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Goldsby v. Lombardi

Supreme Court of Missouri, En Banc

July 31, 2018

GORDON F. GOLDSBY, Appellant,
v.
GEORGE LOMBARDI, Respondent.

          APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Daniel Richard Green, Judge

          LAURA DENVIR STITH, JUDGE

         Gordon Goldsby appeals the circuit court's decision dismissing his petition asking the court to order the Missouri Department of Corrections to provide him with a release date for his life sentence for rape. This Court rejects DOC's argument that the Court did not acquire jurisdiction of the appeal because Mr. Goldsby failed to timely file either a docket fee or a motion to proceed in forma pauperis with his notice of appeal. Rule 81.04's docket fee requirement is not jurisdictional. Under Rule 84.01, the failure to timely file a docket fee is cause for dismissal of the appeal if the fee or permission to proceed in forma pauperis are not obtained thereafter. Mr. Goldsby filed his docket fee within 11 days of the filing of his notice of appeal and, therefore, his appeal was timely.

         The circuit court correctly refused to require DOC to provide Mr. Goldsby with a final release date from his life sentence. His reliance on the "three-fourths rule" adopted in 1865 is unavailing. Since at least 1879, it has not applied to life sentences and has never applied to persons such as Mr. Goldsby who have conduct violations. As a person serving a life sentence, Mr. Goldsby has no release date, and the court below did not err in sustaining DOC's motion to dismiss and refusing to order it to set a release date for Mr. Goldsby.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 1990, a jury found Gordon Goldsby guilty of kidnapping under section 559.240, [1] rape under section 559.260, and assault with intent to do great bodily harm with malice aforethought under section 559.180, for crimes he committed in 1972. The court sentenced Mr. Goldsby to consecutive prison sentences of 10 years, life, and 25 years, respectively. In 2015, by which time Mr. Goldsby had served his sentence for kidnapping and was serving his life sentence for rape, he filed a petition seeking a declaration of his right to release from prison, arguing DOC improperly refused to provide him with a calculation of the date his life sentence would end. DOC filed a motion to dismiss, attached prior cases brought by Mr. Goldsby seeking release that had ended in dismissal, and indicated the courts' rationale in denying release in those cases supported refusing to set a release date in the instant case. On June 27, 2016, the circuit court entered a judgment dismissing the petition "for the reasons stated in the motion." The judgment became final 30 days later on July 27, 2016. Mr. Goldsby had 10 days to file his notice of appeal pursuant to Rule 81.04.

          Mr. Goldsby mailed a notice of appeal to the circuit court on July 28, 2016, including a note informing the clerk he had submitted a request for funds to be transferred from his inmate account to cover the docket fee. The clerk received the notice of appeal on August 5, 2016, which was within the 10-day period for filing a notice of appeal. The clerk notified Mr. Goldsby he still needed to pay the docket fee for the notice of appeal to take effect. On August 17, 2016, the clerk received and acknowledged receipt of the docket fee and stamped the notice of appeal as filed, but the court of appeals subsequently dismissed the appeal as untimely due to failure to timely file the docket fee. This Court granted transfer. Mo. Const. art. V, § 10; Rule 83.02.

         II. STANDARD OF REVIEW

         "The standard of review for a trial court's grant of a motion to dismiss is de novo." Ward v. W. Cty. Motor Co., 403 S.W.3d 82, 84 (Mo. banc 2013). "In determining the appropriateness of the trial court's dismissal of a petition, an appellate court reviews the grounds raised in the defendant's motion to dismiss." In re Estate of Austin, 389 S.W.3d 168, 171 (Mo. banc 2013). A "motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition." Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002). Mr. Goldsby's petition must, therefore, be "reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Smith v. Humane Soc'y of U.S., 519 S.W.3d 789, 798 (Mo. banc 2017). "[T]his Court will affirm a judgment of dismissal if any ground supports the motion, regardless of whether the trial court relied on that ground." Avery Contracting, LLC v. Niehaus, 492 S.W.3d 159, 162 (Mo. banc 2016). "If the motion to dismiss cannot be sustained on any ground alleged in the motion, the trial court's ruling will be reversed." Lang v. Goldsworthy, 470 S.W.3d 748, 750 (Mo. banc 2015).

         III. THE RULE 81.04(e) DOCKET FEE REQUIREMENT IS NOT A JURISDICTIONAL PREREQUISITE FOR AN APPEAL

         Article V, section 5 of the Missouri Constitution vests this Court with the power to "establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law." But the constitution specifically prohibits this Court from adopting rules that "change substantive rights, or the law relating to evidence, the oral examination of witnesses, juries, the right of trial by jury, or the right of appeal." Id. (emphasis added). It is the legislature that has the authority to determine the right of appeal as the "right of appeal is purely statutory and when the statutes do not give such right, no right exists." Kansas City Power & Light Co. v. Kansas City, 426 S.W.2d 105, 107 (Mo. 1968). Conversely, when the legislature has provided a right of appeal, this Court may not extinguish it through its rules of practice or procedure. Mo. Const. art. V, § 5.

         The statutes governing the substantive right to appeal are set out in chapter 512. Prior to 1997, section 512.050 required the filing of a notice of appeal, a $10 docket fee, and a transcript deposit for the notice of appeal to become effective, providing:

When an appeal is permitted by law from a trial court and within the time prescribed, a party or his agent may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final and all charges due to the court reporter for preparation of the transcript of the record of the trial court are paid within ten days of the filing of the notice of appeal. … After a timely filing of such notice of appeal, failure of the appellant to take any of the further steps to secure the review of the judgment or order appealed from does not affect the validity of the appeal, but is ground for such action as the appellate court deems appropriate, which may include dismissal of the appeal. The docket fee of ten dollars in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal.

§ 512.050, RSMo Supp. 1996 (emphasis added).

         The legislature removed the $10 docket fee requirement from section 512.050 in 1997 and has not readopted any docket fee requirement as a prerequisite for the effectiveness of a notice of appeal. § 512.050, RSMo Supp. 1997. As currently written, section 512.050 simply requires, in relevant part:

When an appeal is permitted by law from a trial court and within the time prescribed, a party or his agent may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.[2]

§ 512.050, RSMo 2016.

         In deleting the requirement that a docket fee must be filed for a notice of appeal to be effective, the legislature did not intend to preclude this Court from mandating by rule that the appellant must file a docket fee. To the contrary, the remainder of section 512.050 continues to authorize this Court to require an "appellant to take … further steps to secure the review of the judgment or order." Id. But the statute expressly states such additional steps will "not affect the validity of appeal." Id. Failure to take such steps, instead, simply provides a "ground for such action as the appellate court deems appropriate, which may include dismissal of the appeal." Id. In other words, this Court may impose additional requirements on an appellant such as the filing of a docket fee, briefs, transcripts, and so forth, but this Court cannot make those requirements affect the validity of the notice of appeal.

          Unfortunately, this Court's rules did not keep up with the 1997 legislative changes in section 512.050. In 1993, Rule 81.04 required, in pertinent part:

(a) Filing the Notice of Appeal. When an appeal is permitted by law from a trial court, a party may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten ...

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