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DiSalvo Properties, LLC v. Purvis

Court of Appeals of Missouri, Eastern District, Second Division

September 20, 2016

DiSALVO PROPERTIES, LLC, Plaintiff/Appellant,
v.
DEBORAH B. PURVIS, ELIZABETH E. NOLAN, NIS CONSTRUCTION SERVICES, LLC, and JENNINGS STATION CROSSING, LLC, Defendants, and GARY L. HALL, BENTLEY INVESTMENTS OF NEVADA, LLC, and PENFIELD'S BUSINESS CENTERS, LLC, Defendants/Respondents.

         Appeal from the Circuit Court of St. Louis County Honorable Michael D. Burton

          SHERRI B. SULLIVAN, P.J.

         Introduction

         DiSalvo Properties, LLC (Appellant) appeals from the trial court's summary judgment entered in favor of Gary L. Hall (Hall), Bentley Investments of Nevada, LLC (Bentley), and Penfield's Business Centers, LLC. (Penfield's) (collectively Respondents). We dismiss for lack of a final, appealable judgment.

         Factual and Procedural Background

         Appellant's petition alleges it is a judgment creditor of Deborah B. Purvis (Purvis) in that on January 20, 2011, it obtained a judgment in the circuit court of St. Louis County against her in the amount of $1, 501, 041, which remains unsatisfied. Appellant further alleges claims of fraudulent transfer and conspiracy to make fraudulent transfer against Purvis and six other defendants, to-wit: Respondents Hall, Bentley, and Penfield's; and Defendants NIS Construction Services, LLC (NIS), Elizabeth E. Nolan (Nolan); and Jennings Station Crossing, LLC (Jennings Station).

         Respondents (except for Hall, who joined in the motion orally) and Defendant Jennings Station filed a motion for summary judgment which, after briefing, response, and argument, was granted by the circuit court on September 10, 2015, as follows:

         Order & Judgment

Motion for Summary Judgment filed by Defts Jennings Station Crossings, LLC, Bentley Investments of Nevada LLC & [Penfield's] Business Centers LLC called, heard & granted. Judgment entered in their favor and against plaintiff. Deft Hall joined in this Motion for Summary Judgment. Judgment granted to Hall & against plaintiff.
Motion for Summary Judgment filed by Defts NIS Const. Services & Nolan called, heard & taken under submission. These parties & plaintiff granted until September 17, 2015 to submit additional proposed findings of fact & suggested order.

         On September 15, 2015, Appellant filed a Motion to Amend Judgment for Purposes of Immediate Appeal. In the motion, Appellant stated: "COMES NOW PLAINTIFF and pursuant to Rule 74.01(b), [1] moves this Court amend its Order and Judgment of September 10, 2015 so as to reflect a final judgment which Plaintiff may immediately appeal." Appellant attached a proposed Amended Judgment which contained, among other things, the language "Pursuant to Rule 74.01(b), the Court hereby determines that there exists no just reason for delay in the entry of this Judgment." On September 28, 2015, the circuit court denied the Motion for Summary Judgment filed by NIS and Nolan that it had taken under submission in its September 10, 2015 Order and Judgment.

         On October 19, 2015, in response to Appellant's Motion to Amend Judgment for Purposes of Immediate Appeal filed on September 15, the circuit court entered a judgment as follows:

         Judgment

Pltf's Motion to Amend Judgment called, heard & granted. Order granting Summary Judgment to Defendant Hall amended to be a Judgment ...

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