Ronald D. Miller v. George Brad Sams
2016 Mo. App. LEXIS 1229
| Mo. Ct. App. | 2016Background
- On July 3, 2012, Miller was injured when he was caught between a suspended 2,000-pound air compressor and a forklift operated by co-worker George Sams while moving the compressor at a construction site.
- Miller sued Sams, asserting two alternative claims arising from the same incident: (1) negligence (failure to exercise ordinary care in operating the forklift) and (2) affirmative negligence (Sams was untrained/unqualified under OSHA and knowingly operated the forklift despite that).
- Both counts sought the same damages for identical injuries (crushed left foot, broken toes, ruptured hamstring, knee/heel injuries, surgeries, lost wages, pain and suffering, etc.) and damages in excess of $25,000.
- Sams moved to dismiss for failure to state a claim. The circuit court dismissed the ordinary negligence count but denied dismissal of the affirmative negligence count.
- The court entered a Rule 74.01(b) certification that there was "no just reason for delay" and designated the dismissal of the negligence count as final for appeal. Miller appealed from that dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the dismissal of one of two alternative counts was a final, appealable judgment | Miller argued the Rule 74.01(b) designation made the dismissal final and appealable | Sams argued the Rule 74.01(b) designation did not create a final judgment because the remaining alternative count arose from the same transaction | Dismissal of negligence count was not final/appealable where an alternative count based on same facts remained; appeal dismissed for lack of jurisdiction |
Key Cases Cited
- Ndegwa v. KSSO, LLC, 371 S.W.3d 798 (Mo. banc 2012) (final judgment is prerequisite to appellate review; appellate courts must address finality sua sponte)
- Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997) (Rule 74.01(b) certification effective only where order disposes of a distinct judicial unit; alternative counts arising from same transaction are not separately appealable)
- Crest Const. II, Inc. v. Hart, 439 S.W.3d 246 (Mo. App. 2014) (quoting Rule 74.01(b) standard for partial final judgments)
- Zeller v. Scafe, 455 S.W.3d 503 (Mo. App. 2015) (appellate courts must consider finality issues that implicate jurisdiction)