Duvall v. Maxey

• Decision Date: 18 March 2008
• Docket Number: No. WD 66987.,No. WD 66986.,WD 66986.,WD 66987.
• Citation: Duvall v. Maxey, 249 S.W.3d 216 (Mo. App. 2008)
• Parties: David DUVALL, Respondent, v. James Ray MAXEY, Appellant.
• Court: Missouri Court of Appeals

249 S.W.3d 216

David DUVALL, Respondent, v. James Ray MAXEY, Appellant.

No. WD 66986.

No. WD 66987.

Missouri Court of Appeals, Western District.

March 18, 2008.

Karen Bourgeois, Columbia, MO, for appellant.

Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and JAMES WELSH, JJ.

JAMES M. SMART, JR., Judge.

This is an appeal of a denial of a motion to set aside judgments entered in favor of David Duvall and against James Maxey in two cases. Because we find error in one of the cases in the trial court's failure to base its award of actual and punitive damages on the evidence, we vacate the judgments and remand for a hearing on the actual and punitive damages in that case. In all other respects, the judgments are affirmed.

I. Background

A. Case A

Duvall filed a pro se petition against Maxey in the Boone County Circuit Court on November 4, 2003, for defamation [Case No. 03CV169049, WD 66987] ("Case A"). Duvall claimed that Maxey had made false criminal allegations against Duvall to the Columbia Police Department. Duvall's petition claimed that Maxey had falsely told police: (1) that Duvall had child pornography on his computer, (2) that Duvall's brother had shown the alleged pornography to Maxey's minor son, (3) that Duvall was growing marijuana in his home, (4) that Duvall was molesting children in the neighborhood, and (5) that Duvall was engaged in the unauthorized practice of law. Duvall claimed that he suffered damages, including mental and emotional damages and the inability to obtain employment, as a result of these false accusations. He requested compensatory damages in an amount exceeding $50,000 and punitive damages in an amount exceeding $150,000. Maxey filed a pro se answer, which summarily denied all the allegations and claimed that Duvall was attempting to use the court system improperly to harass Maxey.

After many failed attempts to get discovery from Maxey, including requests for interrogatories and attempts to take Maxey's deposition, the court struck Maxey's answer as a sanction for failure to comply with discovery requests. On June 14, 2004, an interlocutory judgment was entered against Maxey.

B. Case B

On June 22, 2004, about a week after obtaining an interlocutory judgment based on sanctions in Case A, Duvall filed a second pro se petition against Maxey. This one [Case No. 04CV168179, WD 66986] was filed in Monroe County and brought claims of assault, battery, false imprisonment, and intentional infliction of emotional distress ("Case B"). Later, Duvall added two other counts for malicious prosecution and abuse of process. The assault, battery, and false imprisonment claims related to allegations that Maxey, who it was alleged had offensive "body odor," had confronted Duvall in the post office in Holliday, Missouri, and that he had "offensively touched" Duvall. Duvall further alleged that Maxey then went outside the post office and told Duvall that he (Maxey) would kill Duvall if and when Duvall came out of the post office, thereby imprisoning him in the post office.

The intentional infliction of emotional distress count asserted that Maxey had been harassing Duvall in various ways, such as by making harassing phone calls. The malicious prosecution and abuse of process claims related to allegations that Maxey had obtained an ex parte order of protection against Duvall based on supposedly false allegations that Duvall was stalking Maxey's son. Duvall claimed that Maxey had obtained this order to prevent Duvall from testifying in his (Duvall's) brother's criminal case.

In Case B, Duvall requested compensatory damages of $500,000 and punitive damages of $1,500,000. Maxey, who had ceased responding to discovery in Case A, and had thereby suffered a judgment for sanctions in that case, did not file an answer in this case or otherwise respond.

On June 28, 2004, Duvall filed a motion for a change of venue in Case B requesting that the case be moved to Boone County, where Duvall had obtained the interlocutory judgment for sanctions in Case A. The court granted the motion. Both cases were then in Boone County. Duvall, who was pro se, then pursued a series of procedural moves. After one change of judge exercised by Duvall, four recusals by other judges, two failed writ applications by Duvall, further attempts at discovery directed at Maxey, and other chaotic procedural moves, the details of which we will spare the reader, the matter finally landed in the lap of a visiting judge, the Honorable Hugh Craig Harvey, who valiantly accepted responsibility for the cases.

Judge Harvey conducted a hearing on March 10, 2006, to take up some of the remaining pending matters. Duvall, still pro se, appeared ready to proceed. Maxey did not appear. The status of the matter was that one interlocutory judgment for sanctions had been entered. In Case B, Maxey had never filed an answer. Although Maxey was in default, Duvall had continued to send discovery requests, including requests for admissions. Duvall offered into evidence all the requests for admissions that Maxey had refused to answer in both cases.

The court awarded $50,000 in compensatory damages and $150,000 in punitive damages for Case A, as to which an interlocutory judgment had earlier been entered. The court also entered judgment for Duvall in Case B, awarding $500,000 in compensatory damages and $1,500,000 in punitive damages for Case B. The amounts corresponded exactly to the amounts specified in the pleadings and requested by Duvall.

Less than a month later, on April 7, 2006, after Duvall sought to issue an execution, Maxey filed a motion to set aside the judgments or in the alternative for a new trial. The court held a hearing on May 12, 2006, in which Maxey appeared with counsel and testified that he did not receive service for all of the requests made in the two cases. Maxey claimed that although the court had sent notifications of all relevant matters, they had been sent to an old address where Maxey no longer received mail. Other evidence suggested that Maxey had received service and had simply chosen not to respond. The court expressly rejected Maxey's claim that he was unaware of the proceedings. The court denied the motion to set aside in both cases. Maxey appeals.

II. Motion to Set Aside

Maxey's first point argues that the trial court erred in denying his motion to set aside the judgments because Maxey established good cause and a meritorious defense as required by Rule 74.05(d).

In Case A, Maxey filed an answer. The court struck his answer for refusal to answer any discovery requests, after which an interlocutory judgment of default for Duvall was entered. This judgment was not a judgment on the merits. Nor was it a true default judgment entered under Rule 74.05, although Duvall had moved under Rule 74.05 for a default judgment. See Norber v. Marcotte, 134 S.W.3d 651, 662 (Mo.App.2004) ("A default judgment entered by way of a court-imposed sanction for discovery violations is not a true default judgment."). Rather, it is in actuality a judgment for sanctions entered under Rule 61.01. See id.

A litigant who has a judgment imposed upon him as a result of sanctions may move under Rule 74.06 to set aside the judgment. If that motion is denied, the party may appeal the judgment itself on the grounds that the judgment for sanctions was an abuse of discretion. See Anderson v. Arrow Trucking Co., 181 S.W.3d 185, 188-89 (Mo.App.2005). Our review of the trial court's sanction then would be limited to a determination of whether the court abused its discretion by an "illogical, arbitrary, and unreasonable" ruling imposing the sanction. Id. at 189.

Maxey filed a motion to set aside both judgments under Rule 74.05, although the two judgments were not on the same procedural footing. Maxey now appeals the denial of that motion. Maxey's arguments that he established good cause and a meritorious defense are not applicable to Case A, which was a judgment for sanctions under Rule 61.01. Case A did not involve a true default judgment under Rule 74.05. See Cotleur v. Danziger, 870 S.W.2d 234, 236 (Mo. banc 1994). Maxey has not requested that we review the trial court's judgment for sanctions under Rule 61.01 for an abuse of discretion, and we see no indication that there is plain, obvious error warranting plain error review of the judgment in Case A. No claim of error has been preserved as to Case A.

Maxey's Point I is thus pertinent only to the judgment in Case B, in which Maxey failed to file an answer. For Maxey to obtain an order setting aside the default judgment in that case, it was incumbent upon Maxey to show good cause for failure to respond and a meritorious defense to the action. Rule 74.05(d). The court expressly rejected Maxey's explanation for not responding to the summons. There was evidence introduced by Duvall indicating that Maxey chose not to respond to the summons, electing instead to adopt a strategy of maneuvering assets to try to avoid collection of any judgment obtained by Duvall. Credibility of a testifying witness is for the trial court to determine. See In re Marriage of Macomb, 169 S.W.3d 191, 194 (Mo.App.2005). Maxey did not establish good cause for his failure to file an answer. Therefore, the court did not abuse its discretion in refusing to set aside the default judgment on liability on the basis of what Maxey presented. See Dozier v. Dozier, 222 S.W.3d 308, 312 (Mo. App.2007).

III. Merits of Case A

In Maxey's second and third points, Maxey claims there was insufficient evidence to support the judgment in Case A. Maxey claims that judgment should not have been granted because there was insufficient evidence of the elements of defamation. These are efforts to argue the merits of the case. The issue in a judgment for sanctions is simply whether the trial court abused its discretion in issuing the judgment for sanctions. See Anderson, 181 S.W.3d at 189. We are unable to review the merits of the case. Points...