 

In the Missouri Court of Appeals
Eastern District

DIVISION FOUR

LANE HOUSE CONSTRUCTION, INC., ) No. ED102873

)
Appellant, ) Appeal from the Circuit Cou1't

) of the City of St. Louis

vs. )
) Honorable Calea Stovall-Reid

LUFEO DOUGLAS SITHOLE, PATRICIA )

SITHOLE, AND MARY ANN LIEBMAN, )
)

Respondents. ) FILED: August 23, 2016
Introduction

Appellant Lane House Construction, Inc., ("Lane House") appeals from the judgment of
the trial court entered in favor of Respondents Lufeo Douglas Sithole, Patricia Sithole, and i\/Iary
Ann Liebmaii (collectively referred to as the "Respoiideiits"). Lane House filed a suit pertaining
to repair work that it conipleted on the Respondents’ residence, and the Respondents filed a
counter-petition. Following a bench trial, the trial court entered judgment in favor of the
Respondents on Lane House’s petition and awarded Respondents $5,635.36 on their counter-
petition. Although Lane House raises three points on appeal, thejudgment entered by the trial
court did not resolve all claims asserted by the parties. Because the trial court’s judgment was

not final, we lack authority to proceed and disniiss the appeal.]

‘ We also deny Respondeuts’ motion for attorney’s fees, which was taken with the case.

Factual and Procedural History

The Respondents own a St. Louis residence that experienced significant hail and water
damage. Lufeo Sithole contracted with Lane House for extensive repair work. Shortly
thereafter, work coinmenced on the residence During the course of the \vork, Lane House
submitted an invoice to Lufeo Sithole for $12,043.03. The Respondents made two payments to
Lane House, totaling $8,048.27 and reducing the amount owed to $3,994.76.

As the work continued, disagreements between the Respondents and Lane House arose
regarding the materials used by Lane House and its subcontractors, the quality of work
performed by Lane House and its subcontractors, and the representations made by Lane House as
to the scope and quality of the work. Additioiially, the parties disagreed over the subcontractors’
failure to remove old siding on the garage before installing new siding and their failure to
insulate the structure. Testirnony at trial established that the cost to remove the old siding on the
garage and to insulate the structure properly would total $5,635.26.

As these disputes escalated, Lane House stopped work on the residence and the
Respondents refused to make further payments Lane House claimed that the amount due on the
completed work was $3,994.76 and filed suit against the Respondents alleging breach of
contract. Lane House alternatively pled counts for suit on account, quantum meruit, and unjust
enrichment

At the initial hearing, Lufeo Sithole appeared and filed a counterclaim for breach of
contract against Lane House. The trial court entered defaultjudginent on Lane House’s breach
of contract claim against Patricia Sithole and Mary Lee Liebman, but later granted Respondents’
inotion to set aside the default judgment

The Respondents then filed an amended counter~petition, which included one count for

breach of contract and one count for fraud. The breach of contract claim averred that Lane

2

Hotlse failed to provide work in accordance with industry standards and did not complete all
work as mandated by the contract. The count for fraud set forth additional allegations that Lane
House represented to the Respondents that it would perform construction vvor'k on the residence;
that it knew, or should have known, the falsity of such statements; and that the Respondents
relied on said representations in rendering payinent.

Tlre trial court conducted a bench trial on Lane House’s petition and the Respondents’
amended connter-petition. Aftei' the bench trial, the trial court entered judgment against Lane
House on Lane House’s petition. The trial court also enteredjudgmerrt for the Responderrts on
their countersuit. The document, entitled “Jtldginetrt and Order," stated, in part:

As to defendant’s counterclaim this Court liaving considered the evidence and

applicable law finds in favor of defendants Lufeo Douglas Sithole, and Patricia

Sithole, and Mary Ann Liebinair, and hereby enters judgment in favor of

defendants, and against plaintiff Lane House Construction, Inc[.] in the

amount of $5635.36 (emphasis in original).

Subsequently, Lane House filed a motion to amend the judgment or alternatively, for a

new trial, which the trial court denied. This appeal follows.

Points on Appeal

Lane Honse raises three issues on appeal. First, Lane House argues that the judgment
entered by the trial court against it on the Respondents’ counterclaim was not a final judgment,
as the judgment did not dispose of both counts of the Respondents’ amended counter-petition.
Second, Lane House contends that the trial court abused its discretion by granting the
Respondents’ motion to set aside the default judgment entered in their favor because the
Respondents failed to prove good cause as required under Rule 74.05(d).2 Third, Lane House

asserts that the judgment awarding $5,635.36 to the Respondents was against the weight of the

2 All rule references are to Mo. R. Civ. P. (2014).

evidence because the trial court sliould have offset any award to the Respondents by the
remaining $3,994.76 still due under the submitted invoice.

Discussion

Lane House first asserts that this Coutt lacks the authority to hear the appeal relating to
the Respondents’ counterclaim because the trial court did not enter a final, appealable judgment
to the counts raised in the counterclaim. Lane House asks this Court to remand the case to the
trial court for entry of a final judgment Because the trial court did not enter a final, appealable
judgment, we lack authority to proceed with any point on appeal, and disrniss the appeal in its
entirety.

An appellate court must first determine its authority to review the appeal before it can
examine the inerits of the case. Bellinger v. Lindsey, 480 S.W.3d_345, 347 (Mo. App. E.D.
2015); Gordon v. Heiler, 352 S.W.3d 411, 413 (Mo. App. E.D. 2011). Where an appellate court
lacks the necessary authority to consider the nierits of an appeal, it should dismiss the case. §

Gordon, 352 S.W.3d at 413.

In Missouri, the right of appeal is purely statutory. Polk v. Essen, 249 S.W.Sd 914, 913

(Mo. App. E.D. 2008). Absent the requisite statutory atlthority, no right to appeal exists. Buemi

v. Kerckhoff, 359 S.W.3d l6, 20 (Mo. banc 201 l). Section 5 l2.0203 controis the right of appeal
in civil cases. Masl<ill v. Cummins, 397 S.W.3d 27, 31 (Mo. App. W.D. 2013). Applicable to
the present appeal, Section 512.020(5) permits an aggrieved party to appeal from a "t`inal
judgment" in his or her case. ld_. at 32. Accordingly, a final judgment is a "prereqtlisite to

appellate review."‘l Buemi, 359 S.W.3d at 20.

3 Ail statutory references are to RSMo. Cuin, Supp. (2004).
“’ The exceptions to the requirement of a "fina| judgment” do not apply here. §§ Section 5 l 2.020(1)-(4).

4

In order to constitute a final judgment, ajudgment must dispose of all parties, resolve all
issues, and leave nothing for future determination. S & P Props. v. Bannister, 292 S.W.3d 404,
407 (Mo. App. E.D. 2009). Generally, if a party files a counterclaim, the judgment must contain
a finding that fully disposes the counterclaim; otherwise, the judgment is not final and
appealable Go?ldol_i, 352 S.W.3d at 413. Moreover, if the counterclaim alleges different causes
of action contained in separate counts, then the judgment resolving the counterclaim is not final
if it does not effectively dispose of all counts contained therein. C_f. Fallin v. McClain, 639
S.W.Zd 391, 391 (Mo. App, S.D. 1982) (stating that a judgment is not final for appellate
purposes unless it disposes of all counts contained in the petition).

ln order to resolve a multi~count petition or counter-petition, a judgment awarding
damages should address or indicate to which count or counts the judgment applied. §§
Altchovy Pizza, L.L.C., v. Hofflnan, 16 S.W.3d 754, 756 (l\/lo. App. E.D. 2000). Consequently,

ajudgment that only “awards a single inonetary amount on a two-count petition, without further

explanation or detail, does not clearly dispose of all claims on its face and is not final." Okello v.

Beebe, 930 S.W.Zd 40, 42 (Mo. App. W.D. 1996). §§§ §§ Johnsolt-Mulherii Props. v. TCI

Cablevision, 980 S.W.Zd 171, 173 (Mo. App. E.D. 1998) (judginent awarding a single monetary
amount as damages on a three-count petition is not final). However, there is a slight caveat to
this rule; ajudgment on only one count of a multi-count claim is deemed final if the award
necessarily precludes recovery on all other pending counts. B, e_.g¢, l\/lcDonough v. Liberty
Mut. Ins. Co., 921 S.W.Zd 90, 95 (Mo. App. E.D. 1996) (judgment in favor of plaintiff on one
count necessarily precludes recovery on other counts when plaintiff asserts the counts as

mutually exclusive alternative theories of recovery).

ln the present case, the Respondents’ amended counter-petition includes two separate
counts: Count l for breach of contract and Count ll for fraud. The judgment entered by the trial
court on the amended counter-petition stated, in part:

As to defendant’s counterclaim this Court having considered the evidence and

applicable law finds in favor of defendants Lufeo Douglas Sithole, and Patricia

Sithole, and Mary Ann Liebnian, and hereby enters judgment in favor of

defendants, and against plaintiff Lane House Construction, Inc[.] in the

amount of $5635.36 (enipliasis in original).

Wiiiie the judgment of the trial court differentiates between the claim filed by Lane
l*louse and the counter-claim filed by the Respondents, the judgment does not stift`iciently
indicate its disposition of the two separate counts alleged in the Respondents’ amended counter-
petition. Althotigh the judgment specifically stated that it applied to the Respondents’
counterclairn, it did not specify the particular count or counts of the Respondents’ ainended
counter-petition to which the_iudginent applied. lndeed, the judgment does not indicate whether
the monetary award was on Count l, Count Il, both Count l and lI, or how the damages were
allocated between the two separate counts. Because the judgment fails to indicate which counts
it resolves or to which counts the damages awarded appty, it is not final for the purposes of
appeal. _O_§;;l_lg_, 930 S.W.Zd at 42. § also Anchovy Pizza, L.L.C., 16 S.W.Sd at 756.

Further, the two counts of the aniended counter-petition allege different claims for
separate injuries. The resolution in favor of the Respondents on one count does not necessarily
resolve both counts. § McDonough, 921 S.W.Qd at 95. Count l seeks damages for Lane
House’s alleged failure to use proper inaterials, to apply industry standards in its work, and to
finish the work specified in the conti'act. Count ll asks for damages based on Lane House’s

alleged representations to the Respondents regarding the iiatiire and extent of Lane Housc’s

work, upon which the Respondents detrimentally relied when entering into the contract with

Lane House and making payments Because the two counts allege different facts and seek
recovery on separate legal theories that are not mutually exclusive, the generally worded
judgment entered in favor of the Respondents by the trial court does not inevitably resolve both
of the asserted counts. As a result, the judgment entered in favor of the Respondents on their
amended counter-petition, without further detail or explanation, does not constitute a final
judgment for appellate purposes
Because we find that the trial court did not resolve both counts contained in the
Respondents’ arnended counter-petition, the trial court’sjudgnierit was not final. Witliout a final
judgment, we lack the authority to consider the rnerits of the appeal.
Conclusion

The appeal is dismissed.

    

K RT s. oDsNw/>.LD, image

James M. Dowd, P.J., concurs.
Gary M. Gaertner, Jr., J., ooncurs.

