                IN THE MISSOURI COURT OF APPEALS
                        WESTERN DISTRICT

 ELIZABETH BUTALA, et al.,                                )
                                                          )
                                                                WD82810 (Consolidated with
                                         Appellants,      )
                                                                WD82811, WD82812, WD82813,
 v.                                                       )
                                                                WD82814, WD82815, WD82816,
                                                          )
                                                                and WD82817)
                                                          )
 THE CURATORS OF THE                                      )
                                                                OPINION FILED:
 UNIVERSITY OF MISSOURI,                                  )
                                                                March 24, 2020
                                                          )
                                        Respondent.       )


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

                   Before Division One: Thomas N. Chapman, Presiding Judge, and
                          Mark D. Pfeiffer and Anthony Rex Gabbert, Judges

        This consolidated appeal relates to a procedural scenario in which one of numerous

defendants was dismissed from certain similarly pled lawsuits that remain pending against the

other defendants. Because the purported judgment of dismissal in each case below fails to “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, as such, fails to qualify as a “judgment” pursuant to section 512.020(5),1




        1
            All statutory references are to the REVISED STATUTES OF MISSOURI 2016, as supplemented.
Wilson v. City of St. Louis, No. SC97544, 2020 WL 203137 (Mo. banc Jan. 14, 2020), we are

required to dismiss this consolidated appeal.

                                   Factual and Procedural Background2

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

University of Missouri. The Mizzou BioJoint Center is affiliated with University of Missouri, and

each of the individual defendants3 is affiliated with the Mizzou BioJoint Center. Appellants4 are

Mizzou BioJoint Center patients (and their spouses asserting loss of consortium) who alleged that

the defendants marketed and performed a surgical procedure using osteochondral allografts, a

combination of bone and cartilage tissue taken from the joint of a deceased donor, implanted into

multiple compartments and opposing surfaces of the knee joint in a single procedure. This

procedure was advertised and marketed as Mizzou BioJoint Surgery, a viable alternative to

artificial joint replacement surgery and equally as successful. The Mizzou BioJoint Surgery

performed on each of the Appellants ultimately failed.

         Between February and March, 2019, each of the appellants filed suit against the individual

doctor defendants and Curators in the Circuit Court of Boone County (“trial court”). Against the

individual defendant doctors, the appellants alleged medical malpractice, loss of chance of

recovery, and in some instances, loss of consortium. But, against all the defendants, including




         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)).
          3
             The lawsuits below against the individual defendants (Dr. James Stannard, Dr. Mauricio Kfuri, and
Dr. James Cook) remain pending and, for reasons discussed in our ruling today, this procedural scenario impacts our
statutory authority to consider the present appeal. The individual defendants are not parties to this appeal.
          4
            Elizabeth Butala, Cal Clark, Raymond and Chelsea Hackler, Monica and Johnny Palmer, Daniel and Mary
Draper, Mike Butterfield, Amanda and Matt Reinsch, Ken Browne and Elizabeth Vasseur-Brown, John and Lisa
Jaggie, Ronda and James Higginbotham, and Christopher and Leanne Cummings are the appellants herein.


                                                          2
Curators, Appellants alleged that the defendants violated the Missouri Merchandising Practices

Act (“MMPA”) by making misleading advertisements about joint surgery.5

         Curators filed motions to dismiss in each of the lawsuits, asserting sovereign immunity and

other statutory grounds entitling it to dismissal. The trial court entered judgments of dismissal in

each lawsuit on May 22, 2019, in which it dismissed Curators from each of the lawsuits, with

prejudice, as to all claims asserted against Curators in the underlying litigation. And, though the

trial court certified its respective judgments relating to Curators’ dismissal to be final and certified

them for immediate appeal pursuant to Rule 74.01(b),6 the counts that had been alleged against all

of the defendants in the lawsuits below (including the MMPA count) remained pending against

the individual doctor defendants.

         Appellants appealed from the judgments of dismissal, asserting trial court error in

application of its statutory interpretation of the MMPA, sovereign immunity, Rule 67.06, and other

constitutional challenges. We dismiss this consolidated appeal.

                                                   Jurisdiction

         Although neither party raises jurisdictional concerns,7 before addressing the merits of an

appeal, this court has a duty to determine sua sponte whether we have appellate jurisdiction. First

Nat’l Bank of Dieterich v. Pointe Royale Prop. Owners’ Ass’n, Inc., 515 S.W.3d 219, 221 (Mo.

banc 2017). If this court lacks jurisdiction to entertain an appeal, the appeal must be dismissed.

Glasgow Sch. Dist. v. Howard Cty. Coroner, 572 S.W.3d 543, 547 (Mo. App. W.D. 2019).

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


         5
            Appellants also alleged constitutional challenges and, in some instances, negligent misrepresentation
against all of the defendants. Though the purported judgments of dismissal dismissed Curators from all of the counts
in the separate lawsuits that made claims against Curators, each of the counts that were alleged by some or all of the
appellants below against all defendants below remains pending against the individual doctor defendants.
         6
           All rule references are to I MISSOURI COURT RULES – STATE 2019.
         7
            Before oral argument, however, the Court invited the parties to submit legal briefing on the topic of this
Court’s jurisdiction.


                                                          3
203137 (Mo. banc Jan. 14, 2020), clarified the analysis of what rulings of trial courts constitute

“judgments” and, of those rulings, which are “final” for purposes of appeal. Based upon our

Missouri Supreme Court’s guidance in Wilson, we have no choice but to dismiss this consolidated

appeal.

                                                 Analysis

          “‘The right to appeal is purely statutory and, where a statute does not give a right to appeal,

no right exists.’” First Nat’l Bank of Dieterich, 515 S.W.3d at 221 (quoting Buemi v. Kerckhoff,

359 S.W.3d 16, 20 (Mo. banc 2011)). 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

‘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 step 2 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.



                                                     4
         The teaching of Wilson is, however, that the “final judgment” analysis is a conjunctive

two-step analysis and not a disjunctive analysis. One must have both a judgment and finality in

order to appeal pursuant to section 512.020(5).8

         Here, Appellants appeal from the trial court’s May 22, 2019 judgments, dismissing

Curators from each action with prejudice and certifying each judgment under Rule 74.01(b) as a

final judgment for purposes of appeal. The question before this court is whether the judgments in

this consolidated appeal were eligible for certification under Rule 74.01(b).9 In other words, before

analyzing step 2 in the “final judgment” formula (i.e., the trial court’s Rule 74.01(b) certification),

we must first analyze step 1—whether the trial court’s dismissal ruling constitutes a “judgment.”

         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.

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

though Rule 55.05 defines the word “claim” as that term is used in litigation within this state,10

our Supreme Court has also cautioned that seeking multiple forms of relief with respect to one set

of facts is still one claim. Wilson, 2020 WL 203137, at *6 (“Even if multiple forms of relief are

sought with respect to one set of facts, it is still one claim, and an order resolving some prayers for

relief and not others does not fully resolve that claim and is not a judgment as defined in Asel.”).




         8
            In Wilson v. City of St. Louis, No. SC97544, 2020 WL 203137, at *8 (Mo. banc Jan. 14, 2020), the Supreme
Court took care to note that the previous Supreme Court precedent of Gibson v. Brewer, 952 S.W.3d 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.
          9
            “[T]he question of whether a judgment is eligible for certification under Rule 74.01(b) is a question of law
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 *12-13.
          10
             A “claim” is “(1) a short and plain statement of the facts showing that the pleader is entitled to relief and
(2) a demand for judgment for the relief to which the pleader claims to be entitled.” Rule 55.05.


                                                            5
        Applied in the context of this consolidated appeal, every set of facts that are relevant to any

claim or claims against Curators are also relevant to the identical claim or claims that are made

against the individual defendant doctors—who remain subject to liability for such claim or claims

in the pending litigation. Hence, the purported judgments of dismissal as to Curators have not

“fully resolved” at least one claim in a lawsuit nor established “all the rights and liabilities of the

parties with respect to that claim.” See Wilson, 2020 WL 203137, at *7. Simply put, then, these

rulings of dismissal by the trial court cannot be designated as “judgments” in the first instance.

        Consequently, because the May 22, 2019 judgments are not “judgments,” they cannot be

“final judgments” as that phrase is used in section 512.020(5). See id. “As a result, there is no

need to consider whether [they] are eligible for certification under Rule 74.01(b) on the ground

that [they] resolve[ ] a ‘judicial unit’ of claims.” Id.

                                             Conclusion

        This consolidated appeal is dismissed for lack of jurisdiction because the judgments

appealed from are not “final judgments” as that phrase is used in section 512.020(5).



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

Thomas N. Chapman, Presiding Judge, and Anthony Rex Gabbert, Judge, concur.




                                                   6
