Kyle SANFORD, Respondent, v. CENTURYTEL OF MISSOURI, LLC d/b/a CenturyLink, Appellant.
No. SC 95465
Supreme Court of Missouri, en banc.
Opinion issued June 28, 2016
487 S.W.3d 471
Laura Denvir Stith, Judge
Mark B. Leadlove and Jonathan B. Potts of Bryan Cave LLP in St. Louis, (314) 259-2000
Stephen P. Clark of Runnymede Law Group in St. Louis, (314) 332-2990
Sanford was represented by Kenneth B. McClain and Jonathan M. Soper of Humphrey, Farrington & McClain PC in Independence, (816) 836-5050
Laura Denvir Stith, Judge
CenturyTel of Missouri LLC (“CenturyLink“) appeals the trial court‘s order sustaining Kyle Sanford‘s motion for partial summary judgment and overruling CenturyLink‘s motion to compel arbitration. Section 435.4401 makes orders denying arbitration immediately appealable. Under Rule 81.04(a), any such appeal must be filed “not later than 10 days after the judgment or order appealed from becomes final.” The order denying arbitration became “final” under Rule 81.04(a) immediately upon entry. CenturyLink was incorrect in believing that, under Rule 81.05(a)(1), the 10-day period to appeal did not begin to run until 30 days after the trial court entered its order. The purpose of Rule 81.05(a)(1) is to delay the effective date of a judgment for 30 days so that the trial court has continuing jurisdiction to modify or amend its ruling before it becomes final and appealable. An interlocutory order, however, does not become final 30 days after it is entered. It remains interlocutory throughout the case pursuant to Rule 74.01(b). The fact that a statute makes such an interlocutory order appealable despite its interlocutory nature does not make Rule 81.05(a)(1) applicable to it. It is not a judgment or dispositive order.
For these reasons, an interlocutory order denying arbitration is immediately appealable upon entry under section 435.440. To the extent that Motormax Fin. Services Corp. v. Knight, 474 S.W.3d 164 (Mo.App. 2015), holds otherwise, it is overruled. Because CenturyLink did not timely file its appeal within 10 days of entry of the order denying arbitration, its appeal is dismissed.
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
On January 27, 2012, Mr. Sanford purchased certain internet and phone services from CenturyLink. CenturyLink argues that Mr. Sanford agreed to its “Internet Services Agreement,” which contains a mandatory arbitration clause for “any and all claims, controversies or disputes of any kind.” On December 3, 2012, Mr. Sanford filed a class action petition in the trial court against CenturyLink, alleging that CenturyLink violated the Missouri Merchandising Practices Act, section 407.020, by charging customers a “Universal Service Fund Surcharge” on its high-speed internet services.
CenturyLink responded to Mr. Sanford‘s petition by moving to dismiss or stay trial court proceedings and to compel arbitration under the parties’ agreement. The trial court preliminarily overruled CenturyLink‘s motion on July 29, 2013, and ordered the parties to conduct discovery solely on the issue of arbitrability. On February 21, 2014, after limited discovery, Mr. Sanford moved for partial summary judgment limited to the issues of whether: (1) there was sufficient consideration to form a contract between CenturyLink and Mr. Sanford, and (2) the arbitration clause in the agreement applied to this type of dispute. Mr. Sanford argued that his
Following a hearing, the trial court, on July 10, 2014, entered an order denying arbitration: “After hearing and review of the pleadings the Court finds there is no genuine issue of material fact on the issue of consideration and the issue of arbitrability and the Movant is entitled to Partial Summary Judgment as a matter of law. Partial Summary Judgment is entered in favor of the Plaintiff as prayed.” Confusingly, four days later, on July 14, 2014, the trial court entered an additional order: “Argument heard on Plaintiffs Motion for Partial Summary Judgment. Motion taken under advisement.” No later orders have been entered on the issue of arbitrability.
On August 18, 2014, thirty-nine days after the trial court entered its July 10 order, CenturyLink filed a notice of appeal of that order under section 435.440. After an opinion by the court of appeals, this Court granted transfer. MO. CONST. art. V, § 10.
II. CENTURYLINK‘S NOTICE OF APPEAL WAS NOT TIMELY FILED
Before reaching the merits of CenturyLink‘s appeal, this Court must first determine whether the appeal was timely filed under the appropriate statutory scheme and this Court‘s rules. See, e.g., Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012), and Greenbriar Hills Country Club v. Dir. of Rev., 47 S.W.3d 346, 351 (Mo. banc 2001). Under section 512.020, “[a]ny party to a suit aggrieved by any judgment of any trial court ... may take his or her appeal to a court having appellate jurisdiction from any ... [f]inal judgment in the case....” “An appealable judgment resolves all issues in a case, leaving nothing for future determination.” Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). Generally, “[a] final judgment is a prerequisite to appellate review.” Ndegwa, 371 S.W.3d at 801. “If the trial court‘s judgments are not final, this Court lacks jurisdiction and the appeal[] must be dismissed.” Gibson, 952 S.W.2d 239.
Here, the trial court‘s July 10, 2014 order did not resolve all issues in the case. Rather, the order sustaining Mr. Sanford‘s partial summary judgment motion ruled only on the issues of consideration and arbitrability. The order, therefore, was not a final judgment. Orders denying arbitration, however, fit within a limited exception to the general rule disallowing interlocutory appeals. Section 435.440.1(1), specifically provides that “[a]n appeal [may] be taken from ... [a]n order denying an application to compel arbitration....” The trial court‘s July 10, 2014 order denied arbitration by sustaining Mr. Sanford‘s motion for partial summary judgment that requested, in part, that CenturyLink‘s motion to compel arbitration be overruled. That interlocutory order, therefore, became appealable under section 435.440.1(1).
The key question for purposes of this appeal is what deadline governs when such an interlocutory statutory appeal must be filed. Section 435.440.2 provides that an appeal under section 435.440.1 “shall be taken in the manner and to the same extent as from orders or judgments in a civil action.” Under Rule 81.04(a), “No such appeal shall be effective unless the notice of appeal shall be filed not later than 10 days after the judgment or order appealed from becomes final.” (Emphasis added). But, as just noted, an interlocutory order is, by definition, not “final” because Rule 74.01(b) provides that it remains modifiable and, therefore, “[a]t any
Because the July 10 order was immediately appealable upon entry, CenturyLink had 10 days from the date of entry to file a notice of appeal under Rule 81.04(a). CenturyLink did not file a notice of appeal until August 18, 2014, thirty-nine days later. As such, CenturyLink‘s attempt to appeal the order, under section 435.440 was untimely.
CenturyLink argues that this result is in error. It notes that Rule 81.05(a)(1) provides that “[a] judgment becomes final at the expiration of thirty days after its entry....” Rule 81.04(a) requires that a notice of appeal be filed within 10 days after a judgment becomes final. CenturyLink argues that this Court should treat the July 10 interlocutory order denying arbitration as a judgment to which Rule 81.05(a)(1) is applicable because Rule 74.01 states that a “‘[j]udgment’ as used in these rules includes a decree and any order from which an appeal lies.” CenturyLink argues that because the July 10 order was made immediately appealable by statute, it therefore is a “judgment” under Rule 81.05(a)(1) and was not final and appealable until 30 days after it was entered. If true, then the “judgment” did not become final until August 9, giving CenturyLink until August 19 to file a notice of appeal under Rule 81.04(a). Because it filed a notice of appeal on August 18, CenturyLink says, its interlocutory appeal is timely.
As CenturyLink notes, Motormax followed this reasoning in holding that because the trial court‘s “order” denying Motormax‘s motion to compel arbitration was denominated a “judgment,” under Rule 74.01(a), it was a judgment for purposes of Rule 81.05(a)(1) and only became final 30 days after entry and Motormax had 10 days after that to file a notice of appeal. 474 S.W.3d at 167-68.
Motormax and CenturyLink, however, ignore the purpose and function of Rule 81.05(a)(1)‘s delay of the finality of a judgment for 30 days. Its purpose is to allow the trial court to “retain[] control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time[,]” before an appeal is filed. Rule 75.01.
But, applying this 30-day window to interlocutory orders would be meaningless. A trial court does not need Rule 81.05(a)(1) to gain authority over an interlocutory judgment. Rule 74.01(b) provides:
... Any order ... that adjudicates fewer than all claims or rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order ... is subject to revision at any time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties.
(Emphasis added). For this reason, it is well-established that a trial judge has authority “[a]t any time before final judgment [to] ... open, amend, reverse or vacate an interlocutory order.” Nicholson, 463 S.W.3d at 365 (emphasis added). Of course, once a notice of appeal is filed on the order denying arbitration, the trial court‘s jurisdiction to modify that order—for the time being—is relinquished to the appellate court.3 But that does not change the fact that the order is still interlocutory. If the appeal is dismissed as untimely or no interlocutory appeal is taken, Rule 74.01(b) gives the trial court the authority to modify its order until final judgment is entered. See id. If this order was deemed a “judgment” and Rule 81.05(a)(1) applies, then, after 30 days, the judgment would become final and the trial court would lose authority to amend its order even though it retains jurisdiction over the rest of the case. Here, the interlocutory order does not become a judgment just because a statute makes it subject to interlocutory appeal. Rule 81.05(a)(1) simply does not apply to interlocutory appealable orders.
The July 10 order adjudicated only the issues of consideration and arbitrability; there are several other claims made by Mr. Sanford still waiting to be adjudicated in the trial court. Section 435.440.1(1) did not change the interlocutory nature of the order denying arbitration. It simply made that interlocutory order appealable immediately upon entry and temporarily divested the trial court‘s authority until the issue is resolved on appeal. Rule 81.05(a)(1) does not apply to delay the date on which the time for filing a notice of appeal of an order denying arbitration begins to run. Under Rule 81.04(a), CenturyLink had 10 days to file its notice of appeal, but failed to do so.4
In a similar circumstance, Hershewe v. Alexander, 264 S.W.3d 717, 718 (Mo.App. 2008), dismissed an appeal as untimely holding that “orders denying motions to compel arbitration are final and appealable immediately after the order has been issued and the notice of appeal must be filed within ten days of the final order denying an application to compel arbitration.” This ruling was correct. To the extent
This result is consistent with other cases addressing when an interlocutory order becomes final for purposes of appeal when a statute gives a party the right to immediate appeal of that order. For example, much like section 435.440, section 472.160 creates an immediate right to appeal certain interlocutory probate orders.5 In Estate of Straszynski, 265 S.W.3d 394, 396 (Mo.App.2008), the court dismissed the appeal of an interlocutory probate order as untimely under Rule 81.04(a) because it was not filed within 10 days of the date of entry because “[a]n interlocutory order that is permissively appealable pursuant to § 472.160.1 is final upon entry.” (Emphasis added). Similarly, Kemp v. Balboa, 959 S.W.2d 116, 118 (Mo.App.1997), in interpreting the rules regarding appeal of the same type of interlocutory probate order, held:
Section 472.160, provides a long list of orders, many clearly interlocutory in nature, which may be appealed from a probate proceeding. Many of them do not purport to be a final determination of the rights of the parties. In most there is no confusion as to when the pronouncement is final for purposes of appeal. The orders listed in that section are ready for appeal when made. (Emphasis added).
Appealable interlocutory orders under section 435.440 are no different. They are
Of course, as discussed in further detail in Missouri Petroleum Storage Tank Ins. Fund v. ConocoPhillips Co., 2016 WL 3554339, — S.W.3d — (Mo. banc 2016) (No. SC95444), also handed down this date, the failure to timely file its interlocutory appeal does not preclude CenturyLink from obtaining review of the denial of arbitration after final judgment. Under section 512.020(5), “a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in this case.”
III. CONCLUSION
The trial court‘s July 10, 2014 order sustaining Mr. Sanford‘s motion for partial summary judgment and overruling CenturyLink‘s motion to compel arbitration is an interlocutory order that was appealable under section 435.440 immediately upon entry. Rule 81.04(a) required CenturyLink to file a notice of appeal 10 days after entry of the order. It failed to do so until August 18, 2014, and, therefore, CenturyLink‘s appeal is dismissed as untimely.
All concur.
Laura Denvir Stith
Judge
Archie DUNN, Plaintiff-Appellant, v. JASPER COUNTY, Missouri, et al., Defendants-Respondents.
No. SD 33380
Missouri Court of Appeals, Southern District, Division One.
Filed: August 17, 2015