Magee v. Brown , 179 S.W.3d 373 ( 2005 )

179 S.W.3d 373 (2005)

Russell A. MAGEE and Constance L. Magee, Appellants,
v.
Carla A. BROWN and Edith M. Brown, Respondents.

No. WD 65522.

Missouri Court of Appeals, Western District.

December 6, 2005.

Matthew Joseph O'Connor, Kansas City, for Appellant.

Philip Cardarella, Kansas City, for Respondent.

PAUL M. SPINDEN, Presiding Judge.

Russell and Constance Magee sued Carla Brown and her mother, Edith Brown, after Carla Brown crashed her mother's car into the Magees' van and trailer, which were parked on the shoulder of Interstate 435 in Kansas City. Russell Magee had parked his vehicle on the shoulder to secure a load in the trailer. The car driven by Brown careened across several lanes, hitting Russell Magee and crashing into the Magees' van. Russell Magee was seriously injured. The Magees sued Brown and her mother in an eight-count petition.

Counts V and VI charged Edith Brown with negligently entrusting her automobile to her daughter, and Count VIII alleged that Edith Brown was liable for Constance Magee's loss of consortium. Because the Magees do not appeal from a final judgment, we dismiss their appeal.

This appeal was prompted by the circuit court's granting Edith Brown's motion to dismiss her from the petition on the ground that it did not state a claim against her for negligent entrustment. The circuit court granted the motion by dismissing Counts V and VI pertaining to negligent entrustment. The Magees filed this appeal.

The appeal was premature. An order adjudicating "fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties." Rule 74.01(b). The rule authorizes the circuit court to designate as final a judgment "as to one or more claims but fewer than all of the claims," but, in the absence of an express determination, an order is not final if it does not resolve all claims. Committee for Educational Equality v. State, 878 S.W.2d 446, 453 (Mo. banc 1994). The circuit court did not make an express determination under Rule 74.01.

Moreover, by dismissing only Counts V and VI, the circuit court's order did not dispose of all of the claims against Edith Brown. Count VIII appears to remain pending against her. Because the order did not dispose of all claims or any parties, and because the circuit court did not designate its order as final under Rule 74.01(b), the order is not final. We have no jurisdiction to consider the Magees' appeal and dismiss it pursuant to Section 512.020.

VICTOR C. HOWARD and RONALD R. HOLLIGER, Judges, concur.