J.W. ex rel. A.W. v. St. Louis Pub. Sch.
| Docket Number | ED 110136 |
| Decision Date | 02 August 2022 |
| Citation | 653 S.W.3d 905 |
| Parties | J.W. EX REL. A.W., Appellant, v. ST. LOUIS PUBLIC SCHOOLS, et al., Respondents. |
| Court | Missouri Court of Appeals |
Jeremy D. Hollingshead, Alyson Dunavant, 7777 Bonhomme Ave., Ste. 2401, Saint Louis, MO 63105, Thomas J. Sanfilippo, One Metropolitan Square, 211 Broadway, Ste. 2100, St. Louis, MO 63102, for appellant.
Vincent D. Reese, Kathryn B. Forster & Patrick J. Brazill, 12444 Powerscourt Drive, Ste. 400, Saint Louis, MO 63131, for respondents.
Appellant J.W. brought a two-count petition ("Original Petition") in the Circuit Court of the City of St. Louis against respondents St. Louis Public Schools ("SLPS") and Marion Wilford, and defendant Toby Mack, who never was served with process. The circuit court entered an order and judgment granting SLPS's and Wilford's joint motion for judgment on the pleadings based on J.W.’s First Amended Petition.
On appeal, J.W.’s counsel failed to timely file the record on appeal and then omitted the First Amended Petition from the record. At oral argument, this Court noted that omission and allowed J.W.’s counsel two business days to correct it. More than two weeks after oral argument, the parties filed a joint stipulation with the First Amended Petition attached as an exhibit. The stipulation explained that J.W.’s counsel did not file the First Amended Petition in the circuit court.
We dismiss this appeal for lack of an adequate record on appeal and for failure of J.W.’s counsel to timely file the record.
J.W.’s counsel filed the Original Petition on March 21, 2016. The Original Petition asserted claims of sex discrimination and retaliation under Section 213.010 against SLPS, and Wilford and Mack, who allegedly were teachers employed by SLPS.1 The claims were based on allegations that a four-year-old female preschool student "sexually harassed" and "sexually assaulted" J.W., a three-year-old female preschool student, by putting her head up J.W.’s skirt and crawling under a bathroom stall and "inappropriately touching" J.W. J.W. never effected service on Mack, who SLPS disavows as unknown and not employed by SLPS. On June 1, 2016, SLPS and Wilford filed answers denominated as responsive to "Plaintiff's First Amended Petition," though J.W.’s counsel neglected to file the First Amended Petition.
SLPS and Wilford jointly moved for judgment on the pleadings on November 27, 2019. They argued Count I of the First Amended Petition failed as a matter of law and J.W. failed to exhaust her administrative remedies as to Count II. On May 13, 2020, J.W. filed suggestions in opposition to the motion. On May 22, 2020, the circuit court entered judgment on the pleadings in favor of SLPS and Wilford, and against J.W., on "Plaintiff's First Amended Petition."
Defendant Mack remained unserved by J.W. The circuit court entered an order on October 5, 2020 continuing a dismissal hearing to December 11, 2020. The court noted J.W.’s counsel's previous representation that J.W. intended to voluntarily dismiss Mack to obtain a final judgment and proceed on appeal. The court ordered J.W. to voluntarily dismiss Mack before December 11 or the court would dismiss the case with prejudice. On December 10, 2020, J.W. filed a notice of voluntary dismissal of Mack. With Mack dismissed as a defendant, the judgment adjudicated all claims as to all parties. See Rule 74.01(b).2 J.W. filed a notice of appeal in the circuit court on December 30, 2020, which was filed in this Court on November 23, 2021.
On December 1, 2021, this Court entered a dismissal notice to J.W. for failure to timely file the record on appeal in violation of Rules 81.12(d) and 81.19(a). We gave notice that the appeal would be dismissed if the record on appeal was not filed by December 16, 2021. We ordered that the untimely record on appeal "must be accompanied by a motion to file out of time." Without filing a motion to file out of time, J.W.’s counsel submitted the legal file on December 13, 2021. The legal file did not include the First Amended Petition, the pleading on which the circuit court entered judgment.
J.W.’s counsel requested and was granted an extension of time to file J.W.’s brief. Respondents timely filed their brief. J.W.’s counsel then untimely filed J.W.’s reply brief with a motion to file out of time, which we granted. On June 16, 2022, oral argument was heard and the case was submitted. During oral argument, we inquired about J.W.’s failure to include the First Amended Petition in the legal file. J.W.’s counsel confirmed that he had not included the First Amended Petition in the legal file as required by Rule 81.12. We directed J.W.’s counsel to correct the omission and ordered J.W.’s counsel to file a supplemental record on appeal including the First Amended Petition within two business days, by June 20, 2022, pursuant to Rule 81.12(f)(2). We effectively enlarged the time for filing the record on appeal by months pursuant to Rule 81.20. On July 1, 2022, 15 days after oral argument and 11 days after the June 20, 2022 extended deadline, J.W.’s counsel filed a joint stipulation with SLPS that included the First Amended Petition as an exhibit.
In the stipulation, J.W.’s counsel conceded that the First Amended Petition was not included in the legal file. The stipulation explained that J.W.’s counsel attempted to file the First Amended Petition in the circuit court after the parties discovered that J.W.’s Original Petition misnamed SLPS, and the only change in the First Amended Petition was the correction of the misnomer.3 After J.W.’s counsel filed the First Amended Petition, he immediately recalled it because it did not include the exhibits filed with the Original Petition. According to the stipulation, within minutes J.W.’s counsel attempted to refile the First Amended Petition with the exhibits. J.W.’s counsel apparently unknowingly recalled the refiled First Amended Petition with exhibits, and the First Amended Petition was not filed. The parties overlooked the second recall and erroneously operated as if the First Amended Petition with exhibits was filed.4 Finally, the stipulation requested that this Court deem the First Amended Petition filed or, in the alternative, treat the circuit court's judgment on the First Amended Petition as if it were a judgment on the Original Petition.
As a threshold matter, SLPS argues that J.W.’s appeal is untimely, and this Court lacks jurisdiction, because the circuit court's May 22, 2020 judgment on the pleadings in favor of SLPS and Wilford was a final, appealable judgment. SLPS contends that the judgment became final 30 days after its entry, on June 21, 2020, pursuant to Rule 81.05(a)(1). Thus, J.W.’s notice of appeal was due to be filed not later than ten days after the judgment became final, on July 1, 2020, pursuant to Rule 81.04(a). SLPS points out that J.W. filed the notice of appeal nearly six months later, on December 30, 2020.
SLPS seems to acknowledge that the judgment on the pleadings was not entered as to all parties given that Mack was never served. But SLPS relies on Gibson v. Brewer , 952 S.W.2d 239 (Mo. banc. 1997), and Butala v. Curators of Univ. of Missouri , 620 S.W.3d 89 (Mo. banc. 2021), for the proposition that Rule 74.01(b) permits a circuit court to "enter a judgment as to one or more but fewer than all of the claims or parties." Those cases easily are distinguishable, however, because they involved express determinations by the circuit courts pursuant to Rule 74.01(b) that, despite that the judgments were not entered as to all claims or parties, there was no just reason for delay on appeal. See Gibson , 952 S.W.2d at 244-45 ; Butala , 620 S.W.3d at 94.
Here, the record does not reveal, and SLPS does not direct us to, any express determination by the circuit court that there was no just reason for delay. Instead, SLPS can muster only that the judgment on the pleadings was "eligible" for that determination under Rule 74.01(b). Rule 74.01(b) makes clear: "In the absence of such determination, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties ...." See Wilson v. City of St. Louis , 600 S.W.3d 763, 771 (Mo. banc. 2020) ( certification of judgment under Rule 74.01(b)).
We have an independent duty to inquire as to our jurisdiction on appeal. Beery v. Chandler , 563 S.W.3d 847, 850 (Mo. App. E.D. 2018). Pursuant to that duty, we observe that, in the absence of a Rule 74.01(b) determination, an appealable judgment requires disposition of claims against all parties, including defendants not served. See State ex rel. Schweitzer v. Greene , 438 S.W.2d 229 (Mo. banc. 1969) ; Downey v. United Weatherproofing, Inc. , 241 S.W.2d 1007 (Mo. banc. 1951) ; Maurer v. Clark , 727 S.W.2d 210, 211 (Mo. App. E.D. 1987) ; C.G. Sewing v. Scottish Rite of Kansas City , 582 S.W.3d 138, 140 (Mo. App. W.D. 2019) ; but see Citizens Bank & Trust v. Mitchell , 652 S.W.2d 202 (Mo. App. W.D. 1983). This controlling caselaw dictates that the circuit court's May 22, 2020 judgment on the pleadings resolving all claims as to all parties except Mack was not an appealable judgment, even though J.W. never served Mack.5 The judgment did not become final and appealable until after J.W. voluntarily dismissed Mack as a defendant on December 10, 2020. J.W. timely appealed from that judgment.
This Court has jurisdiction to consider this appeal.
Given our determination that we have jurisdiction to consider this appeal, the question becomes whether appellant J.W. timely submitted an adequate record for our review....
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