Jesse Bussell, by Mary Bussell, Appellant v. Tri Counties Humane Society, and Kennett & Delia McGuire, Delores Tinsley, Zan & Mary Scott, Respondents

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Jesse Bussell, by Mary Bussell, Appellant v. Tri Counties Humane Society, and Kennett & Delia McGuire, Delores Tinsley, Zan & Mary Scott, Respondents Case Number: ED83646 Handdown Date: 01/13/2004 Appeal From: Circuit Court of Warren County, Hon. Keith Sutherland, Judge Counsel for Appellant: Lee Elliott Counsel for Respondent: James Leritz and Reginald Bodeux Opinion Summary: Jesse and Mary Bussell appeal from a summary judgment entered in favor of Tri-Counties Humane Society in this dog bite case. DISMISSED. Division Five holds: The Bussells' notice of appeal was untimely because they did not pay the required docket fee in a timely fashion. This Court, therefore, is without jurisdiction to consider the appeal. Citation: Opinion Author: Sherri B. Sullivan, Chief Judge Opinion Vote: DISMISSED. Mooney and Draper III, JJ., concur. Opinion: Jesse and Mary Bussell (Plaintiffs) appeal from a summary judgment entered in favor of Tri-Counties Humane Society (Defendant) in this dog bite case. Because we find Plaintiffs' appeal to this Court is untimely, we dismiss the appeal for lack of jurisdiction. Plaintiffs brought suit against multiple defendants for negligence after a dog belonging to Kennet and Delia McGuire allegedly bit the minor Jesse Bussell. On June 6, 2000, the trial court entered a partial summary judgment in favor of

Delores Tinsley and Zane and Mary Scott. On May 7, 2002, the trial court granted Defendant's motion for summary judgment as well. Plaintiffs ultimately settled their case with the McGuires and dismissed them from the case on September 5, 2003. Plaintiffs then appealed the prior entry of summary judgment in Defendant's favor. In response, Defendant has filed a motion to dismiss the appeal as untimely. Plaintiffs have not filed a reply to Defendant's motion to dismiss. When Plaintiffs dismissed their case against the McGuires, all issues and parties in the case were resolved. As a result, the trial court's judgment in favor of Defendant became final thirty days later because no after-trial motions were filed. Rule 81.05(a). (FN1) Under Rule 81.04(a), Plaintiffs' notice of appeal was due ten days after the judgment became final. Here, the judgment became final thirty days from September 5, 2003, or Monday, October 6, 2003. Rule 81.05(a); Rule 44.01(a). Therefore, the notice of appeal was due on October 16, 2003. Rule 81.04(a). Plaintiffs' attorney faxed a notice of appeal to the clerk's office on October 16, 2003. The "original" notice of appeal, along with the required docket fee of $50, arrived on October 17, 2003. Seven days later, on October 24, 2003, Plaintiffs paid an additional $20 required by Section 488.031, 2003 Mo. SB 447. Defendant argues that Plaintiffs' notice of appeal was not valid until October 17, 2003 and as a result, was untimely. We agree. Rule 81.04(c) requires a docket fee to be paid to the trial court clerk when the notice of appeal is filed. Unless the docket fee is paid, the trial court clerk should not accept the notice of appeal. Rule 81.04(c). (FN2) Where a party has not timely paid the docket fee with his or her notice of appeal, there is no valid notice of appeal. Moore ex rel. Moore v. Bi- State Dev. Agency , 87 S.W.3d 279, 296 (Mo. App. E.D. 2002); see also Kattering v. Franz , 231 S.W.2d 148, 150 (Mo. 1950). Therefore, at the earliest, Plaintiffs filed a valid notice of appeal on October 17, 2003, one day out of time. Our jurisdiction depends upon the timely filing of a notice of appeal and without it, this Court can only dismiss the appeal. Moore, 87 S.W.3d at 296. In addition, Plaintiffs did not file the additional $20 required by Section 488.031 until seven days later. We need not decide whether the filing of this surcharge is also a jurisdictional requirement, because Plaintiffs failed to file the $50 docket fee in a timely fashion. We grant Defendant's motion to dismiss and dismiss Plaintiffs' appeal for lack of jurisdiction. Footnotes: FN1. All rule references are to Mo. R. Civ. P. 2003, unless otherwise indicated. FN2. Rule 81.04(c) provides two exceptions to payment of the docket fee, but neither of these exceptions applies here.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.