 

Iu the Missouri Court of Appeals
Eastern District

DIVISION FOUR
THOMAS PLASMEIER, ) No. ED106461
)
Appellant, ) Appeal! from the Circuit Court of
) St. Louis County
vs, ) 17SL-CC02481
)
RICHARD J. GEORGE, JR., ) Honorable Stanley J. Wallach
)
Respondent. ) Filed: January 29, 2019

OPINION

Thomas Plasmeier appeals the trial court’s order and judgment setting aside pursuant to
Rule 74.05(d)! the default judgment that had been entered in his favor against Richard George, Jr.
We reverse and remand with directions.

Background

Appellant Plasmeier, a United States Postal Service mailman, was attacked and bitten by
Respondent George’s dog when he attempted to deliver mail to George’s residence. Asa result of
the attack, Plasmeier suffered severe injuries.

On July 10, 2017, Plasmeier filed suit against George in the Circuit Court of St. Louis
County, After the sheriff was unable to serve George with the summons and petition, the court

issued on August 23, 2017 an alias summons and appointed a special process server, Pro Serve

 

' All rules references are to the Missouri Supreme Court Rules 2018.

 
Legal Services. Although George disputes that he was served, an affidavit of personal service was
filed by Pro Serve Legal Services on September 29, 2017, evincing that George was personally
served on September 23, 2017. As a result, his responsive pleading was due on October 23, 2017.

But George failed to file an answer or enter an appearance by October 23, 2017. So, on
October 31, 2017, Plasmeier filed a motion for default judgment and a hearing on the motion was
set on November 8, 2017. Following that hearing, Plasmeier was granted an interlocutory default
judgment, And on November 28, 2017, after a hearing to determine Plasmeier’s damages, the trial
court entered its default judgment for damages against George in the amount of $843,966.16,

On December 12, 2017, George’s counsel entered his appearance and filed a motion to set
aside the default judgment. The motion alleged that George was not personally served on
September 23, 2017; it claimed that if he was served he was not served with a copy of the summons
and petition together as required by Rule 54.04; and it asserted that he had a meritorious defense
to Plasmeier’s claimed damages in that he disputed the amount, No affidavit was filed in support
of George’s motion and the motion was not verified. George’s presentation at the hearing
consisted solely of his counsel’s argument and no sworn testimony or affidavits were submitted.

On January 3, 2018, the trial court granted George’s motion to set aside the default
judgment. This appeal follows.

Standard of Review

We review for abuse of discretion the trial court’s grant of a Rule 74,05(d} motion to set
aside a default judgment. Brungard v. Risky’s Inc., 240 S.W.3d 685, 686 (Mo.banc 2007). Trial
courts are afforded broad discretion to grant such motions and only narrow discretion to deny

them. /d. at 687.
Discussion

Plasmeier argues that the trial court erred in setting aside the default judgment because the
motion failed to satisfy the requirement that a Rule 74.05(d) motion be supported by sworn
testimonial evidence in the form of live testimony, affidavit, or a verified petition on the good
cause and meritorious defense elements established by Rule 74.05(d). We agree.

Rule 74,05(d) provides that a default judgment may be set aside upon motion stating facts
constituting a meritorious defense and for good cause shown. In re Marriage of Callahan, 277
S.W.3d 643, 644 (Mo. banc 2009). Additionally, Missouri courts have repeatedly and consistently
held that some evidence—whether by affidavit, live testimony, or a verified motion—must be put
forward supporting Rule 74.05(d)’s good cause and meritorious defense elements in order for a
party to get out from under a default judgment. Court ef 5 Gardens Condo. Ass'n v, 10330 Old
Drive, LLC, 326 8.W.3d 834, 837 (Mo. App.E.D. 2010) (“The motion must be verified or supported
by affidavits or sworn testimony produced at the hearing on the motion.”),; Universal Credit
Acceptance, Inc. v. Randall, 541 S.W.3d 726, 731 (Mo.App.E.D. 2018) (“Where the motion to set
aside a judgment is unverified and unsupported by affidavits or sworn testimony, the trial court
has no basis for granting the motion.”); Bryant v. Wahl, 502 8.W.3d 9, 13 (Mo.App.W.D. 2016)
(“A motion to set aside a default judgment does not prove itself and must be supported by affidavits
or sworn testimony.”).

Here, it is undisputed that George did not produce any affidavit or sworn testimony in
support of his motion to set aside the default judgment and the motion itself was not verified.
Instead, George’s motion makes three entirely conclusory allegations that no service occurred, that

service was improper, and disputing the amount of Plasmeier’s damages. Accordingly, George
failed to carry his burden under Rule 74.05(d) and the trial court erred in granting George’s motion
to set aside the default judgment.

We also reject George’s argument that the judgment was somehow void ab initio because
service was improper. George’s contention, which is conclusory and without sworn evidentiary
support, is that service was improper because (1) it was made 31 days after the summons was
issued—Rule 54.21 requires that the summons be served within 30 days of issuance—and (2) that
the petition may not have been served with the summons because the return only mentions the
summons and does not mention the petition.

George admits that he did not raise this issue before the trial court, and it is therefore not
preserved for review. A defending party who wishes to raise the defenses of lack of personal
jurisdiction, insufficiency of process, or insufficiency of service of process must do so either in a
pre-answer motion or in the party’s answer, Stiens v, Stiens, 231 8.W.3d 195, 199 (Mo.App. W.D.
2007); Rule 55.27(g). The failure to do so results in the waiver of those defenses. Rule 55.27(g).
Accordingly, George waived his defense of lack of personal jurisdiction due to insufficient
process. See Hinton v. Proctor & Schwartz, Inc., 99 8.W.3d 454, 461 (Mo.App.E.D. 2003).

Even if we found that George had properly raised a jurisdictional defense, his failure to
accompany his Rule 74.05(d) motion with any sworn testimonial support likewise defeats his
position. As discussed supra, motions to vacate must be supported by evidence, whether by
affidavit, sworn testimony, or by verified motion. See McGee ex rel. McGee y. City of Pine Lawn,
405 S.W.3d 582, 587 (Mo.App.E.D. 2013) (“The City's motion [to set aside default judgment] was
deficient . .. because the motion was not verified, and the City failed to present affidavits or sworn

testimony to support its contention that the trial court lacked personal jurisdiction over the City.”).

 
On its face, the result here may seem harsh. And we recognize the important policies
favoring the resolution of lawsuits on the merits and disfavoring default judgments. See Dozier v.
Dozier, 222 §.W.3d 308, 311 (Mo.App. W.D. 2007). Those policies, however, must be considered
together with the countervailing and fundamental policy on which the administration of justice
rests—that parties obey and respect orders of the court to appear or respond or otherwise to take
some action. See Stradford v. Caudillo, 972 S.W.2d 483, 486 (Mo.App. W.D. 1998) (‘When a
litigant chooses to ignore or act in reckless disregard of the rules and procedures set out for the
orderly administration of the judicial process, he cannot then be heard to complain when he
receives no relief under its rules, particularly Rule 74.05(d).”).

Moreover, it bears noting that Rule 74.05(d) was amended in 1993 to substantially relax
the defaulted party’s burden to get out from under a default. The rule now defines “good cause”
leniently as “a mistake or conduct that is not intentionally or recklessly designed to impede the
judicial process,” whereas previously Rule 74.05 left “good cause” undefined but the burden was
heavier than it is now in that the movant had to demonstrate “freedom from negligence” and that
there would be “no substantial injury to the plaintiff from delay.” See Robson v. Willers, 784
S.W.2d 893, 896 (Mo.App.W.D. 1990) (applying such requirements prior to the 1993 amendment
to Rule 74.05). In that sense, the policy disfavoring default judgments has been addressed by
making the procedure and burden to obtain relief from a default uncomplicated and relatively easy
to obtain. So, when viewed in this context, the result here is just in that George not only defaulted
but he then failed to adhere to Rule 74.05’s straightforward and relatively unburdensome
requirements.

Therefore, the judgment is reversed, and the cause is remanded for reentry of the default

judgment that the trial court set aside.

 
James d, Jud

Kurt S. Odenwald, P.J., and
Colleen Dolan, J., concur.

 
