Sanford v. CenturyTel of Mo., LLC, SC 95465

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Laura Denvir Stith, Judge
• Citation: 490 S.W.3d 717
• Parties: Kyle Sanford, Respondent, v. CenturyTel of Missouri, LLC d/b/a CenturyLink, Appellant.
• Docket Number: No. SC 95465,SC 95465
• Decision Date: 28 June 2016

490 S.W.3d 717

Kyle Sanford, Respondent,
v.
CenturyTel of Missouri, LLC d/b/a CenturyLink, Appellant.

No. SC 95465

Supreme Court of Missouri, en banc .

Opinion issued June 28, 2016

490 S.W.3d 718

CenturyLink was represented by Steve J. Perfrement of Bryan Cave LLP in Denver, Colorado, (303) 861–7000

Mark B. Leadlove and Jonathan B. Potts of Bryan Cave LLP in St. Louis, (314) 259–2000

Stephen P. Clark of Runnymede Law Group in St. Louis, (314) 332–2990.

Sanford was represented by Kenneth B. McClain and Jonathan M. Soper of Humphrey, Farrington & McClain PC in Independence, (816) 836–5050.

Laura Denvir Stith, Judge

CenturyTel of Missouri LLC (“CenturyLink”) appeals the trial court's order sustaining Kyle Sanford's motion for partial summary judgment and overruling CenturyLink's motion to compel arbitration. Section 435.440¹ makes orders denying arbitration immediately appealable. Under Rule 81.04(a), any such appeal must be filed “not later than 10 days after the judgment or order appealed from becomes final.” The order denying arbitration became “final” under Rule 81.04(a) immediately upon entry. CenturyLink was incorrect in believing that, under Rule 81.05(a)(1), the 10–day period to appeal did not begin to run until 30 days after the trial court entered its order. The purpose of Rule 81.05(a)(1) is to delay the effective date of a judgment for 30 days so that the trial court has continuing jurisdiction to modify or amend its ruling before it becomes final and appealable. An interlocutory order, however, does not become final 30 days after it is entered. It remains interlocutory throughout the case pursuant to Rule 74.01(b). The fact that a statute makes such an interlocutory order appealable despite its interlocutory nature does not make Rule 81.05(a)(1) applicable to it. It is not a judgment or dispositive order. For these reasons, an interlocutory order denying arbitration is immediately appealable upon entry under section 435.440. To the extent that Motormax Fin. Services Corp. v. Knight, 474 S.W.3d 164 (Mo.App.2015), holds otherwise, it is overruled. Because CenturyLink did not timely file its appeal within 10 days of entry of the order denying arbitration, its appeal is dismissed.

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

On January 27, 2012, Mr. Sanford purchased certain internet and phone services from CenturyLink. CenturyLink argues that Mr. Sanford agreed to its “Internet Services Agreement,” which contains a mandatory arbitration clause for “any and all claims, controversies or disputes of any kind.” On December 3, 2012, Mr. Sanford filed a class action petition in the trial court against CenturyLink, alleging that CenturyLink violated the Missouri Merchandising Practices Act, section 407.020, by charging customers a “Universal Service Fund Surcharge” on its high-speed internet services.

CenturyLink responded to Mr. Sanford's petition by moving to dismiss or stay trial court proceedings and to compel arbitration under the parties' agreement. The trial court preliminarily overruled CenturyLink's motion on July 29, 2013, and ordered the parties to conduct discovery solely on the issue of arbitrability. On February 21, 2014, after limited discovery, Mr. Sanford moved for partial summary judgment limited to the issues of whether: (1) there was sufficient consideration to form a contract between CenturyLink and Mr. Sanford, and (2) the arbitration clause in the agreement applied to this type of dispute. Mr. Sanford argued that his

490 S.W.3d 719

claims against CenturyLink are outside the scope of the arbitration clause and, therefore, CenturyLink's motion to compel arbitration must be denied.

Following a hearing, the trial court, on July 10, 2014, entered an order denying arbitration: “After hearing and review of the pleadings the Court finds there is no genuine issue of material fact on the issue of consideration and the issue of arbitrability and the Movant is entitled to Partial Summary Judgment as a matter of law. Partial Summary Judgment is entered in favor of the Plaintiff as prayed.” Confusingly, four days later, on July 14, 2014, the trial court entered an additional order: “Argument heard on Plaintiffs Motion for Partial Summary Judgment. Motion taken under advisement.” No later orders have been entered on the issue of arbitrability.

On August 18, 2014, thirty-nine days after the trial court entered its July 10 order, CenturyLink filed a notice of appeal of that order under section 435.440. After an opinion by the court of appeals, this Court granted transfer. MO. CONST. art. V, § 10.

II. CENTURYLINK'S NOTICE OF APPEAL WAS NOT TIMELY FILED

Before reaching the merits of CenturyLink's appeal, this Court must first determine whether the appeal was timely filed under the appropriate statutory scheme and this Court's rules. See, e.g., Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012), and Greenbriar Hills Country Club v. Dir. of Rev., 47 S.W.3d 346, 351 (Mo. banc 2001). Under section 512.020, “[a]ny party to a suit aggrieved by any judgment of any trial court ... may take his or her appeal to a court having appellate jurisdiction from any ... [f]inal judgment in the case....” “An appealable judgment resolves all issues in a case, leaving nothing for future determination.” Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). Generally, “[a] final judgment is a prerequisite to appellate review.” Ndegwa, 371 S.W.3d at 801. “If the trial court's judgments are not final, this Court lacks jurisdiction and the appeal[ ] must be dismissed.” Gibson, 952 S.W.2d 239.

Here, the trial court's July 10, 2014 order did not resolve all issues in the case. Rather, the order sustaining Mr. Sanford's partial summary judgment motion ruled only on the issues of consideration and arbitrability. The order, therefore, was not a final judgment. Orders denying arbitration, however, fit within a limited exception to the general rule disallowing interlocutory appeals. Section 435.440.1(1), specifically provides that “[a]n appeal [may] be taken from ... [a]n order denying an application to compel arbitration....” The trial court's July 10, 2014 order denied arbitration by sustaining Mr. Sanford's motion for partial summary judgment that requested, in part, that CenturyLink's motion to compel arbitration be overruled. That interlocutory order, therefore, became appealable under section 435.440.1(1).

The key question for purposes of this appeal is what deadline governs when such an interlocutory statutory appeal must be filed. Section 435.440.2 provides that an appeal under section 435.440.1 “shall be taken in the manner and to the same extent as from orders or judgments in a civil action.” Under Rule 81.04(a), “No such appeal shall be effective unless the notice of appeal shall be filed not later than 10 days after the judgment or order appealed from becomes final.” (Emphasis added). But, as just noted, an interlocutory order is, by definition, not “final” because Rule 74.01(b) provides that it remains modifiable and, therefore, “[a]t any

490 S.W.3d 720

time before final judgment a court may open, amend, reverse or vacate an interlocutory order.” Nicholson v. Surrey Vacation Resorts, Inc., 463 S.W.3d 358, 365 (Mo.App.2015) (emphasis added) (internal quotation marks and citation omitted).²

Because the July 10 order was immediately appealable upon entry, CenturyLink had 10 days from the date of entry to file a notice of appeal under Rule 81.04(a). CenturyLink did not file a notice of appeal until...