                     In the Missouri Court of Appeals
                             Eastern District
                                        DIVISON FOUR

JEFFREY T. BLACKWELL,                         )      No. ED100888
                                              )
       Appellant,                             )      Appeal from the Circuit Court of
                                              )      St. Louis County
vs.                                           )
                                              )
CSF PROPERTIES 2 LLC,                         )      Honorable Thea A. Sherry
                                              )
       Respondent.                            )      Filed: September 30, 2014

                                           Introduction

       Jeffrey Blackwell (Plaintiff) appeals the trial court‟s grant of partial summary judgment

in favor of CSF Properties 2, LLC (Defendant) on Plaintiff‟s action for negligence and

negligence per se. Because there is no final, appealable judgment, we dismiss the appeal.

                              Factual and Procedural Background

       In April 2009, Defendant owned a house at 6763 Edison in Velda Village Hills. The

house had a front porch enclosed by a brick wall approximately nineteen inches in height. The

western wall of the enclosure abutted a ten-foot drop-off to a concrete driveway.

       Defendant rented 6763 Edison to Tonya Dyson. On April 3, 2009, Ms. Dyson invited

Plaintiff to a post-funeral repast at her house. During the repast, Plaintiff engaged in a “scuffle”

with Tommy Anderson, another guest, and Ms. Dyson ordered Plaintiff to leave. Plaintiff exited

the front door and stood on the western end of the front porch, where he intended to call his

parents to request a ride home. Before Plaintiff was able to place the call, Mr. Anderson stepped
onto the front porch and pushed Plaintiff, causing him to fall over the brick enclosure to the

driveway below and fracture his cervical spine, resulting in paralysis.

       In May 2012, Plaintiff filed a first amended petition alleging that Defendant‟s negligence

in maintaining the porch and porch enclosure in an unsafe condition caused his injuries. Plaintiff

did not separate his petition into counts but rather pleaded broadly that:

          [Defendant] failed to exercise reasonable care and was negligent in one or
          more of the following respects:

          (a) It rented the dwelling with a front porch enclosure that violated applicable
              codes and ordinances because the enclosure was not at least 30” or at least
              46” in height constituting negligence per se;
          (b) It failed to construct the front porch enclosure to a height of at least 30” or
              at least 46” when it knew or could have known that the failure to do so
              created a significant risk of harm to residents and guests;
          (c) It failed to make the porch reasonably safe after it undertook to make the
              porch reasonably safe by installing a handrail on the stairs and reinforcing
              the bricks around the porch;
          (d) It failed to make the porch comply with the applicable codes and
              ordinances when it made alterations to the porch;
          (e) It failed to warn the Plaintiff of the dangerous condition of the front porch
              enclosure;
          (f) It rented the dwelling when it knew or could have known that the front
              porch enclosure created a significant risk of harm to residents and guests
              because it constituted a fall hazard;
          (g) It failed to remove and make safe the front porch enclosure when it knew
              or could have known that the condition rendered the premises unsafe, in
              violation of applicable codes and ordinances constituting negligence per se;
          (h) It failed to inspect the front porch enclosure when it knew or could have
              known that the enclosure was not reasonably safe; and
          (i) It failed to maintain the front porch enclosure when it knew or could have
              known that the enclosure was not reasonably safe.

       Defendant responded with an answer and denied Plaintiff‟s allegations. Subsequently, on

July 20, 21012, Defendant filed a “Motion for Partial Summary Judgment” on Plaintiff‟s claim

of negligence per se (“July 20, 2012 Motion for Partial Summary Judgment”). In its motion,

Defendant asserted that “the undisputed facts of the case establish that a statute or an ordinance

sufficient to support a claim for negligence per se was not violated by the home located at 6763

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Edison,” and, even if the property violated a statute or ordinance, “such a violation was not the

proximate cause of the harm alleged here, and negligence per se cannot be established.” In

January 2013, the trial court denied Defendant‟s July 20, 2012 Motion for Partial Summary

Judgment.

       After the trial court denied Defendant partial summary judgment as to Plaintiff‟s

negligence per se claim, Defendant filed a motion for partial summary judgment, denominated

“Motion for Partial Summary Judgment on Negligence.” In this motion filed on May 23, 2013,

Defendant asserted that it was entitled to summary judgment “on the negligence claim in

Plaintiff‟s First Amended Petition” because at the time of Plaintiff‟s injury, Plaintiff was a

trespasser to whom Defendant owed no duty. Defendant argued in the alternative, if Plaintiff

was not a trespasser, he was a licensee, and Plaintiff “cannot support a licensee claim here

because [Defendant] did not know or have information that the porch of the property at 6763

Edison was unreasonably safe [sic] for individuals such as Plaintiff” or that “Plaintiff would not

discover this condition or realize its risk of harm.” Finally, Defendant contended that “the

allegedly dangerous condition that Plaintiff is claiming caused his injuries was open and obvious

and cannot thus be used by him to support a claim of negligence as a matter of law.”

       After hearing arguments, the trial court granted Defendant‟s Motion for Partial Summary

Judgment on Negligence on November 25, 2013. In its judgment, the trial court found that

Plaintiff was present on Defendant‟s property as a licensee and that Defendant was entitled to

judgment as a matter of law because the undisputed evidence in the record demonstrated that

Plaintiff “knew the condition of the porch and realized the risk of harm prior to his injury.” The

trial court‟s November 25, 2013 partial summary judgment contains no reference to Plaintiff‟s

allegations of negligence per se. The judgment concludes: “ACCORDINGLY, Defendant CSF



                                                    3
Properties 2 L.L.C.‟s Motion for Summary Judgment on Plaintiff Jeffrey Blackwell‟s Petition is

hereby GRANTED. All arguments submitted and not addressed have been considered and

DENIED.”      Plaintiff filed a notice of appeal from the trial court‟s judgment of November 25,

2013 granting Defendant‟s Motion for Partial Summary Judgment on Negligence.

                                           Discussion

       Plaintiff claims the trial court erred in granting summary judgment to Defendant because

it: (1) applied the incorrect law to the facts when it held that Plaintiff was a licensee; and (2)

decided a disputed element of licensee liability as a matter of law. Plaintiff also contends that

the trial court erred in dismissing Plaintiff‟s entire petition, including his count for negligence

per se, because Defendant‟s Motion for Partial Summary Judgment on Negligence related solely

to Plaintiff‟s negligence claim. Defendant counters that the trial court properly granted summary

judgment because Defendant owed no duty to Plaintiff as: (1) the conditions of the porch and

porch enclosure were open and obvious; and (2) at the time of the injury, Plaintiff was a

trespasser on Defendant‟s property. Additionally, Defendant asserts that this court should affirm

the trial court‟s judgment for Defendant as to Plaintiff‟s negligence per se claim because “the

claim fails as a matter of law” and “[s]o long as the trial court‟s judgment is sustainable on any

ground, the judgment will not be disturbed on appeal.”

       Before we address the merits of Plaintiff‟s points on appeal, we consider our authority to

review the trial court's ruling on a motion for partial summary judgment.1 Duncan v. Mo.

Alliance for Children & Families, 387 S.W.3d 389, 391 (Mo.App.W.D. 2012). A final judgment

is a prerequisite to appellate review. Mo. Rev. Stat. § 512.020; Ndegwa v. KSSO, LLC, 371

S.W.3d 798, 801 (Mo. banc 2012) (citing Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc

1
  We therefore do not reach the issue of the propriety of summary judgment on Plaintiff‟s
negligence claim.
                                                    4
1997)). A partial summary judgment is not a final judgment subject to our review if it leaves

issues for future determination. Dibben v. Shelter Ins. Co., 261 S.W.3d 553, 555 (Mo.App.W.D.

2008). If the trial court‟s judgment was not a final judgment, we must dismiss the appeal.

Ndegwa, 371 S.W.3d at 801 (citing Gibson, 952 S.W.2d at 244).

       A judgment is final when it disposes of an entire claim for relief, or a distinct “judicial

unit.” Gibson, 952 S.W.3d at 244. A distinct judicial unit is “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 (quoting Gibson, 952 S.W.2d at

244)). In other words, a judicial unit “comprises all the legal issues raised by a single fact

situation[.]” Blechle v. Goodyear Tire & Rubber Co., 28 S.W.3d 484, 487 (Mo.App.E.D. 2000)

(citing Gibson, 952 S.W.2d at 244)).   “[A] ruling on any issue that does not finally „dispose of

the claim‟ is not a „judicial unit‟ for appeal and therefore cannot serve as the foundation for a

final judgment.” Id. at 487 (quoting Gibson, 952 S.W.2d at 244)).

       Rule 74.01(b) provides an exception to the final judgment requirement in cases involving

multiple claims for relief. Talbot v. Union Elec. Co., 157 S.W.3d 376, 378 (Mo.App.E.D. 2005).

Pursuant to Rule 74.01(b), “the court may enter a judgment as to one or more but fewer than all

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

delay.”2 Here, the trial court did not certify the partial summary judgment for appeal under Rule

74.01(b).

       Even if the trial court had certified the partial summary judgment for appeal under Rule

74.01(b), the judgment in question would not be final for purposes of appeal because it did not

2
 We note that a trial court‟s certification of a judgment as final is not conclusive. Duncan, 387
S.W.3d at 391. A trial court‟s designation of a judgment as final “is effective only when the
order disposes of a distinct „judicial unit.‟” Id. (quoting Gibson v. Brewer, 952 S.W.2d 239, 244
(Mo. banc 1997)).
                                                   5
resolve at least one claim for relief. See, e.g., Talbot, 157 S.W.3d at 378. In his petition,

Plaintiff set forth two legal theories (negligence and negligence per se) seeking damages based

on the same transaction or occurrence (Plaintiff‟s fall from Defendant‟s porch).          Because

Plaintiff‟s theories of negligence and negligence per se arise from the same fact situation, they

comprise a single judicial unit. See, e.g., Moreland v. Farren-Davis, 995 S.W.2d 512, 517-18

(Mo.App.W.D. 1999).

       The trial court‟s November 25, 2013 judgment disposed of Plaintiff‟s action for

negligence but not his action for negligence per se.       Prior to filing its Motion for Partial

Summary Judgment on Negligence, Defendant filed the July 20, 2012 Motion for Partial

Summary Judgment as to negligence per se. The trial court overruled that motion. Defendant

subsequently filed the Motion for Partial Summary Judgment on Negligence, in which it

requested the trial court “enter summary judgment in [Defendant‟s] favor on the claims for

negligence in Plaintiff‟s First Amended Petition. . . .” Defendant‟s Motion for Partial Summary

Judgment on Negligence neither pleaded undisputed material facts negating Plaintiff‟s

negligence per se claim nor asserted that Defendant was entitled to judgment as a matter of law

as to negligence per se. Defendant‟s motion requested partial summary judgment on Plaintiff‟s

“claims for negligence,” and the trial court granted it.

         Although Plaintiff asserts that the trial court‟s November 24, 2012 summary judgment

“dismissed the entirety of [Plaintiff‟s] case including his negligence per se claim not at issue in

[Defendant‟s Motion for Partial Summary Judgment on Negligence],” we conclude that the

language of the judgment is insufficient to dismiss both causes of action. Indeed, the judgment

merely states that Defendant‟s “Motion for Summary Judgment on Plaintiff Jeffrey Blackwell‟s

Petition is hereby GRANTED” and “[a]ll arguments submitted and not addressed have been



                                                      6
considered and DENIED.” The trial court neither referred to Plaintiff‟s theory of negligence per

se nor analyzed the elements of that claim.

       Defendant impliedly addresses the finality of the judgment when it argues that, even

though Defendant‟s motion for partial summary judgment on negligence “did not expressly

embrace [Plaintiff‟s] negligence per se claim . . . [h]is negligence per se claim is necessarily

subsumed by [Defendant‟s] arguments for summary judgment on [Plaintiff‟s] negligence claims

generally.” Defendant cites no authority to support its suggestion that, if Defendant established a

right to judgment as a matter of law on Plaintiff‟s claim of negligence, it likewise established a

right to judgment as a matter of law as to Plaintiff‟s claim of negligence per se.3

       To establish a claim of negligence per se based on the violation of an ordinance, a

plaintiff must plead the following four elements:

          (1) . . . a violation of the ordinance; (2) the injured plaintiff was a member of
          the class of persons intended to be protected by the ordinance; (3) the
          plaintiff's injury is of the type the ordinance was designed to prevent; and (4)
          the violation of the ordinance was the proximate cause of the injury.

Mediq PRN Life Support Servs., Inc. v. Abrams, 899 S.W.2d 101, 107 (Mo.App.E.D. 1994). In

contrast, the elements of a negligence claim are: (1) the existence of a duty on the part of the

defendant to protect the plaintiff from injury; (2) the defendant‟s failure to perform that duty; and

(3) injury to the plaintiff resulting from that failure. Weaks v. Rupp, 966 S.W.2d 387, 392

(Mo.App.W.D. 1998). A review of Defendant‟s Motion for Partial Summary Judgment on

Negligence reveals that Defendant stated facts intended to negate elements of Plaintiff‟s

negligence claim but did not assert any facts intended to negate proof of the material elements of

Plaintiff‟s negligence per se claim. Because, in its Motion for Partial Summary Judgment on



3
 In any event, the trial court expressly considered Defendant‟s July 20, 2012 Motion for Partial
Summary Judgment as to negligence per se and declined to grant summary judgment.
                                                     7
Negligence, Defendant only addressed Plaintiff‟s negligence claim, the trial court did not grant

summary judgment on Plaintiff‟s entire claim. See Moreland, 995 S.W.2d at 517.

       Accordingly, we conclude that the trial court‟s judgment did not completely resolve

Plaintiff‟s entire claim for relief and is therefore not a final and appealable judgment. In the

absence of a final judgment, this court lacks authority to consider this appeal. Talbot, 157

S.W.3d at 379.

                                          Conclusion

       Plaintiff‟s appeal is dismissed.




                                            Patricia L. Cohen, Presiding Judge

Roy L. Richter, J., and
Robert M. Clayton III, J., concur




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