Keithley v. Shelton

• Citation: 421 S.W.3d 502
• Decision Date: 26 November 2013
• Docket Number: Nos. SD 32508,SD 32625.,s. SD 32508
• Parties: Fred KEITHLEY and Tatiana Keithley, Plaintiffs–Appellants, v. Don SHELTON, Don Shook, and The Dons Productions, Defendants–Respondents.
• Court: Missouri Court of Appeals

421 S.W.3d 502

Fred KEITHLEY and Tatiana Keithley, Plaintiffs–Appellants,
v.
Don SHELTON, Don Shook, and The Dons Productions, Defendants–Respondents.

Nos. SD 32508, SD 32625.

Missouri Court of Appeals,
Southern District,
Division Two.

Sept. 13, 2013.
Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 30, 2013.
Application for Transfer Denied Nov. 26, 2013.

[421 S.W.3d 503]

Richard D. Bender, Bender Law Office, Springfield, MO, for Appellant.

No brief filed by Respondents.

[421 S.W.3d 504]

GARY W. LYNCH, J.

Fred Keithley and Tatiana Keithley (“Plaintiffs”) appeal from the trial court's judgment setting aside a prior judgment on the merits entered against Don Shelton, Don Shook, and The Dons Productions (“Defendants”). Plaintiffs contend that the trial court erred in setting aside the judgment because Defendants failed to allege and demonstrate the requisite extrinsic fraud and failed to show they were free of fault, neglect, and inattention to the case.¹ Finding that Defendants' motion to set aside the underlying judgment does not allege any facts giving rise to extrinsic fraud as required, the judgment is reversed, and the case is remanded to the trial court to reinstate the underlying judgment entered against Defendants.

Factual and Procedural Background

Plaintiffs filed suit against Defendants on July 29, 2005, in the Circuit Court of Taney County. Defendants, through counsel, filed an answer and counterclaim on August 29, 2005.

On June 23, 2008, Plaintiffs filed their first set of interrogatories to Defendants and their first request for production of documents. Almost sixteen months later, Plaintiffs filed a motion to compel discovery against Defendants, alleging that Defendants had failed to answer Plaintiffs' first set of interrogatories and failed to produce requested documents. Plaintiffs requested the trial court order Defendants to answer and produce within ten days or have their answer stricken and judgment entered in Plaintiffs' favor. A hearing on the motion was set for October 29, 2009. On that date, counsel for Defendants moved to withdraw. The trial court sustained her motion and granted Defendants sixty days to obtain counsel.

More than ninety days later, on February 11, 2010, Plaintiffs filed a motion to compel and for sanctions. Upon hearing Plaintiffs' motion, the trial court sustained the motion and ordered Defendants to provide discovery within ten days. After receiving no response from Defendants, Plaintiffs filed another motion to compel and requested sanctions against Defendants. That motion was set for hearing on April 1, 2010. On that date, Defendants failed to appear, and the trial court made a docket entry sustaining Plaintiffs' motion, striking Defendants' pleadings and entering judgment in favor of Plaintiffs. A judgment as defined by Rule 74.01(a) was entered on April 27, 2010, awarding Plaintiffs actual and compensatory damages in the amount of $127,000, punitive damages in the amount of $500,000, as well as attorney fees and costs in the amount of $18,236.71.²

Almost two years later, on April 6, 2012, Defendants filed a verified “Motion To Set Aside Default Judgment pursuant to Rule 74.06(d).” ³ In their motion, Defendants

[421 S.W.3d 505]

characterized it “as an independent suit in equity as contemplated by Rule 74.06(d).” Defendants alleged in their motion that their mailing address had been changed more than three years before the underlying judgment was entered, they were never notified that counsel had withdrawn, and they were never served with Plaintiffs' motions to compel nor the trial court's judgment. Defendants maintained that they learned of the judgment entered against them in February 2012 and “[f]rom the summer of 2006 to February of 2012, [they] did not receive any information from any party at any time regarding this matter.” Based upon these factual allegations, they concluded in their motion that a “default judgment was entered through ‘accident, mistake, inadvertence or mischarge’ to which the Defendants ['] actions were not contributory or negligent.”

Plaintiffs responded to Defendants' motion, asserting that Defendants failed to “plead and prove both extrinsic fraud and the absence of neglect or inattention.” Rather, Plaintiffs contended, “Defendants were at fault for not responding to discovery and in failing to contact anyone concerning the status of the case.”

On February 7, 2013, the trial court entered a “Judgment Order Setting Aside Default Judgment,” setting aside the underlying judgment against Defendants. Plaintiffs timely appeal the judgment setting aside the underlying judgment. ⁴

Standard of Review

Appellate review of the trial court's judgment in an independent action in equity is governed by the same standard as that used in a judge-tried case. See Systematic Bus. Servs., Inc. v. Bratten, 162 S.W.3d 41, 46 (Mo.App.W.D.2005). Thus, we will sustain the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. See id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).
Mathers v. Allstate Ins. Co., 265 S.W.3d 387, 389 (Mo.App.2008).

Discussion

In a single point relied on, Plaintiffs assert the following claim: The trial court erred in setting aside its April 27, 2010 Judgment after the passage of one...