Frankoviglia v. Centerre Bank of Branson, 16603
Decision Date | 21 June 1990 |
Docket Number | No. 16603,16603 |
Parties | Charles FRANKOVIGLIA, Plaintiff-Appellant, v. CENTERRE BANK OF BRANSON, Defendant-Respondent. |
Court | Missouri Court of Appeals |
Peter H. Rea, Branson, for plaintiff-appellant.
Marvin Motley, Law Office of Marvin Motley, Branson, for defendant-respondent.
The notice of appeal filed by plaintiff Charles Frankoviglia specifies the "Date of Judgment" from which he appeals is November 23, 1988. Defendant Centerre Bank of Branson filed a motion to dismiss the appeal because the notice of appeal was not timely filed. The history of the case establishes the motion has merit.
Plaintiff's petition filed in the Associate Division (Division II) of the Circuit Court of Taney County alleged the defendant bank wrongfully paid two checks "when the signature on those items did not in any way, shape or form, direct or indirect, match or correspond to the signature on the signature card contract." It further alleged "there should be awarded to plaintiff triple damages of $5,000.00 and penalty damages as to the Court would be just." The prayer was for judgment for such damages. On November 23, 1988, the Associate Division held a hearing upon the record. On November 28, 1988, it entered judgment against the plaintiff. On December 9 1988, the plaintiff filed his motion for new trial in the Associate Division. On December 23, 1988, the plaintiff filed in the Associate Division his Application for Trial De Novo in the circuit court.
A docket sheet for Division I of the Circuit Court has the following entries.
12-23-88 Transcript from Division II.
3-27-89 Assigned to Asso. Judge Anthony McConnell by local court rule per J.E.
4-14-89 Cause remanded to Associate Division for trial on record or for ruling on motion for new trial.
9-1-89 Transcript from Division II.
9-25-89 The file reflects that P sought damages in excess of $5,000 & that the matter was heard on the record; P's remedy is appeal to the Ct of Appls. JEiffert
Notice of appeal to this court was filed in the circuit court on October 10, 1989.
The plaintiff has responded to the defendant's motion to dismiss the appeal. He first states the petition was informally amended in the Associate Division to reduce the prayer to $2,000 and therefore he was entitled to a hearing de novo in the circuit court. Secondly, he asks this court to grant leave for a late notice of appeal. Those responses cannot aid the plaintiff.
Even assuming the petition was amended in the Associate Division to reduce the prayer to $2,000, the plaintiff's Application for Trial De Novo was too late. Judgment on the petition against the plaintiff was entered on November 28, 1988. The controlling statute provides:
"The right of trial de novo provided in subsection 1 of section 512.180 shall be perfected by filing an application for trial de novo with the clerk serving the associate circuit judge within ten days after the judgment is rendered." § 512.190.1.
The plaintiff's motion for new trial filed in the Associate Division did not extend the time for filing an application for trial de novo prescribed in § 512.190.1.
State ex rel. Blackwell v. Elrod, 604 S.W.2d 768, 770 (Mo.App.1980) (footnote omitted.)
The plaintiff's application for a hearing de novo was not filed until December 23, 1988.
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...order of the court of appeals absent an abuse of discretion, which does not appear here. Rule 81.07; cf. Frankoviglia v. Centerre Bank of Branson, 791 S.W.2d 7, 9 (Mo.App.1990) (special order may be granted only if motion is filed within six months after final judgment). Next, Hamid emphasi......
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...a prospective appellant can seek a special order cannot be enlarged." Berger, 173 S.W.3d at 640; see also Frankoviglia v. Centerre Bank of Branson, 791 S.W.2d 7, 9 (Mo. App. S.D. 1990) ("The authority of this court to grant leave to file a late notice of appeal [under Rule 81.07(a)] can be ......
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...of appeal.The window for granting such leave closed on June 28, 2017, and it cannot now be reopened. See Frankoviglia v. Centerre Bank of Branson , 791 S.W.2d 7, 9 (Mo. App. S.D. 1990) ("The authority of this court to grant leave to file a late notice of appeal [under Rule 81.07(a) ] can be......