Edward L. and Sharon Lindley, Appellants v. Midwest Pulmonary Consultants, P.C. and Michael E. Nelson, M.D., Respondents

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Edward L. and Sharon Lindley, Appellants v. Midwest Pulmonary Consultants, P.C. and Michael E. Nelson, M.D., Respondents Case Number: WD57742 Handdown Date: 07/25/2000 Appeal From: Circuit Court of Jackson County, Hon. Thomas H. Newton Counsel for Appellant: Bradley Leon Bradshaw Counsel for Respondent: Thomas Philip Cartmell Opinion Summary: Edward and Sharon Lindley, residents of Kansas, appeal the order of the Circuit Court of Jackson County, Missouri, dismissing their petition against Michael Nelson, M.D., also a Kansas resident. The Lindleys contend that the trial court erred in dismissing their petition because Nelson had sufficient contacts to be subjected to Missouri personal jurisdiction and, alternatively, that he committed one of the acts enumerated in the long arm statute. Division holds: The appeal is dismissed because there is no final judgment for purposes of appeal. Citation: Opinion Author: Per Curiam Opinion Vote: DISMISSED. Lowenstein, P.J., Ulrich and Holliger, J., concur Opinion: Opinion modified by Court's own motion on August 29, 2000. This substitution does not constitute a new opinion. Edward and Sharon Lindley appeal the order of the Circuit Court of Jackson County, Missouri, dismissing their petition against Michael Nelson, M.D., a Kansas resident. The Lindleys contend on appeal that the trial court erred in dismissing their petition because Nelson had sufficient contacts to be subjected to Missouri personal jurisdiction and, alternatively, that he committed one of the acts enumerated in the long arm statute.

This cause of action involves a medical malpractice lawsuit. Plaintiffs sued Dr. Nelson and his employer, Midwest Pulmonary Consultants, P.C., as well as several other defendants. Plaintiffs, prior to this appeal, voluntarily dismissed all defendants except Nelson and Midwest Pulmonary. Plaintiffs have included in the original and supplemental legal files the trial court's order of dismissal entered on September 15, 1999, and the court's order of October 1, 1999, denying their motion for reconsideration. They are identical except for the addition in the later order of the phrase "this is a final order and there is no just reason for delay." That addition addressed the issue of finality raised by Supreme Court Rule 74.01(b) because Midwest Pulmonary remained a party. Neither order is denominated as a "judgment," as required by Rule 74.01(a). There is, consequently, no final judgment for purposes of appeal. City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo. banc 1997). Plaintiffs argue correctly that the dismissal of an action for lack of personal jurisdiction is appealable. Dillaplain v. Lite Indus., Inc., 788 S.W.2d 530, 533 (Mo. App. 1990). Nevertheless, a dismissal without prejudice must still be denominated a "judgment" to be appealable under Rule 74.01(a). A.L. v. Peeler, 969 S.W.2d 262, 265 (Mo. App. 1998). The trial judge's addition to the order of October 1 of the phrase "there is no just reason for delay" satisfied subsection (b) but not subsection (a) of Rule 74.01. The failure to denominate either entry as a "judgment" deprives this court of jurisdiction on appeal. Martin v. Director of Revenue State of Mo., 10 S.W.3rd 618 (Mo. App. 2000). Appellant may seek the denomination of the ruling as a "judgment" and "final" for purposes of appeal by the trial court and file a new notice of appeal. Upon filing of a new notice of appeal, appellant may seek transfer of the record on appeal to the new appeal and for expedited processing. The appeal is therefore dismissed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.