Summary
In City of St. Louis v. Hughes, No. 69575 (Mo.App.E.D. December 10, 1996), we declined to follow the southern district's view that the writing did not have to be titled judgment.
Summary of this case from Chambers v. Easter Fence Company, Inc.Opinion
No. 69575
OPINION FILED: December 10, 1996
Appeal from the Circuit Court of the City of St. Louis, Hon. Robert H. Dierker.
Lawrence G. Crahan, P.J., Concurs in Result in Separate Opinion, Mary K. Hoff, J., Stanley A. Grimm, Judge.
OPINION SUMMARY
Defendant appeals from four "judgments" entered against him in this case. None of the four meet the requirements of Rule 74.01(a) for a judgment. Therefore, we would dismiss the appeal for lack of jurisdiction. However, we transfer to the Missouri Supreme Court pursuant to Rule 83.02.
TRANSFERRED TO SUPREME COURT
Division Three Holds: A judgment must strictly comply with Rule 74.01(a) in order to be final. Specifically, a judgment must be written, signed by the judge, and denominated as "judgment."
I. Background
City sued defendant to enjoin a public nuisance at property known as the Alcorn Hotel. Thereafter, four documents each titled MEMORANDUM FOR CLERK were signed. Those four documents form the basis for defendant's appeal.
On March 17, 1995, the trial court signed the first document: Plaintiff's Motion for Sanctions is called, heard and granted. Defendants' pleadings are therefore stricken and a default judgment is entered in favor of plaintiff on its Suit to Enjoin Public Nuisance.
/s/ _________________________ So Ordered
The second document is dated April 28, 1995. It states:
The City makes appearance by associate city counselor Steve Kovacs.
Defendant Joe Hughes appears by counsel, Allen I. Harris.
. . .
The Court is considering the remedy of forced sale as a proper remedy in this case and .
. . .
The Court hereby enjoins all illegal activity including but not limited to prostitution, drug transactions, peace disturbance .
. . .
All parties except permanent residents and employees shall be barred from these premises 'til further order of this court. . . .
Defendant Joseph Hughes agrees to sale at a fair equitable price. Said price to be determined at later time.
Sale to be subject to court approval.
So ordered: /s/ _________________________
Defendant changed counsel and new counsel filed a "Motion to Amend and Set Aside Judgement and Order." It asked the trial court to set aside the March 17 default judgment and "also set aside the judgement and order dated April 28, 1995."
On May 24, 1995, the trial court signed the third document.
It states:
Motion to set aside default judgment denied. Motion to set aside court order of April 28, 1995 is granted except for paragraphs 4 and 5. The injunction orders of such paragraphs to remain in full force and effect. A Remedy Hearing is set for Wed. June 14 at 9:30.
So ordered: /s/ _______________________
The trial court signed the fourth document on June 16, 1995.
It states:
Cause called, plaintiff and defendant Joseph Hughes appear . . . . By consent it is ORDERED, ADJUDGED AND DECREED as follows:
1. Defendants, their officers, . . . are permanently enjoined and restrained from renting rooms at the premises known as the Alcorn Hotel on other than a monthly basis, subject to the terms and conditions of this Order.
2. Defendants may rent rooms at the Alcorn Hotel on a daily (overnight) basis until such time as any person on the premises is arrested on any charge relating to prostitution . . . .
3. Plaintiff . . . shall be granted access to the public areas . . . .
4. Defendants . . . are permanently enjoined and restrained from operating a house of prostitution . . . .
5. The Court retains jurisdiction over the parties and the subject matter, and plaintiff reserves the right to seek additional relief in the event of any violation of this order.
6. Joseph Hughes consents hereto on his own behalf . . . . Costs against Defendants.
SO ORDERED: /s/ __________________________
In November, 1995, plaintiff filed a Motion for Contempt. It alleged defendant was arrested on October 17 for allowing the hotel to be used for prostitution. On November 29, 1995, the trial court signed a Memorandum for Clerk which states:
Motion for Contempt called, heard, and denied. Court order of June 16, 1995 is amended to require defendant Hughes to provide to the City every 30 days his records of his monthly tenants and their social security numbers. Defendant Hughes, his agents, servants and employees are only to rent units on a monthly basis.
So ordered: /s/ ___________________________
Defendant does not challenge the November 29 order. As previously indicated, defendant filed his notice of appeal on December 4, 1995. On that notice, on the line "Judgment or Order Appealed From," defendant said "Attached." He attached the four documents dated March 17, April 28, May 24, and June 16. His points relied on relate to those four documents.
II. Rule 74.01(a)
Before 1995, Rule 74.01(a) stated: "`Judgment' as used in these Rules includes a decree and any order from which an appeal lies." In 1994, the Missouri Supreme Court adopted a new Rule 74.01(a), effective January 1, 1995. This rule states:
"Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" is filed. The judgment may be a separate document or included on the docket sheet of the case.
Article V, § 5 of the Missouri Constitution specifically authorizes the Missouri Supreme Court to "establish rules relating to practice, procedure and pleading." Rule 74.01(a) is clearly a procedural rule which the constitution permits the court to enact.
Prior to the new rule, confusion existed as to when a pronouncement or judgment was a final judgment for purposes of appeal. The new rule imposes new, specific requirements in order to reduce that confusion.
Under the new rule, a "writing" is required. Thus, an oral pronouncement is not a judgment under Rule 74.01(a). Additionally, the written judgment must be "signed by the judge."
The written judgment signed by the judge must be "denominated `judgment'." That is, the writing must be titled or labeled as a "judgment." This requirement is not a mere formality. It requires the trial court to carefully consider whether its decision constitutes a judgment, i.e. a "final determination of the right of the parties." § 511.020 RSMo 1994.
This requirement was added to establish a "bright line" test as to when a writing is a judgment. By so doing, trial courts and litigants would be cognizant that the document was intended as a judgment. Anything less causes confusion as to whether a final judgment exists and when the time to appeal begins to run.
The requirement that the writing be "denominated `judgment'" serves other salutary purposes. Without question, the judgment is the most important document in a case. In voluminous files, a judgment may be found more easily if it is titled or denominated "judgment."
Further, in many court tried cases, the document containing the judgment also includes lengthy findings of facts and conclusions of law. The actual portion of the document resolving the rights of the parties is contained at the end of the document. Locating the judgment in these files would be simplified by having it specifically labeled "judgment."
This requirement is consistent with the normal understanding of the term "denominated." Webster's Third New International Dictionary defines "denominate" as "to give a name to: call by a name." Thus, the written judgment must be signed by the judge and given the name "judgment." A reference to "judgment" in the body of a writing is not sufficient to make the writing a "judgment."
We recognize that our southern district colleagues reached a different conclusion in Kessinger v. Kessinger, No. 20542 (Mo.App.S.D. filed October 29, 1996). They concluded that a handwritten entry on the docket sheet that stated the court "enters Judgment in favor of [defendant] and [defendant] is ordered discharged w/costs assessed against [plaintiff]" initialed by the trial judge was sufficient compliance with the rule. Id. at slip op. 2. The court specifically rejected a requirement that the writing be titled "judgment." Id. at slip op. 5.
Also, in Berger v. Berger, Nos. 20521 and 20526 (Mo.App.S.D. filed October 17, 1996), the southern district found a docket entry was not denominated "judgment" within the meaning of Rule 74.01(a). There, the term "judgment" was not used anywhere in the entry. Id. at slip op. 3.
New Rule 74.01(a) has one additional requirement. That is, the written document does not become a judgment until it is "filed." Thus, if a judge signs a document in the judge's office and does not file it, the document is not a judgment within the meaning of Rule 74.01(a) until it is filed. The requirements for filing are set forth in Rule 43.01(h).
We turn now to the case before us. As indicated, only the March 17 "judgment" contains the word "judgment." It was labeled "MEMORANDUM FOR CLERK" and not "judgment." Nothing in the entry indicates it was a final judgment. Nor does it appear to be a "final determination of the right of the parties." Moreover, the subsequent actions of the trial court and the parties reflect that they did not treat it as a final judgment.
A final judgment is a pre-requisite to appellate review. Committee for Educ. Equality v. State, 878 S.W.2d 446, 450 (Mo.banc 1994). Here, a final judgment has not been entered as required by Rule 74.01(a).
We would dismiss the appeal without prejudice as premature for lack of a final judgment. However, because of the general interest of the application of Rule 74.01(a), as well as for the purpose of resolving an apparent conflict between the districts, we transfer to the Missouri Supreme Court. Rule 83.02.
OPINION CONCURRING IN RESULT
[38] I agree that this appeal must be dismissed for lack of jurisdiction. I further agree that clarification by the Missouri Supreme Court of what is required by Rule 74.01(a) would be useful. I respectfully disagree that this case is an appropriate vehicle for seeking such clarification. That is because we lack jurisdiction over this appeal regardless of whether any of the entries set forth verbatim in the majority opinion satisfied the requirements of Rule 74.01(a).Regardless of whether the March, April or May documents captioned "MEMORANDUM FOR CLERK" were "judgments," they clearly were not final and appealable judgments. The March memorandum was purportedly a default judgment but did not set forth the appropriate remedy and thus did not finally adjudicate the rights of the parties. The April memorandum could potentially have ripened into a final judgment but it was set aside, at least in part, within thirty days of its entry by the May memorandum, which also expressly reserved the issue of the appropriate remedy. Thus, neither the April or May memoranda were final appealable judgments regardless of whether they were otherwise deficient for failure to comply with Rule 74.01(a).
Aside from the question of whether it complied with Rule 74.01(a), the June memorandum otherwise appears to be a final appealable judgment. It clearly sets forth a complete remedy in the form of a permanent injunction. Of course, any attempt to appeal the June judgment would be unavailing because it was issued by consent. Thus, none of the parties would be in any position to claim they were aggrieved by it. Further, if the June order, despite its unfortunate caption, was a judgment, it became final thirty days after its entry because no motion for new trial was filed within the thirty days. Rules 75.01, 81.05. No notice of appeal was filed until December 5, 1996 nor was any request for leave to file a late notice of appeal timely filed pursuant to Rule 81.07. Therefore, the appeal is either untimely or, under the majority's analysis, premature. Either way, the appeal must be dismissed. The requested clarification is therefore unnecessary to the ultimate disposition of this appeal and should be deferred to a case in which resolution of the issue could conceivably affect the outcome. Alternatively, the Supreme Court could simply amend the rule and eliminate the ambiguity.
In the event the Supreme Court determines that this case is an appropriate vehicle for clarification, I respectfully submit that the June 16, 1995 document mis-captioned "MEMORANDUM FOR CLERK" sufficiently complies with Rule 74.01(a) to constitute a judgment. It is a separate document in writing, and signed by the trial judge. It specifically recites in the opening paragraph, prior to the numbered paragraphs setting forth in detail the terms of the relief ordered, that "By consent it is ORDERED, ADJUDGED AND DECREED as follows:". Neither the parties nor any member of the panel has suggested that there is any ambiguity as to the trial court's intent that the document constitute a final judgment. The majority, however, sua sponte holds that the document is not a judgment because it was not "denominated" as a judgment as required by Rule 74.01(a). According to the majority, the term "denominated" means the writing must be "titled or labeled" as a "judgment." Slip. op. at 4-5. Thus, the majority equates the term "denominated" with "captioned." Presumably, if the drafters of Rule 74.01(a) meant "captioned," they would have used that term.
I agree with the majority that use of the term "judgment" as a caption would in many instances clear up any confusion that may arise from an otherwise ambiguous order. There are instances, however, where use of the caption "judgment" would be inappropriate and inconsistent with the rules. For example, Rule 74.01(a) provides in the first sentence that the term "judgment" includes a "decree" and any "order" from which an appeal lies. Under the majority's construction of the rule, however, an "order" or "decree" nevertheless would not constitute a judgment unless captioned with the term "judgment." Rule 74.02, however, defines "order" as a direction of a court made or entered in writing "and not included in a judgment." Thus, if an "order" must be captioned "judgment," it is not an "order" and there could be no such thing as an "order from which an appeal lies." We know, however, that there are orders from which an appeal will lie. See, e.g., § 435.440 RSMo 1994 (designating certain orders in applications to compel arbitration as appealable).
In this case, the June 16, 1995 document is not ambiguous. It clearly employs the terms "ordered, adjudged and decreed" prior to the ordering clause, terms which are a form of the three types of entries Rule 74.01(a) says are to be regarded as judgments. In my view, this should be sufficient to satisfy the requirement that the writing be "denominated" a "judgment." Furthermore, in the event such terms are nonetheless deemed ambiguous, such ambiguity can be promptly removed by remanding the case for entry of a nunc pro tunc order as specifically authorized by Rule 74.06. We have routinely required parties to obtain such an order when ambiguities have come to the court's attention prior to submission. There is no apparent reason why we could not remand for such an order in this case. On the other hand, to hold that an otherwise unambiguous final judgment is not a judgment at all unless so captioned calls into question the finality of unknown numbers of cases where the error has not been caught. This could well include cases which have been adjudicated by this court because, under the majority's analysis, the defect is jurisdictional.
For the reasons set forth above, this is not a proper case in which to raise such weighty concerns. Resolving the ambiguities of Rule 74.01(a) will not change the outcome of this case and can be corrected by amendment of the rule. Pending such amendment, we should be loathe to adopt a construction of the rule that triggers such wide-ranging jurisdictional concerns.