Clark v. Brown

• Decision Date: 02 August 1991
• Docket Number: No. 17274,17274
• Citation: Clark v. Brown, 814 S.W.2d 634 (Mo. App. 1991)
• Parties: Travis CLARK and Peggy Clark, Appellants, v. James BROWN, Respondent.
• Court: Missouri Court of Appeals

Page 634

814 S.W.2d 634

Travis CLARK and Peggy Clark, Appellants, v. James BROWN, Respondent.

No. 17274.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 2, 1991.

Richard L. Anderson, Kimberling City, for appellants.

Virginia L. Fry, Carol T. Aiken, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for respondent.

CROW, Judge.

Plaintiffs Travis Clark and Peggy Clark appeal from an order setting aside a default judgment in their favor against defendant James Brown for $24,000 actual damages and $100,000 punitive damages.

A history of the case to August 7, 1990, appears in Clark v. Brown, 794 S.W.2d 254 (Mo.App.1990), where this Court declared void an order of the trial court denying defendant's motion to set the judgment aside. That opinion must be read as a preface to this one.

After remand, the trial court ¹ heard further evidence, considered the transcript of all earlier evidence, and with commendable industry set forth its reasons for setting the judgment aside.

Plaintiffs' brief presents five points relied on; they require a synopsis of the case supplementing the account in our earlier opinion.

The claim on which plaintiffs were awarded judgment was for malicious prosecution. Plaintiffs' petition averred defendant made a false affidavit August 15, 1987, which resulted in the issuance of a search warrant for plaintiffs' "residence and real estate."

Defendant's affidavit said, among other things:

"... James J. Brown, Chief Investigator of the Humane Society of Missouri ... states as follows:

... I have engaged in undercover investigations of dog fighting from 1983 to the present. During this investigation I attended three dogfights conducted by Travis and Herman Clark at several locations in Stone County. One fight being held in 1983, and two fights being held in 1985, which the two fight [sic] of 1985 were held at Travis Clark's farm.

While attending the dog fights at Travis Clark's farm in 1985 I observed several devices used in training and fighting of dogs. Some of the items observed were breaking sticks, scales, syringes, a treadmill, a 'Jenny', and a pit used for fighting.

On August 10th, 1987 while doing further undercover investigations, I observed on Travis Clark's farm a 'Jenny' (an exercise ring), an area constructed of walls approximately fifteen feet in diameter, which I believe to be a fighting pit, and approximately forty Pit Bull dogs....

On August 14th, 1987 I and Deputy Sheriff Jerry Dodd, Stone County Sheriff's Dept., conducted a fly over of the Clark brother properties. I again saw the 'Jenny' and approximately forty dogs and dog houses at Travis Clark's property....

At the three fights I have attended in Stone County I saw what I believed to be a large amount of narcotics used on the dogs and used by humans. At the places where the dogs are trained and fought you will usually find choke collars, breaking sticks, fight contracts, copies of fighting rules and regulations, trophies and awards from past fights, records of fights for each dog, receipts of subscriptions or requests to other fighters publications which advertise dogs for sale....

During a raid made in Laclede County, Missouri, by the Humane Society of Missouri, Travis Clark's name came up several times as a nationally known dog fighter, he is knon [sic] among dog fighters throughout the United States as a breeder and trainer of Pit Bulls."

A search warrant was issued by an associate circuit judge authorizing a search of plaintiffs' property and seizure of any item constituting "evidence of a criminal offense of training, keeping, or possessing dogs for the purpose of fighting the same for amusement or gain," ² including training equipment, narcotic substances, contracts for fights, copies of fighting rules, records of dogfights, trophies, awards, bills of sale of fighting dogs, advertisements, and breeding records.

Law enforcement officers executed the warrant August 15, 1987, by searching plaintiffs' property and seizing numerous items. No criminal charge was filed against either plaintiff after the search.

Plaintiffs filed this suit June 17, 1988. Summons was sent to the City of St. Louis for service on defendant. It was returned showing personal service on defendant June 21, 1988. No responsive pleading was filed, and default judgment was entered October 5, 1988. ³

On November 10, 1988, defendant filed a motion to set the judgment aside per Rule 74.05(c). ⁴ The first of two evidentiary hearings on defendant's motion occurred March 1, 1989, resulting in the order ultimately set aside by this Court in its earlier opinion. The second evidentiary hearing occurred November 7, 1990. In discussing the evidence pertinent to plaintiffs' assignments of error, we include evidence presented at both hearings.

We first consider plaintiffs' fifth point. It reads:

"The trial court erred ... in sustaining the defendant's motion under Rule 74.05(c) to set aside default judgment, in that said motion was not made within a reasonable time, and therefore the court abused its discretion in setting aside the default judgment...."

Rule 74.05(c) reads:

"Upon motion stating facts constituting a meritorious defense and for good cause shown ... a default judgment may be set aside. The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process...."

In support of their fifth point, plaintiffs direct us to written suggestions filed by defendant's lawyers simultaneously with defendant's motion to set aside the judgment. Those suggestions aver one of defendant's lawyers, Todd Thornhill, learned in late August, 1988, "that a judgment had been taken against defendant." ⁵ The suggestions continue:

"Repeated phone calls to the Clerk's Office of Stone County inquiring as to whether judgment had been entered in this matter were met by responses stating that judgment had in fact not been entered. Defendant's attorney would state that he was cognizant that a judgment had been taken against defendant and was diligent in his attempt to find out the date of judgment entry while concurrently pursuing an investigation in this matter in order to prepare this motion and these suggestions for filing. Since, even as late as October 4, 1988, correspondence with the Clerk of the court of Stone County indicated that judgment had, in fact, not been entered in this matter, defendant's attorney continued his investigation of the facts underlying this matter while keeping in mind the 'reasonable time' requirements of rule 74.05."

The record shows that on October 5, 1988, the Clerk of the Circuit Court mailed defendant a copy of the docket entry of August 17, 1988, together with a copy of the judgment entered October 5, 1988. The correspondence was addressed to defendant at the office of the Humane Society of Missouri in St. Louis.

The suggestions in support of defendant's motion to set aside the judgment allege lawyer Thornhill received correspondence on or about October 12, 1988, from Terence Mueller, counsel for the Humane Society, stating Mueller had received the correspondence from the court clerk regarding the entries of August 17, 1988, and October 5, 1988.

Plaintiffs also direct us to the testimony of a deputy sheriff of the City of St. Louis. The deputy testified he handed the summons to defendant on the morning of June 21, 1988, at the Humane Society office in St. Louis.

Defendant testified he could not say whether the deputy served him. ⁶ Defendant explained he was "on the road quite a bit," and that if a summons or subpoena for him was brought to the Humane Society office in his absence, it would be left with the secretary to Donald H. Anthony, general manager of the Society, or with Anthony himself. Defendant avowed he first learned of this suit in October, 1988, upon encountering Anthony in the parking lot at the Society's office. Anthony told defendant he had been sued and, "Go up and see the secretary." Defendant did so, and she showed him the papers.

On cross-examination, defendant fixed the date of the above incident as about a week before his wages were garnished. Court records show a writ was served on the Humane Society garnishing defendant's wages November 10, 1988.

Plaintiffs point out defendant executed an affidavit October 31, 1988, in support of his motion to set aside the judgment. On that date he obviously knew judgment had been entered. As noted earlier, defendant's motion to set the judgment aside was filed November 10, 1988.

Plaintiffs assert the delay between the date defendant or lawyer Thornhill learned of the judgment and the date defendant filed his motion to set it aside was unreasonable, hence defendant failed to comply with the "reasonable time" requirement of Rule 74.05(c). Plaintiffs cite no case examining this requirement, and we are aware of none.

Setting aside a default judgment is within the trial court's discretion, and its ruling will not be disturbed on appeal unless abuse of discretion is found. Gibson by Woodall v. Elley, 778 S.W.2d 851, 853 (Mo.App.1989); Krueger v. Perez, 764 S.W.2d 173, 174 (Mo.App.1989); First Missouri Bank of St. Francois County v. Patterson, 696 S.W.2d 800, 801 (Mo.App.1985). The discretion not to set aside is narrower than the discretion to set aside. Gibson, 778 S.W.2d at 853-54; Krueger, 764 S.W.2d at 174; First Missouri Bank, 696 S.W.2d at 801. Thus, an appellate court is more likely to interfere with a trial court's decision when the motion to set aside the judgment has been denied. Gibson, 778 S.W.2d at 854; Krueger, 764 S.W.2d at 174; First Missouri Bank, 696 S.W.2d at 801.

Here, lawyer Thornhill should arguably have acted swifter in filing defendant's motion to set the judgment aside. Thornhill evidently knew on October 12, 1988, that the trial court had signed and filed...