In the Missouri Court of Appeals Eastern District DIVISION FOUR
SHARON DASH, ET AL., ) No. ED110698 ) Appellants, ) Appeal from the Circuit Court of ) St. Louis County vs. ) ) Honorable Thomas C. Albus TRESSA MITCHELL, ET AL., ) ) Respondents. ) Filed: February 14, 2023
Introduction
Sharon Dash, Bill Blacksher, and Cynthia Sowell, as Trustees of the Riverwood Estates
Homeowners Association (“Appellants”), appeal the judgment of the Circuit Court of St. Louis
County granting Tressa Mitchell’s (“Respondent”) Rule 74.05(d) motion to set aside the default
judgment entered against her on February 17, 2021.1 Appellants raise two points on appeal. In
Point I, Appellants argue the trial court erred because Respondent failed to demonstrate her
motion to set aside was filed within a reasonable time. In Point II, Appellants argue the trial
court erred because Respondent failed to demonstrate good cause to set aside the default
judgment. Because the trial court abused its discretion in finding Respondent demonstrated good
cause to set aside the default judgment, we grant Point II. Because Point II is dispositive, we
decline to address Point I.
1 All Rule citations are to the Missouri Supreme Court Rules (2022), unless otherwise indicated. Appellants filed a motion for attorneys’ fees, which we took with the case. This motion is
granted.
We reverse and remand for proceedings consistent with this opinion.
Factual & Procedural History
On September 3, 2020, Appellants filed a petition seeking damages and an injunction
against Respondent for violating the HOA’s covenants and use restrictions. Appellants alleged
several violations, including personal property strewn across the lot, loud music, improper
parking, exposed garbage, broken shutters, and other nuisances detracting from the aesthetic
beauty and value of the community. Appellants alleged they sent Respondent several letters
before filing their petition. Respondent was personally served the petition and summons by the
county sheriff on September 10, 2020.
On October 8, 2020, Respondent sent a letter to the trial court “in reference to the
summons.” Respondent requested a continuance because she is disabled and would have
difficulty coming to court. Respondent alleged “the things on the summons” were addressed
“long before” Appellants’ petition was filed. On October 16, 2020, Appellants filed a Rule
74.05(a) motion for default judgment alleging thirty days had passed since service and
Respondent had failed to file a responsive pleading. On January 27, 2021, Appellants filed an
amended motion for default judgment alleging Respondent had not filed a responsive pleading
and had taken no action since sending her letter to the trial court. Both motions for default
judgment included a certificate of service indicating they were mailed to Respondent. On the
same day, Appellants filed a notice indicating they would move for a default hearing on February
9, 2021. The notice provided a Zoom meeting login link and passcode and included a certificate
of service indicating it was mailed to Respondent.
2 On February 9, 2021, the trial court held a default hearing. Appellants appeared by
counsel. Respondent did not appear. The trial court entered an interlocutory order of default
judgment and set a hearing for February 17, 2021, via Zoom. Counsel for Appellants filed an
affidavit describing his costs and fees and asserting he sent three letters to Respondent requesting
she stop violating the property covenants prior to filing the petition. Respondent did not appear at
the February 17, 2021, remote hearing. The trial court entered a default judgment granting
Appellants damages, attorneys’ fees, and a permanent injunction on February 17, 2021.
On March 22, 2021, Appellants’ attorney sent Respondent a certified letter, return receipt
requested. Respondent signed the receipt card for that letter on March 26, 2021. The certified
letter provided Respondent a copy of the February 17, 2021, default judgment, which advised her
of the following: the February 9, 2021 interlocutory order of default, her failure to appear for the
hearing on February 17, 2021, the judgment against her enjoining her and all residents of her
home from nine detailed specific actions, the award of attorneys’ fees and costs against her
totaling $3,325.20, nine percent post-judgment interest and any “reasonable attorneys’ fees
required for the collection or defending this judgment.” The letter further advised her of the
Appellants’ contention she was in violation of the injunction, the additional attorneys’ fees the
Appellants were incurring, and the Appellants’ intent to file a motion for civil contempt against
her if there were any future violations of the injunction, in which the Appellants would seek
additional attorneys’ fees, costs, and request the Court “levy a significant fine against you.”
On September 24, 2021, Appellants filed their first amended petition for civil contempt
alleging Respondent and other residents of her home were consistently violating the injunction.
On January 21, 2022, the trial court ordered Respondent to show cause why she should not be
found in contempt.
3 On February 16, 2022, Respondent, through counsel, filed a Rule 74.05(d) motion to set
aside the default judgment. Respondent alleged she is an amputee, undergoes dialysis three times
per week, struggled to manage her health during the COVID-19 pandemic, and is not educated in
the legal process. Because of these factors, Respondent claimed “she neglected to address the
petition and failed to understand what steps she needed to take.” Respondent alleged she had a
meritorious defense in that she denies Appellants’ allegations and “disputes the damages alleged,
such as the depreciation of other property values in the neighborhood.”
Respondent filed an affidavit alleging she is a fifty-year-old, disabled, single mother with
severe arthritis who receives dialysis three times each week. She alleged her health, disability,
and the COVID-19 pandemic made it difficult for her to “manage.” Respondent alleged she is
not a lawyer and has only a “GED and a CAN license.” Respondent alleged she “did not
understand what a legal answer was and that by not filing an answer [she] would relinquish all of
[her] rights." Respondent alleged since the petition was filed she has “paid $5,000 to the Home
Owner's Association and [has] been working to resolve the issues in the lawsuit.” Respondent
alleged she tried to comply with the injunction and thought “the lawsuit was taken care of” by
her letters, payments, and efforts to comply. Respondent alleged she “did not mean to be difficult
or slow down the case.”
In her memorandum in support of her motion to set aside the default judgment,
Respondent characterized her October 8, 2020, letter to the court as one that denied the
allegations and asserted her attempt to remedy the complaints against her. Respondent argued
she “did not just ignore the suit” because, as set forth in her affidavit, she paid $5,000 to the
HOA and tried her best to adhere to the injunction and the HOA covenants. Respondent argued
while “these actions may not be an official ‘Answer’ as required by the Rules, they do indicate
4 that there was no conscious effort by Defendant to undermine the judicial system” or “thwart”
Appellants. After a hearing, the trial court granted Respondent’s motion to set aside the default
judgment on April 25, 2022.
This appeal follows.
Standard of Review
A motion to set aside a default judgment is an independent action and the decision to
grant or deny the motion is an independent judgment. Brungard v. Risky's Inc., 240 S.W.3d 685,
687 (Mo. banc 2007) (citing Rule 74.05(d)). We afford significant deference to a trial court’s
decision to set aside a default judgment because public policy favors resolution of cases on their
merits. Id. (citing Cont’l Basketball Ass'n v. Harrisburg Pro. Sports Inc., 947 S.W.2d 471, 473
(Mo. App. E.D. 1997)). We review for an abuse of discretion because our system holds a
“distaste” for default judgments. Id. (quoting Cont’l Basketball Ass'n, 947 S.W.2d at 473). An
abuse of discretion occurs when the trial court's ruling is clearly against the logic of the
circumstances before the court at the time and is so unreasonable and arbitrary that it shocks
one's sense of justice and indicates a lack of careful consideration. Beverly v. Hudak, 545 S.W.3d
864, 869 (Mo. App. W.D. 2018) (citing Westerman v. Shogren, 392 S.W.3d 465, 469–70 (Mo.
App. W.D. 2012)).
The trial court enjoys broader discretion in granting a motion to set aside than it does in
denying one. Brungard 240 S.W.3d at 687 (citing Hopkins v. Mills-Kluttz, 77 S.W.3d 624, 626
(Mo. App. E.D. 2002)). We provide this deference even where the motion to set aside is
supported only by affidavit. Id. (citing Beckmann v. Miceli Homes, Inc., 45 S.W.3d 533, 542
(Mo. App. E.D. 2001)). We defer to the trial court in its assessment of facts but apply de novo
5 review to questions of law and application of law to facts. Pearson v. Koster, 367 S.W.3d 36, 44
(Mo. banc 2012).
Appellants argue our standard of review is de novo because no facts are contested. Id. at
44. Appellants argue evidence can be contested in many ways, “such as by putting forth contrary
evidence, cross-examining a witness, challenging the credibility of a witness, pointing out
inconsistencies in evidence, or arguing the meaning of the evidence.” Id. Appellants argue
Respondent made none of these challenges. Respondent argues we should review for an abuse of
discretion and affirm the trial court’s judgment. Jones v. Riley, 560 S.W.3d 540, 544 (Mo. App.
E.D. 2018) (citing Brungard, 240 S.W.3d at 687–88). Because the parties dispute the meaning of
the facts, we review for an abuse of discretion. Pearson, 367 S.W.3d at 44.
Discussion
Rule 74.05(d)
Both of Appellants’ points concern the trial court’s application of Rule 74.05(d). Under
Rule 74.05(d), a court may set aside a default judgment upon a motion stating facts constituting a
meritorious defense and good cause to set aside the default judgment, which includes “a mistake
or conduct that is not intentionally or recklessly designed to impede the judicial process."
Brungard, 240 S.W.3d at 687. The motion must be filed within a “reasonable time” not to exceed
one year after the entry of default judgment. Rule 74.05(d).
Point II: Good Cause
In Point II, Appellants argue the trial court erred in granting Respondent’s motion to set
aside the default judgment because Respondent failed to demonstrate good cause, which was her
burden to prove. Brungard, 240 S.W.3d at 688. Appellants argue there is no evidence in the
record Respondent had good cause for taking no action prior to default, and the evidence reflects
6 an “intentional or reckless design to impede the judicial process.” Klaus v. Shelby, 42 S.W.3d
829, 830 (Mo. App. E.D. 2001). Appellants argue granting a motion to set aside a judgment
without requiring the movant to prove their allegations is reversible error. Reed v. Reed, 48
S.W.3d 634, 642 (Mo. App. W.D. 2001), overruled on other grounds by McElroy v. Eagle Star
Grp., Inc., 156 S.W.3d 392, 401 (Mo. App. W.D. 2005).
Appellants argue Respondent’s conduct was reckless because it lacked caution and
courted danger. First Cmty. Bank v. Hubbell Power Sys., Inc., 298 S.W.3d 534, 539 (Mo. App.
S.D. 2009). Appellants note on September 10, 2020, Respondent was served the petition and
summons, which advised her she had thirty days to respond, failing which a default could be
taken. The summons advised Respondent she could call or email the court if she has special
needs. Appellants argue Respondent’s bare assertion she thought the lawsuit was “taken care of”
did not satisfy her burden to prove good cause. Appellants also contend it is impossible to know
from Respondent’s affidavit why she did not timely respond to the petition, and this silence in
the record reflects an intentional or reckless design to impede the judicial process. Klaus, 42
S.W.3d at 830. Appellants argue Respondent’s assertions about her health, education, and
sophistication are bare “allegations without evidentiary support” which are insufficient grounds
to set aside a default judgment. Irvin v. Palmer, 580 S.W.3d 15, 23 (Mo. App. E.D. 2019).
Appellants argue a trial court abuses its discretion by setting aside a default judgment if the
record lacks evidence of good cause. Klaus, 42 S.W.3d at 830; Krugh v. Hannah, 126 S.W.3d
391, 393 (Mo. banc 2004).
Respondent argues her affidavit supports the trial court’s finding of good cause because
her allegations were not conclusory and are distinguishable from cases where a movant cites
“absolutely no evidence” supporting good cause. Klaus, 42 S.W.3d at 832. Respondent argues
7 her prompt letter to the trial court upon service and payment to Appellants demonstrate her intent
to engage with the case. Respondent contends even forgetting to file a response may warrant a
finding of good cause absent evidence of bad faith. Krugh, 126 S.W.3d at 393. Respondent
argues she did not understand her failure to respond would “relinquish all of [her] rights,” which
satisfies good cause because her actions were not intentionally or recklessly designed to impede
the judicial process. Respondent argues the payment she made to Appellants does not suggest
she was aware of the default judgment. Respondent notes we construe any reasonable doubt in
favor of her good faith. J.E. Scheidegger Co., Inc. v. Manon, 149 S.W.3d 499, 504 (Mo. App.
S.D. 2004).
A party moving to set aside a default judgment has the burden to prove good cause.
Brungard, 240 S.W.3d at 686 (citing In re Marriage of Pierce, 867 S.W.2d 237, 238 (Mo. App.
S.D. 1993)). Rule 74.05(d) specifies good cause includes “a mistake or conduct that is not
intentionally or recklessly designed to impede the judicial process.” Id. at 686. A person acts
recklessly if they are intentionally indifferent to the harmful consequences of their actions.
Saturn of Tiffany Springs v. McDaris, 331 S.W.3d 704, 709 (Mo. App. W.D. 2011) (citing
Barsto Const., Inc. v. Gladstone Senior Partners, L.P., 270 S.W.3d 440, 442 (Mo. App. W.D.
2008)). Reasonable doubts are construed against a finding of recklessness. Id. (citing Barsto
Const., Inc., 270 S.W.3d at 442). We interpret “good cause” liberally to include good faith
mistakes and even negligence in failing to file a timely answer. Paes v. Bear Commc’ns, LLC,
568 S.W.3d 52, 59 (Mo. App. W.D. 2019) (citing Lee v. Lee, 449 S.W.3d 383, 385 (Mo. App.
W.D. 2014)).
Recklessness entails a conscious choice of a course of action, either with knowledge of a
serious danger or knowledge of facts which would disclose the danger to a reasonable person. Id.
8 (citing Lee, 449 S.W.3d at 385). Intentional indifference, meaning a lack of care about the
consequences of a person’s actions, can be reckless. Vogel v. Schoenberg, 620 S.W.3d 106, 112
(Mo. App. W.D. 2021) (citing Coble v. NCI Bldg. Sys., Inc., 378 S.W.3d 443, 448 (Mo. App.
W.D. 2012)). Recklessness describes a deliberate choice to risk the possibility of a default
judgment, while mere negligence 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. at 112 (quoting Piva v. Piva, 610 S.W.3d 395, 401 (Mo. App. E.D.
2020)).
An affidavit asserting a movant’s mistaken belief they took appropriate action (by
forwarding a summons to his insurer) has been held sufficient to demonstrate good cause.
Brungard, 240 S.W.3d at 686. But we have held good cause is not established where an affiant
merely asserts his own good faith, that he is “unfamiliar” with legal documents, and he does not
know “what became of the summons and petition” after he was served. Beckmann, 45 S.W.3d at
542. We noted such a “careless attitude” may preclude a finding of good cause. Id. (citing
Boatmen's First Nat’l Bank v. Krider, 844 S.W.2d 10, 12 (Mo. App. W.D. 1992)). Similarly, in
Vogel, the Western District affirmed a trial court’s determination it was reckless for a party to
receive a summons warning of a default judgment, understand its implications enough to call
other parties to address the summons, but take no further action to ensure his interests had been
protected. 620 S.W.3d at 113–14.
We note Appellants have failed to file a transcript from the default hearing as none was
made. Unless there is a statutory mandate requiring that a hearing be held on the record, it is the
appellant's responsibility, not the court's, to ensure a transcript is made in order to preserve the
record. Poke v. Mathis, 461 S.W.3d 40, 43 (Mo. App. E.D. 2015) (citing Butler v. Mo. Crim.
9 Recs. Repository, 241 S.W.3d 429, 430 (Mo. App. E.D. 2007)). It is an appellant's burden to file
all the evidence necessary to determine a question presented. Where a transcript is not filed, we
presume it would have been unfavorable to the appellant. Beckmann, 45 S.W.3d at 542–43
(citing Delf v. Cartwright, 651 S.W.2d 622, 624 (Mo. App. E.D. 1983)). Although the record
shows Respondent did not attend the hearing on her motion to set aside the default judgment, her
counsel did. Because there is no transcript in our record we assume Respondent’s counsel
disputed evidence, warranting abuse of discretion review. See Wooten v. Wentworth Entm't Grp.,
LLC, 552 S.W.3d 118, 122 (Mo. App. S.D. 2018) (“Counsel for Wooten did, however, contest
Riley's evidence, essentially arguing that Riley was not credible. The resolution of this contested
issue required the trial court to make a factual determination as to whether the underlying
circumstances surrounding Riley's delay were reasonable.”). Here, the resolution of this case
required the trial court to make factual determinations regarding good cause in the failure to file
an answer and a reasonable time to file the motion to set aside the default.
But even under a review for an abuse of discretion, we must reverse the trial court’s
judgment. The facts alleged in Respondent’s affidavit invite only one interpretation: Respondent
was careless and intentionally ignored a judicial proceeding. Her actions demonstrate a
deliberate course of action to refuse to respond to Appellants’ pleadings and the trial court’s
orders. Coble, 378 S.W.3d at 448 (citing Heintz Elec. Co. v. Tri Lakes Interiors, Inc., 185
S.W.3d 787, 793 (Mo. App. S.D. 2006)). This Court has held a movant’s claims of unfamiliarity
with legal documents and a bare assertion of good faith “suggest a ‘careless attitude,’ which has
been held to preclude a finding of good cause.” Beckmann, 45 S.W.3d at 542 (quoting Boatmen's
First Nat’l Bank, 844 S.W.2d at 12) (emphasis added); cf. Heintz, 185 S.W.3d at 793 (holding
unfamiliarity with the legal system demonstrated good cause where affiant confused two similar
10 cases and promptly moved to set aside default judgment). Rather than a good faith mistake or
failed attempt to participate in her case, Respondent’s lone response to the trial court — sending
a letter requesting more time — resembles taking “no action whatsoever.” Yee v. Choi, 641
S.W.3d 272, 281 (Mo. App. W.D. 2021), transfer denied (Feb. 1, 2022), transfer denied (Apr. 5,
2022). Despite Respondent’s stated belief she believed her case was “taken care of” after paying
a sum to Appellants, there is no reason she could not have inquired into the status of her case,
especially given the trial court held remote hearings. Respondent was repeatedly mailed notice
that her case was ongoing and was not “taken care of.” Appellant’s general assertions regarding
her age, health, and education do not satisfy her duty to demonstrate good cause. Respondent has
failed to explain how her alleged difficulties prevented her from acting prior to the entry of
default judgment, despite her duty under Rule 74.05(d) to “explain how these conclusory
statements constituted good cause.” Kelly-Patel v. Wensel, 588 S.W.3d 604, 610 (Mo. App. E.D.
2019).
Respondent correctly notes we prefer to decide cases on their merits, but we also
recognize the strong public policy interests in protecting final judgments and the “fundamental
policy on which the administration of justice rests—that parties obey and respect orders of the
court to appear or respond or otherwise to take some action.” Smith v. Smith, 524 S.W.3d 95, 99
(Mo. App. E.D. 2017); Kelly-Patel, 588 S.W.3d at 610–61 (quoting Plasmeier v. George, 575
S.W.3d 485, 488 (Mo. App. E.D. 2019)). Our general policy favoring disposition on the merits
“must be carefully applied to the facts of each case in the interest of justice; for, the law defends
with equal vigor the integrity of the legal process and procedural rules and, thus, does not
sanction the disregard thereof.” Sprung v. Negwer Materials, Inc., 775 S.W.2d 97, 100 (Mo.
banc 1989).
11 Because the allegations in Respondent’s affidavit demonstrate a deliberate lack of care
and attention, Respondent acted recklessly in failing to timely respond to Appellant’s petition.
The trial court therefore abused its discretion in finding Respondent satisfied her burden to
demonstrate good cause. Ben F. Blanton Const., Inc. v. Castle Hill Holdings XI, L.L.C, 109
S.W.3d 693, 694 (Mo. App. E.D. 2003) (citing Hopkins v. Mills–Kluttz, 77 S.W.3d 624, 626
(Mo. App. E.D. 2002)).
Point II is granted.
Point I: Reasonable Time
In Point I, Appellants argue the trial court erred in granting Respondent’s February 16,
2022, motion to set aside the default judgment because it was not filed within a reasonable time.
Appellants argue Respondent’s motion was not filed within a reasonable time because she waited
364 days from the default judgment and failed to explain her delay. Appellants argue the
reasonableness requirement of Rule 74.05(d) would be meaningless if any motion filed within
365 days was timely. In determining whether the motion was filed within a reasonable time,
Appellants argue we “examine the circumstances surrounding the delay.” Cap. One Bank (USA)
NA Successor in Int. to, Cap. One Bank v. Largent, 314 S.W.3d 364, 367 (Mo. App. E.D. 2010)
(citing First Bank of the Lake v. White, 302 S.W.3d 161, 168 (Mo. App. S.D. 2009)). Respondent
was mailed copies of the motion for default judgment and the default judgment, so she cannot
contend she was unaware of the suit. Appellants note we prefer prompt action by movants. Bell
v. Bell, 849 S.W.2d 194, 198 (Mo. App. W.D. 1993). Appellants cite cases affirming trial court
findings that motions filed more promptly than Respondent’s were untimely. First Bank of The
Lake, 302 S.W.3d at 168 (332 days); Engine Masters, Inc. v. Kirn's, Inc., 872 S.W.2d 644, 646
(Mo. App. E.D. 1994) (316 days).
12 Respondent notes our “strong preference for deciding cases on the merits.” In re
Marriage of Callahan, 277 S.W.3d 643, 644 (Mo. banc 2009). Respondent reiterates the bases
set out in her affidavit for her delayed response: her age, education, health, good faith, and lack
of familiarity with the legal system. Respondent argues we are not bound by the Appellants’
cases finding quicker responses untimely because the trial court, in its discretion, determines
reasonableness on a case-by-case basis.
Because Point II is dispositive, we decline to address Point I.
Appellants’ Motion for Attorneys’ Fees
On November 1, 2022, Appellants filed a motion for attorneys’ fees alleging “they have
incurred attorneys’ fees in the amount of $8,453.50” defending on appeal the default judgment
entered against Respondent. We took this motion with the case. Appellants argue this Court
“may award a party reasonable attorneys’ fees on appeal if they are authorized by a written
agreement that is the subject of the issues presented on appeal.” Jamestowne Homeowners Ass’n
Trs. v. Jackson, 417 S.W.3d 348, 359-60 (Mo. App. E.D. 2013); Rx Recalls, Inc. v. Devos Ltd.,
317 S.W.3d 95, 96–97 (Mo. App. E.D. 2010).
Under the American Rule, litigants generally pay for their own attorneys’ fees.
Thanhphuong Thi Nguyen v. Dieng Nguyen, 573 S.W.3d 150, 155 (Mo. App. E.D. 2019). Under
the contract exception to this rule, we may award a party their reasonable attorneys’ fees “if such
fees are authorized by a written agreement that is the subject of the issues raised in the appeal.”
Id. (citing Frontenac Bank v. GB Invs., LLC, 528 S.W.3d 381, 397 (Mo. App. E.D. 2017)). This
includes issues which “arose out of the litigation to recover damages.” Rx Recalls, Inc., 317
S.W.3d at 97. Appellants cite the affidavit of Appellant Sharon Dash, which references Article
IX A of the covenants, which provides Appellants are entitled to recover from Respondent their
13 “reasonable attorneys’ fees and costs incurred” in enforcing the covenants. Additionally, the trial
court awarded Appellants their “attorney’s fees and costs incurred in enforcing the Covenants” in
its default judgment before that judgment was set aside. The default judgment further provided
Appellants “shall recover reasonable attorneys’ fees required for the collection or defending this
judgment.”
Because Appellants’ recovery of attorneys’ fees is authorized both by their covenants and
the trial court’s default judgment, Appellants’ motion is granted. Although we have the
“authority to allow and fix the amount of attorney's fees on appeal, we exercise this power with
caution, believing in most cases that the trial court is better equipped to hear evidence and
argument on this issue and determine the reasonableness of the fee requested.” Jamestowne
Homeowners Ass'n Trs., 417 S.W.3d at 360 (quoting Rosehill Gardens, Inc. v. Luttrell, 67
S.W.3d 641, 648 (Mo. App. W.D. 2002)). We remand to the trial court for a calculation of
Appellants’ reasonable attorneys’ fees on appeal.
Conclusion
Because the trial court abused its discretion in finding Respondent demonstrated good
cause to set aside the default judgment, we reverse and remand for proceedings consistent with
this opinion. Appellants’ motion for attorneys’ fees is granted.
_______________________________ Philip M. Hess, Judge
Kelly C. Broniec, P.J. and James M. Dowd, J. concur.