River Salvage Inc. v. King

• Decision Date: 15 February 2000
• Citation: 11 S.W.3d 877
• Parties: (Mo.App W.D. 2000) . River Salvage Inc., d/b/a Treasures of the Steam Ship Arabia, City of Kansas City, et al., Respondent, v. Ja Chi King, et al., Appellant. WD56483 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

11 S.W.3d 877 (Mo.App W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

River Salvage Inc., d/b/a Treasures of the Steam Ship Arabia, City of Kansas City, et al., Respondent, v. Ja Chi King, et al., Appellant.

WD56483

Missouri Court of Appeals Western District

Handdown Date: 02/15/2000

Appeal From: Circuit Court of Jackson County, Hon. Anthony P. Nugent, Jr.

Counsel for Appellant: Harley K. Desselle

Counsel for Respondent: Daniel G. Jackson, III

Opinion Summary:

Ja Chi King appeals the trial court "judgment" identical to a prior "order."

DISMISSED.

Division Three holds:

The appeal is dismissed as being untimely filed because King filed his notice of appeal more than 10 days after an "order" entered by the trial court became final. Rule 74.01(a) requires that a final judgment be denominated "judgment" if an appeal is to be taken from it. However, prior to 1995, Rule 74.01(a) did not contain a denomination requirement and an appeal could be taken from an "order" entered by the trial court. King made no attempts to question the validity of the "order" for a period of two years. Therefore, he is estopped from challenging the validity of that order now. The original order entered by the trial court was conclusive as to the parties' rights, and becauseKing failed to file a timely notice of appeal after that order became final, this Court lacks jurisdiction to hear the appeal.

Opinion Author: Joseph M. Ellis, Judge

Opinion Vote: DISMISSED. Smart, P.J., and Smith, J., concur.

Opinion:

In August 1992, River Salvage, Inc., d/b/a Treasures of the Steamship Arabia (River Salvage) filed suit against Ja Chi King (King), U-Mart International, Inc. (U-Mart), Cheung's Restaurant, Inc., River Market Venture I, L.P., and the Planned Industrial Expansion Authority of Kansas City, Missouri to stop the infiltration of water into the Steamboat Arabia Museum (Museum) from the grocery and restaurant located above the Museum.¹ The parties entered into a settlement agreement resolving the lawsuit on January 15, 1993. However, the repair provisions of the agreement were never completely performed. As a result, River Salvage filed a second action for damages and contempt against King, River Market Venture I, L.P., River Market Venture, DLS Real Estate, U-Mart, Chung's Restaurant and the City of Kansas City, Missouri, in January 1994 because water continued to leak into the Museum. In this second action, King, U-Mart, and Cheung's Restaurant filed cross claims against the other defendants for indemnity and breach of contract. All of the Defendants settled with River Salvage but the cross claims proceeded to trial on June 27, 1995. On December 29, 1995, the trial court entered its ruling in a document styled "Findings of Fact, Conclusions of Law and Order." (hereinafter original order).

King filed a "Motion For Reconsideration Or, In The Alternative, Motion For New Trial Or, Judgment Notwithstanding The Verdict" on January 16, 1996. Because King filed a motion for a new trial, the original order dated December 29, 1995, did not become final until April 16, 1996, 90 days after the motion for a new trial was filed.² King was required to file his notice of appeal by April 26, 1996, 10 days after the original order became final.³

King did not file a notice of appeal until May 9, 1996. Accordingly, this Court dismissed that appeal on June 3, 1996, as being untimely filed.⁴ In the meantime, King filed a motion on May 31, 1996, asking for leave to file a late notice of appeal. We denied that motion on June 10, 1996.⁵ King also filed a motion for leave to appeal out of time with the Circuit Court and that motion was denied on July 13, 1996.

On September 22, 1998, at the behest of King, the original trial court judge entered a new ruling in the case, identical in all respects to the original order, but this time denominated "Judgment." The appellant brings this appeal from that "Judgment."

Respondents contend we lack jurisdiction to decide this appeal, alleging that it was not timely filed because it was the original order that was appealable, not the revised "Judgment." Although not articulated well, Respondents are more accurately arguing that King's appeal should be dismissed because he is estopped from attacking the validity of the original order.

It is a jurisdictional requirement that a notice of appeal be timely filed; if the notice of appeal is untimely, we are without jurisdiction to hear the appeal and we must dismiss it. Id. at 449; Griffin v. Griffin, 982 S.W.2d 788, 788 (Mo. App. E.D. 1998). A notice of appeal is ineffective unless it is filed within 10 days after the judgment or order appealed becomes final. Section 512.050;⁶ Rule 81.04(a); Soskin v. Wolfson, 999 S.W.2d 261, 263 (Mo. App. E.D. 1999). A judgment becomes final 30 days after the judgment is entered unless a timely motion for a new trial is filed. Rule 81.05(a); Tompkins v. Baker, 997 S.W.2d 84, 88 (Mo. App. W.D. 1999). In the event a motion for a new trial is filed, the judgment becomes final 90 days after the motion is filed, or if the motion is ruled on before the 90 days expire, the judgment becomes final either on the date the court disposes of the motion or 30 days after the judgment was entered, whichever occurs later. Rule 81.05(a); Tompkins v. Baker, 997 S.W. 2d at 88.

Prior to 1995, Rule 74.01(a) provided that a "'[j]udgment' as used in these rules includes a decree and any order from which an appeal lies." Cases interpreting and applying this rule have held that a decree or order is a "judgment" in accordance with the Rule if it disposes of all the claims and parties involved, leaving nothing for future determination. Peterson v. Medlock, 884 S.W.2d 679, 683 (Mo. App. S.D. 1994); Thomas v. Nicks, 867 S.W.2d 676, 677 (Mo. App. E.D. 1993); Pius v. Boyd, 857 S.W.2d 238, 242 (Mo. App. W.D. 1993); Parker v. Parker, 857 S.W.2d 873, 874 n. 2 (Mo. App. S.D. 1993); Jefferson v. Bick, 840 S.W.2d 890, 891 (Mo. App. E.D. 1992); see also Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995)(The Supreme Court was not interpreting Rule 74.01 as it existed prior to 1995, however, it defined "judgment" by stating, "[a]n appealable judgment disposes of all issues in a case, leaving nothing for future determination.").

Effective January 1, 1995, Rule 74.01(a) was amended to read as follows:

"Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" is filed. The judgment may be a separate document or included on the docket sheet of the case.

Rule 74.01(a)(emphasis added).

On October 19, 1997, the Supreme Court handed down City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo. banc 1997). In Hughes, the Supreme Court addressed the impact of the revision of Rule 74.01(a).⁷ The Court said, "[u]nder old Rule 74.01(a), it was unclear when a pronouncement or judgment was a final judgment for purposes of appeal. The new rule clarifies that ambiguity by imposing an express requirement that the document or docket notation be 'denominated 'judgment'.'" Id. at 853. The denomination requirement created a "bright line" test for determining when a writing is a judgment. Id. The Court further stated the purpose behind the rule change was to help clarify the difference between final and appealable orders and rulings made by the trial court as distinguished from rulings on issues over which the trial court intends to retain jurisdiction. Id. The Supreme Court declared that in order to comply with revised Rule 74.01(a), it must be clear from the writing that the trial court is calling or designating the document or docket sheet entry a "judgment." Id. at 853. After the revision of Rule 74.01(a) and the decision in Hughes, a document entered by a trial court did not constitute a "judgment" unless it was (1) a writing, (2) signed by a judge, (3) denominated "judgment", and (4) filed. Sturgeon v. Sturgeon, 984 S.W.2d 859, 860 (Mo. App. E.D. 1998).

As noted previously, the original order entered in this case was entered on December 29, 1995, and it became final on April 16, 1996. A timely notice of appeal should have been filed on or before April 26, 1996, however, King did not file a notice of appeal until May 9, 1996. We dismissed that appeal as being untimely long before any case law existed holding that an "order" did not constitute a "judgment" under revised Rule 74.01(a).⁸ King made no claim at that time that the original order was not an appealable judgment pursuant to Rule 74.01(a). Indeed, he effectively acknowledged that he believed it was an appealable judgment by filing a motion for leave to file his appeal out of time in this court, which we denied on June 10, 1996, and by subsequently filing a motion for leave to appeal out of time with the trial court, which was denied on July 13, 1996.

Moreover, from the record, it appears that King took no action between July 1996 and March 1998 to try to utilize the change in Rule 74.01 to obtain a revised "judgment" so as to enable him to bring this appeal, and it was in fact September 1998 before the trial judge signed the revised "judgment." The issue, then, is whether under these circumstances, King can appeal from the revised "judgment" or if his rights were conclusively determined by the original order, thereby barring this appeal.

On two occasions the Missouri Supreme Court has held that a facially invalid judgment under Rule 74.01(a) is conclusive as to the rights of the parties notwithstanding its facial invalidity. In State ex rel. York v. Daugherty, 969 S.W.2d 223 (Mo. banc 1998), the Supreme Court was presented with a situation where a Commissioner entered a judgment on June 10, 1996, in a dissolution of marriage case. Id. at 224. Two years later, the Missouri Supreme Court decided Slay v. Slay, 965...