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Bey v. Precythe

Court of Appeals of Missouri, Western District, Fourth Division

November 5, 2019

FREDRICO LOWE BEY, Appellant,
v.
ANNE PRECYTHE, ET AL., Respondents.

          Appeal from the Circuit Court of Cole County, Missouri The Honorable Cotton Walker, Judge.

          Before: Karen King Mitchell, Chief Judge, Presiding, Gary D. Witt, Judge, Anthony Rex Gabbert, Judge.

          Anthony Rex Gabbert, Judge.

         Fredrico Lowe Bey appeals the circuit court's denial of Bey's Petition for trial de novo after the circuit court dismissed with prejudice Bey's complaint against the Missouri Department of Corrections (DOC) and the Director of the DOC, Anne Precythe, alleging a violation of the Missouri Merchandising Practices Act. On appeal, Bey contends the motion court erred in dismissing his Petition for trial de novo as untimely. We reverse and remand.

         Background and Procedural Information

         On August 27, 2018, Bey filed a petition in small claims in the Cole County Circuit Court alleging the DOC and Precythe violated the Missouri Merchandising Practices Act by conspiring to sell defective televisions to Bey and other prison inmates. He also filed a motion and affidavit in support of his request to proceed as a poor person. On September 4, 2018, the court found Bey unable to pay the full amount of the filing fee of $40 and, pursuant to Section 506.369, RSMo 2016, found Bey must make an initial partial payment of $11.67 before any further proceedings would be had. The payment was to be remitted within thirty days of the order. Bey was to pay the balance of the fee in monthly installments until the fee was paid in full. The court received $15 on September 26, 2018, and summons were then issued to the defendants.

         On December 10, 2018, the Cole County Circuit Court dismissed Bey's petition with prejudice for failure to state a claim. The court ordered that funds be withdrawn from Bey's correctional center account pursuant to the Prisoner Litigation Reform Act in the sum of $20 which the court determined to be the balance of costs due in the case.

         Bey contends that he received the December 10, 2018, Judgment dismissing his complaint via prison mail on December 17, 2018. Bey then deposited into the prison mailbox a Petition for Trial De Novo on December 19, 2018. The record reflects that on December 26, 2018, the Circuit Clerk of Cole County sent Bey a letter stating that the office received his Petition for Trial De Novo "on Dec." The Clerk informed Bey that a $45 filing fee and separate service fee needed to be filed along with the Petition. Further, that if Bey desired to file as a "pauper" pursuant to Section 3 of the Prisoner Litigation Reform Act, the court could not accept filing of a civil action without a certified copy of Bey's correctional center account statement for the six months prior to the filing along with a motion to file as a pauper. The Clerk's notice stated that Bey's petition was being returned because he did not include a certified copy of his correctional center account statement. The court's docket entry on December 26, 2018, states: "Returning Trial De Novo to petitioner, he had no six month inmate account statement with filing."

         A little more than a week later, Bey resubmitted his petition and "Plaintiff's Petition for Trial de Novo Section § 482.365 RSMo" was filed by the Clerk on January 7, 2019. There is no indication in the record that a filing fee, a request to proceed in forma pauperis, or Bey's correctional center account statement were included with that petition. Also filed January 7, 2019, was correspondence by Bey averring that inmates must wait several weeks to receive requested prison account statements from Jefferson City, that Bey would send his as soon as it was received, and that the Clerk may receive a payment of $45 from Bey's attorney. Additionally, Bey stated, among other things: "I'm once again asking you to provide me with those Forms needed, so that I could make sure my pleading are adequate, which I'm not sure when the DOC is going to provide me with the printout." On January 8, 2019, the Clerk mailed Bey an Application for Trial De Novo.

         On January 29, 2019, the circuit court denied Bey's Petition for Trial De Novo on the grounds that, pursuant to Section 482.365, RSMo 2016, it was not filed within ten days after the Judgment dismissing Bey's merchandising practices claim was rendered. This appeal follows.

         Standard of Review

         We will affirm the circuit court's judgment unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 20, 32 (Mo. Banc 1976).

         "Statutory interpretation raises a question of law that we review de novo." State v. Eckert, 491 S.W.3d 228, 231 (Mo. App. 2016). "The primary rule of statutory interpretation is to effectuate legislative intent through reference to the plain and ordinary meaning of the statutory language." State v. Graham, 204 S.W.3d 655, 656 (Mo. banc 2006). "In determining the intent and meaning of statutory language, the words must be considered in context and sections of the statutes in pari materia, as well as cognate sections, must be considered in order to arrive at the true meaning and scope of the words." State ex rel. Evans v. Brown Builders Elec. Co., 254 S.W.3d 31, 35 (Mo. banc 2008) (internal quotation marks and citations omitted).

         Point on Appeal

         In his sole point on appeal, Bey contends that the circuit court erroneously dismissed his Petition for Trial De Novo under Section 482.365 as untimely because Section 482.365 does not require a correctional center account statement be filed with a petition. Respondents contend that Bey's petition was rightly rejected for failure to include an in forma pauperis motion, as well as a six-month correctional center account statement with the application. Respondents cite Missouri Supreme Court Rule 151.02 (2017) and state that "Filing fees, service fees, and sometimes bonds, are posted alongside the Petition for Trial De Novo to perfect and secure the request." Respondents also rely on Section 506.366 for the proposition that, either prepayment of filing fees or an in forma pauperis request along with a six-month account statement is required alongside filing to perfect the filing. Respondents ...


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