Court of Appeals of Missouri, Eastern District, Third Division
BETTY JANE IRVIN, Co-Trustee, and SYDNEY MEEK, Co-Successor Trustee, Trustees of the LEONARD E. IRVIN INTER VIVIOS TRUST DATED JULY 19, 2004, AS AMENDED AND RESTATED AND BETTY JANE IRVIN, Individually, Respondents,
JIMELE PALMER, and JOYCE PALMER, Appellants, LARRY D. WEBB, Defendant.
from the Circuit Court of Pike County 17PI-CC00046 Honorable
Chris K. Mennemeyer
M. DOWD, JUDGE
Palmers (appellants Jimele Palmer and Joyce Palmer) appeal
the trial court's denial of their motion to set aside the
default judgment entered against them and in favor of the
Irvins (respondents Betty Jane Irvin, in her individual
capacity and as co-trustee of the Leonard E. Irvin Trust (the
Trust), and Sydney Meek, successor co-trustee). Because we
find no error in the trial court's denial of the
Palmers' motion to set aside the default judgment, we
The underlying dispute.
underlying dispute here concerns the ownership of a parcel of
real property located in Pike County, Missouri. On August 7,
2017, the Irvins sued the Palmers seeking to void a quitclaim
deed that purported to convey ownership of the parcel from
the Trust to the Palmers. The suit alleged that the Palmers
exerted undue influence over Leonard E. Irvin which induced
him, as cotrustee of the Trust, to execute a power of
attorney giving the Palmers the authority to quitclaim the
property to themselves, which they did on November 6, 2014.
The suit also alleged that the Palmers exerted undue
influence over Betty Irvin to induce her to execute the
quitclaim deed in her capacity as co-trustee. Leonard E. Irvin
died in October 2016.
Default judgment-related procedural events.
Palmers were served with the summons and petition on August
28, 2017. On September 14, 2017, the Palmers' attorneys
filed with the court an entry of appearance and requested, on
the Palmers' behalf, thirty additional days to respond to
the petition. The court granted the request and ordered the
Palmers to file their responsive pleading on or before
October 13, 2017. No responsive pleading was filed by that
date. On October 23, 2017, the Irvins moved for judgment by
default. Neither the Irvins nor their counsel notified the
Palmers formally through service of the motion for default
judgment or by informally communicating their intentions to
the Palmers or their attorneys. Later that day, the trial
court heard and granted the Irvins' motion and entered a
default judgment against the Palmers which voided the
the same day the default judgment was entered, the Palmers
learned of its entry and filed their motion to set it aside
pursuant to Rule 74.05(d) claiming they had good cause for
failing to timely file a responsive pleading and that they
had meritorious defenses to the underlying lawsuit. The
entirety of their allegation as to Rule 74.O5(d)'s good
cause element was that their counsel's "professional
schedule and certain obligations" prevented him from
filing an answer. As to the meritorious defense element, the
motion alleged that the Palmers had "multiple
meritorious defenses" to the petition, though the motion
identified none. No affidavit was attached and the motion was
not verified. Also on October 23, 2017, the Palmers submitted
an answer, which they represented was "through leave of
court" but no leave had been granted or was ever
November 10, 2017, the Palmers filed an amended motion to set
aside the default judgment. With regard to good cause, the
motion repeated the same allegation as the original motion.
Regarding the meritorious defense element, the Palmers again
claimed "multiple meritorious defenses" but this
time included the bare allegation that the disputed
transaction was undertaken pursuant to a valid power of
attorney. However, no document purporting to be the power of
attorney mentioned in the motion was attached or offered at
the hearing on the motion. Likewise, the amended motion was
not accompanied by any affidavit and was not verified.
January 14, 2018, the trial court denied the Palmers'
amended motion to set aside the default judgment. The trial
court found that the Palmers "failed to show the
existence of a meritorious defense" because the motion
had no affidavit attached, it was not verified or signed by
the Palmers, and because the Palmers failed to adduce any
testimony whatsoever at the hearing.
January 18, 2018, the Palmers filed a motion asking the court
to reconsider its denial of their motion to set aside the
default judgment. In that motion, the Palmers were silent as
to the good cause element of Rule 74.05(d) and addressed only
the meritorious defense element by attaching documents they
assert granted them a power of attorney to execute the
quitclaim deed, together with an affidavit attesting to the
same. The trial court denied the motion to reconsider as
well. This appeal follows.
The trial court 's ruling that the Palmers were not
entitled to notice was not error.
Palmers assert that they were entitled to notice of the
Irvins' motion for default judgment (1) because their
counsel filed an entry of appearance, which they argue
entitled them under Rule 43.01 to notice of all proceedings
in the case, and (2) because the Irvins' counsel had an
ethical and professional duty as a lawyer to notify the
Palmers' counsel. We find no merit in either argument.
Since they were in default, the Palmers were not entitled to
notice of the default proceedings.
courts have been resolute on this issue-once properly served,
a patty who defaults is charged with notice of all subsequent
proceedings in the case. Bredeman v. Eno, 863 S.W.2d
24, 26 (Mo.App.W.D. 1993). Thus, a party in default has no
right to notice of the default proceedings. Id., Doe v.
Hamilton, 202 S.W.3d 621, 624 (Mo.App.E.D. 2006).
Palmers seek to evade this jurisprudence by arguing that the
entry of appearance filed by their counsel entitled them to
notice of all future proceedings, including Rule 74.05
default proceedings, even though they were in default. The
Palmers' argument is premised on Rule 43, 01, which
requires parties to serve other parties with written motions
and papers filed in connection with a case, with the
exception that "[n]o service need be made on parties in
default for failure to appear." (emphasis
added). The Palmers assert that because their counsel filed