                       In the Missouri Court of Appeals
                               Eastern District
                                       DIVISION TWO


 JAMIE HEINECK,                                   )   No. ED103557
                                                  )
          Respondent,                             )   Appeal from the Circuit Court of
                                                  )   St. Louis County
 vs.                                              )
                                                  )   Honorable Colleen Dolan
 DANIEL KATZ,                                     )
                                                  )
          Appellant.                              )   Filed: April 26, 2016


                                         Introduction

       Daniel Katz (Appellant) appeals the default judgment of the Circuit Court of St. Louis

County. The trial court ordered Appellant to pay Jamie Heineck (Respondent) damages in the

amount of $12,000 for breach of contract. On appeal, Appellant argues that the trial court erred

by granting Respondent’s motion for default judgment because the trial court did not have

personal jurisdiction over Appellant, and Appellant was never properly served with process.

Additionally, Appellant argues that he was not required to file a motion to set aside the default

judgment in order to confer jurisdiction upon this Court to hear the appeal. We vacate and

remand.
                                              Factual Background

           In November 2013, Respondent filed suit against Appellant, alleging breach of an oral

contract. Respondent alleged that, in July 2008, she entered into a contract with Appellant to

wind up the business of Katz Mechanical Inc. in exchange for $60,000, paid in $1,000 monthly

installments. Respondent claimed that Appellant stopped making $1,000 payments in September

2012. Respondent alleged that her acceptance of Appellant’s offer “took place in the County of

St. Louis, State of Missouri.” Respondent sought money damages, court costs and attorney’s

fees.

           Respondent attempted service on Appellant, first at an address in St. Charles County,

Missouri. The process server was unable to serve Appellant at that address and attempted to

serve Appellant at his parents’ address. Appellant’s father told the process server that Appellant

no longer lived in the St. Louis area. Respondent then attempted to serve Appellant at an address

in Zionsville, Indiana. Again, Respondent was unsuccessful. Respondent’s third attempt was to

serve Appellant at his parents’ address in St. Louis County, Missouri.           Appellant’s father

received the summons at the St. Louis County address.

           In April 2015, after Appellant failed to file responsive pleadings, Respondent filed a

motion for default judgment pursuant to Rule 74.05.1 In her motion, Respondent requested that

the trial court enter a judgment against Appellant in the amount of $12,000, as well as $5,000 in

attorney’s fees. Soon thereafter, Appellant filed his “Reply to Motion for Default Judgment”

(hereinafter “reply”). In this reply, Appellant stated that he was appearing “specifically to object

to the jurisdiction of this court[.]” Appellant argued that Respondent’s petition failed to establish

that the trial court had personal jurisdiction over Appellant because the petition: 1) did not state

that Appellant was a resident of St. Louis County; 2) did not state that the cause of action arose
1
    All references to Rules are to Missouri Supreme Court Rules (2015).


                                                          2
out of a business transaction in Missouri; or 3) did not state that the cause of action arose out of a

contract within Missouri.         Furthermore, Appellant argued that Respondent’s petition was

insufficient because she failed to plead that Appellant was in the State of Missouri when he made

the offer. Appellant also claimed that service of process was insufficient.2

        On May 12, 2015, the trial court entered its order granting, in part, Respondent’s motion

for default judgment. The record does not reflect that the court ruled on Appellant’s reply

motion. On August 28, 2015, the court held an evidentiary hearing on damages. Respondent

testified, and the court concluded that she was entitled to $12,000 in damages. The trial court

also ordered Appellant to pay court costs. This appeal follows.

                                                 Discussion

        Appellant raises three points on appeal. First, Appellant argues that the trial court erred

by entering a default judgment because Respondent’s petition failed to establish personal

jurisdiction over Appellant. Second, Appellant claims that the trial court erred by entering

default judgment because Appellant was not properly served with process. Third, Appellant

contends that he was not required to file a motion to set aside or vacate the default judgment

because his “Reply to Motion for Default Judgment” raised his legal claims and, therefore, such

a motion “would have been redundant.”




2
 “[T]he title of a motion is not dispositive; rather, the contents of the motion must be considered.” Murray v.
Murray, 325 S.W.3d 543, 546 (Mo. App. E.D. 2010). Here, Appellant’s “Reply to Motion for Default Judgment”
was, in substance, an untimely motion pursuant to Rule 55.27(a), which provides:
         Every defense, in law or fact, to a claim in any pleading, whether a claim, counterclaim, cross-
         claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required,
         except that the following defenses may at the option of the pleader be made by motion:
         ...
         (2) Lack of jurisdiction over the person,
         ...
         (4) Insufficiency of process,
         (5) Insufficiency of service of process[. ]


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       Respondent counters that this Court does not have jurisdiction to hear this appeal because

Appellant was required to file a motion to vacate or set aside the default judgment. Moreover,

Respondent argues that Appellant waived his right to challenge sufficiency of service of process

and that the trial court did, in fact, have personal jurisdiction over Appellant.

       After reviewing the record and the procedural history of the case, we agree with

Appellant that the trial court erred in granting default judgment. However, we do not reach the

merits of Appellant’s arguments. Here, granting a default judgment was simply inappropriate.

                              Default Judgment under Rule 74.05(a)

       In the present case, the trial court entered a default judgment against Appellant, after

Appellant failed to file an answer. Pursuant to Rule 74.05(a), a trial court may enter default

judgment against a defendant under the following circumstances:

       When a party against whom a judgment for affirmative relief is sought has failed
       to plead or otherwise defend as provided by these rules, upon proof of damages or
       entitlement to other relief, a judgment may be entered against the defaulting party.
       (Emphasis added).

       Here, Appellant did not file a timely responsive pleading. However, Appellant did file

his reply, raising the issues of personal jurisdiction and insufficient service of process, before the

trial court entered default judgment. Rule 74.05(a) requires us to determine whether Appellant’s

reply amounts to Appellant otherwise defending the lawsuit. We conclude that it does.

        Missouri courts have noted that Rule 74.05(d) “provides the procedure for setting aside a

judgment that has been entered when a timely response to a petition has not been filed.” Everest

Reinsurance Co. v. Kerr, 253 S.W.3d 100, 104 (Mo. App. W.D. 2008). However, the Rule does

not “contemplate the circumstances where a judgment is improvidently entered after a timely

response to a petition has been filed” or the defendant “otherwise defended” the suit. O’Neill v.

O’Neill, 460 S.W.3d 51, 57 (Mo. App. E.D. 2015). In order to “otherwise defend,” the defendant



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must take “some affirmative action . . . which would operate as a bar to the satisfaction of the

moving party’s claim.” Id. at 57.

       Our review of Missouri precedent reveals that most cases in which courts have

determined that a party “otherwise defended” a lawsuit involve defendants who timely filed some

document with the court. See Rule 55.25(a) (providing that “[a] defendant shall file an answer

within thirty days after the service of the summons and petition. . .”). In Kerr, the defendant,

within the time limits provided under Rule 55.25(a), filed a letter with the court clerk, stating he

was “not guilty.”      253 S.W.3d at 101.         The Court, after considering the “crude and

nonprofessional” nature of the letter, concluded that the trial court should have allowed the

defendant to amend his answer because the defendant attempted to defend the lawsuit. Id. at

106. Accordingly, the Court concluded that the entry of default judgment against the defendant

was error. Id.

       In Beeman v. Beeman, the defendant filed a pro se motion for additional time to file her

response, which the trial court neither granted nor denied. 296 S.W.3d 514, 516 (Mo. App. W.D.

2009). The trial court then entered a default judgment against the defendant. Id. The defendant

filed a motion to set aside or vacate the judgment, which the trial court granted. Id. The plaintiff

appealed. Id. The Court concluded that the trial court should not have entered the default

judgment because the defendant “otherwise defended” the suit by filing a motion for additional

time. Id. at 518. In so holding, the Court emphasized that the defendant took “affirmative action

to deny [the plaintiff’s] claim,” and, therefore, the defendant did not default. Id.

       In O’Neill v. O’Neill, this Court concluded that the defendant did not default when she

sought to file her answer with the trial court at the dissolution hearing. 460 S.W.3d at 57. After

receiving a copy of the petition and summons, the defendant did not file a responsive pleading.




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Id. at 54. The defendant appeared at the first scheduled hearing on the petition for dissolution.

Id. The trial court continued the case “to allow [the defendant] opportunity to file responsive

pleadings and/or hire an attorney.” Id. On the day of the second scheduled hearing, the

defendant attempted to file her answer with the trial court; however, the court refused to accept

the pleading and entered a default judgment against the defendant. Id. On appeal, this Court

concluded that a default judgment under Rule 74.05(a) was improper because the defendant had

“otherwise defended” by attempting to file her answer, in accordance with the trial court’s order,

at the second scheduled hearing. Id. at 57.

         In the present case, Appellant presented the trial court with his reply before the trial court

entered default judgment. In this reply, Appellant raised the issues of personal jurisdiction and

insufficient service of process, albeit unartfully so, and both defenses “operate as a bar to the

satisfaction of the moving party’s claim.” O’Neill, 460 S.W.3d at 57. We conclude that this

filing fulfilled Appellant’s duty to “otherwise defend” the lawsuit pursuant to Rule 74.05(a).3

                                                      Waiver

         Next, we must address whether Appellant waived the defenses of lack of personal

jurisdiction and invalid service of process.4 Unlike in Kerr, Beeman, and O’Neill, Appellant did

not raise these defenses within the thirty day time limit provided by Rule 55.25(a). We conclude

that, although his reply was untimely, Appellant did not waive these defenses.

         In Crouch v. Crouch, the defendant was served with a petition for dissolution, but “filed

neither a motion contesting the trial court’s personal jurisdiction over him nor any other

responsive pleading.” 641 S.W.2d 86, 87 (Mo. banc 1982). Subsequently, the defendant filed a


3
  As noted in Footnote 2, supra, Appellant’s reply was, in substance, a Rule 55.27(a)(2), (4) & (5) motion. The trial
court implicitly overruled this motion. Accordingly, pursuant to Rule 55.25(c), the trial court should have permitted
Appellant ten days after the court’s denial of the motion to file responsive pleadings.
4
  Respondent raises this argument regarding service of process in his Point II.


                                                         6
motion to vacate the judgment, arguing that the trial court did not have personal jurisdiction over

him. Id. The trial court denied the motion. Id. On appeal, the plaintiff argued that the

defendant waived his right to contest personal jurisdiction by failing to appear at the dissolution

proceeding. Id. at 90. Rule 55.27(g)(1)(A) provides that a defendant waives the defense of lack

of personal jurisdiction “if it is neither made by motion under this Rule nor included in a

responsive pleading.” Id. After concluding that the trial court did not have personal jurisdiction

over the defendant, the Court turned to whether the defendant waived the defense. Id. at 90.

Invoking principles of due process, the Court concluded that the defendant did not waive the

defense by failing to appear. Id. This is because “a defendant over whom the trial court could

not otherwise constitutionally acquire jurisdiction does not waive the jurisdictional defense

merely by his nonappearance.” Id. The Court further reasoned:

       Were we to hold that [the defendant] waived the personal jurisdiction defense
       merely by failing to appear, it would produce the anomalous result that a
       defendant who has the right to ignore a judicial proceeding waives that right by
       asserting it. Nonappearance, therefore, cannot constitute waiver. Due process
       requires that, in the absence of minimum contacts to support personal jurisdiction,
       the rule effect a waiver of the jurisdictional defense only if the defendant has
       already appeared before the court and has neither timely raised nor otherwise
       waived jurisdiction.

Id. See also Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000) (holding that a defendant

did not waive her defense of insufficiency of process by failing to appear). In the context of a

default judgment, the defendant can only waive a defense under Rule 55.27(g)(1)(A)—lack of

personal jurisdiction—or Rule 55.27(g)(1)(B) —insufficiency of process— if he does “some

overt act constituting a general appearance, by virtue of which the defendant submits himself . . .

to the jurisdiction of the court.” Crouch, 641 S.W.2d at 93.

       Here, although Appellant did not raise the defenses of personal jurisdiction and invalid

service of process in a timely response, due process mandates that Appellant did not waive these



                                                7
defenses. Crouch, 641 S.W.2d at 93; Worley, 19 S.W.3d at 129. While his reply amounted to

Appellant “otherwise defending” the suit, we cannot conclude that Appellant’s reply was an

“overt act” by which Appellant submitted himself to the jurisdiction of the trial court.

Appellant’s reply explicitly stated that he appeared “specifically to object to the jurisdiction of

this court.” Accordingly, Appellant did not waive the defenses by failing to appear or submitting

himself to the jurisdiction of the court.

                  Failure to File a Motion to Vacate or Set Aside the Default Judgment

           We now turn to the question of whether this Court has jurisdiction to consider this appeal

because Appellant has not filed a motion to vacate or set aside the default judgment with the trial

court.5 Respondent argues that because Appellant did not file a motion to set aside or vacate the

default judgment, this Court does not have jurisdiction to hear the appeal. Appellant argues that

filing a motion to set aside or vacate the default judgment “was not necessary to this appeal”

because Appellant already challenged the court’s jurisdiction in his reply to Respondent’s motion

for default judgment. Appellant argues that a motion to vacate or set aside the default judgment

would have been redundant.

           Generally, a default judgment is not appealable. State ex rel. Nixon v. McGee, 213

S.W.3d 730, 732 (Mo. App. W.D. 2007). In ordinary circumstances, a default judgment can only

be appealed if the trial court previously heard a motion to set aside or vacate the judgment.

Barney v. Suggs, 688 S.W.2d 356, 358 (Mo. banc 1985). This is because the trial court “cannot

be said to have committed error when . . . the point of law was never taken into consideration,

but was abandoned, by the acquiescence or default of the party who raised it.” Vonsmith v.

Vonsmith, 666 S.W.2d 424, 424 (Mo. banc 1984) (internal citation omitted). However, if a party

“otherwise defended” a claim but did not appear at trial, we consider the judgment to be on the
5
    This issue is discussed in Appellant’s Point III and Respondent’s Point I.


                                                             8
merits. Nixon, 213 S.W.3d at 731 (citing Cotleur v. Danziger, 870 S.W.2d 234, 237 (Mo. banc

1994)).

          Under the circumstances in which a defendant has filed an answer or otherwise defended,

“the Rule 74.05(d) test for setting aside the default judgment is inapplicable, because the default

judgment was improper in the first place.” Kerr, 253 S.W.3d at 104. Rule 74.05(d) “establishes

a means for extricating a defendant from a judgment entered” in situations where a defendant did

not file a responsive pleading or otherwise defend. Id. However, “[t]he procedural requirements

of Rule 74.05(d) do not contemplate the circumstances where a judgment is improvidently

entered” after a defendant files a responsive pleading. Id. In cases where a defendant does

defend the lawsuit, a trial court’s entry of default judgment “must be reversed, regardless of

whether the defendant shows good cause or a meritorious defense.” O’Neill, 460 S.W.3d at 57.

          The cases requiring a motion to vacate or set aside a default judgment are inapposite to

the present case, because here, Appellant “otherwise defended” the suit by filing his reply. As a

result, the trial court was presented with points of law, and the policy behind requiring a motion

to vacate or set aside was not implicated. Because Appellant did defend the suit, a prerequisite

for the entry of a default judgment did not exist. Therefore, the default judgment against

Appellant was improvidently granted. Accordingly, the judgment of the trial court was on the

merits, and Appellant was not required to file a motion to vacate or set aside in order for this

Court to have jurisdiction to consider the appeal. Under these circumstances, we will not dismiss

Appellant’s appeal for lack of jurisdiction.

                                               Conclusion

          We conclude that Appellant “otherwise defended” the suit, and, as a result, the trial court

erred by entering the default judgment under Rule 74.05(a). Accordingly, the trial court’s




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default judgment is vacated.     Additionally, because the record before us is insufficient to

determine the merits of Appellant’s claims, we remand the case to the trial court for a hearing on

Appellant’s raised defenses and further proceedings consistent with this opinion.




                                             _______________________________
                                             Philip M. Hess, Presiding Judge


Gary M. Gaertner, Jr., J. and
Angela T. Quigless, J. concur.




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