KISKA v. FORTNER (2026)

Harold Fortner, Jr., appeals the denial of his motion to vacate the default judgment entered by the Circuit Court of Vernon County, Missouri (“trial court”), in favor of Kathleen A. Kiska. On appeal, Fortner claims that the trial court erred in denying his motion to vacate the default judgment because: (1) the trial court lacked jurisdiction to proceed or schedule a default hearing during the time Kiska's action for partition was removed to the federal court; and (2) Kiska failed to inform the trial court that Fortner was not in default in that he had filed an answer in the federal court. We affirm the judgment of the trial court.

Factual and Procedural Background

On August 20, 2024, Kiska filed a petition for partition of real estate and personal property located in Vernon County.¹ The trial court issued a summons to Fortner on August 21, 2024, but the summons was not served upon Fortner, a resident of California, until October 3, 2024.² On November 7, 2024, Fortner alleges that he filed a Notice of Removal with the United States District Court for the Central District of California; no notice to the trial court of Vernon County or to the other parties occurred at this time.³ On November 8, 2024, Kiska filed a motion for default judgment in the trial court of Vernon County, along with a notice of default hearing; a default hearing was scheduled for December 10.

On December 6, 2024, the trial court in Vernon County reset the default hearing for February 14, 2025; notice of the hearing was sent to Fortner. On February 4, 2025, the Federal Court for the Western District of Missouri issued an Order granting a motion to remand this matter to the state circuit court in Vernon County, Missouri. On February 14, 2025, the trial court heard Kiska's motion for default (Fortner did not appear at the hearing) and entered default judgment in favor of Kiska. Fortner filed a motion to vacate the default judgment on April 1, 2025. After briefing, the trial court denied Fortner's motion to vacate the default judgment. This appeal follows.

Standard of Review

We review the trial court's denial of a motion to set aside a default judgment for abuse of discretion. Plasmeier v. George, 575 S.W.3d 485, 487 (Mo. App. E.D. 2019). “Trial courts are afforded broad discretion to grant such motions and only narrow discretion to deny them.” Id. “Whether a default judgment is void for lack of personal jurisdiction presents a question of law that we review de novo, giving no deference to the circuit court's decision.” Ground Freight Expeditors, LLC v. Binder, 407 S.W.3d 138, 141 (Mo. App. W.D. 2013).

Analysis

Fortner's first point on appeal is that the trial court erred in refusing to set aside the default judgment because it lacked jurisdiction to proceed after Fortner removed the case to the federal court on November 7, 2024. We disagree.

Removal by a defendant of certain matters from state to federal court occurs pursuant to 28 U.S.C. § 1446; the removal is effected once the removing defendant provides written notice of the removal to “all adverse parties,” and the statute requires that the removing defendant “file a copy of the notice [of removal] with the clerk of such State court[.]” 28 U.S.C. § 1446 (d). The federal court obtains jurisdiction over the matter when the notice of removal is filed in the federal court, but the state court also retains jurisdiction until the removal is completed, resulting in concurrent jurisdiction. Berberian v. Gibney, 514 F.2d 790, 792-93 (1st Cir. 1975). Although Fortner claims he filed his notice of removal in the Central District of California federal court on November 7, 2024, there is no evidence in the legal file establishing that he effected the removal pursuant to § 1446. Kiska filed a motion for default judgment in Vernon County on November 8, 2024, and a hearing on the default motion was noticed. The trial court rescheduled the default hearing for February 14, 2025, and Fortner was notified by mail of the rescheduled hearing. On February 2, 2025, the matter was remanded by the federal court back to the circuit court of Vernon County, since the federal court found the removal was untimely and improper. The default hearing took place in Vernon County as scheduled. The trial court had jurisdiction over the matter when the hearing took place and when the default judgment was entered.

Fortner argues, without any support in the record, that the trial court acted without jurisdiction by notifying him of the default hearing while the federal court had sole jurisdiction over this action. However, Fortner was not entitled to any notice of state court proceedings as a party in default. Irvin v. Palmer, 580 S.W.3d 15, 20 (Mo. App. E.D. 2019) (“Missouri courts have been resolute on this issue—once properly served, a party who defaults is charged with notice of all subsequent proceedings in the case․ Thus, a party in default has no right to notice of the default proceedings.”). The record before this court establishes the trial court in Vernon County had jurisdiction when Kiska filed her motion for default judgment, when the default hearing occurred, and when the default judgment was entered, thus the trial court did not abuse its discretion in refusing to set aside the default judgment.

Point I is denied.

Fortner's second point on appeal is that the trial court abused its discretion in refusing to set aside the default judgment because Kiska failed to inform the trial court that Fortner had filed an answer in federal court, and so Fortner was not actually in default. Again, we disagree.

Fortner is correct that a default judgment must be set aside, “regardless of whether the defendant shows good cause and a meritorious defense, if the defendant has filed a timely answer.” Everest v. Reinsurance Co. v. Kerr, 253 S.W.3d 100, 104 (Mo. App. W.D. 2008). However, Fortner has failed to establish before the trial court or before this court that he ever filed an answer in the Federal Court, let alone that his answer was timely, or that if such an answer had been filed it would constitute a sufficient answer in State Court. Fortner filed no answer in the trial court in Vernon County within the thirty days following his service; his ineffective notice of removal, also not filed within thirty days of his service, could not have extended his time in which to answer, which expired on November 3, 2024. Rule 55.25(a).⁴ And even if his removal had been effective, he failed to establish that he filed an answer in the federal court within the time allowed or that he sought and received leave to file an answer out of time. Thus, based on this record, Fortner was in default at all times after November 3, 2024, the default judgment was proper, and the trial court's refusal to set aside the default was not an abuse of discretion.

Point II is denied.

Conclusion

For all of the above-stated reasons, we affirm the judgment of the trial court.

FOOTNOTES

1.   St. Clair County State Bank and Weston Shelby, Trustee of the deed of trust waived service and did not otherwise participate in the lower court proceedings. They did not file a brief before this court or otherwise participate in this appeal.

2.   Fortner contends that he was served on October 6, but he cites to the Summons, which states that service occurred on October 3.

3.   There is no copy of the Notice of Removal or any documents from the federal court proceedings other than the notice of remand in the legal file; Fortner cites only to his own pleadings. Respondent Kiska provides a docket sheet reflecting the Notice of Removal and other filings in the appendix to her brief, but the documents contained in either party's appendix are not part of the legal file and therefore are not properly before this Court. Fortner argues that this court can take judicial notice of “records from other related proceedings involving the same parties,” but the authority he cites takes judicial notice of other cases in the state courts. See McMannis v. State, 720 S.W.3d 285, 287 n.2 (Mo. App. S.D. 2025). The removal proceedings would not appear on the State of Missouri Case.net service. Our facts and analysis reflect only that which is supported by records in the legal file.

4.   All rule references are to the Missouri Supreme Court Rules (2024).

Gary D. Witt, Presiding Judge

All concur