We agree. With regard to the fourth factor listed above, appellant's counts for aiding and abetting breach of fiduciary duty and commission of acts of oppression, for declaratory judgment against Bank, for conspiracy to defraud, and for conspiracy to transfer in fraud of creditors all derive factually from the breach of fiduciary duty claims, fraud claim, and transfer in fraud of creditors claim that remain pending against the Nooney defendants. In other words, as demonstrated by the complex factual history set forth above, the factual underpinnings of these claims against Bank, dismissed by the trial court, are "inextricably intertwined" with those of the claims still pending in the trial court against the other Nooney defendants. See Saganis-Noonan v. Koenig, 857 S.W.2d 499, 501 (Mo.App.E.D. 1993). "A similarity of factual issues weighs against certifying dismissed claims for appeal."
In re Estate of Caldwell, 766 S.W.2d 464, 466 (Mo.App. 1989). The Eastern District has said that a trial court should specifically articulate why it finds "no just reason for delay," and absent such explanation, appellate review should be de novo with no deference. Saganis-Noonan v. Koenig, 857 S.W.2d 499, 500-01 (Mo.App. 1993). That said, we would dismiss the appeal under either standard.
The Eastern District first adopted the four-factor "test," utilized by Herod, in Jackson v. Christian Salveson Holdings, Inc., 914 S.W.2d 878, 883 (Mo.App. 1996). The sources cited by Jackson for the four-factor test were the Eastern District's earlier case of Saganis-Noonan v. Koenig, 857 S.W.2d 499, 501 (Mo.App. 1993), and the United States Court of Appeals for the First Circuit's case of Spiegelv. Trustees of Tufts College, 843 F.2d 38 (1st Cir. 1988). Jackson, 914 S.W.2d at 883.
Id. Thus, if the order disposed of "one claim for relief," the order is a final judgment and this Court has jurisdiction. Saganis-Noonan v. Koenig, 857 S.W.2d 499, 500[1] (Mo. App.E.D. 1993). Conversely, if the order merely disposed of a remedy, it is not a final judgment and this Court lacks jurisdiction to entertain the appeal. Id.
Id. at 484-85. Although a trial court is given wide latitude in determining whether a partial summary judgment should be certified under Rule 74.01(b), where the circumstances of the case and the judgment entered are wholly inconsistent with a finding of "no just reason for delay," a finding to that effect by a trial court is an abuse of discretion. Saganis-Noonan v. Koenig, 857 S.W.2d 499, 501 (Mo.App.E.D. 1993) ( citing Committee for Educational Equality v. State, 878 S.W.2d 446, 452-53 (Mo. banc 1994)). In deciding whether the certification of a partial judgment was proper and whether there was no just reason for delay, courts apply a four-factor test: (1) whether the action remains pending in the trial court as to all parties; (2) whether similar relief can be awarded in each separate count; (3) whether determination of the claims pending in the trial court would moot the claim being appealed; and (4) whether the factual underpinnings of all the claims are intertwined. Saganis-Noonan, 857 S.W.2d at 501; Lynch v. Lynch, 966 S.W.2d 345, 347 (Mo.App.E.D. 1998).
Although a trial court is given wide latitude in determining whether a partial judgment should be certified for appeal under Rule 74.01(b), "where the circumstances of the case and the judgment entered are wholly inconsistent with a finding of `no just reason for delay,' a finding to that effect by a trial court is an abuse of discretion."Committee for Educ. Equality v. State, 878 S.W.2d 446, 453 (Mo.banc 1994). This Court has previously noted Federal Rule of Civil Procedure 54(b), from which our Rule 74.01(b) was derived, requires trial courts to include the reasons for finding "no just reason for delay," and where such findings are not given, the trial court's decision is reviewed without deference.Saganis-Noonan v. Koenig, 857 S.W.2d 499, 500-501 (Mo. App. E.D. 1993); see, e.g., Spiegel v. Trustees of Tufts College, 843 F.2d 38, 44 (1st Cir. 1988). Although our rule does not mandate the trial court make express findings, we have previously expressed our approval of the practice.
A fundamental prohibition exists against piecemeal appeals. Saganis-Noonan v. Koenig, 857 S.W.2d 499, 501 (Mo.App.E.D. 1993). Rule 74.01 (b) is an exception to this rule, allowing the court to certify for appeal a judgment on fewer than all the claims or parties only upon a finding that there is "no just reason for delay."
The case is still pending before the trial court, which generally weighs against an early appeal. SeeSaganis-Noonan v. Koenig , 857 S.W.2d 499, 502 (Mo.App. E.D. 1993). However, because the three remaining factors weigh in favor of finding there was no just reason for delay, we hold the trial court did not abuse its discretion in certifying its judgment for appeal.
Columbia Mutual Insurance Co. v. Epstein, 200 S.W.3d 547, 550 (Mo.App.E.D.2006). A trial court should specifically articulate why it finds no just reason for delay, and absent such explanation, appellate review should be de novo with no deference. Saganis–Noonan v. Koenig, 857 S.W.2d 499, 500–01 (Mo.App.E.D.1993). Even when a trial court designates its judgment final as to particular claims, this designation is effective only when the order disposes of a “distinct judicial unit.”
The four factors are: 1) whether the action remains pending in the trial court as to all parties; 2) whether similar relief can be awarded in each separate count; 3) whether determination of the claims pending in the trial court would moot the claim being appealed; and 4) whether the factual underpinning of all the claims are intertwined. Id.; see Saganis-Noonan v. Koenig, 857 S.W.2d 499, 501 (Mo.App. E.D. 1993). When these factors are applied to the case at bar, it is apparent that the dismissal order was not properly certified for an immediate appeal.