Irvin v. Palmer

• Decision Date: 07 May 2019
• Docket Number: No. ED 106306,ED 106306
• Citation: 580 S.W.3d 15
• Parties: Betty Jane IRVIN, Co-Trustee, and Sydney Meek, Co-Successor Trustee, Trustees of the Leonard E. Irvin Inter Vivios Trust Dated July 19, 2004, As Amended and Restated and Betty Jane Irvin, Individually, Respondents, v. Jimele PALMER, and Joyce Palmer, Appellants, Larry D. Webb, Defendant.
• Court: Missouri Court of Appeals

580 S.W.3d 15

Betty Jane IRVIN, Co-Trustee, and Sydney Meek, Co-Successor Trustee, Trustees of the Leonard E. Irvin Inter Vivios Trust Dated July 19, 2004, As Amended and Restated and Betty Jane Irvin, Individually, Respondents,

v. Jimele PALMER, and Joyce Palmer, Appellants,Larry D. Webb, Defendant.

No. ED 106306

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: May 7, 2019

Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 2019

Application for Transfer Denied September 3, 2019

FOR APPELLANTS: Peter P. Fiore, Jr., 904 South 4^th Street, Suite 302, St. Louis, Missouri 63102, Jeffrey T. Weisman, 1221 Locust Street, Suite 800, St. Louis, Missouri 63103.

FOR RESPONDENTS: James D. Burlison, 220 West Church Street, Bowling Green, Missouri 63334.

James M. Dowd, Judge

The Palmers (appellants Jimele Palmer and Joyce Palmer) appeal the trial court’s denial of their motion to set aside the default judgment entered against them and in favor of the Irvins (respondents Betty Jane Irvin, in her individual capacity and as co-trustee of the Leonard E. Irvin Trust (the Trust), and Sydney Meek, successor co-trustee). Because we find no error in the trial court’s denial of the Palmers' motion to set aside the default judgment, we affirm.

Background

1. The underlying dispute.

The underlying dispute here concerns the ownership of a parcel of real property located in Pike County, Missouri. On August 7, 2017, the Irvins sued the Palmers seeking to void a quitclaim deed that purported to convey ownership of the parcel from the Trust to the Palmers.¹ The suit alleged that the Palmers exerted undue influence over Leonard E. Irvin which induced him, as co-trustee of the Trust, to execute a power of attorney giving the Palmers the authority to quitclaim the property to themselves, which they did on November 6, 2014. The suit also alleged that the Palmers exerted undue influence over Betty Irvin to induce her to execute the quitclaim deed in her capacity as co-trustee.² Leonard E. Irvin died in October 2016.

2. Default judgment-related procedural events.

The Palmers were served with the summons and petition on August 28, 2017. On September 14, 2017, the Palmers' attorneys filed with the court an entry of appearance and requested, on the Palmers' behalf, thirty additional days to respond to the petition. The court granted the request and ordered the Palmers to file their responsive pleading on or before October 13, 2017. No responsive pleading was filed by that date. On October 23, 2017, the Irvins moved for judgment by default. Neither the Irvins nor their counsel notified the Palmers formally through service of the motion for default judgment or by informally communicating their intentions to the Palmers or their attorneys. Later that day, the trial court heard and granted the Irvins' motion and entered a default judgment against the Palmers which voided the quitclaim deed.

Also the same day the default judgment was entered, the Palmers learned of its entry and filed their motion to set it aside pursuant to Rule 74.05(d)³ claiming they had good cause for failing to timely file a responsive pleading and that they had meritorious defenses to the underlying lawsuit. The entirety of their allegation as to Rule 74.05(d)’s good cause element was that their counsel’s "professional schedule and certain obligations" prevented him from filing an answer. As to the meritorious defense element, the motion alleged that the Palmers had "multiple meritorious defenses" to the petition, though the motion identified none. No affidavit was attached and the motion was not verified. Also on October 23, 2017, the Palmers submitted an answer, which they represented was "through leave of court" but no leave had been granted or was ever granted.⁴

On November 10, 2017, the Palmers filed an amended motion to set aside the default judgment. With regard to good cause, the motion repeated the same allegation as the original motion. Regarding the meritorious defense element, the Palmers again claimed "multiple meritorious defenses" but this time included the bare allegation that the disputed transaction was undertaken pursuant to a valid power of attorney. However, no document purporting to be the power of attorney mentioned in the motion was attached or offered at the hearing on the motion. Likewise, the amended motion was not accompanied by any affidavit and was not verified.

On January 14, 2018, the trial court denied the Palmers' amended motion to set aside the default judgment. The trial court found that the Palmers "failed to show the existence of a meritorious defense" because the motion had no affidavit attached, it was not verified or signed by the Palmers, and because the Palmers failed to adduce any testimony whatsoever at the hearing.

On January 18, 2018, the Palmers filed a motion asking the court to reconsider its denial of their motion to set aside the default judgment. In that motion, the Palmers were silent as to the good cause element of Rule 74.05(d) and addressed only the meritorious defense element by attaching documents they assert granted them a power of attorney to execute the quitclaim deed, together with an affidavit attesting to the same. The trial court denied the motion to reconsider as well. This appeal follows.

Discussion

I. The trial court’s ruling that the Palmers were not entitled to notice was not error.

The Palmers assert that they were entitled to notice of the Irvins' motion for default judgment (1) because their counsel filed an entry of appearance, which they argue entitled them under Rule 43.01 to notice of all proceedings in the case, and (2) because the Irvins' counsel had an ethical and professional duty as a lawyer to notify the Palmers' counsel. We find no merit in either argument.

1. Since they were in default, the Palmers were not entitled to notice of the default proceedings.

Missouri courts have been resolute on this issue—once properly served, a party who defaults is charged with notice of all subsequent proceedings in the case. Bredeman v. Eno, 863 S.W.2d 24, 26 (Mo. App. W.D. 1993). Thus, a party in default has no right to notice of the default proceedings. Id. ; Doe v. Hamilton, 202 S.W.3d 621, 624 (Mo. App. E.D. 2006).

The Palmers seek to evade this jurisprudence by arguing that the entry of appearance filed by their counsel entitled them to notice of all future proceedings, including Rule 74.05 default proceedings, even though they were in default. The Palmers' argument is premised on Rule 43.01, which requires parties to serve other parties with written motions and papers filed in connection with a case, with the exception that "[n]o service need be made on parties in default for failure to appear. " (emphasis added). The Palmers assert that because their counsel filed an entry of appearance they cannot be "in default for failure to appear" and were therefore entitled to notice of the proceedings.

The Palmers have misconstrued Rule 43.01 because in Missouri it is well settled that it is the failure to file a responsive pleading that causes a party to be in "default for failure to appear." See State ex rel. Moore v. Ligons , 532 S.W.3d 719, 721 (Mo. App. S.D. 2017) ("[Defendants] do not deny that they failed to timely respond to the First Petition within 30 days of service and that they were, therefore, ‘parties in default for failure to appear.’ ").

The Palmers' counsel’s entry of appearance is irrelevant to this question. Matter of I.D. v. B.C.D. , 941 S.W.2d 658, 661 (Mo. App. S.D. 1997). In Matter of I.D. , the court found that a party’s entry of appearance was irrelevant to the question whether the party was in default for failure to appear because that status depended on whether the party had filed a timely answer or not. Id. Finally, we rely on two cases where the specific issue raised by the Palmers here has been resolved with the holding that a party that has entered an appearance but failed to file a timely answer is not entitled to notice. See H.J.I. by J.M.I. v. M.E.C., 961 S.W.2d 108, 117 (Mo. App. W.D. 1998) (holding that party who waived service and entered an appearance but did not file a timely answer was not entitled to notice); Commerce Tr. Co. v. Morgan , 446 S.W.2d 492, 493 (Mo. App. W.D. 1969) (holding that entries of appearance did not entitle defendants to notice under Rule 43.01).⁵

2. Irvins' counsel had no duty to notify Palmers' counsel of the default proceedings.

The Palmers contend that as part of a lawyer’s ethical duty of candor to other lawyers, Irvins' counsel owed the Palmers' counsel a duty to alert him that his clients were in default and that the Irvins' counsel intended to seek a default judgment. The Palmers further contend that the Irvins' counsel acted unprofessionally and unethically in this regard. We disagree.

The Irvins' counsel owed his clients undivided loyalty and the duty to advance their interests. See Donahue v. Shughart, Thomson & Kilroy, P.C. , 900 S.W.2d 624, 628 (Mo. banc 1995) ("Within the bounds of the law, the attorney’s duty is solely to advance the client’s interest."). When the Palmers failed to file a timely answer, Irvins' counsel’s pursuit of a default judgment on behalf of the Irvins was certainly "within the bounds of the law" and advanced their interests in this case. And since he was not required under Missouri law to alert the Palmers' counsel or the Palmers because they were in default, the ethical duty of candor to opposing counsel is not implicated. As Judge Rendlen stated in his concurring opinion in Sprung I: "It appears that to require an attorney to inform his adversary of a default stands athwart the attorney’s duty to zealously represent his client." Sprung v. Negwer Materials, Inc., 727 S.W.2d 883, 893 (Mo. banc 1987) (Rendlen, J., concurring).

We acknowledge the importance of civility, professionalism, and candor among members of the Bar. But ours is an adversarial system. And the boundary of those virtues lies...