326 S.W.3d 834
Mo. Ct. App.2010Background
- Court of Gardens Condominium Association sued 10330 Old Olive, LLC for breach of an easement agreement (31% of common operating costs) and related damages in two counts; petition attached the agreement detailing interest, fees, and costs.
- Service by alias summons via Secretary of State, forwarding by certified mail; mail returned for forward time expired with new address.
- Defendant did not appear by May 28, 2009 hearing; plaintiff requested default judgment; status hearing held August 24, 2009 at which defendant again did not appear.
- Court entered default judgment August 24, 2009 for damages: principal $35,977.54, interest $5,331.82, attorney fees $6,196.40, total $47,505.76 plus costs; defendant moved October 12, 2009 to set aside.
- Motion to set aside was not verified and lacked affidavits or sworn testimony; trial court denied the motion November 12, 2009; defendant later filed a verified motion to reconsider, treated as potentially a Rule 78.01 motion.
- Appellate court remanded for damages proof, affirmed denial of setting aside on basis of lack of verified proof, reversed as to damages issue and remanded for hearing on damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the default judgment should be set aside under Rule 74.05(d). | Defendant failed to verify motion or provide affidavits. | Meritorious defense and good cause established. | Abuse of discretion not shown; motion unverified; denied. |
| Whether damages awarded in the default judgment were properly proven. | Alleged damages supported by petition and document. | No probative evidence; no damages hearing. | Damages not proven; remanded for a damages hearing. |
Key Cases Cited
- First Community Bank v. Hubbell Power Systems, Inc., 298 S.W.3d 534 (Mo.App. S.D. 2009) (motion to set aside default requires verified or sworn evidence)
- Hinton v. Proctor & Schwartz, Inc., 99 S.W.3d 454 (Mo.App. E.D. 2003) (merits of Rule 74.05(d) and Rule 78.01 interplay)
- Reed v. Reed, 48 S.W.3d 634 (Mo.App. W.D. 2001) (motion to set aside must be verified or supported by affidavits)
- Duvall v. Maxey, 249 S.W.3d 216 (Mo.App. W.D. 2008) (default damages require probative evidence)
- Beckmann v. Miceli Homes, Inc., 45 S.W.3d 533 (Mo.App. E.D. 2001) (default judgment damages require evidence of damages for unliquidated claim)
- Smith v. Sayles, 637 S.W.2d 714 (Mo.App. 1982) (default damages require probative evidence)
- Beckmann v. Miceli Homes, Inc., 45 S.W.3d 533 (Mo.App. E.D. 2001) (default judgment damages require evidence of damages for unliquidated claim)