342 S.W.3d 331
Mo. Ct. App.2011Background
- Temares filed suit on Feb 16, 2010 against LSK Lebanon, Inc. and American Suzuki Motor Corp. over a boating incident involving a trim motor.
- The petition alleged negligence, strict liability, and intentional conduct; Appellant claimed Campbell died after being crushed by the outboard motor while inspecting a problem.
- Appellant asserted emotional distress for witnessing Campbell's death; he claimed Respondents' acts or omissions caused his injury.
- Respondents moved to dismiss or for summary judgment on Apr 1, 2010; argued no viable claim and no zone of danger under Asaro.
- On Jun 16, 2010, the trial court granted summary judgment, dismissed with prejudice, and held Appellant was not in the zone of danger.
- Appellant timely appealed a month later, but Respondents moved to dismiss as untimely under Rule 81.04; appeal was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the appeal timely filed? | Temares contends timely appeal under Rule 81.04. | Respondents argue notice of appeal was untimely under Rule 81.04. | Yes; appeal dismissed for lack of jurisdiction due to untimely notice. |
| Did the June 16 judgment become final for appeal under Rule 81.04? | Temares argues the July 14 entry made the judgment final for appeal. | Respondents contend July 14 entry was null and did not alter finality already established by June 16 judgment. | Judgment became final on July 16, 2010; July 14 entry did not extend the appeal deadline. |
| Could Rule 74.03 remedy lack of notice of entry to permit timely appeal? | Temares could have sought relief under Rule 74.03 upon lack of notice. | Respondents argue Rule 74.03 relief was not pursued; untimely appeal remains. | Rule 81.04 untimely; relief under Rule 74.03 was not pursued. |
Key Cases Cited
- Spicer v. Spicer, 336 S.W.3d 466 (Mo. banc 2011) (mandates dismissal when appeal is untimely under Rule 81.04)
- Kessinger v. Kessinger, 935 S.W.2d 347 (Mo.App. S.D.1996) (docket-entry judgment requirements and finality standards)
- Asaro v. Cardinal Glennon Memorial Hospital, 799 S.W.2d 595 (Mo. banc 1990) (zone of danger framework for emotional distress claims)
- Atkins v. Jester, 309 S.W.3d 418 (Mo.App.S.D.2010) (Rule 74.01(b) applicability depending on whether all claims are resolved)