In the Missouri Court of Appeals

Western District

RONALD MILLER,

Appellant,

v.

GEORGE BRAD SAMS,

Respondent.

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WD79753

FILED: November 29, 2016

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY

THE HONORABLE W. BRENT POWELL, JUDGE

BEFORE DIVISION TWO: LISA WHITE HARDWICK, PRESIDING JUDGE,

GARY D. WITT AND ANTHONY REX GABBERT, JUDGES

Ronald Miller appeals from the circuit court's judgment dismissing his 

negligence claim against George Sams. He contends he stated a cause of action

for negligence. Alternatively, he argues that the court erred in denying his request 

to file an amended petition to add allegations to the claim. We dismiss the appeal 

for lack of jurisdiction, because no final judgment has been entered.

FACTUAL AND PROCEDURAL HISTORY

Because this is an appeal from a dismissal for failure to state a claim, we 

assume the facts alleged in Miller's petition for damages to be true for purposes of 

this appeal. According to the petition, on July 3, 2012, Miller was injured while 

working on a construction project with Sams, his co-worker at Liberty Erection, 
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Inc. Miller had been ordered to attach a 2000-pound air compressor to one of the 

prongs of a forklift that Sams was operating. Miller was then ordered to assist 

Sams in transporting the air compressor, which was still attached to the forklift 

prong, to a back parking lot of the construction project. As Sams operated the 

forklift, Miller was directed to navigate the suspended air compressor through a 

narrow gateway. While they were in the narrow gateway, Miller got caught 

between the air compressor and the forklift and was injured.

Miller's petition asserted two alternative claims against Sams: negligence 

and affirmative negligence. Both claims arose out of the forklift incident. In the 

negligence claim, Miller alleged that Sams failed to exercise ordinary care and was 

negligent, for several reasons, in the way that he operated the forklift. In the 

alternative affirmative negligence claim, Miller alleged that Sams was an unlicensed 

and unqualified forklift operator under Occupation Health and Safety Administration 

("OSHA") regulations because he was never trained to operate this particular type 

of forklift. Miller alleged that, despite Sams's knowledge that he was neither 

trained nor qualified to operate this forklift and that operating this type of forklift 

with a suspended air compressor attached was not his job duty or responsibility, 

Sams chose to do so anyway. Miller further alleged that Sams failed to exercise 

ordinary care and was affirmatively negligent, for several reasons similar to those 

alleged in the negligence claim, in the way that he operated the forklift.

In both his negligence and affirmative negligence claims, Miller asserted the 

same injuries, which were a crushed left foot, four broken toes, a ruptured 
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hamstring, and injuries to his left knee and left heel. Miller alleged that, as a result 

of these injuries, he had to have skin grafts, a pin in his left big toe, and multiple 

surgeries, including surgery to remove part of his left foot and toe and a left knee 

reconstruction. In both claims, Miller sought damages for his injuries and for past 

and future pain and suffering and mental anguish, past and future lost wages, 

impaired earnings capacity, and past and future expenses for healthcare goods and 

services. Lastly, in both claims, Miller requested damages against Sams in excess 

of $25,000.

Sams filed a motion to dismiss Miller's petition for failure to state a claim 

upon which relief could be granted. The court entered its order and judgment 

granting Sams's motion to dismiss Miller's negligence claim and denying Sams's 

motion to dismiss Miller's affirmative negligence claim. At Miller's request, the 

court found, pursuant to Rule 74.01(b), that there was "no just reason for delay" 

and designated the judgment as final for purposes of appeal. Miller appeals.

FINALITY OF THE JUDGMENT

Before we can address the merits of Miller's appeal, we must determine if a 

final judgment exists. Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 

2012).1 This is because "[a] final judgment is a prerequisite to appellate review." 

Id. If the circuit court's judgment was not final, we must dismiss the appeal. Id.

 

1 Sams challenged the finality of the judgment in his respondent's brief. Even if he had not raised 

the issue, however, we would be required to address it sua sponte, as it implicates our jurisdiction. 

See Ndegwa, 371 S.W.3d at 801, and Zeller v. Scafe, 455 S.W.3d 503, 505 (Mo. App. 2015).
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"A final judgment 'resolves all issues in a case, leaving nothing for future 

determination.'" Id. (quoting Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 

1997)). An exception to this rule is contained in Rule 74.01(b), which provides 

that the circuit court "'may enter a judgment as to one or more but fewer than all 

of the claims or parties only upon express determination that there is no just reason 

for delay.'" Crest Const. II, Inc. v. Hart, 439 S.W.3d 246, 249 (Mo. App. 2014) 

(quoting Rule 74.01(b)). The circuit court's determination in this regard is not 

dispositive, however. Ndegwa, 371 S.W.3d at 801. Rather, "[i]t is the content, 

substance, and effect of the order that determines finality and appealability." 

Gibson, 952 S.W.2d at 244.

The circuit court's Rule 74.01(b) designation that a judgment is final for 

purposes of appeal as to particular claims "is effective only when the order 

disposes of a distinct 'judicial unit.'" Id. "A distinct 'judicial unit' is defined as 'the 

final judgment on a claim, and not a ruling on some of several issues arising out of 

the same transaction or occurrence which does not dispose of the claim.'" 

Ndegwa, 371 S.W.3d at 801 (citations omitted). "'An order dismissing some of 

several alternative counts, each stating only one legal theory to recover damages 

for the same wrong, is not considered an appealable judgment while the other 

counts remain pending because the counts are concerned with a single fact 

situation.'" Gibson, 952 S.W.2d at 244 (citation omitted). "It is 'differing,' 

'separate,' 'distinct' transactions or occurrences that permit a separately 
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appealable judgment, not differing legal theories or issues presented for recovery on 

the same claim." Id.

In this case, the two counts in Miller's petition set forth alternative legal 

theories seeking to recover the same damages against Sams for the same injuries 

based on the same underlying occurrence -- Sams's operation of the forklift on July 

3, 2012. The pending count of affirmative negligence clearly arises from the same 

set of facts as the dismissed negligence count that Miller has attempted to appeal. 

Accordingly, the circuit court did not resolve a single, distinct judicial unit, and its 

judgment is neither final nor appealable. See Gibson, 952 S.W.2d at 244-45.

CONCLUSION

Because there is no final appealable judgment, the appeal is dismissed.

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LISA WHITE HARDWICK, JUDGE

ALL CONCUR.