First Cmty. Credit Union v. Levison, ED98352

• Decision Date: 29 January 2013
• Docket Number: No. ED98352,ED98352
• Parties: FIRST COMMUNITY CREDIT UNION, Appellant, v. ZACHARY A. LEVISON and MARSHA LEVISON, Respondents.
• Court: Missouri Court of Appeals

FIRST COMMUNITY CREDIT UNION, Appellant, v. ZACHARY A. LEVISON and MARSHA LEVISON, Respondents.

No. ED98352

Missouri Court of Appeals Eastern District DIVISION THREE

FILED: January 29, 2013

Appeal from the Circuit Court

of the City of St. Louis

Honorable Mark H. Neill

First Community Credit Union ("FCCU") appeals from the judgment of the trial court dismissing its Breach of Contract Petition based upon defendant Zachary Levison's Motion to Dismiss for failure to state a claim. We reverse and remand.

I. BACKGROUND

In April 2008, Zachary Levison ("Respondent") and Marsha Levison (collectively, "the Levisons"), son and mother, applied for and received credit in the amount of $31,066 through First Community Credit Union ("FCCU") in order to purchase a 2008 Dodge Charger ("Vehicle"). Within two years, the Levisons failed to make the required monthly payments on the loan, and FCCU, in March 2010, exercised its rights as a secured creditor¹ and repossessed the Vehicle.

After repossession, FCCU sent separate presale notices to each Levison to advise them of the repossession and their rights and related procedures to regain possession of the Vehicle. Both presale notices were dated March 2, 2010, and were addressed to each Levison, individually, even though they resided at the same address. The Levisons did not satisfy the redemption requirements, and FCCU disposed of the Vehicle at a private sale for $6,200 in May 2010. Following the sale, a deficiency balance remained in excess of $20,000.

Thereafter, on June 30, 2011, FCCU brought a breach of contract action ("Petition") against both Levisons in the circuit court of The City of Saint Louis in order to recover the deficiency balance remaining. Marsha Levison failed to appear or respond to the Petition. Zachary Levison responded to the Petition with an Answer and a Motion to Dismiss. Included in Respondent's Answer was a counterclaim, seeking class action certification for FCCU's unlawful and deceptive pattern of wrongdoing regarding the repossession of collateral (hereinafter, "Respondent's Counterclaim"). In Respondent's Motion to Dismiss, Respondent sought to have FCCU's Petition dismissed, arguing that FCCU failed to state a claim upon which relief may be granted because FCCU's Notice failed to comply with the content requirements of Section 400.9-614(1).

After hearing arguments, the trial court granted Respondent's Motion to Dismiss, finding that FCCU's Notice failed to comply with the requirements of Section 400.9-614(1). Without ruling on Respondent's Counterclaim, the trial court entered its "Order and Judgment" dismissing FCCU's Petition on April 9, 2012, and under Rule 74.01(b) authorized it as immediately appealable.

FCCU now appeals the trial court's grant of Respondent's Motion to Dismiss. Respondent has filed a motion requesting that this appeal be dismissed for lack of jurisdiction.² Thus, before considering the merits of this appeal, we must first determine if this Court has authority to hear this appeal. Title Partners Agency, LLC v. Dorsey, 308 S.W.3d 308, 310 (Mo App. E.D. 2010). If this Court lacks authority to entertain this appeal, the appeal must be dismissed. Id.

II. AUTHORITY

Respondent, in his Motion to Dismiss this appeal for lack of authority, contends the trial court's Order and Judgment, dated April 9, 2012, is not final, despite its designation as such, because it did not dispose of one "judicial unit." Specifically, Respondent argues that this Court does not have authority to hear this appeal as the trial court's judgment was not eligible for certification as a final appeal pursuant to Rule 74.01(b) because FCCU's claim against Marsha Levison is still pending in the trial court and the trial court left unresolved Respondent's Counterclaim.

Authority Requirements

An appeal may only lie if there is a final judgment. Coleman v. Coleman, 187 S.W.3d 331, 333 (Mo. App. E.D. 2006); see also Section 512.020. If there is no final judgment, an appellate court lacks authority and must dismiss the appeal. In re Marriage of Werths, 33 S.W.3d 541, 542 (Mo. banc 2000). "A judgment, order, or decree of the trial court is final and appealable only when it disposes of all the issues for all parties in the case and leaves nothing for future determination." Haugland v. Parsons, 827 S.W.2d285, 286 (Mo. App. E.D. 1992); see also In re Marriage of Werths, 33 S.W.3d at 542 ("A judgment is final only if it leaves nothing for future determination.").

However, while generally a trial court's disposition must dispose of all claims and parties to be appealable, Rule 74.01(b) "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." Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011); see also Dorsey, 308 S.W.3d at 310 ("The trial court may certify for appeal a judgment as to fewer than all parties or all claims by expressly designating that 'there is no just reason for delay.'"); see also Rule 74.01(b). Nevertheless, while a trial court may designate its judgment final as to a certain claim or claims, this designation is effective only when the order disposes of a distinct "judicial unit." Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997) ("It is the content, substance, and effect of the order that determines finality and appealability."). A distinct judicial unit is defined as "the 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." State ex rel. State Hwy. Comm'n v. Smith, 303 S.W.3d 120, 123 (Mo. 1957) (emphasis added). A separate appealable judgment is permitted for "differing, separate, distinct transactions or occurrences . . . not differing legal theories or issues presented for recovery on the same claim." Gibson, 952 S.W.2d at 244. (internal quotation marks omitted).

Furthermore, besides Rule 74.01(b)'s exception to the general rule, the doctrine of "implicit finality" may also permit an appellate court to entertain authority prior to the disposition of all claims and parties by the trial court. The doctrine of implicit finality is"[a] corollary to the general rule of finality [which] allows characterization of a judgment as final where the decision on one claim implicitly disposes of the other claims[.]" Baumstark v. Jordan, 540 S.W.2d 611, 612 (Mo. App. 1976); see e.g., Jefferson v. Am. Fin. Group, Inc., 163 S.W.3d 485, n.2 (Mo. App. E.D. 2005) ("If a judgment, by implication, necessarily carries with it a finding upon other counts, the judgment will be sustained as final even though the count is not specifically mentioned.").

Authority Analysis

Here, the trial court certified its Order and Judgment as immediately appealable under Rule 74.01, by including in its Order and Judgment:

this Court expressly determines that there is no just reason for delaying the entry of this Order and Judgment as a final, appealable Judgment, in that:

a. this judgment fully adjudicates Plaintiff's [FCCU's] claim against Defendant Zachary Levison, and as a practical matter, Marsha Levison as well.

b. this Judgment fully adjudicates the sufficiency of Plaintiff's notice of sale as to both Defendants [the Levisons]; and

c. Defendant's class action Counterclaim is primarily based upon Defendant's allegation that Plaintiff's notice of sale fails to strictly comply with § 400.9-614(1).

Thus, we examine the issues at contention: (1) whether the trial court actually disposed of FCCU's claim against Marsha Levison;³ and (2) whether the final disposition of Respondent's Counterclaim is necessary before this appeal may lie.⁴

i. The trial court disposed of FCCU's claim against Marsha Levison.

First, Respondent argues that the trial court incorrectly and improperly certified its Order and Judgment as immediately appealable under Rule 74.01(b) because it did notdispose of a single judicial unit, in that FCCU's claim against Marsha Levison remains pending in the trial court.

FCCU sought to hold the Levisons jointly and severally liable under the sole count of its Petition. The Petition's claims against Respondent and Marsha Levison were in no way differing, separate or distinct transactions or occurrences. Indeed, the reason the claims against both parties are contained in the same count is because the claims arise out of the exact same transaction. Accordingly, we agree with Respondent that in order for there to be an appealable judgment, the trial court was required to dispose of the claims against both Levisons. See e.g., Beezley v. Nat'l Life & Acc. Ins. Co., 464 S.W.2d 535, 536 (Mo. App. 1971) ("when a motion to dismiss plaintiffs' petition (formerly a demurrer) is filed by one or more of the defendants and is sustained and judgment entered thereon, but no action is taken regarding the other defendants, an appeal by the plaintiffs at this point is premature and must be dismissed"); Warmann v. Ebeling, 625 S.W.2d 691 (Mo. App. E.D. 1981) (holding that the plaintiff's appeal must be dismissed because the plaintiff sued three defendants for fraud and the trial court only granted summary judgment for two of the defendants, remaining silent as to the third defendant, thus, the judgment rendered by the trial court did not dispose of all the parties); Goldstein v. Floridian Homes, Inc., 331 S.W.2d 124, 126 (Mo. App. 1960) ("an order dismissing a mechanic's lien suit as to one or more defendants, sole or part owners of the property, without disposing of the case as to the remaining defendant or defendants, was not appealable."); Caulfield v. Farish, 24 Mo. App. 110, 112 (Mo. App. 1887) ("It was error on the part of the trial court to enter what purports to be a final judgment in favor of the defendant . . . without disposing of the other defendants."); Sater___, 61 Mo. App. 228 (Mo. App. 1895); Rock Island Implement Co. v. Marr, 67 S.W. 586 (Mo. 19...