John Olsen v. Global Biz Dimensions, LLC, and American Family Mutual Insurance Company , 2015 Mo. App. LEXIS 624 ( 2015 )

Sin the filtaauurt Qtnurt of appeals
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DIVISION THREE
JOHN OLSEN, et a1., )
) ED10231 1
Respondents, )
)
v. ) Appeal from the Circuit Court
) of St. Louis County
GLOBAL BIZ DIMENSIONS, LLC, ) 08SL-CC00248~01
)
and ) Honorable Steven H. Goldman
J
AMERICAN FAMILY MUTUAL )
INSURANCE COMPANY, ) Filed: June 9, 2015
)
Appellant. )
Introduction
American Family Mutual Insurance Company (American Family) appeals the trial
court’s denial of its motion to quash a garnishment filed by John Olsen on behalf of the
class he represents (Garnishors). Because such a denial is not a final, appealable order,
we lack authority to decide this appeal and must dismiss.
Background
This is the second appeal of a garnishment action between these parties. This
case originated with a settlement between Garnishors and Global Biz Dimensions, LLC
(Global Biz), which is not party to this appeal. On May 26, 2009, the trial court entered
an order finding the settlement reasonable and entering judgment in favor of Garnishors
and against Global Biz in the amount of $4,917,500.00 (Underlying Judgment). The
Underlying Judgment required, as per terms of the settlement, that it would be satisfied
only from the insurance proceeds fi'om Global Biz’s insurer, American Family.
Subsequently, on July 15, 2009, Garnishors filed a garnishment application (First
Garnishment) to collect $4,917,500.00 from American Family in satisfaction of the
Underlying Judgment. The First Garnishment attached interrogatories pursuant to Rule
90.1 American Family timely responded to the interrogatories, but Garnishors failed to
timely file exceptions as required by Rule 90. Garnishors dismissed the First
Garnishment without prejudice on December 8, 2010.
That same day, Garnishors filed a second garnishment application (Second
Garnishment), requesting the same amount from American Family, also attaching
interrogatories. On August 24, 2011, the trial court entered judgment in favor of
Garnishors in the amount of $4,917,500.00 plus post—judgment interest.
American Family appealed the judgment, and this Court reversed. Olsen v.
Siddigi, 371 S.W.3d 93 (Mo. App. ED. 2012) (Olsen 1). This Court determined that
under the applicable insurance policy, there was no coverage for the damages Garnishors
sustained, and thus American Family was not required to satisfy the Underlying
Judgment. Q at 98. This Court remanded to the trial court with instructions to enter
summary judgment in favor of American Family. Q The trial court did so on August
22, 2012. The trial court also ordered Garnishors to pay $5,000 to American Family as
and for reasonable attorney’s fees and costs. American Family flied a notice that this
judgment had been satisfied 011 March 8, 2103.
‘ Ail rule references are to M0. R. Civ. P. (2014) unless otherwise indicated.
2
On August 13, 2013, the Missouri Supreme Court handed down a decision
explicitly abrogating M and finding that identical insurance policy language did
contain coverage for the same type of damages at issue in the Underlying Judgment.
Columbia Cas. Co. v. HIAR Holding, LLC, 411 S.W.3d 258, 267-68 (Mo. banc 2013).
Garnishors then filed a third garnishment application (Third Garnislnnent) against
American Family on August 18, 2014, again attempting to collect the damages awarded
in the Underlying Judgment, plus interest. Garnishors also filed a motion to reopen the
Second Garnishment, arguing that a change in law required reconsideration of the Second
Garnishment.
In response, American Family filed a motion to quash the Third Garnishment,
contemporaneously with its answers to the Third Garnishment’s interrogatories.
Garnishors filed objections to American Family’s answers, and American Family in turn
filed exceptions under Rule 90. The parties also filed their respective briefs regarding
both American Family’s motion to quash the Third Garnishment and Garnishors’ motion
to reopen the Second Garnishment. On October 24, 2014, the trial court issued an order
denying both motions. On December 4, 2014, the trial court designated the order as a
judgment. American Family now appeals the judgment denying its motion to quash the
Third Garnishment.
. Discussion
“A final judgment is a prerequisite to appellate review.” Ndegwa v. KSSO, LLC,
371 S.W.3d 798, 801 (Mo. banc 2012). Thus, prior to reaching the merits in any appeal,
we must determine, sua sponfe, whether there is a final judgment. _I_(_i_. If there is no final
judgment, we do not have authority to determine the merits and must dismiss the appeal.
I_d.; Cooling v. State Department of Social Servs., Family Support Division, 446 S.W.3d
283, 285 (Mo. App. ED. 2014). Such is the case here.
Here, Garnishors pursued the insurance proceeds from American Family through
a traditional garnishment action. E Johnston v. Sweany, 68 S.W.3d 398, 403 (Mo. banc
2002) (collection of insurance proceeds can be accomplished through either equitable
garnishment under Section 379.2002 01' traditional garnishment under Section 525.240
and Rule 90). American Family filed timely answers to Garnishors’ interrogatories, to
which Garnishors filed timely exceptions under Rule 90.07. Rule 90.1003) provides, “If
the garnishor files exceptions to the garnishee’s answers to interrogatories . . ., the court
or jury shall determine all controverted issues raised by garnishor’s exceptions to the
garnishee’s answers to interrogatories [and] the garnishee’s response thereto . . . . The
court shall enter judgment in accordance with the findings of the court or jury . . . .”
(emphasis added).
Here, the trial court’s judgment does not determine the controverted issues raised
by the parties; namely, whether in light of the new Missouri Supreme Court precedent
Garnishors may now collect insurance proceeds. As relevant for this appeal, the trial
court’s judgment consists only of a denial of American Family’s motion to quash the
Third Garnishment.
“While a trial court’s order quashing a garnishment amounts to a final judgment
from which an appeal will lie, an order overruling or denying a motion to quash a
garnishment is not a final judgment.” Div. of Employment Sec., State of Mo. V.
Cusumano, 785 S.W.2d 310, 312 (Mo. App. ED. 1990). It is not a “final disposition of
the case because further statutory steps must be completed before final judgment may be
2 All statutory references are to RSMo. (Supp. 2014) unless otherwise indicated.
4
entered. The summoning of, the propounding of interrogatories to, and the filing of
answers thereto by the garnishee are merely steps preiiminary to the joining of issues
between piaintiff and garnishee.” 1d,,
One exception may be where the property garnished has been deposited with the
court. figs Osmun v. Osmun, 148 S.W.3d 845, 846 (Mo. App. ED. 2004) (citing
Cusumano, 785 S.W.2d at 312-13). However, where the garnishee has not paid into the
court registry and there is no judgment yet entered against the garnishee, the trial court
does not yet have jurisdiction over the monies held by the garnishee. In re Marriage of
M, 990 S.W.2d 698, 701 (Mo. App. SD. 1999) (quoting Perkinson v. Perkinson, 856
S.W.2d 678, 679-80 (Mo. App. ED. 1993) (dismissing appeai)). Here, there is no
evidence in the record that any money or bond has been deposited with the trial court.
American Family cites a number of cases holding that the denial of a motion to
quash an execution is an appeaiable order, and indeed this Court has a “long history” of
hearing appeals from denials of motions to quash executions. Callahan v. Cardinal
Glennon Children’s Hosp, 901 S.W.2d 270, 272 (Mo. App. ED. 1995). Under Section
512.020, “any special order after final judgment” is an appealabie order, and courts have
indeed found that the denial of a motion to quash an execution is such a “special order
after final judgment.” E Mohawk Flush Doors, Inc. V. Kabul Nursing Homes, Inc., 938
S.W.2d 347, 349 (Mo. App. SD. 1997).
However, appellate courts View the denial of a motion to quash a garnishment
differentiy from the denial of a motion to quash an execution.3 This Court, in Callahan v.
3 This is undoubtedly because garnishment and execution are different procedures. Under Ruie 90.1003),
where the propriety of the garnishment is contested, no transfer of any money or property to the garnishor
takes place until the court has considered the controveited issues raised by the parties and made a final
determination of those issues. In contrast, an execution “shail automatically issue upon the judgment
5
Cardinal Glennon Children’s Hospital, acknowledged several examples of “any special
order after final judgment” under Section 512.020, including an order overruling a
motion to quash an execution and “a final judgment in a garnishment action.” 901
S.W.2d at 272 (citing Helton Constr. Co. v. High Point Shopping Ctr., Inc., 838 S.W.2d
87, 91-92 (Mo. App. SD. 1992)) (emphasis added). As noted above, a final judgment in
a garnishment action does not include an order denying a motion to quash a garnishment
action. Thus, such an order is not an appealable order under Section 512.020. E
m at 92 (citing Cusumano, 785 S.W.2d at 312). In fact, Missouri courts’ history
regarding denials of motions to quash garnishments consists of dismissals for lack of
final judgment. _E_,g,, Cusumano, 785 S.W.2d at 313; Adfl, 763 S.W.2d at 381;
Household Fin. Corp. V. Seigel-Robert Plating Co., 483 S.W.2d 415, 417 (Mo. App.
1972).
Here, American Family appeals the denial of its motion to quash the garnishment.
The trial court has not entered a judgment determining the controverted issue of whether
garnishment is appropriate in light of the Supreme Court’s decision in M, and there is
no evidence in the record that any money or bond has been deposited with the trial court.
E Cusumano, 785 S.W.2d at 313 (no right to appeal until garnishee pays into the court
registry or until trial court enters judgment against garnishee). Additionally, though the
trial court designated its denial of the motion to quash as a “judgment” in order to
facilitate a direct appeal, the name “judgment” alone does not accomplish finality.
Blechle V. Goodyear Tire & Rubber Co., 28 S.W.3d 484 (Mo. App. ED. 2000). Rather,
creditor’s application for execution under Rule 76.01” Fielder v. Fielder, 671 S.W.2d 508, 411 (Mo. App.
ED. 1984). When a court denies a motion to quash execution, the execution proceeds. 1d Thus, denial of
a motion to quash an execution disposes of the case finally, whereas denial of a motion to quash a
garnishment leaves the case open for a final determination of the controvelted issues by the trial court.
6
“[i]t is the content, substance, and effect of the order that determines finality and
appealability.” @
Thus, under the circumstances, we do not have authority to decide this appeal.
Because the possibility remains that the trial court, afier considering the inten‘ogatory
responses and exceptions, could enterjudgment in either party’s favor under Rule 90, we
must give the trial court the opportunity to do so.
Conclusion
The appeal is dismissed.
Kurt S. Odenwald, P.J., concurs.
Robert G. Dowd, 11:, J., concurs.