State ex rel. Missouri Div. of Transp. v. Sure-Way Transp., Inc.

• Decision Date: 30 August 1994
• Docket Number: SURE-WAY,No. WD,WD
• Citation: 884 S.W.2d 349
• Parties: STATE ex rel. MISSOURI DIVISION OF TRANSPORTATION, Appellant, v.TRANSPORTATION, INC., Respondent. 48622.
• Court: Missouri Court of Appeals

Page 349

884 S.W.2d 349

STATE ex rel. MISSOURI DIVISION OF TRANSPORTATION, Appellant, v. SURE-WAY TRANSPORTATION, INC., Respondent.

No. WD 48622.

Missouri Court of Appeals,

Western District.

Aug. 30, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 4, 1994.

David E. Woodside, Gen. Counsel, Mo. Div. of Transportation, Jefferson City, for appellant.

James C. Swearengen, Sondra B. Morgan, Jefferson City, for respondent.

Before KENNEDY, P.J., and BRECKENRIDGE and SPINDEN, JJ.

SPINDEN, Judge.

The Missouri Division of Transportation seeks penalties against Sure-Way Transportation, Inc., for violations of § 387.100, RSMo 1986. The Division's administrative law judge determined that the Division had established cause to seek penalties against Sure-Way, ¹ and the Division filed a suit for penalties with the Boone County Circuit Court pursuant to § 390.156, RSMo 1986. ²

The Division filed a motion for partial summary judgment and a motion for complete summary judgment with the trial court contending that the ultimate issue of whether Sure-Way violated § 387.100 was conclusively determined against Sure-Way by the Division's administrative law judge; therefore, Sure-Way was collaterally estopped from relitigating the issue in the penalty actions. The trial court denied the Division's summary judgment motions, and the case proceeded to trial.

Following the entry of judgments in favor of Sure-Way in the penalty actions, the Division appeals. It asserts that the trial court erred in denying its motions for partial summary judgment and for complete summary judgment. It also contends that the trial court erred in applying the law and taxing costs against it in the final judgment.

The Division's first two points on appeal provide:

I. The Circuit Court orders dated 27 October 1992 which overruled the state's motion for partial summary judgment dated 1 October 1992 erroneously applied the law, because there was no genuine issue of material fact as to whether Sure-Way committed violations of § 387.100, RSMo 1986, and the state was entitled to a partial summary judgment on that issue as a matter of law, in that the ultimate issue of whether Sure-Way violated § 387.100, was conclusively determined against Sure-Way by MoDOT's administrative decisions, which found that Sure-Way had charged unlawful rates in violation of § 387.100, and which collaterally estopped Sure-Way from relitigating that issue in the subsequent penalty suits.

II. The Circuit Court orders dated 16 December 1992 which overruled the state's motion for complete summary judgment dated 23 November 1992, and the final judgments dated 23 September 1993, erroneously applied the law, because there was no remaining genuine issue of material fact, and the state was entitled to a complete judgment as a matter of law, in that:

(A) The ultimate issue of whether Sure-Way violated § 387.100, RSMo 1986, was conclusively determined against Sure-Way by MoDOT's administrative decisions, which found that Sure-Way had charged unlawful rates in violation of § 387.100, and which collaterally estopped Sure-Way from relitigating that issue in the subsequent penalty suits; and

(B) When the state moved for complete summary judgment, there was no remaining genuine issue of material fact as to what the amount of the civil penalty should be, because the state's second amended petition limited its prayer for relief to seek only the minimum civil penalty amount prescribed by § 390.176, RSMo 1986, and the state was entitled to a judgment for no less and no more than that minimum statutory penalty.

Denial of a motion for summary judgment is not subject to appellate review, even when an appeal is taken from a final judgment and not from the denial of a motion for summary judgment. Kabir v. Missouri Department of Social Services, 845 S.W.2d 102, 103 (Mo.App.1993); Chism v. Steffens, 797 S.W.2d 553, 557 (Mo.App.1990); Farmers and Merchants Insurance Company v. Cologna, 736 S.W.2d 559, 569 (Mo.App.1987).

This court recognizes, as the Division points out, that this court's Eastern Division held in Sharpton v. Lofton, 721 S.W.2d 770 (Mo.App.1986), that a denial of a summary judgment motion is reviewable after a final judgment has been rendered in a case. The court stated:

Defendants Lofton contend that the order overruling the request for partial summary judgment is not appealable. That is the usual rule. Parker v. Wallace, 431 S.W.2d 136, 137 (Mo.1968) and Guthrie v. Reliance Construction Company, Inc., 612 S.W.2d 366, 368 (Mo.App.198 ). The reason for this general rule is that only final judgments disposing of all parties and all issues are appealable. Section 512.020 RSMo 1978. However, in the present case, plaintiffs preserved the claim of error in their motion for new trial and bring the issue after trial and after final judgment. We discern no reason why the denial of a motion for summary judgment cannot be preserved and support a claim of error of law after final judgment. If plaintiffs were entitled to partial summary judgment on undisputed facts and as a matter of law when their motion was overruled, then they are entitled to preserve the error. Otherwise, a party who fails to oppose a motion for summary judgment receives the benefit of a ruling which is wrong as a matter of law when entered.

Id. at 774. The Sharpton court, however, cites no authority for its rule; hence, we feel constrained to follow the majority view of the other cases.

The Division also relies on Wilson v. Hungate, 434 S.W.2d 580 (Mo.1968), in support of its contention that a denial of a summary judgment motion after a final judgment is reviewable. In Wilson, the Supreme Court stated:

[A]lmost without exception, it has been held that "an order denying a motion for summary judgment is not appealable, on the ground that such an order is merely interlocutory and not final for purposes of appeal." Annotations 17 L.Ed 886, 887; 15 A.L.R.3d 899, 903; 4 Am.Jur.2d (Appeal and Error) § 104, p. 622. Strangely enough there are no Missouri cases precisely in point although one case has correctly noted the general rule. Barnett v. Barnett, Mo.App., 413 S.W.2d 1, 2. However, the rationale of the rule of an appeal from a "final judgment " (§ 512.020, RSMo 1959, V.A.M.S.) only has always been a part of this court's appellate jurisprudence. The rule is one of policy, against piecemeal appeals. In a sense, too, an order denying a motion for summary judgment is "interlocutory," that is as opposed to "definitive" or "final." 47 C.J.S. Interlocutory p. 85. Since, in the circumstances of this case, the order overruling the motion for summary judgment was not a final appealable judgment the appeal is dismissed.

Id. at 583 (emphasis in the original). The Division urges us to conclude from Wilson that the Supreme Court was drawing a distinction between an interlocutory order denying a motion for summary judgment and an appeal from a denial after a final judgment has been entered.

In Wilson, the Supreme Court was not faced with an appeal from a denial of a motion for summary judgment after a final judgment; hence, it is not helpful in resolving this case. In Parker v. Wallace, 431 S.W.2d 136 (1968), however, the Supreme Court did consider an appeal from a denial of a motion for summary judgment after a final judgment. In that case, the court concluded:

The matter of the propriety of the court's action in overruling a motion for summary judgment is not an appealable order. ... Upon that ruling, the issues raised by the pleadings are still in the case, and it is upon those issues, when decided and if timely and properly presented, that an appeal lies.

Id. at 137-138 (emphasis in the original). We are bound to follow the last controlling decision of the Supreme Court of Missouri. MO. CONST. art. V, § 2 (1945); Farmers & Merchants Insurance Co., 736 S.W.2d at 570. We conclude, therefore, that we should not review the Division's first point relied on or its second point to the extent that it is contending that the trial court erred in denying the motions for summary judgment.

The Division's second point relied on, however, also appeals from the final judgment and asserts that the trial court erred in applying the law. It argues that the Division's administrative law judge's decision that Sure-Way had violated § 387.100 was conclusive and that Sure-Way is collaterally estopped from relitigating that issue in the penalty action.

The only evidence offered by the Division at trial was the records and decisions of the Division's administrative law judge, the Cole County review of those decisions, the decision of this court in Sure-Way I, and the denial of transfer of Sure-Way I to the Missouri Supreme Court. Neither party requested that the circuit court issue findings of fact and conclusions of law; therefore, we must consider all factual issues to have been found in accordance with the result reached and sustain the judgment of the trial court if the result is correct on any tenable basis. Orthotic and Prosthetic Lab, Inc. v. Pott, 851 S.W.2d 633, 639 (Mo.App.1993).

We must affirm the judgment unless it is not supported by substantial evidence, or it is against the evidence's weight, or unless the trial court erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The Division asserts the latter.

It argues that the final decisions of its administrative law judges are conclusive under §...