Goldsby v. Lombardi

559 S.W.3d 878
CourtSupreme Court of Missouri
DecidedJuly 31, 2018
DocketNo. SC 96639
StatusPublished
Cited by21 cases

This text of 559 S.W.3d 878 (Goldsby v. Lombardi) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goldsby v. Lombardi, 559 S.W.3d 878 (Mo. 2018).

Opinion

Unfortunately, this Court's rules did not keep up with the 1997 legislative changes in section 512.050. In 1993, Rule 81.04 required, in pertinent part:

(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.
....
(c) Docket Fees. The docket fee of fifty dollars in the appellate court shall be deposited with the trial court at the time of filing the notice of appeal. No notice of appeal shall be accepted and filed by the clerk of any trial court unless the docket fee is deposited therewith. If a notice of appeal is accepted without timely payment, the appeal may be dismissed by the appellate court.

*883Rule 81.04 (1993) (emphasis added). This Court and the appellate courts treated these requirements as jurisdictional and dismissed appeals when no docket fee was filed.3

In 1994, this Court revised Rule 81.04 by deleting the final sentence, which had stated, "If a notice of appeal is accepted without timely payment, the appeal may be dismissed by the appellate court." See Rule 81.04(c) (1994). On its face, this revision seems to have negated the previous requirement that the docket fee needed to be paid for the appeal to become effective. But Rule 81.04(e) continued to require, for the notice of appeal to be accepted:

The trial court clerk shall note the date a notice of appeal was received if it is accompanied by: (1) The docket fee; or (2) A statement citing specific statutory or other authority demonstrating a docket fee is not required by law; or (3) A motion to prosecute the appeal in forma pauperis.

Rule 81.04(e) (2018). Not surprisingly, the courts have continued to dismiss appeals when no docket fee, statement in lieu of the fee, or motion to proceed in forma pauperis was timely filed, as occurred in this case. See, e.g., Harris v. Wallace, 524 S.W.3d 88, 89 (Mo. App. 2017) ("The trial clerk was prohibited from filing the tendered Notice of Appeal ... because it was without any docket fee, statement citing specific statutory authority demonstrating a docket fee is not required by law, or motion to prosecute the appeal in forma pauperis. ").4

Mr. Goldsby nonetheless is correct that to interpret Rule 81.04(e)'s requirement of a docket fee as necessary for the notice of appeal to be valid would violate article V, section 5 's prohibition on this Court establishing rules affecting the statutory right to appeal. Under article V, section 5, it is for the legislature to set the requirements for the right to appeal. In section 512.050, the legislature has done so. It requires only the filing of a notice of appeal and specifically provides that while this Court may impose additional requirements for prosecuting an appeal, those requirements cannot affect "the validity of the appeal." § 512.050, RSMo 2016 .

In other words, as section 512.050 no longer requires the filing of a docket fee for a notice of appeal to be effective, this Court may not so require either. State ex rel. JCA Architects, Inc. v. Schmidt, 751 S.W.2d 756 (Mo. banc 1988) , is instructive on this point. At issue in JCA were section 512.180.1, RSMo 1986, which at that time provided, "Any person aggrieved by a judgment in a civil case tried without a jury before an associate circuit judge ... shall have the right of a trial de novo in all *884cases where the petition claims damages not to exceed five thousand dollars," and section 512.090, RSMo 1986, which at that time provided, "The right of a trial de novo provided in subsection 1 of section 512.180 shall be perfected by filing an application for trial de novo with the clerk serving the associate circuit judge within ten days after the judgment is rendered ," JCA, 751 S.W.2d at 756-57 (emphasis added). As is evident, section 512.090, RSMo 1986, did not require that a docket fee be submitted at the time of seeking a trial de novo.

Camden County Rule 5(1), however, provided, "No clerk shall accept any petition or other original pleading unless the [docket] fee, as aforesaid, has been paid...." JCA, 751 S.W.2d at 757 . The circuit court accordingly dismissed the application for trial de novo when the appellant failed to pay the docket fee. Id. This Court reversed. It held Camden County could not impose a docket fee when section 512.090, RSMo 1986, "ma[de] no reference to the payment of a [docket] fee," for under article V, section 5, the "Circuit Court is without power to impose jurisdictional requirements in addition to those set out in the statutes." JCA, 751 S.W.2d at 757. As under section 512.090, RSMo 1986, payment of the docket fee at the time of filing for trial de novo was not made "a jurisdictional prerequisite," JCA, 751 S.W.2d at 757, once plaintiff filed for trial do novo then plaintiff:

was in full compliance with all statutory jurisdictional requirements, and the circuit court had the mandatory duty to proceed with the trial de novo, even though the [docket] fee was not paid until after the time for filing the application for trial de novo had expired.

Id. (emphasis added).

Most importantly for present purposes, JCA then distinguished the absence of a docket fee requirement in section 512.090 from the presence of a docket fee requirement in the then extant 1987 version of section 512.050 to show the legislature knew how to make a docket fee a jurisdictional prerequisite when it wanted to, stating if payment of a docket fee were a jurisdictional prerequisite to a trial de novo, the legislature would have explicitly so provided, "as was done in § 512.050, RSMo 1986, (the foundation for Rule 81.04(c) ), which provides that the docket fee must be paid at the time a notice of appeal to an appellate court is filed. " JCA, 751 S.W.2d at 757 (emphasis added).

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Cite This Page — Counsel Stack

Bluebook (online)
559 S.W.3d 878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldsby-v-lombardi-mo-2018.