W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Neely & Gabris.
GOOD CAUSE TO SET ASIDE DEFAULT JUDGMENT WAS NOT SHOWN
Steele v. Johnson Controls, Inc., 688 S.W.3d 192 (Mo. banc 2024).
David Steele filed a petition alleging Johnson Controls, Inc. (JCI) violated § 287.780 by retaliating and discriminating against him for filing a workers’ compensation claim.1 He sought compensatory and punitive damages, adding punitive damages were warranted because “JCI acted with willful, deliberate, and reckless disregard for his rights.”2 The circuit court overruled JCI’s motion to set aside a default judgment awarding compensatory and punitive damages to Steele.3 The Supreme Court of Missouri affirmed the judgment, finding “JCI failed to prove good cause for its default as is required to set aside the default judgment pursuant to Rule 74.05(d).”4
Appellate courts review the judgment overruling the motion to set aside a default judgment, not the default judgment itself.5 A judgment overruling a motion to set aside a default judgment is reviewed for an abuse of discretion.6 Under Rule 74.05(d), the circuit court can set aside a default judgment “[u]pon motion stating facts constituting a meritorious defense and for good cause shown.”7 “A motion to set aside a default judgment does not prove itself and must be supported by affidavits or sworn testimony.”8 The moving party must prove good cause and a meritorious defense to set aside a default judgment pursuant to Rule 74.05(d).9
In Steele v. Johnson Controls, Inc., the affidavits from JCI’s lawyers “offered inconsistent accounts of JCI’s handling of Steele’s lawsuit.”10 “These inconsistencies provided a reasonable basis for the circuit court, as the finder of fact, to disbelieve JCI’s evidence.”11
“Although mishandling documents can be viewed as negligent conduct showing good cause, this Court has recognized it is reasonable to reject a claim of good cause when attorneys within an organization mishandle documents because counsel has a responsibility to ‘vigilantly follow the progress of a case in which he is involved.’ The circuit court did not abuse its discretion by declining to credit JCI’s inconsistent and contradictory affidavits and concluding JCI did not show good cause to excuse the default.”12
EXPERT OPINION DID NOT MEET RELIABILITY TEST
Schultz v. Great Plains Trucking Inc., 2024 WL 1261196 (Mo App. E.D. 2024).
Great Plains Trucking, Inc. and Lennis H. Beck (collectively “defendants”) appealed the court’s judgment following a jury trial that resulted in a judgment in favor of the plaintiffs on the plaintiffs’ wrongful death action. The plaintiffs’ wrongful death action arose out of a vehicular crash between a Great Plains Trucking tractor-trailer truck, driven by Beck, and a car driven by the mother of the decedent. The decedent was a passenger in the car. The trial court’s judgment entered upon the jury’s verdicts awarded the plaintiffs $10 million in compensatory damages against the defendants; $10 million in aggravating circumstances damages against Great Plains Trucking; $25,000 in aggravating circumstances damages against Beck; and post-judgment interest against the defendants.13
The defendants assert the trial court erred in excluding expert testimony from a doctor who opined the mother of the decedent was impaired by THC at the time of the fatal accident and that the mother’s impairment caused the accident. Finding no error, the Missouri Court of Appeals-Eastern District affirmed the judgment.
“Expert testimony in civil cases is only admissible if it satisfies the evidentiary requirements of section 490.065.”14 Testimony is admissible under § 490.065.2 when “it is proffered by a qualified expert, it is reliable, and it is relevant.”15 In this case, the trial court excluded the doctor’s expert testimony because it was unreliable and was irrelevant.16 “Doctor was unable to provide a methodology or cite any specific symptoms of behavior exhibited by Mother to support Doctor’s opinion that Mother was impaired,” the court found.17
“Reliability [of expert testimony] is determined by considering whether the testimony is based on sufficient facts or data, reliable principles and methods, and reliable application thereof.”18
“[A] trial court is in the best position to determine whether to admit or exclude an expert’s testimony based on inconsistencies between two portions of his or her testimony, and ‘[t]his is necessarily a fact-specific, discretionary determination.’ Given the inconsistencies in Doctor’s overall deposition testimony and the trial court’s detailed findings on the record, it cannot be said that the trial court’s decision to exclude Doctor’s testimony from trial is clearly against the logic of the circumstances then before the court or is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration. Therefore, the trial court did not abuse its discretion in excluding Doctor’s testimony from trial on the grounds it was not reliable due to inconsistencies in her overall deposition testimony.”19
COLORADO RESIDENT WAS NOT SUBJECT TO LONG-ARM JURISDICTION IN MISSOURI
Montgomery v. Hopper, 687 S.W.3d 426 (Mo. App. S.D. 2024).
Appellants Scott Montgomery and Russell Turner each filed petitions against respondent Sherri Hopper, a Colorado resident and Colorado-licensed real estate agent, alleging libel for statements Hopper made to a Colorado association of realtors in response to an ethics complaint filed against her by the appellants in Colorado. The circuit court granted Hopper’s motions to dismiss finding the appellants failed to demonstrate a statutory basis for jurisdiction in Missouri based on § 506.500, the long-arm statute.20 The Missouri Court of Appeals-Southern District found that the appellants failed to make a prima facie showing that Hopper “committed any act contemplated by the long-arm statute in Missouri,” and it affirmed the circuit court’s judgments dismissing the appellants’ petition.21
A court evaluates personal jurisdiction by considering the allegations contained in the pleadings to determine whether, if taken as true, they establish facts adequate to invoke Missouri’s long-arm statute and support a finding of minimum contacts with Missouri sufficient to satisfy due process.22 The Missouri Court of Appeals first determined whether the plaintiff pleaded and proved “the suit arose from any of the activities enumerated in [s]ection 506.500[,]” the long-arm statute.23 “While a plaintiff need not prove all of the elements that form the basis of the defendant’s liability, he or she must make a prima facie showing of the validity of the claim by showing that acts contemplated by the statute took place.”24
The court found the appellants’ petitions do not allege any actual contract made in Missouri or any cause of action arising from any specific contract or business transaction in Missouri. The alleged libelous statements were made by Hopper, a resident of Colorado, to a Colorado entity in response to the ethics complaint filed in Colorado by the appellants, and then forwarded to the appellants in Missouri. “We see no allegation any ‘contracts’ were ever actually accepted, let alone accepted in Missouri. ‘For purpose of the long-arm statute, a contract is made where acceptance occurs.’”25 “In order to rely upon the ‘tortious act’ provision of the long-arm statute, [the plaintiff is] required to show that the [d]efendants committed a tort in Missouri and that the action caused [the plaintiff] injuries.”26 In this case, the court states the “only connection” the alleged tort has to Missouri is that the appellants received copies of the statements in Missouri, where they reside.27
“This is insufficient to show the alleged libel was committed by Respondent in Missouri. Appellants have failed to make a prima facie showing that Respondent committed libel in Missouri. While the reach of Missouri’s long-arm statute is indeed long, it is not that long. We hold that Respondent is not subject to personal jurisdiction in Missouri under the specific facts of this case.”28
WHEN JURY ASSESSES NO FAULT TO DEFENDANT, ERRONEOUS COMPARATIVE FAULT INSTRUCTION WAS NOT PREJUDICIAL
Brady v. City of Springfield, 687 S.W.3d 718 (Mo. App. S.D. 2024).
Stephen Brady appealed the trial court’s judgment, following a jury trial, in favor of the City of Springfield on Brady’s premises liability claim to recover damages Brady sustained from an automated gate that closed while he was exiting the city’s park on his motorcycle. Because any alleged instructional error was not prejudicial to Brady, the Missouri Court of Appeals-Southern District affirmed the trial court’s judgment.29
The jury returned its verdict assessing zero percent fault to the city and zero percent fault to Brady.30 Brady objected to Instruction No. 9 “arguing that the instruction assumed disputed material facts as true, was a roving commission, and did not follow Missouri substantive law on causation because the jury instruction required the jury to assess a percentage of fault to Brady if they found Brady ‘entered [the city’s park] when the park was closed at sunset[.]’”31 “A jury verdict which assesses no fault to the defendant negates any claim of prejudice to plaintiff in the giving of an erroneous comparative fault instruction.”32
“Here, the jury returned its verdict assessing zero percent fault to the City. The jury must have necessarily concluded that Brady failed to meet his burden of proof and establish at least one of the propositions in the verdict director necessary to return a verdict in his favor. Therefore, the jury was never required to reach comparative fault.”33
Endnotes
1 Steele v. Johnson Controls, Inc., 688 S.W.3d 192 (Mo. banc 2024).
2 Id. at 195.
3 Id.
4 Id. at 194-195.
5 State ex rel. Nixon v. McGee, 213 S.W.3d 730, 732 (Mo. App. 2007).
6 In re Marriage of Callahan, 277 S.W.3d 643, 644 (Mo. banc 2009).
7 Steele, 688 S.W.3d at 197. Rule 74.05(d) provides the “motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment.” JCI timely filed its motion to set aside the default judgment.
8 Callahan, 277 S.W.3d at 644.
9 Krugh v. Hannah, 126 S.W.3d 391, 393 (Mo. banc 2004).
10 Steele, 688 S.W.3d at 198.
11 Id. See also Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012).
12 Id. (quoting Sprung v. Negwer Materials, Inc., 775 S.W.2d 97, 100 (Mo. banc 1989)).
13 Schultz v. Great Plains Trucking Inc., 2024 WL 1261196 (Mo App. E.D. 2024).
14 Huett v. Branson, 675 S.W.3d 514, 520 (Mo. App. E.D. 2023) (citing Linton, 634 S.W.3d at 626).
15 Schultz, 2024 WL 1261196 at 4 (citing Huett, 675 S.W.3d at 521); see also § 490.065.2.
16 Schultz, 2024 WL 1261196 at 4.
17 Id. at 7.
18 Huett, 675 S.W.3d at 521 (Quoting State ex rel. Gardner v. Wright, 562 S.W.3d 311, 319 (Mo. App. E.D. 2018) (citing § 490.065.2(1)(b)-(d)).
19 Schultz, 2024 WL 1261196 at 9 (quoting Linton by and through Linton v. Carter, 634 S.W.3d 623, 630 (Mo. banc 2021); Huett, 675 S.W.3d at 521; see also Gardner, 562 S.W.3d at 319; Section 490.065.2(10(b)-(d).
20 Montgomery v. Hopper, 687 S.W.3d 426 (Mo. App. S.D. 2024).
21 Id. at 430.
22 State ex rel. Cedar Crest Apartments, LLC v. Grate, 577 S.W.3d 490, 496 n.5 (Mo. banc 2019).
23 Id.
24 Id.
25 Montgomery, 687 S.W.3d at 434 (quoting Copeland v. WRBM, LLC, 679 S.W.3d 30, 40 (Mo. App. E.D. 2023).
26 Hollinger v. Sifers, 122 S.W.3d 112, 116 (Mo. App. W.D. 2003).
27 Montgomery, 687 S.W.3d at 436.
28 Id.
29 Brady v. City of Springfield, 687 S.W.3d 718 (Mo. App. S.D. 2024).
30 Id.
31 Id. at 721.
32 Green v. United Exp., 969 S.W.2d 825, 827 (Mo. App. E.D. 1998) (holding that “[a]bsent a finding in favor of the plaintiff, the jury would not reach the issue of comparative fault”); see also Lee v. Mirbaha, 722 S.W.2d 80, 83 (Mo. banc 1986) (“The lack of prejudice is found by the fault that the jury returned a general verdict for the defendants.”).
33 Brady, 687 S.W.3d at 723-24 (citing Lee, 722 S.W.2d at 84).