Buemi v. Kerckhoff , 2011 Mo. LEXIS 205 ( 2011 )

PATRICIA BRECKENRIDGE, Judge.

Arthur Kerckhoff Jr., Arthur Kerckhoff III, Arthur Kerckhoff IV, and the Arthur Kerckhoff Trust (Kerckhoff defendants) appeal the trial court’s order imposing sanctions on them for acting in bad faith in a mediated settlement meeting. Because an order imposing monetary sanctions does not dispose of a “claim for relief’ as required by Rule 74.01(b) and does not satisfy the requirement in section 512.020(5)¹ that allows appeals only of final judgments, the trial court certification of its order for immediate appeal is without effect. Accordingly, the appeal is dismissed.

Factual and Procedural Background

The underlying dispute involves a contract and tort action brought by Dennis Buemi and other homeowners in the Pevely Farms subdivision (homeowners) against certain homebuilders, including the Kerckhoff defendants. PF Development, LLC and Fischer & Frichtel Inc. also were joined as defendants. In their action, the homeowners alleged that the subdivision water system did not provide an adequate water supply for the entire development, despite a representation that there was an adequate supply.

In July 2008, the trial court ordered that the case be referred to mediation. Thereafter, a representative group of the homeowners, as well as two of the three individual Kerckhoff defendants,² along with the other defendants, met to mediate the case. During the mediation, certain terms were reduced to writing in papers referred to as term sheets one and two. At the close of the mediation, all terms had not been agreed to by the parties present at the meeting. Upon the request of one of the parties, the mediator obtained a pre-print-ed form titled “mediated settlement agreement.” In the space where conditions were to be set out, the mediator wrote, “Case settled in principle — proposed settlement to be reduced to writing by 12 — 31— 08.... Plaintiffs to recommend settlement to property owners.” The statement was signed by some, but not all, of the defendants.³ After the statement was signed, an additional term sheet was prepared by some of the plaintiffs. Neither the new term sheet nor the two earlier term sheets were attached or incorporated into the form.

Ultimately, the parties were unable to agree to terms in a written settlement agreement. In response, the homeowners and PF Development filed motions to enforce settlement in the underlying action. The trial court scheduled an evidentiary hearing on the motions. During the hearing, the mediator testified that no settlement was reached by the parties. At the conclusion of the evidentiary hearing, the trial court indicated that it would entertain motions for sanctions regarding the costs incurred by the parties during the mediation and costs associated with responding to the Kerckhoff defendants’ failure to settle the case. The homeowners, PF Development and Fischer & Frichtel subsequently filed motions for sanctions against the Kerckhoff defendants seeking awards of attorney’s fees. The motions alleged that the Kerckhoff defendants acted in bad faith by signing the mediation form and not advising the homeowners and other defendants that they did not consider themselves legally bound.⁴

Thereafter, the trial court entered an order denying the motions to enforce settlement agreement, but granted the motions for sanctions. The court found that the parties had reached a settlement in principle but that, due to the failure to attach the three term sheets to the settlement, the court was unable to enforce the agreement. The court further ruled that the Kerckhoff defendants had executed the mediated settlement agreement form with the intent that it was not binding on them; that they concealed that intent; and that they eventually submitted a settlement proposal that varied significantly from the terms agreed to at the mediation. On that basis, the trial court concluded that the Kerckhoff defendants acted in bad faith and ordered them to pay attorney fees totaling $122,425 to the various parties as a sanction for their conduct.

Thereafter, the Kerckhoff defendants filed a motion with the trial court requesting that its order be certified as final and appealable pursuant to Rule 74.01(b). In response to the motion, the trial court entered an order finding that its prior ruling imposing sanctions was final for purposes of appeal and that there was no just reason for delay. The Kerckhoff defendants appealed to the court of appeals, which dismissed the appeal for lack of a final judgment. This Court granted transfer. Mo. Const, art. V, sec. 10.

Trial Court Order Imposing Sanctions Not a Final Judgment

Although none of the parties here questions whether the trial court properly certified its order for immediate appeal pursuant to Rule 74.01(b), this Court is required to raise that issue sua sponte. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). “ ‘The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists.’ ” State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d 855, 859 (Mo. banc 2008) (internal citations omitted). Other than statutorily recognized exceptions not applicable to the present case, section 512.020 requires that there be a “final judgment” as a prerequisite to appellate review. State ex rel. Hilburn v. Staeden, 62 S.W.3d 58, 60 (Mo. banc 2001). That section 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 having appellate jurisdiction from any ... (5) Final judgment in the case or from any special order after final judgment in the cause....

Section 512.020.

Generally, a final judgment is defined as one that resolves “ ‘all issues in a case, leaving nothing for future determination.’ ” Transit Cas. Co. ex rel. Pulitzer Publishing Co. v. Transit Cas. Co. ex rel. Intervening Employees, 43 S.W.3d 293, 298 (Mo. banc 2001) (internal citation omitted). The converse of a final judgment is an interlocutory order, which is an order that is not final and decides some point or matter between the commencement and the end of a suit but does not resolve the entire controversy. Id. Here, the trial court’s order imposing sanctions was interlocutory in nature as it is undisputed that the order decides a matter between the commencement and the end of the suit and that the homeowners’ underlying claims for damages and injunctive relief still are pending. Nevertheless, the Kerckhoff defendants assert that Rule 74.01(b) gives this Court jurisdiction over their appeal of the interlocutory order imposing sanctions.

Rule 74.01(b) promotes judicial economy by permitting interlocutory appeals in cases involving multiple claims or parties. The rule authorizes the trial court to enter an appealable final judgment as to fewer than all claims or parties in the case and to certify that there is no just reason to delay the appeal of that judgment. Rule 74.01(b) reads, in relevant part:

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....

(Emphasis added).

This Court is constrained by the language of Rule 74.01(b) when construing it and may not find a meaning that is not supported by the language of the rule. This Court interprets its rules by applying the same principles used for interpreting statutes. State ex. rel. Vee-Jay Contracting Co. v. Neill, 89 S.W.3d 470, 471-72 (Mo. banc 2002). Consequently, “[t]his Court’s intent is determined by considering the plain and ordinary meaning of the words in the Rule.” Id. at 472. To determine the plain and ordinary meaning of a term or phrase, this Court utilizes the definition found in the dictionary. State ex rel. Proctor v. Messina, 320 S.W.3d 145, 156 (Mo. banc 2010).

As relevant to this case, Rule 74.01(b) is applicable “[w]hen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim.” Black’s Law Dictionary defines a “claim,” also termed a “claim for relief,” as “[a] demand for money, property, or a legal remedy to which one asserts a right; esp., the part of a complaint in a civil action specifying what relief the plaintiff asks for.” Black’s Law Dictionary 281-82 (Bryan A. Garner, 9th ed.2009). A “claim” is also defined as “[t]he aggregate of operative facts giving rise to a right enforceable by a court <the plaintiffs short, plain statement about the crash established the claim>.” Id. The above definitions indicate that a “claim for relief’ encompasses only those legal claims asserted in a party’s pleadings. However, even if the above definitions can be read more broadly, the conclusion that the rule only applies to claims asserted in a party’s pleadings is confirmed by the language in Rule 74.01(b) that modifies the phrase “claim for relief,” which speaks of those claims being asserted “in an action” by “a claim, counterclaim, cross-claim, or third-party claim.” The language in Rule 74.01(b) reflects the Court’s recognition that, under section 512.020.5, only final judgments may be appealed. The effect of Rule 74.01(b) is to permit severance of any unrelated substantive claim for relief of the parties and to allow appeal of a final judgment on those severed claims.

Because a motion for sanctions is not a legal claim filed “in an action” by way of a petition, counterclaim, cross-claim, or third-party claim, it does not fall within the definition of a “claim for relief,” as that term is used in Rule 74.01(b). Accordingly, a trial court’s ruling imposing sanctions cannot be a “distinct judicial unit” subject to appeal under Rule 74.01(b).⁵ This reading of Rule 74.01(b) is consistent with the seminal case of Committee for Educational Equality v. State and its progeny, which defined the scope of Rule 74.01(b). 878 S.W.2d 446 (Mo. banc 1994).

In Committee for Educational Equality, the Court held that for a trial court’s order to be certifiable under Rule 74.01(b), “the minimum unit of disposition is at least one claim.” Id. at 450. Additionally, the Court held that a judgment that resolves fewer than all legal issues as to any single “claim for relief’ is not final, regardless of the trial court’s designation. Id. In that case, the plaintiffs asserted multiple claims in their petition, requesting both declaratory and injunctive relief. Id. at 451. The trial court entered declaratory judgment as to the plaintiffs’ claims but retained jurisdiction over the case to enforce the judgment through injunctive relief. Id. at 452. This Court held that because the trial court’s judgment did not dispose of all remedies as to one single “claim for relief,” the judgment was not final. Id.

In analyzing the concept of a “claim for relief,” the Court’s opinion sets out the following discussion of Federal Rule 54(b), from which this Court drew the language for Rule 74.01(b):

When Rule 74.01(b) was adopted as a rule of this Court in 1988, it was copied almost verbatim from Federal Rule of Civil Procedure 54(b). The meaning of the phrase “one claim for relief’ was developed in the federal cases prior to the adoption of our rule. While not binding authority, the federal cases are highly persuasive. Where a federal rule has been construed by the federal courts and our Court thereafter adopts a rule on the same subject using identical language, there is no principled way to ignore the federal cases.

Under the federal cases construing F.R.C.P. 54(b), in determining whether an action presents more than one claim for relief, the focus is on the number of legal rights asserted in the action. If a complaint seeks to enforce only one legal right, it states a single claim, regardless of the fact that it seeks multiple remedies ... Worded somewhat differently, claims are considered separate if they require proof of different facts and the application of distinguishable law, subject to the limitation that severing the claims does not run afoul of the doctrine forbidding the splitting of a cause of action....

Id. at 451.

In Gibson v. Brewer, this Court further defined a single “claim for relief’ as a “distinct judicial unit,” adopting the phrase from prior court of appeals decisions. 952 S.W.2d 239, 244 (Mo. banc 1997) (internal citations omitted). The Court noted that for a ruling to dispose of a “distinct judicial unit,” there had to be a “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.” Id. (emphasis added). In Gibson, the issue was whether the trial court’s dismissal of fewer than all counts in the plaintiffs’ petition could be appealed immediately. Id. This Court held that the counts dismissed by the trial court arose from the same transactions and occurrences as the counts left pending in the trial court; therefore, the trial court did not resolve a “distinct judicial unit.” Id.

Reading Committee for Educational Equality and Gibson together, it is clear that, when determining if a judgment disposes of a “distinct judicial unit,” the focus is on whether the trial court’s order disposes of a “claim.” Both eases refer to the language in Rule 74.01(b) requiring that a “claim for relief’ be disposed of before a case can be appealed. Additionally, both cases dealt with a factual scenario in which the trial court certified its order when it disposed of fewer than all of the claims asserted in the parties’ pleadings. The context of the Court’s use of the terms “claims” and “claims for relief’ make clear that the Court’s discussions reference substantive claims for relief in the parties’ pleadings. The Court’s discussion in both cases precludes a finding that an interlocutory ruling imposing sanctions fits the definition a “claim for relief.”⁶

Multiple decisions from the court of appeals properly have applied Committee for Educational Equality and Gibson to find that no appealable judgment exists when a trial court enters an order as to matters arising during litigation that does not resolve a claim for relief. See, e.g., Peet v. Carter, 278 S.W.3d 707, 710 (Mo.App.2009) (order denying a motion to reconsider not appealable); Bibb v. Title Insurers Agency, Inc., 245 S.W.3d 919, 919 (Mo.App. 2008) (order denying motion for default judgment not appealable); Ferguson v. Carson, 235 S.W.3d 607, 608 (Mo.App. 2007) (order granting motion to transfer venue not appealable). Of particular note, in Harting v. Stout, the court of appeals, applying a predecessor to Rule 74.01(b),⁷ held that a trial court’s certification of an order imposing monetary sanctions for immediate appeal was invalid because that rule did not apply to sanction proceedings. 690 S.W.2d 458, 459 (Mo.App.1985).

The conclusion that Rule 74.01(b) does not allow for the immediate appeal of a trial court ruling imposing sanctions is further supported by federal court decisions interpreting the federal rule governing interlocutory appeals. As noted above, the language of Missouri’s Rule 74.01(b) was derived from Federal Rule of Civil Procedure 54(b), which is worded almost identically.⁸ While not binding, the Court should give significant consideration to federal court decisions construing a federal rule when this Court subsequently adopts a rule on the same subject and uses the same or virtually identical language. Comm, for Educ. Equal., 878 S.W.2d at 451.

In Mulay Plastics, Inc. v. Grand Trunk W. R.R. Co., the Seventh Circuit addressed the issue of whether a trial court’s order imposing sanctions is subject to interlocutory appeal. 742 F.2d 369 (7th Cir. 1984). In that consolidated appeal, the parties were awarded attorney’s fees as sanctions because of the opposing sides’ failure to produce certain documents. Id. at 370-71. The sanctioned parties appealed and sought mandamus relief challenging the imposition of sanctions. Id. That court held that Rule 54(b) does not permit a trial court to certify an order awarding sanctions because the rule allows only for the immediate appeal of an order disposing of a separate “claim for relief,” which federal courts have interpreted to mean a substantive claim. Id. at 371 (internal citations omitted). The court found that because the separate claim for sanctions was not a “substantive” claim, certification was improper. Id. In reaching its holding, the Seventh Circuit stated that “[t]he language of Rule 54(b) leaves little doubt that it indeed is limited to substantive claims.” Id.

Subsequent to this Court’s adoption of Rule 74.01(b), other federal courts have reached conclusions consistent with Mulay Plastics. E.g., M.A. Mortenson Co. v. United, States, 877 F.2d 50, 52 (Fed.Cir. 1989) (award of sanctions not appealable under Rule 54(b) because not a substantive right or cause of action); Heffington v. City of Saline, 863 F.2d 48 (6th Cir.1988) (request for sanctions is not a claim within the meaning of Rule 54(b)). These cases also serve as persuasive authority. Hem-me v. Bharti, 183 S.W.3d 593, 597 (Mo. banc 2006).⁹

While section 512.020(5) and Rule 74.01(b) do not permit immediate appeal of a trial court’s order imposing sanctions, such orders can still be reviewed. Prior cases by this Court and the court of appeals recognize how review may be obtained. For example, an order imposing sanctions can be reviewed after a final judgment is entered on the underlying claims. See, e.g., Leahy v. Leahy, 858 S.W.2d 221, 228 (Mo. banc 1993) (reviewing imposition of sanctions after judgment entered on parent’s motion seeking modification of child support); see also D.S.P. v. R.E.P., 800 S.W.2d 766, 771 (Mo.App.1990) (reviewing impositions of sanctions along with trial court’s order awarding child custody). Alternatively, if appeal is an inadequate remedy because irreparable harm will occur if immediate relief is not granted, a writ of prohibition can be used to obtain interlocutory review in the absence of a final judgment. See Transit Cas. Co. ex rel. Pulitzer Publ’g Co. v. Transit Cas. Co. ex rel. Intervening Envp., 43 S.W.3d 293, 299 (Mo. banc 2001) (“As a general matter, the proper course for an aggrieved party without a final judgment is ordinarily by extraordinary writ.”); see, e.g., State ex rel. Common v. Darnold, 120 S.W.3d 788, 790-92 (Mo.App.2003) (writ issued prohibiting imposition of discovery sanction); Westfa.ll v. Enright, 643 S.W.2d 839, 840 (Mo.App.1982) (same). Therefore, a party wishing to challenge a trial court’s imposition of sanctions can either appeal the trial court’s order after a final judgment is entered on the underlying claim or claim or, when appropriate, seek a writ of prohibition before final judgment is entered.¹⁰ The trial court’s certification of its order as final and appealable under Rule 74.01 has no effect.

Conclusion

Because the trial court’s order imposing sanctions did not dispose of a “claim for relief,” the trial court certification of its order as final and appealable under Rule 74.01 was ineffectual. Accordingly, the appeal is dismissed for lack of a final judgment as required by section 512.020(5).¹¹

RUSSELL, FISCHER and PRICE, JJ., concur. STITH, J., dissents in separate opinion filed. TEITELMAN, C.J., and WOLFF, J., concur in opinion of STITH, J.

1 . All statutory references are to RSMo Supp. 2010.

2 . Arthur Kerckhoff IV did not attend.

3 . Arthur Kerckhoff IV did not sign the document.

4 . The Kerckhoff defendants also filed their own separate motion for sanctions against the other parties alleging that their motions to enforce settlement were frivolous. The Kerckhoff defendants’ motion for sanctions was overruled.

5 . The dissent justifies ruling contrary to the conclusion that an order imposing sanctions cannot be certified under Rule 74.01(b) by citing cases stating that a motion to enforce settlement adds to the underlying case a collateral action, which seeks specific performance of the settlement agreement. E.g., Eaton v. Mallinckrodt, Inc., 224 S.W.3d 596, 599 (Mo. banc 2007). The dissent incorrectly frames the issue being appealed in this case as whether the trial court’s ruling on the motions to enforce settlement is appealable. That is not the issue in this case. Instead, this Court is reviewing appealability of the trial court’s judgment sustaining the parties’ motions to impose sanctions. The dissenting opinion incorrectly suggests that the motions for sanctions were filed with the motions to enforce settlement. Contrary to the dissent's assertion, the motions to impose sanctions and the motions to enforce settlement were filed by the parties as separate documents and at different times. This misconception is the basis of the dissent's holding that the trial court’s order is certifiable. By mischaracter-izing the issue, the dissent is able to avoid the true issue involved in this appeal — whether the motions for sanctions (as opposed to the motions to enforce settlement) are capable of being appealed under Rule 74.01(b). The dissenting opinion cites no case law to support the position that a trial court's ruling on a motion to impose sanctions is a final appeal-able judgment. Additionally, even if the trial court’s denial of the motions to enforce settlement was at issue, the dissent concedes that there is no case holding that an order denying a motion to enforce settlement is immediately appealable. Instead, it simply dismisses cases ruling to the contrary as illogical.

6 . In reaching the opposite conclusion, the dissent overlooks the plain language of Rule 74.01(b) and, instead, reads language out of context from this Court’s opinion in Gibson. Specifically, the dissent points to an isolated sentence in Gibson stating, ”[I]t is the content, substance, and effect of the order that determines finality and appealability.” 952 S.W.2d at 244. However, reading Gibson as a whole undermines the dissent’s interpretation of that sentence. As noted above, Gibson involved a trial court's dismissal of fewer than all counts in the plaintiff’s petition. Id. at 243-44. The Court held that because the dismissed counts relied on the same facts as the counts still pending in the case, the trial court’s dismissal did not dispose of a “distinct judicial unit.” Id. at 244-45. Because Gibson arose in the context of a motion to dismiss claims asserted in a party’s petition, it cannot be read as endorsing the idea that an interlocutory order imposing sanctions constitutes a "distinct judicial unit."

7 . The former rule — Rule 81.06 — was construed by this Court to give a trial court absolute discretion to determine if its orders were final and appealable. Speck v. Union Elec. Co., 731 S.W.2d 16, 20 (Mo. banc 1987) (abrogated by Rule 74.01(b)). This Court rejected that view when it later adopted Rule 74.01(b). Comm, for Educ. Equal., 878 S.W.2d at 451; Gibson, 952 S.W.2d at 244. Unlike Rule 81.06, the new Rule 74.01(b) "conditioned the exercise of discretion by the trial court on the existence of a judgment that disposed of at least one claim as to one party.” Comm, for Educ. Equal., 878 S.W.2d at 451.

8 .The federal rule states, in relevant part:

When an action presents more than one claim for relief — whether as a claim, counterclaim, crossclaim, or third-party claim— or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay....

Fed.R.Civ.P. 54(b).

9 . The dissenting opinion suggests that federal cases interpreting Fed.R.Civ.P. 54(b) are less persuasive because the federal rules allow for a broader range of cases to be reviewed on an interlocutory basis. While federal courts do allow greater review of interlocutory orders, they do not undermine the persuasiveness of federal cases interpreting Rule 54(b). In Mu-lay Plastics, for example, the Seventh Circuit's conclusion that an order imposing sanctions was not appealable was driven by the language of Rule 54(b), not the fact that the federal rules allow interlocutory appeals in other contexts. 742 F.2d at 371. Likewise, the dissent's assertion that federal cases are less persuasive because they no longer follow the “distinct judicial unit” concept is also an invalid reason for ignoring federal cases. Federal courts have reached the conclusion that orders imposing sanctions are not immediately appealable due to the language in federal Rule 54(b), which requires a court order to dispose of a "claim for relief.” Id. That language is identical to the language used by Rule 74.01(b), and interpretation of that phrase underlies the conclusion reached in this opinion. The dissent’s assertion that this opinion has the effect of sub silencio overruling the distinct judicial unit test has no merit. Nothing in this opinion can or should be read as abrogating the requirement that a judgment must dispose of a distinct judicial unit before the judgment may be certified as final and appealable under Rule 74.01(b).

10 . The Court acknowledges that it previously denied the Kerckhoff defendants' petition for an extraordinary writ that sought relief from the trial court’s order imposing sanctions. The denial of their request for an extraordinary writ does not constitute a ruling on the merits of their challenge to the sanction order. Therefore, such denial does not preclude the Kerckhoff defendants from filing a new petition if circumstances arise that would make appeal an inadequate remedy, such as an attempt to collect by the parties who were awarded monetary sanctions. See State ex rel. Douglas Toyota III, Inc. v. Keeter, 804 S.W.2d 750, 752 (Mo. banc 1991).

11 . In light of the Court's dismissal of the appeal, the Kerckhoff defendants’ motion for leave to file newly discovered evidence in support of their brief is overruled as moot.