See,e.g. , Rule 55.01; State ex rel. Woytus v. Ryan , 776 S.W.2d 389, 391 (Mo.banc 1989) (purpose of discovery is to provide access to information needed to develop issues framed by pleadings); Simms v. Ford Motor CreditCo., 605 S.W.2d 212, 214 (Mo.App.E.D. 1980) (pleadings must be made up and issues developed) ; Frimil v. Humphrey , 555 S.W.2d 350, 352 (Mo.App. 1977) (same). While the department did have the opportunity to respond to the allegations in Conseco's petition as to the alleged unconstitutionality of AMHTD as to homeowners, Conseco is not the owner of the manufactured home and has not offered arguments showing it has standing to raise these issues on behalf of the Wrens or other owners, or in its own right because the alleged unconstitutionality of the provisions as to homeowners affected its rights as a secured party, or because it has an ownership interest in one or more homes it has repossessed which might be directly affected by the homeowner provisions.
It is well settled that no appeal lies from such a ruling. Parrish v. Presbytery of Giddings-Lovejoy, Inc., 193 S.W.3d 799, 799 (Mo.App. 2006); Pointer v. Washington, 185 S.W.3d 801, 803-04 (Mo.App. 2006); Hair Kraz, Inc., v. Schuchardt, 131 S.W.3d 854, 854-55 (Mo.App. 2004); Spectrum Cleaning Services, Inc., v. Blalack, 990 S.W.2d 656, 658 (Mo.App. 1999); C.M. Brown Associates, Inc., v. King, 662 S.W.2d 572, 573 (Mo.App. 1983); Simms v. Ford Motor Credit Co., 605 S.W.2d 212, 213-14 (Mo.App. 1980). In the absence of a final judgment, this Court lacks the statutory authority to consider the merits of Plaintiffs' appeal. Cramer, 291 S.W.3d at 340.
"Generally orders entered during the temporary injunction stage are not final orders, thus no appeal lies from the denial of a preliminary injunction. Eickelmann v. Eickelmann, 724 S.W.2d 261, 262 (Mo.App. 1986); C.M. Brown Associates, Inc. v. King, 662 S.W.2d 572, 573 (Mo.App. 1983); Simms v. Ford Motor Credit Co., 605 S.W.2d 212, 214 (Mo.App. 1980); Frimel v. Humphrey, 555 S.W.2d 350, 352 (Mo.App. 1977); Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11, 13 (Mo.App. 1966)."
Before we may reach this issue, we must first address the City's argument that the circuit court's order is not a final judgment upon which an appeal may be taken. See Simms v. Ford Motor Credit Co., 605 S.W.2d 212, 214 (Mo.App. 1980). The City asserts the court's order is a temporary injunction that is interlocutory in nature.
We first consider whether an appeal lies. Generally orders entered during the temporary injunction stage are not final orders, thus no appeal lies from the denial of a preliminary injunction. Eickelmann v. Eickelmann, 724 S.W.2d 261, 262 (Mo.App. 1986); C.M. Brown Associates, Inc. v. King, 662 S.W.2d 572, 573 (Mo.App. 1983); Simms v. Ford Motor Credit Co., 605 S.W.2d 212, 214 (Mo.App. 1980); Frimel v. Humphrey, 555 S.W.2d 350, 352 (Mo.App. 1977); Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11, 13 (Mo.App. 1966). However, where a temporary restraining order has been issued and dissolved, the order dissolving the temporary restraining order is appealable.
Defendants were not served. The order does not dispose of all the parties and all the issues as required by ยง 512.020 RSMo 1978. Spires v. Edgar, 513 S.W.2d 372, 373 (Mo banc 1974). The denial of a temporary restraining order is interlocutory and not appealable. Sims v. Ford Motor Credit Co., 605 S.W.2d 212, 214 (Mo.App. 1980). Accordingly, the appeal is dismissed.
The record does not contain an answer or motion filed by defendants framing or joining all of the issues. See, e.g., Simms v. Ford Motor Credit Co., 605 S.W.2d 212, 214 (Mo.App. 1980). There is no trial court order to try the action on the merits, Rule 92.02(a)(2), nor is there any stipulation or implicit agreement by the parties to a hearing on the merits, see, e.g., Reproductive Health Services, 660 S.W.2d at 339.
And we note that here the now challenged modification order arose from denial of the defendants' own motion to modify the original injunctive relief. In Simms v. Ford Motor Credit Corp., 605 S.W.2d 212 (Mo.App. 1980) we held that where the trial court's order was on a temporary injunction hearing that was not a final appealable order. And, as explained in Wallace v. Hankins, 541 S.W.2d 82[2-4] (Mo.App. 1976), omitting citations:
Orders entered during the temporary injunction stage of a proceeding are not final, appealable orders. Simms v. Ford Motor Credit Corp., 605 S.W.2d 212 (Mo. App. 1980). Rule 81.06 does not extend the statutory right of appeal provided in ยง 512.020 RSMo 1978. Moreland v. State Farm Fire Casualty Co., 620 S.W.2d 24, 25 (Mo.App. 1981).
It is questionable whether the court had authority to advance the action on the merits and consolidate it with the show cause hearing without prior notice to defendant. See Simms v. Ford Motor Credit Co., 605 S.W.2d 212, 214 (Mo.App. 1980) and Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11, 13 (Mo.App. 1966) (error for trial court to dismiss petition for injunction at show cause hearing for temporary injunction); Acha v. Beame, 531 F.2d 648, 651 (2d Cir. 1976); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 935-936 (10th Cir. 1975); But see present Rule 92.02(a)(2); and see e.g., Atlantic Richfield Co. v. F.T.C., 546 F.2d 646, 651 (5th Cir. 1977). However, assuming, without deciding, the court had this authority, the court still was obliged to inform defendant during the course of the hearing that the action on the merits was being advanced and consolidated and, thus, afford the defendant the opportunity to present its case on the merits.