McGee v. City of Pine Lawn

• Court: Missouri Court of Appeals
• Writing for the Court: LAWRENCE E. MOONEY
• Citation: McGee v. City of Pine Lawn, 405 S.W.3d 582 (Mo. App. 2013)
• Decision Date: 16 July 2013
• Docket Number: No. ED 99030.,ED 99030.
• Parties: Marqual R. McGEE, a Minor, by and through his Next Friend and Mother, Ray McGEE, Respondents, v. CITY OF PINE LAWN, Appellant.

405 S.W.3d 582

Marqual R. McGEE, a Minor, by and through his Next Friend and Mother, Ray McGEE, Respondents,

v.CITY OF PINE LAWN, Appellant.

No. ED 99030.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 16, 2013.

Christopher Carter, St. Louis, MO, for appellant.

Joseph K. Robbins, St. Louis, MO, for respondents.

LAWRENCE E. MOONEY, Presiding Judge.

The defendant, the City of Pine Lawn, appeals the judgment entered by the Circuit Court of the City of St. Louis denying its motion to set aside a default judgment awarding $500,000 in damages to the plaintiff, Marqual McGee. We affirm the denial of the City's motion to set aside the default judgment as to the City's liability. However, because the record contains no evidence to support the damage award, we reverse the denial of the City's motion to set aside the default judgment as to the damage award and remand for an evidentiary hearing.

Factual and Procedural History

The plaintiff filed suit against the City, alleging multiple injuries resulting from an assault that occurred while the plaintiff was an invitee on the City's property. The petition asserted that the plaintiff had incurred, and would continue to incur, medical treatment and associated expenses for head, jaw, chin, and back injuries he sustained as a direct and proximate result of the City's negligence. The petition sought an unspecified amount of damages.

The trial court issued a summons, and the plaintiff served Brian Krueger, the Pine Lawn City Administrator, on April 7, 2011. The City failed to answer or to file any response to the petition. On June 20, 2011, the trial court conducted a default hearing. In a hand-written judgment, Judge John Riley noted that, although properly served, the City had failed to answer or appear. Judge Riley found in favor of the plaintiff and against the City, awarding the sum of $500,000 “based on evidence produced and damages shown.”

Ten months later, the City filed a motion to set aside the default judgment pursuant to Rule 74.05(d), which requires facts constituting a meritorious defense and a showing of good cause. The City failed to verify the motion, failed to attach any supporting affidavits, and failed to present any testimony of either good cause or a meritorious defense. The City maintained, first, that Krueger did not receive service. Second, the City contended that Rule 54.13(b)(4) requires that service on a city be achieved through its mayor, city clerk, or city attorney or through the chief executive officer of a municipal corporation or body, and that Krueger did not hold any of these positions. The City never argued to the motion court that Krueger was not otherwise lawfully entitled to accept service for the City or that the trial court lacked personal jurisdiction over the City as a result.

The plaintiff responded to the City's motion along with a supporting affidavit executed by its process server. In his affidavit, the process server swore that he served the summons upon the City Administrator after inquiring who was eligible to accept service, and that the City Administrator told the process server that he, Krueger, was eligible to accept service. Additionally, according to the affidavit, the City Administrator provided a copy of his business card to the process server after accepting service.

Judge Joan Moriarty denied the City's motion to set aside the default judgment, and the City appeals.

Discussion

In two points on appeal, the City contends that the motion court erred in denying its motion to set aside because the trial court lacked personal jurisdiction and no evidence supported the damage award.

Personal Jurisdiction

In its first point, the City claims the motion court erred in denying its motion to set aside the default judgment. The City asserts that the trial court lacked personal jurisdiction because the plaintiff did not serve any of the persons identified by Supreme Court Rule 54.13(b)(4) as authorized to accept service for a city. The City no longer disputes that the City Administrator “may have been served.” The City, however, now expressly contends that the City Administrator is not authorized to accept service for matters involving the City, an argument not presented to the motion court below. In addition, the City argues for the first time on appeal that the default judgment is void pursuant to Rule 74.06(b)(4) for lack of personal jurisdiction because of the alleged improper service.

Rule 74.05(d), on which the City based its motion to set aside, states in relevant part that “[u]pon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside.” We review the decision on a motion to set aside a default judgment for an abuse of discretion. Court of 5 Gardens Condo. Ass'n v. 10330 Old Olive, LLC, 326 S.W.3d 834, 836 (Mo.App. E.D.2010). A court has broader discretion to sustain a motion to set aside a default judgment than it has to overrule such a motion. Id.

The motion to set aside must allege facts demonstrating a defendant's reasonable diligence or good cause for the default and the existence of a meritorious defense. Rule 74.05(d); Jew v. Home Depot USA, Inc., 126 S.W.3d 394, 396 (Mo.App. E.D.2004)abrogation on other grounds recognized by A.D.D. v. PLE Enterprises Inc., No. WD75270, ––– S.W.3d ––––, 2013 WL 1964838 (Mo.App. W.D. May 14, 2013). “A motion to set aside a judgment cannot prove itself.” Court of 5 Gardens, 326 S.W.3d at 837. The defendant must verify the motion or support it by affidavits or sworn testimony. Id.

Rule 54.13(b) provides how and on whom service may be made within the state.

(4) On Public or Quasi–Public Corporation or Body. Upon a public, municipal, governmental or quasi-public corporation or body, by delivering a copy of the summons and petition to the clerk of the county commission in the case of a county, to the mayor or city clerk or city attorney in the case of a city, to the chief executive officer in the case of any public, municipal, governmental or quasi-public corporation or body or to any person otherwise lawfully so designated. If no person above specified is available for service, the court out of which the process issued may designate an appropriate person to whom copies of the summons and petition may be delivered in order to effect service.

The City maintained that the motion court should set aside the default judgment pursuant to Rule 74.05(d) because Krueger was not the mayor, city clerk, city attorney, or chief executive officer of the City. The City did not contend that Krueger was not “a person otherwise lawfully designated” to accept service as provided by Rule 54.13(b)(4) or that the trial court lacked personal jurisdiction over the City because of the alleged improper service. In fact, the word “jurisdiction” appears nowhere in the City's motion. Furthermore, the City failed to verify its motion, failed to attach any supporting affidavits, and failed to present any testimony regarding either good cause or a meritorious defense as required by Rule 74.05(d). Thus, the City failed to present any affidavits, testimony, or other evidence that Krueger was not lawfully designated to accept service and that the trial court lacked personal jurisdiction over the City.

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. Jew, 126 S.W.3d at 396. Furthermore, where the motion is not verified and is not supported by affidavits or sworn testimony, the court has no basis for granting the motion. Court of 5 Gardens, 326 S.W.3d at 837.

Here, the City failed in every respect to present facts showing a good cause and a meritorious defense. Moreover, the City failed to allege that Krueger was not authorized to accept service, failed to assert that the trial court lacked personal jurisdiction over the City, and failed to verify its motion or to present affidavits or sworn testimony to support its position in any respect. The motion court did not abuse its discretion when it denied the City's motion to set aside the default judgment as to the issue of liability.

The City also argues for the first time on appeal that the default judgment is void and should be set aside pursuant to Rule 74.06(b)(4) for lack of personal jurisdiction resulting from improper service. Rule 74.06(b) provides in relevant part that “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order for the following reasons: ... (4) the judgment is void....”

Rules 74.05 and 74.06, as well as Rule 75.01, each provide a procedure for setting aside a judgment, and each rule has its own standard for relief. Gibson v. White, 904 S.W.2d 22, 24 (Mo.App. W.D.1995). Of the three, Rule 74.06 requires the highest standard for setting aside a judgment because of the interest in stability of final judgments and precedent. Id. Whether a judgment should be vacated because it is void is a question of law that we review de novo. Kerth v. Polestar Entm't, 325 S.W.3d 373, 378 (Mo.App. E.D.2010).

The City's new argument fails for at least two reasons. First, it is not preserved for our review. The City did not ask the motion court to determine whether the default judgment was void for lack of personal jurisdiction. It is only on appeal, after losing its Rule 74.05(d) motion on the merits, that the City first claims the default judgment was void for lack of personal jurisdiction and should be set aside pursuant to Rule 74.06(b)(4).

Section 512.160.1. RSMo. (2000) provides in relevant part that allegations of error not presented to or expressly decided by the trial court shall not be considered in any civil appeal. “Simply put, a party cannot rely on one theory to set aside a judgment before the trial...