William R. Schott v. Debra A. Beussink

The plaintiffs, Certified Public Accountants practicing as partners, sued the defendants, who are Certified Public Accountants and former employees of the partnership, for damages for breach of the provisions of their employment contract relating to withdrawal and competition. At the initial trial before a jury the trial Judge directed a verdict for the defendants. This court reversed and remanded the case for new trial. Schott v. Beussink, 817 S.W.2d 540 (Mo. App. 1991). No second trial has been held. The trial court sustained the defendants' motion to dismiss paragraphs 7 and 8 in each of Counts I through IV of plaintiffs' first amended petition, found no just reason for delay and determined the order to be final and appealable under Rule 74.01(b). Plaintiffs filed a notice of appeal from this order. On our own motion we entered an order advising that the claims for damages contained in paragraphs 7 and 8 may not be a separate claim for relief under Boley v. Knowles, 905 S.W.2d 86 (Mo. banc 1995). We also advised that the trial court's order was not denominated a ""judgment"" as required by Rule 74.01(a). We ordered the plaintiffs to show cause why the appeal should not be dismissed for lack of an appealable order. Plaintiffs filed a response in support of their position that the order complied with both rules. We then directed plaintiffs to secure a judgment which complied with Rule 74.01(a). Plaintiffs subsequently filed a document denominated ""judgment."" We noted the filing and ordered the jurisdictional issue taken with the case. We now conclude that the trial court improvidently certified its order as appealable under Rule 74.01(b). We dismiss the appeal for lack of jurisdiction.