                                       In the
                       Missouri Court of Appeals
                                Western District
CARL BRYANT AND PAMELA                      )
BRYANT,                                     )
                                            )   WD78888
              Respondents,                  )
                                            )   OPINION FILED: August 2, 2016
v.                                          )
                                            )
JEFFREY WAHL,                               )
                                            )
               Appellant.                   )

            Appeal from the Circuit Court of Jackson County, Missouri
                    The Honorable Kenneth R. Garrett III, Judge

 Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
                             and Gary D. Witt, Judge


      Appellant Jeffrey Wahl ("Wahl") appeals the judgment of the Circuit Court of

Jackson County, Missouri, denying his Motion to Set Aside Default Judgment. The

Order of Default was entered against Wahl in a civil lawsuit filed by Respondents Carl

and Pamela Bryant (collectively "Bryants").     The Bryants alleged that Wahl, their

neighbor, unexpectedly entered their home and shot them both multiple times. The suit

sought monetary damages for their injuries. Wahl failed to respond to the petition and a

default judgment was entered. The trial court, in denying Wahl's Motion to Set Aside,
found that Wahl failed to meet the requirements of Rule 74.05(d) 1 in that Wahl (1) failed

to prove that he had a meritorious defense and (2) failed to show good cause to set aside

the default judgment. Wahl now appeals, challenging both of these findings as well as

the constitutionality of Rules 74.05(a) and (b). We affirm.

                                 Factual and Procedural Background

       Wahl was arrested on January 21, 2014, by the Independence Police Department,

and charged with the shootings of Carl and Pamela Bryant.                               On the morning of

January 21, Wahl entered the Bryants' home and confronted Carl Bryant with a gun. The

two argued, and Wahl shot both the Bryants multiple times.                                Both suffered life

threatening injuries. The criminal complaint filed by the State against Wahl alleged two

counts each of First-Degree Assault and Armed Criminal Action.

       On January 24, 2014, the Bryants filed a civil case against Wahl seeking damages

for their injuries as a result of the shootings ("Petition"). Wahl was served with the

Petition while being held in the Jackson County Detention Center on February 21, 2014.

He filed no response to the Petition.

       On February 26, 2014, Wahl was determined to be incompetent and unable to

stand trial in the underlying criminal case. The court ordered him committed to the

Department of Mental Health in Fulton, Missouri. The judge in the civil case was not the

same judge as was assigned the criminal case and there is no indication that the court in

the civil proceeding was aware of this determination of incompetency.



       1
           All rule references are to Missouri Supreme Court Rules (2016) unless otherwise noted.

                                                         2
         During the course of the civil case, Wahl was served with certain pleadings, either

at the Jackson County Detention Center or the Fulton State Hospital, but other pleadings

were sent to his home address and returned undeliverable.2                             A Motion for Default

Judgment was filed on April 1, 2014, a copy of which was served to Wahl. Wahl never

responded to the civil case or notified the court of his change in address. On May 27,

2014, the trial court granted a Default Judgment against Wahl, awarding $5 million to

Pamela Bryant and $5 million to Carl Bryant ("Judgment"). Following the Judgment, the

Bryants executed on approximately $90,938.00 in funds confiscated from Wahl's home at

the time of his arrest.

         Wahl did not have legal representation in the civil case. He was represented by an

Assistant Public Defender ("PD") in the pending criminal case. PD informed the Bryants'

attorney that, as a public defender, PD was statutorily prohibited from representing Wahl

in the civil proceeding. It is alleged that the Bryants' attorney was aware that Wahl had

been determined to be incompetent to stand trial and committed to the Department of

Mental Health. In fact, the Bryants served Wahl with notice of certain filings at the

Fulton State Hospital.

         In April, 2015, PD left his position as a public defender. No longer statutorily

barred from representing Wahl in the civil matter, PD entered his appearance on behalf of

Wahl and filed a Motion to Set Aside Default Judgment on May 24, 2015 ("Motion"). In

the Motion, Wahl alleged that his mental incompetency was good cause for failing to

         2
          It appears from the Legal File that documents sent directly from the court were sent to Wahl's home
address while the Bryants sent copies of their filings to Wahl at either the Jackson County Detention Center or the
Fulton State Hospital.

                                                          3
respond to the Petition and attempted to raise two meritorious defenses to the Petition--

error in the Petition's date of the attack and self-defense. Additionally, Wahl sought a

declaratory judgment that the Supreme Court Rules 74.05(a) and (b), which govern

default judgments, are facially unconstitutional and unconstitutional as applied to Wahl

because they provide no additional protections to incompetent persons.

       The trial court determined that Wahl failed to properly verify or otherwise support

his Motion with sworn testimony and denied the Motion without evidentiary hearing.

Wahl filed a Motion to Reconsider on June 16, 2015, which the court also denied.

       This appeal follows.

                                  Standard of Review

       Pursuant to Rule 74.05(d), a motion to set aside a default judgment is an

"independent action," and, as such, a judgment granting or denying such a motion is a

final judgment eligible for immediate appellate review. Saturn of Tiffany Springs v.

McDaris, 331 S.W.3d 704, 708-09 (Mo. App. W.D. 2011). The denial of a motion to set

aside is reviewed for abuse of discretion. Brungard v. Risky's Inc., 240 S.W.3d 685, 686

(Mo. banc 2007). A trial court abuses its discretion if the "ruling is clearly against the

logic of the circumstances then before the trial court and is so unreasonable and arbitrary

that the ruling shocks the sense of justice and indicates a lack of careful deliberate

consideration." Peters v. Gen. Motors Corp., 200 S.W.3d 1, 23 (Mo. App. W.D. 2006).

While the trial court has broad discretion in deciding to set aside a default judgment, its

discretion to deny such a motion is "narrowed" because public policy favors cases to be



                                            4
decided on the merits. Coble v. NCI Bldg. Sys., Inc., 378 S.W.3d 443, 447 (Mo. App.

W.D. 2012)).

                                         Discussion

                                              I.

       Wahl's first point on appeal alleges that the trial court erred in failing to grant his

Motion because Wahl was not given a full opportunity to demonstrate good cause for his

default and a meritorious defense because he was denied a hearing on his motion.

       The Motion notes that the Supreme Court Rules allow motions seeking to set aside

or correct default judgments under Rules 74.05(d), 74.06(a), and 74.06(b). However,

Wahl requests relief only pursuant to Rule 74.05(d) which provides 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." Thus, we examine

Wahl's claims only under the provisions of Rule 74.05(d).

       A party may seek to set aside a default judgment under Supreme Court Rule

74.05(d). "A party wishing to have a default judgment set aside is required to (1) file his

or her motion within a reasonable time, (2) show the existence of a meritorious defense,

and (3) show good cause for default." Wanda Myers Living Trust v. Nea Lg Le, 459

S.W.3d 517, 522 (Mo. App. W.D. 2015). "A motion to set aside a default judgment does

not prove itself and must be supported by affidavits or sworn testimony." See In re

Marriage of Callahan, 277 S.W.3d 643, 644 (Mo. banc 2009); Snelling v. Reliance Auto.,

Inc., 144 S.W.3d 915, 918 (Mo. App. E.D. 2004) ("[A] motion to set aside a judgment

cannot prove itself. The motion must be verified or supported by affidavits or sworn

                                              5
testimony produced at the hearing on the motion."). "[B]are statements amounting to

mere speculation or conclusions fail to meet the pleading requirements." Ben F. Blanton

Constr., Inc. v. Castle Hill Holdings XI, L.L.C., 109 S.W.3d 693, 695 (Mo. App. E.D.

2003). "Even 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 produced at a hearing on the motion." Clark v. Clark, 926

S.W.2d 123, 127 (Mo. App. W.D. 1996). Wahl contends that, although the Motion was

not verified, contained no affidavits, exhibits, or a proposed answer in support, he

requested an evidentiary hearing and, had the court granted his request, he would have

presented such supportive evidence at the hearing.

       Wahl cannot use a request for evidentiary hearing to overcome deficiencies in his

pleadings. An evidentiary hearing on a motion to set aside a default judgment is not a

matter of right, but requires first that the motion meet the pleading requirements of Rule

74.05(c). Sears v. Dent Wizard Int'l Corp., 13 S.W.3d 661, 664-65 (Mo. App. E.D.

2000); Bredeman v. Eno, 863 S.W.2d 24, 25 (Mo. App. W.D. 1993). "To determine

compliance with the pleading requirements of Rule 74.05(c), appellate courts examine

the allegations in the motion of the party in default, and such other matters as affidavits,

exhibits, and proposed answers." Bredeman, 863 S.W.2d at 25. Appellate courts will

remand to the trial court for an evidentiary hearing on a motion only where there already

existed sufficient evidentiary support for the motion to set aside. See id. at 26; Boatmen's

First Nat'l Bank v. Krider, 802 S.W.2d 531, 532 (Mo. App. W.D. 1991) (defaulting party

entitled to a hearing where she filed an affidavit, a proposed answer with her motion to

                                             6
set aside, and requested an evidentiary hearing); but see, McClelland v. Progressive Cas.

Ins. Co., 790 S.W.2d 490, 493-94 (Mo. App. S.D. 1990) (no evidentiary hearing

necessary because inclusion of an unverified police report with motion, while sufficient

to raise inference that loss was caused by arson, it was insufficient to support alleged

meritorious defense that the arson was caused by insured).

       Wahl was not entitled to a hearing as a matter of right and we are left only to

determine whether he pled sufficient facts in his Motion to support a meritorious defense.

Wahl contends he did. We find that it is clear from the record that he did not. "To plead

facts constituting a meritorious defense, the party in default need not present a defense in

detail; however, that party must demonstrate at least an arguable theory that would defeat

the plaintiff's claim." Bredeman, 863 S.W.2d at 26. "This concept is not intended to

impose a high hurdle, but is meant to allow the case to be decided on its merits where

there are legitimate issues to be considered." Wanda Myers Living Tr., 459 S.W.3d at

523. "A belief about the existence of a meritorious defense without supporting facts fails

to satisfy the pleading requirements of Rule 74.05(c)." Bredeman, 863 S.W.2d at 26.

(defaulting party failed to plead meritorious defense in motion to set aside default

judgment in litigation over promissory note because motion failed to specify specific

amounts of payments and credits). There must be some sworn evidence to support a

defense offered. Kansas City Live LLC v. Bukovac, 2016 WL 2338365, at *4 (Mo. App.

W.D. May 3, 2016). "Without such a requirement, parties could completely fabricate

defenses that have no basis in reality but, if proven, could theoretically be a meritorious

defense." Id.

                                             7
         Wahl's Motion alleges:

         Proper discovery may reveal facts that differ from [the allegations of the
         Petition]. . . . Discovery may reveal that on some other date, there was an
         encounter but that there was no knock on the door, that there was no entry
         into the home, that Plaintiff started a confrontation with Defendant by
         approaching him while armed with a gun, that Plaintiff Carl Bryant was the
         initial aggressor during the encounter once it became a confrontation, that
         Plaintiff Carl Bryant struck Defendant in the head with a gun prior to any
         shooting by anyone. All or any combination of these facts constitute a
         legitimate affirmative defense, including but not limited to self-defense.

Without supporting affidavits from Wahl3 or other witnesses, corroborating evidence

from the police, or some other support, there is no indication that these multiple

alternative facts have any basis in reality and are anything more than wild speculation.

While Wahl is correct that a meritorious defense need only be an "arguable theory," it

must have some basis in reality. There was nothing in the Motion or the facts before the

trial court to suggest that Wahl's allegation that discovery may reveal affirmative

defenses was anything more than wild speculation. See Kansas City Live LLC, 2016 WL

2338365, at *4 (unverified motion which simply stated defaulting party did "not believe

it owned or controlled" the property in question in the suit was insufficient to show

meritorious defense). Wahl did not even go so far as to state he "believed" that the

evidence would support an alternative theory of events. His motion was not verified.




         3
           Wahl was committed to the Department of Mental Health on February 26, 2014, because the court
determined Wahl incompetent to understand the charges against him and assist in his own defense. At some point in
March, 2015, Wahl was determined to be competent to stand trial, transferred back to the Jackson County Detention
Center, and is currently awaiting trial on the underlying criminal charge. Thus, to the extent that Wahl may not have
been competent to sign an affidavit in support of his own Motion prior to March, 2015, it appears that was no longer
an issue as of the May 24, 2015, filing of his Motion. There is no indication in the record that Wahl has had any
other determinations of incompetence.

                                                         8
       Wahl quotes extensively from Snelling v. Reliance Automotive, Inc. 144 S.W.3d

915 (Mo. App. E.D. 2004) for the proposition that a movant need only present evidence

of an "arguable theory of defense" and that it is proper for this to be done at a hearing on

the motion. While it is true that Snelling cites to the general principle that a motion

"must be verified or supported by affidavits or sworn testimony produced at the hearing

on the motion," it does not hold that a movant is entitled to a hearing absent any

evidentiary support presented in the motion. Id. at 918. In Snelling, the movant made

only conclusory statements that he had a "meritorious defense to the Petition regarding

proximate causation of the damages alleged," which the court found insufficient to

support setting aside the default judgment. Id. Thus, the court found the trial court erred

in granting movant's motion to set aside the default judgment "because there was no

evidentiary basis to support a finding of a meritorious defense." Id. While Wahl made

more specific claims, those claims were not any more supported than the claims made in

Snelling. By stating that a movant need not "present extensive evidence" of a defense in

a motion to set aside, the court's opinion was in line with all prior case law that there

must be some evidence to support a claim.          Snelling does not overrule the well-

established rule that to get to the evidentiary hearing stage of a motion to set aside a

default judgment, a movant must first sufficiently plead his claims, which requires a

verified petition, sworn statements, or some other evidentiary support.

       There was no support for Wahl's claim of self-defense as alleged in his Motion and

the trial court did not err in so finding.



                                             9
       Wahl's second "meritorious defense" is simply noting that, in one paragraph of the

Petition, the date of the shooting is misidentified as February 21, as opposed to January

21. This does not render the Petition void or deficient. See, generally, Int'l Motor Co.,

Inc. v. Boghosian Motor Co., Inc., 870 S.W.2d 843, 849 (Mo. App. E.D. 1993) (in suit

involving vehicle title, typographical error in vehicle identification number in the petition

did not mislead defendants, where vehicle was correctly identified in other documents).

The sole paragraph that identifies the date in question as February 21, merely states that

the Bryants were home on that date and Wahl entered upon their property. The alleged

facts of the shooting are identified in the following paragraphs and are correctly

identified as occurring on January 21, 2014. We find no merit to Wahl's allegation that

the typographical error in the Petition amounts to a meritorious defense. Because Wahl

failed to present any support in his Motion that he had a meritorious defense, the trial

court did not err in denying his Motion.

       Wahl further contends that he did not need to verify or otherwise present support

for his claim that he was mentally incompetent at the time of the Judgment because the

trial court could have taken judicial notice of the criminal proceedings. However, Wahl

never requested the court take judicial notice of the criminal proceedings, and there is

nothing in the court file in the civil case to alert the trial court to the status of the criminal

proceedings. The trial court is prohibited from becoming an advocate for a party and on

its own seeking out support for Wahl's various arguments.

       A party in default has the burden of proving it had a meritorious defense. Wahl's

Motion was not verified and had no supporting documentation for his claims of defense.

                                               10
He did not even affirmatively assert a meritorious defense in his unverified petition,

merely stating that facts may come to light that would provide him one of multiple

defenses. As such, the trial court did not err in denying Wahl's request for an evidentiary

hearing and denying his Motion.

                                                          II.

         Wahl's second point on appeal alleges that Missouri Supreme Court Rule 74.05,

which governs default judgments, is unconstitutional. Wahl claims that the rule's failure

to provide additional protections for incompetent persons from default judgments is a

violation of due process and the equal protection clause.

         In support of his argument, Wahl notes that the Federal Rules of Evidence along

with "the majority of the states"4 provide protections for incompetent persons from

default judgment. Wahl argues that the due process clause and equal protection clause of

the United States Constitution require these additional protections.

         Federal Rule of Civil Procedure 55(b)(2) states that "a default judgment may be

entered against a minor or incompetent person only if represented by a general guardian,

conservator, or other like fiduciary who has appeared." Missouri's Supreme Court Rule

74.05, which governs default judgments, states no added protections for incompetent

persons, but that does not mean that Missouri does not provide protections for

incompetent persons or that mirroring the federal rules in Missouri would have provided

any greater protections to Wahl.


         4
           Wahl provides no citation in support of his contention that the majority of states have rules of default that
establish specific procedures to address the situation where the defaulting party is incompetent.

                                                          11
         Missouri Rule 52.02(k) requires that:

         Whenever it shall be suggested or affirmatively appear to the court that any
         person not having a duly appointed guardian is incapable by reason of
         mental or physical infirmity of instituting suit or of properly caring for the
         person's own interest in any litigation brought by or against such person,
         the court shall inquire into the person's mental or physical condition for the
         purpose of the particular litigation and shall hear and determine such issue.
         If it is found to be proper for the protection of the person, the court may
         appoint a next friend or guardian ad litem for said person for the purpose of
         the particular litigation.

There is no need for Rule 74.05 to require that a next friend or guardian ad litem be

appointed to represent an incompetent person prior to default judgment, because Rule

52.02(k) already states that such an appointment shall be made in all litigation in which

the court has reason to believe a party is incompetent.

         The Federal Rule goes no further than the existing Missouri rules by simply

stating the protection directly in the rule governing default. We further note, even if the

federal rule had governed this case, Wahl would still have had no guardian appointed.

Under the facts of this case, there is no indication that the court ever had any reason to

believe that Wahl was incompetent prior to entering the Judgment. The criminal case and

civil case were heard by different judges in different divisions of the Jackson County

Circuit Court. No representation was ever made to the trial court in the civil action as to

Wahl's competency.5 "[T]here is a presumption of competency or sanity . . . until

evidence to the contrary appears." In re M----, 393 S.W.2d 109, 115 (Mo. App. 1965).

The court never had any reason to believe that Wahl was incompetent, requiring the

         5
          Both sides allege that the other party should have alerted the court to the determination that Wahl was
incompetent to stand trial in the companion criminal case. Deciding whether either party had such a duty is not
necessary to resolve Wahl's appeal, thus we do not address these allegations.

                                                         12
appointment of a next friend or guardian ad litem, thus, under the federal rules or

Missouri rules, the court did not know it needed to make such an appointment. Wahl's

sole argument as to violation of his constitutional due process and equal protection rights

is that Missouri's default judgment rules do not protect the rights of an incompetent

person by requiring the appointment of a guardian prior to entering a default judgment.

This is clearly not the case and, as such, his claim is without merit. Wahl fails to address

how a trial court is supposed to magically make such a determination of competency

when the defending party fails to file an answer or appear before the court.

       Missouri has existing procedures both to protect an incompetent person prior to

the entry of a default judgment and also to allow such person to set aside the judgment.

The Rule 52.02 subsection (m) states that:

       Failure to appoint a next friend or guardian ad litem for a minor or a
       mentally or physically infirm person shall not invalidate the proceedings if
       the court finds that the interests of the minor or mentally or physically
       infirm person were adequately protected.

"A judgment rendered against an insane person who is not represented by a guardian or

guardian ad litem is voidable and in a proper proceeding should be set aside." Murphy v.

Murphy, 358 S.W.2d 778, 781 (Mo. 1962); Williams v. Pyles, 363 S.W.2d 675, 678 (Mo.

1963); In re M----, 393 S.W.2d at 116. Previously, the mechanism by which to do this

was a writ of error coram nobis to set aside the judgment. Murphy, 358 S.W.2d at 781.

The writ of error corum nobis, however, was abolished by Rule 74.06(d) and is no longer

available. Huston v. State, 272 S.W.3d 420, 420-21 (Mo. App. E.D. 2008).




                                             13
        Despite no longer being able to file a writ of error coram nobis to set aside a

judgment against an incapacitated person for failure of a court to appoint a guardian, the

judgment still remains voidable under Rule 74.05(d) for failure to appoint a guardian,

provided a meritorious defense is also presented.6 Rule 74.05 is not constitutionally

deficient because Missouri law provides adequate protections for incompetent persons.

Just as with the federal system under Rule 55, had there been any indication to the court

that Wahl was incompetent and could not defend the suit, a guardian ad litem would have

been appointed under Rule 52.02. After a default judgment was granted, Wahl was free

to move for the judgment to be set aside under Rule 74.05. He would have been entitled

to such relief but for his failure to meet the pleading requirements under the rule. We

cannot say that failure to properly avail oneself of the protections of Rule 74.05(d) makes

the entire rule constitutionally deficient.

                                                 Conclusion

        The trial court did not err in failing to grant Wahl's Motion. Wahl failed to verify

his Motion to Set Aside Default Judgment, produced no affidavits, exhibits or other

evidence to support his claims. Wahl's challenge to the constitutionality of Rule 74.05 is

without merit because the protections he claims are absent and necessary to comply with

the constitution are found in Rule 52.02; he merely failed to avail himself of the Rule's

protections. We affirm.




        6
           As noted above, Wahl presented no argument that the Judgment be set aside pursuant to Rule 74.06 or for
violation of Rule 52. As such, we take no position as to whether such motions would be successful.

                                                       14
             __________________________________
             Gary D. Witt, Judge

All concur




              15
