Court of Appeals of Missouri, Western District, Second Division
AARON M. DOUGHERTY, SR., et al., Appellants,
THE MISSOURI DEPARTMENT OF SOCIAL SERVICES / THE CHILDREN'S DIVISION, et al., Respondents.
FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable
Kenneth R. Garrett, III, Judge
Lisa White Hardwick, Presiding Judge, Thomas H. Newton and
Mark D. Pfeiffer, Judges
WHITE HARDWICK, JUDGE
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.
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.
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
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.
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,
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.
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.
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.
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
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 ...