Midwest Clearance Centers, LLC v. St. Louis Retail Outlet, LLC, and Namdar Realty Group, LLC

• Court: Missouri Court of Appeals
• Decided: November 28, 2023
• Docket: ED111193
• Status: Published

Opinion

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MIDWEST CLEARANCE CENTERS, LLC, ) No. EDI 11193 ) Appellant, ) Appeal from the Circuit Court of St. Louis County vs. ) ) Honorable Joseph S. Dueker ST. LOUIS RETAIL OUTLET, LLC, AND ) NAMDAR REALTY GROUP, LLC, ) ) Respondents. ) FILED: November 28, 2023

Introduction

Midwest Clearance Centers, LLC ("Appellant") appeals from the trial court's ruling

setting aside a purported default judgment entered in September 2022 ("September Judgment").

Appellant raises two points on appeal, arguing the trial court erred in granting a motion by St.

Louis Retail Outlet, LLC and Namdar Realty Group, LLC ("Respondents") to set aside the

September Judgment under the procedural mechanisms of either Rule 74.05(d) or Rule 75.01. 1

First, Appellant maintains the trial court lacked authority to set aside the judgment under Rule

74.05(d) because there was no default judgment to set aside in that Respondents filed an answer

to the petition and litigated the case before failing to appear at trial. Second, Appellant contends

the trial court lacked authority to vacate the September Judgment pursuant to Rule 75.01 because

1 All Rule references are to Mo. R. Civ. P. (2022). All parties appeared at a case management conference on July 22, 2020, where they

consented to continue the case for approximately one year due to the COVID-19 pa ndemic. The

parties appeared before the trial court again on October 21, 2021, where the matter was set for

tria l. The trial court referred the parties to alternative dispute resolution, and the parties

unsuccessfully attempted media tion. All parties appeared at pre-trial conferences in March 2021

and May 2021, at which the circuit court continued the trial setting.

Co-Counsel for Respondents moved for leave to withdraw from representation in June

2021, which the trial court gra nted. Throughout 2021, the parties appeared at various pre-trial

and settlement conferences, and a trial date was ultimately set for September 6, 2022. Counsel

for Respondents moved for leave to withdraw from representation on May 27, 2022, alleging

nonpayment of attorneys' fees. Counsel affirmed she complied with the notice of termination

requirements set forth in state and local rules. Counsel amended her motion for leave to

withdraw, and the trial court set her motion for a hearing on July 7, 2022 via Webex. Counsel

attested she sent notice of the hearing to Respondents. Respondents failed to appear at the

withdrawal hearing conducted by the trial court on July 7, 2022. Following the hearing, the trial

court granted Counsel leave to withdraw as counsel of record for Respondents, leaving

Respondents acting pro se.

The case was called for a jury trial on September 6, 2022. Appellant appeared and

announced ready for tria l. No one appeared on behalf of Respondents. The trial court found

Respondents waived a jury trial by failing to appear at trial pursuant to Rule 69.0l(b)(l). At

Appellant's request, the trial court entered an Interlocutory Order of Default and Partial

Judgment in favor of Appellant, striking Respondents' pleadings and directing Appellant to file

an affidavit as to damages and a proposed final judgment.