed quences plaintiff having to this to continues, you “If me of the advise prove his demand a trial on the outstanding on the first deed of balance merits. trust, A payment.” I will make full re- say balancing It will not to do bank, ports president B this to the who the equities is for the trial and not court him, instructs “Don’t answer the letter un- Court, first, for this because the facts are til after the sale.” and, second, not in dispute, it is because dissenting opinion In his court of our primary responsibility to formulate and appeals, Judge speaks Karohl as follows: legal profes- to enhance standards for the sion.7 plaintiff What of the instructions plaintiff’s counsel? We not consider need I would vacate or justi- decide whether such alone conduct proceed remand so that the case awarding fies the a new trial trial. separate equitable proceeding. The burden upon prove three ele- defendant APPENDIX defense, good ments of meritorious reason (1) A negotiating complicat- and B are excuse, injustice plaintiff. no contract, involving provisions. ed many However, plaintiff’s instructions not to- represented by Each is counsel. A’s coun- tally proof irrelevant defendant’s prepared sel proposed whereup- contract good reason excuse default. The for the revised, prepared signed on B’s counsel was not a final draft as a counter offer. drafts Several April until However trial exchanged were this A’s manner. coun- court which entered the default prior sel now submits a “final All offer.” entitled to benefit of drafts paragraph included which B knowledge that a “late” was filed answer agreed $100,000 pay for certain items. obviously defendant who aware question No had been raised about judgment. authority No has client offer,” paragraph. however, In the “final by any to bind and bound mistakenly figure A’s counsel included a a client instructions of not to communicate “$100,000.” “$100.00” for counsel re- B’s regarding which are the court matters ports apparent this mistake to client may on file not be with the but which him, who nothing “Say instructed about actually unlikely that a trial known. signed. this. He’s sign I’ll the contract as known that judge, promptly would not have May it is.” legally B’s counsel and ethical- days after an answer was filed twelve ly advising refrain from A’s counsel $1,500,000 of a in mistake? in rural circuit this state. Without (2) event, Attorney represents likely bank is B actual notice it such default, securing filing trustee a first deed of of an answer after would not trust junior note held in St. judge the hank. are come to the attention of a There trust, County, public City, deeds of but the record Louis Louis Jackson does St. accept any keep opponents igno- suggestion try I would their that Rule who will 74.05(c), Also, adopted after might year. be dis- rance for a a case entered, present this fault, case was renders con- knowing procedural missed for and a troversy unimportant. In some of our circuits might try to for a fendant conceal the situation years. cases are not for reached trial for two If year, by disregarding inquiries or offers. conduct, lawyers we sanction such

disagree Concurring Opinion of with the Covington, J. County, perhaps County. and Greene Arriving just and at a fair method done, Judge What Adolf would have handling easy, of defaults has never been cause, good authority under terms of perhaps difficulty sepa- of the because Rule 75.01 is obvious because of the subse- rating rights parties and the acts of the quent setting judg- order aside the default lawyers. Responding to the their equitable grounds. ment on If there was growing dissatisfaction of the Bar with the duty no to the court defendant’s counsel technically strictly line of decisions en- legal system then the which does not favor Court, defaults, Bar, forcing Missouri this defaults, judg- suffers. Further default standing the Finch Ross com- rules unless, freely granted, ments not be struggled unsuccessfully mittees for ten duty filing there is a to call that late of and years laying to our Rule 74 revise answer to the attention of the court. This relating Laughrey’s to defaults. Nanette arises from the fact that the default was publication of her serial law review arti- granted appeared because it the defendant discussing triggered cles1 Rule ignored the court summons. Breach of the committee, appoint Court to one more duty justify does not trial in an new charged Special Ad Hoc Committee equitable proceeding but it is relevant committee, revising This like our Rule 74. considering whether defendant’s mistake committee, composed prior Rules judgment. present led to a final On the lawyers, judges finest trial and schol- undisputed findings facts and of the trial This ars the Bar. committee recom- court, the failure to inform the trial court concept mended that we abandon the em- ignored of the answer the conditions under growing in our line of cases that bodied granted which the default any negligence attorney precludes filing finding supports and the of neither default, and, setting that in neglect nor inattention. place adopt concept we that excusa- It need not be decided whether ground ble is a aside a mandatory instructions to his counsel were Court, constituted, then default. as practice. under our Those instructions had I, being the same Court that heard application ap- no and should had no have adopted the recommended revised rule ef- plication present to the case. There January fective dispute (1) plaintiff’s fact that: counsel did ways may There are two that this Court not inform the trial court of the answer effectively The first is overrule cases. thirty day period within second, opinion stating. pursu- so ment, (2) the trial court had no such knowl- rulemaking power granted ant to the and, (3) edge thirty day period; within the Const, constitution, Court Mo. art. the trial court later set aside the V, adopt contrary a rule § equitable grounds. A client is not enti- existing One is as effective as case law. tled order counsel not to communicate by subsequent the other. It follows that with the court. effectively emasculate or case we WELLIVER, Judge, dissenting. right in repeal adopting a rule. wereWe there should be con- revised Rule respectfully principal dissent from the sistency in follow. the cases that opinion my for the reasons dissent stated problem Materials, Inc., might Sprung Negwer It be well to note v. (Welliver, J., dealing as diffi- concurring in of with defaults has been I). part dissenting it for our commit- part). (,Sprung and cult for the Court as was I, tees, opinions Sprung and separate dissenting opinions I concur in the our Suggs, Blackmar, G.J., Robertson, coming from a court Sprung and I II all J. now Missouri, Judgment Laughrey, Judgments Provi- form of the Missouri Default 1. Default (1985), Laughrey, Balancing sions, (1986). Mo.L.Rev. 841 Finality, Efficiency, Mo.L.Rev. 63 Proposed Truth: A Re- defaults”; lawyers judges as our 4 to 3. Those who have remained divided obligation is to see that primary duty and the full course of and who have traversed litigation are accorded a fair parties all adoption Rule Sprung and the of revised causes; just the merits of their trial on upon prior appear to stand based votes and, highest judges of the Court that we evenly divided on this case. obligation special of our state have well The revision of Rule 74 has been lawyers inspire and to hold to the both state, my and in by received the Bar of the I highest possible standard of conduct. one opinion, is considered the Bar to be if I did not would be less than honest major accomplishments in of this Court’s disappointment express my concern and improvement of the administration of newly direction taken about the during justice the last decade. Court, and, shirking I would be constituted Judge Covington’s I share concern for if I my responsibilities I what believe precedent be set lawyers potential failed to alert prece- same but not for the reason. The impact opinion. of this I dential effect which fear is that the com- should be vacated and a trial principal opinion and the bination the merits ordered. concurring opinion which harks to and back “teachings” op. Suggs, re-embraces (Covington, concurring),

at 103 J. sets us years quagmire

back ten into the of de-

faults. great

I not find the do difficulties found Covington

by Judge dealing application concept

definition and neglect”, simply being “excusable KIRCHER, Respondent, P.D. neglect not in- inadvertence which was orderly tended to and did not thwart MILLS, INC., Appellant. PURINA justice administration of and did not de- prive full, the other of a fair and No. 71277. timely trial of his cause on its merits. Nev- Missouri, Supreme Court of er in the full course of has it been En Banc. alleged setting or asserted that the aside of deprive this default would Aug. 1989. plaintiff of a fair on its trial of his cause Rehearing Denied-Sept. merits.

The real issue in for us this case is not sending request

“to decide whether

an extension of time client to a

instead of the Court is a mistake unmixed neglect”, op. (Covington, at 102 J.

concurring). The real issue is whether we concept

as a Court embrace the that excus- ground

able is a approval

defaults as we said our do,

adoption Rule If Revised we sitting

then courts should do no

less. legalese plainest

Free of and in the lan- command,

guage my teachings” by “the are; guided should

which believe we especially equity the law and abhors

“that

Case Details

Case Name: Sprung v. Negwer Materials, Inc.

Court Name: Supreme Court of Missouri

Date Published: Sep 8, 1989

Citation: 775 S.W.2d 97

Docket Number: 71368

Court Abbreviation: Mo.