Civil Practice and Procedure

John S. Sandberg, Esquire

You cannot default a defendant who has answered. Kiser v. Wideman, Sr., et al., No. 98662 (Mo. App. E.D., June 8, 2013), Dowd, J.

The homeowner sued defendants for damages resulting from contractor’s work installing an in-ground swimming pool damaging it and the retaining wall. When defendants did not answer an interlocutory judgment of default was entered. Thereafter the defendants appeared, and the judge both denied their motion to set aside the default judgment as premature and granted them leave to file an answer. Later the judge denied a motion to set aside the default and granted the default. Defendants appealed.

When the judge granted the defendants leave to file an answer the default was then moot and action on the basis of the default must be reversed.

Evidence on record required for default damage award. McGee, et al. v. City of Pine Lawn, No. 99030 (Mo. App. E.D., July 16, 2013), Mooney, J.

The plaintiff filed suit against the city alleging injuries from an assault while an invitee on city’s property. The city administrator was served with the summons and petition but the city did not respond until 10 months later when it filed a motion to set aside the default judgment. The default judgment was entered against the city for $500,000 based on the evidence produced and damages shown. The city appealed. The default judgment is affirmed but the matter is reversed on the award of damages and referred back for the court to take evidence as to the appropriate damage amount.

The rule on moving to set aside a default judgment is very particular with what must be shown and here the failure to follow the rule meant that the default judgment was affirmed. On the other hand, a judgment must also have facts to support it and here the record had no evidence about the assessment of damages. There was no transcript of the supposed hearing and neither was an affidavit of what the damages should be. Accordingly evidence would be required.

Jennifer Artman, Esquire

When the issue of personal jurisdiction arises in the context of a motion to register a foreign judgment, it is reviewed pursuant to the foreign state’s law. Thus, a New York court has personal jurisdiction over a party when that party agrees to a forum-selection clause selecting New York. Hope’s Windows, Inc. v. McClain, No. 75137 (Mo. App. W.D., March 19, 2013), Mitchell, J.

Plaintiff, a New York business, sued defendant in New York for breach of contract. The contract included a forum-selection clause that set New York as the venue. Defendant, a Missouri resident, was served but never answered or appeared in New York. Plaintiff obtained a default judgment against defendant and filed a petition to register the foreign judgment in Missouri. Defendant opposed the petition, alleging the New York court did not have personal jurisdiction over him. The Missouri trial court agreed, denying plaintiff’s petition. Plaintiff appealed.

Reversed and remanded. Missouri courts address the issue of personal jurisdiction pursuant to a foreign state’s law when the issue arises in the context of a motion to register a foreign judgment. In New York, agreeing to a forum-selection clause subjects a party to personal jurisdiction in that state. New York therefore had personal jurisdiction over defendant when it entered a default judgment against him.

One party’s objection to a jury instruction does not preserve a claim of error for other parties regarding that jury instruction. Sasnett v. Jons, No. 75106 (Mo. App. W.D., April 2, 2013), Hardwick, J.

Plaintiffs’ decedent was killed in a car accident. Plaintiffs sued an individual motorist involved in the accident and the City of Kansas City in a wrongful death action. Plaintiffs submitted verdict directing jury instructions for both defendants that stated each owed ordinary care. The city objected, arguing that the verdict director concerning the individual’s liability should state that the motorist was held to a higher standard of care. The trial court overruled the objection. After a verdict for plaintiffs assessing 10% of fault to the individual and 90% to the city, Plaintiffs appealed, alleging that the trial court erred in failing to instruct the jury as to the motorist’s higher standard of care.

Plaintiffs’ claim was unpreserved, as they did not object to the verdict director at the jury instruction conference. The city’s objection did not preserve plaintiffs’ allegation of error. Because plaintiffs affirmatively accepted the instructions, there could be no “manifest injustice” resulting in plain error by the trial court.

While a motion to remove a juror for nondisclosure is timely even after the jury is empanelled, the trial court does not abuse its discretion in refusing to remove the juror when the party requesting removal did not ask for independent examination of juror. Rupard v. Prica, No. 75687 (Mo. App. W.D., August 13, 2013), Newton, J.

After the jury had been empanelled but before opening statements, plaintiffs moved to remove Juror 40, alleging that during voir dire she: (1) may have lied about the cities in which she had recently resided; and (2) stated on her Facebook page that her favorite song was one that made “a mockery of the judicial system.” The trial court found the motion untimely because the jury had already been sworn. The trial court still heard the motion, reviewing the evidence and listening to the subject song but not admitting the materials into evidence. After a 10-2 defense verdict, where Juror 40 voted for the defense, plaintiffs appealed.

The trial court did not abuse its discretion in denying the motion to remove the juror. The motion was timely, despite the jury being empanelled, as this court held in Khoury v. ConAgra Foods, Inc. that litigants have a right to bring evidence of nondisclosure to the trial court’s attention. 368 S.W.3d 189, 198–99 (Mo. App. W.D. 2012). But plaintiffs’ appeal failed because they did not submit the materials considered by the trial court as part of the record on appeal. Thus, there was nothing in the record to support plaintiffs’ claim. Further, plaintiffs claim that the trial court had a sua sponte duty to independently question Juror 40 was denied. The proponent of removal has a duty to either conduct examination or request trial court examination, and plaintiffs did neither.