Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF BARRY COUNTY Honorable Alan M.
W. LYNCH, P.J.
Lowe ("Lowe") and Billy Rouse ("Rouse")
(collectively, "Appellants") appeal the trial
court's entry of a judgment against them as a discovery
sanction. Because Appellants have failed to demonstrate the
trial court committed any reversible error, we affirm the
and Procedural Background
Marck Industries, Inc. and RL Transport, LLC (collectively,
"Respondents") filed a petition against Appellants
for conversion, fraud, civil conspiracy, punitive damages,
and breach of fiduciary duty. Appellants filed an answer to
the petition. The matter was set for a one-day bench trial
beginning on October 27, 2017.
26, 2017, Respondents served Appellants with their Second Set
of Interrogatories and Second Request for Production of
Documents (collectively, "Second Discovery
Requests"). Appellants filed a motion for additional
time to answer the Second Discovery Requests. On August 31,
2017, the trial court granted Appellants' request for
more time and gave them an additional twenty days to respond
to the Second Discovery Requests, making their responses due
on or before September 20, 2017.
failed to respond to the Second Discovery Requests, and on
September 27, 2017, Respondents filed a motion to enforce
discovery and sanctions. A hearing on that motion was held on
October 2, 2017. Following that hearing, the trial court
entered an order providing that "[i]f [Appellants] have
not provided complete discovery answers before 5:00 PM on
October 9, 2017, this Court shall strike the pleadings of
[Appellants] and enter a default judgment in favor of
[Respondents] and against [Appellants]."
October 10, 2017, Appellants filed certificates of service of
responses to the Second Discovery Requests. The next day,
Respondents filed a motion for sanctions, alleging Appellants
did not provide any bank records of the individuals for the
relevant time and no records at all for C&B Trucking,
LLC. Appellants filed a response on October 12, 2017. A
motion hearing was held on October 26, 2017, the day before
the scheduled trial, and Appellants were "ordered to
produce all requested discovery without fail." The trial
was reset for March 8, 2018.
January 12, 2018, Respondents filed a second motion for
sanctions alleging that discovery was incomplete. Appellants
did not file a response to this motion. The court scheduled a
hearing on the motion for February 5, 2018.
January 31, 2018, Appellants provided bank records for
C&B Trucking. Appellant Rouse, however, provided only two
of his individual bank statements: an August 2013 statement
from Security Bank and a February 2013 statement from
February 5, 2018, a hearing was held and the court granted
Respondents' second motion for sanctions and struck
Appellants' pleadings as a discovery sanction.
Thereafter, Respondent filed a motion for default judgment.
filed a motion to reconsider the striking of Appellants'
pleadings ("Motion to Reconsider"). In their
motion, Appellants alleged that they "believe that all
documents responsive to all of the requests of [Respondents]
have been produced" and that "while Appellant,
Cathy Lowe has been convicted of embezzling funds from
[Respondents], the co-defendant, Billy Rouse, was never
indicted or charged for that crime." Respondents filed
suggestions in opposition to the Motion to Reconsider,
arguing that Appellant Rouse failed to produce "complete
records for three (3) bank accounts he purportedly maintained
during the relevant time period."
4, 2018, the trial court held a hearing on Appellants'
Motion to Reconsider and Respondents' Motion for Default
Judgment. At the hearing, Appellants' counsel stated that
they had produced "everything that's out there
…." The trial court denied Appellants'
Motion to Reconsider and entered an Order of Default on June
5, 2018. An evidentiary hearing was then scheduled for the
purpose of determining Respondents' damages.
November 21, 2018, after a hearing on damages, the court
entered judgment against Appellants jointly and severally in
the amount of $130, 957.02. On December 19, 2018, Appellants
filed a "Motion to Vacate, Reopen, Correct, Amend, or
Modify Judgment Pursuant to Missouri Rule of Civil Procedure
75.05(d), or Alternatively for a New Trial Pursuant
to Missouri Rule[s] of Civil Procedure 78.01 and 78.04"
(the "Motion to Set Aside"). In that motion,
Appellants "request[ed] that the default [j]udgment be
set aside since [Appellants] have a meritorious defense and
good cause exists."
filed a timely Notice of Appeal. The trial court never ruled
on Appellants' Motion to Set Aside.
we can turn to the merits of Appellants' appeal, we must
resolve whether we have jurisdiction to hear Appellants'
appeal. There can be no appeal absent a final
judgment. Giesler v. Burling Northern R. Co., 791
S.W.2d 491, 492 (Mo.App. 1990). "Because finality of
judgment is a jurisdictional prerequisite, this Court must
dismiss an appeal from an order that is not final."
argue that we are without jurisdiction to review this matter
because a party may not directly appeal the entry of a
default judgment and the trial court has not ruled on
Appellants' Motion to Set Aside. "Generally, a
default judgment is not appealable." Heineck v.
Katz, 509 S.W.3d 116, 122 (Mo.App. 2016). A default
judgment can only be appealed if the trial court heard a
motion to set aside or vacate the judgment under Rule
74.05(d). Id. Such a motion filed "under
… Rule 74.05(d), even if filed within 30 days after
judgment, is an independent action and not an authorized
after-trial motion subject to Rule 78.04, 78.06, or
81.05." Rule 74.05(d). We reject Respondents'
argument, however, because the judgment entered in this case
is not a default judgment as contemplated under Rule 74.05.
on the Merits-Not ...