Elizabeth Butala v. The Curators of the University of Missouri ( 2021 )

SUPREME COURT OF MISSOURI
en banc
ELIZABETH BUTALA, ET AL., ) Opinion issued April 6, 2021
)
Appellants, )
)
v. ) No. SC98517
)
THE CURATORS OF THE UNIVERSITY )
OF MISSOURI, )
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY
The Honorable J. Hasbrouck Jacobs, Judge
PER CURIAM
Appellants, Mizzou BioJoint patients (together with their spouses, the “plaintiffs”),
sued individual doctors and the curators of the University of Missouri for injuries
associated with unsuccessful surgeries the BioJoint patients underwent. The plaintiffs
alleged the doctors had committed several torts and alleged negligent misrepresentation
and violations of the Missouri Merchandising Practices Act (“MMPA”) against both the
doctors and the Curators. The circuit court entered orders dismissing the Curators from
each case and certified those judgments as final under Rule 74.01(b). The plaintiffs
appealed.
1
The court of appeals dismissed the appeals for lack of jurisdiction, concluding the
circuit court’s orders were ineligible for certification under Rule 74.01(b) because they
were not judgments in that they did not fully resolve at least one claim. This Court
subsequently granted transfer and has jurisdiction under article V, section 10 of the
Missouri Constitution. Because the circuit court’s orders met the requirements of Rule
74.01(a), resolved all legal issues, and disposed of all remedies sought as against the
Curators, thereby qualifying as final judgments under section 512.020(5),1 the judgments
were eligible for certification as final under Rule 74.01(b). Additionally, the circuit court’s
decision to certify the judgment for interlocutory appeal was not an abuse of discretion.
Accordingly, the case is retransferred to the court of appeals for consideration of the merits
of the plaintiffs’ appeals. 2
1
All statutory references are to RSMo 2016.
2
Neither the plaintiffs nor the Curators contend that the plaintiffs’ appeals fall within this
Court’s exclusive appellate jurisdiction under article V, section 3 of the Missouri
Constitution, and this Court – having undertaken an analysis of this question sua sponte –
concludes it does not have exclusive appellate jurisdiction. To invoke this Court’s
exclusive appellate jurisdiction, the constitutional claim must be properly preserved below,
properly presented in this Court, and be “real and substantial, not merely colorable.”
McNeal v. McNeal-Sydnor, 472 S.W.3d 194, 195 (Mo. banc 2015) (citation omitted); see
also Mayes v. Saint Luke’s Hosp. of Kan. City, 430 S.W.3d 260, 266-69 (Mo. banc 2014).
The only properly preserved and presented claims are facial challenges to sovereign
immunity and section 537.600 under the procedural guarantees of the open courts provision
of the Missouri Constitution. This Court has rejected similar constitutional and other
challenges to sovereign immunity and related doctrines repeatedly over the years. See,
e.g., Fisher v. State Highway Comm’n of Mo., 948 S.W.2d 607, 611 (Mo. banc 1997);
Richardson v. State Highway & Transp. Comm’n, 863 S.W.2d 876, 879 (Mo. banc 1993);
Findley v. City of Kan. City, 782 S.W.2d 393, 395-96 (Mo. banc 1990); Winston v.
Reorganized Sch. Dist. R-2, 636 S.W.2d 324, 327-29 (Mo. banc 1982). Apart from asking
that such precedents be reexamined, the plaintiffs’ claims plow no new ground and are,
therefore, “merely colorable.”
2
Background
In February and March 2019, the plaintiffs filed eight separate lawsuits against
individual doctors and the Curators. In these similarly pleaded suits, the plaintiffs asserted
BioJoint surgery was advertised and marketed as a viable alternative to – and equally as
successful as – artificial joint replacement surgery, even though the BioJoint surgery
performed on each of the patients ultimately failed. The plaintiffs pleaded certain causes
of action against only the individual doctors (e.g., medical malpractice, lost chance of
recovery, and in some instances, loss of consortium), but they pleaded causes of action
against both the doctors and the Curators under the MMPA and for negligent
misrepresentation based on the allegedly misleading advertisements about the surgery.
The Curators moved to dismiss the plaintiffs’ MMPA and negligent
misrepresentation counts – all the counts pleaded against them – in each of the eight cases,
asserting several grounds, including sovereign immunity. The circuit court sustained the
motions and dismissed the Curators from each of the suits with prejudice. These orders
were in writing, signed by the judge, and denominated “judgments of dismissal.” The
circuit court further certified each of these judgments as final for purposes of appeal
pursuant to Rule 74.01(b), finding there was “no just reason for delay,” notwithstanding
that all of the plaintiffs’ counts against the individual doctors, including the MMPA and
negligent misrepresentation counts arising from the allegedly misleading advertisements,
remained pending in the eight separate cases. The plaintiffs appealed each of these
judgments, arguing the circuit court erred in interpreting the MMPA, in applying sovereign
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immunity, in overruling the plaintiffs’ motions for leave to amend their petitions, and in
denying their constitutional claims. These eight appeals were consolidated in the court of
appeals.
The court of appeals dismissed the plaintiffs’ consolidated appeals for lack of
jurisdiction. The court of appeals concluded the eight separate (but largely identical) orders
dismissing the Curators were not eligible for certification as final for purposes of appeal
under Rule 74.01(b). It reasoned that none of the dismissals fully resolved at least one
claim in their respective lawsuits because the plaintiffs’ remaining counts against the
doctors in each suit arose from the same set of facts as the counts against the Curators. As
a result, the court of appeals concluded none of these dismissals met the substantive
definition of a “judgment”; therefore, none of the dismissals came within the ambit of Rule
74.01(b). This Court disagrees.
Analysis
Article V, section 5 of the Missouri Constitution provides that this Court may issue
procedural rules but that those rules “shall not change . . . the right of appeal.” As a result,
the “right to appeal is purely statutory[.]” First Nat’l Bank of Dieterich v. Pointe Royal
Prop. Owners’ Assoc., Inc., 515 S.W.3d 219, 221 (Mo. banc 2017) (quotation omitted).
The legislature has set out what rulings can be appealed in section 512.020. Its only
subsection applicable to this case is subsection (5), which states 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
4
having appellate jurisdiction from any . . . [f]inal judgment in the case or
from any special order after final judgment in the cause[.]
To be eligible for appeal under section 512.020(5), therefore, the circuit court’s ruling or
order must be a final judgment. As permitted by the constitution, the Court has imposed
procedural requirements in Rule 74.01 that must be met for an order to be a final judgment
for purposes of section 512.020(5). Rule 74.01(a) requires that a final judgment be in
writing, signed by the judge and expressly denominated a “judgment.” 3 Rule 74.01(b)
further requires:
When more than one claim for relief is presented in an action, whether as a
claim, counterclaim, cross-claim, or third-party claim, or when multiple
parties are involved, 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.
The orders in question do not dispose of all claims in the case but instead dispose of
all claims against one party, the Curators. An 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” is, in substance, a judgment. State ex rel. Henderson v. Asel, 566 S.W.3d 596, 598
(Mo. banc 2019).4 The circuit court’s orders in each case fully resolved all counts pleaded
against the Curators and established all the rights and liabilities of the parties with respect
3
As noted previously, the circuit court order in each of the underlying suits met the
requirements of Rule 74.01(a).
4
The term “claim” is sometimes used to refer to what is otherwise called a cause of action
or theory of recovery, Kilmer v. Mun, 17 S.W.3d 545, 550 n.18 (Mo. banc 2000), while in
other contexts it is used to refer to the bundle of legal theories or causes of action that may
be asserted as against one party arising from a particular set of facts, Gibson v. Brewer,
952 S.W.2d 239, 244 (Mo. banc 1997); Comm. for Educ. Equal. v. State, 878 S.W.2d 446,
451 (Mo. banc 1994). Either meaning is satisfied under the facts of these cases.
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to all matters pleaded against the Curators. Consequently, the circuit court’s orders met
the substantive definition of a judgment.
Having decided the circuit court’s orders were judgments, the Court must further
determine whether they are eligible to be certified under Rule 74.01(b) as “final judgments”
for purposes of section 512.020(5). Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc
(1997), answers that question. As Gibson explains, so long as a judgment resolves all legal
issues and leaves open no remedies against a particular party, it can be certified as final for
purposes of appeal under Rule 74.01(b). In Gibson, the plaintiffs sued a priest and a
Catholic diocese, “alleging nine counts: battery, negligent hiring/ordination/retention,
negligent failure to supervise, negligent infliction of emotional distress, intentional
infliction of emotional distress, breach of fiduciary duty, conspiracy, agency liability, and
independent negligence of the Diocese.” Id. at 243-44. The circuit court issued two
judgments it determined were final and appealable, one in which some of the counts against
the priest were dismissed and one in which it dismissed all counts against the diocese. Id.
at 244. On appeal, this Court sua sponte examined its jurisdiction over the appeal. Id. It
found it had appellate jurisdiction over the judgment dismissing all counts against the
diocese, holding: “When one defendant, but not all defendants, is dismissed from a case,
the trial court may designate its judgment as final ‘for purposes of appeal’” because
dismissing the defendant from the case “resolved all legal issues and left open no remedies”
against the defendant. Id. at 245.
Because the judgment resolved all legal issues and left open no remedies against the
diocese, the fact the counts against the diocese arose from the same occurrence as the
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counts pleaded against the priest was not relevant in deciding whether the judgment
disposed of a judicial unit. A judgment that disposes of all issues and remedies against at
least one party per se disposes of a judicial unit and is a final judgment under section
512.020 without regard to whether the remaining issues and remedies arise from a distinct
transaction or occurrence. The distinctness of transactions or occurrences matters only
when the judgment appealed from does not resolve all legal issues and remedies against
any one party. Id. It is only when the judgment does not resolve all legal issues and
remedies related to any one party that there must be a judicial unit for appeal that arises
from sufficiently distinct transactions or occurrences to be eligible for certification under
Rule 74.01(b). Id. at 244. Accordingly, the shared occurrence in Gibson was relevant only
in deciding whether the order in favor of the priest disposed of a judicial unit. Id. at 244-45.
In each of the cases consolidated in this appeal, the circuit court dismissed the
Curators from the case, resolving all legal issues and leaving open no remedies in all counts
against the Curators. Because the circuit court rulings resolved all legal issues and left
open no remedies as against the Curators (and because they were in writing, signed by the
judge and expressly denominated a “judgment”), the orders were, in substance and form,
eligible to be certified for interlocutory appeal under Rule 74.01(b) as “final judgments”
under section 512.020(5). Wilson v. City of St. Louis, 600 S.W.3d 763, 769 (Mo. banc
2020); Gibson, 952 S.W.2d at 245. The circuit court, exercising its discretion, certified
each of the judgments as final for purposes of appeal pursuant to Rule 74.01(b), finding
there was “no just reason for delay.”
7
The only question that remains is whether the circuit court abused its discretion in
certifying the judgments as final for purposes of appeal. Pursuant to Rule 74.01(b), a circuit
court “may enter 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.” If a circuit court
expressly finds there is no just reason for delay and exercises its discretion under
Rule74.01(b) to certify the judgment for interlocutory appeal, that decision is reviewed
only for an abuse of discretion. Wilson, 600 S.W.3d at 771. “A ruling constitutes an abuse
of discretion when it is clearly against the logic of the circumstances then before the court
and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack
of careful, deliberate consideration.” Cox v. Kan. City Chiefs Football Club, Inc., 473
S.W.3d 107, 114 (Mo. banc 2015) (quotation omitted).
In determining whether to certify a judgment as final for purposes of appeal under
Rule 74.01(b), the circuit court should consider whether approving an interlocutory appeal
will: (a) aid or impede the efficient administration of justice in either the circuit court or
the appellate court; (b) create undue risk of prejudice either for those who will be parties
to the appeal or for those who will not; (c) create undue risk that a decision in the appeal
could adversely impact future decisions on the unresolved claims that presumably will be
proceeding simultaneously; (d) create undue risk that future decisions concerning the
unresolved claims may adversely impact the appeal of the resolved claims; or (e) create
undue risk of duplicative or unnecessary proceedings in either the appeal or the circuit
8
court in the event the interlocutory judgment is not affirmed. Wilson, 600 S.W.3d at
771-72.
In each of the underlying cases, the claim against the Curators was closely
intertwined with the claim against the doctors that remains unresolved. Presumably, in
each of the underlying cases, the circuit court will proceed on the unresolved claim during
the appeal concerning the resolved claim. If it does not, it is difficult to perceive what
increase in judicial economy – either in the circuit or appellate court – the certification was
intended to promote. If the unresolved claim proceeds to trial and, afterward, the judgment
on the resolved claim is not affirmed, a risk of unfair prejudice and inconsistent outcomes
will result. This risk exists to some extent with all interlocutory appeals, of course, but the
nature of the circuit court’s decision to enter judgment for the Curators on the threshold
question of sovereign immunity increases this risk if – in the end – it is determined that the
circuit court erred in doing so (a question on which this Court neither holds nor expresses
any opinion). On the other hand, the fact the circuit court’s judgments for the Curators
were based on sovereign immunity – an issue that does not impact the plaintiffs’ unresolved
claims against the doctors – decreases the risks that an appellate decision regarding the
Curators on this issue will undercut intervening decisions made concerning the claims
against the doctors, or vice versa.
In the end, certification of the judgments for the Curators creates some risk of unfair
prejudice to some parties (including the Curators), but the particular circumstances of this
case ensure these risks are as limited as they can be. Reasonable minds could differ,
therefore, as to whether the judgments in this case (which were, as a matter of law, eligible
9
for certification) should have been certified as final under Rule 74.01(b). But this is the
antithesis of an abuse of discretion. Accordingly, the circuit court did not abuse its
discretion in certifying its judgment as final for the purposes of appeal.
Conclusion
Because the circuit court’s orders resolved all legal issues and disposed of all
remedies sought against the Curators, they were judgments that became final for purposes
of appeal when certified under Rule 74.01(b). The case is retransferred to the court of
appeals for consideration of the merits of the plaintiffs’ appeals. See D.E.G. v. Juvenile
Officer of Jackson Cnty., 601 S.W.3d 212, 220 n.15 (Mo. banc 2020) (“When this Court is
called upon to determine the finality or appealability of judgments, it has made that
determination and then regularly retransferred to the court of appeals for a determination
of the underlying merits.”).
Draper, C.J., Wilson, Russell, Powell,
Breckenridge, Fischer, JJ., and
Stith, Sp.J., concur.
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