Kyle Sanford v. Centurytel of Missouri, LLC

MISSOURI COURT OF APPEALS WESTERN DISTRICT

KYLE SANFORD, )

) WD77848

Respondent, )

v. ) OPINION FILED:

)

CENTURYTEL OF MISSOURI ) October 28, 2015 LLC, )

)

Appellant. )

Appeal from the Circuit Court of Boone County, Missouri

Honorable Christine Carpenter, Judge Before Division Two:

Thomas H. Newton, P.J., Victor C. Howard, and Mark D. Pfeiffer, JJ. CenturyTel of Missouri, LLC d/b/a CenturyLink (CenturyLink) appeal s a trial court order granting Mr. Kyle Sanford’s motion for partial summary judgment, which resulted in an order denying CenturyLink’s motion to compel arbitration in a putative statewide class action filed under the Missouri Merchandising Practices Act ( MMPA), § 407.010 RSMo et seq., to challenge a surcharge CenturyLink imposed on its Internet service customers. We dismiss the appeal as untimely.

Mr. Sanford, a Boone County, Missouri, resident, contracted with CenturyLink to purchase a package of services, including its “Pure Broadband Package,” for Internet access. He used the services from January 2012 to August 2012. Mr. Sanford filed a petition against CenturyLink in December 2012 on behalf of a putative class of Missouri consumers, alleging that a monthly “Universal Service Fund Surcharge,” which CenturyLink imposed on its customers, violated the MMPA because the Federal Communications Commission has ruled that this surcharge does not apply to Internet-only services. He further claimed that if CenturyLink justifies the surcharge “by providing more than internet-only services, the Named Plaintiff and Class Plaintiffs did not agree to these services.”

CenturyLink filed a motion to dismiss or stay and compel arbitration, asserting that Mr. Sanford’s claims were subject to an “Internet Services Agreement” that contained an arbitration clause limiting the individual claim to arbitration or small claims court. 1 The trial court denied CenturyLink’s motion to dismiss in July 2013 and ordered the parties to conduct discovery limited to the issue of arbitrability. Mr. Sanford thereafter filed a motion for “partial summary judgment limited to the issues of consideration and scope of the alleged agreements to arbitrate.” That motion requested an order to deny CenturyLink’s motion to compel arbitration. A July 10, 2014, docket entry reflects a court “order” granting the partial summary-judgment motion. It states,

After hearing and review of the pleadings the Court finds there is no genuine issue of material fact on the issue of consideration and the issue of arbitrability and the Movant is entitled to Partial Summary Judgment as a matter of law. Partial Summary Judgment is entered in favor of the Plaintiff as prayed.

CenturyLink filed a notice of appeal on August 18, 2014, which this Court dismissed in September on the ground that the case lacked a final and appealable judgment under section 512.020 RSMo 2000 and Rule 74.01(a). We subsequently granted CenturyLink’s motion for rehearing and reinstated the appeal, encouraging the parties to “consider, and address as appropriate, other contexts in which orders are subject to appeal independent of a final judgment.” In this appeal, Mr. Sanford filed a motion to dismiss and argues that this Court lacks jurisdiction because CenturyLink’s notice of appeal was untimely.

CenturyLink raises the following points on appeal: (1) whether its appeal of the order granting Mr. Sanford’s motion for partial summary judgment was timely; whether the trial court erred in denying CenturyLink’s motion to compel arbitration under (2) Louisiana and (3) Missouri contract law pertaining to consideration; and (4) whether the trial court erred in denying its motion to compel arbitration because the dispute falls within the arbitration clause’s broad scope. Because we are granting Mr. Sanford’s motion to dismiss, we do not address this appeal on the merits.

The timeliness of CenturyLink’s notice of appeal is a matter that goes to our authority to decide the merits. 2 CenturyLink contends that it has a statutory right to appeal the trial court’s ruling under section 435.440.1, 3 which, as part of the Missouri Uniform Arbitration Act, permits an appeal to “be taken from: An order denying an application to compel arbitration made under section 435.355.” The order grants Mr. Sanford’s motion for partial summary judgment, an order not necessarily final or appealable. 4 Because its effect was to deny CenturyLink’s motion to compel arbitration, however, and, indeed, this was the relief Mr. Sanford had requested, we agree that the order falls within section 435.440.1.

Subsection 2 further states that “[t]he appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action,” but it does not otherwise specify applicable filing deadlines. CenturyLink argues that under Rule 81.04(a), 5 a judgment may be appealed not later than ten days after the “judgment or order appealed from becomes final,” and, because a judgment becomes final thirty days after its entry under Rule 81.05(a), CenturyLink’s notice of appeal, filed within ten days following that thirty-day period, was timely. It also contends that under Rule 74.01(a), a judgment is defined as “a decree and any order from which an appeal lies.” Thus, it concludes, because Rule 81.05(a) renders a judgment final thirty days after its entry, an appealable order (such as the order at issue here) also does not become final until the expiration of that thirty-day period. 6

CenturyLink has cited an Eastern District case handed down after briefing in this matter concluded and argues that its comprehensive discussion of how the civil procedure rules intersect with an order denying a motion to compel arbitration supports CenturyLink’s position. Motormax Fin. Servs. Corp. v. Knight, No. ED102257, 2015 WL 4911825 (Mo. App. E.D. Aug. 18, 2015). During oral argument, CenturyLink conceded that the Eastern District court acknowledged a conflict with a Southern District ruling addressing this issue . Hershewe v. Alexander, 264 S.W.3d 717, 718 (Mo. App. S.D. 2008), held that a notice of appeal must be filed within ten days of entry of an order denying a motion to compel arbitration. We agree that the two cases conflict. 7 For reasons discussed below, we find Hershewe to be more compelling.

We question whether Rule 81.05(a) applies to a trial court order denying a motion to compel arbitration. First, the Missouri Supreme Court has expressly distinguished orders denying arbitration from final judgments. See Lawrence v. Beverly Manor, 273 S.W.3d 525 (Mo. banc 2009). There, the court acknowledged “the appealability of orders denying arbitration despite the fact that such orders are not final judgments.” Id. at 527 n.2 (emphasis added). Second, the court in Hershewe, 264 S.W.3d at 718, has categorically determined that “orders denying motions to compel arbitration are final and appealable immediately after the order has been issued and the notice of appeal must be filed within ten days of the final order denying an application to compel arbitration.” 8 See also Johnson v. Vatterott Educ. Ctrs., Inc., 410 S.W.3d 735, 737 n.1 (Mo. App. W.D. 2013) (citing Lawrence v. Beverly Manor and stating, “The order denying Vatterott’s motion to compel arbitration was immediately appealable.”); Sennett v. Nat’l Healthcare Corp., 272 S.W.3d 237, 240 (Mo. App. S.D. 2008) (noting that Federal Arbitration Act and section 435.440.1 “authorize immediate appeal and de novo review of a denial of a motion to compel arbitration”); Dunn v. Security Fin. Advisors, Inc., 151 S.W.3d 140, 143 (Mo. App. W.D. 2004) (ruling that the denial of a motion to compel arbitration is subject to “immediate appeal”); Young v. Prudential Sec., Inc., 891 S.W.2d 842, 844 (Mo. App. E.D. 1995) (finding that the orders the Legislature has designated as appealable under section 435.440 “partake of such finality as to constitute final orders or judgments.”). 9

With a body of Missouri case law stating that an order denying a motion to compel arbitration is subject to “immediate appeal” and describing section 435.440 orders as partaking of “such finality as to constitute final orders or judgments,” we cannot reach any other conclusion. It is significant to our conclusion that in other scenarios where otherwise interlocutory “orders” are declared by law to be final for purposes of appeal, our courts have concluded that the ten-day time frame within which to file a notice of appeal begins to run immediately. In Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 392-93 (Mo. banc 1993), the supreme court held that an appeal from an interlocutory order granting a motion for new trial (appealable under section 512.020(1)) must be filed within ten days of its entry. 10 In Craft v. Philip Morris Companies, Inc., 190 S.W.3d 368, 376 (Mo. App. E.D. 2005), the Eastern District held that an order granting or denying class certification (appealable under section 512.020(3)) must be filed within ten days of its entry. Similarly, Missouri courts have held that interlocutory probate court orders declared “final for purposes of appeal” by section 472.160.1 must be appealed within ten days of their entry. In re Estate of Standley, 204 S.W.3d 745, 748-49 (Mo. App. S.D. 2006). 11

We would further note that when the order denying the motion to compel arbitration was entered here, the controlling authority on the timeliness of an appeal from such orders was Hershewe. In light of that authority, a party taking action that did not conform did so at its peril. 12 The trial court’s order was final, and CenturyLink had ten days to take its appeal from that order. Because it did not do so, its appeal, filed more than ten days after it was entered, was not timely.

We would also observe, as a matter of policy, that this interpret ation will advance the interests promoted by arbitration, which include allowing “for efficient, streamlined procedures” and the speedy resolution of disputes. AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1749 (2011). Accordingly, we grant Mr. Sanfo rd’s motion to dismiss CenturyLink’s untimely appeal and remand for further proceedings consistent with this opinion.

/s/ THOMAS H. NEWTON Thomas H. Newton, Presiding Judge Howard and Pfeiffer, JJ. concur.