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08/24/93 GEARLDINE LOCKHART v. KENNETH G. MIDDLETON

August 24, 1993

GEARLDINE LOCKHART, ET AL., RESPONDENT,
v.
KENNETH G. MIDDLETON, APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. The Honorable William W. Ely, Judge

Before Ulrich, P.j., Berrey and Smart, JJ.

The opinion of the court was delivered by: Smart

Kenneth G. Middleton appeals from the order of the trial court denying his motion to set aside a judgment entered against him in a wrongful death action. Middleton's wife, Katherine Middleton, was killed by a gunshot wound. Middleton was convicted of the murder and Katherine's siblings brought a wrongful death action against Middleton. After trial, a verdict was entered in favor of plaintiffs in the amount of $1,350,000.00. The trial court denied Middleton's motion to set aside the judgment, and he appeals.

Judgment is affirmed.

Katherine Middleton died of a single gunshot wound to the head on February 12, 1990. This occurred at the Middleton's home. On July 19, 1990, Katherine's siblings brought a wrongful death action against defendant alleging that defendant had willfully and intentionally fired the shot that caused the death of Katherine Middleton.

Defendant was served with the summons on September 26, 1990. Defendant's counsel filed a general denial answer on October 2, 1990. The case was originally docketed for the week of June 24, 1991. On June 18, 1991, defendant filed an application for continuance. That motion set forth that defendant was an inmate in the Missouri Department of Corrections and that counsel for defendant was scheduled to be in court on another criminal matter during defendant's trial date. The request was granted by the trial court and the case was rescheduled for the week of December 12, 1991. At the docket call, the trial Judge set the trial date for the week of May 26, 1992.

On April 14, 1992, defendant again filed a motion for a continuance. This motion set forth that defendant had been convicted of the first degree murder of his wife and was sentenced to life without parole in the Missouri Department of Corrections. The motion further stated that an appeal was pending from that conviction. Defendant was concerned that evidence of the criminal conviction would be presented to the jury and that his rights would be prejudiced if the conviction were later reversed on appeal. *fn1 Defendant also filed a motion in limine seeking a pre-trial order directing the plaintiffs not to argue or offer in evidence the fact that defendant had been convicted and sentenced for the murder of his wife. This motion was never ruled upon. The trial court originally granted the motion for continuance, continuing the case to the March 1993 docket. On April 20, 1992, plaintiffs filed suggestions in opposition to the continuance claiming that their interests would be prejudiced by the continuance because defendant had been disposing of his assets. The court then denied the continuance on May 21, 1991.

On May 18, 1992, defendant filed an application for a writ of habeas corpus ad testificandum, which was denied by the trial court. On May 21, 1992, the defendant forwarded to the court a notice advising that he was terminating the services of his counsel and that he intended to represent himself pro se.

On May 26, 1992, plaintiffs appeared for the scheduled trial and presented evidence. No representative of Defendant Middleton appeared on his behalf. The court entered judgment for plaintiffs for $1,350,000.00. On June 15, 1992, defendant filed a motion to set aside the judgment. The court denied the motion and defendant now appeals from the trial court's order.

Denial of Motion to Set Aside Judgment

Defendant first contends on appeal that the trial court erred in denying his motion to set aside the judgment entered against him in the wrongful death action because the ruling violated Rule 74.05(c) in that he showed good cause and a meritorious defense for failing to appear at trial.

The courts of this state have held that circumstances similar to those presented in this case do not involve a "default" judgment. See, e.g., Taylor v. Taylor, 742 S.W.2d 630, 632 (Mo. App. 1988); Brooks v. Brooks, 800 S.W.2d 468, 470 (Mo. App. 1990). These cases have held that when a defendant files an answer in a case and then does not appear at trial, the judgment is not a default judgment. In such circumstances, the party should seek to have the judgment set aside under Rule 74.06. Thus, we address defendant's claim in accordance with Rule 74.06. The trial court has the discretion to set aside a default judgment and its decision will not be interfered with unless an abuse of discretion is found. Bell v. Bell , 849 S.W.2d 194, 197 (Mo. App. 1993).

Defendant claimed that he failed to appear at his trial because he was incarcerated, unable to obtain a writ of habeas corpus ad testificandum, and no longer had counsel to represent his interests at trial. Defendant requested and received one continuance. After having an additional ten months to prepare for the trial, defendant again requested a continuance. The trial court initially granted defendant's motion and then after considering plaintiffs suggestions in opposition to the motion, which indicated that defendant was disposing of his assets, the trial Judge changed his ruling to a denial of the request. Less than one week before trial, defendant discharged his attorney. Defendant has not offered this court any explanation or justification for the discharge. Defendant declined the opportunity to present testimony by videotape deposition. Also, defendant's motion for ad testificandum was filed less than one week before the scheduled trial.

Defendant argues that the denial of this writ deprived him of his constitutionally guaranteed right of access to the courts and justifies his failure to appear. Defendant points to the fact that on May 26, 1992, he was no longer represented by counsel and was unable to be present at trial because he was confined by the Missouri Department of Corrections. Defendant fails to note, however, that it is well established that an inmate of a correctional facility ...


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