Richard "Neil" Howe v. Heartland Midwest, LLC Time Warner Cable Midwest, LLC

In the
Missouri Court of Appeals
Western District
RICHARD "NEIL" HOWE, )
)
Respondent, ) WD82656
)
v. ) OPINION FILED: April 14, 2020
)
HEARTLAND MIDWEST, LLC, ET )
AL., )
Respondent, )
)
TIME WARNER CABLE MIDWEST, )
LLC, )
)
)
Appellant. )

Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Jalilah Otto, Judge

Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge
and Gary D. Witt, Judge

Time Warner Cable Midwest, LLC ("Time Warner") appeals from a judgment that

confirmed an arbitrator's award and entered judgment in favor of Richard "Neil" Howe

("Howe") and against Heartland Midwest, LLC ("Heartland") in the amount of $350,000.

Time Warner argues that the trial court erred in denying its motion to intervene as a matter
of right, and in granting Howe's motion to confirm the arbitrator's award. Because Time

Warner is not aggrieved by the judgment, it has no standing to appeal. And because the

judgment does not resolve all claims as to all parties, the judgment is not final for purposes

of appeal. The appeal is dismissed.

Factual and Procedural History

On February 19, 2013, near the Country Club Plaza in Kansas City, Missouri,

Heartland was performing horizontal directional drilling services pursuant to an agreement

with Time Warner to install fiber optic cable. While performing that work, Heartland

ruptured a gas main owned by Missouri Gas Energy ("MGE"). Howe, a construction

foreman for MGE, responded to the scene to fix the ruptured main. While Howe was

standing in an excavation hole above the ruptured main, Howe felt an explosion behind

him and was thrown to the ground.

On April 17, 2017, Howe filed a petition against Heartland and Time Warner1

claiming damages for injuries Howe sustained. Heartland and Time Warner both filed

answers to Howe's petition. Time Warner also filed a third-party petition against USIC

Locating Services, LLC ("USIC"), the entity responsible for marking the location of

underground utility lines. USIC filed an answer to Time Warner's third-party petition.

1
Howe's petition also named Charter Communications as a defendant. Howe dismissed Charter
Communications without prejudice on June 26, 2017.

2
 On February 1, 2019, Howe dismissed his claims against Time Warner.2 As a result,

all that remained pending were Howe's claims against Heartland, and Time Warner's third-

party claims against USIC.

On February 7, 2019, in the same proceeding where Howe's petition was initially

filed, Howe filed a motion seeking confirmation of an arbitrator's award and the entry of a

judgment against Heartland ("motion to confirm"). The arbitrator's award attached to the

motion to confirm described an arbitration on January 11, 2019, between Howe and

Heartland. The arbitrator awarded damages in favor of Howe and against Heartland in the

amount of $350,000.

On February 8, 2019, Time Warner filed a notice of potential intervention

("notice"). In the notice, Time Warner complained that Howe and Heartland had conducted

a "secret arbitration" while Time Warner was still a party to Howe's action. Time Warner

complained that the arbitrator's award, if confirmed, could impair Time Warner's rights and

potential recoveries against interpleaded funds in the United States District Court for the

Western District of Missouri.3 Time Warner filed a formal motion to intervene on

2
Howe's dismissal of Time Warner did not specify whether it was with or without prejudice. The dismissal
operated as a dismissal with prejudice, however, because Howe had earlier exercised his right pursuant to Rule
67.02 to voluntarily dismiss claims against Time Warner without prejudice in a suit filed in 2014 and dismissed in
2016. Howe's counsel has repeatedly represented to the trial court, and to this court on appeal, that Howe's dismissal
of Time Warner in the instant case was with prejudice.
All rule references are to the Missouri Supreme Court Rules (2019), unless otherwise noted.
3
According to Time Warner's pleadings, BITCO General Insurance Corporation ("BITCO") issued two
insurance policies to Heartland, each of which named Time Warner as an additional insured. BITCO is alleged by
Time Warner to have paid out approximately $3.9 million of the $6 million policy limits on these policies to resolve
or pay claims arising out of the February 19, 2013 explosion. The balance of the policy proceeds have apparently
been paid into the registry of the United States District Court for the Western District of Missouri in connection with
an interpleader action filed by BITCO and assigned case number 4:15-cv-00384-FJG. Time Warner, Heartland,
Howe, and others are apparently named as defendants in the interpleader action. Time Warner argues it has an
interest in the interpleaded funds arising out of rights of indemnity or contribution from Heartland by virtue of
claims that have been resolved (and paid) by Time Warner. This explanation for Time Warner's motion to intervene
is provided to afford context, and is not to be relied on as the law of the case.

3
February 22, 2019 ("motion to intervene"). Howe opposed Time Warner's motion to

intervene, and argued that his claims against Time Warner had been dismissed with

prejudice, and that Time Warner had no responsibility to satisfy his judgment against

Heartland.

The trial court conducted a hearing on the motion to confirm and the motion to

intervene on February 25, 2019. Counsel for Howe, Heartland, Time Warner, and USIC

appeared. USIC's counsel explained that she was present because USIC "[was] brought in

as a third-party defendant by Time Warner," and remained a party in the action because

Time Warner's third-party petition was still pending.

In addressing the motion to confirm, Howe argued that he was free to separately

resolve his claims against Heartland by whatever means he desired, including arbitration,

and that Time Warner had no right to interfere with Howe's resolution of his claims against

Heartland, especially as Time Warner had no responsibility to pay any judgment entered

against Heartland. When asked by the trial court, Time Warner confirmed that Howe had

the right to separately settle or otherwise resolve his claims against Heartland without Time

Warner's assent. Time Warner nonetheless argued that the arbitration had been a sham

proceeding designed to permit Howe to collect money out of the interpleaded funds in the

federal district court action.

In addressing the motion to intervene, Howe repeated that Time Warner had no

interest in the arbitrator's award, or its confirmation, because Howe had dismissed Time

Warner with prejudice, and Time Warner had no risk of liability for the arbitrator's award.

4
Time Warner reiterated that its right to intervene stemmed from its interest in the

interpleaded funds in the federal district court proceedings.

When asked by the trial court, USIC's counsel advised that USIC had no position

on either the motion to confirm or the motion to intervene, and just wanted to "make sure

Time Warner [is] going to dismiss us." Time Warner's counsel responded, "[w]e're

working on that."

After hearing the parties' arguments, the trial court indicated that it would take both

motions under advisement. The trial court noted that it would only rule on the motion to

intervene, however, if the trial court believed there was a need to do so.

On February 26, 2019, the trial court entered a judgment indicating that "upon

receiving a Motion for Confirmation of Arbitrator's Award and having reviewed said

arbitrator's award, pursuant to Missouri Revised Statutes [section] 435.400, et seq., [the

court] hereby issues judgment in favor of Plaintiff Richard 'Neil' Howe against Heartland

Midwest, LLC, in the amount of $350,000" ("Judgment"). The Judgment made no

reference to Time Warner's motion to intervene. The docket sheet supplied with the record

on appeal does not reflect that Time Warner's motion to intervene was ever ruled on by the

trial court. Nor does the docket sheet reflect that Time Warner has dismissed its third-party

petition against USIC.

Time Warner filed this appeal from the Judgment.

Analysis

Time Warner asserts two points on appeal. Both identify the Judgment as the trial

court action from which the appeal is taken. Time Warner's first point claims the trial court

5
erroneously denied Time Warner's motion to intervene. Time Warner's second point

claims the trial court erroneously granted the motion to confirm the arbitrator's award.

Although neither Time Warner nor Howe have raised the issue of our appellate

jurisdiction, we are required to determine sua sponte whether we have jurisdiction to hear

this appeal. Maly Commercial Realty, Inc. v. Maher, 582 S.W.3d 905, 910 (Mo. App.

W.D. 2019). "The right to appeal is purely statutory and, where a statute does not give a

right to appeal, no right exists." McClain v. Landmark Equity Grp., LLC, 584 S.W.3d 383,

387-88 (Mo. App. W.D. 2019) (quoting First Nat'l Bank of Dieterich v. Pionte Royale

Prop. Owners' Ass'n Inc., 515 S.W.3d 219, 221 (Mo. banc 2017)).

There are two issues presented by the record which implicate our jurisdiction to

entertain this appeal: Time Warner's standing to appeal, and the finality of the Judgment.

We address the issues separately.

Time Warner is not aggrieved and does not have standing to appeal the Judgment

Section 512.020,4 the statute which governs the right to appeal, affords the right of

appeal to "[a]ny party to a suit aggrieved by any judgment of any trial court in any civil

cause . . . ." "A party who has not been aggrieved by a judgment has no right or standing

to appeal." T.V.N. v. Mo. State Highway Patrol Criminal Justice Info. Servs., No.

WD82341, 2019 WL 5874670, at *1 (Mo. App. W.D. Nov. 12, 2019) (quoting Jackson

Cty. Bd. of Election Comm'rs v. Paluka, 13 S.W.3d 684, 687 (Mo. App. W.D. 2000)). "[A]

party cannot be said to be 'aggrieved,' unless error has been committed against him."

4
All statutory references are to RSMo 2016 unless otherwise noted.

6
Shoate v. State, 529 S.W.3d 869, 876 (Mo. App. W.D. 2017) (quoting Fenton v. Thompson,

176 S.W.2d 456, 460 (Mo. 1943)). "Courts have a duty to determine if a party has standing

prior to addressing the substantive issues of the case." T.V.N., 2019 WL 5874670, at *2

(quoting CACH, LLC v. Askew, 358 S.W.3d 58, 61 (Mo. banc 2012)).

a. Time Warner does not have standing to assert its first point on appeal
because the Judgment does not include a ruling on the motion to intervene

Time Warner's first point on appeal claims the trial court's Judgment erroneously

denied the motion to intervene. However, the Judgment does not include a ruling on Time

Warner's motion to intervene.5 Time Warner is not aggrieved and has no standing to

appeal, claiming error in the denial of its motion to intervene, when neither the Judgment

nor any interlocutory order incorporated into the Judgment, has ruled the motion to

intervene.

Time Warner acknowledges that the trial court never ruled on the motion to

intervene. Time Warner argues, however, that the Judgment "functionally" denied the

motion to intervene. Time Warner cites no authority supporting this critical assertion. Our

independent research establishes that a judgment cannot be interpreted to rule pending

motions sub silentio.

In Traders Bank of Kansas City v. Cherokee Investment Co., 642 S.W.2d 122, 122-

23 (Mo. App. W.D. 1982), a bank filed suit on a promissory note against the debtor and

thirteen guarantors. The bank then dismissed the guarantors. Id. at 123. The debtor filed

5
As we explain, infra, the trial court did not err when it failed to rule Time Warner's motion to intervene, as
Time Warner was already in the case as a party at the time the motion to intervene was filed, rendering the motion
superfluous.

7
a motion for enlargement of time to answer and a motion to dismiss. Id. Without ruling

on these motions, the trial court entered a default judgment against the debtor, which the

debtor moved to set aside. Id. The trial court denied the motion to set aside, and the debtor

appealed. Id. Among other things, the debtor argued that the trial court should have ruled

its pending motions for enlargement of time to answer and to dismiss. Id. The bank argued

that "it should be deemed that the trial court overruled the [debtor's] motions by implication

when it entered the default judgment." Id. at 126. We concluded that "pending motions

must be disposed of expressly and cannot be treated as having been overruled sub silentio."

Id.; see also Cannon v. Nikles, 151 S.W.2d 472, 475 (Mo. App. 1941) (holding that it is a

procedural error for the trial court to enter a default judgment before disposing of a motion

for change of venue even if the trial court did not have actual knowledge of such motion);

Carpenter v. Alton R. Co., 148 S.W.2d 68, 70 (Mo. App. 1941) (holding that a default

judgment must be set aside when entered against a defendant whose pending motion for

change of venue had not been ruled).

The holdings in Traders Bank, Cannon, and Carpenter are consistent with the fact

that "[i]t is well settled that courts speak only through their records." State ex rel. Nassau

v. Kohn, 731 S.W.2d 840, 843 (Mo. banc 1987). Rule 74.02 provides that "[e]very

direction of a court made or entered in writing and not included in a judgment is an order."

(Emphasis added.) And Rule 74.01(a) requires every judgment to be "a writing signed by

the judge." Here, there is no "writing" in the form of either an order or a judgment

reflecting the trial court's disposition of the motion to intervene. Nor does any other record

reflect trial court action on the motion to intervene.

8
 We recognize that there is authority for interpreting an ambiguous judgment to

ascertain the trial court's intent by reference to the trial court's oral statements on the record.

See, e.g., Harvey v. Dir. of Revenue, 371 S.W.3d 824, 827-28 (Mo. App. W.D. 2012);

Estate of Rogers v. Battista, 125 S.W.3d 334, 341 (Mo. App. E.D. 2004). However, that

authority has no application here. The Judgment is silent on the subject of Time Warner's

motion to intervene, but it is not ambiguous. "[W]here the language of the judgment is

plain and unambiguous, we do not look outside the four corners of the judgment for its

interpretation." Lombardo v. Lombardo, 120 S.W.3d 232, 244 (Mo. App. W.D. 2003).

Moreover, oral statements on the record are not a substitute for a written order or judgment.

Battista, 125 S.W.3d at 341 (citing Thornton v. Deaconess Med. Ctr.-West, 929 S.W.2d

872, 873 (Mo. App. E.D. 1996) (holding that oral comments can be considered to explain

or support a record entry "but they cannot be used as a substitute for or to dispute" a record

entry (emphasis omitted)). Thus, although oral statements on the record can clarify an

ambiguity in a judgment, they cannot supply a ruling on a pending motion about which the

judgment is silent. In any event, Time Warner has not argued, nor could it argue, that the

trial court's oral statements on the record reflect a ruling on the motion to intervene that

was inadvertently omitted from the Judgment. The trial court's oral statements on the

record reflect that the trial court did not intend to rule the motion to intervene unless it

believed it necessary to do so.

The Judgment did not include a ruling on Time Warner's motion to intervene. We

are not permitted to interpret the Judgment as having denied the motion to intervene sub

9
silentio. Time Warner is not aggrieved by the Judgment, and has no standing to appeal,

insofar as the claim of error asserted in Time Warner's first point on appeal.

Time Warner has not alternatively asked this court for relief should we disagree

with its contention that the Judgment "functionally denied" the motion to intervene. It is

nonetheless appropriate to address this topic.

In Traders Bank, the default judgment entered by the trial court was deemed

erroneous because the debtor's pending motions had not been ruled. 642 S.W.2d at 128.

The case was remanded to set a hearing on the debtor's pending motions. Id. Traders Bank

is distinguishable from Time Warner's circumstances. The debtor's pending motions in

Traders Bank directly impacted whether the trial court's decision not to set aside the default

judgment could be affirmed on appeal. Traders Bank observed that the trial court "under

the same rules as would justify the rendering of a default judgment could have ruled

adversely on defendant's [pending motions] and thus by orderly and legal procedure

accomplish the same purpose that was accomplished erroneously." Id. at 125 (quoting

Cannon, 151 S.W.2d at 475). Conversely, because a favorable ruling on the debtor's

pending motions would have foreclosed the entry of a default judgment, the default

judgment was necessarily set aside on appeal, and the cause remanded for consideration of

the debtor's pending motions. Id. at 128.

That relief is not sought by Time Warner, and would not be appropriate even had it

been. When Time Warner filed its motion to intervene as of right pursuant to Rule

52.12(a), Time Warner's third-party petition remained pending, and Time Warner was

already a party to the action. As a result, Time Warner received electronic notice of the

10
motion to confirm.6 Time Warner's notice of its potential intervention, filed the day after

it received electronic notice of the motion to confirm, alleged that Time Warner believed

it had been improper from Howe and Heartland to participate in a "secret arbitration" while

Time Warner was a party to Howe's action.

Rule 52.12(a) permits intervention as a matter of right "in an action." (Emphasis

added.) One of the conditions which must be established to secure intervention as a matter

of right is that the interests of the proposed intervenor are not "adequately represented by

existing parties." Rule 52.12(a)(2) (emphasis added). Time Warner was an "existing

party" in Howe's "action" when it filed a motion to intervene. Because it was an existing

party to the action, Time Warner appeared at the hearing on the motion to confirm, and

argued against the motion to confirm, all while confirming to the trial court that it was still

a party to the action in light of the third-party petition. As a result, the motion to intervene

was a perplexing legal nullity. Regardless the ruling on the motion to intervene, had there

been one, Time Warner's status as a party in the action would have been unaffected.7 Under

these unusual circumstances, we would not have held, even had Time Warner asked us to,

that the trial court's failure to rule on the motion to intervene before entering Judgment

requires the Judgment's reversal and remand to consider the pending motion. Stated

another way, the trial court did not err by effectively ignoring Time Warner's superfluous

6
This is confirmed by Case.Net, which reflects that notice of the motion to confirm was electronically
served on all parties, including Time Warner and USIC.
7
Though we cannot say for sure, we believe it possible this fact explains the trial court's on-the-record
statement to the effect that it would rule on the motion to intervene only if it believed it necessary to do so.

11
motion to intervene as Time Warner was already in the case as a party when the motion

was filed.8

Time Warner is not aggrieved by the Judgment, and does not have standing to appeal

claiming error in the denial of its motion to intervene.

Point One is dismissed.

b. Time Warner does not have standing to assert its second point on appeal
because Time Warner is not aggrieved by the Judgment

Time Warner's second point on appeal claims the trial court's Judgment erroneously

granted Howe's motion to confirm. Pursuant to section 512.020, we do not have

jurisdiction to determine this point on appeal because Time Warner is not aggrieved by,

and has no standing to appeal, the Judgment.

"A party cannot assert trial court error for actions by which it was not aggrieved."

Charnisky v. Chrismer, 185 S.W.3d 699, 702 (Mo. App. E.D. 2006). A party "is aggrieved

when the judgment operates prejudicially and directly on his personal or property rights or

interests and such effect is immediate and not merely a possible remote consequence."

Ameristar Jet Charter, Inc. v. Dodson Int'l Parts, Inc., 155 S.W.3d 50, 57 (Mo. banc 2005)

(quoting Shelter Mut. Ins. Co. v. Briggs, 793 S.W.2d 862, 863 (Mo. banc 1990)). Thus,

8
Had Time Warner not been a party to the action when it filed its motion to intervene and when the
Judgment was entered, then the trial court's failure to rule on the motion to intervene might have affected the finality
of the Judgment by failing to resolve all claims as to all parties. See ConocoPhillips, 493 S.W.3d at 402 (holding
that an applicant who files a motion to intervene as a matter of right is a "party" to the final judgment even though
the motion to intervene is overruled, and the applicant neither has nor is subject to a pending claim). We need not
decide, however, whether a judgment, entered without ruling a pending motion to intervene filed by a non-party
applicant, lacks finality because the judgment fails to resolve all claims as to all "parties." Time Warner was already
a party to the action at all times relevant, and as a result, the trial court's failure to rule on the motion to intervene
was immaterial to determining finality of the Judgment. As it happens, for reasons we discuss infra, the Judgment is
not final for purposes of appeal, though for reasons unrelated to the trial court's failure to rule on Time Warner's
motion to intervene.

12
"[a]n appellant may not challenge portions of a judgment that resolve issues solely between

other parties and do not resolve the claims made by that appellant." Charnisky, 185 S.W.3d

at 702. In other words, a party to an action "may be aggrieved as to some issues but not to

others" addressed in a judgment. In re Marriage of Allen, 499 S.W.3d 735, 737 (Mo. App.

S.D. 2016) (quoting Harrell v. Mo. Dep't of Corr., 207 S.W.3d 690, 692 (Mo. App. W.D.

2006)).

The Judgment resolved Howe's claims against Heartland. The Judgment awarded

no relief to or against Time Warner. Time Warner concedes it is not liable to Howe or to

Heartland to pay the Judgment. Time Warner acknowledges that Howe and Heartland

"were free to arbitrate any disputes between them (or for that matter, [to] have Heartland

give . . . Howe a consent judgment)." [Appellant's Brief, p. 23] Time Warner nonetheless

alleges that Howe and Heartland had no right to arbitrate in a manner that impaired Time

Warner's rights. Time Warner alleges that Howe and Heartland may have agreed to limit

recovery of the arbitrator's award from funds interpleaded in a federal district court action.9

According to Time Warner, this alleged agreement (which is not documented in the

arbitrator's award) has the potential to implicate Time Warner's interest in the interpleaded

funds.

This alleged impact is remote at best and is an inadequate basis to confer standing

on Time Warner to appeal the Judgment as an aggrieved party. The interpleaded funds are

in the registry of a federal district court and remain subject to litigation in that court insofar

9
See supra note 3.

13
as their authorized disbursement. Though the Judgment may (or may not) permit Howe a

claim against the interpleaded funds, and though Time Warner may have an interest in the

resolution of that question given its alleged interest in the interpleaded funds, the possibility

of a future contest over entitlement to the interpleaded funds is remote and speculative.

The facts in Stockman v. Safe-Skin, Corp., 36 S.W.3d 447 (Mo. App. E.D. 2001),

are analogous. There, a decedent's estate sued several corporate defendants on a theory of

products liability. Id. at 448. The corporate defendants alleged that the suit was barred by

the statute of limitations. Id. The decedent's estate fired its lawyers and hired new lawyers,

and then asserted a legal malpractice claim in the same action against the former lawyers.

Id. The former lawyers participated in discovery to protect their own interests, and to assist

in defending the decedent's estate against the statute of limitations defense. Id. Ultimately,

the trial court granted the corporate defendants' motion for summary judgment based on

the statute of limitations. Id. The trial court designated the summary judgment ruling final

for purposes of appeal, and simultaneously dismissed the malpractice claims against the

former lawyers without prejudice. Id. at 449. The former lawyers filed an appeal

challenging the grant of summary judgment in favor of the corporate defendants. Id.

Though the former lawyers plainly had an interest in the question of the running of the

statute of limitations, particularly as the dismissed legal malpractice claim could be refiled,

the Eastern District concluded that the former lawyers were not aggrieved by the judgment

and had no standing to appeal. Id. at 449-50. The court concluded that "[t]he possibility

that the judgment may adversely impact [the former lawyers] at some unspecified point in

the future is insufficient to confer standing upon them in the present case." Id. at 449. The

14
court held that the former lawyers were "not directly or immediately prejudiced by" the

judgment from which the appeal was taken. Id. at 450. Specifically, the court noted that

the grant of summary judgment only disposed of the decedent's estate's claims against the

corporate defendants, and did not direct the former lawyers "to pay any money damages

nor did it determine that they were negligent in any manner." Id. As a result, the appeal

was dismissed. Id.

A similar result was reached in Charnisky. A city sought to annex an unincorporated

area and passed an ordinance to place the question on the ballot. 185 S.W.3d at 701. The

city believed only one person, Mr. Gittemeier, lived in the unincorporated area. Id. On

the day of the election, Mr. Kranzberg transferred his voter registration to an address within

the unincorporated area. Id. Mr. Kranzberg voted against annexation, though he used the

form of ballot meant for voters who resided in the city. Id. A different ballot was to be

used by those who resided in the unincorporated area. Id. The election produced one vote

against annexation from voters within the unincorporated area using the proper ballot (Mr.

Gittemeier's vote), and no votes in favor of annexation from voters within the

unincorporated area. Id. Mr. Charnisky, a registered voter in the city, challenged the

election and alleged Mr. Gittemeier was not qualified to vote in the unincorporated area.

Id. Mr. Kranzberg obtained leave to intervene and also filed an election contest. Id. He

alleged his vote against annexation should have been counted as a vote from those who

reside within the unincorporated area. Id. The trial court entered a judgment which found

that Mr. Gittemeier was not entitled to vote in the unincorporated area, and which ordered

a recount disregarding Mr. Gittemeier's ballot. Id. at 701-02. The judgment also found

15
that Mr. Kranzberg's failure to follow clear instructions, and to vote on the proper ballot,

was not an irregularity requiring a new election. Id. at 702. Mr. Kranzberg appealed the

judgment and challenged both of the trial court's findings. Id. The Eastern District of this

Court concluded that Mr. Kranzberg "was logically and legally aggrieved only by that

portion of the trial court's judgment that denied his claim to have his own ballot counted."

Id. at 703. The court concluded that Mr. Kranzberg had "no standing on appeal to challenge

that part of the trial court's judgment granting Mr. Charnisky relief on his own claims

relating to Mr. Gittemeier's ballot." Id.

Similarly, Time Warner is not logically, legally, immediately, or directly aggrieved

by the Judgment.10 Time Warner has no standing to appeal the Judgment's confirmation

of an arbitrator's award which resolved claims asserted by Howe against Heartland and as

to which Time Warner has no legal responsibility.

Point Two is dismissed.

10
It is no coincidence that many of the facts and circumstances that are relevant to determining that Time
Warner is not aggrieved by the Judgment are the same facts and circumstances that would have been relevant,
assuming Time Warner had been a non-party when it filed its motion to intervene, to determining whether Time
Warner could establish that it "claims an interest relating to the property or transaction that is the subject of the
action and [it] is so situated that the disposition of the action may as a practical matter impair or impede [its] ability
to protect that interest." Rule 52.12(a).
Here, even if Time Warner had been a non-party when it filed its motion to intervene, and even if the
motion to intervene had been denied, Time Warner would only have been aggrieved by the Judgment insofar as the
Judgment incorporated the denial of the motion to intervene. See ConocoPhillips, 493 S.W.3d at 401. For the same
reasons we discuss in this opinion, Time Warner would not have been aggrieved by the Judgment's grant of the
motion to confirm the arbitrator's award unless denial of the motion to intervene was reversed on appeal. See
Charnisky, 185 S.W.3d at 702 (holding that "[a]n appellant may not challenge portions of a judgment that resolve
issues solely between other parties and do not resolve the claims made by that appellant"). That result would have
been highly unlikely.

16
The Judgment is not final for purposes of appeal

Assuming a party is aggrieved and has standing to appeal, a party "may take his or

her appeal . . . from any . . . [f]inal judgment." Section 512.020(5). "A final judgment

necessarily incorporates all prior orders and judgments that adjudicated some--but fewer

than all--of the claims and the rights and liabilities of all the parties." ConocoPhillips, 493

S.W.3d at 401. If a judgment disposes of fewer than all claims of all parties, the judgment

is not final. Dougherty v. Mo. Dep't of Soc. Servs., 585 S.W.3d 355, 359 (Mo. App. W.D.

2019) (quoting Steelhead Townhomes, L.L.C. v. Clearwater 2008 Note Program, LLC, 504

S.W.3d 804, 806 (Mo. App. W.D. 2016)); see also Rule 74.01(b). If a judgment is not

final, section 512.020(5) cannot be relied on as the statutory basis to appeal. Wilson v. City

of St. Louis, No. SC97544, 2020 WL 203137, at *4 (Mo. banc Jan. 14, 2020).

Howe's petition named Heartland and Time Warner as defendants. Time Warner

filed a third-party petition against USIC that presumably sought indemnity for any relief

awarded Howe against Time Warner.11 Howe resolved its claims against Time Warner by

dismissing Time Warner with prejudice. Despite the assumed interdependent nature of

Howe's claims against Time Warner and Time Warner's third-party claims against USIC,

Howe's dismissal of Time Warner did not operate to automatically dismiss Time Warner's

third-party petition. See, e.g., Rule 67.05 ("No dismissal, voluntary or involuntary, of a

plaintiff's civil action shall operate to dismiss a previously filed counterclaim or cross-

claim."). After dismissing Time Warner, Howe resolved its claims against Heartland by

11
Time Warner's third-party petition against USIC is not a part of the record on appeal. However, Rule
52.11(a) only authorizes a defending party to file a third-party petition against "a person not a party to the action
who is or may be liable to the defending party for all or part of the plaintiff's claim against the defending party."

17
securing an arbitrator's award that it then sought to reduce to a judgment. At the time

Howe's motion to confirm the arbitrator's award was filed, Time Warner was still a party

to the action because the third-party petition against USIC remained pending. Time

Warner relied on this fact as a basis to contest the arbitration in the notice advising of

potential intervention filed the day after the motion to confirm was filed. During the

hearing on the motion to confirm, Time Warner acknowledged that the third-party petition

remained pending, and advised the court that it was "working on" dismissing USIC and its

third-party petition. Time Warner has not yet dismissed USIC and the third-party

petition.12 As a result, the Judgment does not resolve all claims as to all parties, and it is

not a final judgment from which an appeal can be taken pursuant to section 512.020(5).

See Whitehorn v. City of Poplar Bluff, 208 S.W.3d 930, 931-32 (Mo. App. S.D. 2006)

(dismissing an appeal from a judgment on a petition in replevin because the third-party

petition in interpleader had not yet been disposed); cf. Conrad v. Herndon, 572 S.W.2d

216, 218-20 (Mo. App. 1978) (dismissing an appeal from an interlocutory judgment

because, under the former Rule 81.06 [repealed effective January 1, 1988], a third-party

petition and a cross-claim that likely arose out of the "same transactions, occurrences or

subject matter" remained pending).

12
Neither Time Warner nor Howe brought the continued pendency of Time Warner's third-party petition to
this court's attention.

18
 The lack of a final judgment supports dismissal of Time Warner's appeal

independent of Time Warner's lack of standing to appeal. We have addressed both standing

and finality as bases for dismissal of this appeal in the interests of judicial economy.13

Conclusion

The appeal is dismissed.

__________________________________
Cynthia L. Martin, Judge

All concur

13
Because the Judgment is not final for purposes of appeal, this action remains subject to the trial court's
exercise of jurisdiction.

19