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.
10
Arthur R. Piva v. Richard A. Piva
Combined Opinion