SPECK v. UNION ELEC. CO.

RENDLEN, Judge.

The issue is: "What effect shall be given a trial court's designation of an order as a final judgment for purposes of appeal under Rule 31.06?"

I.

This is an appeal from the trial court's order dismissing Count III of appellants' amended petition without prejudice, which the court designated to be "a final order and judgment for purposes of appeal."

Appellants' suit for damages arose from injuries to and subsequent death of their father, Stephen Speck, allegedly resulting from his exposure to asbestos while employed by respondent Union Electric Company. Evidently an original petition was filed by Stephen Speck against various companies that supplied respondent with asbestos-related insulation products and upon his death appellants filed their amended three-count petition.

Count I, grounded on several products liability theories, apparently reiterates claims raised by Stephen Speck against the asbestos suppliers in his original petition. It is averred that those defendants "supplied, sold, and furnished" defective and unreasonably dangerous asbestos-related insulation products to respondent and that, as a result of Stephen Speck's exposure to the asbestos during his employment with respondent, he developed mesothelioma and "other related asbestos diseases." Appellants in their brief submit that "[i]nsofar as Count I alleges that it is a cause of action for Stephen Speck, it is a moot cause of action." Nevertheless such averments remain relevant because they are incorporated by reference in Counts II and III.

Count II is appellants' wrongful death claim against the suppliers. There appellants incorporate by reference Count I and further allege that their father, Stephen Speck, died on December 25, 1984, as a direct result of the mesothelioma caused by the suppliers' tortious conduct.

Count III is appellants' claim against respondent incorporating by reference Counts I and II and they further allege:

It is also alleged that respondent's "deliberate and intentional wrongdoing" was not an ordinary incident of Stephen Speck's work and therefore the Workers' Compensation Law does not provide the exclusive remedy for their claim against respondent.

Respondent moved to dismiss Count III, asserting the claim was barred by the exclusive-remedy provision of the Workers' Compensation Law, see § 287.120, RSMo 1986, and as noted above, the trial court sustained the motion, dismissed Count III without prejudice and designated its order "a final order and judgment for purposes of appeal."

Appellants appealed the dismissal order, asserting that its claim against respondent was not barred by the Workers' Compensation Law. The Court of Appeals, Eastern District, without reaching the merits of that issue, opined that under the "judicial unit" test expressed in Erslon v. Cusumano, 691 S.W.2d 310 (Mo.App.1985), the dismissal order was not a final appealable order and that the appeal should be dismissed. However, the court transferred the cause that we might consider the effect to be given a trial court's designation of an order as final under Rule 81.06 and to examine the conflict between Spires v. Edgar, 513 S.W.2d 372 (Mo. banc 1974), and subsequent court of appeals opinions on this issue. We now determine the cause as on original appeal. Mo. Const. art. V, § 10.

II.

Rule 81.06 provides:

(Emphasis added.) Because the dismissal of a petition or a count in a petition upon the hearing of a motion to dismiss for failure to state a claim is considered a separate trial before the court without a jury within the meaning of Rule 81.06, see State ex rel. Ashcroft v. Gibbar, 575 S.W.2d 924, 927 (Mo.App.1978), and because Count III of appellants' amended petition is a claim "arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case," it is the second sentence of Rule 81.06, italicized above, which is relevant to this appeal.

Under the plain language of Rule 81.06, whether dismissal of Count III was to be "a final judgment for purposes of appeal" was a matter for the trial court to determine in its discretion for it is the trial court that the rule allows to specifically so designate. In Spires v. Edgar, 513 S.W.2d 372, this Court discussed the history of Rule 81.06 and its predecessor at length and, relying heavily upon Dotson v. E.W. Bacharach, Inc., 325 S.W.2d 737 (Mo.1959), adopted a quite literal application of Rule 81.06, holding that "[t]he trial court's order dismissing plaintiffs-appellants Spires' claim against respondent Edgar, having been designated as final for the purpose of appeal pursuant to rule 81.06, is an appealable order." Spires, 513 S.W.2d at 377. Nevertheless, subsequent to Spires, while several court of appeals decisions have followed a Spires approach in applying Rule 81.06,1 a host of court of appeals decisions, see, for example, cases cited infra note 2, either have ignored, overlooked or otherwise construed Spires and some have adopted a "judicial unit" test in applying that portion of Rule 81.06 relevant here.

In Dotson, 325 S.W.2d at 738, the trial court dismissed a third-party defendant's counterclaim against plaintiff, and the third-party defendant appealed from the dismissal order. This Court considered whether the appeal was premature under then-effective Rule 3.29 (as amended effective May 15, 1957), which, like its successor Rule 81.06, provided that:

See Dotson, 325 S.W.2d at 739. On the authority of Rule 3.29 as amended, we dismissed the appeal as premature, holding:

Dotson, 325 S.W.2d at 739 (emphasis added). Additionally, as we observed in Spires, 513 S.W.2d at 374:

See Dotson, 325 S.W.2d at 739.

In Spires, 513 S.W.2d at 372, respondent was one of three defendants in appellants' suit for wrongful foreclosure of a deed of trust. The trial court dismissed appellants' claim against respondent and designated its order final for purposes of appeal. Id. In considering whether the order appealed from was an appealable judgment, this Court reviewed Dotson and subsequent cases, concluding that "the interpretation placed upon amended Rule 3.29 (now 81.06) by Dotson, with reference to the trial court's authority to designate a dismissal order which order does not dispose of all parties and issues as final for the purposes of appeal, has been followed by the Missouri courts." Spires, 513 S.W.2d at 377. Therefore, because the trial court had designated its dismissal order as final for the purpose of appeal, we held it to be an appealable order. Id.

Nevertheless, subsequent to Spires the appellate courts oftentimes have avoided such a literal application of Rule 81.06 and instead have dismissed appeals as premature, even if designated final and appealable under Rule 81.06. For instance, in Erslon v. Cusumano, 691 S.W.2d at 311, the trial court sustained the motion of two of three defendants to dismiss for failure to state a cause of action and designated its order as final and appealable under Rule 81.06. However, the Court of Appeals dismissed plaintiffs' appeal as premature because the dismissal was not a disposition of a distinct and independent judicial unit. Erslon, 691 S.W.2d at 312. The court stated:

Erslon, 691 S.W.2d at 311-12.

Erslon and like cases holding that, where a judgment is designated by the trial court to be a final judgment for purposes of appeal under the second sentence of Rule 81.06, the judgment is appealable only if the partial disposition disposes of a distinct judicial unit are contrary to the express language of Rule 81.06 and to Dotson and Spires. We reaffirm Dotson and Spires as correctly having applied Rule 81.06 which gives the trial court the discretion to determine whether to allow an appeal "[w]hen a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case." Contrary cases should no longer be followed.2

"The right of appeal is purely statutory and when the statutes do not give such right, no right exists." Kansas City Power & Light Co. v. Kansas City, 426 S.W.2d 105, 107 (Mo.1968); accord Dudeck v. Ellis, 376 S.W.2d 197, 204 (Mo.1964); see also Rule 81.01. Section 512.020, RSMo 1986, permits appeals from certain orders, not pertinent here, and "from any final judgment in the case" (emphasis added). Although this Court may establish rules relating to practice and procedure for all courts which shall have the force and effect of law, such rules shall not change the right of appeal. Mo. Const. art. V, § 5. Rule 81.06 does not change the right of appeal but rather aids in defining what will constitute a "final judgment" for purposes of appeal within the meaning of § 512.020, and under the rule "[w]hen a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case," as here, the judgment entered is a final judgment for purposes of appeal within the meaning of § 512.020 if it is specifically so designated by the court in the judgment entered.3

Subsequent to Dotson but prior to Spires, this Court in State ex rel. State Highway Comm'n v. Armacost Motors, Inc., 502 S.W.2d 330 (Mo.1973), dismissed defendant's appeal from an order of the trial court in a condemnation action, even though the trial court had designated its order to be a final order for the purpose of appeal. The trial court had overruled defendant's motion to consolidate all of defendant's exceptions and to try them together as exceptions relating to one assemblage or, alternatively, to permit the value of each separate parcel owned by defendant to be shown to have been enhanced because of the reasonable probability of their being combined into one assemblage in the reasonably near future. Id., at 330-31. In holding the order appealed from was not an appealable order, this Court stated:

Armacost Motors, 502 S.W.2d at 332. Such language has been applied too broadly by subsequent courts in dismissing appeals from orders designated final for purposes of appeal. As in cases cited supra, note 3, the designation of the order appealed from in Armacost Motors was without effect because the second sentence of Rule 81.06 was inapplicable since the order did not involve a separate trial before the court of a claim, nor the dismissal of a petition or a count in a petition which is treated as a separate trial before the court without a jury within the meaning of Rule 81.06. Gibbar, 575 S.W.2d at 927. To the extent that Armacost Motors, 502 S.W.2d at 332, implies that an order must dispose of "all the parties and all the issues in the case" before it can be designated final for purposes of appeal under Rule 81.06 such implication is incorrect and should no longer be followed. While this Court correctly noted in its broad language in Armacost Motors, 502 S.W.2d at 332, quoted above, that for an appeal to lie "[t]here must be either a judgment or an order within the limits prescribed by § 512.020," we failed to recognize that under Rule 81.06 if in fact there has been a separate trial before the court of claims arising from the same transactions, occurrences or subject matter as other claims in the case, and if the trial court enters an order of dismissal and designates its partial disposition to be final for purposes of appeal then there is a final judgment within the limits prescribed by § 512.020. While Rule 81.06 cannot extend the right of appeal granted by the statute, that rule does not so do but rather it aids in defining what shall constitute a final judgment within the meaning of § 512.020.

Although Rule 81.06 placed the discretion to designate the dismissal of Count III of appellants' petition with the trial court, such an exercise of discretion is, like all such rulings, reviewable for abuse of discretion. Anderson v. Robertson, 402 S.W.2d 589, 592-93 (Mo.App.1966). "Appellate review of the trial court's exercise of discretion does not pivot on whether a reviewing court would have exercised its discretion in like manner, but whether the trial court abused its discretion." In re $29,000.00 in U.S. Currency, 682 S.W.2d 68, 75 (Mo.App.1984). Judicial discretion is abused only where the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and to indicate a lack of careful consideration. Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448 (Mo. banc 1976). If reasonable men could differ as to the propriety of the action, it cannot be said the trial court abused its discretion. Id. Here the trial court's designation of its order to be final for purposes of appeal was not so clearly against the logic of the circumstances nor so arbitrary and unreasonable as to constitute an abuse of discretion. Suffice it to say that the trial court's dismissal of Count III leaves no issues pending between appellants and Union Electric and that the designation of the dismissal as a final judgment for purposes of appeal does not prejudice respondent Union Electric. Under the circumstances of this case and given the overall complexity of the litigation, the trial court did not abuse its discretion in designating its judgment appealable.

Additionally, respondent's assertion that the trial court's dismissal of Count III is not an appealable order but must be challenged by extraordinary writ because the dismissal is to be treated as a dismissal for lack of subject matter jurisdiction and was "without prejudice" is without merit. The trial court designated the dismissal final for purposes of appeal under Rule 81.06 and, as held above, did so properly. See also, e.g., Lawson v. Village of Hazelwood, 356 S.W.2d 539 (Mo.App.1962); 4 Am. Jur.2d Appeal & Error §§ 87, 108 (1962). Respondent's motion to dismiss this appeal is overruled.

The case is retransferred to the Court of Appeals, Eastern District, for determination on the merits.

All concur.