Opinion
No. WD67954
August 4, 2008
Appeal from the Circuit Court of Jackson County, The Honorable Thomas C. Clark, Judge.
Daniel Joseph Haus, Kansas City, MO.
John P. O'Connor and Michael Belancio, Kansas City, MO, Judge Thomas C. Clark, Kansas City, MO, West Publishing Company.
The Kansas City Board of Police Commissioners (hereinafter "Board) appeals a judgment upon a petition for judicial review setting aside the Board's termination of Police Officer Timothy Coffer (hereinafter "Coffer") for violation of a number of Police Policies in connection with the arrest of a fleeing drunk driver. Under applicable law we review the decision of the administrative agency, in this case the Board, rather than the action of the circuit court. Mo. Coalition for the Env't v. Herrmann, 142 S.W.3d 700, 701 (Mo. banc 2004).
Timeliness of the Appeal
The first issue that we must address is Coffer's claim that the Board's appeal from the judgment of the circuit court is untimely, requiring dismissal of its appeal. A Notice of Appeal must be filed within 10 days after a civil judgment becomes final. Rule 81.04(a). The finality of a judgment is determined by the date of entry of the judgment and whether any post — trial motions are filed. See Rule 81.05(a). Rule 74.01(a) governs the entry of judgment and provides, in relevant part: "A judgment is entered when a writing signed by the judge and denominated 'judgment' or 'decree' is filed. " (Emphasis added). In this case, the question of timeliness of the appeal (and, therefore, the question of our jurisdiction) arises solely because of shortcomings in the procedures followed by Jackson County Circuit Court personnel in processing a routine judgment.
The term "file" has a commonly accepted meaning in the administration of courts: when a document is received by the clerk of the court or the judge. Rule 43.02. Proof of that receipt is customarily and routinely accomplished by marking the document with a "file stamp" indicating the date of receipt. In less common situations, a handwritten notation acknowledging receipt is placed on the document. If an issue arises as to a correct filing date, there are sometimes other means of proof available. In some courts, a handwritten "docket sheet" may be of aid. All Missouri courts now have access to an electronic case management system (commonly known as Casenet), which will reflect dates of filing of documents as well as other actions in a particular case.
Our present issue arises because the judgment was not "file stamped" when the judge signed it (and, in fact, does not carry a file stamp to this day) and no entry was made in Casenet until 6 weeks after the judge signed the judgment.
The issue thus arises as to whether we consider the date the judgment was signed and dated by the judge as the filing date or the date the docket entry was made in Casenet, some 6 weeks later. We are presented two additional collateral but very important issues by the parties. The Board filed a "Rule 75.01 Motion" within 30 days of October 5 (the date the judgment was signed). Coffey questions, however, whether such a motion is a proper post — trial motion that would delay the finality of a judgment under Rule 81.05(a)(2). The second collateral issue is whether the Rule 75.01 motion can be treated as a premature post — trial motion since it was filed before November 22nd, when the judgment was recorded in Casenet. We must first determine what date the judgment was "filed" for purposes of determining its date of entry and thereafter calculating the date of finality.
THE JUDGMENT WAS FILED ON OCTOBER 5 WHEN THE JUDGE SIGNED IT AND THE CLERK MAILED IT TO THE PARTIES
Rule 74.01(a) does not itself define the word "filed". Coffer points to Sparks v. Sparks, 82 S.W.3d 210 (Mo.App.S.D. 2002), which describes a judgment as having been signed by a judge on November 8 and filed by the court's clerk on November 17. For purposes of Rule 74.01(a), the Southern District found the judgment to have been entered on November 17. Id. at 212. Sparks does not, however, discuss what physical act constituted the filing. Nor does the opinion consider the definition of "filing" contained in Rule 43.02(b):
The filing of pleadings and other papers with the court as required by Rules 41 through 101 shall be made by filing them with the clerk of the court, except that a judge may permit the papers to be filed with the judge, who shall note thereon the filing date and forthwith transmit them to the office of the clerk.
It is readily apparent that even this supposed definition does not provide a clear definition of the physical act being described. But the reference to filing with the judge suggests that the filing date to be noted by the judge may be the date of receipt by the judge. This interpretation is buttressed by the several definitions of "file" and its various forms in Black's Law Dictionary, speaking of depositing or delivering records to the court with the intent that they become a part of the court's records. See, Black's Law Dictionary 628 (6th ed. 1990). The marking of those documents by the judge or clerk is, more precisely, a memorialization of the filing.
We cannot tell from the opinion in Sparks what constituted "filing," but assuming that it means memorialization of the receipt of the judgment by the clerk from the judge, we do not disagree. It would be impractical and unworkable to treat the date of the judge's signature alone as the "filing" date. That date might be different than the date of receipt by the clerk for a variety of reasons. In the present case, there is another memorialization by the clerk on the judgment, other than a file stamp. On the same date as the judgment, October 5, the clerk attested the document as an official record of the court, mailed it to the parties, and noted these actions on the judgment itself. That was, in our view, the date of "filing" for purposes of Rule 74.01 and 43.02. Additional reasons buttress this view. The November 22 date was the date of "docket entry." A docket entry is the recording of a past event in the course of a case. It is intended, although the entry here did not clearly reflect that, to record the date that the event docketed occurred. Moreover, a clerk of a court is required to give notice to all parties not in default of the entry of judgments. No notice is given of docket entries. In one view, perhaps, the docket entry should have read "November 22, Judgment entered October 5." But most importantly, all of this analysis would be totally unnecessary and this issue would not arise if all division clerks would file stamp judgments.
Our analysis does not end, however, because the Notice of Appeal was not filed until January 24, more than 90 days after the judgment was entered.
THE BOARD'S MOTION FOR CLARIFICATION AND RECONSIDERATION WAS A POST TRIAL MOTION UNDER RULE 78.07(c) AND DELAYED THE FINALITY OF THE JUDGMENT FOR 90 DAYS UNDER RULE 81.05(a)Rule 81.05(a) provides that the finality of a judgment for purposes of appeal is delayed if an authorized and timely after — trial motion is filed. Coffer suggests, however, that the "Motion to Clarify and/or Reconsider" was not an authorized after — trial motion under Rule 78.07(c). Coffer acknowledges our decision in Blue Ridge Bank Trust v. Hart, 152 S.W.3d 420, 425 (Mo.App.W.D. 2005), abrogating our prior decisions concerning reference to a rule number for a motion to be considered authorized regardless of its substance. Coffer argues that Hart only excuses the absence of citation to any rule number but does not change the prior decisional law where reference is made to a specific rule number. Because a motion under Rule 75.01 is not an authorized after — trial motion, Coffer argues, it did not delay finality. We disagree. The essence of our decision in Hart was that substance is more important than form. In Hart, we concluded that a motion that raised factual and legal errors in the judgment was, in effect, a motion to amend or a motion for new trial. Coffer does not deny that the motion filed by the Board here satisfies that test.
Point denied. The notice of appeal was timely filed.
THE BOARD ACTED ULTRA VIRES IN DESIGNATING A HEARING OFFICER TO TAKE TESTIMONY AND MAKE RECOMMENDATIONS RATHER THAN CONDUCTING A PUBLIC HEARING ITSELFCoffer raises a number of issues in his second point dealing with the merits of the Board's decision. Included in that argument is an assertion that the hearing before a designated hearing officer, rather than the Board itself, was a "sham" proceeding. The Board responds that Coffer requested the use of a hearing officer and waived his right to a hearing before the Board pursuant to a policy adopted by the Board in 2002. Section 536.140 sets out the standards by which we review decisions of administrative agencies in contested cases. Subsection 2 of that statute includes inquiry as to whether the action of the administrative agency "is in excess of its statutory authority or jurisdiction."
All statutory references are to RSMo (2000), unless otherwise noted.
In State ex rel. Rogers v. Board of Police Commissioners of Kansas City, 995 S.W.2d 1 (Mo.App.W.D. 1999), we held that the Board had no statutory authority, express or implied, to delegate the responsibility to hold a hearing under section 84.610 to review police officer terminations. Id. at 6. Our essential rationale was that administrative agencies only have such powers as are expressly provided by statute. Id.
The Board argues, however, that the right to a hearing before the Board is a personal right only, which Coffer can waive. We disagree.
The Board is correct that statutory rights can generally be waived. See, Shearlock v. Mut. Life Ins. Co. of N.Y., 182 S.W. 89, 91 (Mo.App. 1916). But that principle has its limits. It is also true that parties cannot generally confer upon courts powers or jurisdiction that they are not provided by law. See, e.g., SD Invs., Inc. v. Michael — Paul, L.L.C., 157 S.W.3d 782, 785 (Mo.App. 2005). Bodenhausen v. Missouri Board of Registration for Healing Arts., 900 S.W.2d 621 (Mo. 1995), is instructive. There a physician was subjected to discipline in 1990 by an informal agreement with the Board without any reference to Administrative Hearing Commission ("AHC") and then again, in 1992 where the AHC made no findings of fact as required by law. Id. at 621 — 22. After the 1992 discipline, the doctor sought judicial review and attacked the 1990 discipline order, claiming it was void. Id. at 622. The Supreme Court disagreed that it was void; instead holding that it was voidable but not subject to collateral attack. Id. at 623. Even though the Administrative Procedures Act authorized settlement agreements in contested cases, the Board was not authorized by law to order physician discipline without a finding by the AHC. We believe that the underlying principle is that that the doctor cannot, by agreement or waiver, grant the Board authority and jurisdiction that it is not provided by statute. Likewise, Coffer could not here confer upon the Board of Police Commissioners the authority to delegate the hearing process to a hearing officer. Interestingly, the Eastern District of this court followed Rogers in State ex rel. McGull v. St. Louis Board of Police Commissioners, 178 S.W.3d 719, 721 (Mo.App. 2005). Subsequently the legislature specifically granted the St. Louis Board the power to use hearing officers. See section 84.120, RSMo Cum. Supp. 2007. No such change was made in the statute governing the Kansas City Board.
This matter is reversed and remanded to the circuit court with directions that the circuit court order the Board itself to conduct the hearing required by section 84.610.
Harold L. Lowenstein, Judge, and Thomas H. Newton, Judge, concur.
Please be advised that the following corrections have been made in the opinion in the above-styled case:
Page 4, line 7 from the top:
It now reads:
74.01 and 43.02. Additional reasons buttress this view. The November 17 date was the date of
It should read:
74.01 and 43.02. Additional reasons buttress this view. The November 22 date was the date of
Page 4, line 12 from the top:
It now reads:
docket entry should have read "November 17, Judgment entered October 5." But most
It should read:
docket entry should have read "November 22, Judgment entered October 5." But most
Page 4, line 9 from the bottom:
It now reads:
January 5, 90 days after the judgment was entered.
It should read:
January 24, more than 90 days after the judgment was entered.