William Scott Johnston v. Saladino Mechanical and Cincinnatti Insurance Company , 504 S.W.3d 138 ( 2016 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
WILLIAM SCOTT JOHNSTON, )
)
Respondent, )
)
v. ) WD79512
)
SALADINO MECHANICAL AND ) Opinion filed: November 15, 2016
CINCINNATI INSURANCE COMPANY, )
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY, MISSOURI
THE HONORABLE R. MICHAEL WAGNER
Before Division One: Thomas H. Newton, Presiding Judge,
Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge
Saladino Mechanical and the Cincinnati Insurance Company appeal from an order denying
their Petition for Stay of Execution relating to a judgment entered by the Circuit Court of Cass
County pursuant to section 287.5001 in favor of William Scott Johnston. Because we find that we
lack the jurisdiction to hear the appeal, we dismiss.
Factual and Procedural Background
William Scott Johnston (“Johnston”) sustained an injury arising out of the course of his
employment in Harrisonville, Missouri, on December 20, 2007. Johnston subsequently filed a
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All statutory citations are to the Revised Statutes of Missouri, 2010, as supplemented.
claim with the Missouri Division of Workers’ Compensation against his employer, Saladino
Mechanical, and its insurer, Cincinnati Insurance Company (collectively “Appellants”). Following
a hearing before an administrative law judge, an award was entered on September 30, 2014, in
favor of Johnston and directing the Appellants to pay him past and future medical expenses and
permanent total disability benefits. The award of the administrative law judge was appealed to the
Missouri Labor and Industrial Relations Commission (“Commission”) which affirmed the
administrative law judge’s decision on May 28, 2015, in a final award that specifically recited that
“[a]ny past due compensation shall bear interest as provided by law.” The final award of the
Commission was not appealed.
The Appellants paid the principal sum due under the Commission’s final award but refused,
and continues to refuse, to pay any interest that Johnston claims is due and owing. Johnston,
seeking a mechanism to enforce the Commission’s final award and collect the interest he asserts
is due to him, filed a petition in the Circuit Court of Cass County on August 17, 2015, to have the
final award reduced to a judgment pursuant to section 287.500. A hearing on the petition was held
on November 23, 2015,2 and the circuit court entered its judgment on December 28, 2015. No
appeal of this judgment was taken and the record does not reflect any attempt by Johnston to
formally execute on the judgment.
On January 6, 2016, Appellants filed a Petition for Stay of Execution of the judgment
issued December 28, 2015, arguing that it was “void in that it [was] not sufficiently definite and
certain such that it may be enforced by the Court without resorting to external proof or a further
hearing.” Suggestions in support and opposition were filed by the parties and a hearing held on the
matter. The circuit court denied the Petition for Stay of Execution by order issued February 19,
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The Appellants did not appear at the November 23, 2015, hearing.
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2016. The February 19, 2016, order was denominated as an “Order” on the docket, titled as an
“Order,” and concluded with the phrase “it is so ordered.” The Appellants filed a Notice of Appeal
on March 18, 2016, appealing the circuit court’s order denying their Petition for Stay of Execution
and attaching the same.3
Discussion
The crux of this case is the Appellants’ contention that the judgment entered by the circuit
court is void and unenforceable on the grounds that it is “not sufficiently definite and certain” on
the issue of interest owed to Johnston. The action brought by Johnston in the circuit court reduced
the Commission’s final award to a judgment for the purpose of compelling enforcement. See Roller
v. Steelman, 297 S.W.3d 128, 134 (Mo. App. W.D. 2009) (“Section 287.500 provides a means by
which a final award can be enforced by the circuit court.”); Brown v. Color Coating, Inc., 867
S.W.2d 242, 244 (Mo. App. S.D. 1993) (“[P]roceedings pursuant to § 287.500 merely provide a
method for enforcement of the [worker’s compensation] award.”). The obligations imposed on the
Appellants, however, are established in the Commission’s final award.4 In this case, the Appellants
did not appeal the Commission’s final award or the judgment entered by the circuit court pursuant
to section 287.500 but instead filed a Petition for Stay of Execution, the denial of which is now
before us in this appeal.
3
Upon a request to demonstrate the existence of a final reviewable judgment as defined by Rule 74.01(a), the
Appellants furnished this court with a copy of the circuit court’s December 28, 2015, judgment that reduced the
Commission’s final award to a judgment. This is inconsistent with the Appellants’ notice of appeal that listed the date
of judgment as February 19, 2016, and attached the February 19, 2016, order denying its Petition for Stay of Execution
as the judgment being appealed. Further, even if we were to consider, arguendo, that the appeal now before us is taken
from the December 28, 2015, judgment, this court would lack jurisdiction to hear the appeal, as it would have been
brought outside of the time permitted to bring the appeal. See Rule 81.04; 81.05; Matter of Foreclosure of Liens for
Delinquent Land Taxes v. Parcels of Land Encumbered with Delinquent Tax Liens, 484 S.W.3d 806, 808 (Mo App.
W.D. 2016).
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“A section 287.500 action is purely ministerial.” Roller, 297 S.W.3d at 134. “Thus, the circuit court may only enter
a judgment that is in accord with the Commission’s [final] award.” Id.
3
The Appellants’ Petition for Stay of Execution was filed pursuant to Rule 76.255 which
states, in relevant part, that a “person whose property has been levied upon may apply to the judge
of the division of the court out of which the same was issued for a stay of execution or to quash
the execution.” (emphasis added). We note at the outset that the Appellants’ Petition for Stay of
Execution appears to have been brought prematurely. There is no indication in the record that any
attempt has been made by Johnston to levy upon the property of the Appellants. Missouri case law
supports the logical conclusion that an attempt to execute upon a judgment is a necessary
prerequisite to a request to stay execution. See Southern Missouri Dist. Council of the Assemblies
of God, Inc. v. Kirk, 334 S.W.3d 599, 603 (Mo. App. S.D. 2011) (“[Appellant] could have waited
until execution had issued and then sought a stay pursuant to Rule 76.25.”); Noble v. Noble, 456
S.W.3d 120, 127 (Mo. App. W.D. 2015) (finding appeal of motion to quash garnishment was moot
as garnishments had either expired, been released, or withdrawn). While the apparent prematurity
of the Appellants’ motion would otherwise be a concern, especially given that the Petition for Stay
of Execution was the sole effort by the Appellants to collaterally attack the judgment of the circuit
court, we are unable to reach this issue, as there is an even more urgent problem with the appeal.
Before a court may address the merits of an appeal, we must first determine, sua sponte,
whether we have the jurisdiction to review it. Capital Finance Loans, LLC v. Read, 476 S.W.3d
925, 927 (Mo. App. W.D. 2015). “The right to appeal is purely statutory and where a statute does
not give a right to appeal, no right exists.” State ex rel. Koster v. ConocoPhillips Co., 493 S.W.3d
397, 399 (Mo. banc 2016). Consequently, an appeal that lacks statutory authority, and thus the
right to be brought, is beyond the jurisdiction of this court to hear. Schulze v. Erickson, 17 S.W.3d
588, 590 (Mo. App. W.D. 2000).
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All references are to Missouri Supreme Court Rules (2016).
4
The statutory authority to bring an appeal is found in section 512.020, which permits an
appeal to be brought from, among other rulings, any “[f]inal judgment in the case or from any
special order after final judgment in the cause.” Missouri courts have understood the phrase “any
special order after final judgment in the cause” to refer “to the orders in special proceedings
attacking or aiding the enforcement of the judgment after it has become final in the action in which
it was rendered.” Basta v. Kansas City Power & Light Co., 410 S.W.3d 743, 747 (Mo. App. W.D.
2013). “A motion to stay execution is obviously one attacking the enforcement of the judgment,
and as such the order which the court makes upon it is one from which an appeal will lie.” City of
Caruthersville v. Cantrell, 241 S.W.2d 790, 791 (Mo. App. E.D. 1951)
The issue is not settled, however, because the Missouri Supreme Court has made it clear
that the requirements of Rule 74.01(a) apply to the special orders found in section 512.020. See,
e.g., Spiece v. Garland, 197 S.W.3d 594, 595 (Mo. banc 2006); Brooks v. Brooks, 98 S.W.3d 530,
532 (Mo. banc 2003). Rule 74.01(a) defines the term judgment and states that it “includes a decree
and any order from which an appeal lies.” (emphasis added). Rule 74.01(a) further states, “a
judgment is entered when a writing signed by the judge and denominated ‘judgment’ or ‘decree’
is filed.” The rule therefore requires that for an appeal to be taken, it must be from a decision of
the lower court that has been reduced to writing, signed by the judge, and denominated a
“judgment” or “decree.” The Missouri Supreme Court has firmly stated that an otherwise
appealable special order “must be perfected in this way under Rule 74.01(a) before it can constitute
an order from which an appeal lies under section 512.020.” Spiece, 197 S.W.3d at 595–96; Brooks,
98 S.W.3d at 532 (“[T]o perfect the appeal it is still necessary to denominate the order as a
‘judgment or decree.’”); see also Hamilton v. Hamilton, 278 S.W.3d 730, 732 (Mo. App. W.D.
2009) (holding same). The order of the trial court entered on February 19, 2016, is denominated
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as an order on the docket sheet, is titled as an order, and concludes with the language “it is so
ordered.” The order does not contain the words “judgment” or “decree” and, as such, does not
meet the requirements of Rule 74.01(a), is not a final judgment for the purpose of appeal, and thus
is not suitable for review by this court.
The appeal is dismissed without prejudice for lack of a final, appealable judgment.
__________________________________________
EDWARD R. ARDINI, JR., JUDGE
All concur.
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