In the Missouri Court of Appeals Eastern District 

 DIVISION III 

 RICHARD BURTON, and   ) PATRICIA BURTON,                  )  No. ED98171       )   Appellants,   )  Appeal from the Circuit Court       )  of St. Louis County  vs.      )        )  Honorable Ellen H. Ribaudo  JANICE KLAUS,     )        )   Respondent.       )  FILED:  February 11, 2014 

 Introduction 

  Richard and Patricia Burton (“the Burtons”) appeal from the trial court’s judgment 

awarding attorney fees to Janice Klaus (“Klaus”).  On appeal, the Burtons claim that the trial 

court’s judgment awarding attorney fees is invalid because the trial court lacked jurisdiction over 

the case when it entered its judgment.  Because the Burtons did not preserve their challenge to 

the trial court’s judgment and award of attorney fees for appeal, we dismiss the appeal. 

Factual and Procedural History 

 In June 2009, the Burtons entered into a residential sale contract with Klaus for the 

purchase of a home located in St. Louis County.  Section 13 of the residential sale contract 

provided that, “[i]n the event of litigation between the parties, the prevailing party shall recover, 

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in addition to damages or equitable relief, the cost of litigation including reasonable attorney’s 

fees.”   

   In December 2010, the Burtons filed a petition in the Circuit Court of St. Louis County 

alleging breach of the residential sale contract, fraudulent misrepresentation, negligent 

misrepresentation, and violation of the Merchandising Practices Act.  The petition requested 

judgment in the Burtons’ favor as well as costs, expenses, and attorney fees.  Klaus filed an 

answer to the Burtons’ petition, which included a prayer for relief requesting that the petition be 

dismissed and that she be awarded attorney fees and costs pursuant to Section 13 of the 

residential sale contract.  At the same time, Klaus filed a motion for summary judgment.  In her 

suggestions in support of summary judgment, Klaus requested judgment as a matter of law as 

well as “10 days from the entry of judgment to file a Motion for Attorney Fees pursuant to 

Section 13 of the Residential Sale Contract.”   

 On November 21, 2011, the trial court entered summary judgment in favor of Klaus on 

all counts (“November 21, 2011 Order and Judgment”).  On December 15, 2011, Klaus filed 

“Defendant’s Motion for Attorney Fees and Related Costs.”  Klaus’s motion cited Section 13 of 

the residential sale contract and requested attorney fees and related costs in the amount of 

$28,607.55.   

On February 24, 2012, the trial court entered a subsequent order and judgment awarding 

$12,000 in attorney fees plus $2,950.35 in costs to Klaus per the terms and conditions of the 

residential sale contract (“February 24, 2012 Order and Judgment”).  

 On March 5, 2012, the Burtons filed their notice of appeal to this Court.  The notice of 

appeal stated that the Burtons were appealing the November 21, 2011 Order and Judgment, the 

trial court’s entry of summary judgment.  The Burtons described their case on appeal as an 

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appeal of the trial court’s award of summary judgment on the basis that the trial court 

erroneously characterized questions of fact as questions of law.   

 On June 5, 2012, this Court issued the Burtons an Order to Show Cause for filing their 

notice of appeal out of time.  In the Order to Show Cause, this Court stated that the trial court 

entered its judgment on November 21, 2011, and further noted that the motion for attorney fees 

filed by Klaus was not an authorized after-trial motion.  As a result, per Rules 81.04(a)1 and 

81.05(a), the judgment of November 21, 2011 became final on December 21, 2011, and the 

Burtons’ notice of appeal was due 10 days later, or January 3, 2012.  The Order to Show Cause 

further stated: “The notice of appeal would be timely as to the February 24, 2012 judgment 

awarding attorneys’ fees, but Appellant does not appear to be appealing it.”  We then instructed 

the Burtons to show cause as to why the appeal should not be dismissed for lack of a timely 

notice of appeal. 

 In their response to this Court’s Order to Show Cause, the Burtons maintained that the 

November 21, 2011 Order and Judgment was not a final appealable judgment because the Order 

and Judgment did not adjudicate Klaus’s claim or right to attorney fees.  The Burtons claimed 

that the trial court’s November 21, 2011 Order and Judgment did not become a final judgment 

for purposes of appeal until amended by the trial court in its February 24, 2012 Order and 

Judgment.  The Burtons argued that Klaus’s motion for attorney fees actually operated as a 

motion to amend the judgment or motion for new trial, two of the six after-trial motions 

permitted by Rule 78.04 that extend the time at which the trial court’s judgment becomes final to 

90 days for purposes of filing a notice of appeal.  In further support of their argument, the 

Burtons claimed the November 21, 2011 Order and Judgment was not a final judgment because, 

under Rule 74.01(b), any order that adjudicates fewer than all of the claims or rights and 

                                                 1 All rule references are to Mo. R. Civ. P. (2012).   

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liabilities of the parties does not terminate the action.  The Burtons alleged that Klaus’s prayer 

for relief in her answer, which requested attorney fees, was essentially a counterclaim that was 

not adjudicated by the November 21, 2011 Order and Judgment.   

 On June 11, 2013, this Court entered an Order stating that the question of our jurisdiction 

over the appeal would be taken with the case.  In that Order, this Court again stated that Klaus’s 

motion for attorney fees was not an authorized after-trial motion that would extend the time for 

filing a notice of appeal, citing Glandon v. Daimler Chrysler Corp., 142 S.W.3d 174, 178 (Mo. 

App. E.D. 2004).  As a result, the Burtons were required to file their notice of appeal from the 

trial court’s entry of summary judgment no later than January 3, 2012, which they failed to do.  

We further rejected the Burtons’ claim that the November 21, 2011 Judgment was not final for 

purposes of appeal because Klaus’s prayer for relief in her Answer was in fact a counterclaim 

that was not disposed of by the trial court.  However, this Court also stated that the Burtons 

“claim to be aggrieved by the judgment of February 24, 2012.  We shall consider the notice of 

appeal filed on March 5, 2012 timely as to that judgment.”  We then directed the Burtons to 

submit their appellate brief by August 9, 2013.   

Point on Appeal 

 In their only point on appeal, the Burtons argue that the trial court’s February 24, 2012 

Order and Judgment awarding attorney fees and costs is invalid because the trial court lacked 

jurisdiction to enter further orders in the case after its November 21, 2011 Order and Judgment 

became final on December 21, 2011.2 

                                                 2 In their response to this Court’s Order to Show Cause for filing a late notice of appeal, the Burtons argued that the trial court’s November 21, 2011 Order and Judgment was not final until the trial court entered its February 24, 2012 Order and Judgment awarding attorney fees.  The Burtons now argue just the opposite – that the November 21, 2011 Order and Judgment was a final judgment, and therefore the trial court erred in entering its February 24, 2012 Order and Judgment. 

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Discussion 

 Initially, we must sua sponte consider this Court’s authority to review the Burtons’ 

appeal.  St. Louis Union Station Holdings, Inc. v. Discovery Channel Store, Inc., 272 S.W.3d 

504, 505 (Mo. App. E.D. 2008).  Generally, under Rule 81.04(a), a notice of appeal must be filed 

no later than 10 days after a judgment becomes final.  Rule 81.04(a).  A judgment becomes final 

30 days after its entry if no timely, authorized after-trial motion is final.  Rule 81.05(a)(1).  

However, if a party files an authorized after-trial motion, the time at which a judgment becomes 

final – for purposes of ascertaining the time within which an appeal may be taken – is extended 

for up to 90 days.  Rule 81.05(a)(2).  The Missouri Supreme Court has recognized six authorized 

after-trial motions: 

1.  Motion to dismiss without prejudice after the introduction of evidence at trial, pursuant to Rule 67.01. 

2.  Motion for directed verdict under Rule 72.01(a). 3.  Motion for judgment notwithstanding the verdict under Rule 72.01(b). 4.  Motion to amend the judgment pursuant to Rule 78.04 (formerly Rule 73.01(a)(5)). 5.  Motion for relief from a judgment or order pursuant to Rule 74.06(a) and (b). 6.  Motion for new trial under Rule 78.04. 

Glandon, 142 S.W.3d at 177 (citing Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 392 

(Mo. banc 1993)). 

 In Glandon, this Court held that a petition for attorney fees is not an authorized after-trial 

motion that serves to extend the time period for filing a notice of appeal.  Id. at 178.  Based on 

Glandon, this Court previously held that Klaus’s motion for attorney fees was not an authorized 

after-trial motion for purposes of extending the time period for appeal.  Because the motion for 

attorney fees did not extend the time for appeal, the trial court’s entry of summary judgment on 

November 21, 2011, became final on December 21, 2011.  The Burtons then had 10 days to file 

their notice of appeal.  Because the Burtons did not file their notice of appeal until March 5, 

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2012, they failed to meet the requirements of Rule 81.04(a) and their notice of appeal was 

untimely.  We see no reason to digress from this Court’s earlier ruling and Order.   

 Although Burton’s notice of appeal was held to be untimely as to the trial court’s 

November 21, 2011 entry of summary judgment, we stated in our Order of June 11, 2013 that 

because the Burtons claimed to be aggrieved by the February 24, 2012 judgment awarding 

attorney fees, we “shall consider the notice of appeal filed on March 5, 2012 timely as to that 

judgment.”   

 While the Burtons’ notice of appeal was deemed timely as to the trial court’s judgment 

awarding attorney fees, substantive deficiencies in the notice nevertheless require our dismissal 

of the appeal.  Rule 81.08(a) requires that a notice of appeal specify the judgment or order 

appealed from.  Rule 81.08(a); Schrader v. QuikTrip Corp., 292 S.W.3d 453, 456 (Mo. App. 

E.D. 2009).  Our review on appeal is confined to a review of the decision identified in the notice 

of appeal.  Maskill v. Cummins, 397 S.W.3d 27, 32 (Mo. App. W.D. 2013).  

Here, the Burtons’ notice of appeal specifically states that they appeal from the judgment 

entered on November 21, 2011 – the trial court’s entry of summary judgment.  Moreover, the 

civil case information form filed with the notice of appeal further provides: 

Plaintiffs appeal the trial court’s award of summary judgment on their breach of contract, negligent misrepresentation, fraudulent misrepresentation and MMPA claims on the basis that the trial court erroneously characterized questions of fact that should have been left for the jury as questions of law and erroneously entered summary judgment in favor of Defendant.    The Burtons clearly described the issue to be raised on appeal – that “the trial court 

erroneously characterized questions of fact that should have been left for the jury as questions of 

law and erroneously entered summary judgment in favor of Defendant.”  The notice of appeal is 

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- Opinion_ED98171 Burton 222.pdf
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