Opinion
No. WD 63631 (consolidated with WD 63656)
February 1, 2005
Appeal from the Circuit Court of Bates County, The Honorable William J. Roberts, Judge.
During a festival at Rockville, Kelly Fritts rode a horse that hit Nicholas Olvera and knocked him to the ground. Olvera and his wife, Tina Olvera, sued Fritts for damages arising from the accident. A jury assessed the damages to Nicholas Olvera at $1 million but found that Olvera was 20 percent at fault. The jury ruled that Tina Olvera did not sustain any damages. Fritts appeals, and Tina Olvera cross-appeals.
In response to Fritts' appeal, the Olveras assert that Fritts did not file his notice of appeal on time. They assert that Fritts did not pay all the fees required by Rule 81.04(c) and Section 488.031.1, RSMo Cum. Supp. 2003. We agree.
The circuit court denied the parties' post-trial motions on December 19, 2003. Pursuant to Rules 81.04(a) and 81.05(a), the deadline for Fritts' notice of appeal was on December 29, 2003. On December 29, Fritts attempted to file a notice of appeal with the clerk of the circuit court and remitted $50. The filing fee, with the amounts required by Section 488.031.1, was $70.
At issue in this case is also whether or not Fritts timely filed his post-trial motion. Assuming, without deciding, that Fritts filed his post-trial motion on time, this court is still without jurisdiction to consider Fritts' appeal for the reasons stated infra.
The circuit court's receipt shows a payment of $57: $50 for "Clerk-Appeal" and $7 for "Open Items In." Apparently, the "open items in" was a credit balance that the circuit court applied to the filing fee.
On January 5, 2004, the circuit court noted in its docket sheet that "Terri from Missouri Court of Appeals called, filing fee is now $70.00, when receive additional funds please forward copy of receipt, wrote [Fritts' attorney] requesting additional $13.00 for filing fee." Fritts paid $13 on January 8, 2004. The circuit court noted the payment and wrote in its docket sheet, "Received from Fritts' attorney $13.00 additional filing fee. Applied open items to filing fee for appeal."
The original was in all capital letters.
The original was in all capital letters.
When Fritts attempted to file a notice of appeal with the circuit court, Rule 81.04(c) said:
On July 1, 2004, the docket fee increased to $70. Rule 81.04(c).
Docket Fees. The appellate court docket fee is fifty dollars. It shall be paid to the trial court clerk when the notice of appeal is filed. The trial court clerk shall remit the docket fee to the appellate court clerk or as otherwise provided by law.
No trial court clerk shall accept or file a notice of appeal unless:
(1) The docket fee is deposited therewith; or
(2) The appellant is not required by law to pay the docket fee; or
(3) An order permitting the appellant to prosecute the appeal in forma pauperis accompanies the notice of appeal.
Furthermore, Section 488.031.1 says, "In addition to other fees authorized by law, the clerk of each court shall collect [$20] on the filing of any civil or criminal . . . appeal" to the Supreme Court and to the Court of Appeals. The $20 fee was to be "collected in the same manner as other fees, fines, or costs in the case." Section 488.031.2.
Payment of the docket fee is a jurisdictional requirement for an effective appeal. Kattering v. Franz, 231 S.W.2d 148, 150 (Mo. 1950); Moore v. Bi-State Development Agency, 87 S.W.3d 279, 296 (Mo.App. 2002). Indeed, the Supreme Court has declared that no valid filing of a notice of appeal exists until the docket fee is paid:
If these rules are not followed, the result would be to create again the same conditions which our new Code sought to remedy. Parties could determine for themselves how long they would take to decide whether they wanted to appeal[.] . . . We have construed the Code liberally in order to make decisions on the merits whenever possible; and we have held that "the filing of a notice (of appeal) is the only requirement necessary to invoke appellate jurisdiction," and that "thereupon the appeal becomes `effective.'" Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, 660. However, [Missouri statutes and Supreme Court rules] together determine what is a valid filing, which makes an appeal effective; and appeals cannot be both effective and in abeyance at the whim of the prospective appellant. We, therefore, hold that there can be no valid filing of a notice of appeal until the docket fee is paid and that there was no notice of appeal legally filed within the required time in this case. It follows that this appeal must be dismissed.
Kattering, 231 S.W.2d at 149-50 (emphasis added). See also Bussell v. Tri-Counties Humane Society, 125 S.W.3d 348, 350 (Mo.App. 2004).
The dissent suggests that we look past Kattering and create an exception to the rule enunciated in it, "that there can be no valid filing of a notice of appeal until the docket fee is paid." 231 S.W.2d at 150. We understand the dissent's point that the Supreme Court has provided an exception to filing deadlines by providing for late filings, so, of course, the fees required at filing would be delayed in such a case. The Supreme Court, however, has not made exception to the Kattering rule that a fee cannot be accepted out of time. Indeed, Kattering announced its rule in a context similar to that noted by the dissent: an extension of time for filing a transcript. Under Kattering, were an appellant to obtain an extension to a filing deadline but still not pay his fee during the extended deadline, dismissal of the appeal would be required. The fee must be paid "within the required time," even if it is an extended period. Id. Moreover, in considering the Kattering's motion for rehearing, the Supreme Court specifically rejected good faith as a proper basis for allowing Kattering's late payment of the fee. Id. We are obligated to follow the Supreme Court's last controlling decision. MO. CONST. art. V, Section 2 (1945). We feel constrained from recognizing exceptions not recognized by the Supreme Court.
The issue, then, is whether or not the payment of the additional $20 required by Section 488.031.1 was a fee. If it was, Fritts' failure to pay it within the required time deprives this court of jurisdiction and requires that we dismiss his appeal.
This court's Southern District recently faced this issue and answered the question in the affirmative: "We do not find any reason to distinguish between the docket fee required by Rule 81.04(c) and the surcharge required by Section 488.031.1, RSMo Cum.Supp. (2004)." Deever v. Karsch Sons, Inc., 144 S.W.3d 370, 372 (Mo.App. 2004). The court concluded that "payment of the full fee as required by law is a jurisdictional requirement for a valid notice of appeal." Id. We agree.
Because Fritts failed to pay the entire $70 filing fee by December 29, 2003, his attempt to file a notice of appeal on that date was not effective. Fritts failed to pay the entire fee before the time for appeal had expired. "A timely filing of a notice of appeal is a jurisdictional requirement; if the notice of appeal is untimely, we are without jurisdiction and must dismiss the appeal." In re Estate of Burg, 68 S.W.3d 543, 544 (Mo.App. 2001); Cotter v. Miller, 54 S.W.3d 691, 693 (Mo.App. 2001). Hence, we dismiss Fritts' appeal.
Although both Rule 81.04(c) and Section 488.031 provide for limited exceptions when the fee is not required, such exceptions do not apply in this case.
As for Tina Olvera's cross-appeal, Rule 81.04(b) says, "If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date the first notice of appeal was filed." Although Tina Olvera filed her cross-appeal within ten days of Fritts' notice of appeal, that notice was not timely filed. Hence, Tina Olvera's cross-appeal is also untimely. Rogiers v. Boatmen's Trust Company, 918 S.W.2d 285, 287 (Mo.App. 1996). Furthermore, Tina Olvera did not file a motion in this court pursuant to Rule 81.07 seeking permission to file a late notice of appeal. Hence, we also dismiss Tina Olvera's cross-appeal.
Because we lack jurisdiction over Fritts' appeal and Tina Olvera's cross-appeal, we dismiss their appeals.
Harold L. Lowenstein, Presiding Judge, concurs.
James M. Smart, Jr., dissents in a separate opinion.