Arthur R. Piva v. Richard A. Piva

• Court: Missouri Court of Appeals
• Decided: October 13, 2020
• Docket: ED108780
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION THREE

ARTHUR R. PIVA, ) No. ED108780 ) Appellant, ) Appeal from the Circuit Court of ) Marion County vs. ) 19MR-CV00455-01 ) RICHARD A. PIVA, ) Honorable Rachel L. Bringer Shepherd ) Respondent. ) Filed: October 13, 2020

Angela T. Quigless, P.J., Kurt S. Odenwald, J., and James M. Dowd, J.

OPINION

In this invasion of privacy suit between two brothers, Appellant Arthur Piva appeals the

trial court’s order and judgment that set aside pursuant to Rule 74.05(d)1 the default judgment

entered in his favor against Respondent Richard Piva. Appellant alleges the trial court abused its

discretion because: (1) Defects in Respondent’s verified motion and in the supporting affidavit

rendered them inadmissible hearsay; (2) Respondent failed to establish he had good cause for

going into default; and (3) Respondent failed to demonstrate that his motion was filed within a

reasonable time. We affirm.

1 All rules referenced are to the Missouri Supreme Court Rules 2019. Background

After Respondent wrote and published a book about the parties’ lives, Appellant sued

Respondent on March 21, 2019 in the Circuit Court of Marion County for invasion of privacy,

seeking compensatory damages and an injunction to stop further publication of the book.

Appellant claims the book contains private facts and untrue stories purportedly detailing the

brothers’ lives as adopted children in America. One story asserted that Appellant was born in the

Auschwitz concentration camp, a detail Appellant asserts to be untrue.

Respondent was served at his residence in Hawaii with the summons and a copy of

Appellant’s petition on April 12, 2019 which meant his answer or responsive pleading was due

on May 13, 2019. After May 13th came and went with no responsive pleading filed, Appellant

filed his motion for default judgment. The trial court took up the motion on June 27, 2019 and

entered a default judgment against Respondent in the amount of $375,000. The court clerk

mailed a copy of the default judgment to Respondent on July 9, 2019.2

Then, on September 3, 2019, 56 days after the court mailed the default judgment,

Respondent’s counsel entered his appearance and filed a motion to set aside the default judgment

pursuant to Rule 74.05(d). The motion was verified and incorporated by reference Respondent’s

affidavit which stated, inter alia, the following:

2 Though Respondent admits he received this correspondence, the record is silent on when he received it or even on how long his mail typically took to reach him in Hawaii from the mainland. In Crain v. Webster Elec. Co-op., 568 S.W.2d 781, 786 (Mo. App. S.D. 1978), the court held that when a party admits to receiving a copy of a default judgment via regular mail, a presumption arises that the mail was received in due course. Id. We note that Rule 44.01 adds 3 days to deadlines that are triggered by a mailing. Rule 44.01(e). Though we are unable to reach a definitive conclusion as to how long this correspondence took to reach Respondent in Hawaii, since there is no evidence to the contrary, we presume Respondent’s delay was not affected by any postal delay.

2 “8. After I finished the book, before it was published, I sent a pre-published copy or manuscript of the book to my brother, [Appellant], to give him the first right of refusal. . . I asked him to read the book. I told him if there was anything in the book that he didn’t like, to let me know and I wouldn’t publish the book. . . .

9. . . . [Appellant], called me and told me he was thrilled that I had written the book. . . . He said I should go ahead and have the book published. . . . He even sent me about a half dozen pictures for me to use in the book. . .

10. . . . I told him that if I make anything on the book, I would share it with him. He responded by saying he hoped we’d make a lot of money.

16. . . . within a day or so of being served with the summons and petition, I asked him about the lawsuit. He told me that he knew nothing about the lawsuit and said he had not filed the lawsuit. . . .

18. On another call within 30 days after I was served, my brother asked me for the name and phone number of the attorney who had filed the lawsuit because he didn’t know who the attorney was. I told him, and he said he wanted to contact the attorney and see about getting the attorney to drop the lawsuit. Because of this, I expected the lawsuit would be dismissed. . . .

21. I took no further action at that time because I was under the belief that the lawsuit would be dismissed based on what my brother had told me.

22. I thought the lawsuit was some type of huge mistake because my brother said it was filed without his knowledge. . .”

The trial court took up the motion to set aside on October 4th. Based solely on the

motion and affidavit, the trial court found Respondent demonstrated good cause for having gone

into default and that he had a meritorious defense to the lawsuit and entered its judgment setting

aside the default judgment. This appeal follows.

Standard of Review

We review for an abuse of discretion the trial court’s grant of a Rule 74.05(d) motion to

set aside a default judgment. Brungard v. Risky’s Inc., 240. S.W.3d 685, 686 (Mo. banc 2007).

Trial courts are afforded broad discretion to grant such motions and only narrow discretion to

deny them. Id. at 687. A trial court abuses its discretion when its ruling is clearly against the

3 logic of the circumstances and is so arbitrary and unreasonable as to shock one’s sense of justice

and to indicate a lack of careful consideration. State ex rel. Wyeth v. Grady, 262 S.W.3d 216, 219

(Mo. banc 2008).

Rule 74.05(d)

Rule 74.05(d) provides that a default judgment may be set aside upon a motion stating

facts constituting a meritorious defense to the lawsuit and upon a showing of good cause for

having gone into default. In re Marriage of Callahan, 277 S.W.3d 643, 644 (Mo. banc 2009).

Additionally, Missouri courts have repeatedly and consistently held that in order to obtain relief

from a default judgment, the defaulted party must bring forward some evidence—whether by

affidavit, live testimony, or a verified motion—supporting Rule 74.05(d)’s good cause and

meritorious defense elements. Plasmeier v. George, 575 S.W.3d 485, 487 (Mo. App. E.D. 2019)

transfer denied (June 4, 2019).

Analysis

Appellant argues that the trial court erred in setting aside the default judgment because:

(1) The motion and affidavit lacked certain formalities causing the statements to be inadmissible

hearsay such that they should not have been considered by the trial court; (2) Respondent failed

to carry his burden on the good cause element of his Rule 74.05(d) motion; and (3) Respondent

failed to demonstrate his motion was filed within a reasonable time after entry of the default

judgment in light of the length of time he delayed after learning the default judgment had been

entered. We are unpersuaded that any error occurred.

I. Respondent’s verified motion and affidavit were properly considered.

Appellant attacks Respondent’s verified motion and the affidavit submitted in support of

the motion. First, Appellant argues the notary’s attestation on Respondent’s motion was

4 somehow inadequate or defective so that the motion should not be considered verified. Next,

Appellant alleges that Respondent’s failure to affirmatively assert in the affidavit that it was

made on his personal knowledge rendered the affidavit inadmissible hearsay which the court

should not have considered.

1. The motion’s notarial attestation.

Appellant argues Respondent’s motion to set aside the default judgment should not be

deemed a verified motion because of a defect in the notary’s attestation. We fail to find any

defect. The attestation appears immediately below Respondent’s signature on the motion. It

attests to Respondent’s signature and bears the notary’s stamp and Hawaii notary number.

2. The affidavit’s failure to specifically state that it was made on personal knowledge.

Appellant’s second claimed defect, however, requires more attention. Appellant claims

that the affidavit is ineffective because it fails to recite that it was made on Respondent’s

personal knowledge. While we agree that in most instances an affidavit should specifically

recite that it is made on the basis of the affiant’s personal knowledge, Hinton v. Proctor &

Schwartz, Inc., 99 S.W.3d 454, 459 (Mo. App. E.D. 2003), the failure to do so is not fatal to the

admissibility of the affidavit when the contents of the affidavit demonstrate that the statements

are based on the affiant’s personal knowledge. May & May Trucking, L.L.C. v. Progressive Nw.

Ins. Co., 429 S.W.3d 511, 515 (Mo. App. W.D. 2014).

An affidavit is a written declaration on oath sworn to by a person before someone

authorized to administer such oath. Estep v. Atkinson, 886 S.W.2d 668, 674 (Mo. App. S.D.

1994). In Missouri, public notaries may administer the oath necessary for an affidavit.

5 § 492.0103. And Missouri recognizes affidavits, such as the one here, which are executed in

another state and notarized by a notary public from that state. § 490.530.

Statements made in an affidavit must be made upon personal knowledge to qualify as

evidence. St. Charles Cty. v. Dardenne Realty Co., 771 S.W.2d 828, 831 (Mo. banc 1989); Allen

v. St. Luke’s Hospital of Kansas City, 532 S.W.2d 505, 507 (Mo. App. W.D. 1985). And we

recognize this Court’s decision in Hinton on which Appellant principally relies, holding that the

failure to explicitly assert that the affidavit’s statements are based on the affiant’s personal

knowledge renders the statements inadmissible hearsay. 99 S.W.3d at 459. However, we find

that the facts here place this case within an exception to the rule set forth in Hinton because

Respondent’s statements in his affidavit demonstrate that they were made based on his personal

knowledge. May & May Trucking, L.L.C., 429 S.W.3d at 515.

In Hinton, the appellant asserted that their default was caused by the registered agent’s

failure to forward the suit papers to the appellant’s outside law firm. 99 S.W.3d at 459.

Appellant supported its motion to set aside the default judgment with the affidavit of an associate

attorney from that law firm in which the associate made statements regarding the failed delivery.

Id. The trial court ruled that the affidavit was inadmissible hearsay because the affidavit failed to

state that it was based on his personal knowledge. Id. This Court cited the affidavit’s failure to

recite such a statement as a fatal defect to the affidavit. Id.

Nevertheless, other courts have carved out an exception to the rule cited in Hinton

finding that the failure to explicitly state in the affidavit that it is based on personal knowledge

does not automatically render the affidavit inadmissible so long as the statements in the affidavit

reflect that they were made on the affiant’s personal knowledge. May & May Trucking, L.L.C.,

3 All statutory references are to R.S.Mo. 2016 unless otherwise indicated. 6 429 S.W.3d at 515. In May & May Trucking, the affidavit was from the custodian of records

who had no personal knowledge regarding the subject matters of the affidavit which were the

communications between a claims specialist and the plaintiff. Id. at 516. The court recognized,

“[w]ithout an allegation that the claims representative reported each transaction to her, we cannot

determine that her role supports a basis for personal knowledge.” Id.

Moreover, May & May Trucking cited Wilson v. St. Louis Area Council, Boy Scouts of

America, 845 S.W.2d 568, 573 (Mo. App. E.D. 1992), where this Court found that the affiant’s

position within an organization established sufficient familiarity with the organization’s

structure, which was the subject matter the affidavit addressed, and that such familiarity

established the basis for affiant’s personal knowledge such that the affiant’s statements were

admissible. Id.

Turning now to Respondent’s affidavit quoted extensively above, it is undeniable that

Respondent’s statements emanate from his personal knowledge since they describe his version of

the conversations between himself and his brother, the Appellant here, as they relate to the

publication of his book and the circumstances surrounding the early litigation of this case leading

to the entry of the default judgment. As such, we find that Respondent’s affidavit fits within the

exception to the rule that affidavits must recite that they are made on the affiant’s personal

knowledge and was properly considered by the trial court in connection with the motion to set

aside the default in this case.

II. Respondent’s verified motion and affidavit satisfy his burden to establish good cause

under Rule 74.05(d)

Appellant argues Respondent failed to carry his burden under Rule 74.05(d) with respect

to the good cause element, because Respondent’s affidavit failed to demonstrate that

7 Respondent’s failure to file a timely responsive pleading was not intentionally or recklessly

designed to impede the judicial process.4 We disagree.

Under Rule 74.05(d), a default judgment may be set aside upon a motion stating facts

constituting a meritorious defense and for good cause shown. In re Marriage of Callahan, 277

S.W.3d at 644. It is the defaulting party’s burden to bring forward some evidence - whether by

affidavit, live testimony, or a verified motion – demonstrating the party had good cause for going

into default and the failure to do so is fatal to a Rule 74.05(d) motion to set aside. Plasmeier,

575 S.W.3d at 487. And, again, we review the trial court’s ruling for an abuse of discretion, and

we examine the evidence in the light most favorable to the trial court’s ruling. Brungard, 240

S.W.3d at 686.

“Good cause includes a mistake or conduct that is not intentionally or recklessly designed

to impede the judicial process.” Rule 74.05(d). Good cause should be interpreted liberally and

includes mistakes and even negligence in failing to file a timely answer. In re Marriage of

Callahan, 277 S.W.3d at 644. (citing Dozier v. Dozier, 222 S.W.3d 308, 313 (Mo. App. W.D.

2007)). Rule 74.05(d) draws a line between negligent and reckless conduct. Reckless conduct

rises to a level of a conscious choice of action, either with knowledge of serious danger to others

or with knowledge of facts that would disclose the danger to a reasonable person. Dozier, 222

S.W.3d at 313. On the other hand, negligent conduct occurs if a party’s “inadvertence,

incompetence, unskillfulness or failure to take precautions precludes him from adequately coping

with a possible or probable future emergency.” Id. (quoting In re Marriage of Williams, 847

S.W.2d 896, 899 (Mo. App. S.D. 1993)). Conduct that is negligent may satisfy the good cause

4 Appellant does not challenge the trial court’s finding that Respondent established the meritorious defense element of Rule 74.05(d). 8 element of Rule 74.05(d) whereas reckless conduct does not. Coble v. NCI Bldg. Sys., Inc., 378

S.W.3d 443, 448 (Mo. App. W.D. 2012).

Respondent’s affidavit, viewed in the light most favorable to the trial court’s ruling,

supports the finding that he did not intentionally or recklessly ignore the summons in disregard

of the legal process. Rather, the affidavit demonstrates that Respondent appears to have at most

negligently relied on Appellant’s representations that he had not filed the suit and would seek to

have the suit dismissed. While Appellant may have a different version of events, under our

standard of review, we only consider whether the trial court had a sufficient factual basis for its

finding of good cause under Rule 74.05(d). And here, the affidavit sufficiently alleged facts that

Respondent’s conduct was not recklessly or intentionally designed to impede the judicial

process.

III. Respondent’s motion to set aside was filed within a reasonable time.

Appellant alleges that Respondent failed to file his motion to set aside the default

judgment within a reasonable time. Under Rule 74.05(d), a motion to set aside default “shall be

made within a reasonable time not to exceed one year after the entry of the default judgment.” In

determining whether a motion to set aside a default judgment was filed within a reasonable time,

we examine the circumstances surrounding the delay. Capital One Bank (USA) NA Successor in

Interest to, Capital One Bank v. Largent, 314 S.W.3d 364, 367 (Mo. App. E.D. 2010).

While we may have some concerns that Respondent took over 6 weeks to file his motion,

we give great deference to the trial court’s judgment setting aside a default judgment in part due

to our preference for disputes to be settled upon their merits. Brungard, 240 S.W.3d at 686.

And we find that the circumstances before the trial court justified its finding that Respondent

filed his motion within a reasonable time.

9 After learning that the default had been entered, Respondent sought and hired counsel in

Missouri, enlisted a notary in Hawaii to assist in executing his affidavit, and his Missouri counsel

then drafted and filed the motion. Under these facts and circumstances, we cannot convict the

trial court of an abuse of discretion in finding the motion was filed within a reasonable time.

CONCLUSION

The trial court did not abuse its discretion in granting Respondent’s motion and setting

aside the default judgment. We affirm.

_____________________________ James M. Dowd, Judge

Angela T. Quigless, P.J., and Kurt S. Odenwald, J., concur.