Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Charles County 1411-SC00129-01.
Honorable Ted House Judge.
Kelly-Patel ("Kelly-Patel") appeals from the trial
court's judgment setting aside a default judgment entered
in her favor and against Bank of Old Monroe
("Bank"). The judgment vacated an award previously
entered in Kelly-Patel's favor from a garnishment
proceeding. Kelly-Patel contends the trial court erred in
setting aside the default judgment because Bank failed to
satisfy the requirements of Rule 74.05(d),  namely good cause
for failing to timely answer Kelly-Patel's
interrogatories and a meritorious defense to the garnishment
action. We reverse and remand for proceedings in accordance
with this opinion. 
claims judgment was entered in favor of Kelly-Patel and
against Defendants Michael and David Wensel
("Wensels"), jointly and severally for $4, 738.75.
After a judgment debtor's examination of the Wensels, two
garnishments were issued to Bank on November 7, 2017, along
with their respective garnishment interrogatories. Both
garnishment orders were served on Bank on November 14, 2017,
at its O'Fallon, Missouri address. The return dates for
both garnishments were December 7, 2017. Bank failed to
answer the interrogatories. Kelly-Patel filed exceptions to
Bank's "non-response" to the interrogatories on
October 17, 2018. After a hearing on these exceptions on
October 29, 2018, the trial court entered a default judgment
against Bank for $6, 040.91.
November 14, 2018, Bank filed a motion to set aside the
default judgment and order pursuant to Rule 74.05(d). In
support, Bank stated it had shown good cause why the judgment
should be set aside and that Bank had a meritorious defense
because "Plaintiff failed to follow the Supreme Court
Rules to obtain a proper judgment upon the garnishee
[Bank]." After argument,  the trial court took Bank's
motion under advisement. On January 10, 2019, the trial court
granted Bank's motion and issued an order vacating the
October 2018 default judgment "for good cause
shown." This appeal follows.
Kelly-Patel's notice of appeal, this Court ordered her to
show cause why this appeal should not be dismissed for lack
of a final, appealable judgment because the January 2019
order was not titled a "judgment." Kelly-Patel then
filed a motion to denominate the January 2019 order as a
judgment, nunc pro tunc. On March 18, the trial court granted
Kelly-Patel's motion and entered an order stating the
January 2019 order "is and shall be denominated a
'judgment[.']" Kelly-Patel filed a response to
the show cause order and submitted the trial court's
March 18 order in a supplemental legal file. This Court then
issued an order finding "there is now a judgment that
complies with Rule 74.01(a)." In its order this Court
noted that, "[w]hile the better practice would have been
for the trial court to simply denominate the actual order in
question as a judgment, it is clear he intends for the
January 10th order to be a judgment."
Nevertheless, Bank filed a subsequent motion to dismiss this
appeal due to lack of a final, appealable judgment.
Kelly-Patel did not file an independent response to
Bank's motion and instead responded in Point II of her
appellate brief. This Court entered an order directing
Bank's motion to dismiss be taken up with the merits of
Rule 74.05(d), a motion to set aside a default judgment is an
independent proceeding and, as such, a judgment denying such
motion is eligible for immediate appellate review. Saturn
of Tiffany Springs v. McDaris, 331 S.W.3d 704, 708-09
(Mo. App. W.D. 2011). However, a judgment denying a motion to
set aside a default judgment must still meet the requirements
of a judgment under Rule 74.01(a) to be properly
appealable. Cook v. Griffitts, 498 S.W.3d
855, 858 (Mo. App. W.D. 2016). Rule 74.01(a) provides in
relevant part that "[a] judgment is entered when a
writing signed by the judge and denominated
'judgment' or 'decree' is filed." Mo. R.
Civ. P. 74.01(a).
clear the trial court's original January 2019 order did
not meet Rule 74.01(a)'s final judgment requirements.
However, the trial court's March 18 order retitled the
January order a "judgment" under the
mistake-correcting nunc pro tunc process codified in Rule
74.06(a). Although "[t]he nunc pro tunc process
is generally an inappropriate mechanism to convert an order
into a judgment," an appeal may proceed when it is clear
the trial court intended to finalize the judgment for
purposes of appeal by entering a nunc pro tunc order
denominating a previous order as a judgment. Chastain v.
Geary, 539 S.W.3d 841, 846 (Mo. App. W.D. 2017). Here,
the trial court manifested clear intent that the January 10
order be a judgment that was final for purposes of appeal; at
the time of the trial court's March 18 order stating the
January 10 order "is and shall be" a judgment, the
trial court was well aware of the appeal taken from that
extent Bank argues the trial court's judgment vacating
the default judgment is not a final, appealable judgment
because "Appellant still has the opportunity to obtain
proper relief under the Missouri Supreme Court Rules,"
this argument is misplaced. A motion to set aside a default
judgment pursuant to Rule 74.05(d) is an independent
proceeding. Thus, that independent proceeding may have a
final, appealable judgment without resolving all of the
underlying issues between the parties. Because the default
judgment was vacated and the garnishment proceeding would
have continued on the merits of this case, the issues between
the parties remain unresolved.
the January 10 order was intended as a final, appealable
judgment and is now denominated as such, we deny Bank's
motion to dismiss.