Missouri Court of Appeals Southern District Division One
MARCK INDUSTRIES, INC., ) and RL TRANSPORT, LLC, ) ) Respondents, ) ) vs. ) No. SD35892 ) CATHY LOWE and BILLY ROUSE, ) FILED: November 18, 2019 ) Appellants. )
APPEAL FROM THE CIRCUIT COURT OF BARRY COUNTY
Honorable Alan M. Blankenship
AFFIRMED
Cathy 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 judgment.
Facts and Procedural Background
Respondents 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.
1 On July 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.
Appellants 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. 1 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].”
On 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.
On January 12, 2018, Respondents filed a second motion for sanctions alleging that
1 Even though the trial remained scheduled for October 27, 2017, Appellants and their counsel did not appear for the hearing. See Appellants’ Brief. In their brief, Appellants proffer an explanation for why they did not appear at this hearing, but omit any citation to the record to support that explanation. We are confined in our review to the record on appeal and cannot consider allegations of facts in a brief that are not supported by the record. Miller v. Dowling, 360 S.W.2d 345, 348 (Mo.App. 1962).
2 discovery was incomplete. Appellants did not file a response to this motion. The court
scheduled a hearing on the motion for February 5, 2018.
On 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 People’s Bank.
On 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.
Appellants 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.”
On June 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 ….” 2 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.
2 The trial court, in response to Appellants’ contention that all documents had been produced, stated: “Okay. Well, kind of curious. Most people who open a bank account don’t have it open for one month and then close it which, basically, implies there are statements that, for whatever reason, haven’t been given to you.”
3 On 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), 3 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.”
Appellants filed a timely Notice of Appeal. The trial court never ruled on Appellants’
Motion to Set Aside.
3 There is no Rule 75.05(d). We believe Appellants intended to cite Rule 74.05(d), the rule that sets forth the procedure for setting aside a default judgment. Rule 74.05(d) states that:
Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside.
The motion shall be made within a reasonable time not to exceed one year after the entry of default judgment.
“Good cause” includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. **** A motion filed under this 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.
A pleading is judged by its subject matter and not its caption. Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000). While Appellants’ Motion to Set Aside does not specifically cite Rule 74.05(d), the substance of the motion is consistent with Rule 74.05(d). Appellants “request[ed] that the default [j]udgment be set aside since [Appellants] have a meritorious defense to the [Respondents’] action….” The relief Appellants requested and their reference to a meritorious defense demonstrate an intent to proceed under Rule 74.05(d). However, given that the judgment was not a true default judgment, Rule 74.06—the rule that governs the procedure for setting aside judgments on the merits—is the applicable rule if Appellants were intending to set aside the judgment. Appellants’ Motion to Set Aside does not reference the grounds for setting aside a judgment under Rule 74.06, and, therefore, we do not consider it a Rule 74.06 motion. It does, however, constitute a motion for a new trial and is, therefore, an authorized after-trial motion subject to Rule 81.05. In order for a motion to constitute an authorized after-trial motion for a new trial, the motion must be “‘directed toward errors of fact or law in the trial.’” State ex rel. Eddy, 145 S.W.3d 429, 433 (Mo.App 2004) (quoting Taylor v. United Parcel Serv., Inc., 854 S.W.2d 390, 392 (Mo. banc 1993)). The grounds for alleged error in Appellants’ Motion to Set Aside focuses on their contention that they produced all the documents responsive to Appellants’ requests. This is an allegation of factual error—that the trial court erred in determining not all documents were provided. For that reason, we liberally construe their Motion to Set Aside as an authorized after-trial motion for a new trial.
4 Discussion
Before 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.” Id.
Respondents 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.
Judgment on the Merits—Not a Default Judgment
Respondents’ argument fails to take into consideration the distinction between a default
judgment entered as a consequence of failing to appear or respond to pleadings and a “default
judgment” entered as a discovery sanction. “A default judgment entered by way of a court-
imposed sanction for discovery violations is not a true default judgment.” Norber v. Marcotte,
134 S.W.3d 651, 662 (Mo.App. 2004). Such a judgment is a judgment on the merits. See
Keithley v. Shelton, 421 S.W.3d 502, 506 (Mo.App. 2013). “[I]t is well-established that Rule
74.05(d)’s prerequisites for a motion to set aside are inapplicable when the record shows that the
defendant pleaded an answer to the petition or otherwise defended against the petition.” Beeman 5 v. Beeman, 296 S.W.3d 514, 517 (Mo.App. 2009). Rule 74.06 governs the setting aside of a
judgment rendered on the merits. 4 Rule 74.06 5; Am. Econ. Ins. Co. v. Powell, 134 S.W.3d 743,
746 (Mo.App. 2004). Accordingly, the case law cited by Respondents standing for the
proposition that a party may not directly appeal the entry of a default judgment absent a ruling on
a Rule 74.05 motion is not applicable here.
The Western District of our court addressed a similar jurisdictional challenge in
Houchins v. Houchins, 727 S.W.2d 181, 183 (Mo.App. 1987). There, the court held that an
appellate court has jurisdiction to review the appeal of a “default judgment” that was entered as a
discovery sanction even in the absence of filing a motion to vacate the judgment. See id. The
court explained that the rationale requiring a party to file a motion to set aside a true default
judgment is inapplicable where the judgment is entered as a discovery sanction. Id. This is
because the rule in the former instance “rests on the proposition that no review of alleged trial
court error should be permitted where the lower court has been given no opportunity to take
corrective action.” Id. However, in the case of a judgment entered as a result of a discovery
sanction, the
trial court entered the order striking appellant’s pleadings after a hearing at which appellant appeared. The merits of the sanction were reviewed when appellant moved for reconsideration of the order. The trial court had the opportunity to review its own action in imposing the sanctions and a post-judgment motion would have added nothing of substance.
Id. (emphasis added).
4 Rules 74.05 and 74.06 have their own procedures for setting aside judgments. Cotleur v. Danziger, 870 S.W.2d 234, 236 (Mo. banc 1994). 5 Rule 74.06(b) provides that a court, “[o]n motion and upon such terms as are just,…may relieve a party … from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is irregular; (4) the judgment is void; or (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment remain in force.”
6 Like in Houchins, the judgment entered in this case was the result of a discovery
sanction. The trial court entered the order striking Appellants’ pleadings after a hearing for
reconsideration during which it had an opportunity to consider the merits of Appellants’
argument. Accordingly, we have jurisdiction to entertain this appeal.
Failure to Comply with Briefing Requirements Impedes Appellate Review
While we may have the jurisdiction to reach the merits of Appellants’ appeal, we must
now decide whether we should. Respondents assert that we should not because Appellants’
point relied on does not comply with Rule 84.04 in that it fails to state the legal principles that
the trial court should have applied and is multifarious.
Our preference … to resolve matters on the merits … is not a license for non- compliance with Rule 84.04. We wield our discretion to overlook briefing violations with caution because each time we review a noncompliant brief ex gratia, we send an implicit message that substandard briefing is acceptable. It is not.
Nichols v. Belleviw R-III School District, 528 S.W.3d 918, 927 n.15 (Mo.App. 2017) (internal
quotations and citations omitted).
Appellate review is guided by four policy interests: “(1) we presume the challenged
judgment is correct; (2) we presume the trial court knows and applies the law; (3) we will affirm
the outcome on any basis supported by the record; and (4) it is appellant’s burden to dislodge us
from the presumption that the outcome below was correct.” Bramer v. Abston, 553 S.W.3d 872,
879 (Mo.App. 2018). “To satisfy this burden, and overcome the judicial preference for ‘finality
of judgments,’ an appellant must comply with the rules of appellate procedure.” Id. Compliance
with the rules of appellate procedure is mandatory and necessary “to ensure that appellate courts
do not become advocates by speculating on facts and on arguments that have not been made.”
Myrick v. Eastern Broadcasting, Inc., 970 S.W.2d 885, 886 (Mo.App. 1998).
7 Appellants have failed to meet their burden of demonstrating error because their point
relied on does not comply with Rule 84.04(d) and their argument does not comply with Rule
84.04(e). Appellants’ brief is deficient in four major respects that impede our review: (1) their
point relied on fails to state any legal reason for the alleged errors and is multifarious; (2) their
argument fails to state how any issue was preserved for appeal; (3) their argument fails to
identify any applicable standard of review; and (4) their argument fails to explain how the facts
and law interact.
Point Relied On Does not Comply with Rule 84.04(d)
Appellants’ sole point relied on states:
The trial court erred in striking Appellants’ pleadings as a discovery sanction and granting a default judgment for Respondent[s], and in denying Appellants’ Motion for New Trial since Appellants provided all documents in their possession, custody or control responsive to Respondent[s’] requests and the Court’s October 26, 2017[,] order regarding discovery is vague and does not support the sanction entered by the Court.
Rule 84.04(d) requires each point to:
(A) identify the trial court ruling or action that the appellant challenges; (B) state concisely the legal reasons for the appellant’s claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error. The point shall be in substantially the following form: ‘The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].’
Rule 84.04(d).
Appellants’ point violates Rule 84.04(d)(A) by initially challenging at least three distinct
trial court actions—striking Appellants’ pleadings, entering judgment, and denying Appellants’
motion for new trial—rather than challenging a single trial court action, as required by the rule.
“A point relied on claiming the circuit court erred at three separate times and in three separate
8 ways is multifarious and preserves nothing for review.” Spence v. BNSF Ry. Co., 547 S.W.3d
769, 780 n.15 (Mo. banc 2018).
Appellants’ point violates Rule 84.04(d)(B) by failing to “[s]tate concisely the legal
reasons for the appellant’s claim of reversible error.” Rather, Appellants’ point appears to move
directly from the Rule 84.04(d)(A) requirement to identify the challenged trial court ruling or
action to the Rule 84.04(d)(C) requirement to provide the factual context of the case, albeit
untethered from any legal reason for such claimed error, by stating “[because] Appellants
provided all documents in their possession, custody or control responsive to Respondent[s’]
requests and the Court’s October 26, 2017[,] order regarding discovery is vague and does not
support the sanction entered by the Court.” The statement that “Appellants provided all
documents in their possession, custody or control” is a factual allegation, not a legal reason for
Appellants’ claimed trial court errors. Appellants provide no clue how this fact allegation is
related in any manner to a legal reason giving rise to any of their claimed errors. Are they
making an evidentiary challenge (i.e. not-supported-by-substantial-evidence or against-the-
weight-of-the-evidence) to the trial court’s determination that not all discovery had been
provided to Respondents or are they making a legal challenge (i.e. erroneous declaration or
application of the law) premised upon the existence of this alleged fact? Nothing in Appellants’
point answers this question.
The latter statement that the “Court’s October 26, 2017[,] order regarding discovery is
vague and does not support the sanction entered by the Court” is even more problematic. It is
not a legal reason supporting any of the three challenged trial court actions identified at the
beginning of Appellants’ point. Rather, it merely identifies a fourth trial court action that
Appellants challenge—the court’s October 26, 2017, order regarding discovery. This trial court
9 ruling and Appellants’ claim of error as to it should have been raised in a separate point. “When
… appellants collapse disparate contentions of error into a single point relied on, they violate
Rule 84.04(d).” Cooper v. Bluff City Mobile Home Sales, Inc., 78 S.W.3d 157, 167 (Mo.App.
2002). Points that include multiple issues are multifarious and preserve nothing for appellate
review. City of Joplin v. Wallace Bajjali Development Partners, L.P., 522 S.W.3d 327, 330
(Mo.App. 2017). A point relied on should contain only one issue, and parties should not group
multiple contentions about different issues together into a single point relied on. Id.
Appellants’ point violates Rule 84.04(d) and does not inform us of the precise legal
nature of any of Appellants’ claimed errors made therein. Sometimes an appellant’s argument
under a deficient point allows us to proceed to the merits of a claim raised in that point.
Appellants’ argument does not allow that here.
Argument Does not Comply with Rule 84.04(e)
Appellants’ argument fails to comply with Rule 84.04(e) in two respects. First, Rule
84.04(e) requires appellants to include in their argument for each claim of error “a concise
statement describing whether the error was preserved for appellate review.” Appellants’ brief
makes no mention of how any of the claims of error identified in their point were preserved for
appellate review. The failure to comply with Rule 84.04(e) in this respect can contribute to
impeding meaningful appellate review of the trial court’s judgment and thereby failing to
preserve any issue for appellate review. Regions Bank v. Davis, 521 S.W.3d 283, 287 (Mo.App.
2017).
Moreover, “[a]n appellate court will not, on review, convict a trial court of error on an
issue which was not put before it to decide.” First Bank Centre v. Thompson, 906 S.W.2d 849,
859 (Mo.App. 1995). “Even in a court-tried case, where a post-trial motion is not necessary to
preserve an otherwise properly raised issue for appellate review, the appellant must make some 10 effort to bring the alleged error to the trial court’s attention.” Heck v. Heck, 318 S.W.3d 760,
767 (Mo.App. 2010) (internal quotation marks omitted). Rule 78.07(b) provides:
(b) Except as otherwise provided in Rule 78.07(c), in cases tried without a jury or with an advisory jury, neither a motion for a new trial nor a motion to amend the judgment or opinion is necessary to preserve any matter for appellate review if the matter was previously presented to the trial court.
(Emphasis added.)
Appellants, by failing to include a statement of how the issues were preserved for appeal,
have failed to provide us with the information necessary to determine if the claims they now
present on appeal were presented to the trial court. It is not this court’s duty to supplement the
deficient brief with its own research. In re V.C.N.C. & T.D.C.C., 458 S.W.3d 443, 447
(Mo.App. 2015). “Neither is it our job to ‘comb the record’ in search of facts to support
[Appellants’] claim of error or demonstrate it is properly preserved for appellate review.”
Carruthers v. Serenity Mem’l Funeral and Cremation Serv., LLC, 576 SW.3d 301, 305
(Mo.App. 2019).
By failing to ascertain the preservation status of their claims and present argument in
conformance with the applicable briefing requirements, Appellants have undermined their
arguments, Bramer, 553 S.W.3d at 879, and have tasked this court with assuming the role of
advocate. We decline to perform that function.
Second, and even more problematic when considered in conjunction with Appellants’
omission of any legal reason supporting any claimed error in their point, Appellants have failed
to include a statement of the applicable standard of review. Rule 84.04(e) requires a brief to
contain a statement of the applicable standard of review. Rule 84.04(e); Null v. New Haven
Care Center, Inc., 425 S.W.3d 172, 178 (Mo.App. 2014). “The standard of review is an
essential portion of all appellate arguments; it outlines this court’s role in disposing of the matter
11 before us.” Waller v. Shippey, 251 S.W.3d 403, 406 (Mo.App. 2008). “This court should not be
expected either to decide the case on the basis of inadequate briefing or to undertake additional
research and a search of the record to cure the deficiency.” Davis v. Coleman, 93 S.W.3d 742,
743 (Mo.App. 2002). “Reaching the merits would require considerable advocacy on our part
and would thereby increase the likelihood of reaching the wrong decision and generating
questionable precedent.” Id. at 407.
Here, Appellants’ failure to include and integrate the applicable standard of review in
their argument deprives it of any analytical or persuasive value. This is so because “[a]n
argument must explain why, in the context of the case, the law supports the claim of reversible
error. It should advise the appellate court how principles of law and the facts of the case
interact.” Brown v. Brown-Thill, 543 S.W.3d 620, 629 (Mo.App. 2018) (internal quotation
marks omitted). The applicable standard of review is the guidepost principle of law in
considering and resolving every point relied on raised in an appeal. An argument, such as
Appellants’ here, untethered to that guidepost is nothing more than a collection of abstract legal
conclusions unmoored from any coherent legal basis or theory upon which an appellate court can
find reversible error. If a party fails to provide more than mere conclusions to support an
argument, the point is considered abandoned. Id.
Appellants’ point is denied.
Decision
Appellants’ deficient brief impedes our appellate review and thereby fails to satisfy their
burden of demonstrating why, in context of the facts of this case, the law entitles them to the
relief they seek. Reaching the merits of Appellants’ claims would require us to speculate about
the nature of those claims and assume the role of advocate for Appellants, which we cannot do.
12 Because Appellants have failed to demonstrate that the trial court committed any reversible error,
the trial court’s judgment is affirmed.
GARY W. LYNCH, P.J. – OPINION AUTHOR
NANCY STEFFEN RAHMEYER, J. – CONCURS
WILLIAM W. FRANCIS, JR., J. – CONCURS