Klein v. Clinton

456 S.W.3d 80, 2015 Mo. App. LEXIS 182, 2015 WL 778422
CourtMissouri Court of Appeals
DecidedFebruary 24, 2015
DocketNo. SD 33288
StatusPublished
Cited by1 cases

This text of 456 S.W.3d 80 (Klein v. Clinton) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klein v. Clinton, 456 S.W.3d 80, 2015 Mo. App. LEXIS 182, 2015 WL 778422 (Mo. Ct. App. 2015).

Opinion

Nancy Steffen Rahmeyer, J.

The plaintiff and defendant in this action are brother and sister and are beneficia-[82]*82ríes of trusts prepared by their father. Carolyn C. Klein brought a Second Amended Petition against her brother, Steven M. Clinton, for breach of fiduciary duty (Count I), requesting an “application for writ of mandamus” compelling production of books and records (Count II), requesting an accounting (Count III), requesting appointment of a receiver (Count IV), removal of'Clinton as trustee (Count V), breach of trust (Count VI), and for reimbursement of attorneys’ fees (Count VII). The trial court’s Order noted that Clinton had not filed an Answer to the Second Amended Petition and was in default and that it had earlier ordered the appointment of a Receiver to take possession and manage the assets of R. Clinton Enterprises, LLC, per the request in Count IV. The court also noted that Clinton had failed to appear for his deposition and, pursuant to Rule 61.01(d),1 the court was allowed to enter an order “striking pleadings or parts thereof or “rendering a judgment by default against the disobedient party.” The trial court struck Clinton’s pleadings and imposed sanctions. Clinton brings two points on appeal: first, that the court abused its discretion in striking Clinton’s pleadings and entering judgment against him on counts V, VI, and VII; and, second, that the court erred in awarding attorneys’ fees. Because there is no final judgment, we must dismiss the appeal.

Procedural History

Klein filed her. original petition in the Circuit Court of Scott County, Missouri, consisting of three separate counts.

Klein’s First Amended Petition contained four separate counts. The trial court gave Clinton twenty days to file responsive pleadings to the First Amended Petition. Clinton filed a one-sentence motion to dismiss on May 9, 2013. The trial court overruled Clinton’s motion to dismiss on May 21, 2013, and ordered Clinton to file his Answer to the First Amended Petition within ten days; however, Clinton did not file his Answer to the First Amended Petition until November 12, 2013.

On May 15 and 17, 2013, Klein filed two separate motions to compel. The first motion to compel related to requests for production of documents served on Clinton on November 30, 2012. The second motion to compel related to written discovery served on April 8, 2013. According to the trial court, both motions related to interrogatories and requests for production of documents that sought “basic fundamental documents 'and information that the (Respondent) was absolutely entitled to under the Missouri Rules of Civil Procedure, R.S.Mo. § 347.091.2, and the Operating Agreement of R. Clinton Enterprises, LLC.” Klein’s motions to compel were set for a hearing on June 19, 2013.

Following a first failed attempt at mediation when Clinton failed to appear, Klein filed a Motion for Sanctions, a Motion for Appointment of Receiver, and a Motion for Leave to File Second Amended Petition.

On October 16, 2013, the trial court ordered the parties to mediate; Clinton again failed to appear at the mediation. Following the second failed attempt at mediation, Klein filed a Supplemental Motion for Sanctions.

On November 13, 2013, the trial court held a hearing on Klein’s Motion to Appoint a Receiver, Motion for Leave to File Second Amended Petition, and the two motions for sanctions. Clinton did not attend the hearing. The trial court granted leave to file the Second Amended Petition and continued Klein’s motions for sanc[83]*83tions to a later date. At the November 13, 2013 hearing, the trial court appointed Mr. Rice “Pete” Burns, Jr., as Receiver of the LLC. The trial court’s Order Appointing Receiver specifically directed that “all persons or entities in possession of any assets of R. Clinton Enterprises, LLC ... are directed to deliver possession of those assets to the Receiver, immediately.” The trial court’s Order Appointing Receiver also enjoined all parties “from interfering with, transferring, selling, or disposing of any property of R. Clinton Enterprises, LLC, or from doing any act that prevents the Receiver from fulfilling his duties under this Order, or that interferes with the Receiver’s efforts to fulfill his duties under this Order.”

Klein then filed her Second Amended Petition, adding three additional counts that were not included in the First Amended Petition. Just as she had in Count III of the original petition, in Count V of the Second Amended Petition, Klein sought removal of Clinton as co-trustee of the Trusts. In Count VI, Klein sought damages for Clinton’s breach of trust. Finally, in Count VII, Klein requested reimbursement of her attorneys’ fees and expenses. Clinton never filed an answer or any other responsive pleading to Klein’s Second Amended Petition.

Klein’s counsel served a notice of deposition on October 15, 2013, for a deposition of Clinton on November 26, 2013, but Clinton failed to attend his deposition. On January 23, 2014, Klein filed her Motion to Strike Pleadings and for Default Judgment.

The trial court held a hearing on Klein’s Motion to Strike Pleadings and for Default Judgment. The trial court entered sanctions against Clinton by (1) striking Clinton’s pleadings, (2) entering judgment against Clinton on Count V of Klein’s Second Amended Petition, which removed Clinton as a co-trustee of the Trusts, (3) entering an interlocutory judgment of default against Clinton on Count VI of the Second Amended Petition and ordering Clinton to pay damages to the Trusts in an amount to be determined at a subsequent hearing, (4) entering an interlocutory judgment of default as to Count VII and ordering Clinton to pay Klein “an amount equal to the Plaintiffs reasonable attorneys’ fees and costs incurred in this action, as determined in a subsequent hearing of this Court, within 30 days of the Court’s determination,” (5) ordering Clinton to personally pay mediator Selsor’s fee in the amount of $1,008 within 10 days of the Order and Judgment, (6) ordering Clinton to personally pay mediator Remley’s fee in the amount of $825 within 10 days of the Order and Judgment, and (7) ordering Clinton to personally pay Klein the amount of $1,715.29 as reimbursement for travel and expenses incurred by her family in traveling to and attending the second attempted mediation. The trial court certified this “judgment” as final for purposes of appeal pursuant to Rule 74.01(b). Clinton appeals from this order.

“Although none of the parties here questions whether the trial court properly certified its order for immediate appeal pursuant to Rule 74.01(b), this Court is required to raise that issue sua sponte.” Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011). That is because the right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists. Id. “[SJection 512.010 requires that there be a ‘final judgment’ as a prerequisite to appellate review.” Id.

Generally, a final judgment is defined as one that resolves “ ‘all issues in a case, leaving nothing for future determination.’ ” Transit Cas. Co. ex rel. Pulitzer Publishing Co. v. Transit Cas. Co. ex [84]*84rel. Intervening Employees, 43 S.W.3d 293, 298 (Mo. banc 2001) (internal citation omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
456 S.W.3d 80, 2015 Mo. App. LEXIS 182, 2015 WL 778422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klein-v-clinton-moctapp-2015.