A Rule 74.06(b) motion alleging excusable neglect is an authorized after-trial motion if it is filed within the allotted 30-day time period. SeeTaylor v. United Parcel Serv., Inc. , 854 S.W.2d 390, 392 n.1 (Mo. banc 1993) ; Citimortgage, Inc. v. Waggoner , 440 S.W.3d 589, 590-91 (Mo. App. 2014) ; The Bank v. Lessley , 240 S.W.3d 739, 741 (Mo. App. 2007) ; Rule 78.04; Rule 81.05(a)(1). EMC filed a motion to set aside the summary judgment pursuant to Rule 74.06(b), based on excusable neglect, on April 21, 2020.
to respond to Plaintiffs' interrogatories and request for production of documents and failed to comply with the trial court's express order to provide that discovery within ten days. In the face of such failures, the trial court ordered Defendants' pleadings stricken as a sanction for discovery violations and entered judgment for Plaintiffs. Thus, the trial court's judgment was not a true default judgment; rather, it was a judgment for sanctions under Rule 61.01. SeeDuvall v. Maxey, 249 S.W.3d 216, 220 (Mo.App. [W.D.] 2008) ; The Bank v. Lessley, 240 S.W.3d 739, 742 (Mo.App. [S.D.] 2007). As such, it was a judgment on the merits.
A Rule 74.06(b) motion is an authorized after-trial motion. The Bank v. Lessley, 240 S.W.3d 739, 741 (Mo.App.2007). Because it was filed within thirty days after the entry of the dismissal order, it was timely filed.
Therefore, this authorized after-trial motion delayed the finality of the judgment.The Bank v. Lessley, 240 S.W.3d 739, 741 (Mo.App.2007) ; see also Rule 81.05(a). The trial court granted defendant Plymire's after-trial motion and set aside the judgment entered against her. Based upon our review of the record, the claim against defendant Plymire remains pending.
In the face of such failures, the trial court ordered Defendants' pleadings stricken as a sanction for discovery violations and entered judgment for Plaintiffs. Thus, the trial court's judgment was not a true default judgment; rather, it was a judgment for sanctions under Rule 61.01. See Duvall v. Maxey, 249 S.W.3d 216, 220 (Mo.App.2008); The Bank v. Lessley, 240 S.W.3d 739, 742 (Mo.App.2007). As such, it was a judgment on the merits.
See Duvall v. Maxey, 249 S.W.3d 216, 220 (MoApp. 2008); The Bank v. Lessley, 240 S.W.3d 739, 742 (Mo.App. 2007). As such, it was a judgment on the merits.
“The default rule does not apply because the judgment does not come by default in the ordinary sense, but is a judgment upon a trial by the court.” DuPont, 994 S.W.2d at 97;see The Bank v. Lessley, 240 S.W.3d 739, 742 (Mo.App.2007). Therefore, Rule 74.05(d) does not provide a mechanism to set aside the March 15th judgment.
Rule 81.05(a)(2) does not cover independent actions, therefore a court may entertain such an action beyond the aforementioned ninety days. See The Bank v. Lessley, 240 S.W.3d 739, 742 (Mo.App. S.D.2007). Appellants claim that the trial court erred in treating their Rule 74.06(b) motion as an authorized after-trial motion because it was an independent action in that the motion was filed after the underlying judgment became final.
Any appeal would have been from the judgment disposing of the Rule 74.06 motion rather than the underlying final judgment. The Bank v. Lessley, 240 S.W.3d 739, 743 (Mo.App.S.D. 2007). Because Bi-State's motion was an independent action as it pertained to the trial court's distribution order, the trial court's denial of Bi-State's motion constituted a separate, appealable judgment.