Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Cass County, Missouri The Honorable
R. Michael Wagner, Judge
Lisa White Hardwick, Presiding Judge, Karen King Mitchell,
Judge, Anthony Rex Gabbert, Judge.
Anthony Rex Gabbert, Judge.
Gerber (Mrs. Gerber) appeals the circuit court's
"Judgment" denying her Motion and Application for
Leave to Intervene. She asserts two points on appeal, the
first contending that the court abused its discretion in
denying her motion to intervene as a matter of right pursuant
to Rule 52.12(a), and the second contending that the court
abused its discretion in denying her motion to intervene by
permissive intervention pursuant to Rule 52.12(b). We dismiss
this appeal for lack of jurisdiction.
2001, Mrs. Gerber's husband, Terry Gerber (defendant
Gerber), purchased an unassembled ¾ scale aircraft in
kit form. In 2002 defendant Gerber enlisted defendant Gessley
to borrow $98, 966.78 so that defendant Gerber could finish
the aircraft. Gessley executed a Promissory note and Security
Agreement with First Pryority Bank of Pryor Oklahoma
borrowing that sum. The Security Agreement listed the
aircraft as collateral for the promissory note and Gessley
registered the aircraft, by bill of sale, in his name with
the Federal Aviation Administration.
defendant Gerber's previous financial transactions, the
Internal Revenue Service (IRS) determined that defendant
Gerber was liable for prior years' taxes, interest, and
penalties. The IRS determined that the aircraft was owned by
defendant Gerber and initiated seizure proceedings to secure
the aircraft for public sale and apply appropriate proceeds
to defendant Gerber's liabilities.
September 23, 2009, the IRS seized the aircraft and on
January 12, 2010, the IRS sold the aircraft to Modern Motors,
L.L.C. at public auction. On or about February 4, 2010,
Modern Motors purchased the promissory note and security
agreement, by assignment, from First Pryority Bank of Pryor,
Oklahoma for the then remaining debt of $65, 636.56. On or
about December 4, 2013, Modern Motors filed a petition
against defendants Gerber and Gessley for recovery on the
their Amended Answer and Counter-Petition, defendants Gerber
and Gessley asserted their rights to redemption under
Oklahoma law, the applicable law named on the promissory
note. The issue of right to redemption was referred to a
Special Master who determined that the defendants no longer
had an interest in the aircraft after the January 12, 2010
November 12, 2015, the court scheduled Modern Motors'
claim for recovery on the promissory note for trial on March
18, 2016. On January 22, 2016, Mrs. Gerber filed a Motion for
Leave to Intervene both as a matter of right and for
permissive intervention pursuant to Rule 52.12 claiming a
marital interest in the aircraft. On February 16, 2016, the
circuit court denied her motion. On March 11, 2016, the trial
date of March 18, 2016 was rescheduled due to a court
conflict with another trial. On March 31, 2016, Mrs. Gerber
moved the court to certify its order denying her motion for
leave to intervene as final and appealable pursuant to Rule
74.01. On April 8, 2016, the circuit court entered a
"Judgment" which stated: "Pursuant to Mo.S.Ct.
Rule 74.01 (a), the court hereby enters judgment against
proposed intervenor Cathy Gerber based on the Court's
February 16, 2016 Order denying her application for leave to
intervene. Such motion, filed January 22, 2016, is
overruled." Modern Motors' claim is still pending in
the circuit court. Mrs. Gerber appeals.
preliminary matter, Modern Motors contests this court's
jurisdiction to hear Mrs. Gerber's appeal citing
State ex rel. Koster v. ConocoPhillips Company, 493
S.W.3d 397 (Mo. banc 2016), and arguing that the circuit
court's order denying intervention is an interlocutory
order from which an appeal cannot be had.
State ex rel. Koster v. ConocoPhillips Company, the
Board of Directors of the Missouri Petroleum Storage Tank
Insurance Fund brought suit against ConocoPhillips Company
and Phillips 66 Company to recover certain costs previously
reimbursed by the Board from the Fund. Id. at 398.
Prior to a final judgment being entered in that case, Cory
Wagoner (a participant in and potential claimant against the
Fund) moved to intervene as a matter of right under Rule
52.12(a). Id. at 398-399. The trial court entered an
interlocutory order overruling Wagoner's motion.
Id. at 399. After the trial court entered final
judgment, Wagoner appealed. Id. Phillips and the
Board argued that Wagoner's appeal should be dismissed,
in part because Wagoner should have appealed the
interlocutory order overruling his motion to intervene rather
than the final judgment. Id. Our Supreme Court
disagreed and stated:
'The right to appeal is purely statutory ... [and] where
a statute does not give a right to appeal, no right
exists.' Farinella v. Croft, 922 S.W.2d 755, 756
(Mo. banc 1996). Wagoner had no right to take an immediate
appeal from the interlocutory order overruling his motion to
intervene as a matter of right. There is no special statute
granting a right to immediate appeal where a motion to
intervene as a matter of right is overruled in an
interlocutory order, and the general statute dealing with
civil appeals grants no such right.
Id. Our Supreme Court explained that Section
512.020, RSMo 2000, the statute discussing appeal rights,
does not provide for an immediate appeal from an order
overruling a motion to intervene as a matter of right.
Id. The Court expressly overruled cases suggesting
that a proposed intervenor has a right to immediate appeal
from an interlocutory order denying
intervention. Id. at 400 n4.
Gerber asserts that this court has jurisdiction to hear her
appeal because "[t]he trial court's Judgment is not
an interlocutory judgment, but a final Judgment on which
appellant files her appeal." She argues that the trial
court disposed of a "distinct judicial unit" when
it ruled on her motion to intervene because her motion was a
"differing, separate, distinct transaction or occurrence
from any issues ...