Court of Appeals of Missouri, Western District, Second Division
C.G. SEWING, Appellant,
SCOTTISH RITE OF KANSAS CITY, et al., Respondents.
FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable Marco
Lisa White Hardwick, Presiding Judge, Thomas H. Newton and
Mark D. Pfeiffer, Judges
White Hardwick, Judge.
Sewing appeals the circuit court's entry of summary
judgment in favor of Scottish Rite of Kansas City, Scottish
Rite Temple Association of Kansas City, Missouri, Michael D.
Wheeler, and Robert L. Harman (collectively,
"Respondents") on her petition for damages alleging
violations of the Missouri Human Rights Act
("MHRA"). The court granted summary judgment on the
basis that Respondents did not employ six or more employees
and therefore were not an "employer" for the
purposes of the MHRA. For reasons explained herein, we
dismiss the appeal on jurisdictional grounds for lack of a
and Procedural History
filed a petition for damages alleging that Respondents and
the Orient of Missouri - Scottish Rite ("the
Orient") had engaged in sexual harassment, sex or gender
discrimination, and retaliation in violation of the MHRA.
Respondents moved for summary judgment, alleging that because
they did not employ more than six employees, they were not
subject to the provisions of the MHRA. After Sewing filed
suggestions in opposition, the circuit court entered an
"Order Granting Defendant's Motion for Summary
Judgment" on October 24, 2017. The order expressly
granted judgment as a matter of law in favor of Respondents
on all of Sewing's claims.
months later, on January 23, 2018, Sewing filed a motion to
amend the order, requesting that the circuit court reconsider
and deny Respondents' motion for summary judgment and
reopen the discovery period. Sewing asserted that her motion
was timely because the court had not yet entered a final
judgment. Respondents argued that the court's order dated
October 24, 2017, was, in fact, a final judgment pursuant to
Rule 74.01(a) and that any motion to amend was untimely based
on the thirty-day filing period for post-judgment motions in
Rule 78.04. Ten months later, the circuit court denied
Sewing's motion to amend but agreed to retitle the
previous order of October 24, 2017, as a "Judgment"
to comport with Rule 74.01. The judgment was entered on
October 19, 2018. Sewing appeals.
oral arguments before this court, Sewing asserted, for the
first time, that a final judgment did not exist in this case
because her claims against the Orient were not disposed of by
the court's entry of summary judgment in favor of
Respondents. We must address this contention as a threshold
matter because "appellate jurisdiction cannot be
conferred by waiver, acquiescence, or even express
consent." Boone v. Boone, 438 S.W.3d 494, 497
(Mo. App. 2014).
Missouri, the right to appeal is statutory." Marquez
v. Marquez, 136 S.W.3d 574, 578 (Mo. App. 2004). "A
final judgment is a prerequisite to appellate review."
Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc
2012). "Generally, a judgment is final if it disposes of
all the issues with respect to all parties and leaves nothing
for future determination." ABB, Inc. v. Securitas
Sec. Servs. USA, Inc., 390 S.W.3d 196, 200 (Mo. App.
Sewing's action was instituted against five parties. The
record demonstrates that judgment was entered in favor of
four of the five parties. Rule 74.01(b) makes an exception to
the general rule by allowing a circuit court to enter an
appealable order on fewer than all claims and parties if it
makes "an express determination that there is not just
reason for delay." Where, as here, the circuit court
does not make such determination, an order that
"adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate
the action as to any of the claims or parties[.]" Rule
argue that the Orient has never been a viable legal entity
capable of service or suit and therefore was not a party to
this action. The parties agree that the Orient was never
served, but the record is otherwise unclear as to the legal
status of the Orient. Consequently, we cannot conclude that
the Orient is not a party to this action. "For there to
be a final judgment there must be a disposition of claims
against all parties, even those unserved." LCA
Leasing Corp. v. Bolivar Prof'l Pharmacy, Inc., 901
S.W.2d 342, 343 (Mo. App. 1995). Accordingly, the circuit
court was required to adjudicate Sewing's claims against
the Orient in order to issue a final, appealable judgment in
this matter. Id; see also Rule 74.01. The
appeal is dismissed because we lack jurisdiction to entertain
dismiss the appeal for ...