Bussell v. Tri-Counties Humane Soc'y - 125 S.W.3d 348 (Mo. Ct. App. 2004)

Rule:

Mo. Sup. Ct. R. 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. Mo. Sup. Ct. R. 81.04(c). Where a party has not timely paid the docket fee with his or her notice of appeal, there is no valid notice of appeal.

Facts:

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. On October 16, 2003, plaintiffs’ attorney faxed a notice of appeal to the clerk’s office, appealing the prior entry of summary judgment in Defendant's favor. he "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 has filed a motion to dismiss the appeal as untimely, arguing that the plaintiffs’ notice of appeal was not valid until October 17, 2003. 

Issue:

Was the plaintiffs’ appeal untimely? 

Answer:

Yes.

Conclusion:

The court held that the plaintiffs’ appeal was untimely. Mo. Sup. Ct. R. 81.04(c) required a docket fee to be paid to the trial court clerk when the notice of appeal was filed. Unless the docket fee was paid, the trial court clerk should not have accepted the notice of appeal pursuant to Rule 81.04(c). Where a party had not timely paid the docket fee with his or her notice of appeal, there was no valid notice of appeal. Thus, at the earliest, the plaintiffs filed a valid notice of appeal on October 17th, one day late.