Wilson v. Mercantile Bank of Springfield

Decision Date29 June 1995
Docket NumberNo. 19416,19416
Citation904 S.W.2d 44
CourtMissouri Court of Appeals
PartiesHerman WILSON, Plaintiff-Appellant, v. MERCANTILE BANK OF SPRINGFIELD and The Aetna Casualty & Surety Company, Defendants-Respondents.

James S. Formby, Oak Grove, Michael W. Walker, Kansas City, for plaintiff-appellant.

Glenn A. Burkart, Mann, Walter, Burkart, Weathers & Walter, Springfield, Clyde G. Meise, Meise, Coen, Hutchinson & Rumley, Kansas City, for defendants-respondents.

SHRUM, Chief Judge.

Plaintiff Herman Wilson appeals from a judgment dismissing his second amended petition against Mercantile Bank of Springfield and The Aetna Casualty & Surety Company.

We must decide two questions: (1) Should the appeal be dismissed as to Aetna because Aetna was not named in the notice of appeal? (2) What is the status of the trial court's 1989 dismissal of Wilson's first amended petition? Earlier, this court held the 1989 dismissal, which was involuntary, was not an appealable order because of noncompliance with Rule 74.01(b). 1

We have concluded that Aetna is a party to this appeal and that the 1989 order was vacated when, in December 1992, the trial court granted Wilson's motion for leave to file a second amended petition, which earlier had been "filed without leave of Court," and that petition then was filed.

We reverse and remand.

FACTS

Relevant facts are not in dispute. Herman Wilson initiated the action by filing his petition in 1984. Clyde Murphy later joined the suit as a plaintiff, and on March 20, 1987, Wilson and Murphy 2 filed a first amended petition, which contained 12 counts, each of which is summarized in Wilson, 791 S.W.2d at 498-99. Defendants 3 filed separate motions to dismiss the respective counts filed against them on the ground that each count failed to state a claim upon which relief could be granted. Mercantile additionally claimed that each count against it was barred by the applicable statute of limitations.

The motions to dismiss were pending on January 23, 1989, when Mercantile filed a written suggestion of the death of Murphy, stating he died January 17, 1989. On March 16, 1989, Circuit Judge Thomas K. McGuire, Jr. sustained Defendants' motions to dismiss. Wilson appealed from the order of dismissal.

We dismissed Wilson's appeal because the March 16, 1989, order did not dispose of all the parties and all the issues, specifically Murphy and his claims, and did not satisfy the exception in Rule 74.01(b). Wilson, 791 S.W.2d at 500-01.

Following our dismissal of the appeal, the action was assigned to Circuit Judge J. Miles Sweeney. In July 1990, Wilson moved to substitute Murphy's wife as a plaintiff, stating Murphy had no estate, and, therefore, a personal representative had not been appointed. That request was denied.

In April 1992, Wilson filed three documents with the trial court: a motion to dismiss Murphy's suit, 4 a motion for leave to file a second amended petition, and a second amended petition. In an entry dated April 6, 1992, the docket sheet shows Wilson's second amended petition "filed without leave of Court...." The second amended petition is in 13 counts, the first naming only Aetna as a defendant and the remaining 12 counts directed solely at Mercantile.

On December 3, 1992, the trial court ruled as follows:

"Motion by plaintiff Wilson to dismiss without prejudice granted. Motion to file second amended petition granted. Second amended petition filed. 30 days to answer."

Defendants moved separately to dismiss the counts directed toward them in the second amended petition, contending each count failed to state a claim upon which relief could be granted. Mercantile also raised a statute of limitations defense to each count against it. Additionally, Defendants contended that all claims were barred because the 1989 dismissal was with prejudice. On February 4, 1994, the trial court entered this order, which was prepared by Defendants' attorney:

"The Court having reviewed the decisions cited by the parties, it is hereby ordered, adjudged and decreed that the separate motions of defendants Mercantile Bank of Springfield and The Aetna Casualty and Surety Company to dismiss should be and are hereby granted and this action should be and is hereby dismissed with prejudice to reinstatement and refiling, and costs are hereby taxed against plaintiff, Herman Wilson.

"The Court finds that in Wilson, et al. v. Mercantile Bank of Springfield, et al., 791 S.W.2d 497 (Mo.App.S.D.1990) the appeal was dismissed because the judgment of this Court entered March 16, 1989, did not dispose of the claims of both plaintiffs, Herman Wilson and Clyde Murphy, but only adjudicated the claims of plaintiff Wilson. Thereafter, the Murphy claims were dismissed on December 3, 1992, but no appeal followed as to the adjudicated Wilson claims and the time for such appeal has now passed. Accordingly, defendants are properly entitled to the aforesaid dismissal of this action."

It is from this order that Wilson now appeals.

DISCUSSION AND DECISION

As a preliminary matter, we deal with Defendants' assertion, raised in their joint respondents' brief, that the appeal from the judgment in favor of Aetna should be dismissed because Wilson's notice of appeal "made absolutely no mention of Respondent Aetna, nor did it mention that an appeal was being taken from the judgment in favor of Aetna." 5

As Defendants correctly point out, Wilson made no reference to Aetna in his notice of appeal. In the spaces on the preprinted form calling for identification of "Defendant" and "Respondent," he entered only "Mercantile Bank of Springfield." In the portion of the notice calling for a brief description of the case, Wilson wrote, "Civil suit in Tort and Contract in multiple and alternative counts. The court sustained a Motion to Dismiss before issue joined." In the space marked "Date of Judgment," Wilson entered "February 4, 1994." Wilson attached to the notice of appeal a copy of the February 4, 1994, order of dismissal.

Rule 81.08(a) requires that a notice of appeal to this court "shall specify the parties taking the appeal, the judgment or order appealed from, [and] the court to which the appeal is taken.... For this purpose, appellant shall utilize ... Civil Procedure Form No. 8-B...." Form No. 8-B directs the appellant to attach a copy of the "Judgment or Order Appealed From." Missouri Rules of Court at 370-71 (West 1995).

The notice of appeal identifies Wilson as the party taking the appeal and this court as the court to which the appeal is taken. As directed by Form No. 8-B, Wilson attached a copy of the February 4, 1994, order. Thus, although the description of the case in the notice refers to the sustention of only one motion, Wilson's notice sufficiently identifies the order appealed from. Wilson entered the date of the order and he attached a copy of the order, which sustains "the separate motions" of Mercantile and Aetna and grants dismissal in favor of both defendants. This is sufficient to comply with Rule 81.08(a), including the relevant directions of Form No. 8-B, which are incorporated into the rule.

Defendants' argument is similar to the argument rejected by the court in State ex rel. Community Heating and Air Conditioning Co. v. Schwartz, 452 S.W.2d 243 (Mo.App.1970). In Schwartz, defendant Maryland Casualty Company was the surety on the administrator's bond of defendant Helen M. Schwartz. On January 9, 1968, the trial court dismissed the plaintiff's petition against Maryland Casualty. Id. at 245. On December 4, 1968, upon motion of Schwartz, the court "dismissed plaintiff's petition with prejudice...." Id. at 246.

In its notice of appeal, the plaintiff omitted reference to Maryland Casualty and identified the order appealed from as an order "dismissing plaintiff's Petition and cause of action, with prejudice, at plaintiff's costs, heretofore entered by this Court, in this cause, upon December 4, 1968." Id. at 246.

On appeal, Maryland Casualty argued the plaintiff's notice of appeal was defective because Maryland Casualty's name was omitted from the caption of the notice and the caption of the transcript and because the notice identified only the order of December 4, 1968, as the order appealed from. The court held that omission of Maryland Casualty's name from the notice of appeal did not violate Rule 82.08 (predecessor to Rule 81.08). 452 S.W.2d at 246. Moreover, the court held, the plaintiff's reference to the trial court's December 4, 1968, dismissal of its petition and cause of action was sufficient; it was not necessary for the plaintiff to refer to the earlier, nonappealable order dismissing the petition against Maryland Casualty. Id. at 246.

Just as the Schwartz court rejected Maryland Casualty's argument, we reject Aetna's argument. Omission of Aetna's name does not cause Wilson's notice of appeal to fail to identify the order appealed from. 6 Cases cited by Defendants are not controlling authority. 7

We turn now to Wilson's allegation of trial court error, which requires application of Rule 74.01, as that rule was constituted on February 4, 1994. 8 That rule provides:

"(a) Included Matters. 'Judgment' as used in these rules includes a decree and any order from which an appeal lies. 9

"(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all...

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