Opinion
Nos. WD 65475 consolidated with, WD 65661
August 1, 2006
In the Circuit Court of Clay County, The Honorable Janet Lodwick Sutton, Judge, The Honorable Larry Dale Harman, Judge.
Before Robert G. Ulrich, P.J., Patricia Breckenridge, and James M. Smart, Jr., JJ.
This opinion addresses the appeals in two trial court rulings involving the Missouri statutes dealing with the expungement of arrest records. The appeals are consolidated for opinion purposes.
In March 2000, Harrah's North Kansas City, L.L.C., accused William T. Brown, D.O., of cheating in its casino and banned him from its property. Harrah's issued a report of the incident to the Missouri Gaming Commission and to the Clay County prosecutor. On the basis of this report, the Gaming Commission applied for an arrest warrant for Dr. Brown.
Ten months later, Dr. Brown spoke with Harrah's general manager regarding the incident. After apparently investigating the matter, the manager of security sent Dr. Brown a letter, stating that "(it) seems clear that this situation could have been handled in a better manner." The letter assured Dr. Brown that "this is not an acceptable standard here at Harrah's." Harrah's did not inform either the Gaming Commission or the prosecutor of the investigation or of its letter.
Approximately a year later, in March 2002, while in Miami, Florida, in connection with a cruise, Dr. Brown was arrested on the outstanding warrant. He was transported to the Dade County jail, where, he alleges, he was humiliated, beaten by a fellow inmate, and suffered emotional distress. He was held at the jail for 3-1/2 days before attorneys could secure a release on his promise that he would return to Missouri.
Upon his return to Missouri, Brown's attorney furnished the prosecutor a copy of the letter from Harrah's. The prosecutor dismissed the charges against Brown shortly thereafter.
On January 2, 2003, Dr. Brown and his wife filed a suit against Harrah's, which included claims of false arrest, malicious prosecution, negligence, intentional infliction of emotional distress, and loss of consortium.
Almost a year later, in December 2003, while his litigation against Harrah's was pending, Dr. Brown filed a petition seeking expungement of his arrest records pursuant to sections 610.122 through 610.125, which permit expungement in cases in which there was no probable cause for the arrest. After notice to law enforcement agencies, Judge Sutton entered an "order of expungement" in February 2004. Harrah's learned of the expungement from the Clay County Sheriff in March 2005, when, in connection with Brown's lawsuit, it requested records of Dr. Brown's arrest from the sheriff.
Pursuant to section 610.122, arrest records may be expunged if the court determines that the arrest was based on "false information" and there is "no probable cause, at the time of the action to expunge, to believe the individual committed the offense." It is also required, as a condition to expungement, that "[n]o charges will be pursued" as a result of the arrest; the subject has no prior or subsequent convictions; the subject did not receive a suspended imposition of sentence; and "[n]o civil action is pending" related to the arrest or the records.
On April 6, 2005, Harrah's filed a summary judgment motion in the tort case pending before Judge Harman, claiming that Dr. Brown could not legally maintain his lawsuit, because under section 610.126 a petitioner may not bring a legal action related to an expunged arrest "subsequent to the expungement" of the arrest record.
The next day, April 7, Dr. Brown filed a motion to vacate the expungement order in Judge Sutton's division. The motion was based on Dr. Brown's attorney's discovery that under amendments to section 610.122, arrest records may be expunged only if "[n]o civil action is pending relating to the arrest or the records sought to be expunged." The motion informed the court that there had been a civil action pending at the time the petition for expungement was filed and granted. Brown asked the court to set aside the expungement order for the reason that the expungement was not authorized under the applicable statutes at the time it was granted.
That same day, without notice to the law enforcement agencies, Judge Sutton granted the motion, vacating the earlier expungement order, stating that "the previous expungement order is vacated and set aside because it was entered without appropriate legal and statutory authority."
On April 22, 2005, upon learning of this ruling, the State of Missouri and the State Highway Patrol filed a motion asking the trial court to vacate its recent order vacating the expungement order. The court held a hearing on that motion on May 5, 2005.
Dr. Brown's counsel argued that vacating the expungement was proper because the original expungement order was "void" on the basis of section 610.122(5), which prohibits an expungement if a civil action is pending related to the arrest. The State disagreed that the judgment was "void." It also pointed out that the criminal records repositories are placed in an untenable position if there is doubt as to the finality to such orders.
The trial court acknowledged that vacating the expungement order puts the State and the court system "in a very difficult position of trying to recreate the file," but denied the State's motion. The court ordered Brown's attorney "to produce any and all criminal records pertaining to the arrest," which counsel agreed to do. The court concluded in its judgment that the initial expungement order was "without authority and void" on the basis of section 610.122(5). The court stated that Dr. Brown was free to petition the court again for expungement later if he can show that the statutory requirements are met. This ruling is the subject of the State's appeal.
On May 4, which was the day before the court denied the State's motion to reinstate the expungement, Dr. Brown filed his response to Harrah's summary judgment motion in Judge Harman's division. He argued that summary judgment was inappropriate because this lawsuit was not brought "subsequent to the expungement" of his arrest records, but rather prior to the order of expungement. He also pointed out that the prior expungement order had been improperly granted.
In its reply, Harrah's summarized the proceedings on the State's motion to set aside the order vacating expungement and attached copies of the hearing transcript and related pleadings. Harrah's argued that the arrest records had been destroyed and could not be recreated by vacating the expungement order.
On May 27, 2005, the trial court granted Harrah's motion for summary judgment on the basis of section 610.126, which prohibits any legal action related to the arrest from being brought subsequent to the expungement of that arrest record. The court explained:
this court finds that plaintiff herein had obtained an expungement of the record of his arrest giving rise to the instant action. This court finds that Sec. 610.126, et seq. applies, and that the plaintiff [is] statutor[il]y barred from bringing this action.
Dr. Brown filed a motion to set aside the order granting summary judgment, alleging that the court had erroneously granted summary judgment on May 27 before he had the opportunity to file a sur-reply. He noted that Rule 74.04(c)(4) permits a sur-reply, which may include exhibits and affidavits, and that Rule 74.04(c)(6) mandates that the court decide the motion only after the response, reply, and sur-reply have been filed or the deadlines therefor have expired. The deadline for filing the sur-reply would not have expired until June 7.
In conjunction with this motion, Dr. Brown filed his sur-reply. It dealt primarily with the question of whether or not the expunged arrest records had been destroyed. Brown attached an affidavit from his attorney which recounted a statement by the Clay County prosecutor that a record of Brown's file "had been maintained in some format which would allow it to be retrieved." Attached to that affidavit was correspondence from the State Highway Patrol that included Dr. Brown's arrest record (showing that the records had not yet been destroyed) as well as the prosecutor's files and record of the arrest.
The trial court took no further action with respect to Brown's motion, which was denied by operation of law. The grant of summary judgment is the subject of Dr. Brown's appeal.
The Browns contend that the court erred in misapplying the law, failing to follow the procedural requirements for summary judgments, and disregarding a genuine issue of material fact. The State appeals the ruling purporting to set aside the order of expungement, which the State contends exceeded the court's authority.
Standard of Review
The State's appeal of the ruling on the expungement and Dr. Brown's appeal of the summary judgment ruling are consolidated for opinion purposes. Both matters involve only questions of law, because the basic facts are not disputed.
Dr. Brown's wife was a co-plaintiff in the tort action. She did not participate in the expungement case. For the sake of convenience, we may sometimes refer to the plaintiffs in the tort action as "Dr. Brown" although Mrs. Brown is a co-plaintiff as well.
Whether summary judgment is appropriate is a question of law, and is therefore reviewed de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is viewed in the light most favorable to the party against whom judgment was entered. Id. The non-movant is entitled to all reasonable inferences from the record. Id. A grant of summary judgment should be sustained only if the moving party proved by uncontroverted facts the right to judgment as a matter of law. Id.
The trial court ruling purporting to vacate the expungement order is reviewed pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Because there is no factual dispute as to the issues in question, we seek to determine whether the court properly declared and applied the law. Id.
The Expungement
We begin with the court's ruling on the expungement matter. Dr. Brown argues that the trial court properly vacated the earlier expungement order. The motion seeking to set aside the expungement, which was filed more than a year after the order of expungement was entered, did not purport to be brought under Rule 74.06 or under any other rule or statute. Relief was sought on the ground that the original order of expungement was granted "without legal authority" because it was granted in violation of section 610.122(5), which provides that no arrest record may be expunged if a civil action is pending relating to the arrest.
Rule 74.06 provides that within a reasonable time not exceeding one year after a judgment is entered, on motion and upon such terms as are just, the court may relieve a party from the effect of a judgment in certain instances.
We note that, initially, neither party directly questions whether the "order of expungement" was a judgment within the meaning of Rule 74.01. Rather, the parties seem to assume that it was a judgment, and they focus on the authority of the court to set aside a judgment of expungement. Dr. Brown argues that the ruling in question was a void judgment. Dr. Brown points out that a void judgment is "entitled to no respect, and may be impeached at any time in any proceeding in which it is sought to be enforced," citing Taylor v. Taylor, 47 S.W.3d 377, 384 (Mo.App. 2001).
Taylor does not assist Dr. Brown. Taylor involved a purported termination of parental rights in a proceeding to resolve custody under Chapter 452, RSMo. The biological father contended that, as the child's father, he had standing in another proceeding because the purported judgment of termination was void.
Taylor is about voidness due to lack of subject matter jurisdiction. The case is not about lack of compliance with statutory conditions. The purported termination of parental rights in Taylor was void because it was granted in a Chapter 452 proceeding, which, though governing child custody, does not authorize one parent to seek termination of the parental rights of another. The court in Taylor stated the purported termination of parental rights was granted without jurisdiction. That ruling was not merely an "erroneous exercise of jurisdiction." Id. at 388. The court clarified the distinction between the "erroneous exercise of jurisdiction" and the "want of jurisdiction." The court said that a judgment that is "contrary to law as expressed in the decisions of the supreme court or the terms of a statute is at most only an erroneous exercise of jurisdiction" rather than a ruling without jurisdiction. Id. (emphasis added) ( quoting LaPresto v. LaPresto, 285 S.W.2d 568, 561 (Mo. 1955).
The judgment in Taylor was void in that the court did not have subject matter jurisdiction in that proceeding to grant one parent's request to terminate the parental rights of another. Id. In contrast, the judge in Dr. Brown's case had the jurisdiction to grant an expungement. It may have been a case of erroneous exercise of jurisdiction, but it was not a case of lack of jurisdiction. Taylor does not assist our analysis.
Rule 74.01
In his reply brief, Dr. Brown, in responding to the res judicata argument of the State, also raises the point that the "order of expungement" never was denominated a "judgment" or "decree" of expungement. Dr. Brown thus asserts that the expungement was interlocutory rather than a judgment. The finality of a purported adjudication is something we have often raised sua sponte even if not raised by a party, because it goes to the issue of our jurisdiction. Accordingly, we will, in light of rules 74.01 and 74.02, consider the legal status of the "order of expungement" as to finality.
The first three sentences of Rule 74.01 state as follows:
"Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" or "decree" is filed.
These three sentences must be read together rather than in isolation from one another. See Brooks v. Brooks, 98 S.W.3d 530, 531 (Mo. banc 2003). This means that the entering of a ruling designated an "order" does not constitute the rendition of a judgment. Such a reading is consistent with rule 74.02, which provides:
Every direction of a court made or entered in writing and not included in a judgment is an order.
The word "order," therefore, when not included in a judgment, does not by itself speak with the finality of a judgment.
The concepts of finality and appealability are generally overlapping concepts; with certain specified exceptions, a ruling must be final to be appealable. See, e.g., Section 512.020. The Missouri Supreme Court, in exercising its supervisory authority over the lower courts, can adopt rules as to the procedural aspects of appealability. The Court has done so in its amendments to Rules 74.01 and 74.02, effective January 1, 1995, in which, as we have seen, a judgment is not rendered (entered) until it is signed by the judge and denominated a "judgment" or "decree."
We are thus forced, pursuant to Rules 74.01 and 74.02, to consider whether an "order of expungement" under Chapter 610 has the legal effect of a judgment. The "order" in this case complies with traditional notions of finality in that it purports to fully adjudicate the matter at controversy and to judicially resolve all the issues presented in the petition as to the parties in question. See Section 511.020. Rule 74.01, however, specifically requires more in order to be rendered a final and appealable judgment. Brooks, 98 S.W.3d at 531.
Section 512.020 provides that "final" judgments are appealable, as well as any "special order after final judgment in the cause." Section 511.020 defines the word "judgment" as the final determination of the right of the parties in the action. These statutes must be read in conjunction with Rule 74.01(a). Brooks, 98 S.W.3d at 532; see also Spiece v. Garland, No. SC 87369, slip op. at 3, (Mo. June 30, 2006).
Section 610.124 provides that a court's ruling in an expungement case is appealable "in the same manner as provided for other civil actions":
Any petitioner or agency protesting the expungement may appeal the court's decision in the same manner as provided for other civil actions.
The language of the expungement statutes consistently refers to orders, rather than judgments. See, e.g., § 610.123.4 and 610.124. Rule 155.04 of the Supreme Court Rules (effective July 1, 1995), also uses similar language, providing:
If the court finds that the petitioner is entitled to expungement . . . it shall enter an order directing expungement. The court shall send a certified copy of the order to each agency identified in the petition. (Emphasis added.)
The form "order" accompanying Rule 155 is also entitled "Order of Expungement of Arrest Records."
It would not be surprising, therefore, for agencies to act once they believe an "order" is final. There thus could be a certain practical finality, even if an "order" is not denominated a judgment or decree. This problem has apparently not previously presented itself because appeals in arrest expungement cases have generally, as far as we can tell, involved an order of expungement entitled " judgment and order of expungement." See, e.g., Wesley v. Crestwood Police Dep't, 148 S.W.3d 838 (Mo.App. 2004); Jones v. St. Louis Police Dep't, 133 S.W.3d 524 (Mo.App. 2004); Martinez v. State, 24 S.W.3d 10 (Mo.App. 2000); PBS v. Prosecuting Attorney's Office of St. Louis County, 998 S.W.2d 835 (Mo.App. 1999).
It is clear from recent rulings, however, that although Chapter 610 and Rule 155 use the term "order," that fact should not be understood as meaning that expungement orders are exempt from the requirement of Rule 74.01. The decisions of the Supreme Court have made clear that Rule 74.01 means what it says in specifying that an "order" becomes a "judgment" only when the requirements of Rule 74.01 are met. See, e.g., Brooks, 98 S.W.3d at 532; Spiece, No. SC 87369, slip op. at 3. These recent decisions of the court have also made clear that even an appealable order cannot be appealed without being denominated a "judgment" or "decree."
In Brooks, several years after the trial court had entered a dissolution judgment, the court entered a Qualified Domestic Relations Order (QDRO) to implement the division of the husband's pension plan. 98 S.W.3d at 530-31. The QDRO was not denominated a "judgment." Husband sought to appeal the QDRO, and, in order to make clear it was appealable, obtained a nunc pro tunc order retitling the QDRO as a "judgment." The Supreme Court granted transfer to consider whether the order was appealable. Id. at 531.
The Court noted that a QDRO is an order that may be obtained after and pursuant to a previously entered final judgment. Id. The QDRO thus qualified as a "special order after final judgment," which, under section 512.020, is an appealable order. The Court stated, however, that the fact that the QDRO is an appealable type of order is not enough. It is still necessary to denominate the order as a "judgment" or "decree" in accordance with Rule 74.01. Id. at 532. The Court noted that denominating the order as a judgment is a judicial act, not a clerical act; therefore, the use of the nunc pro tunc procedure was not appropriate. But since the order had been denominated a judgment with the judge's intent that it be finalized, the Court elected to overlook the procedural nomenclature of nunc pro tunc and held that the "qualified domestic relations order and judgment" was appealable. Id. at 532.
Spiece, which is not yet final, involved an appeal of the granting of a motion for new trial. SC 87369, slip op. at 1. The trial court initially entered an "order" for new trial, which is a type of interlocutory order specifically listed as appealable in section 512.020. Id. Several days later, the court entered a "judgment/order" granting a new trial and explaining the basis for the ruling. The date that the appealable entry was made was important in order to determine the precise method of review pursuant to Rule 84.05. Id. at 2. The Court held that the ruling did not become appealable until the entry of the "judgment" on the later date. Id. at 4. Thus, Spiece again demonstrates that Rule 74.01 means that a judgment has not been rendered (entered) until it has been denominated a "judgment" or a "decree."
Brooks and Spiece demonstrate the Supreme Court's intention that the only dispositions that are appealable are:
(1) orders that meet traditional requirements for finality and are part of a judgment within the meaning of Section 511.020, and that are signed by the judge and denominated as such through the use of the word "judgment" or "decree." See Brooks, 98 S.W.3d at 531-32.
(2) orders that, though not final in the traditional sense and not a judgment within the meaning of Section 511.020, are orders specifically designated as appealable by statute ( e.g., interlocutory orders listed in Section 512.020; orders in Chapter 211 cases involving children; and orders in Chapter 472 cases involving probate and guardianship proceedings) and that are denominated "judgment" or "decree." Brooks, 98 S.W.3d at 531-32; Spiece, No. SC87369, slip op. at 3.
This leaves us with more meanings of the word "judgment" than we had previously, which may cause some confusion for a time. A court could conceivably designate a ruling as an "appealable interlocutory order and judgment," (which sounds contradictory to those used to traditional terminology) if it wanted to be entirely clear as to the nature of its ruling while still complying with Rule 74.01.
If a purported judgment is procedurally defective, it is not "entered." Rule 74.01(a). If it is not "entered," it also has not been "rendered." Id. Clearly, if a judgment has not been rendered, a ruling purporting to be a judgment cannot be a judgment. If it is not a judgment, the purported disposition in question remains subject to further proceedings. See In re Marriage of Counts, 190 S.W.3d 590, 603 (Mo.App. 2006) (denial of motion to set aside default judgment was not a "judgment as required by Rule 74.01 where it was not denominated "judgment" or "decree;" appeal dismissed).
Dispositions are either judgments within the meaning of Rule 74.01(a) or they remain interlocutory within the jurisdiction of the trial court. If a ruling is not final it is necessarily, by definition, interlocutory. See Williams v. Williams, 41 S.W.3d 877, 878 (Mo. banc 2001); In re R.B., 186 S.W.3d 255, 257 (Mo. banc 2006). It seems that the Supreme Court desires that a trial court express its intent and recognition that a ruling is subject to appeal by the use of the word "judgment" or "decree." Thus, the court seeks the use of those terms even when a trial court is issuing an interlocutory ruling that is made appealable by statute. Brooks, 98 S.W.3d at 531-32.
For all of these reasons, we conclude that no judgment was ever entered in the expungement case. The order of expungement in this case was not a judgment in accordance with Rule 74.01(a). It was an order, interlocutory in effect, and therefore subject to further proceedings. There was, accordingly, no jurisdictional or legal impediment to the trial court's action in April 2005 in setting aside the "order of expungement" pursuant to Dr. Brown's motion.
Other Points
The fact that the "order of expungement" was not a judgment pursuant to Rule 74.01(a) moots the other points raised by Dr. Brown attacking the grant of summary judgment. It also resolves all of the contentions of the State and of Harrah's except for the contention of the State that the trial court should have denied Dr. Brown's motion to vacate the order of expungement on the basis of laches. The State, although arguing to the trial court at the May 5, 2005, hearing that vacating the order of expungement was bad policy, did not assert the doctrine of laches, nor raise an estoppel argument.
In any event, because the "order" vacating the "order of expungement" was not itself a judgment under Rule 74.01, the State's appeal of that ruling will be dismissed.
As for the grant of summary judgment in Dr. Brown's case, we agree with Dr. Brown that because the "order of expungement" was interlocutory only and was subsequently vacated, it could not form the basis of the trial court's ruling that Harrah's was entitled to judgment as a matter of law. The information contained in Dr. Brown's sur-reply under Rule 74.04(c)(4) was pertinent to whether the "order of expungement" was a judgment under Rule 74.01 that could constitute a statutory bar to the suit against Harrah's. Had the trial court recognized from Brooks and from Dr. Brown's sur-reply that the expungement order was interlocutory, the court could not have properly ruled that Harrah's was entitled to judgment as a matter of law on the basis of Section 610.126 (which prohibits any legal action subsequent to an expungement). Accordingly, we conclude that the trial court incorrectly declared and applied the law in granting the motion for summary judgment.
Conclusion
For the reasons set forth herein, the summary judgment is reversed in WD 65661 and the case is remanded for further proceedings. For these reasons also, the State's appeal of the order vacating the "order of expungement" in WD 65475 is dismissed.
Ulrich and Breckenridge, JJ., concur.