Funkhouser v. Meadowview Nursing Home

• Decision Date: 17 October 1991
• Docket Number: No. 17439,17439
• Citation: 816 S.W.2d 947
• Parties: Andrew L. FUNKHOUSER, Sr., Plaintiff-Appellant, v. MEADOWVIEW NURSING HOME, Stephen Bazzano, Jackie Wolfe, Kathy Cameron, Alice Otero, Pat Lawrence, and Sonia Derrick, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 947

816 S.W.2d 947

Andrew L. FUNKHOUSER, Sr., Plaintiff-Appellant, v. MEADOWVIEW NURSING HOME, Stephen Bazzano, Jackie Wolfe Kathy Cameron, Alice Otero, Pat Lawrence, and Sonia Derrick, Defendants-Respondents.

No. 17439.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 17, 1991.

Andrew L. Funkhouser, Sr., pro se.

Theresa Ohler, Karl Blanchard, Jr., Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-respondent Stephen Bazzano.

Frank Cottey, James W. Newberry, Schroff, Glass & Newberry, Springfield, for defendants-respondents.

SHRUM, Presiding Judge.

Pro se plaintiff appeals from the trial court's dismissal with prejudice of his wrongful death action. We reverse the judgment of dismissal and remand.

FACTS

The plaintiff's petition was, in the words of the docket entry, "presented to the Court for filing" on May 29, 1990. By motion of the same date, the plaintiff sought "leave to proceed in this action in forma pauperis." A May 31, 1990, docket entry states that the plaintiff's motion for leave to file in forma pauperis was "sustained" and his petition "filed." The face of the petition is stamped twice, indicating it was "filed" May 29 and May 31.

In his petition, the plaintiff, who was and remains incarcerated at the Moberly Training Center for Men, alleged his father died May 28, 1987, "due to the negligent care of Meadowview Nursing Home and its medical staff...."

On July 2, 1990, the plaintiff wrote to the circuit clerk to inquire about the status of the case and was advised that "service has not been attempted due to the fact that you did not instruct us if service should be made, to whom service should be made and how it should be obtained...." The plaintiff advised the clerk's office to obtain service on all defendants at the nursing home facility. On August 2, 1990, summonses were served on Cameron, as an individual and on behalf of the nursing home, and on Bazzano as an individual. Summonses to the remaining defendants were returned non est.

On August 30 Meadowview Nursing Home and Cameron filed their joint answer to the petition. On September 28 the plaintiff moved for a default judgment against Bazzano who had not filed an answer. The trial court sustained Bazzano's subsequent motion for leave to file an answer out of time and overruled the plaintiff's motion for a default judgment.

With his answer, Bazzano included a motion to dismiss the petition as time-barred due to the three-year limitation of § 537.100, RSMo 1986. Subsequently, all other defendants obtained leave to amend their answer to plead the statute of limitations defense. ¹ They later filed a motion to dismiss the petition as time-barred.

On December 13, 1990, by a document denominated "Judgment Entry," the trial court dismissed the claim against Bazzano because of the statute of limitations; the court did not designate its order as final for purposes of appeal. On December 21, the court dismissed the claim against the Meadowview defendants because of the statute of limitations.

The plaintiff then filed a series of notices of appeal. The first, filed January 14, 1991, identified the date of the judgment as December 13, 1990. The plaintiff did not attach a copy of either the December 13 or the December 21 trial court orders to his January 14 notice of appeal. The plaintiff filed other documents on January 14, one of which was a motion requesting "leave to proceed on appeal from the Court's Judgment of December 13, 1990 in forma pauperis...."

On January 17, the plaintiff filed a second notice of appeal, again specifying December 13 as the date of the judgment and this time attaching a copy of the December 13 order dismissing the claim against Bazzano.

On January 31, the plaintiff filed his third notice of appeal in which he indicated the date of the judgment appealed from to be December 21, 1990. To this notice he attached a copy of the December 21 order in which the trial court dismissed the petition against the Meadowview defendants. With none of these filings did the plaintiff deposit the Rule 81.04(c) $50 docket fee with the circuit clerk.

The trial court docket sheet reflects the following additional activity:

Jan. 25 '91: Notice of Appeals (filed 1-4-91 ² & 1-17-91) w/copy of Judgment; Motion to Vacate; Motion for Leave to Proceed in Forma Pauperis and docket sheets sent ... to Missouri Court of Appeals, Southern District.

....

Jan. 31 '91: Notices of Appeal w/accompanying paperwork returned by Missouri Court of Appeals pursuant to Supreme Court Rule 81.04(c).

Jan. 31 '91: Plaintiff files Notice of Appeal.

Feb. 5 '91: Notice of Appeal sent ... to Missouri Court of Appeals.

Feb. 7 '91: Notice of Appeal w/accompanying paperwork returned by Missouri Court of Appeals pursuant to Supreme Court Rule 81.04(c).

....

3-7-91: [A hand-written entry indicating the plaintiff's motion to appeal as a poor person was sustained.]

March 13 '91: Original Notice of Appeals returned to the Court by Missouri Court of Appeals on 1-31-91 and 2-7-91 remailed w/docket sheet allowing Defendant to proceed as a poor person to Missouri Court of Appeals this date.

Separate notices of appeal, one filed January 17, 1991, in the circuit court and naming "Stephen Bazzano" as defendant, and the other filed January 31 in the circuit court and naming "Meadowview Nursing Home, et al," as defendant, appear in this court's record. Each notice is stamped "Filed Mar 15 1991" in this court.

MOTIONS TO DISMISS THE APPEAL

The defendants filed separate motions to dismiss the appeal in which they claimed the January 14 notice of appeal did not vest this court with jurisdiction because it was not accompanied by the $50 docket fee required by Rule 81.04(c), and because the plaintiff did not obtain an order from the trial court permitting him to proceed on appeal in forma pauperis until after the deadline for filing a notice of appeal had passed. On August 8, 1991, this court ordered the parties to address in their briefs the "effect of Jones v. State, 506 S.W.2d 387 (Mo.1974) on issue presented in [defendants'] motions to dismiss."

In the Meadowview defendants' brief, counsel "acknowledges Jones's application to the one point raised by the motion filed previously," namely, whether the plaintiff's failure, before the deadline for filing a notice of appeal, to pay the appellate court docket fee or to obtain permission to proceed on appeal as a poor person requires dismissal of the appeal.

The Meadowview defendants, however, now assert two additional reasons for dismissal: (1) the notice of appeal from the December 21, 1990, order dismissing them as defendants was not filed until more than 10 days after the order became final, and (2) the plaintiff never sought or obtained leave to proceed as a poor person with his appeal from the December 21 order.

We deal first with the claim that the plaintiff did not file a timely notice of appeal. A notice of appeal must be filed not later than 10 days after the judgment or order appealed from becomes final. Rule 81.04(a). A judgment becomes final at the expiration of 30 days after its entry, absent timely filing of a new trial motion. Rule 81.05(a). The 10- and 30-day time periods are to be computed according to Rule 44.01 which states in pertinent part:

(a) Computation. In computing any period of time prescribed or allowed by these rules ... the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday.

The claims against the Meadowview defendants were dismissed on December 21, 1990. The 30th day following entry of the order of dismissal was January 20, 1991, a Sunday. Monday, January 21, was a legal holiday, the observance of the anniversary of the birth of Dr. Martin Luther King, Jr. Thus the date for finality was extended by Rule 44.01(a) to the end of Tuesday, January 22, and the last day on which the plaintiff could timely file a notice of appeal became the end of Friday, February 1. See LeGrand v. LeGrand, 663 S.W.2d 339, 340 (Mo.App.1983). The plaintiff's notice of appeal, filed January 31, was timely.

In his brief, Bazzano does not pursue his argument for dismissal of the appeal, perhaps a result of his reading of Jones, 506 S.W.2d at 388-89. Nevertheless, we note that the order dismissing Bazzano as a defendant did not become final until adjudication of all claims and the rights and liabilities of all the parties. Rule 74.01(b). The plaintiff's premature filing with respect to Bazzano is deemed to be timely filed. Rule 81.05(b).

We turn now to the Meadowview defendants' argument that the plaintiff did not seek or obtain leave to proceed as a poor person "with his appeal of the Order of December 21, 1990 in favor of these respondents." This argument suggests we have multiple appeals before us. Such is not the case. Rule 81.08 provides in pertinent part:

(a) Notice of Appeal. The notice of appeal shall specify the parties taking the appeal, the judgment or order appealed from, the court to which the appeal is taken.... For this purpose, appellant shall utilize ... Civil Procedure Form No. 8-B on appeals to the Missouri Court of Appeals.

Form 8-B requires the appellant to attach to it a copy of the judgment or order appealed from. Rule 81.08(a) and Form 8-B anticipate an appellant will use one notice of appeal, even in cases such as this in which the trial court disposes of multiple parties at various times by use of separate documents. The plaintiff's incorrect use of two notice of appeal forms rather than one does not create two appeals.

The plaintiff's motion for leave to proceed on appeal as a poor person was sustained by the trial court. Despite the plaintiff's designating only...