CREDIT INVESTMENTS, INC. v. CLINTON W. DIETER-Respondent.
CREDIT INVESTMENTS, INC. v. CLINTON W. DIETER-Respondent.
Opinion of the Court
Credit Investments, Inc. (“CII”), as an alleged contract assignee, filed a petition for breach of contract against Clinton W. Dieter under the provisions of chapter 517.
In a single point relied on, CII claims “[t]he trial court erred in calling the case for trial and hearing evidence and finding in favor of [Dieter] without the presence of [CII] or providing notice that a trial would take place by denying its right to due process.” Because this claim was not raised in the trial court, it was not preserved for appellate review.
“[N]o allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court.” Section 512.160.1; see also Rule 84.13.
Failure to make known to the court an objection to the action of the court and grounds therefor will constitute a waiver of that objection on appeal. Mayes v. St. Luke’s Hosp. of Kansas City, 430 S.W.3d 260, 267 (Mo. banc 2014) (citing Pollard v. Whitener, 965 S.W.2d 281, 291 (Mo.App. 1998) and Niederkorn v. Niederkorn, 616 S.W.2d 529, 535 (Mo.App. 1981)). A properly preserved objection will identify the law with respect to the particular legal claim, provide citation to authority, and apply that law to the facts of the case. Mayes, 430 S.W.3d at 270.
Later in the day on April 27, CII filed a motion for reconsideration and to set aside the judgment. That motion, however, did not raise any claim that the trial court’s entry of the judgment violated due process, as CII now claims on appeal. CII filed nothing else with the trial court before filing its notice of appeal;' '
Having failed to preserve its claimed trial court error for our appellate review, CII’s appeal is denied, and the trial court’s judgment is affirmed.
. All statutory references are to RSMo 2000, unless otherwise indicated.
. Dieter was duly and timely served in accordance with the requirements of section 517.041.1, RSMo. Cum.Supp. 2013, No party requested a continuance on or before the return date as allowed by section 517.071.
. All rule references are to Missouri Court Rules (2016).
. Section 517.051 provides "[e]very case shall be tried upon the return date of,the summons, when the summons has been duly and timely served, or on a date to which the case has been continued.” (Emphasis added). While we do not reach the merits of CII’s point, we make two observations about CII's argument in support of its point. First, CII only addresses this section once, and, without any explanation or citation to legal authority, purports to minimize its applicability by claiming that it "allows that a case may be called for trial at the first hearing,” (emphasis added), seemingly implying that if. the trial court elects to do so, it must give prior notice of such election. Second, CII offers no explanation why the facially mandatory language used in this section did not legally provide it reasonable notice that the case would be called for trial on the return date and time.
Concurring Opinion
concurring
CII opted to file in the associate division, triggering advantages to itself as a creditor-plaintiff under Chapter 517 generally and § 517.051 in particular, including a chance to take judgment on the return date if Dieter did not appear. CII offers no due-process concern as to that procedure, so I cannot, credit its due-process complaint about a judgment for Dieter when CII (who had sued and bore the burden of proof) failed without excuse to appear on the return date, under a statute CII had chosen to invoke and does not contend is invalid in whole or in part. For this reason and those in the principal opinion, I concur.
Reference
- Full Case Name
- CREDIT INVESTMENTS, INC., Plaintiff-Appellant, v. Clinton W. DIETER, Defendant-Respondent
- Cited By
- 1 case
- Status
- Published