Midwest Clearance Centers, LLC, Appellant, vs. St. Louis Retail Outlet, LLC, and Namdar Realty Group, LLC, Respondents.
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]n tbe ;fffiltssouri <!Court of ppeals q[:astern 11\istrict DIVISION TWO MIDWEST CLEARANCE CENTERS, LLC, Appellant, vs. ST. LOUIS RETAIL OUTLET, LLC, AND NAMDAR REALTY GROUP, LLC, Respondents. ) ) ) ) ) ) ) ) ) No. EDI 11193 Appeal from the Circuit Court of St. Louis County Honorable Joseph S. Dueker 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. 3
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