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Dougherty v. Missouri Department of Social Services

Court of Appeals of Missouri, Western District, Second Division

July 16, 2019

AARON M. DOUGHERTY, SR., et al., Appellants,
v.
THE MISSOURI DEPARTMENT OF SOCIAL SERVICES / THE CHILDREN'S DIVISION, et al., Respondents.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable Kenneth R. Garrett, III, Judge

          Before Lisa White Hardwick, Presiding Judge, Thomas H. Newton and Mark D. Pfeiffer, Judges

          LISA WHITE HARDWICK, JUDGE

         Aaron Dougherty and Kelsey Dougherty, individually and as next friends of M.G.P., A.M.D., Z.N.D., and A.A.D. ("the Doughertys") appeal the circuit court's entry of summary judgment in favor of three Children's Division employees on the Doughertys' negligence claims against them. The Doughertys contend the court erred in finding that the doctrine of official immunity barred their claims. Because we find that the Doughertys' notice of appeal was untimely filed, we dismiss the appeal.

         Procedural History

         In September 2016, the Doughertys filed a petition asserting claims of negligence against the Department of Social Services/Children's Division ("the Division"); Jennifer McIntyre individually and as an Investigator II; Courtney Whited, individually and as an Investigations Supervisor; Karla Moran, individually and as a Children's Service Worker I; Judith Keillor, individually and as a Children's Service Supervisor; and Heather Barry, individually and as a Children's Division Specialist.

         On October 16, 2017, the court dismissed the Doughertys' claim against the Division after finding that sovereign immunity barred their claim. The court declined to dismiss the Doughertys' claims against McIntyre, Whited, and Barry ("Respondents").

         Respondents subsequently filed a motion for summary judgment. On February 14, 2018, the court granted their motion after finding the doctrine of official immunity barred the Doughertys' claims against them.

         On March 14, 2018, the Doughertys filed a motion titled, "Motion to Amend Judgment and for New Trial Pursuant to Rule 78." The court denied this motion on March 28, 2018.

         The Doughertys filed a notice of appeal on April 27, 2018. See Dougherty v. Mo. Dep't of Soc. Servs., Case No. WD81714 ("first appeal"). Respondents moved to dismiss the first notice of appeal as untimely filed, noting that, pursuant to Rule 81.05(a)(2)(B), the February 14, 2018 summary judgment became final when the court ruled on the Doughertys' motion to amend and for a new trial; therefore, under Rule 81.04(a), the notice of appeal was due on April 9, 2018, which was ten days after the judgment became final on March 28, 2018.

         While the first appeal was pending, this court sent a letter to the parties noting that the summary judgment did not appear to be a final judgment because it did not appear to dispose of the Doughertys' claims against Karla Moran and Judith Keillor. We asked that the Doughertys and Respondents file suggestions as to why the first appeal should or should not be dismissed on this basis.

         In their suggestions, the Doughertys stated that they had entered into an agreement with Respondents, prior to Respondents' filing their answer, to have Moran and Keillor removed as parties from the lawsuit and that Moran and Keillor "may be removed from the case based solely upon the ground of their not being served with process." The Doughertys admitted that they failed to have Moran and Keillor removed from the case caption solely due to an oversight of their counsel but that they continued to believe, per the agreement, that Moran and Keillor should be removed as parties from the lawsuit. The Doughertys further stated that the transcript of a deposition taken on April 21, 2017, shows a conversation between counsel discussing this agreement. Therefore, the Doughertys argued that the summary judgment was a final judgment and their appeal should be allowed to go forward.

         In their suggestions, Respondents, like the Doughertys, argued the summary judgment was a final judgment because the record clearly established that the Doughertys had abandoned their claims against Moran and Keillor. Respondents asserted that, pursuant to case law, abandoned claims need not be adjudicated in a final judgment, and a judgment that fails to mention a party's abandoned claims where the record establishes that the party intended to abandon those claims prior to entry of judgment is final and appealable. Respondents argued that, because the summary judgment was a final judgment, the Doughertys' notice of appeal was untimely filed. After considering the parties' suggestions, we dismissed the first appeal as untimely filed. See Dougherty v. Mo. Dep't of Soc. Servs., Case No. WD81714.

         After we dismissed their first appeal, the Doughertys filed a "Voluntary Dismissal of All Claims Against Defendants Karla Moran and Judith Keillor" in the circuit court on August 24, 2018. The Doughertys then filed a second notice of appeal in this court on August 27, 2018 ("second appeal"). In their second notice of appeal, the Doughertys listed the dates of the "judgment/decree/order" as October 16, 2017, the date of the court's dismissal of the claim against the Division; February 14, 2018, the date of the ...


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