Modern Motors, LLC v. Cathy Gerber
2016 Mo. App. LEXIS 1317
Mo. Ct. App.2016Background
- Terry Gerber bought a 3/4 scale kit aircraft; Gessley borrowed funds and signed a promissory note and security agreement naming the aircraft as collateral and registered it in his name.
- The IRS asserted the aircraft was owned by Terry Gerber for unpaid tax liabilities, seized it on September 23, 2009, and sold it at public auction on January 12, 2010 to Modern Motors, LLC.
- Modern Motors later purchased the promissory note and security agreement and sued Gerber and Gessley on the note in December 2013.
- Defendants asserted a right of redemption under Oklahoma law; a Special Master found defendants no longer had an interest after the IRS sale.
- Cathy Gerber sought leave to intervene (as of right under Rule 52.12(a) and permissively under Rule 52.12(b)) claiming a marital interest; the trial court denied intervention and then entered a “Judgment” referencing Rule 74.01 but did not include a Rule 74.01(b) "no just reason for delay" finding.
- The Missouri Court of Appeals dismissed Cathy Gerber’s appeal for lack of jurisdiction because the order was not a final, appealable judgment under Rule 74.01(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of motion to intervene as of right (Rule 52.12(a)) was immediately appealable | Gerber: the court’s later "Judgment" made the denial final and appealable; motion addressed a distinct judicial unit | Modern Motors: denial of intervention was interlocutory and not immediately appealable under prevailing law | Court: No jurisdiction — immediate appeal not available; ConocoPhillips controls that interlocutory overruling of intervention as of right is not immediately appealable |
| Whether the Rule 74.01 entry made the denial final and appealable (Rule 74.01(b)) | Gerber: the court’s Rule 74.01-styled judgment rendered the denial final and appealable | Modern Motors: the entry lacked the mandatory Rule 74.01(b) "no just reason for delay" determination, so it was not final | Court: The entry did not comply with Rule 74.01(b) (no "no just reason for delay" finding), so the order remained interlocutory and appeal dismissed |
Key Cases Cited
- State ex rel. Koster v. ConocoPhillips Co., 493 S.W.3d 397 (Mo. banc 2016) (interlocutory order overruling motion to intervene as of right is not immediately appealable)
- Farinella v. Croft, 922 S.W.2d 755 (Mo. banc 1996) (right to appeal is purely statutory; absent statute no immediate appeal exists)
- Eckhoff v. Eckhoff, 242 S.W.3d 466 (Mo. Ct. App. 2008) (discussed in ConocoPhillips — earlier appellate decisions treating denial of intervention as immediately appealable)
- Coon ex rel. Coon v. American Compressed Steel, 133 S.W.3d 75 (Mo. Ct. App. 2004) (earlier authority treating denial of motion to intervene as final)
- Alsbach v. Bader, 616 S.W.2d 147 (Mo. Ct. App. 1981) (prior appellate view that order denying intervention may be immediately appealable)