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Turner v. Gateway Bobcat of Mo. Inc.

Court of Appeals of Missouri, Western District, Second Division

September 30, 2014

JOHN TURNER, Respondent,
v.
GATEWAY BOBCAT OF MISSOURI INC., Appellant

Page 445

Appeal from the Circuit Court of Boone County, Missouri. The Honorable Larry A. Bryson, Judge.

Kevin Dudley Case, Patric Shane Linden, Kansas City, MO, Counsel for Appellant.

Danieal Howard Miller, Columbia, MO, Counsel for Respondent.

Before Division Two: Victor C. Howard P.J., James E. Welsh, Anthony Rex Gabbert JJ. All concur.

OPINION

Anthony Rex Gabbert, Judge

Page 446

Gateway Bobcat of Missouri, Inc. appeals a judgment denying its motion to set aside a default judgment against it. In its sole point on appeal, Gateway asserts that the trial court erred in denying its motion to set aside the default judgment entered against it because Gateway established good cause and the existence of meritorious defenses. We reverse and remand.

Factual Background

On January 7, 2011, John Turner filed a petition in the Circuit Court of Boone County naming Gateway as the defendant. An initial appearance date was set for February 7, 2011, to answer the allegations in the petition. A summons was served on Gateway's registered agent on January 21, 2011. The summons was in turn sent to the president of Gateway, Daniel Anich, via Federal Express on January 24, 2011. Anich placed the papers on the desk of John Albers. Albers was the general manager of Gateway and was designated to process legal papers and transmit notice to Gateway's insurance carrier. Albers was out of town when the papers were placed on his desk, but was set to return on January 28, 2011.

On February 7, 2011, the circuit court entered a default judgment against Gateway, when it failed to appear before the court.[1] On February 8, 2011, Anich asked Albers about the status of the lawsuit and that prompted Albers to find the petition and summons and deliver them to Gateway's insurance carrier so counsel could be retained.

On February 23, 2011, Gateway filed a motion to set aside default judgment and to allow it time to file an untimely answer. Attached to this motion was Gateway's proposed answer to Turner's petition and suggestions in support of Gateway's motion to set aside default judgment, including an affidavit from Albers and exhibits in support of the motion. Aside from setting forth the factual background of the case, Albers's affidavit stated that the papers

Page 447

" must have been inadvertently intermingled with some of the papers and I did not notice the Summons ...


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