American Standard Insurance Company of Wisconsin, Respondent, v. Larry D. Bittick, Appellant Pro Se.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: American Standard Insurance Company of Wisconsin, Respondent, v. Larry D. Bittick, Appellant Pro Se. Case Number: WD61784 Handdown Date: 05/13/2003 Appeal From: Circuit Court of Platte County, Hon. Owens L. Hull, Jr. Counsel for Appellant: Party Acting Pro Se Counsel for Respondent: Carol F. Walsh Opinion Summary: Larry Bittick appeals the court's order denying his motion to set aside default judgment. DISMISSED. Division One holds: Because Bittick's motion to set aside was not filed until more than 30 days after the default judgment became final under Rule 75.01, the motion initiated an independent proceeding that required a final judgment to invoke appellate jurisdiction. The court entered an order denying the motion to set aside but failed to denominate it as a "judgment" or "decree" as required by Rule 74.01. The Court of Appeals lacks jurisdiction to hear the appeal because no final judgment was entered by the trial court. The appeal is dismissed. Citation: Opinion Author: Lisa White Hardwick, Judge Opinion Vote: DISMISSED. All concur. Opinion: Appellant Larry Bittick alleges the circuit court erred in denying his Motion to Set Aside a Default Judgment. We dismiss the appeal, for lack of appellate jurisdiction, because the circuit court failed to enter a final judgment. On December 22, 1998, American Standard Insurance Company of Wisconsin ("American Standard") filed a Petition

for Declaratory Judgment seeking a determination of whether it had a duty to further defend or indemnify Bittick under his automobile insurance policy. (FN1) Bittick failed to respond to the petition, and the circuit court entered default judgment for American Standard on March 5, 1999. On November 1, 1999, Bittick filed a Motion to Set Aside Default Judgment. The circuit court denied the motion in an "Order" entered July 24, 2002. Bittick thereafter filed a "nunc pro tunc" motion requesting that the order be correctly denominated as a final judgment. The court did not rule on the motion. Bittick filed a Notice of Appeal on August 19, 2002. On appeal, Bittick alleges four points of error and seeks reversal of the circuit court's order denying his Motion to Set Aside Default Judgment. Before considering these points, we must determine our authority to hear the merits of this appeal. Am. Family Mut. Ins. Co. v. Hart , 41 S.W.3d 504, 508 (Mo.App. W.D. 2000). Although neither party has raised the issue, we are required to ascertain sua sponte if the jurisdictional prerequisite of a final judgment has been met. Bush Constr. Mach., Inc. v. Kansas City Factory Outlets, L.L.C., 37 S.W.3d 852, 854 (Mo.App. W.D. 2001). Pursuant to Section 512.020, RSMo 2000, an aggrieved party has a right to appeal from a final judgment or from any special order entered after final judgment. A judgment is entered when a writing signed by the judge and denominated "judgment" or "decree" is filed. Rule 74.01 . Appellate jurisdiction is contingent upon the existence of a final judgment. See Bush, 37 S.W.3d at 854. In determining our jurisdiction, we must consider whether the circuit court's order denying Bittick's Motion to Set Aside Default Judgment constituted a final judgment or special order entered after such judgment. Bittick filed his Motion to Set Aside more than thirty days after entry of the default judgment -- that is, after the judgment was final pursuant to Rule 75.01. "When such a motion is filed after the default judgment has become final, it is treated as an independent proceeding, separate and apart from the underlying judgment." Popular Leasing USA, Inc. v. Universal Art Corp. of New York , 57 S.W.3d 875, 878 (Mo.App. E.D. 2001). The independent nature of this proceeding requires the entry of a new final judgment to invoke appellate jurisdiction. Id. The circuit court's order denying Bittick's Motion to Set Aside Default Judgment was not denominated as either a "judgment" or "decree" as required by Rule 74.01. We do not have jurisdiction to consider the appeal of this order because no final judgment has been entered. Id. Accordingly, the appeal is dismissed. Footnotes: FN1. American Standard had already paid the policy limit of $100,000 to settle an automobile accident claim under Bittick's insurance policy. Separate Opinion: None

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.