Afshari Enterprises, Inc. v. Venz

• Decision Date: 23 April 1985
• Docket Number: No. 49118,49118
• Citation: Afshari Enterprises, Inc. v. Venz, 689 S.W.2d 846 (Mo. App. 1985)
• Parties: AFSHARI ENTERPRISES, INC., Plaintiff-Respondent, v. Barry VENZ, Defendant and Third Party Plaintiff, and Samuel B. Steimel, Defendant-Appellant, and Richard Cherry, Third Party Defendant.
• Court: Missouri Court of Appeals

Page 846

689 S.W.2d 846

AFSHARI ENTERPRISES, INC., Plaintiff-Respondent, v.Barry VENZ, Defendant and Third Party Plaintiff and Samuel B. Steimel, Defendant-Appellant and Richard Cherry, Third Party Defendant.

No. 49118.

Missouri Court of Appeals,

Eastern District,

Division One.

April 23, 1985.

Arthur L. Poger, Clayton, for Samuel B. Steimel.

Ronald David Edelman, Clayton, for Richard Cherry.

James Allan Borchers, St. Charles, for Barry Venz.

Carl F. Kohnen, Florissant, for Afshari Enterprises, Inc.

KAROHL, Judge.

PlaintiffAfshari Enterprises, Inc. sued defendantSamuel B. Steimel and Barry Venz for rent due under a lease agreement.After Steimel failed to answer timely plaintiff's Request for Admissions and Interrogatories the trial court granted plaintiff's motion for summary judgment against Steimel only.Plaintiff's same cause of action against Venz remains pending in the trial court.Likewise cross-claims by Venz against Steimel and a third party petition of Venz against Richard Cherry for indemnification and separate cross-claims by Steimel and Cherry against Venz for fraud and misrepresentation are unsettled.Steimel appeals summary judgment granted against him.The trial court did not designate the judgment against Steimel as final or appealable.

Steimel recognizes that the trial court's order of summary judgment is not final and appealable but has filed this appeal to preserve his rights.Plaintiff agrees with Steimel that the order is not final and appealable.

Section 512.020 RSMo 1978 governs the right to appeal and provides that an appeal may generally be made only from a final judgment.It has long been the rule that a final and appealable judgment must dispose of all parties and all issues in the case leaving nothing for future determination unless the trial court has ordered a separate trial of any claim or issue or has specifically designated the particular judgment as a final judgment for purposes of appeal.Chubb Group of Insurance v. C.F. Murphy & Associates, 656 S.W.2d 766, 771-772(Mo.App.1983).When claims arise out of the same transaction or occurrences a non-jury judgment entered on only some of those claims is not final unless so designated.Id. at 772.Further, plaintiff's claim against defendants Steimel and Venz is the same cause of action.Under these circumstances there is only one judicial unit which could not be made separately appealable.Payan v. Heise, 688 S.W.2d 403(E.D.Mo.App.1985).

Here the trial...