Gerken v. Mo. Dep't of Soc. Servs.

Decision Date10 December 2013
Docket NumberNo. WD 75975.,WD 75975.
Citation415 S.W.3d 734
PartiesLinda GERKEN, et al., Appellants, v. MISSOURI DEPARTMENT OF SOCIAL SERVICES, FAMILY SUPPORT DIVISION, Respondent.
CourtMissouri Court of Appeals

415 S.W.3d 734

Linda GERKEN, et al., Appellants,
v.
MISSOURI DEPARTMENT OF SOCIAL SERVICES, FAMILY SUPPORT DIVISION, Respondent.

No. WD 75975.

Missouri Court of Appeals,
Western District.

Dec. 10, 2013.


[415 S.W.3d 736]


Deborah S. Greider, John J. Ammann, Barbara J. Gilchrist, Amy N. Sanders, St. Louis, MO, for Appellants.

Chris Koster, Attorney General, Ronald R. Holliger, General Counsel, Jefferson City, MO, for Respondent.


Before Division II: MARK D. PFEIFFER, Presiding Judge, and JOSEPH M. ELLIS and VICTOR C. HOWARD, Judges.

MARK D. PFEIFFER, Presiding Judge.

A class composed of pensioners (“Pensioners”) of Missouri's Blind Pension Fund (“Fund”) appeal from the Circuit Court of Cole County's (“trial court”) partial judgment calculating damages. The trial court certified its partial judgment as final for purposes of appeal pursuant to Rule 74.01(b). We conclude that the partial judgment did not dispose of a distinct judicial unit and did not otherwise comply with our mandate on the most recent appeal of this case. Therefore, we dismiss the appeal and remand the cause to the trial court for further proceedings.

Facts and Procedural History 1

Pensioners brought suit in 2006 against the Missouri Family Support Division and the Director of the Department of Social Services (collectively, “Division”) for declaratory relief and damages to recover unpaid benefits from the Fund. The case has twice been appealed and remanded. See Gerken v. Sherman, 276 S.W.3d 844 (Mo.App.W.D.2009)(“Gerken I”), & Gerken v. Sherman, 351 S.W.3d 1 (Mo.App.W.D.2011) (“Gerken II ”).

In Gerken II, we concluded that the Pensioners' damages should have been limited by the five-year statute of limitations in section 516.120(2); that subsection 209.040.4 requires the appropriation to be based on the growth of funds for the year preceding the year in which the appropriation is made and passed; that on remand, prejudgment interest needed to be recalculated consistent with the trial court's new findings on damages; and that attorney fees should be revisited on remand after the recalculation of damages. 351 S.W.3d at 8, 10, 12, 13. Significant to this appeal, we also instructed the trial court:

Upon remand, once a claims process is developed and individual pensioners are credited their claims, it can then be ascertained if the aggregate damage

[415 S.W.3d 737]

award results in a surplus. It would then fall to the court to make a determination about the distribution of the surplus, such as whether such funds should revert to the pension fund or escheat to the state.

Gerken II, 351 S.W.3d at 11 (emphasis added) (internal quotation marks omitted).2


Upon remand from Gerken II, the trial court held a hearing, at which the parties filed a Stipulation of Facts and Statement of Contested Issues along with spreadsheet exhibits showing their proposed damage calculations. Thereafter, the trial court entered what it termed a “partial judgment” in which the damages, prejudgment interest, and attorney fees were awarded, but the remedy for the damage calculation was not resolved. In fact, the trial court admitted as much, by stating:

This partial judgment resolves the accounting and liability issue, but it does not resolve the issue of the establishment of a process for class members to submit claims or the disposition of a surplus that may exist after the claims process has been completed. This court determines that there is no just reason for delay in the decision of these issues decided herein and therefore enters this Judgment as final for purposes of appeal under Missouri Rule 74.01(b).

(Emphasis added.) The trial court further ordered the parties to develop a mutually agreeable claims process; or if the parties were unable to agree, each was to file its own proposed claims process, and the trial court would hold a hearing on the matter to resolve any such dispute over the remedy.


Pensioners filed a motion for new trial or, in the alternative, to amend judgment, which was denied by the trial court.

Pensioners then appealed.

Jurisdiction

This court has a duty to determine sua sponte whether we have jurisdiction to review an appeal. West v. Sharp Bonding Agency, Inc., 327 S.W.3d 7, 10 n. 5 (Mo.App.W.D.2010). We acquire jurisdiction to review a case upon the trial court's issuance of a “final judgment.” § 512.020(5). As a general rule, for the purpose of appeal, a judgment is final if it disposes of all parties and all issues in the case and leaves nothing for future determination. ABB, Inc. v. Securitas Sec. Servs. USA, Inc., 390 S.W.3d 196, 200 (Mo.App.W.D.2012). If the trial court's judgment is not final, we lack authority to consider the appeal, and it must be dismissed. Id.

An exception to this general rule is found in Rule 74.01(b), which permits the trial court to designate as final 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.” “However, the trial court's certification of a judgment as final is not conclusive because we must independently determine if such judgment actually qualifies as a final judgment.” West, 327 S.W.3d at 10 n. 5. “In doing so, we look to the...

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