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Klein v. Clinton

Court of Appeals of Missouri, Southern District, Second Division

February 24, 2015

CAROLYN C. KLEIN, as member of R. Clinton Enterprises, LLC, a Missouri Limited Liability Company, on behalf of herself and all other similarly situated members, and as Co-Trustee of the Ray Clinton Irrevocable Trust, the Dorothy Clinton Irrevocable Trust, and the Clinton Family Trust, Plaintiff-Respondent,
v.
STEVEN M. CLINTON, individually, and as a member of R. Clinton Enterprises, LLC, Defendant-Appellant, and R. Clinton Enterprises, LLC, Defendant, and DOROTHY CLINTON, Intervenor, and RAY BELL, the Ray A. Bell Irrevocable Trust, Joseph C. Bell, the Joseph C. Bell Irrevocable Trust, Marshall Clinton, the Marshall Ellison Clinton Irrevocable Trust, Matthew Clinton, the Matthew Steven Clinton Irrevocable Trust, the Christopher C. Clinton Irrevocable Trust, Charles Clinton, Sheila Williams, and Tiffany Clinton, Interested Parties

APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY. Honorable Stephen R. Mitchell, Associate Circuit Judge.

For Appellant: Kyle L. Warren of Poplar Bluff, MO.

For Respondent: Michael D. Murphy, Jonah Ted Yates, Ross D. McFerron of Cape Girardeau, MO.

Nancy Steffen Rahmeyer, J. -- Opinion Author. Gary W. Lynch, J. -Concurs. Don E. Burrell, J. -Concurs.

OPINION

Page 81

Nancy Steffen Rahmeyer, J.

The plaintiff and defendant in this action are brother and sister and are beneficiaries

Page 82

of trusts prepared by their father. Carolyn C. Klein brought a Second Amended Petition against her brother, Steven M. Clinton, for breach of fiduciary duty (Count I), requesting an " application for writ of mandamus" compelling production of books and records (Count II), requesting an accounting (Count III), requesting appointment of a receiver (Count IV), removal of Clinton as trustee (Count V), breach of trust (Count VI), and for reimbursement of attorneys' fees (Count VII). The trial court's Order noted that Clinton had not filed an Answer to the Second Amended Petition and was in default and that it had earlier ordered the appointment of a Receiver to take possession and manage the assets of R. Clinton Enterprises, LLC, per the request in Count IV. The court also noted that Clinton had failed to appear for his deposition and, pursuant to Rule 61.01(d),[1] the court was allowed to enter an order " striking pleadings or parts thereof" or " rendering a judgment by default against the disobedient party." The trial court struck Clinton's pleadings and imposed sanctions. Clinton brings two points on appeal: first, that the court abused its discretion in striking Clinton's pleadings and entering judgment against him on counts V, VI, and VII; and, second, that the court erred in awarding attorneys' fees. Because there is no final judgment, we must dismiss the appeal.

Procedural History

Klein filed her original petition in the Circuit Court of Scott County, Missouri, consisting of three separate counts.

Klein's First Amended Petition contained four separate counts. The trial court gave Clinton twenty days to file responsive pleadings to the First Amended Petition. Clinton filed a one-sentence motion to dismiss on May 9, 2013. The trial court overruled Clinton's motion to dismiss on May 21, 2013, and ordered Clinton to file his Answer to the First Amended Petition within ten days; however, Clinton did not file his Answer to the First Amended Petition until November 12, 2013.

On May 15 and 17, 2013, Klein filed two separate motions to compel. The first motion to compel related to requests for production of documents served on Clinton on November 30, 2012. The second motion to compel related to written discovery served on April 8, 2013. According to the trial court, both motions related to interrogatories and requests for production of documents that sought " basic fundamental documents and information that the (Respondent) was absolutely entitled to under the Missouri Rules of Civil Procedure, R.S.Mo. § 347.091.2, and the Operating Agreement of R. Clinton Enterprises, LLC." Klein's motions to compel were set for a hearing on June 19, 2013.

Following a first failed attempt at mediation when Clinton failed to appear, Klein filed a Motion for Sanctions, a Motion for Appointment of Receiver, and a ...


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