# In the Missouri Court of Appeals **Eastern District**

DIVISION THREE LOIS SLEMP, ) No. ED106190 ) Plaintiff/Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) ) JOHNSON & JOHNSON and ) Honorable Rex M. Burlison JOHNSON & JOHNSON CONSUMER ) COMPANIES, INC., n/k/a JOHNSON & ) JOHNSON CONSUMER INC. and ) IMERYS TALC AMERICA, INC., f/k/a ) LUZENAC AMERICA, INC., ) ) Defendants/Appellants. ) Filed: October 15, 2019 Introduction Appellants Johnson & Johnson, J ohnson & Johnson Consumer Compa nies Inc., and Imerys Talc America, Inc. (hereinafter collectively Appellants) appeal from the judgment of the trial court entered after a ju ry found them liable to Lois Slem p (Respondent) for actual and punitive damages relating to Respondent’s use of talc products. We reverse and vacate the judgment. Factual and Procedural Background The underlying case was commen ced by 62 plaintiffs against App ellants for damages related to the use of talc products. Of the 62 plaintiffs, 61 were non-residents of Missouri. Respondent, a native of Virgini a, was one of the non-resident p laintiffs.2 Respondent’s claims were tried s eparately from the other plaint iffs’ claims. Respondent alleged she had used Appellants’ talc products for many years, and in 2012 developed cancer as a result. The talc products Res pondent used were manufactured in Georgia, and purchased and used by Respondent in Virginia. The jury returned a verdict in f avor of Respondent, awarding h er both actual and punitive damages. Post-Trial Proceedings After the return of the jury verd ict, the trial court entered judgment on August 3, 2017. In its judgment, the trial cou rt found pursuant to Rule 74.01(b) 1 there was no justreason to delay entry of final judgment on Responde nt’s claims. Near that time , the United States Supreme Court handed down its opinion i n Bristol-Myers Squibb v. Superi or Court of Ca., 137 S.Ct. 1773 (2017) (BMS). On September 1, 20 17, Appellants filed several a fter-trial motions, including a motion requesting the trial cour t enter judgment notwithstandin g the verdict and for a new trial. Appellants argued the trial cour t lacked personal jurisdiction over Appellants as to Respondent’s claims, citing BMS. On October 18, 2017, 76 days after the tri al court entered judgment, Respondent filed a Motion to Tempo rarily Vacate Order of Judgme nt and to Open Discovery on Personal Jurisdiction. Respondent’s motion was called and hear d on November 13, 2017. On November 29, 2017, the trial cour t entered an order disposi ng of post-trial motions. This order denied Respondent’s M otion to Temporarily Vacate Ord er of Judgment and to Open Discovery on Personal Jurisdic tion as untimely. The trial cour t also denied Appellants’ motions regarding personal jurisdiction. T he trial court signaled its intent to reopen th e record to allow Respondent to present additional evidence to attempt to establi sh the trial court’s personal

1 All rule references are to Mo. R. Civ. P. (2017).3 jurisdiction over Appe llants. That same day, the trial court a lso issued an order striking and removing the language from the August 3, 2017 judgment finding no just reason for delay and certifying it for appeal. Authority to Hear Appeal Appellants appeal from the judgm ent of the trial court entered August 3, 2017, making 15 separate claims of error. Howev er, as a preliminary matter we must address whether this Court has the authority to hear this appeal. Appellants claim this case is properly before this Court by vi rtue of the Rule 74.01(b) certification for appeal by the t rial court. Respondent claims there is no final judgment, and thus no appealable decision, because the trial court reconsidered an d struck its Rule 74.01(b) certification. Appellants count er by claiming the trial court was without authority to modify its August 3, 2017 judgment in such a way, because more than 30 day s had passed since it originally entered judgment, a nd no party request ed the trial c ourt strike its Rule 74.01(b) certification in an authorized a nd timely after-trial motion. Because Appellants are correct, and the trial court lacked the aut hority to decertify this case for appeal, this case is properly before this Court.

Discussion Rule 74.01(b) provides: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or t hird-party claim, or when multip le parties are involved, the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an e xpress determination that t here is no just reason for delay. In the absen ce of such determination, any or der or other form of decision, however designated, that adjudicates fewer than all t he claims or the rights and liabilities of fewer t han all the part ies shall not terminate the action as to any of the claims or parties, a nd the order or other form of decision is subject to revision at any time before the e ntry of judgment adjudicating all the claims and the rights and liabilities of all the parties.4 Normally an appeal may not be tak en where claims remain pendin g in a case. However, Rule 74.01(b) provides an avenue for a trial court to enter a f inal appealable judgment on fewer than all claims and/or plainti ffs if it finds there exists no j ust reason for delay. Hardin v. Adecco USA, Inc., 419 S.W.3d 883, 885 (Mo. A pp. E.D. 2014). A Rule 74 .01(b) designated judgment is a final judgment for the purpos e of perfecting an appeal, as we ll as determining its interplay with other procedural rules gove rning final judgments. Tudor v. Beh rend-Uhls, 844 S.W.2d 26, 27-28 (Mo. App. W.D. 1992). Here, the trial court entere d its judgment on Respondent’s cla im on August 3, 2017, and certified it as a final, appeal able judgment. Final judgments are governed by Rule 75.01, giving the trial court control over th e judgment for a 30-day period t o, on the motion of the parties or on its own authority for good cause, “ vacate, reopen, correct, ame nd, or modify its judgment....” Under the rule, once th e 30-day window expires the judgment bec omes final if neither party has filed an authorized after-trial motion. Rule 85.01(a)(1); Stat e ex rel. Hawley v. Pilot Travel Centers, LLC, 558 S.W.3d 22, 27 (Mo. banc 2018). However, wher e, as here, one or more parties have filed a timely after -trial motion, the trial court ’s control over the judgment extends beyond the 30-day window desc ribed in Rule 75.01 to 90 days fro m the date the last timely motion was filed, or, if all motions have been ruled on, then e ither the date of the ruling on the last motion or 30 days after entry of judgment, whichever is la ter. Rule 81.05(a)(2). Importantly, once the initial 30-day window aft er entry of the judgment passes, the trial court’s authority changes. With in that 30-day window, the tria l court has authority to amend the judgment for good cause regardless of whether either party requ ests it do so. Pilot Travel Centers, LLC, 558 S.W.3d at 27. After this period elapses, “a trial court’s authority to grant relief is constrained by and lim ited to the grounds raised in a timely filed, authorized after-trial5 motion.” Id., quoting Massman C onstr. Co. v. Mo. Highway & Tra nsp. Comm’n, 914 S.W.2d 801, 802-03 (Mo. banc 1996). Here, the trial court’s aut hority to amend its August 3, 2017 judgment on its own motion ended 30 days after the judgment w as entered, well before it di d so on November 29, 2017, when it revoked the Rule 74.01(b) appeal certification. Neither par ty filed a timely, authorized aftertrial motion requesting the certification language be removed. Appellants filed motions contesting personal jurisdicti on; Respondent filed a motion to tax costs. The only motion resembling a request the trial court remove the Rule 74.01(b) c ertification was Respondent’s motion to “Temporarily Vacate” the judgment to allow her to rel itigate personal jurisdiction. However, this motion was filed 76 d ays after entry of the judgm ent; further, as far as this Court is aware, there exists no proce dural path for doing that which Respondent requested. See Estate of Fox v. Johnson & Johnson, 539 S.W.3d 48, 52 (Mo. App. E.D. 2 017) (there exists no “procedural path” to “stay a jury verdict pending re-litigation of facts supporting jurisdiction”). This makes Respondent’s motion neither authorized nor timely, a nd thus it did not empower the trial court to revoke its Rule 74.01(b) certification. On appeal Respondent attempts to c haracterize this as a case o f first impression, as none of the above-cited cases limiting the trial court’s authority t o amend the judgment after the initial 30-day window involved a trial co urt’s unauthorized removal of Rule 74.01(b) certification. Respondent argues the trial cour t’s ability to add or subtract Rule 74.01(b) certification from its order is somehow above and apart from any other authority it po ssesses, allowing it to transcend the limits imposed by other Miss ouri Supreme Court rules. We cannot agree with Respondent ’s view. Notably, Respondent c an cite no cases directly supporting this propos ition. Nor does Respondent cite or discuss Pilot Travel Centers,6 LLC or its predecessors, or e xplain why the holdings of those c ases, which otherwise plainly apply to the instant case, must nonethele ss be disregarded. Respondent also argues no textual support exists in Rule 74.01( b) itself to suggest the trial court lacks the authority to add or remove certification without any procedural restrictions. On the contrary, Rule 74.01(b) states: In the absence of such determination, any order or other form o f decision, however designated, that adjudicate s fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate t he action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of j udgment adjudica ting all the c laims and the rights and liabilities of all the parties. Rule 74.01(b) thus specifically p rovides that, absent certific ation for appeal, the trial court retains authority to revi se its order at any time before entry of a final judgment. Once certification occurs, the otherwise interlocutory order becomes , for all intents and purposes, a final judgment, and the trial c ourt’s authority becomes limited by those procedural rules which apply to final judgments. See Tudor, 844 S.W.2d at 27-28. Thi s necessarily implies the unfettered authority to alter it s own order that Respondent asc ribes to the trial court evaporates once it certifies such an order as an appealable judgment. For the foregoing reasons, we fi nd the trial court exceeded it s authority by revising its August 3, 2017 judgment in a manne r not requested by either par ty in an authorized and timely after-trial motion. Because the trial court was without author ity to amend the judgment removing the Rule 74.01(b) certif ication for appeal, this case is properly before this Court, and we have authority to dispose of it. Trial Court Lacked Personal Jurisdiction As stated above, Appellants make 15 points on appeal. However , because their first point is dispositive, we do not reach the remaining 14.7 Appellants argue Respondent’s c laims did not giv e the trial co urt personal jurisdiction over Appellants. Both parties a gree this case is governed by t his Court’s prior cases, Estate of Fox v. Johnson & Johnson and Ristesund v. Johnson & Johnson, 55 8 S.W.3d 77 (Mo. App. E.D. 2018). Both of those cases involved plaintiffs who were not re sidents of Missouri who had joined their claims with those of Missouri residents. Estate o f Fox, 539 S.W.3d at 50; Ristesund, 558 S.W.3d at 79. In those cases, after judgment had been reac hed but while appeal was pending, the United State Supreme Court decided BMS, which clar ified the existing law on specific personal juri sdiction requiring the trial court have p ersonal jurisd iction over the defendants with regard to each c laim, rather than establishing personal jurisdiction by allowing non-residents to join similar cl aims with those of Missouri res idents. Estate of Fox, 539 S.W.3d at 51; Ristesund, 558 S.W.3d at 80. In Fox and Ristesund, this Court found that, due to the advanced procedural posture of t he cases, remand was inappropri ate as the plaintiffs had had ample opportunity to present all ar guments for personal jurisdi ction to the trial court and were unable to do so successfull y. Estate of Fox, 539 S.W.3d at 52; Ristesund, 558 S.W.3d at 82-83. On appeal, Respondent concedes t hat should we find this case is properly before this Court, the record establishes t hat, per BMS, the trial court la cked personal jurisdiction over Appellants. Respondent further c oncedes that if we have author ity to hear this appeal Respondent will find herself in a pr ocedurally identical positi on to the plaintiffs discussed in Fox and Ristesund. Thus, the same outco me that resulted in those c ases is warranted here. Having found supra this case is properly before th is Court, in accordance with Fox and Ristesund we hereby vacate and reverse the j udgment of the trial court.8 Conclusion The judgment of the trial c ourt is reversed and vacated.

SHERRI B. SULLIVAN, J. Mary K. Hoff, P.J., and Angela T. Quigless, J., concur.