               IN THE MISSOURI COURT OF APPEALS
                       WESTERN DISTRICT

 DANIEL L. TAYLOR,                                       )
                                                         )
                                         Appellant,      )
 v.                                                      )     WD83238
                                                         )
                                                         )     OPINION FILED:
 THE CURATORS OF THE                                     )     June 2, 2020
 UNIVERSITY OF MISSOURI,                                 )
                                                         )
                                       Respondent.       )


                     Appeal from the Circuit Court of Boone County, Missouri
                           The Honorable J. Hasbrouck Jacobs, Judge

                    Before Division Two: Mark D. Pfeiffer, Presiding Judge, and
                               Alok Ahuja and Gary D. Witt, Judges

       This appeal presents a procedural scenario in which the second count in a lawsuit relating

to one “claim” was dismissed by the Circuit Court of Boone County, Missouri (“trial court”).

Because the trial court’s ruling does not qualify as a “final judgment” pursuant to

section 512.020(5),1 Wilson v. City of St. Louis, No. SC97544, 2020 WL 203137 (Mo. banc

Jan. 14, 2020), we are required to dismiss the appeal.




       1
           All statutory references are to the REVISED STATUTES OF MISSOURI 2016, as supplemented.
                                   Factual and Procedural Background2

         The Curators of the University of Missouri (“Curators”) is the governing body of the

University of Missouri, which operates University Hospital (“Hospital”) in Columbia, Missouri.

In 2014, the Hospital provided medical care to Mr. Daniel L. Taylor (“Taylor”) following a

farming accident, which resulted in the amputation of Taylor’s left hand. At the time the Hospital

provided services to Taylor, he was uninsured. Taylor agreed to be personally responsible for the

medical billing since he did not have any health insurance. When Taylor did not pay his medical

bills, Curators asserted a hospital lien in the amount of $134,661.64.

         In 2015, Taylor entered into a settlement agreement with his employer’s farm liability

insurer in the amount of $1,005,000. The liability insurer withheld $134,661.64 from the

settlement amount to satisfy the hospital lien. In 2016, Curators filed suit against the liability

insurer to foreclose the lien, resulting in the liability insurer paying the full amount of the hospital

lien to Curators.

         In 2018, Taylor filed suit against Curators, alleging that the Hospital represented on its

“Financial Assistance” website that Hospital charges for uninsured patients were “automatically

discounted” 60% and physician charges were “automatically discounted” 25%. He contended that

because he was uninsured when he was admitted to the Hospital in 2014, the Hospital should have

applied this “uninsured discount policy” to the amount of the medical billing. Taylor alleged that

Curators’ receipt of $134,661.64 from the insurer was an “overpayment” of $75,082.53.

         Subsequently, Taylor filed a Second Amended Petition containing two counts. In Count I,

Taylor alleged that Curators “refused to honor the ‘Uninsured Patient Discount’ and refused to


         2
           In reviewing a judgment granting a motion to dismiss with prejudice, “[w]e assume all facts alleged in the
petition are true and liberally construe all reasonable inferences in favor of the plaintiff.” Williams v. Bayer Corp.,
541 S.W.3d 594, 599 (Mo. App. W.D. 2017) (citing Smith v. Humane Soc’y of United States, 519 S.W.3d 789, 798
(Mo. banc 2017)).


                                                          2
reduce the medical billing to [Taylor], thereby breaching the contractual relationship entered in by

[Taylor] and [Curators].” He alleged that Curators’ suit against the liability insurer “for payment

of its full hospital lien” was “in violation of the contractual agreement.” He further alleged that

“[a]s a result of the overpayment, [Curators] breached its contract with [Taylor] to accept

discounted payment because of [Taylor’s] uninsured status and [Taylor] is thereby damaged in the

same amount as the overpayment and for attorney’s fees.”

       In Count II, Taylor incorporated by reference the allegations in Count I and repeated

allegations regarding the hospital lien relating to Curators’ effort to successfully obtain the full

amount of the hospital lien in violation of its automatic deduction agreement with its uninsured

patients. In this count, however, Taylor sought a different remedy for the Curators’ alleged

misdeeds, alleging that the actions of Curators were a violation of the Missouri Merchandising

Practices Act (“MMPA”) due to the Curators’ “misrepresentation, unfair practices, and

suppression in that the asserted lien was for the full amount of the medical billing and did not

include the required automatic discount for an uninsured patient.” Taylor sought all statutorily

authorized damages for the alleged MMPA violation by Curators.

       Curators filed a motion to dismiss Taylor’s Second Amended Petition. Curators argued

that Count I for breach of contract should be dismissed because Taylor failed to plead sufficient

facts to show that he entered into a contract with Curators for a discount in his medical bills.

Curators argued that Count II should be dismissed because Taylor failed to plead facts establishing

that an exception to sovereign immunity applied that would subject Curators to liability under the

MMPA. The trial court issued a judgment of dismissal as to Count II only and purported to certify

its ruling as “final” and immediately appealable pursuant to Rule 74.01(b).3



       3
           All rule references are to I MISSOURI COURT RULES – STATE 2019.


                                                       3
         Taylor appealed from the judgment of dismissal, asserting trial court error in its application

of sovereign immunity and in its statutory interpretation of the MMPA. Curators filed a Motion

to Dismiss Interlocutory Appeal, alleging that the trial court’s partial dismissal did not qualify as

a “final judgment” subject to interlocutory appeal. For the reasons hereinafter explained, we grant

Curator’s motion and dismiss Taylor’s appeal for lack of a final judgment.

                                                     Analysis

         Recently, the Missouri Supreme Court in Wilson v. City of St. Louis, No. SC97544, 2020

WL 203137 (Mo. banc Jan. 14, 2020), clarified the analysis of what trial court rulings constitute

“judgments” and, of those rulings, which are “final” for purposes of appeal.4 “‘The right to appeal

is purely statutory and, where a statute does not give a right to appeal, no right exists.’” Id. at *3

(quoting First Nat’l Bank of Dieterich v. Pointe Royale Prop. Owners’ Ass’n, Inc., 515 S.W.3d

219, 221 (Mo. banc 2017)). The statute pertinent to this case is section 512.020(5), which provides,

in relevant part:

         Any party to a suit aggrieved by any judgment of any trial court in any civil cause
         from which an appeal is not prohibited by the constitution, nor clearly limited in
         special statutory proceedings, may take his or her appeal to a court having appellate
         jurisdiction from any:

         ....

         (5) Final judgment in the case or from any special order after final judgment in
         the cause . . . .

(Emphasis added.) For purposes of section 512.020(5), a “final judgment” must satisfy two

criteria: (1) “it must be a judgment (i.e., it must fully resolve at least one claim in a lawsuit and

establish all the rights and liabilities of the parties with respect to that claim)”; and (2) “it must be



         “[T]he question of whether a judgment is eligible for certification under Rule 74.01(b) is a question of law
         4

on which the circuit court has no discretion; only the question of whether an eligible judgment should be certified
under Rule 74.01(b) is left to the sound exercise of the circuit court’s discretion.” Wilson, 2020 WL 203137, at *5.


                                                         4
‘final,’ either because it disposes of all claims (or the last claim) in a lawsuit, or because it has

been certified for immediate appeal pursuant to Rule 74.01(b).” Wilson, 2020 WL 203137, at *5.

As to the second step in the “final judgment” analysis:

         A judgment is eligible to be certified under Rule 74.01(b) only if it disposes of a
         “judicial unit” of claims, meaning it: (a) disposes of all claims by or against at least
         one party, or (b) it disposes of one or more claims that are sufficiently distinct from
         the claims that remain pending in the circuit court.

Id.

         Wilson instructs us that the “final judgment” analysis is a conjunctive two-step analysis and

not a disjunctive analysis. An appellant must have both a judgment and finality in order to appeal

pursuant to section 512.020(5).5

         Here, Taylor appeals from the trial court’s purported judgment, dismissing with prejudice

Count II (MMPA claim) of Taylor’s Second Amended Petition against Curators and certifying the

judgment under Rule 74.01(b) as a final judgment for purposes of appeal. Whether viewed as the

failure to resolve a distinct “claim,” or as the failure to resolve a distinct “judicial unit,” the result

is the same: we lack appellate jurisdiction over the circuit court’s purported judgment.6

         Before analyzing the second step in the “final judgment” formula (i.e., the trial court’s

Rule 74.01(b) certification), we must analyze the first step—whether the trial court’s dismissal

ruling constitutes a “judgment.” As our Missouri Supreme Court has observed:

         There is persistent confusion surrounding the issues of what a judgment is, what
         form it takes, and when it is entered. The first, and most important, of these issues
         is definitional: 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.

         5
           In Wilson v. City of St. Louis, No. SC97544, 2020 WL 203137, at *8 n.7 (Mo. banc Jan. 14, 2020), the
Missouri Supreme Court took care to note that the previous Supreme Court precedent of Gibson v. Brewer, 952 S.W.2d
239, 244 (Mo. banc 1997), was incorrect to the extent that it stated that Rule 74.01(b) was an “exception” to the
mandate that only “final judgments” are appealable.
         6
           We recognize that there is some confusion in the case law concerning whether the factual overlap between
separate legal theories means that the legal theories constitute a single “claim,” a single “judicial unit,” or both. It is
unnecessary for us to resolve that issue here, since Taylor’s appeal fails under either analysis.


                                                            5
State ex rel. Henderson v. Asel, 566 S.W.3d 596, 598 (Mo. banc 2019) (emphasis added). Taylor

argues that the trial court’s judgment dismissing Count II is final and appealable because, even

though both counts arise from the same set of facts, the remedies asserted in the two counts (breach

of contract and MMPA) are different. Taylor’s argument is unavailing. “Claims are considered

separate if they require proof of different facts and the application of distinguishable law, subject

to the limitation that severing the claims does not run afoul of the doctrine forbidding the splitting

of a cause of action.” Wilson, 2020 WL 203137, at *5 (quoting Comm. for Educ. Equal. v. State,

878 S.W.2d 446, 451 (Mo. banc 1994)). Here, Counts I and II of Taylor’s Second Amended

Petition, although seeking different remedies, arise from one set of facts, namely:

       the imposition of a hospital lien for Taylor’s unpaid medical bills without an “uninsured

        patient discount” that Taylor alleged was “stated” on the Hospital website;

       Curators’ imposition of a hospital lien for the full amount of the medical billing;

       Curators’ suit against the insurer to foreclose on the hospital lien;

       Curators’ receipt of insurance proceeds to cover the full amount of the hospital lien; and

       Taylor’s attempt to recover the alleged “overpayment” of $75,082.53 from Curators.

Consequently, the purported judgment of dismissal of Count II has not “fully resolve[d] at least

one claim in a lawsuit” nor “establishe[d] all the rights and liabilities of the parties with respect to

that claim.” Wilson, 2020 WL 203137, at *3. Simply put, then, the trial court’s ruling dismissing

Count II cannot be designated a “judgment” in the first instance.

        Even if the breach of contract and MMPA counts of Taylor’s petition are considered

different “claims,” they constitute part of a single “judicial unit,” and therefore would not be

certifiable under Rule 74.01(b). Wilson explained that, where a dispositive ruling does not wholly

resolve all claims brought by or against a particular party, it only involves a discrete “judicial unit”


                                                   6
if it “disposes of one or more claims that are sufficiently distinct from the claims that remain

pending in the circuit court.” Wilson, 2020 WL 203137, at *5. As explained above, even if the

breach of contract and MMPA counts were considered separate “claims,” they both arise from the

same underlying set of operative facts, and constitute parts of a single “judicial unit.”

        Accordingly, because the October 9, 2019 judgment is not a “final judgment” subject to

certification under Rule 74.01(b), we have no choice but to dismiss this appeal. Id. at *1.

                                            Conclusion

        This Court grants Curator’s motion to dismiss and dismisses Taylor’s appeal for lack of

jurisdiction.

                                               /s/Mark D. Pfeiffer
                                               Mark D. Pfeiffer, Presiding Judge

Alok Ahuja and Gary D. Witt, Judges, concur.




                                                  7
