Brian Moody
Brian Moody earned his bachelor’s of science from Missouri State University and juris doctor from the University of Missouri School of Law. He has accepted an associate attorney position with the law firm of Kutak Rock, LLP starting August 2023 and plans to work in the firm’s Springfield office. The author thanks Anthony J. Meyer for his encouragement and editorial hand and Sharon Dufoe for her excellent illustration.
Dismissing appeals for lack of a final judgment is a common occurrence in Missouri’s state appellate courts. 1 In such cases, the parties expend the time and cost of fully briefing the merits of an appeal, and the appellate court hears oral argument. After all that, the appellate court then has no choice but to dismiss the appeal for lack of a “final judgment.” The parties are left to return to the circuit court empty-handed and pick up litigation where they left off – all at significant expense and delay.
In recent years, however, the Supreme Court of Missouri has issued multiple decisions examining the criteria that must be met for a judgment to be considered final and, consequently, from which judgments parties can appeal in the typical civil case. Out of that series of decisions, a test has been piecemealed, and the resulting framework provides litigants with a reliable method for determining when a judgment may be considered a final judgment from which an appeal may be taken in Missouri’s state appellate courts. 2 This article first discusses the Court’s recent decisions, then synthesizes the test developed in those decisions, and ultimately illustrates the test for final judgments in a decision tree for ease of use.
State ex rel. Henderson v. Asel
The Court’s recent clarification of final judgments began with State ex rel. Henderson v. Asel. 3 In that case, the relator was a plaintiff in a lawsuit filed in the Boone County circuit court that challenged the results of a sales tax election under the Community Improvement District Act. 4 The defendants filed a motion to dismiss the petition for lack of subject matter jurisdiction, which the circuit court granted in an order. 5 The relator attempted to appeal the dismissal order to the Supreme Court of Missouri, but the Court dismissed the appeal for lack of an appealable judgment. 6 Back in the circuit court, the relator filed a motion requesting the circuit court to denominate the order a “judgment,” which the circuit court overruled. 7 The relator then filed a petition for a writ of mandamus, seeking to compel the circuit court to denominate its dismissal order a “judgment.” 8 The Court issued a preliminary writ and subsequently issued an opinion making the preliminary writ permanent. 9 Put simply, the Court determined the circuit court’s order was, in substance, a judgment and, because a circuit court “has no discretion to resolve claims other than by judgment,” it made permanent the preliminary writ compelling the circuit court to sign and file a judgment dismissing the relator’s claim. 10
For purposes of this discussion, Henderson’s key holding is that there are two aspects to what makes a judicial order a “judgment.” 11 The first is substantive and establishes what an order must do to qualify as a judgment: “[A] judgment is a legally enforceable judicial order that fully resolves at least one claim in a lawsuit and establishes all the rights and liabilities of the parties with respect to that claim.” 12 The second aspect relates to form. A judgment must be in writing, denominated “judgment,” and signed by the judge. 13 When an order meets these requirements of substance and form, it qualifies as a “judgment.”
With respect to final judgments, Henderson did nothing new. In fact, it spilled very little ink discussing final judgments at all, and when it did, it recited the familiar rule that a final judgment is one that “resolves all claims by and against all parties, or . . . the last such claim and some (but not all) claims have been resolved previously.” 14 Yet Henderson has proven to be indispensable to the Court’s final‑judgments jurisprudence because it broke new ground in articulating the substantive requirements of a judgment, 15 and the Court appears to have carried those substantive requirements forward in every case discussing final judgments since.
Wilson v. City of St. Louis
On Henderson’s heels, the Court decided Wilson v. City of St. Louis, 16 which squarely took on the requirements for a final judgment. Wilson stands as the Court’s most comprehensive recent treatment of the issue and, for that reason, warrants detailed study. The case began when two residents of the City of St. Louis filed suit against the city, the State of Missouri, the city treasurer, and four municipal officers. 17 Among other things, the residents sought a judgment declaring §§ 82.485 and 82.487 (the “parking statutes”) unconstitutional under Article VI, § 22 of the Missouri Constitution. 18 As litigation progressed, a city alderman intervened as a plaintiff and asserted many of the same claims as the residents, including a challenge to the constitutional validity of the parking statutes. 19
After the city alderman intervened, the city filed a cross‑claim against its co‑defendant, the State of Missouri. Like the residents and the intervenor, the city sought a declaration that the parking statutes were unconstitutional. 20 The city then filed a motion for partial summary judgment on its cross‑claim, and the circuit court sustained the motion in an order entered on April 5, 2018, which the Court’s opinion refers to as the “April 5 Order.” 21
Seeing the city’s success on summary judgment, the residents and the intervenor shortly followed suit and filed a joint motion for partial summary judgment on their claims seeking a declaration that the parking statutes were unconstitutional and requesting injunctive relief. 22 Consistent with its ruling on the city’s motion, the circuit court sustained their joint motion for partial summary judgment in an order granting declaratory relief – but which did not address injunctive relief – the “October 25 Declaratory Order.” 23 The circuit court then entered a separate order granting permanent injunctive relief, the “October 25 Injunctive Order.” 24 Subsequently, the circuit court certified all three orders for immediate appeal pursuant to Rule 74.01(b). 25
Invoking the Supreme Court of Missouri’s exclusive appellate jurisdiction over cases involving the constitutional validity of a state statute, 26 the state appealed the April 5 Order and the October 25 Injunctive Order, and the city treasurer appealed only the October 25 Declaratory Order. 27 Meanwhile, several counts of the residents’ and the intervenor’s respective petitions remained pending in the circuit court. 28
Before reaching the merits of the appeals, the Court examined its appellate jurisdiction. 29 The Court acknowledged that, because the right to appeal is purely statutory, any examination of appellate jurisdiction must begin by determining which statute grants the right to appeal. 30 Inthe typical civil case, the statute authorizing appeals is § 512.020(5), 31 which provides an aggrieved party may appeal from any “final judgment” in the case. 32 As a result, the Court framed its analysis in terms of whether any of the orders from which the parties appealed qualified as “final judgments” under § 512.020(5). 33
The Court stated the first criterion a judicial order must satisfy to qualify as a final judgment under § 512.020(5) is that it must be a judgment, as defined in Henderson – “[A] legally enforceable judicial order that fully resolves at least one claim in a lawsuit and establishes all the rights and liabilities of the parties with respect to that claim.” 34 If that criterion is met, then a judgment may qualify as a “final judgment” if it either: (1) resolves all claims by and against all parties (or the last pending claim); or (2) disposes of a judicial unit of claims and has been certified for immediate appeal pursuant to Rule 74.01(b). 35
The Court stated a judgment disposes of a judicial unit of claims and, therefore, is eligible to be certified for immediate appeal under Rule 74.01(b) when it either: (1) “disposes of all claims by or against one or more – but fewer than all – of the parties”; 36 or (2) “resolves one or more claims that are distinct from those claims that remain to be resolved.” 37 The first alternative meaning of a “judicial unit” of claims the Court articulated is relatively self‑explanatory. If a judgment resolves a lawsuit “from the point of view of at least one party,” it disposes of a judicial unit of claims. 38 The Court’s second alternative meaning of a judicial unit of claims is not as easily applied. A judgment resolves a claim distinct from pending claims when the claim resolved does not arise from the “same set of facts, and the same transactions and occurrences,” as remaining claims. 39 When a judgment disposes of either of these alternative meanings of a judicial unit, it is final and eligible for certification under Rule 74.01(b). 40
The Court made clear, however, that eligibility for certification is just that – eligibility. An aggrieved party cannot automatically appeal a judgment that is final only by virtue of resolving a judicial unit of claims. 41 It merely means the circuit court has discretion to certify the judgment for appeal. 42 A party seeking to take an appeal from such a judgment must still persuade the circuit court to certify it and to enter an express finding that there is “no just reason for delay.” 43
As with any exercise of discretion, there are limits, and the Court issued a warning with respect to certifying a judgment resolving all claims in relation to one or more, but fewer than all, parties. 44 Because such judgments do not necessarily resolve claims that are factually distinct from claims left pending in the trial court, certifying them presents a heightened risk that the resolution of the claims pending in the trial court will affect or moot appellate review of the claims already resolved. 45 In the same vein, the Court warned there may be no basis for finding “no just reason for delay” under Rule 74.01(b) when resolved claims and unresolved claims “are intertwined such that an appellate ruling on the partial judgment could affect the rights of someone who is not party to that judgment (and, therefore, not a party to the appeal) but who remains a party to the unresolved claims still pending in the circuit court.” 46
Having set out its analytical framework for determining when orders qualify as final judgments, the Court then applied it to the three orders from which the state and city treasurer appealed. Starting with the October 25 Declaratory Order, from which the city treasurer appealed, the Court found it failed the first criterion – that the order must be a judgment. 47 The order resolved only the declaratory relief sought by the residents and the intervenor in their respective petitions, but it did not address their requests for injunctive relief with respect to the same count. 48 Therefore, it did not “fully resolve” at least one claim in the suit so as to meet the substantive requirements of a judgment. 49
In contrast, the Court found the April 5 Order fully disposed of the city’s cross‑claim. 50 And the October 25 Injunctive Order (which incorporated the October 25 Declaratory Order by reference) fully resolved the residents’ and the intervenor’s constitutional challenges to the parking statutes because it disposed of all relief requested. 51 Accordingly, both the April 5 Order and the October 25 Injunctive Order qualified as judgments and met the first criterion required of “final judgments” under § 512.020(5). 52
In the end, however, both judgments failed to qualify as final judgments. Neither fully resolved all claims by and against all parties because multiple counts between the parties remained pending in the circuit court, and neither judgment resolved a judicial unit of claims. The October 25 Injunctive Order did not resolve all claims by or against at least one party (the first meaning of “judicial unit”) as the residents and the intervenor remained “parties to claims still pending in the circuit court.” 53 Likewise, the April 5 Order failed to dispose of the first alternative meaning of a judicial unit for the same reason – the city remained a party to claims pending in the circuit court. 54 In similar fashion, both judgments failed to resolve claims “sufficiently distinct from the claims still pending in the circuit court,” so as to satisfy the second alternative meaning of a “judicial unit of claims.” 55 This was because the claims the judgments resolved (the constitutional challenges to the validity of the parking statutes) were “based upon the same operative facts and legal theories as the unresolved claims.” 56 Because no party appealed from a final judgment, the Court dismissed the appeals. 57
Wilson set out a comprehensive framework for determining whether any judicial order qualifies as a final judgment from which an appeal can be taken under § 512.020(5), but it did not resolve all issues that might conceivably arise in this context. Notably, notwithstanding extensive discussion of the resolution of “claims,” the Court did not clearly articulate what “claim” means in this context. 58 The only attention the Court paid to this seemingly foundational concept was to state in summary fashion that a “claim” is “(1) a short and plain statement of the facts showing the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader claims to be entitled,” citing Rule 55.05. 59 So, while Wilson put the Court well down the road toward establishing a reliable framework for determining which judgments qualify as final judgments, it left important questions unanswered.
Butala v. Curators of the University of Missouri
Following the Court’s decision in Wilson, confusion arose with respect to whether an order “fully resolves” a claim (and, therefore, qualifies as a judgment) when it resolves a claim against fewer than all parties against whom it is asserted. This confusion also seemed to bleed into whether a judgment had to dispose of a claim that satisfied both alternative meanings of a judicial unit of claims before it was eligible for certification. The Court addressed each of these issues, to differing extents, in Butala v. Curators of the University of Missouri. 60
There, plaintiffs filed eight separate lawsuits against individual doctors and the curators of the University of Missouri for injuries allegedly sustained directly from or derivatively as a result of unsuccessful joint replacement surgeries.61The eight lawsuits were similarly pleaded and stated some claims against the individual doctors and other claims against both the doctors and the curators. 62 In each of the eight suits, the curators moved to dismiss the plaintiffs’ claims against them, and the circuit court subsequently entered orders sustaining the curators’ motions and dismissing the plaintiffs’ claims against them with prejudice. 63 Each order met the requirements of form for a judgment as recognized in Henderson, and the circuit court “certified each of these judgments as final for purposes of appeal pursuant to Rule 74.01(b)” and expressly found there was “no just reason for delay.” 64
The plaintiffs appealed each of the eight certified judgments, and their appeals were consolidated in the Missouri Court of Appeals-Western District. 65 The Court of Appeals dismissed for lack of jurisdiction, concluding the circuit court’s dismissals were not eligible for certification under Rule 74.01(b) because none satisfied the substantive definition of a judgment. 66 The Court of Appeals based that conclusion on its determination that the dismissals failed to “fully resolve[] at least one claim in their respective lawsuits” because the remaining counts against the doctors arose from the same set of facts as the counts dismissed against the curators. 67 On transfer, the Supreme Court of Missouri disagreed. 68
The Court held the circuit court’s dismissals satisfied the substantive definition of a judgment because they “fully resolved all counts pleaded against the Curators and established all the rights and liabilities of the parties with respect to all matters pleaded against the Curators.” 69 This bears emphasis. Though the claim (meaning the rights and liabilities of the parties arising from a particular set of operative facts) had not been fully adjudicated with respect to all parties, it was enough for purposes of satisfying the substantive definition of a judgment that the circuit court’s orders fully resolved claims with respect to at least one party – the curators. 70
Further, the Court held the judgments disposed of judicial units of claims because they disposed of all legal issues and left open no remedies against the curators. 71 Therefore, the judgments satisfied what Wilson called the first alternative meaning of a “judicial unit of claims” by disposing of all claims by or against one or more of the parties. 72 Perhaps most significantly, the Court made clear the judgments were eligible for certification despite the fact they satisfied only the first of the two alternative meanings of a “judicial unit of claims” articulated in Wilson – i.e., they did not dispose of claims factually distinct from claims left pending in the trial court. 73
In a nutshell, Butala clarified an order is a judgment if it fully resolves a claim as against one or more parties and that judgment is eligible for certification as a final judgment if it disposes of either alternative meaning of a “judicial unit of claims.” Conspicuously, however, the Court noted the word “claim” is sometimes used synonymously with “cause of action” but is at other times “used to refer to the bundle of legal theories or causes of action” arising from a transaction or occurrence. 74 Clearly, the Court of Appeals had conceived of a claim as the latter. 75 Nevertheless, the Court did not resolve which meaning applied in this context as “[e]ither meaning [wa]s satisfied under the facts …” 76 As a result, Butala, like Wilson, failed to define “claim” for purposes of determining when an order fully resolves a claim or when a judgment disposes of a judicial unit of claims.
Jefferson County 9-1-1 Dispatch v. Plaggenberg
Whatever doubt plagued the meaning of “claim” in this analysis was largely laid to rest in the final decision bookending the Court’s recent final‑judgments jurisprudence, Jefferson County 9-1-1 Dispatch v. Plaggenberg. 77 In that case, the Jefferson County 9‑1‑1 Dispatch filed a four‑count petition against the director of the Missouri Department of Revenue. 78 In counts one and two, the dispatch sought a judgment declaring Mo. Rev. State § 190.327.5(2019), invalid under three different constitutional provisions. 79 In count three, the dispatch sought a writ of mandamus directing the Department of Revenue not to enforce the challenged statute. In count four, the dispatch requested that the court enjoin the department from acting pursuant to the statute. 80
The dispatch moved for summary judgment on its claim the statute was constitutionally invalid but relied on only one of the three constitutional provisions pleaded. 81 The circuit court sustained the dispatch’s motion and entered a judgment holding the statute unconstitutional. 82 In its judgment, the circuit court expressly stated the judgment “resolve[d] all issues as to all parties,” 83 but it did not expressly resolve the dispatch’s claim the statute was invalid under the remaining two constitutional provisions invoked in the petition. 84 Believing the judgment resolved all issues and left nothing for future determination, the Department of Revenue appealed. 85
On appeal, the Court found, contrary to the circuit court’s intent and the parties’ understanding, the judgment failed to dispose of all claims in the lawsuit. 86 And, in so holding, the Court held the dispatch stated three claims in its four‑count petition – one claim for each constitutional provision allegedly violated. 87 The dispatch’s requests for a declaratory judgment, writ of mandamus, and injunctive relief were “merely the remedies” associated with those claims. 88
The lessons from Jefferson County 9-1-1 Dispatch are twofold. A “claim” for purposes of defining the substantive requirements of a judgment (and consequently for purposes of the final‑judgment analysis) is roughly equivalent to the assertion of a legal right. 89 Additionally, when pleading alternative counts, a party will be well‑served to ensure the circuit court expressly disposes of all alternative legal theories in any judgment intended to fully to resolve all issues in the lawsuit (or the last pending claim), even if that means including an express ruling that the alternative counts are denied as moot. 90
Considering Henderson, Wilson, Butala, and Jefferson County 9‑1‑1 Dispatch together, the Court has established a reliable framework for identifying a final judgment under § 512.020(5). Synthesizing those decisions, the analysis follows the decision tree set out below with the caveats and explanations detailed in the following text.
First, is the circuit court’s order a judgment? An order is a judgment if it fully resolves at least one claim in a lawsuit against at least one party and meets the requirements of form set out in Rule 74.01(a). 91 For purposes of defining a judgment, a “claim” is roughly equivalent to the assertion of a legal right. 92 To fully resolve a claim, an order must establish all the rights and liabilities of at least one party with respect to that claim. 93 This means the circuit court must dispose of all the relief sought with respect to the legal right asserted. 94 To meet the requirements of form, a judgment must be in writing, denominated “judgment,” signed by the judge, and filed. 95 If the order fails to meet any of these criteria, it is not a judgment, much less a final judgment, and it is not appealable under § 512.020(5). 96 If the order is a judgment in substance and form, the question becomes whether it resolves all claims in the lawsuit or, at least, a judicial unit of claims.
Does the judgment fully resolve “every claim (or, at least, the last unresolved claim) in a lawsuit”? 97 This inquiry is largely self-explanatory. It normally involves simply determining whether the judgment leaves any issues for future determination. 98 Nonetheless, there are pitfalls, as demonstrated in Jefferson County 9‑1‑1 Dispatch. The parties and the circuit court may believe a judgment leaves nothing for future determination because it grants all the relief requested. But, if the judgment fails to dispose of any asserted legal rights (claims) expressly, then the judgment has not fully resolved all claims and is not final in this traditional sense. 99 Accordingly, parties should ensure any judgment intended to dispose finally of all issues does so expressly before filing a notice of appeal. 100 If this inquiry can be answered in the affirmative, it is a final judgment appealable under § 512.020(5). 101
It is worth noting a dismissal without prejudice can, in some circumstances, be considered a final judgment in this traditional sense. Although the Court has referred to a “general rule” that a dismissal without prejudice is not a final appealable judgment, 102 the Court has acknowledged “exceptions seem[] to have swallowed all or nearly all of whatever rule once might have existed.” 103 When a dismissal resolves a plaintiff’s claim “and not merely the pleading of that claim, the judgment entered is final and appealable.” 104 Said another way, “an appeal from a dismissal without prejudice can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff’s chosen forum.” 105
If the judgment does not fully resolve “every claim (or, at least, the last unresolved claim) in a lawsuit,” 106 it may yet qualify as a final judgment eligible for certification under Rule 74.01(b). 107 To be considered a final judgment eligible for certification pursuant to that rule, the judgment must dispose of a judicial unit of claims. 108 A judgment disposes of a judicial unit of claims either by (1) resolving all claims by and against at least one party or (2) resolving a claim sufficiently factually distinct from remaining claims. 109 If it disposes of either alternative meaning of a judicial unit of claims, then it is a final judgment eligible to be certified for appeal pursuant to Rule 74.01(b). 110
Again, however, parties seeking to appeal a final judgment eligible for certification under Rule 74.01(b) must persuade the circuit court to exercise its discretion to certify the judgment and to make an express finding that there is no just reason for delaying the appeal until all issues in the lawsuit have been resolved. 111 Furthermore, circuit courts should not exercise their discretion to certify such judgments when the resolution of pending claims would affect or moot the claims on appeal. 112 If the judgment does not meet these criteria or if it is eligible for certification but the circuit court is not persuaded to exercise its discretion to certify it, the judgment is not appealable under § 512.020(5). 113
Although it remains common for parties mistakenly to appeal from judicial orders that do not qualify as final judgments under § 512.020(5), the Supreme Court of Missouri has clarified this issue in recent years and provided litigants with a reliable analytical framework for determining when a judgment qualifies as a final judgment. Undoubtedly, it is more complex to apply the test in some cases than in others, but the test applies across all cases invoking the right to appeal under § 512.020(5). In the interest of sparing clients the significant expense and delay of an appeal dismissed for lack of a final judgment, practitioners will be well‑served to apply the test found in the Court’s recent decisions and ensure any judicial order appealed from under § 512.020(5) passes muster.
1 See, e.g., Bearden v. Mo. Valley Coll., 593 S.W.3d 138, 142 (Mo. App. W.D. 2020); Schreimann v. Ready, 599 S.W.3d 281, 285 (Mo. App. W.D. 2020); Howe v. Heartland Midwest, LLC, 604 S.W.3d 774, 785 (Mo. App. W.D. 2020); Taylor v. Curators of Univ. of Mo., 602 S.W.3d 851, 856 (Mo. App. W.D. 2020); Riegel v. Forsythe, 608 S.W.3d 777, 784 (Mo. App. W.D. 2020); Henson v. Merob Logistics, LLC, 633 S.W.3d 838, 843 (Mo. App. W.D. 2021); Sykora v. Farmers Ins. Co., Inc., 642 S.W.3d 381, 385 (Mo. App. W.D. 2022); Norman v. Progressive Preferred Ins. Co., 646 S.W.3d 440, 444 (Mo. App. W.D. 2022); Laramore v. Jacobsen, 652 S.W.3d 385, 389 (Mo. App. E.D. 2022).
2 Of course, the Supreme Court of Missouri’s decisions have no bearing on what may be considered a final appealable judgment in the federal courts, and readers should not indiscriminately transpose the analysis provided in this article for use in federal courts.
3 566 S.W.3d 596 (Mo. banc 2019).
4 Id. at 597.
5 Id. at 598.
10 Id. at 598-600.
11 Id. at 598-99.
