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Fifth Third Bank v. Brady

Court of Appeals of Missouri, Southern District, First Division

June 4, 2019

FIFTH THIRD BANK, Plaintiff-Appellant,
v.
TERRY R. BRADY, Defendant-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY Honorable John D. Beger, Circuit Judge

          GARY W. LYNCH, J.

         Fifth Third Bank ("Bank") appeals the trial court's judgment denying its Rule 74.06(b)(3) motion (the "motion") to set aside a judgment entered against it and in favor of Terry R. Brady (the "underlying judgment").[1] Bank asserts two points relied on, claiming that the trial court erred in denying the motion because the trial court "applied the incorrect standard for timeliness" and the underlying judgment is irregular. Determining that Bank's first point has no merit and that its denial is dispositive, we affirm.

         The motion was made over eleven months after entry of the underlying judgment.[2] The motion contains no factual allegations addressing this delay and is unverified. Bank has failed to provide us with a record of any evidence presented to the trial court related to or addressing in any manner the reason for this delay. Bank concedes in its brief on appeal that the trial court denied its motion because, among other reasons, it was not made within a reasonable time after the judgment was entered.

         In its first point relied on, Bank contends that the trial court "applied the incorrect standard for timeliness" because the motion was "made within one year after the judgment was entered."

         In the argument under its point, however, Bank changes its contention to claim that the trial court erred in denying the motion because it "was made within a reasonable period of time that was not more than one year after the judgment was entered."[3] (Emphasis added). In support of its new "reasonable time" argument, Bank argues that, "[w]hile Missouri courts have favored [a] 'sooner-better-than-later concept', it is clear through the plain reading of the Rule, that the motion may be reasonable if made within one year of the judgment." (Emphasis added). Reciting the underlying facts in Capital One Bank v. Largent, 314 S.W.3d 364, 367 (Mo.App. 2010), Bank posits that the Eastern District of our court "found that the movant's eight-month delay in challenging the default judgment [under Rule 74.05] was reasonable." In an effort to demonstrate that the underlying factual basis for its delay here is similar to that in Largent, [4]Bank then proffers a two-sentence factual explanation for its delay in making the motion. That explanation, however, is not supported by any citations to the record on appeal, as required by Rule 84.04(e), [5] and, upon our independent review, is not supported by the record on appeal. Finally, in conclusion, Bank requests that this court find that its motion "was filed within a reasonable period of time[.]"

         Bank had the burden of proving in the trial court that it was entitled to Rule 74.06(b) relief. First Bank of The Lake v. White, 302 S.W.3d 161, 165 (Mo.App. 2009). "[A] Rule 74.06 motion to set aside a final judgment does not prove itself any more than does any other unverified motion or pleading." Agnello v. Walker, 306 S.W.3d 666, 675 (Mo.App. 2010) (citing Weidner v. Anderson, 174 S.W.3d 672, 677 (Mo.App. 2005)). "The motion court is afforded broad discretion when acting on a Rule 74.06 motion, and an appellate court should not interfere unless the record demonstrates an abuse of the motion court's discretion." First Bank of The Lake, 302 S.W.3d at165 (citing Jeffries v. Jeffries, 840 S.W.2d 291, 293 (Mo.App. 1992)). Bank, therefore, had the burden to prove that the motion was "made within a reasonable time and . . . not more than one year after the judgment or order was entered." Rule 74.06(c) (emphasis added). While the legal file establishes the latter, Bank has failed to cite us to anything in the record on appeal providing a purported factual basis upon which the trial court could have found that the motion was made within a "reasonable time," much less demonstrating that the trial court abused its discretion in rejecting that purported factual basis. Bank's attempt in its brief to provide an explanation for its delay is unavailing. "[T]his Court will not consider documents and testimony outside the record on appeal." In re Adoption of C.M.B.R., 332 S.W.3d 793, 823 (Mo. banc 2011) (abrogated on other grounds by S.S.S. v. C.V.S., 529 S.W.3d 811, 816 (Mo. banc 2017)). Where an appellant proffers evidence outside the record, it will not be considered on appeal. Id.

         The factual basis for determining the "reasonable time" issue is considered on appeal as having been found by the trial court in accordance with the judgment adverse to Bank, i.e., the trial court found no such factual basis. See Rule 73.01(c) ("All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached."). Bank's failure to offer any evidence[6] to support a "reasonable time" factual basis necessarily dooms any abuse of discretion challenge to the trial court's adverse factual finding on that issue. See First Bank of The Lake, 302 S.W.3d at 169 (no abuse of discretion in failure to find factual issue when movant failed to present any evidence to the motion court of existence of that issue and presuming otherwise would effectively shift the burden of proof to non-moving party). Bank has provided us with no factual or legal basis for a decision on its first point other than the trial court did not abuse its discretion in denying the motion because it was not made within a reasonable time after the underlying judgment was entered. On that basis, Bank's first point is denied.

         Because the motion was not timely made, Bank's second point challenging the substantive basis for its denial is moot and need not be considered.

         For the above reasons, the trial court's judgment is affirmed.[7]

          DON E. BURRELL, P.J. - concurs

          NANCY STEFFEN RAHMEYER, J. - concurs in result in separate opinion

         CONCURS ...


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