OLVERA v. OLVERA, WD 63631 (Mo.App.W.D. 2005)

No. WD 63631 (consolidated with WD 63656)Missouri Court of Appeals, Western District.
February 1, 2005

Appeal from the Circuit Court of Bates County, The Honorable William J. Roberts, Judge.

PAUL M. SPINDEN, Judge.

During a festival at Rockville, Kelly Fritts rode a horse that hit Nicholas Olvera and knocked him to the ground. Olvera and his wife, Tina Olvera, sued Fritts for damages arising from the accident. A jury assessed the damages to Nicholas Olvera at $1 million but found that Olvera was 20 percent at fault. The jury ruled that Tina Olvera did not sustain any damages. Fritts appeals, and Tina Olvera cross-appeals.

In response to Fritts’ appeal, the Olveras assert that Fritts did not file his notice of appeal on time. They assert that Fritts did not pay all the fees required by Rule 81.04(c) and Section 488.031.1, RSMo Cum. Supp. 2003. We agree.

The circuit court denied the parties’ post-trial motions on December 19, 2003. Pursuant to Rules 81.04(a) and 81.05(a), the deadline for Fritts’ notice of appeal was on December 29, 2003.[1] On December 29, Fritts attempted to file a notice of appeal with the clerk of the circuit court and remitted $50.[2] The filing fee, with the amounts required by Section 488.031.1, was $70.

On January 5, 2004, the circuit court noted in its docket sheet that “Terri from Missouri Court of Appeals called, filing fee is now $70.00, when receive additional funds please forward copy of receipt, wrote [Fritts’ attorney] requesting additional $13.00 for filing fee.”[3] Fritts paid $13 on January 8, 2004. The circuit court noted the payment and wrote in its docket sheet, “Received from Fritts’ attorney $13.00 additional filing fee. Applied open items to filing fee for appeal.”[4]

When Fritts attempted to file a notice of appeal with the circuit court, Rule 81.04(c) said:[5]

Docket Fees. The appellate court docket fee is fifty dollars. It shall be paid to the trial court clerk when the notice of appeal is filed. The trial court clerk shall remit the docket fee to the appellate court clerk or as otherwise provided by law.

No trial court clerk shall accept or file a notice of appeal unless:

(1) The docket fee is deposited therewith; or

(2) The appellant is not required by law to pay the docket fee; or
(3) An order permitting the appellant to prosecute the appeal in forma pauperis accompanies the notice of appeal.

Furthermore, Section 488.031.1 says, “In addition to other fees authorized by law, the clerk of each court shall collect [$20] on the filing of any civil or criminal . . . appeal” to the Supreme Court and to the Court of Appeals. The $20 fee was to be “collected in the same manner as other fees, fines, or costs in the case.” Section 488.031.2.

Payment of the docket fee is a jurisdictional requirement for an effective appeal. Kattering v. Franz, 231 S.W.2d 148, 150
(Mo. 1950); Moore v. Bi-State Development Agency, 87 S.W.3d 279, 296 (Mo.App. 2002). Indeed, the Supreme Court has declared that no valid filing of a notice of appeal exists until the docket fee is paid:

If these rules are not followed, the result would be to create again the same conditions which our new Code sought to remedy. Parties could determine for themselves how long they would take to decide whether they wanted to appeal[.] . . . We have construed the Code liberally in order to make decisions on the merits whenever possible; and we have held that “the filing of a notice (of appeal) is the only requirement necessary to invoke appellate jurisdiction,” and that “thereupon the appeal becomes `effective.'” Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, 660. However, [Missouri statutes and Supreme Court rules] together determine what is a valid filing, which makes an appeal effective; and appeals cannot be both effective and in abeyance at the whim of the prospective appellant. We, therefore, hold that there can be no valid filing of a notice of appeal until the docket fee is paid and that there was no notice of appeal legally filed within the required time in this case. It follows that this appeal must be dismissed.

Kattering, 231 S.W.2d at 149-50 (emphasis added).[6] See also Bussell v. Tri-Counties Humane Society, 125 S.W.3d 348, 350 (Mo.App. 2004).

The issue, then, is whether or not the payment of the additional $20 required by Section 488.031.1 was a fee. If it was, Fritts’ failure to pay it within the required time deprives this court of jurisdiction and requires that we dismiss his appeal.

This court’s Southern District recently faced this issue and answered the question in the affirmative: “We do not find any reason to distinguish between the docket fee required by Rule 81.04(c) and the surcharge required by Section 488.031.1, RSMo Cum.Supp. (2004).” Deever v. Karsch Sons, Inc., 144 S.W.3d 370, 372 (Mo.App. 2004). The court concluded that “payment of the full fee as required by law is a jurisdictional requirement for a valid notice of appeal.” Id. We agree.

Because Fritts failed to pay the entire $70 filing fee by December 29, 2003, his attempt to file a notice of appeal on that date was not effective.[7] Fritts failed to pay the entire fee before the time for appeal had expired. “A timely filing of a notice of appeal is a jurisdictional requirement; if the notice of appeal is untimely, we are without jurisdiction and must dismiss the appeal.” In re Estate of Burg, 68 S.W.3d 543, 544
(Mo.App. 2001); Cotter v. Miller, 54 S.W.3d 691, 693 (Mo.App. 2001). Hence, we dismiss Fritts’ appeal.

As for Tina Olvera’s cross-appeal, Rule 81.04(b) says, “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date the first notice of appeal was filed.” Although Tina Olvera filed her cross-appeal within ten days of Fritts’ notice of appeal, that notice was not timely filed. Hence, Tina Olvera’s cross-appeal is also untimely. Rogiers v. Boatmen’s Trust Company, 918 S.W.2d 285, 287 (Mo.App. 1996). Furthermore, Tina Olvera did not file a motion in this court pursuant to Rule 81.07 seeking permission to file a late notice of appeal. Hence, we also dismiss Tina Olvera’s cross-appeal.

Because we lack jurisdiction over Fritts’ appeal and Tina Olvera’s cross-appeal, we dismiss their appeals.

Harold L. Lowenstein, Presiding Judge, concurs.

James M. Smart, Jr., dissents in a separate opinion.

JAMES M. SMART, Jr., Judge. Dissenting Opinion

On December 29, 2003, when Fritts filed his notice of appeal with the Circuit Court and paid the $50.00 docket fee, the following court rule was in effect:

(a) Filing the Notice of Appeal. 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.
(b) Cross Appeals. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date the first notice of appeal was filed.
(c) Docket Fees. The appellate court docket fee is $50.00. It shall be paid to the trial court clerk when the notice of appeal is filed. The trial court clerk shall remit the docket fee to the appellate court clerk or as otherwise provided by law.
No trial court clerk shall accept or file a notice of appeal unless:

(1) The docket fee is deposited therewith; or

(2) The appellant is not required by law to pay the docket fee; or
(3) An order permitting the appellant to prosecute the appeal in forma pauperis accompanies the notice of appeal.

Rule 81.04.

There is italicized language in the 2004 version of Rule 81.04 stating that the above text is effective until July 1, 2004. The rule further provides that the change in the amount of the docket fee (to $70.00) is effective July 1, 2004. Therefore, although the amendment to Section 488.031 became effective in August 2003, the docket fee itself was not changed for almost a year thereafter. Fritts filed his appeal four months after the effective date of the $20.00 surcharge pursuant to statute, but more than seven months before the docket fee was raised to $70.00 to accommodate the surcharge.

The pertinent statutes are as follows:

Section 483.500:

1. An appellant or plaintiff in error shall pay court costs in an amount determined pursuant to sections 488.010 to 488.020, RSMo; provided, that nothing herein shall be construed to apply to proceedings when costs are waived or are to be paid by the state, county or municipality.
2. The clerk of the court in which the notice of appeal is initially filed shall collect and disburse court costs determined pursuant to this section in the manner provided by sections 488.010 to 488.020, RSMo, and such court costs shall be payable to the director of revenue for deposit to the general revenue fund.

Section 488.031, adopted in 2003 and effective in August 2003, states as follows:

1. In addition to other fees authorized by law, the clerk of each court shall collect the following fees on the filing of any civil or criminal action or proceeding, including an appeal, except that no fee shall be imposed pursuant to this section on any case that is filed charging traffic violations except alcohol-related offenses:
Supreme court and courts of appeals $20.00; Circuit courts $10.00; Associate circuit courts $ 8.00; Small claims courts No additional fee
2. Court filing surcharges pursuant to this section shall be collected in the same manner as other fees, fines, or costs in the case. The amounts so collected shall be paid by the clerk to the office of the state courts administrator and credited to the special fund designated as the basic civil legal services fund. However, the additional fees prescribed by this section shall not be collected when a criminal proceeding or defendant has been dismissed by the court or when costs are waived or are to be paid by the state, county, municipality, or other political subdivision of this state.

As the reader will observe, Rule 81.04(a) provides that a party may appeal “by filing with the clerk of the trial court a notice of appeal” not later than ten days after the judgment becomes final. See also Section 512.050. Appellant Fritts complied with that requirement. He also paid the $50.00 docket fee in accordance with Rule 81.04(c).

There is no indication in the published rule or the statutes that payment (or the waiver of) costs other than the docket fee must be treated as a jurisdictional rule. In fact, Section 512.050 also states:

After a timely filing of such notice of appeal, failure of the appellant to take any of the further steps to secure the review of the judgment or order appealed from does not affect the validity of the appeal, but is ground for such action as the appellate court deems appropriate, which may include dismissal of the appeal.

Further, the concept that the timely payment or waiver of docket fees is jurisdictional was a judicial determination of the Missouri Supreme Court and not a constitutional or legislative dictate. See Kattering v. Franz, 231 S.W.2d 148, 150 (Mo. 1950). The Supreme Court ruling in Kattering was based on the premise that parties should not be entitled to decide for themselves how long to take to determine whether to appeal. Id.
at 149-50. A number of problems were created by appellants taking advantage of lax enforcement of the payment of costs. Id. In other words, the court simply wanted to make sure that the time limits were strictly enforced, and chose toward that end to make the rule a jurisdictional one. Id.

If these rules are not followed, the result would be to create again the same conditions which our new Code sought to remedy. Parties could determine for themselves how long they would take to decide whether they wanted to appeal and when they should commence to prepare the transcript on appeal. Thus the provisions of Sections 129 and 137 [former Section 847.129 and 847.137 requiring the depositing of the docket fee with the clerk of the trial court and requiring the clerk to collect the fee] of the Code would be nullified and appellate courts would be without information as to the actual condition of their dockets. We cannot permit such complete disregard of these important rules which would have such disastrous results to impede the prompt administration of justice. We have construed the Code liberally in order to make decisions on the merits whenever possible; and we have held that “the filing of a notice (of appeal) is the only requirement necessary to invoke appellate jurisdiction.” And that “thereupon the appeal becomes `effective’.” Weller v. Hayes Truck Lines, 355 MO. 695, 197 S.W.2d 657, 660. However, Section 129 and Rule 3.28 [requiring collection of the docket fee at the time of filing the notice of appeal] together determine what is a valid filing, which makes an appeal effective; and appeals cannot be both effective and in abeyance at the whim of the prospective appellant. We, therefore, hold that there can be no valid filing of a notice of appeal until the docket fee is paid and that there was no notice of appeal legally filed within the required time in this case. It follows that this appeal must be dismissed.

Id. at 149-50.

While this court certainly has the power and responsibility to dismiss an appeal if all fees are not paid when required, I see nothing in the legislation, or in the constitution, or the published court rules, or even in Kattering requiring the dismissal of an appeal in a case such as this, where the appellant paid the docket fee and filed the notice of appeal timely. I do not see that Kattering applies to any costs other than the docket fee, in that the term “docket fee” was specifically used in Kattering, and the case involved only the docket fee and not any surcharges. Id. See also Moore v. Bi-State Development Agency, 87 S.W.3d 279, 296 (Mo.App. 2002) (“. . . no valid filing of a notice of appeal until the docket fee is paid.”) (emphasis added).

Here, not only was the docket fee timely paid, but the supplemental $20.00 fee pursuant to Section 488.031 was promptly applied as well upon request.[1]

The majority errs in relying on Deever v. Karsch Sons, Inc., 144 S.W.3d 370, 372 (Mo.App. 2004), for the proposition that there is no reason to distinguish between the docket fee
required by Rule 81.04(c) and the surcharge required by Section 488.031.1. Deever erred in that it is obvious that there is a reason to distinguish between the docket fee and the surcharge because the jurisdictional rule in Kattering, as we noted, did not purport to go beyond collection of the docket fee.

The docket fee in effect at the time this appeal was filed was $50.00. If the appeal had been filed after July 1, 2004 (when the modification of the court rule changed the docket fee to $70.00), obviously there would be no distinction between the docket fee and the surcharge because by then they would have together become the new “docket fee.” But as to any appeal file prior to that date, I would find a reason to distinguish between the docket fee and the surcharge.

In any event, even if Deever were found to be good law, it should be recognized that there are also exceptions to the judicially created jurisdictional rule of Kattering. In Jones v. State, 506 S.W.2d 387, 388-89 (Mo. 1974), the court’s order granting the motion for leave to file in forma pauperis
(waiving the docket fee) was not granted for nine months; but because appellant “did all she could do” within the ten-day appeal period, her filing related back to the date of her tender of her notice of appeal and her motion. The Supreme Court exercised jurisdiction over her appeal. See also State v. Lawrence, 139 S.W.3d 573, 575 (Mo.App. 2004), in which the court refused to dismiss an appeal where the appellant again had “done all that he could do” by timely tendering his notice of appeal and his request to file as a poor person, although the request was not granted (the fee was not waived) until after the appeal time had run. In those cases, the appeal was not perfected until after the requisite time period had expired, but the appeal was not dismissed.

Similarly, under Rule 81.07, a party who has not timely filed an appeal may seek a special order permitting a late filing of the notice of appeal. Such an order granting leave may, when the delay was not due to culpable negligence, extend up to six months from the date of the final judgment. Obviously, in such cases, the party filing the late notice of appeal also pays the filing fee late. Is there a jurisdictional problem in such a case because the filing fee is filed after the original ten-day period for filing the notice of appeal? Obviously not. When a late filing is allowed, the late payment of the docket fee is not a jurisdictional problem.[2] Thus, the Supreme Court has created and recognized certain exceptions to its jurisdictional rule.

The existence of these exceptions demonstrates that the court-adopted jurisdictional rule (whether it applies just to docket fees or also to surcharges) is a functional rule (one adopted for purposes of procedural orderliness) as opposed to an essential rule (one which is indispensable because it reflects the inherent essence of a significant principle of law and justice). A functional rule is not inevitably our master. Exceptions may be permitted by the creator of the functional rule, especially when the facts are such that the purpose of the functional rule would be defeated by its very enforcement.

Once an appeal is lodged, we try to make sure all parties receive due process. Here, though, for the sake of following a misunderstood functional rule, the majority is willing to countenance what is every lawyer’s nightmare. The Kattering
rule was not designed to be a fickle tyrant to the reasonably diligent. I do not believe the rule of Kattering would require dismissal here, but if it does, I would note that the Missouri Supreme Court has already created exceptions to its own jurisdictional rule in the interests of justice and due process. I believe that, as the creator of the functional rule, it would certainly do so in this case also.

I would deny the Respondent’s arguments that this court has no jurisdiction. I would exercise jurisdiction over both the appeal and the cross-appeal. Having considered the merits of the arguments raised by both sides in the appeal and the cross-appeal, I would affirm the judgments of the trial court. I would affirm on the merits rather than dismissing the case.