Kelly-Patel v. Wensel
| Decision Date | 01 October 2019 |
| Docket Number | No. ED 107572,ED 107572 |
| Citation | 588 S.W.3d 604 |
| Parties | Laura KELLY-PATEL, Appellant, v. Dave WENSEL and Mike Wensel, Defendants, and Bank of Old Monroe, Respondent. |
| Court | Missouri Court of Appeals |
Richard A. Gartner, 220 Salt Lick Rd, Saint Peters, MO 63376, for appellant.
Jesse A. Grannemann, 20 Manor Drive, P.O. Box 250, Troy, MO 63379, for respondent.
Dave Wensel, Pro Se, 501 Topaz Drive, O’Fallon, MO 63366.
Mike Wensel, Pro Se, 1320 Thrush Lane, Florissant, MO 63031.
Robin Ransom, J. Laura Kelly-Patel ("Kelly-Patel") appeals from the trial court’s judgment setting aside a default judgment entered in her favor and against Bank of Old Monroe ("Bank"). The judgment vacated an award previously entered in Kelly-Patel’s favor from a garnishment proceeding. Kelly-Patel contends the trial court erred in setting aside the default judgment because Bank failed to satisfy the requirements of Rule 74.05(d),1 namely good cause for failing to timely answer Kelly-Patel’s interrogatories and a meritorious defense to the garnishment action. We reverse and remand for proceedings in accordance with this opinion.2
Background
A small claims judgment was entered in favor of Kelly-Patel and against Defendants Michael and David Wensel ("Wensels"), jointly and severally for $4,738.75. After a judgment debtor’s examination of the Wensels, two garnishments were issued to Bank on November 7, 2017, along with their respective garnishment interrogatories. Both garnishment orders were served on Bank on November 14, 2017, at its O'Fallon, Missouri address. The return dates for both garnishments were December 7, 2017. Bank failed to answer the interrogatories.3 Kelly-Patel filed exceptions to Bank’s "non-response" to the interrogatories on October 17, 2018. After a hearing on these exceptions on October 29, 2018, the trial court entered a default judgment against Bank for $6,040.91.
On November 14, 2018, Bank filed a motion to set aside the default judgment and order pursuant to Rule 74.05(d). In support, Bank stated it had shown good cause why the judgment should be set aside and that Bank had a meritorious defense because "Plaintiff failed to follow the Supreme Court Rules to obtain a proper judgment upon the garnishee [Bank]." After argument,4 the trial court took Bank’s motion under advisement. On January 10, 2019, the trial court granted Bank’s motion and issued an order vacating the October 2018 default judgment "for good cause shown." This appeal follows.
Motion to Dismiss 5
Following Kelly-Patel’s notice of appeal, this Court ordered her to show cause why this appeal should not be dismissed for lack of a final, appealable judgment because the January 2019 order was not titled a "judgment." Kelly-Patel then filed a motion to denominate the January 2019 order as a judgment, nunc pro tunc. On March 18, the trial court granted Kelly-Patel’s motion and entered an order stating the January 2019 order "is and shall be denominated a ‘judgment[.’]" Kelly-Patel filed a response to the show cause order and submitted the trial court’s March 18 order in a supplemental legal file. This Court then issued an order finding "there is now a judgment that complies with Rule 74.01(a)." In its order this Court noted that, "[w]hile the better practice would have been for the trial court to simply denominate the actual order in question as a judgment, it is clear he intends for the January 10th order to be a judgment." Nevertheless, Bank filed a subsequent motion to dismiss this appeal due to lack of a final, appealable judgment. Kelly-Patel did not file an independent response to Bank’s motion and instead responded in Point II of her appellate brief. This Court entered an order directing Bank’s motion to dismiss be taken up with the merits of this appeal.
Under Rule 74.05(d), a motion to set aside a default judgment is an independent proceeding and, as such, a judgment denying such motion is eligible for immediate appellate review. Saturn of Tiffany Springs v. McDaris , 331 S.W.3d 704, 708-09 (Mo. App. W.D. 2011). However, a judgment denying a motion to set aside a default judgment must still meet the requirements of a judgment under Rule 74.01(a) to be properly appealable.6 Cook v. Griffitts , 498 S.W.3d 855, 858 (Mo. App. W.D. 2016). Rule 74.01(a) provides in relevant part that "[a] judgment is entered when a writing signed by the judge and denominated ‘judgment’ or ‘decree’ is filed." Mo. R. Civ. P. 74.01(a).
It is clear the trial court’s original January 2019 order did not meet Rule 74.01(a) ’s final judgment requirements. However, the trial court’s March 18 order retitled the January order a "judgment" under the mistake-correcting nunc pro tunc process codified in Rule 74.06(a). Although "[t]he nunc pro tunc process is generally an inappropriate mechanism to convert an order into a judgment," an appeal may proceed when it is clear the trial court intended to finalize the judgment for purposes of appeal by entering a nunc pro tunc order denominating a previous order as a judgment. Chastain v. Geary , 539 S.W.3d 841, 846 (Mo. App. W.D. 2017). Here, the trial court manifested clear intent that the January 10 order be a judgment that was final for purposes of appeal; at the time of the trial court’s March 18 order stating the January 10 order "is and shall be" a judgment, the trial court was well aware of the appeal taken from that order.
To the extent Bank argues the trial court’s judgment vacating the default judgment is not a final, appealable judgment because "Appellant still has the opportunity to obtain proper relief under the Missouri Supreme Court Rules," this argument is misplaced. A motion to set aside a default judgment pursuant to Rule 74.05(d) is an independent proceeding. Thus, that independent proceeding may have a final, appealable judgment without resolving all of the underlying issues between the parties. Because the default judgment was vacated and the garnishment proceeding would have continued on the merits of this case, the issues between the parties remain unresolved.
Because the January 10 order7 was intended as a final, appealable judgment and is now denominated as such, we deny Bank’s motion to dismiss.8
Discussion
Point I
In her first point on appeal, Kelly-Patel contends the trial court erred in setting aside the default judgment because Bank failed to satisfy the requirements of Rule 74.05(d). Specifically, Kelly-Patel argues Bank’s motion to set aside the judgment was unverified and not supported by any evidence, testimony, or affidavits establishing good cause and a meritorious defense. We agree.
We review a trial court’s decision on a Rule 74.05(d) motion to set aside a default judgment for abuse of discretion. In re marriage of Callahan , 277 S.W.3d 643, 644 (Mo. banc 2009). Because public policy favors resolution on the merits, Missouri appellate courts afford trial courts broader discretion when granting a motion to set aside a default judgment than when denying such a motion. Id. ; Brungard v. Risky’s Inc. , 240 S.W.3d 685, 686-87 (Mo. banc 2007).
Rule 74.05(d) provides that a default judgment may be set aside "[u]pon motion stating facts constituting a meritorious defense and for good cause shown." Mo. R. Civ. P. 74.05(d). "Where the motion to set aside the default judgment lacks facts relevant and material to a showing of good cause and a meritorious defense, a defendant is not entitled to have a default judgment set aside." McGee v. City of Pine Lawn , 405 S.W.3d 582, 586 (Mo. App. E.D. 2013). Bare conclusory statements fail to meet Rule 74.05(d) ’s pleading standard. Hinton v. Proctor & Schwartz, Inc. , 99 S.W.3d 454, 458 (Mo. App. E.D. 2003). Further, a motion to set aside a default judgment under Rule 74.05(d) "does not prove itself" and must be verified or supported by proper affidavits or sworn testimony. In re marriage of Callahan , 277 S.W.3d at 644 ; Saturn of Tiffany Springs , 331 S.W.3d at 713 (). In fact, "[e]ven if a motion contains sufficient allegations of fact to support setting aside a judgment, the motion cannot normally be granted unless it is verified, or supported by affidavits or sworn testimony...." Bryant v. Wahl , 502 S.W.3d 9, 13 (Mo. App. W.D. 2016) (internal quotation omitted). The moving party bears the burden of convincing the trial court it is entitled to have the default judgment set aside. Hinton , 99 S.W.3d at 458.
Here, the trial court’s decision granting Bank’s motion to set aside the default judgment in the absence of verification, affidavits, or sworn testimony was an abuse of discretion. This Court’s decision in Plasmeier v. George controls. 575 S.W.3d 485 (Mo. App. E.D. 2019). In Plasmeier , this Court found an abuse of discretion when the trial court granted a Rule 74.05(d) motion to set aside a default judgment that was unverified and not supported by any affidavit or sworn testimony. Id. at 487. There was no dispute that the movant did not produce any affidavit or sworn testimony in support of his motion and the motion itself was unverified. Id. Movant’s motion only contained "three entirely conclusory allegations that no service occurred, that service was improper, and disputing the amount of [Appellant’s] damages." Id. Because movant failed to follow Rule 74.05(d) ’s requirements, this Court found the trial court abused its discretion in granting movant’s motion to set aside the default judgment. Id. at 488.
Here, like in Plasmeier , it is undisputed that Bank neither produced affidavits or sworn testimony nor verified its motion. However, Bank contends the legal file before the trial court was sufficient, competent evidence on...
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