Habitat for Humanity, Respondent v. Junior Kirkwood and James DuBose, Appellants.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Habitat for Humanity, Respondent v. Junior Kirkwood and James DuBose, Appellants. Case Number: ED83877 Handdown Date: 12/14/2004 Appeal From: Circuit Court of St. Louis County, Hon. Brenda S. Loftin Counsel for Appellant: Anthony D. Gray Counsel for Respondent: William Sauerwein and Shawn Briner Opinion Summary: Junior Kirkwood and James DuBose appeal the default judgment entered against them on Habitat for Humanity's petition for declaratory and injunctive relief. APPEAL DISMISSED. Division Five holds: Kirkwood and DuBose failed to timely file with the trial court a motion to set aside or vacate the default judgment, and direct appellate review is not available to them. Citation: Opinion Author: Glenn A. Norton, Presiding Judge Opinion Vote: DISMISSED. Dowd, Jr., J. and Hoff, J. concur. Opinion: Junior Kirkwood and James DuBose appeal the default judgment entered against them on Habitat for Humanity's petition for declaratory and injunctive relief. We dismiss the appeal. The court entered an interlocutory order of default under Rule 74.05(b) after finding that Kirkwood and DuBose failed to file any responsive pleading or motion directed to Habitat's petition. It concluded that, as a result, the defendants were

in default and were not entitled to defend the allegations in Habitat's petition; a jury trial on the merits was not necessary because Habitat sought only equitable relief. Contemporaneous with the order of default, the court entered judgment. Kirkwood and DuBose filed their notice of appeal and then filed a request with the appellate court to have the interlocutory order of default and judgment set aside. The legal file contains no record of a motion in the trial court to set aside or vacate the default judgment. A default judgment cannot be appealed unless the trial court has previously heard a motion to set aside or vacate the judgment. Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984). Motions filed after the notice of appeal do not satisfy the Vonsmith requirement. Barney v. Suggs, 688 S.W.2d 356, 358 (Mo. banc 1985). Kirkwood and DuBose failed to timely file with the trial court a motion to set aside or vacate the default judgment, and direct appellate review is not available to them. The appeal is dismissed. All motions pending in this Court are denied. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.