IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
ASSOCIATE CIRCUIT JUDGE DIVISION
LARONDA PHOX
Plaintiff,
1316-CV27311
Div. 25
v.
URGE MOBILE LLC
Defendant.
ORDER
Defendant has filed a Motion to amend the judgment entered in this case.
The crux of Plaintiff's complaint seems to be that she was awarded a default
judgment but in an amount less than prayed for in her petition.
When this matter was first called and Defendant was in default I inquired of
Plaintiff regarding the basis for Plaintiff's damage claim of $5000. Plaintiff
explained her actual damages and it appeared that Plaintiff's only justification for
the claim of $5000.00 was that was the jurisdictional limit for small claims cases.
After hearing from Plaintiff she was awarded damages in the amount $3154.00
which the undersigned determined was the total damage actually suffered by
Plaintiff.
Plaintiff cites Rule 75.05(a) and 517.131 RSMo 1993 as the basis for the relief she
now seeks.
Rule 75.05(a) provides:
74.05. Entry of Default Judgment
(a) Entry of Default Judgment. When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend as provided by
these rules, upon proof of damages or entitlement to other relief, a judgment may
be entered against the defaulting party. The entry of an interlocutory order of
default is not a condition precedent to the entry of a default judgment.
Section 517.131 RSMo 1993 provides:
Default judgment, when entered.
517.131. A default judgment may be entered in favor of a party filing a
claim upon appearance by such party in person or by attorney upon written
oath made by such party or upon such evidence as may be determined by
the judge when the opposing party has been duly and timely served with
summons and does not appear in court on the return date or subsequent date
to which the case has been continued.
Each of these require proof of damages. The Court is not a rubber stamp for
whatever is claimed in Plaintiff's Petition. Instead the Court is required to award
such damages as are actually proved. In this case the Court determined damages
from Plaintiff's testimony and awarded a judgment of $3154.00 plus costs.
Rule 75.05(a) cited be Plaintiff is illustrative of the Court's duty in that it
specifically provides for “proof of damages”. Even though Rule 75.05
applicability is questionable in this case, nevertheless it should be noted that
Missouri courts have held that failure to provide proof of actual damages under
Rule 75.05 is improper and constitutes reversible error.
However, when the plaintiff has sued for an unliquidated sum regardless of
whether the judgment is labeled "interlocutory" and regardless of whether
the plaintiff taking default has proceeded under Rule 74.05(a) or Rule
74.05(b), there must be some proof of damages in order to validly support
an entry of default judgment that assesses damages. Kevin C. Beckmann,
et al.v. Miceli Homes, Inc., et al., ED7843 (2001 Mo. App)
In a case where the plaintiff has taken a default judgment and sued for an
unliquidated sum in the underlying action there must be some proof of
damages to validly support an assessment of damages.
…
Although a defaulting defendant loses the right to contest the determination
of liability, the defendant is entitled to have the court hear evidence
regarding damages and to base its determination on the evidence
adduced. (Emphasis added)
Court Of 5 Gardens V 10330 Old Olive, LLC, ED94576 (Mo App 2010)
citing Duvall v. Maxey, 249 S.W.3d 216, 222 (Mo. App.
W.D. 2008)
Since this was a Small Claims case Section 435.355.2 RSMo 1993 is directly
applicable. It provides in pertinent part:
If, upon the date set for the hearing of a small claims action, the defendant,
having been duly served, fails to appear at the time and place specified in
the summons or specified by the court in response to a request for a
continuance, the court, after presentation of evidence by the plaintiff to
establish a prima facie case, may enter judgment for the amount claimed.
By its explicit terms this Court is required to hear the evidence of the elements of
Plaintiff's case which necessarily includes any actual damages suffered.
As all of these authorities illustrate it is incumbent on the Court to listen to and
apply only proof of actual damage and not just whatever amount is claimed by the
Plaintiff in it's Petition.
If Plaintiff disputed the Judgment in any way, the proper remedy was to file for
trial de novo within 10 days of the judgment. See Section 482.365.2 RSMo 1993.
That section does not provide for a stay of any kind and that time limit is
jurisdictional and is not stayed for pending motions. Plaintiff failed to ask for a
trial de novo and is not entitled to any any other relief.
Plaintiff's motion to amend is DENIED.
IT IS SO ORDERED
DATE
______________________________
JUDGE