IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT JEFFERSON CITY MEDICAL ) GROUP, P.C., ) ) Respondent, ) ) v. ) WD85467 ) DAVID BRUMMETT, ) Filed: April 18, 2023 ) Appellant. ) Appeal from the Circuit Court of Cole County The Honorable Daniel R. Green, Judge Before Division Two: Alok Ahuja, P.J., and Anthony Rex Gabbert and Thomas N. Chapman, JJ. Dr. David Brummett appeals from a judgment of the Circuit Court of Cole
County, which enforced a covenant not to compete contained in Dr. Brummett’s
employment agreement with the Jefferson City Medical Group. Consistent with
the non-compete clause, the circuit court enjoined Dr. Brummett from practicing
radiology in a twenty-five mile radius around Jefferson City for two years.
Because the circuit court’s judgment did not resolve the Medical Group’s
claim for attorney’s fees, the judgment was not final, and we accordingly dismiss
Dr. Brummett’s appeal. Factual Background On January 19, 2022, Jefferson City Medical Group filed an Application for
Temporary Restraining Order and Petition for Preliminary and Permanent Injunction against Dr. Brummett in the Circuit Court of Cole County. Dr.
Brummett had been employed as a radiologist with the Medical Group beginning
in 2015. Dr. Brummett resigned from the Medical Group on January 7, 2022, and began employment as a radiologist with a competing medical practice.
The Medical Group alleged that Dr. Brummett’s new employment violated
a covenant not to compete contained in his Physician Agreement with the Group. The non-compete clause provided that, for two years following the termination of
his Physician Agreement, Dr. Brummett would not practice radiology or
otherwise compete with the Medical Group within twenty-five miles of the city limits of Jefferson City (excluding Columbia). The Medical Group prayed that the
circuit court issue a temporary restraining order, and preliminary and permanent
injunctive relief, barring Dr. Brummett from practicing in violation of his
covenant not to compete. The Medical Group’s petition quoted the provision of
the Physician Agreement specifying remedies for a breach of the non-compete
clause: the Agreement specified that, in the event of a breach, the Medical Group would be entitled to injunctive relief, as well as “damages, attorneys’ fees, costs,
and expenses.” The petition accordingly prayed for damages, attorney’s fees, and
other costs in addition to injunctive relief. Dr. Brummett’s Answer alleged that, following termination of the Medical
Group’s contract to provide radiology services to SSM Health St. Mary’s Hospital
in Jefferson City, the Medical Group had not provided Dr. Brummett with full- time work. Dr. Brummett contended that this constituted a material breach of
2 his Physician Agreement, which relieved him of his obligations under the covenant not to compete.
The circuit court issued a temporary restraining order against Dr.
Brummett on February 1, 2022. Dr. Brummett filed an Amended Answer, in which he alleged that the
members of the Medical Group “promoted an unprofessional environment and
violated important policies and regulations, thus endangering the reputations
and ability to practice of anyone associated with the group” by making
inappropriate racist and xenophobic comments; violating patient privacy; and
accusing Dr. Brummett of disloyalty when he sought to supplement his income through outside employment. Dr. Brummett also alleged that the Medical Group
materially breached the Physician Agreement by not paying him certain sums to
which he was contractually entitled.
The circuit court conducted a bench trial over five days in March 2022. In
its judgment entered on May 19, 2022, the circuit court held that the covenant
not to compete was enforceable, that the Medical Group had not forfeited its right
to enforce the covenant by materially breaching the Physician Agreement, and
that Dr. Brummett’s employment with the competing medical practice violated
the non-compete clause. The circuit court issued an injunction enforcing the
covenant not to compete for a two-year period from July 29, 2022 to July 29,
2024. The judgment also ordered that Defendant Brummett shall pay Plaintiff JCMG’s reasonable attorney’s fees incurred in the enforcement of Dr. Brummett’s restrictive covenants contained in his employment agreement with Plaintiff JCMG in such amount as determined by the court, as well as Plaintiff JCMG’s court costs.
3 Despite finding Dr. Brummett liable for the Medical Group’s attorney’s fees, the judgment did not actually determine the amount of Dr. Brummett’s liability for
fees and costs.
The Medical Group filed a Motion for Attorneys’ Fees with the circuit court on June 8, 2022, supported by billing statements, affidavits of counsel, and other
documentation. The motion sought a total of $448,206.25 in attorney’s fees, and
an additional $8,882.58 in taxable costs.
On June 13, 2022, Dr. Brummett filed a motion to stay further proceedings
on the Medical Group’s attorney’s fee motion. The motion to stay stated that Dr.
Brummett intended to appeal the circuit court’s underlying judgment. The motion noted that “[t]he outcome of that appeal could affect any right to fees,
costs, and interests [sic], as well as the amount of any such fees.” The motion
therefore argued that further proceedings on the Medical Group’s attorney’s fee
motion should be stayed pending resolution of Dr. Brummett’s appeal, “in the
interest of efficiency and judicial economy.” The motion stated that the Medical
Group did not oppose the stay Dr. Brummett was seeking.
On June 15, the circuit court granted Dr. Brummett’s motion and stayed
proceedings on the Medical Group’s attorney’s fee motion.
On June 20, 2022, Dr. Brummett filed his notice of appeal of the
underlying judgment. This Court’s Staff Counsel sent a letter to the parties on
August 5, 2022, noting that the judgment may not be final because of the
unresolved attorney’s fee motion, and requesting suggestions from the parties as to why the appeal should not be dismissed. Both parties submitted suggestions
indicating their belief that the judgment was final and appealable.
4 Dr. Brummett’s opening Brief argued summarily that, if this Court found the non-compete clause to be unenforceable, the Medical Group would no longer
be entitled to attorney’s fees, but that it should instead be ordered to “pay Dr.
Brummett’s attorneys’ fees as the prevailing party.” In response, the Medical Group asked the Court to order a limited remand to the circuit court to permit it
to resolve the attorney’s fee motion. The Medical Group contended that, “[s]ince
Appellant’s brief specifically contests all portions of the judgment, including the
merits of any award or denial of attorney fees . . ., this Court will likely dismiss
the appeal due to nonfinality of judgment.” This Court denied the Medical
Group’s motion for a limited remand on November 1, 2022. At oral argument, and despite its earlier request for a limited remand, the Medical Group once
again asserted that this Court has appellate jurisdiction, and should decide the
appeal on the merits.
Discussion Prior to addressing the substance of Dr. Brummett’s appeal, this Court
must first determine whether we have jurisdiction. “[T]he finality of a judgment
is a prerequisite to our jurisdiction. If we have any doubt about the trial court's
authority to certify a judgment as final, we must address it sua sponte.” Team,
Inc. v. Schlette, 814 S.W.2d 12, 13 (Mo. App. E.D. 1991). Although the parties
have both contended that we have jurisdiction over Dr. Brummett’s appeal, “[w]e
must address this [issue] as a threshold matter because ‘appellate jurisdiction
cannot be conferred by waiver, acquiescence, or even express consent.’” C.G. Sewing v. Scottish Rite of Kansas City, 582 S.W.3d 138, 139 (Mo. App. W.D.
2019) (citation omitted). “While the parties’ desire to resolve the important
5 issues raised in this appeal in an expeditious manner is certainly understandable and is shared by this Court, appellate jurisdiction cannot be conferred by
agreement of the parties.” Glasgow Sch. Dist. v. Howard Cnty. Coroner, 572
S.W.3d 543, 546 n.8 (Mo. App. W.D. 2019) (citation omitted). The parties assert that we have appellate jurisdiction pursuant to
§ 512.020, RSMo, which provides in relevant part: Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any: .... (5) Final judgment in the case . . . . “Finality” of a judgment under § 512.020(5) may be established in one of
two ways: “either because [the judgment] disposes of all claims (or the last
claim) in a lawsuit, or because it has been certified for immediate appeal
pursuant to Rule 74.01(b).” Wilson v. City of St. Louis, 600 S.W.3d 763, 771 (Mo.
2020). The purpose of the finality requirement is “to avoid redundant review of
multiple appeals based on the same underlying facts and similar legal issues.”
Comm. for Educ. Equality v. State, 878 S.W.2d 446, 451 (Mo. 1994) (citation
omitted).
The circuit court did not purport to certify its May 19, 2022 judgment as a
partial final judgment under Rule 74.01(b). Therefore, this Court must decide if
the judgment “disposes of all claims” in the lawsuit. Under well-established
caselaw, it plainly does not. Missouri courts have long held that “‘[a]n unresolved claim for attorney's
fees can arrest the finality of a judgment[.]’ . . . If a request for attorney's fees is
6 properly pleaded and pursued at or after trial, the trial court must resolve or dispose of the issue before a judgment can be deemed final.” Cupit v. Dry
Basement, Inc., 592 S.W.3d 417, 422 (Mo. App. W.D. 2020) (quoting Ruby v.
Troupe, 580 S.W.3d 112, 114 (Mo. App. W.D. 2019); other citations omitted); see also, e.g., Schmidt v. Dart Bein, LC, 644 S.W.3d 579, 582 (Mo. App. W.D. 2022);
Flower Valley, LLC v. Zimmerman, 575 S.W.3d 497, 502 (Mo. App. E.D. 2019);
State ex rel. Kinder v. Dandurand, 261 S.W.3d 667, 671 (Mo. App. W.D. 2008);
L.R. Oth, Inc. v. Albritton, 90 S.W.3d 242, 243 (Mo. App. S.D. 2002).
The principle that a judgment is not final where a request for attorney’s
fees is unresolved has been repeatedly applied in the precise circumstances existing here: where a contract authorizes an award of fees incurred in enforcing
the agreement, to the party who prevails in the contract litigation. See, e.g.,
Schmidt, 644 S.W.3d at 582; Fid. Real Est. Co. v. Norman, 586 S.W.3d 873, 879
(Mo. App. W.D. 2019); Rheem Mfg. Co. v. Progressive Wholesale Supply Co., 28
S.W.3d 333, 343 (Mo. App. E.D. 2000).
The Medical Group’s petition quoted the contractual provision authorizing
an award of fees, and prayed for an award of its attorney’s fees. The circuit
court’s judgment recognized that the Medical Group was entitled to an award of
fees. But the court did not finally resolve the issue. Although its judgment held
that Dr. Brummett was liable for attorney’s fees, the judgment did not determine
the amount of his liability. “[A] judgment that disposes of only one of several
remedies and leaves other remedies relating to the same legal rights open for future adjudication is not a final judgment.” Comm. for Educ. Equality, 878
S.W.2d at 450. “‘[A] judgment that requires external proof or another hearing to
7 dispose of disputed issues involved in the litigation is not final for purposes of Rule 74.01(b).’” Shea v. Gaither, 389 S.W.3d 725, 730 (Mo. App. E.D. 2013)
(citation omitted).
As a general proposition, a judgment which determines that a defendant is liable for damages, but not the amount of that liability, is not final or appealable
until the amount of damages is finally determined. See, e.g., Sykora v. Farmers
Ins. Co., 642 S.W.3d 381, 384-85 (Mo. App. W.D. 2022) (citing Stotts v.
Progressive Classic Ins. Co., 118 S.W.3d 655, 660-61 (Mo. App. W.D. 2003));
ABB, Inc. v. Securitas Sec. Servs. USA, Inc., 390 S.W.3d 196, 203 (Mo. App. W.D.
2012). This principle applies to a judgment – like the underlying judgment here – which finds a party liable for attorney’s fees, but does not make a fee award of a
specific sum. See Flower Valley, 575 S.W.3d at 501 (circuit court’s judgment was
not final where it “found Respondents were . . . entitled to an additional award of
attorneys’ fees and costs . . ., with the amount to be determined at a later date”);
Cooling v. State Dep’t of Social Servs., 446 S.W.3d 283, 385-86 (Mo. App. E.D.
2014) (“The circuit court’s judgment is not a final judgment. The circuit court
determined that father was entitled to attorney's fees, but in the end did not
award those fees.”); ACU Credit Union v. Est. of Melman, 788 S.W.2d 803, 804
(Mo. App. E.D. 1990) (judgment not final where it “declar[ed] that Collector was
liable to ACU for reasonable attorney’s fees,” but “[t]he trial court did not,
however, enter a definite monetary amount of attorney’s fees to be paid”).
Because it did not full resolve Dr. Brummett’s liability for attorney’s fees, the circuit court’s judgment in this case was not final or appealable.
8 Dr. Brummett makes a series of arguments to avoid this result; we find none of his arguments persuasive. First, Dr. Brummett cites caselaw addressing
whether a post-judgment attorney’s fee motion constitutes an “authorized after-
trial motion” which suspends the finality of the judgment under Rule 75.01, and which is deemed denied if not granted within ninety days under Rule 78.06. As
this Court recognized in Cupit, 592 S.W.3d 417, however, the determination of
whether a post-judgment motion is an “authorized after-trial motion” is distinct
from the question whether the judgment itself is final and appealable. A timely filed authorized after-trial motion extends a trial court's jurisdiction for up to ninety days after the filing of the motion. . . . At the expiration of the ninety-day period, the trial court is divested of jurisdiction and loses its authority over the judgment. Where a judgment in question is not final, however, Rule 75.01 does not apply, and the trial court retains jurisdiction to enter a final judgment. Likewise, the time limit of Rule 78.06 does not apply when the judgment in question is not final. In other words, unless an appeal lies from a decree or order when it is entered, the decree or order is not a “judgment” as defined in Rule 74.01(a), and is not a “judgment” as to which Rules 75.01 and [78.06] apply. Id. at 424; accord, Schmidt, 644 S.W.3d at 582 n.5.
Dr. Brummett cites Heifetz v. Apex Clayton, Inc., 554 S.W.3d 389 (Mo.
2018). In Heifetz, the Missouri Supreme Court held that an attorney’s fee motion
was an “authorized after-trial motion” which stayed the time to appeal the judgment entered in that case; the Court held that a notice of appeal filed after
the ruling on the attorney’s fee motion was accordingly timely. Id. at 393-94. By
invoking Rules 75.01 and 78.06, which suspend the finality of a judgment pending the disposition of post-judgment motions, the Supreme Court’s analysis
presumed that the underlying judgment would have become final but for the
filing of the attorney’s fee motion. The Supreme Court’s opinion does not
9 actually address the finality of the underlying judgment, however. Thus, the opinion does not state whether, or how, the original judgment dealt with the
attorney’s fee issue. Moreover, the Court’s opinion does not cite the caselaw
holding that a civil judgment is generally not considered final or appealable if a claim for attorney’s fees is unresolved.
The appellate court decisions cited by Heifetz, which likewise treated post-
judgment attorney’s fee motions as “authorized after-trial motions,” similarly do
not explicitly address the finality, or appealability, of the underlying judgments
entered in those cases. See Ferguson v. Curators of Lincoln Univ., 498 S.W.3d
481, 495 (Mo. App. W.D. 2016); Brady v. Curators of Univ. of Mo., 213 S.W.3d 101, 114-15 (Mo. App. E.D. 2006); H.S. v. Bd. of Regents, Se. Mo. State Univ., 967
S.W.2d 665, 674 (Mo. App. E.D. 1998); Lavigne v. Banks, 775 S.W.2d 347, 349
(Mo. App. E.D. 1989).
Moreover, by treating an attorney’s fee motion as an “authorized after-trial
motion,” Heifetz reached the same result it would have reached if the Court had
held that the original judgment was not final due to an unresolved attorney’s fee
issue: in both cases, the judgment only became final, and appealable, after the
attorney’s fee issue was resolved. See Ferguson, 498 S.W.3d at 494 & n.7
(recognizing that the outcome would be the same, whether the Court treated an
attorney’s fee motion as an “authorized after-trial motion,” or instead held that
the original judgment was not final because of the undecided attorney’s fee
issue). We do not believe Heifetz is inconsistent with the Court of Appeals cases holding that an unresolved attorney’s fee issue generally prevents a civil
judgment from being considered “final.”
10 Dr. Brummett also relies on Burton v. Klaus, 455 S.W.3d 9 (Mo. App. E.D. 2014). In Burton, the Court of Appeals ruled prior to submission of the case that
an attorney’s fee motion filed in the circuit court was not an “authorized after-
trial motion”; that the underlying judgment therefore became final despite the filing of an attorney’s fee motion; and that a notice of appeal filed after the
attorney’s fee motion was decided was untimely to appeal the underlying
judgment. Although the Court’s opinion in Burton states that “[w]e see no reason
to digress from this Court’s earlier[, pre-submission] ruling and Order,” id. at 12,
the Court’s opinion actually addresses a different issue. By the time the Burton
appeal was submitted to a merits panel, the appellant had chosen to brief and argue issues related solely to the later attorney’s fee award. Burton held that the
appellant’s notice of appeal was ineffective to appeal the attorney’s fee ruling,
however, because the notice of appeal referred only to the underlying judgment,
not the later judgment awarding attorney’s fees. Id. at 12-13. The Court
accordingly dismissed the appeal, because the notice of appeal failed to designate
the judgment which the appellant was actually challenging. Because it dismissed
the appeal on a separate basis which has no relevance here, we do not consider
Burton relevant to the finality issue we address – particularly since Burton does
not cite the caselaw holding that an unresolved attorney’s fee motion generally
prevents a judgment from achieving “finality.”
Dr. Brummett also relies on Boatmen’s Trust Co. v. Sugden, 827 S.W.2d
249, 251 (Mo. App. E.D. 1992). In Boatmen’s, the Eastern District entertained an appeal of an “interlocutory judgment” in a probate matter involving the
compensation to which the trustee of a trust was entitled, even though issues of
11 attorney’s fees (and certain other claims) remained pending in the probate division. Boatmen’s is distinguishable for at least two reasons. First, Boatmen’s
apparently did not involve an appeal of a final civil judgment under § 512.020(5),
RSMo, but instead an appeal of a probate proceeding brought under § 472.160, RSMo, which authorizes interlocutory appeals in certain circumstances. Second,
the circuit court in Boatmen’s had certified its judgment as a partial final
judgment under Rule 74.01(b), which did not occur in this case. (We note that
other court have found the construction of Rule 74.01(b) in Boatmen’s to be of
questionable validity. See Flower Valley, 575 S.W.3d at 504; ARC Indus., Inc. v.
Siegel-Robert, Inc., 157 S.W.3d 344, 347 (Mo. App. E.D. 2005).) Dr. Brummett also cites to decisions of the Supreme Court of the United
States, which have adopted “a ‘uniform rule that an unresolved issue of attorney's
fees for the litigation in question does not prevent judgment on the merits from
being final.’” Ray Haluch Gravel Co. v. Central Pension Fund, 571 U.S. 177, 184
(2014) (quoting Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988)).
In Ray Haluch Gravel, the Court applied this principle where – as in this case – a
contractual provision required the award to the prevailing party of attorney’s fees
incurred to litigate the underlying contract action. 571 U.S. at 184-89.
It may be that, in the federal courts, appellate jurisdiction would exist for
an appeal like this one. To the extent cases like Ray Haluch Gravel and Budinich
authorize an immediate appeal in this situation, however, they are plainly
contrary to a large body of Missouri caselaw which we are bound to follow. The fact that the federal courts interpret appellate jurisdiction differently is no
justification for ignoring well-established Missouri law – appellate jurisdiction in
12 the federal courts differs from appellate jurisdiction in Missouri’s courts in multiple significant respects. See, e.g., 28 U.S.C. § 1292(a)(1) (authorizing appeal
of “[i]nterlocutory orders . . . granting, continuing, modifying, refusing or
dissolving injunctions”); 28 U.S.C. § 1292(b) (authorizing interlocutory appeal where a district judge certifies that an order “involves a controlling question of
law as to which there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate
termination of the litigation”); Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100
(2009) (discussing the “collateral order” doctrine).
We recognize that attorney’s fee motions may be treated differently in the future under Rule 74.16, which became effective on July 1, 2022. Rule 74.16(a)
states that “[a] claim for attorney fees . . . must be made by motion filed under
this Rule 74.16, unless the substantive law requires those fees to be proved at trial
as an element of damages.” Rule 74.16(b)(3) then specifies that “a motion filed
under this Rule 74.16 is an independent action and not an authorized after-trial
motion[.]” We need not decide what effect Rule 74.16(b)(3) may have on
questions of appellate jurisdiction in future cases, because the Rule is not
applicable here. Rule 74.16(b)(3) states that it applies only to “motion[s] filed
under this Rule 74.16.” (Emphasis added.) The Medical Group’s attorney’s fee
motion was not filed “under . . . Rule 74.16,” however, for the simple reason that
the Rule was not in effect at the time the Medical Group’s motion was filed.
Indeed, the new rule was not in effect (1) when the circuit court’s judgment was entered; (2) when the Medical Group’s attorney’s fee motion was filed; or
13 (3) when Dr. Brummett filed his notice of appeal. Rule 74.16 has no application here.
Because the May 19, 2022 judgment reserved decision on the amount of
the Medical Group’s recoverable attorneys’ fees, it is not a final and appealable judgment. We lack appellate jurisdiction, and Dr. Brummett’s appeal must be
dismissed.
Both parties filed motions for attorney’s fees on appeal. The motions were
taken with the case. We have determined that we lack jurisdiction over this
appeal due to the lack of a final judgment. “Because the . . . appeal . . . [is]
dismissed due to the lack of a final judgment, the parties’ motions for attorney fees on appeal are denied without prejudice.” Schmidt, 644 S.W.3d at 582.
Conclusion The appeal is dismissed, and the parties’ respective motions for attorney’s
fees on appeal are denied without prejudice.
________________________ Alok Ahuja, Judge All concur.