State ex rel. Koster v. ConocoPhillips Co.

• Decision Date: 28 June 2016
• Docket Number: No. SC 95444,SC 95444
• Parties: State of Missouri ex rel. Attorney General Chris Koster and the Missouri Petroleum Storage Tank Insurance Fund Board of Directors, Respondents, v. ConocoPhillips Company and Phillips 66 Company, Respondents, and Cory Wagoner, Appellant.
• Court: Missouri Supreme Court

493 S.W.3d 397

State of Missouri ex rel. Attorney General Chris Koster and the Missouri Petroleum Storage Tank Insurance Fund Board of Directors, Respondents,

v. ConocoPhillips Company and Phillips 66 Company, Respondents,andCory Wagoner, Appellant.

No. SC 95444

Supreme Court of Missouri, en banc .

Opinion issued June 28, 2016

Rehearing Denied August 9, 2016

Wagoner was represented by Thomas W. Millington and Kathryn A. Millington of Millington, Glass & Love in Springfield, (417) 883–6566.

The fund's board of directors was represented by Solicitor General James R. Layton, Elliott J. Usher and Brian L. Allard of the attorney general's office in Jefferson City, (573) 751–3321.

The companies were represented by Virginia L. Fry and Ashley L. Norgard of Husch Blackwell LLP in Springfield, (417) 268–4000; and Glenn Burhans Jr. of Stearns Weaver Miller Weissler Alhadeff & Sitterson PA in Tallahassee, Florida, (850) 329–4850.

Paul C. Wilson

, Judge

The Board of Directors of the Missouri Petroleum Storage Tank Insurance Fund (the “Board”)¹ brought suit against ConocoPhillips Company and Phillips 66 Company (collectively, “Phillips”) to recover certain costs previously reimbursed by the Board from the Fund. The trial court ultimately entered a final judgment approving a settlement between the Board and Phillips and dismissed the case with prejudice. Prior to the entry of that final judgment, however, Cory Wagoner (a participant in and potential claimant against the Fund under section 319.138, RSMo 2000

) moved to intervene as a matter of right under Rule 52.12(a). The trial court entered an interlocutory order overruling Wagoner's motion. After the trial court entered final judgment, Wagoner appealed. This Court has jurisdiction over the appeal pursuant to article V, section 10, of the Missouri Constitution, and the judgment of the trial court is affirmed.

Facts

On April 23, 2013, the Board filed suit against Phillips alleging that Phillips improperly obtained reimbursement from the Fund. Wagoner moved to intervene as a matter of right and, with that motion, Wagoner tendered a motion to dismiss the Board's suit for the court's consideration should intervention be granted. On November 13, 2014, the trial court entered an interlocutory order overruling Wagoner's motion to intervene. Wagoner did not seek an immediate appeal from this interlocutory order. On December 11, 2014, the trial court entered a final judgment approving a settlement between the Board and Phillips and dismissing the case with prejudice. Wagoner timely appealed from that final judgment.

Phillips and the Board (collectively, the “Respondents”) argue that Wagoner's appeal should be dismissed because: (a) he is not a “party” who is “aggrieved” by the trial court's December 2014 final judgment as those terms are used in section 512.020² and (b) his notice of appeal fails to comply with Rule 81.08(a) because it wrongly identifies the final judgment (rather than the November 2014 interlocutory order) as the judgment from which Wagoner's appeal is taken.

I. Wagoner Properly Appealed from the Final Judgment

Before reaching the merits of Wagoner's appeal, this Court must first determine whether he is entitled to an appeal and whether he properly identified the judgment from which his appeal is taken. Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012)

. Respondents contend that Wagoner should have appealed the November 2014 interlocutory order overruling his motion to intervene, either at the time it was entered or following the entry of the final judgment in December 2014. Neither is correct.

“The right to appeal is purely statutory ... [and] where a statute does not give a right to appeal, no right exists.” Farinella v. Croft, 922 S.W.2d 755, 756 (Mo. banc 1996)

. Wagoner had no right to take an immediate appeal from the interlocutory order overruling his motion to intervene as a matter of right. There is no special statute granting a right to immediate appeal³ where a motion to intervene as a matter of right is overruled in an interlocutory order, and the general statute dealing with civil appeals grants no such right. Instead, it states:

Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any:

(1) Order granting a new trial;

(2) Order refusing to revoke, modify, or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction;

(3) Order granting or denying class action certification provided that:

(a) The court of appeals, in its discretion, permits such an appeal; and

(b) An appeal of such an order shall not stay proceedings in the court unless the judge or the court of appeals so orders;

(4) Interlocutory judgments in actions of partition which determine the rights of the parties; or

(5) Final judgment in the case or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case.

§ 512.020.

Subdivisions (1) through (4) of section 512.020 identify various interlocutory orders and judgments from which an immediate appeal may be taken, but none of those provisions applies to the order overruling Wagoner's motion to intervene as a matter of right. Accordingly, Respondents' assertion that Wagoner was entitled to an immediate appeal from that interlocutory order is incorrect. See Woods v. Juvenile Shoe Corp. of America, 361 S.W.2d 694, 695 (Mo.1962)

( “A separate appeal from the interlocutory order of dismissal ... would have been premature and subject to dismissal, because of its interlocutory character and because there were other issues in the case remaining undetermined.”).

This Court's decision in State ex rel. Reser v. Martin, 576 S.W.2d 289 (Mo. banc 1978)

, is not to the contrary. In Reser, the issue was whether a party whose motion to intervene as a matter of right is overruled may seek a writ in an appellate court to compel the trial court to grant such a motion. Reser holds that a writ was inappropriate under such circumstances because a proposed intervenor is entitled to appellate review of the denial of a motion to intervene under Rule 52.12(a). Id. at 290–91. But, given that the right to appeal is purely statutory and that nothing in section 512.020 (or any other statute) grants the right of immediate appeal to one whose motion to intervene as a matter of right is denied in an interlocutory order, Reser does not hold that a proposed intervenor has a right to an immediate appeal from an interlocutory order denying intervention. To the extent cases rely on Reser to hold or suggest that a proposed intervenor has such a right, those cases should no longer be followed.⁴

Because Wagoner has no statutory right to an immediate appeal of the interlocutory order overruling his motion to intervene as a matter of right, his only opportunity for appellate review of that decision is to appeal from the trial court's final judgment entered in December 2014. Respondents contend that, under section 512.020(5), Wagoner cannot appeal from the final judgment because: (a) nothing in the final judgment pertains to Wagoner and, therefore, he is not “aggrieved” by that judgment and (b) Wagoner's motion to intervene was overruled and, therefore, he is not a “party” entitled to appeal from the final judgment.

Respondents' first argument fails because, as defined by Rule 74.01, a final judgment is a “judgment adjudicating all the claims and the rights and liabilities of all the parties.” As a result, a final judgment necessarily incorporates all prior orders or judgments that adjudicated some—but fewer than all—of the claims and the rights and liabilities of all the parties. This is so regardless of whether such incorporation is addressed explicitly (or implicitly) in the final judgment itself.⁵ Because the trial court's November 2014 interlocutory order overruling Wagoner's motion to intervene as a matter of right was incorporated into the December 2014 final judgment, Wagoner was “aggrieved” by the final judgment just as though it expressly incorporated the November 2014 order or expressly reconsidered Wagoner's motion to intervene and overruled it.⁶ See Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50, 57 (Mo. banc 2005)

(a party seeking appeal “is aggrieved when the judgment operates prejudicially and directly on his personal or property rights or interests and such effect is immediate and not merely a possible remote consequence”) (quotations omitted). Accordingly, Wagoner has a right to appeal from the final judgment under section 512.020(5). See

Aherron v. St. John's Mercy Medical Center, 713 S.W.2d 498, 500 n. 1 (Mo. banc 1986) (“It should be noted, however, that while the Hospital was aggrieved by the judgment dismissing its cross-claim for indemnity, it is not authorized by § 512.020 to appeal from this judgment, but only from the final judgment of the trial court, which disposes of all parties and all issues.”) (quotations omitted).

Respondents' second argument also fails. Wagoner is a “party” to the final judgment because, as explained above, the interlocutory order overruling his motion to intervene was incorporated into that final judgment. If Wagoner was a “party” to the interlocutory order overruling his motion to intervene as a matter of right, then he must be a “party” to the final judgment incorporating it. Accordingly, Wagoner is a “party” to this suit for purposes of section 512.020(5). Cf. Aherron, 713 S.W.2d at 500

(“[Section 512.020] does not require that the aggrieved party be a ‘party’ in the sense that he either has or is subject to a pending claim,...