 

 

Missouri Court of Appeals

Western District
WAYNE AND TINA COOK, )
Appellants, g WD78821
v. § OPINION FILED: September 6, 2016
BRIAN AND KRISTIE GRIFFITTS, §
Respondents. §

Appeal from the Circuit Court of Howard County, Missouri
The Honorable Scott A. Hayes, Judge

Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
and Gary D. Witt, Judge

Appellants Wayne and Tina Cook ("the Cooks") appeal from the docket entry
entered by the Circuit Court of Howard County denying their Motion to Set Aside
Default Judgment. The underlying default judgment was entered against the Cooks with
respect to a counterclaim filed by the Respondents Brian and Kristie Griff`itts ("the
Griffltts"). The Cooks failed to appear in court on two occasions, and, therefore, the
Griftitts were granted a judgment of default and awarded damages. Because the trial

court's docket entry does not satisfy Rule 74.01(a),l we dismiss the appeal.

 

' All rule references are to Missouri Supreme Court Rules (2016) unless otherwise noted.

 

 

JURISDICTION
"An appellate court has a duty to determine its jurisdiction sua sponte." Kearns v.
New York ley. Bank, 389 S.W.3d 294, 295 (Mo. App. W.D. 2013). "A prerequisite to
appellate review is that the appellant must be appealing from a final judgment." Id. Rule
74.01(a) defines a "judgment" as follows:

"Judgment" as used in these rules includes a decree and any order from
which an appeal lies. A judgment is rendered when entered. A judgment is
entered when a writing signed by the judge and denominated '_'/'udgmenl" or
"decree" is filed. The judgment may be a separate document or entry on the
docket sheet of the case. A docket sheet entry complying with these
requirements is a judgment unless the docket sheet entry indicates that the
court will enter the judgment in a separate document. The separate
document shall be the judgment when entered.

(emphasis added).

The Rule 74.01(a) requirement that a trial court denominate its final
ruling as a "'udgment" is not a mere formality. It establishes a bright line
test as to when a writing is a judgment The rule is an attempt to assist the
litigants and the appellate courts by clearly distinguishing between when
orders and rulings of the trial court are intended to be final and appealable
and when the trial court seeks to retain jurisdiction over the issue. Thus,

the written judgment must be signed by the judge and must be designated a
"judgment"

Kearns, 389 S.W.3d at 295 (internal citations and quotation marks omitted).
FACTS AND ANALYSIS
In late 2013, after hiring a land surveyor, the Griffitts began clearing land and
building a fence on their farm for their hogs. On November 13, 2013, the Cooks, who
owned the adjoining property, filed a four count petition for damages alleging that the
Griffitts' fence crossed their property line. The four counts included: (I) ejectment, (II) §

unlawful detainer, (III) trespass, and (IV) conversion The Griffitts filed an answer to the

 

2

 

 

petition that included counterclaims against the Cooks on December l7, 2013. The
counterclaims included causes of action for ejectment and damages and for injunctive
relief. The Griffitts' counterclaims alleged that the halted construction rendered part of
their land unusable, causing damages, and that the Cooks had stacked fencing materials
on the Griffitts' land. In response to the counterclaims, the Cooks filed a reply on
January 15, 2014 answering the counterclaims made against them. On August 12, 2014,
the Griffitts filed their amended answer to the petition and counterclaims The
amendment to the counterclaims did not change any of the claims but merely added
specific averments regarding the type and amount of monetary damages they were
claiming. The Cooks did not file a reply to the Griffitts' amended counterclaims

The trial court set the matter for trial on November 6, 2014. The Cooks retained
new counsel, and the trial was continued and set for "disposition or trial setting" on
December 17, 2014. The trial was once again continued and re-set for January 21, 2015.
Throughout this time, the parties had been involved in settlement discussions, which
resulted in the January 21 trial being re-set to March 31, and finally, April 15.

The parties filed a Partial Settlement and Release Agreement on April 16, 2015.
On April 21, the trial court made a docket entry, "[t]his case was passed from a Trial
setting on the assurance that it had been settled. The Court hereby sets any remaining
claims/counter claims for dismissal on 5-6-2015 at 9:00 a.m." On May 6, neither the
Cooks nor their attorney appeared in court, and the trial court, as reflected in a docket

entry, granted an interlocutory judgment of default against the Cooks on the Griffitts'

 

 

 

 

counterclaim for ejectment and damages2 A hearing was set for May 20 to determine the
Griffitts' damages On May 20, the Cooks and their attorney again failed to appear in
court, The trial court held the hearing and determined the Griffitts' damages to be in the
amount of$l9,080.00.

On May 21, the Cooks filed a Motion to Set Aside Default Judgment ("Motion to
Set Aside"). The docket sheet indicates that this Motion to Set Aside was denied, without
a hearing, on May 26. The docket sheet states, in full, that the Motion to Set Aside was
"considered and denied." On June 2, the docket sheet indicates the trial court entered and
signed a written judgment formalizing the entry of default against the Cooks

A motion to set aside a default judgment is an "independent action," and,
therefore, a judgment granting or denying such a motion is a final judgment eligible for
immediate appellate review. Saturn of T z'yj‘”any Springs v. McDarz's, 331 S.W.3d 704, 708-
09 (Mo. App. W.D. 2011). However, the judgment granting or denying a motion to set
aside a default judgment, must meet the requirements of a judgment under Rule 74.01(a)
before it may be appealed See In re Marriage of Coonts, 190 S.W.3d 590, 604 (Mo.

banc 2006).

 

2 The trial court denominated in its docket entry that it was granting a "default judgment"' and the Cooks in
their briefing before this court do not question that the trial court had the authority to enter the default on the
counterclaims filed by the Griffitts even though they had filed an answer to the original counterclaims The docket
sheet shows that Cooks filed a reply to the Griffitts’ counterclaims The legal file does not include the Griffitts'
original answer and counterclaims but does include the Cooks' reply thereto. Following the filing of the reply, with
approval of the trial court, the Griffitts filed an amended answer to the petition and counterclaims The record does
not indicate that the Cooks filed a reply to the amended answer and counterclaims l-lowever, this court has no way
to compare the originally filed counterclaims to which a reply was filed, with the amended counterclaims to which
no reply was filed, Accordingly, we take no position as to whether the trial court had the authority to enter a default
judgment in this case. "[I]f the defendant filed an answer in a timely fashion, the Rule 74.05(d) test for setting aside
the default judgment is inapplicable because the default judgment was improper in the first place." See Mosby v.
West-Anderson, 363 S.W.3d 397, 400 (Mo. App. W.D. 2012) (internal quotation marks omitted).

4

 

 

 

MWWW

This appeal must be dismissed because there exists in the legal record no writing
denominated a "judgment" or "decree" and signed by a judge addressing the ruling on the
motion to set aside the default judgment All that exists is a docket entry that states the
Cooks' Motion to Set aside was considered and denied. While this is in writing, it is not
denominated a judgment and it is not signed by a judge. This case is analogous to In re
Marriage of Coonts, where

[a]ccording to the record on appeal, the trial court purportedly ruled upon

and denied the Motion on May 27, 2005 by docket entry. This docket entry

was in writing as required by Rule 74.01(a). However, this writing is not

denominated as a "judgment" or "decree" and is not signed by the judge, all

as further required by Rule 74.01(a). Because the docket entry does not

satisfy these requirements this writing is not a judgment, and, therefore,

cannot be a final judgment for purposes of appeal. Without a final
judgment, we do not have jurisdiction to decide this appeal.
190 S.W.3d at 604.
CONCLUSION

We dismiss the appeal for lack of a final, appealable judgment,3

 

Gary D. Witt, Judge

All concur

 

3 The Court notes that we do not look for reasons to dismiss appeals on procedural grounds but we are not
permitted to ignore the clear mandates of Rule 74.0l(a), We also note that this Court gave notice to the Cooks
regarding this defect and provided ample opportunity to respond appropriately Further, the trial court, in issuing its
final judgment, should ensure that it resolves all claims as to all parties in this case.

5

 

 

