Section 1.3 Role of the Attorney

• Library: Creditors' Remedies (2009 Ed. + 2014 Supp)

A. (§1.3) Role of the Attorney

Although § 513.025, RSMo 2000, provides a form for execution that commands the sheriff to seize property of the defendant to satisfy the judgment, as a practical matter, most sheriffs will not take any specific action unless and until given information and directions by the attorney for the plaintiff as to what property to levy upon, including where the property may be found and when it is likely to be there. Although in Attorney General Opinion 85 (1957) the Attorney General of Missouri opined that, upon receiving an order of execution on real property, the sheriff should proceed with levy and execution without awaiting instructions from the plaintiff's attorney, it should be noted that no appellate court in Missouri has ever so held. In the 50-plus years since its issuance, the opinion of the Attorney General has not changed the attitude of sheriffs throughout the state. The opinion covers only execution on real property and not levy of execution generally.

If any person other than the defendant makes proper claim to ownership of the property sought to be levied upon, the sheriff is required to advise the judgment creditor or the creditor's attorney of record. If the judgment creditor fails "within a reasonable time" to tender a bond, the sheriff is required to abandon the levy and release the property to the third-party claimant. Section 513.130.1, RSMo 2000. Separate and more detailed statutory provisions govern third-party claims in the City of St. Louis.

Rule 76.10 also deals with third-party claims and provides that any person other than the judgment debtor who claims an interest in the property on which levy is sought may intervene under Rule 52.12. The Rule does not contain a bond requirement, and to this extent, the Rule and the statute appear to be in conflict. Consequently, because the statute appears to be inconsistent with the Rule, Rule 41.02, which provides that the Rules supersede inconsistent statutes, should come into play. But in State ex rel. Heilmann v. Clark, 857 S.W.2d 399 (Mo. App. W.D. 1993), the court specifically held that Rule 76—including component Rules 76.10, 76.14, and 76.25—and § 513.130 are not inconsistent. The court noted that Rule 76 leaves the levying officer and third-party claimant unprotected in case of wrongful attachment or damage to the property. The court did not explain why Rule 76.10 and § 513.130 are not inconsistent. Thus, the prudent attorney may determine to comply with the bond requirement of § 513.130 rather than rely entirely on Rule 76.10.

In State ex rel. Rueseler Motor Co. v. Klaus, 263 S.W.2d 71 (Mo. App. E.D. 1953), the court held that a lienholder in possession of an automobile upon which the sheriff was levying did not need to give the sheriff notice of his claim to pursue his rights under the § 513.130 bond, the lienholder's possession of the property being sufficient notice to the officer that he must act at his peril in executing the writ. In Mohr v. Langan, 63 S.W. 409 (Mo. 1901), the Court held that a judgment creditor, using appropriate legal process, may seize property that is the subject matter of a replevin action between two other parties as long as the judgment creditor's claim is hostile to both parties and the judgment creditor is not a grantee of or a privy to either of the other two parties.

In the case of a levy and sale of real estate, § 513.205, RSMo 2000, provides that the sheriff shall sell the real estate at the courthouse door after having given 20 days' notice of the time and place of the sale by advertisement in a newspaper printed in the county as designated by the plaintiff or the plaintiff's attorney of record—or by posting printed bills signed by the sheriff and put up in public places if there is not a regularly published newspaper. But Rule 76.16 requires the sheriff to give published notice once a week for four consecutive weeks and that the notice specify methods of payments acceptable to the judgment creditor. Because this presents a clear case of a conflict between a Rule and a statute, in accordance with Rule 41.02, Rule 76.16 should take precedence over § 513.205.

If further confirmation might be needed that Rule 41.02 trumps conflicting statutory provisions, see Northwest Professional Condominium Ass'n v. Kayembe, 190 S.W.3d 447 (Mo. App. E.D. 2006), and Hagan v. Buchanan, 215 S.W.3d 252 (Mo. App. W.D. 2007). In State ex rel. Kinsky v. Pratte, 994 S.W.2d 74 (Mo. App. E.D. 1999), the Eastern District of the Court of Appeals outlined what the legislature must do if it wants to establish procedures that would annul or amend a procedure contained in a Supreme Court Rule. Noting that the legislature continues to have the power to establish procedures, the court stated that, to annul or amend a Rule, the legislature must specifically refer to the Rule in the statute.

Section 513.225, RSMo 2000, requires that the plaintiff give a defendant residing in the state but in a county other than that in which the real property is located notice of the sale. Rule 76.17, on the other hand, requires 30 days' notice without regard to the residence of the defendant.

The notice requirements of Rule 76.17 were addressed in Food Services Corp. v. Rheam, 145 S.W.3d 484 (Mo. App. S.D. 2004), in which the court noted that if the judgment creditor takes steps that are "reasonably required" by Rule 76.17 and under the circumstances of the case to inform the person who is to be notified, the statutory notice requirement is met. The court held that noncompliance with rules or statutory procedures does not generally warrant reversal unless prejudice is shown, and, before an execution sale would be set aside, not only must the complaining party be prejudiced by the noncompliance, but also any noncompliance must undermine the purpose of the Rule.

It is important that the attorney for the plaintiff know whether the time for a motion for new trial has expired. Rule 78.04 requires that a motion for new trial be filed within 30 days after the entry of judgment. This result is consistent with Rule 81.05, which provides that, for purposes of appeal, if no posttrial motions are filed, the judgment becomes final 30 days after entry of the judgment. If posttrial motions are filed, the judgment is final at the expiration of 90 days after the filing of the motion or, if the motion is ruled on at an earlier date, the later of 30 days after entry of the judgment and the date of disposition of these motions.

To make the necessary computations, counsel will need to refer to Rule 74. As noted in §1.1 above, under Rule 74.01(a), a "judgment is entered when a writing signed by the judge and denominated ‘judgment' or ‘decree' is filed."

If the case involves judgments on multiple claims or involves multiple parties, Rule 74.01(b) permits the court to "enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay." (Emphasis added.) If the court has not made this determination, a decision that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties does not terminate the action as to any of the claims or parties. In the absence of the court's determination that there is no just reason for delay, the appeal must be dismissed even when the parties do not object to the lack of this determination. In Holloway v. Turner, 783 S.W.2d 937 (Mo. App. S.D. 1990), the Southern District of the Court of Appeals addressed Rule 74.01(b) in the context of a suit involving a supplier of construction materials against the owners and beneficiaries under three deeds of trust. The suit was to establish a mechanic's lien, and the circuit court entered an order in favor of one of the beneficiaries on its motion to dismiss. The plaintiff appealed, but the court held that, under Rule 74.01(b), the trial court judgment was interlocutory in that the trial court had not adjudicated all of the claims of the rights and liabilities of all of the parties. See also Jackson v. Christian Salveson Holdings, Inc., 914 S.W.2d 878 (Mo. App. E.D. 1996).

The Southern District had an opportunity to examine the finality of a foreign court's default judgment in State ex rel. Schimmer v. Wall, 774 S.W.2d 864 (Mo. App. S.D. 1989). The court had before it the issue of whether Rule 74.05(b), read in conjunction with Rule 74.14(b), authorized a Missouri court to vacate or set aside the damages portion of a final judgment of an Iowa court even though the Iowa judgment had been a default judgment. Rule 74.05(b) provides that in all cases a claimant has a right to demand a jury trial for damages when an interlocutory order of default rather than a final judgment is administered, and Rule 74.14(b) provides that a foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening as a judgment of a circuit court in Missouri. But in Schimmer, the court held that the two Rules, read together, did not allow a Missouri court to treat a final (default) judgment of a sister state the same way it would treat a Missouri interlocutory order of default.

Another Rule that may affect the finality of a judgment is Rule 74.05(d), which provides standards for setting aside a default judgment. While Rule 74.05 was amended effective January 1, 1994, to drop the requirement of an interlocutory order of default as a condition precedent to the entry of default judgment, Rule 74.05(b) continues to provide for interlocutory orders of default. Under Rule 74.05(a), a default judgment may be entered "upon proof of damages or entitlement to other relief." Rule 74.05(d) provides that an interlocutory order of default or a default judgment may be set aside upon motion stating facts constituting a meritorious defense and for good cause. Good cause specifically includes a mistake or conduct that is not intentionally or recklessly...