Jeff C. Tacina v. Jo Ann Fabrics

• Court: Missouri Court of Appeals
• Decided: February 23, 2021
• Docket: ED108515
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION FOUR

JEFF C. TACINA, ) No. ED108515 ) Appellant, ) Appeal from the Circuit Court ) of St. Charles County vs. ) ) Honorable Matthew E.P. Thornhill JO ANN FABRICS, ) ) Respondent. ) FILED: February 23, 2021

Jeff Tacina appeals the trial court’s judgment following proceedings in small claims court.

Because Tacina’s notice of appeal was untimely, we dismiss the appeal.

Background

On March 22, 2019, Tacina filed a petition in small claims court, alleging that Respondent

owed him unpaid wages. On June 7, 2019, after hearing the evidence, the trial court ruled in favor

of Respondent and dismissed Tacina’s petition with prejudice. That same day, Tacina filed an

application for trial de novo. On June 17, 2019, the trial court entered a judgment denying his

application for trial de novo and dismissing the case with prejudice. More than five months later,

on December 2, 2019, Tacina filed a notice of appeal. Discussion

“This Court only has jurisdiction if [the appellant] filed a timely notice of appeal.” Walker

v. Smallwood, 247 S.W.3d 24 (Mo. App. E.D. 2008). Under Rule 81.04(a),1 “the notice of appeal

must be filed no later than 10 days after the judgment becomes final.” Redden v. Redden, 279

S.W.3d 240, 241 (Mo. App. E.D. 2009). 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).

Here, because Tacina did not file an authorized after-trial motion, the judgment entered on

June 17, 2019 became final on July 17, 2019. The deadline for filing a notice of appeal was July

29, 2019,2 but Tacina did not file his notice of appeal until December 2, 2019. This Court issued

an order directing Tacina to show cause why his appeal should not be dismissed. Tacina’s response

to the show cause order does not provide a basis recognized under Missouri law for excusing his

untimely notice of appeal. Because Tacina’s notice of appeal was untimely, we are without

jurisdiction to consider this appeal.

Conclusion

For the foregoing reasons, we dismiss the appeal.

_______________________________ MICHAEL E. GARDNER, Judge

Gary M. Gaertner, Jr., P.J., concurs. Philip M. Hess, J., concurs.

1 All rule references are to the Missouri Supreme Court Rules (2019). 2 Because the deadline fell on a Saturday, the notice of appeal was due on the next business day. Rule 44.01(a).