State v. Carter

• Decision Date: 05 September 2006
• Docket Number: No. WD 65463.,WD 65463.
• Citation: 202 S.W.3d 700
• Parties: STATE OF MISSOURI, Respondent, v. JAMES CARTER, Appellant.
• Court: Missouri Court of Appeals

202 S.W.3d 700

STATE OF MISSOURI, Respondent, v.JAMES CARTER, Appellant.

No. WD 65463.

Missouri Court of Appeals, Western District.

September 5, 2006

Before Joseph M. Ellis, Presiding Judge, Robert Ulrich, Judge and Ronald R. Holliger, Judge.

JOSEPH M. ELLIS, Judge.

James E. Carter, who appears pro se, appeals a judgment rendered by the Associate Division of the Circuit Court of Cass County in favor of the State of Missouri on the State's petition seeking recovery of delinquent Missouri individual income taxes owed by Carter for the tax years 1990, 1991, 1992, 1993, and 1994, as well as interest thereon.

Viewed in the light most favorable to the State, the evidence at trial established the following.Carter failed to file an income tax return with, or pay individual income tax to, the State of Missouri for the tax years 1990, 1991, 1992, 1993, and 1994.On July 8, 1998, the Missouri Department of Revenue("DOR") issued to Carter five "Notices of Adjustment for Individual Income Taxes" in the following amounts for the following years: 1990-$802.65; 1991-$3,803.88; 1992-$1,609.75; 1993-$2,104.34; and 1994-$309.42.DOR also issued Carter a "Notice of Deficiency" for those unpaid income taxes on September 8, 1998.These notices were all received by Carter, who did not seek administrative review of DOR's actions or file any administrative action challenging the Notices of Adjustment or the Notice of Deficiency.

On April 26, 2004, the Prosecuting Attorney of Cass County filed, on behalf of the State of Missouri, a "Petition for Delinquent Missouri Individual Income Tax" against Carter in the Associate Division of the Circuit Court of Cass County.The petition sought the court's entry of a judgment against Carter for the delinquent Missouri individual income taxes Carter owed the State, plus interest.Associate Circuit Judge William B. Collins presided over the case, which was assigned case number CV 304-733AC.

On June 14, 2004, Judge Collins continued the matter to give Carter "an opportunity to talk to an attorney about [his] situation," but Carter never retained counsel and represented himself.On July 6, 2004, Carter filed a "Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and for Failure to State a Cause of Action" with a supporting memorandum.On August 12, 2004, Carter filed a supplemental memorandum in support of his July 6, 2004 motion to dismiss for failure to state a claim, which Judge Collins denied by docket entry on August 30, 2004.On September 13, 2004, Carter filed his Answer to the State's petition, which also included an affirmative defense and a counterclaim against the State.A bench trial was held on September 23, 2004, during which the State adduced evidence that Carter owed the State of Missouri a total of $ 11,078.02 in back taxes and interest.¹Carter adduced no evidence of his own and called no witnesses, although he did cross-examine the State's sole witness, a records custodian and office manager for DOR.The same day, the court entered a judgment in favor of the State in the amount of $11,078.02 and found in favor of the State on Carter's counterclaim and affirmative defense inasmuch as he adduced no evidence to support them.

On October 4, 2004, Carter apparently filed what Judge Collins' docket sheets refer to as a "Motion for Correction of the Docket" and an "Application for a Trial De Novo."²

The same day (October 4, 2004), Judge Collins certified the cause for assignment to another Cass County judge, evidently in response to Carter's "Application for a Trial De Novo."On October 13, 2004, the cause was received for assignment by Judge Joseph P. Dandurand, the Presiding Judge of the 17th Judicial Circuit, which includes Cass County.At this time, the case was given case number CV 304-733ACX.On October 14, 2004, Judge Dandurand assigned the case to Cass County Associate Circuit JudgeThomas M. Campbell, who subsequently issued a Notice of Assignment to the parties on October 18, 2004.On October 21, 2004, Carter filed, in case number CV 304-733ACX, a "Motion for New Trial and Second Motion to Dismiss for Failure to State a Cause of Action."

On November 15, 2004, Judge Campbell recused himself from any further proceedings due to the fact that he had lived next door to Carter for some twelve years and was personally acquainted with him, and certified the cause for reassignment to a different Cass County judge.On November 22, 2004, Judge Dandurand reassigned the case to himself.The following day, the State filed its response to Carter's "Application for a Trial De Novo," which is not contained in the record before us.After a hearing on January 10, 2005, Judge Dandurand made a docket entry stating that Carter's "application for trial de novo is denied for lack of jurisdiction."Although we have neither Carter's application nor the State's response before us, the transcript of this hearing reveals that Carter's "Application for a Trial De Novo" was based on his claim that section 512.180, RSMoCum. Supp. 2004, afforded him the statutory right to a trial de novo before another Cass County judge.During the hearing, Judge Dandurand explained that "[a] trial de novo is not recognizable in this case in the circuit court."Judge Dandurand also refused Carter's invitation to address the merits or otherwise rule on his "Motion for New Trial and Second Motion to Dismiss for Failure to State a Cause of Action," which Carter had filed on October 21, 2004.

On February 7, 2005, Carter filed, in case number CV 304-733ACX, a "Motion for New Trial and/or Third Motion to Dismiss for Failure to State a Cause of Action."³The same day, he filed his notice of appeal with the circuit clerk's office.According to this notice, Carter claimed he was appealing from: (1) Judge Collins' August 30, 2004 docket entry denying Carter's first motion to dismiss; (2) Judge Collins' adverse judgment of September 23, 2004; (3) Judge Dandurand's alleged denial of Carter's second motion to dismiss during the hearing on January 10, 2005;⁴(4) Judge Dandurand's docket entry of January 10, 2005 stating that Carter's October 4, 2004"application for trial de novo is denied for lack of jurisdiction"; and (5)"Other issues including any adverse ruling on Motions filed with the Cass Countycourt on February 7, 2005."⁵

On February 7, 2006, the State filed a motion seeking the dismissal of Carter's appeal, arguing that this court lacks jurisdiction to decide the appeal on its merits because Carter's notice of appeal was filed late and Carter also failed to request or obtain this court's special order permitting him to file a late notice of appeal pursuant to Rule 81.07(a).On March 3, 2006, Carter filed his response to the State's motion to dismiss his appeal.We took the State's motion with the case.

In his brief, Carter makes three main arguments: (1) that the trial court improperly denied his July 6, 2004 motion to dismiss for failure to state a claim; (2) that the introduction of certain records at trial concerning his federal tax liability was improper; and (3) that because he is questioning DOR's evidence, not collaterally attacking his tax liability, he did not have to follow the administrative review process to challenge DOR's actions.

At the outset, however, we must address the State's Motion to Dismiss the Appeal, which was taken with the case.Initially, we note that Carter's February 7, 2005 notice of appeal was wholly ineffective as a vehicle to attempt to appeal anything but the judgment entered by Judge Collins on September 23, 2004.This is because none of the other four judicial actions listed in the notice of appeal were ever denominated in writing as a "judgment," as required by Rule 74.01(a)andCity of St. Louis v. Hughes,950 S.W.2d 850, 853(Mo. banc 1997).

Therefore, we focus our attention on the judgment rendered by Judge Collins on September 23, 2004."Rule 81.04 is the rule of civil procedure which establishes when and how an appeal must be taken[.]"In re Estate of Forhan,149 S.W.3d 537, 541(Mo. App. S.D.2004).Rule 81.04(a) states:

When an appeal is permitted by law from a trial court, a party may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal.No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.

Therefore, in determining whether Carter's February 7, 2005 notice of appeal from Judge Collins' September 23, 2004 judgment was timely filed, we must first ascertain when that judgment became final.Rule 78.04 provides, in relevant part, that "[a]ny motion for new trial and any motion to amend the judgment or opinion shall be filed not later than thirty days after the entry of judgment."Rule 81.05(a) sets forth specific rules "[f]or the purpose of ascertaining the time within which an appeal may be taken."In particular, "[a] judgment becomes final at the expiration of thirty days after its entry if no timely authorized after-trial motion is filed."Rule 81.05(a)(1).If, however,

a party timely files an authorized after-trial motion, the judgment becomes final at the earlier of the following: (A) Ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled; or (B) If all motions have been ruled, then the date of ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later.

Rule 81.05(a)(2)(original paragraph style omitted).

"In determining whether a motion is an authorized after-trial motion, Missouri courts have looked not to the nomenclature employed by the parties, but to the actual relief requested in the motion."Berger v. Cameron Mut. Ins. Co.,173 S.W.3d 639, 641(Mo. banc 2005).In Taylor v. United Parcel Service, Inc.,854 S.W.2d 390, 392(Mo. banc 1993), the court held that a motion for a new...