Basta v. Kan. City Power & Light Co.
| Decision Date | 08 October 2013 |
| Docket Number | No. WD 75929.,WD 75929. |
| Court | Missouri Court of Appeals |
| Parties | Ronald and Patricia BASTA, as heirs at law to Joseph Basta, Appellants, v. KANSAS CITY POWER & LIGHT COMPANY and Larry and Judy Blankenship, Respondents. |
410 S.W.3d 743
Ronald and Patricia BASTA, as heirs at law to Joseph Basta, Appellants,
v.
KANSAS CITY POWER & LIGHT COMPANY and Larry and Judy Blankenship, Respondents.
No. WD 75929.
Missouri Court of Appeals,
Western District.
Oct. 8, 2013.
[410 S.W.3d 744]
Michael P. Healy, Lee's Summit, MO, for Appellant.
Edwin H. Smith and R. Todd Ehlert, St. Joseph, MO, for Respondent, Kansas City Power & Light Company.
Jeffrey S. Nichols and Allison G. Confer, Kansas City, MO, for Respondents, Blankenship.
Before Division Two: THOMAS H. NEWTON, Presiding Judge, and KAREN KING MITCHELL and GARY D. WITT, Judges.
KAREN KING MITCHELL, Judge.
Appellants, Ronald and Patricia Basta, appeal an order of the trial court taxing costs against them after they voluntarily dismissed their lawsuit against Respondents, Kansas City Power & Light Company (KCP & L) and Larry and Judy Blankenship. Appellants contend that, because they have re-filed their claim, the trial court in the dismissed action lacked jurisdiction to tax costs. They further claim that, even if the trial court in the dismissed action had jurisdiction, it erred in taxing deposition costs because the court reporters responsible for those depositions failed to comply with Rule 57.03 1 insofar as the required certificates were not timely filed. But because there is no appealable order or judgment from the trial court, we lack jurisdiction and must dismiss this appeal.
Appellants filed a wrongful death action against Respondents following the death of Appellants' son after he was electrocuted and fell from the Blankenships' roof while doing repair work. On January 10, 2012, Appellants voluntarily dismissed their suit, without prejudice, pursuant to Rule
[410 S.W.3d 745]
67.02(a).2 The following day, the trial court entered a Judgment of Dismissal, wherein the court ordered the case dismissed without prejudice “with costs taxed against the Plaintiff(s).” 3
On February 1, 2012, Respondents filed a Joint Bill of Costs, requesting that the circuit clerk “tax costs which Defendants incurred in this case against Plaintiffs pursuant to Rev. Mo. Stat. § 514.170.” 4 On February 8, 2012, Appellants filed an Objection to Defendants' Bill of Costs, arguing that the trial court lacked jurisdiction as of the date of the voluntary dismissal and that the costs should not be allowed for various reasons, including that the certificates of deposition costs were insufficient.
On February 9, 2012, Appellants re-filed their wrongful death action in the same circuit court, against the same parties.
On February 27, 2012, Respondents filed a Joint Reply in Support of its Bill of Costs, arguing that the court retained limited jurisdiction over the ministerial act of taxing costs and that the certifications were proper. On March 29, 2012, Respondents submitted a Supplemental Bill of Costs, requesting that the circuit clerk tax the cost of an additional deposition against Appellants.
On April 2, 2012, the trial court entered an Order Overruling Plaintiffs' Jurisdictional Objection to Defendants' Bill of Costs and ordered a hearing to review the costs taxed by the circuit clerk. On May 1, 2012, in the re-filed action, Respondents filed a motion, pursuant to Rule 67.02(d) and section 514.180,5 to stay the proceedings based upon Appellants' failure to pay the costs from the dismissed action. On May 31, 2012, the circuit clerk assessed costs from the dismissed action in the amount of $14,218.03.
On June 25, 2012, Appellants filed a motion, pursuant to Rule 77.05 and section 514.270,6 to review the costs taxed by the circuit clerk, again arguing that the trial
[410 S.W.3d 746]
court lacked jurisdiction and that the court reporter certificates were insufficient. On July 23, 2012, Respondents filed a Joint Response to Plaintiff's Motion to Review Costs, seeking a reduced amount of costs to a total of $11,951.80.
On July 24, 2012, the court ordered the circuit clerk to re-tax the deposition costs “based upon court reporter certifications.” On August 16, 2012, the circuit clerk re-taxed costs at a total of $18,521.15. On September 10, 2012, Appellants filed a Motion to Re–Review Costs, again pursuant to Rule 77.05 and section 514.270, arguing that the trial court lacked jurisdiction and that the court reporter certificates were insufficient and untimely. Respondents filed a response on October 22, 2012; thereafter, on November 6, 2012, the trial court in the dismissed action entered an Order Taxing Costs Against Plaintiffs in a total amount of $11,831.80. It is from the November 6, 2012 Order that Appellants appeal.
Appellants advance a variety of arguments as to why the trial court's order was erroneous. But before we can consider the merits of Appellants' claims, we must address Respondent KCP & L's Motion to Dismiss for the Lack of a Final and Appealable Judgment.
“A final judgment is a prerequisite to appellate review.” Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012). “If the circuit court's judgment was not a final judgment, then the appeal must be dismissed.” Id.
KCP & L argues that the trial court's November 6, 2012 Order is not a final appealable judgment because it does not comply with Rule 74.01's mandate that it be denominated a “judgment,” and, alternatively, because it fails to dispose of a “judicial unit.” 7 KCP & L relies on section 512.020 and Blechle v. Goodyear Tire & Rubber Co., 28 S.W.3d 484 (Mo.App. E.D.2000), in support of its motion.
“The right to appeal is statutory....” State ex rel. Westmoreland v. O'Bannon, 87 S.W.3d 31, 34 (Mo.App. W.D.2002). Section 512.020(5) provides, in pertinent part:
Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any ... [f]inal judgment in the case or from any special order after final judgment in the cause.
A final appealable judgment is “a writing signed by the judge...
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