Erslon v. Cusumano, 48591

Decision Date26 March 1985
Docket NumberNo. 48591,48591
Citation691 S.W.2d 310
PartiesGeorge ERSLON, et al., Plaintiffs-Appellants, v. Frank CUSUMANO, Defendant, and Vee-Jay Cement Contracting, and Maryland Casualty Company, Defendants-Respondents.
CourtMissouri Court of Appeals

Jess W. Ullom, Clayton, for plaintiffs-appellants.

Ben Ely, Jr., St. Louis, for defendants-respondents.

GAERTNER, Judge.

Plaintiffs appeal from an order sustaining the motion of two of three defendants to dismiss for failure to state a cause of action. We dismiss the appeal as premature.

Plaintiffs are the trustees of the Cement Masons Local 527 Health and Welfare Fund and General American Life Insurance Company, the insurer for the union fund. Defendants are Frank J. Cusumano, Vee-Jay Cement Contracting Company and its insurer, Maryland Casualty Company.

In a single count plaintiffs' petition alleges that Cusumano was an employee of Vee-Jay and a participant in the disability and medical benefit plans provided through the union by the General American. Cusumano sustained an injury to his neck and back. He made a claim with plaintiffs for payment of disability and medical benefits, stating his injury was not work-related. Plaintiffs then paid $6,258.65 for medical expenses and $2,000.00 in disability benefits.

Simultaneously, Cusumano filed a worker's compensation claim for the aforementioned injuries with Vee-Jay and Maryland Casualty. In this claim Cusumano alleged, perforce, the injuries occurred as a result of a work related accident. Subsequently a compromise settlement of the worker's compensation claim was made. Plaintiffs' petition alleges that this settlement consisted of a payment to Cusumano of $13,577.35 "based upon an approximate disability of 32 1/2 percent of the body referable to the cervical area, plus $877.35 for outstanding medical expense which has not been paid through employee's union, plus $1,000.00 for temporary total disability." 1

The petition further alleges that plaintiffs paid Cusumano by mistake, believing his injury was not "work-related," and therefore not within the "work-related" exclusion of their policy. Plaintiffs seek restitution of the $8,252.65 on the theory that all three defendants were unjustly enriched by reason of plaintiffs' payment of that sum to Cusumano, and, inferentially, the reduction of the statutory indebtedness of Vee-Jay and Maryland Casualty.

Vee-Jay and Maryland Casualty filed a joint motion to dismiss for failure to state a cause of action which the trial court sustained, designating its order as final and appealable under Rule 81.06. Although neither party has raised the issue of finality of the trial court's order, this court has a duty, sua sponte, to determine if it has jurisdiction prior to addressing the merits. Redeker v. Bradbury, 680 S.W.2d 403, 405 (Mo.App.1984). The designation by a trial court that its order is final and appealable is not conclusive. Klippel v. Watkins, 667 S.W.2d 28, 30 (Mo.App.1984). It is the content, substance and effect of the order entered, not the name designated to it by the trial court that determines finality and appealability. Fombelle v. Poteete, 655 S.W.2d 801, 802 (Mo.App.1983). If the order is not final then the appeal must be dismissed. Knight v. Keaton, 660 S.W.2d 752, 753 (Mo.App.1983).

Rule 81.06 does not authorize piecemeal appeals of a single claim. Designation of finality by the trial court is effective only when a partial disposition disposes of a distinct "judicial unit," i.e., a judgment which terminates the action with respect to the claim adjudged. Lipton Realty, Inc. v. St. Louis Housing Authority, 655 S.W.2d 792, 793 (Mo.App.1983). "It is the final judgment on a claim, not the ruling on a pleaded issue, that is appealable." Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597, 600 (1953). The dismissal of some counts or some parties which leaves pending other claims which in fact seek redress for the same wrong against other parties or based upon alternative theories...

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14 cases
  • Gibson v. Brewer
    • United States
    • Missouri Supreme Court
    • August 19, 1997
    ...30 (Mo.App.1984). It is the content, substance, and effect of the order that determines finality and appealabilty. Erslon v. Cusumano, 691 S.W.2d 310, 312 (Mo.App.1985). Although a circuit court may designate its judgment final as to particular claims, this designation is effective only whe......
  • Speck v. Union Elec. Co., 68781
    • United States
    • Missouri Supreme Court
    • May 19, 1987
    ...Eastern District, without reaching the merits of that issue, opined that under the "judicial unit" test expressed in Erslon v. Cusumano, 691 S.W.2d 310 (Mo.App.1985), the dismissal order was not a final appealable order and that the appeal should be dismissed. However, the court transferred......
  • Buemi v. Kerckhoff
    • United States
    • Missouri Supreme Court
    • October 4, 2011
    ...as to particular claims, this designation is effective only when the order disposes of a distinct “judicial unit.” Erslon [ v. Cusumano, 691 S.W.2d 310, 312 (Mo.App.1985) ], ... The required “judicial unit for appeal” has a settled meaning: “the final judgment on a claim, and not a ruling o......
  • Buemi v. Kerckhoff
    • United States
    • Missouri Supreme Court
    • August 2, 2011
    ...final as to particular claims, this designation is effective only when the order disposes of a distinct "judicial unit." Erslon [v. Cusumano, 691 S.W.2d 310, 312 (Mo. App. 1985], ... The required "judicial unit for appeal" has a settled meaning: "the final judgment on a claim, and not a rul......
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