Saturday, October 24, 2009

Dismissal Without Prejudice: A Deadly Trap For the Unwary!

by W. Dudley McCarter1 and Christopher L. Kanzler2

Generally, a dismissal without prejudice is not a final judgment and, therefore, is not appealable. There are, however, exceptions to this general rule. For example, if the suit is dismissed by the court for failure to state a claim, the dismissal, even though without prejudice, may be a final adjudication. This article will discuss the difficulties for the trial practitioner that are created by this exception to the general rule.


I. General Principles

"A petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief."3 The trial court "shall freely grant leave to amend" a deficient pleading.4 The trial court "is not required sua sponte to grant leave to amend a deficient pleading" but, instead, a plaintiff must request leave to amend. If a "plaintiff fails to seek leave to amend, . . . the court may assume that he was satisfied with the pleading."5

"[A] party does not have an absolute right to amend pleadings. . . . The denial of an amendment is presumed correct and the burden is on the proponent to show that the trial court palpably and obviously abused its discretion."6 "The purpose for liberally permitting amendments is to permit matters to be pleaded, [that] were overlooked or unknown when the action was originally filed."7

The decision to dismiss a petition with or without prejudice rests within the sound discretion of the trial court.8 When the trial court does not specify its reasons for dismissing a suit, the appellate court will assume that the trial court acted for one of the reasons set forth in the motion to dismiss.9

II. Is a Dismissal Without Prejudice a Final Judgment That Must Be Appealed? Generally, the Answer is "No"

A. Generally, Dismissal Without Prejudice is Not a Final Appealable Judgment

Supreme Court Rule 67.03 states: "Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify." The general rule is . . . that "a dismissal without prejudice is not a final judgment," and, therefore, cannot be appealed.10 "In a case of a dismissal without prejudice, a plaintiff typically can cure the dismissal by filing another suit in the same court; hence, a dismissal without prejudice is not a final judgment for purposes of appeal. In most instances, a dismissal without prejudice does not constitute an adjudication on the merits."11

Further, when a suit is dismissed voluntarily, without prejudice, the trial court has not ruled on the merits of the "plaintiff's cause of action" and the dismissal does not "preclude [the plaintiff] from refiling [the suit] in the same forum." Thus, a dismissal under these circumstances "is not a final judgment from which an appeal may be taken."12 For example, in Doe v. Visionaire Corp., plaintiffs filed their petition using pseudonyms because of their fear of embarrassment and humiliation.13 Defendants filed a motion to dismiss the petition for failure to include plaintiffs' real name in the petition pursuant to Rule 55.02. The trial court granted the motion to dismiss, without prejudice, and ordered plaintiffs to file an amended petition using their real names. The plaintiffs chose not to amend their petition, and instead appealed the trial court's order of dismissal without prejudice.

The Court of Appeals, sua sponte, dismissed the appeal for lack of jurisdiction. The court held that the general rule is that a dismissal without prejudice is not a final appealable judgment; the exception to this general rule (discussed below) did not apply because plaintiffs could refile the same action in the same forum; they just had to use their real names.

B. If a Judgment Does Not Dispose of All Issues and All Parties, and is Not Certified Final for Purposes of Appeal, it is Not a Final, Appealable Judgment

As held in State ex rel. Sullivan v. Roberts,14 "[a]n appealable judgment is one [that] disposes of all issues in the case. . . . If multiple claims are asserted and the court does not adjudicate all claims, the judgment is not final. The issues resolved by the trial court are appealable only if the trial court makes an express determination that there is no just reason for delay of the appeal."15 In Sullivan, the Court of Appeals was without jurisdiction to determine the appeal of the trial court's dismissal of plaintiff's petition because the judgment did not dispose of pending counter-claims, and failed to state that no just reason for delay of the appeal existed.16

"For a judgment to be final and appealable it must dispose of all parties and all issues in the case and leave nothing for future determination."17 In Warren v. Mercantile Bank of St. Louis,18 the trial court granted Mercantile Bank's motion for summary judgment as to all but one count. Later, the trial court granted the bank's motion to dismiss or, in the alternative, motion to make more definite and certain on the only remaining count, and ordered appellants to file a third amended petition as to this remaining count.

Citing Rule 55.27, the Warren court held that "if a motion for a more definite statement 'is granted and the order of the court is not obeyed within ten days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.'" The Court of Appeals held that even though appellant failed to file a third amended petition, the count was "still pending until stricken or dismissed by the trial court." Therefore, all issues and all claims had not been disposed of and the Court of Appeals had no jurisdiction over the appeal because there was no entry of a final judgment.19

C. If an Order or Ruling is Not Denominated "Judgment" and Signed by a Judge, it is Not a Final, Appealable Judgment


A prerequisite to appellate review is that there be a final judgment. If the order of the trial court was not a final judgment, [the appellate] Court lacks jurisdiction and the appeal must be dismissed. . . .20 The requirement that a trial court must "denominate" its final ruling as a "judgment" is not a mere formality. . . .21 [T]he written judgment must be signed by the judge and must be designated "judgment." Whether . . . "judgment" appears . . . at the top of the signed writing, [or] within the body of the writing," or in the docket sheet, it must be clear from the writing that the document or entry is being "called" a "judgment" by the trial court [in order to be appealable].22

III. Exception to General Rule: Involuntary Dismissal, Even Without Prejudice, May be a Final Adjudication of Claims

Under the general rule, a dismissal without prejudice is not a final judgment and, therefore, is not appealable. There are, however, clear exceptions to this rule. A dismissal without prejudice may operate to preclude the party from bringing another action for the same cause and may be res judicata of what the judgment actually decided. An appeal from such a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum.23

The fact that a judgment is expressly denominated "without prejudice," or is determined to be "without prejudice" under Supreme Court Rule 67.03, does not end the analysis of whether the judgment is final for purposes of appeal as an exception to the general rule.24 Instead, it is necessary to determine whether the judgment amounts "to a mere dismissal of the petition, or [whether it] was . . . a dismissal of the action itself."25
A. Dismissal Without Prejudice for Failure to State a Claim is Final Judgment if Plaintiff Elects Not to Amend and, Instead, Stands on the Petition

Generally, a dismissal without prejudice of a petition for failure to state a claim, "does not preclude a plaintiff from reasserting the claim on new factual allegations."26 This is because


determination has [not] been made that [the] plaintiff has no cause of action and the claim itself has not been dismissed. The rule is consistent with [Supreme Court] Rule 67.01 which permits a party to bring another civil action for the same cause that has been dismissed without prejudice unless the civil action is otherwise barred.27

However, as discussed below, Supreme Court "Rule 67.01 does not . . . permit the refiling of a petition previously determined not to state a claim" because of the preclusive effect of res judicata.
"[A] dismissal without prejudice may preclude the party from refiling the action for the same cause and may be res judicata of what the judgment actually decided. For example, when a petition is dismissed without prejudice for failure to state a claim and the party elects not to plead further, this amounts to a determination that the plaintiff has no cause of action."28

In Mahoney v. Doerhoff Surgical Services, the Supreme Court stated: "A dismissal without prejudice may nevertheless operate to preclude the party from bringing another action for the same cause, and may nevertheless be res judicata of what the judgment actually decided."29

The Court went on to state that:


The dismissal without prejudice for failure of the petition to state a claim, when the party elects not to plead further, amounts to a determination that the plaintiff has no action. In such a case, the judgment of the dismissal -- albeit without prejudice -- amounts to an adjudication on the merits and may be appealed. (emphasis added).30

The Court explained that this is an exception to the general rule set forth in Rule 67.03, and "serves to preserve to a plaintiff rights that otherwise would be lost from a dismissal, which, although without prejudice, becomes res judicata of what that judgment actually decides."31
B. When a Prior Suit is Involuntarily Dismissed by the Court, Without Prejudice, on the Defendant's Motion for Failure to State a Claim, Can the Plaintiff File a New Suit on the Same Cause of Action? No, According to Bachman v. Bachman

In Bachman v. Bachman,32 plaintiff filed a malicious prosecution, "abuse of process, invasion of privacy, and civil conspiracy" action against the defendants. "Defendants filed separate motions to dismiss" for failure to "state a claim upon which relief could be granted." The trial court sustained those motions and granted plaintiff 30 days to file an amended petition. Plaintiff filed an amended petition and defendants again filed motions to dismiss. The trial court again sustained the defendants' motions and entered a judgment dismissing the suit without prejudice. Plaintiff did not appeal, but several months later filed a new case with a petition that was nearly identical to the amended petition dismissed in the prior action. Defendants again filed motions to dismiss, contending that the second suit was barred by res judicata. The trial court agreed, sustained defendants' motions to dismiss the second suit, and the Court of Appeals affirmed.

"The dismissal of a petition for failure to state a claim, without prejudice, does not preclude a plaintiff from reasserting the claim on new factual allegations. This is because no determination has been made that plaintiff has no cause of action and the claim itself has not been dismissed."33 "The dismissal without prejudice for failure to state a claim [does, however, prevent] a plaintiff from refiling the action in its original form." "[A] dismissal without prejudice may be 'res judicata' of what the judgment actually decided." In Bachman, the court dismissed the first suit without prejudice on the grounds that the allegations did not state a claim for relief. Because the petition in the second action was, in all material respects, virtually identical to the petition that was previously dismissed in the first action for failure to state a claim, the trial court did not err in dismissing the second action on the grounds that it was barred by res judicata.34

Supreme Court "Rule 67.01 does not . . . permit [the] refiling of a petition previously determined not to state a claim. The preclusive effect of direct estoppel explains why a plaintiff may appeal the dismissal of a petition without prejudice if the plaintiff has elected to stand on the dismissed petition and not to plead further. In that situation, the dismissal is considered a final judgment for purposes of appeal."35

"The granting of a motion to dismiss for failure to state a claim is a final judgment on the merits sufficient to raise the defense of res judicata in a later proceeding."36 "[I]t is immaterial that the wording of the counts has been changed [in a subsequently filed petition] in an apparent attempt to correct the defects in the original pleadings."37 "[T]here is no requirement that the trial judge sua sponte grant leave to amend a deficient pleading."38 In short, where the judgment is denominated without prejudice, but is an involuntary dismissal for failure to state a claim, the judgment is a determination of the merits of the action, not just the petition. An involuntary dismissal on the grounds of failure to state a claim is an exception to the general rule that a dismissal without prejudice is not a final, appealable judgment.

C. Involuntary Dismissal Without Prejudice, on Other Grounds, May Also be a Final, Appealable Judgment

In Mahoney v. Doerhoff Surgical Services,39 the trial court dismissed the plaintiff's medical malpractice suit on the grounds that the plaintiff failed to comply with § 538.255, RSMo, requiring that plaintiff file an affidavit confirming receipt of a health care provider's written opinion of merit regarding the claim. The defendant challenged appellate court jurisdiction on the grounds that the dismissal was without prejudice and, therefore, it was not a final, appealable judgment. The Supreme Court held that the judgment was final and appealable even though it was a dismissal without prejudice.

The dismissal for failure to provide the health care affidavit was a dismissal of the action and not merely the petition; it was a judgment that the action may not continue. When the effect of the order is to dismiss the action and not merely the pleading, then the judgment is final. "The dismissal without prejudice for failure of the petition to state a claim, when the party elects not to plead further, amounts to a determination that the plaintiff has no action. In such a case, the judgment of dismissal -- albeit without prejudice -- amounts to an adjudication on the merits and may be appealed.40 Plaintiff did not seek an order for an extension of time to produce the required affidavit, but stood on his petition. It would be futile to put plaintiff to the precondition of filing a new petition.

The trial court granted the defendant's motion to dismiss for lack of personal jurisdiction and dismissed the case, without prejudice, in Chromalloy American v. Elyria Foundry Co.41 Plaintiff appealed and the Supreme Court determined that it was a final and appealable judgment. While noting the general rule that a dismissal without prejudice is not an appealable judgment, the Court recognized that "[a]n appeal from such a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum. The trial court's dismissal had such a practical effect." "[A] dismissal without prejudice that a plaintiff may cure by filing another suit in the same court is not a final judgment from which an appeal may be taken." Here, however, the plaintiff had no such option. To refile the case "would be an exercise in futility. The trial court's dismissal had the effect of terminating [the plaintiff's] claim in the form in which it was cast." "By dismissing the petition on the basis of personal jurisdiction, the trial court implicitly rejected those factual allegations [forming] the basis for [plaintiff's] claim of jurisdiction. This effectively precluded the plaintiff from refiling its claim in Missouri."42

In Carothers v. Carothers,43 the plaintiff filed an action against her former husband for violation of the Missouri Wire Tap Act, §§ 542.400, et seq., RSMo. The trial court granted the defendant's motion to dismiss for failure to state a claim, finding that the husband's use of conversations recorded on a telephone answering machine did not constitute an interception of the communication and that the answering machine was not an electronic device as defined in the act. The trial court's judgment dismissing the plaintiff's petition was silent as to whether the dismissal was with or without prejudice. Thus, under Rule 67.03, the judgment was considered a dismissal without prejudice.

The Court of Appeals found that even though the dismissal was without prejudice, it was a final judgment and, therefore, appealable under the exception to the general rule. Specifically, since the trial "court held that plaintiff's claims were not covered by the statute, the judgment had the practical effect of terminating the litigation brought under the statute." The Court of Appeals reasoned that "[i]t would be futile for plaintiff to reform her petition and re-offer her assertion that defendant violated the Missouri wiretapping statute in the same court. Such facts render the judgment final."44

Similarly, in WEA Crestwood Plaza v. Flamers Charburgers,45 the trial court dismissed a landlord's suit against a tenant without specifying whether the dismissal was with or without prejudice. On the landlord's appeal, the appellate court first addressed, sua sponte, its jurisdiction and found that jurisdiction existed. "Although normally under Rule 67.03 an involuntary dismissal is deemed to be without prejudice unless the court specifies otherwise in its order of dismissal, a party can appeal from a dismissal without prejudice if the dismissal has the practical effect of terminating the action in the form cast."46 "A dismissal 'without prejudice' for failure to state a claim effectively bars a plaintiff from refiling the action in its original form."47 "Since the trial court granted the tenant's motion to dismiss, which asserted that the landlord failed to state a claim upon which relief [could] be granted, the dismissal [had] the practical effect of terminating the Landlord's action."48

IV. Dismissal Under Rule 67.01 May Have Res Judicata Effect

The doctrine of res judicata "bars a plaintiff from bringing suit if the same cause of action has already been dismissed with prejudice."49


The doctrine of res judicata precludes parties from contesting matters that the parties have had a full and fair opportunity to litigate. The doctrine applies not only to points and issues upon which the court was required by the pleadings and proof to form an opinion and pronounce judgment, but to every point properly belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.50

Res judicata "applies not only to points and issues upon which . . . [a judgment was rendered], but [also] to every point belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time" of the litigation.51 A basic principle of res judicata is that a party is barred from bringing the same cause of action, and that a claim based on an alternative legal theory, but growing out of the same facts and filed against the same party, is considered the same cause of action.52
Missouri courts have held that res judicata principles are to be applied to dismissals under Rule 67.01, just as they are applied in cases decided under the common law doctrine itself -- even when the case was previously dismissed without prejudice and without reaching the merits.53

"[A] dismissal with prejudice, assuming that all claims are adjudicated and all parties are accounted for, acts as a bar to any further litigation of the claims therein involved." A dismissal with prejudice finally decides that litigation and is appealable.54

V. Conclusion

In short, a dismissal without prejudice may, under the exceptions to the general rule, preclude a party from bringing another action for the same cause and may be res judicata of what the judgment actually decided. Although it is difficult to ascertain a bright line test for when a dismissal without prejudice has this effect, if the dismissal was voluntary or was an involuntary dismissal for failure to prosecute, the dismissal is not a final judgment. On the other hand, if the dismissal, for example, was involuntary, is denominated a judgment, and is a dismissal for failure to state a claim, it may constitute an adjudication on the merits and is a final judgment even though it may be denominated without prejudice. Thus, trial attorneys cannot always rely solely on the words without prejudice in a judgment to determine whether the judgment is appealable.

Endnotes

1 Mr. McCarter is a principal in the St. Louis firm of Behr, McCarter & Potter, P.C. He received his J.D. in 1975 from the University of Missouri-Columbia. He served as president of The Missouri Bar in 1993-1994.

2 Mr. Kanzler is a senior associate with the firm of Behr, McCarter & Potter, P.C. He received his J.D. in 1994 from St. Louis University.

3 Balke v. Ream, 983 S.W.2d 579 (Mo. App. W.D. 1998).

4 Jordan v. City of Kansas City, 972 S.W.2d 319, 322 (Mo. App. W.D. 1998); Supreme Court Rule 67.06.

5 Id. at 322-23.

6 Jaron Corp. v. Pellet, 866 S.W.2d 897, 902 (Mo. App. S.D.1993).

7 Rhodus v. Wheeler, 927 S.W.2d 433 (Mo. App. W.D. 1996), citing Downey v. Mitchell, 835 S.W.2d 554, 556 (Mo. App. E.D. 1992).

8 Downey v. Mitchell, 835 S.W.2d 554, 556 (Mo. App. E.D. 1992).

9 Johnston v. Norrell Health Care, Inc., 835 S.W.2d 565, 567 (Mo. App. E.D. 1992). See also Wenthe v. Willis Corroon Corp., 932 S.W.2d 791, 793 (Mo. App. E.D. 1996) (where the trial court dismisses an action without stating the grounds, the Court of Appeals will "presume the dismissal was based upon one of the grounds" raised in the defendant's motion to dismiss and will affirm if any such grounds can sustain the trial court's dismissal); Shaver v. Shaver, 913 S.W.2d 443, 444 (Mo. App. E.D. 1996).

10 Waltrip v. Davis, 899 S.W.2d 147 (Mo. App. E.D. 1995).

11 Vernor v. Missouri Board of Probation and Parole, 934 S.W.2d 13, 14 (Mo. App. W.D. 1996).

12 A. L. v. Peeler, 969 S.W.2d 262 (Mo. App. E.D. 1998).

13 13 S.W.3d 674 (Mo. App. E.D. 2000).

14 948 S.W.2d 709 (Mo. App. E.D. 1997).

15 Id. See also Supreme Court Rule 74.01(b).

16 Id. See also Curators of the University of Missouri v. St. Charles County, 985 S.W.2d 810 (Mo. App. E.D. 1998) (judgment dismissing one count of counterclaim not final until second count was voluntarily dismissed).

17 Warren v. Mercantile Bank of St. Louis, 976 S.W.2d 630 (Mo. App. E.D. 1998), quoting Petersen v. Farberman, 698 S.W.2d 554 (Mo. App. E.D. 1985).

18 976 S.W.2d 630 (Mo. App. E.D. 1998).

19 Id. at 632.

20 City of St. Louis v. Hughes, 950 S.W.2d 850, 852 (Mo. 1997), quoting Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995) ("[a]n appealable judgment disposes of all issues in the case, leaving nothing for future determination").

21 Id. at 853. See also A.L. v. Peeler, 969 S.W.2d 262 (Mo. App. E.D. 1998) (memorandum and orders signed by judge not final "judgment").

22 Id.

23 Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc. 1997).

24 See Carothers v. Carothers, 977 S.W.2d 287 (Mo. App. W.D. 1998) citing Chromalloy, 955 S.W.2d at 3.

25 Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985), citing White v. Sievers, 221 S.W.2d 118, 122 (Mo. banc 1949).

26 See Bachman v. Bachman, 997 S.W.2d 23, 25 (Mo. App. E.D. 1999), citing Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503 (Mo. banc 1991); State ex rel. State of Ill. v. Jones, 920 S.W.2d 116 (Mo. App. E.D. 1996).

27 Id.

28 State ex rel. State of Ill., 920 S.W.2d at 117; Mahoney, 807 S.W.2d at 506. See also Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962) (dismissal without prejudice for failure to state a claim upon which relief can be granted was appealable where plaintiff chose to stand on that petition); Meadows v. Jeffreys, 929 S.W.2d 746 (Mo. App. S.D. 1996) ("[a] dismissal without prejudice for failure to state a claim upon which relief can be granted . . . [can] be tantamount to a determination that a plaintiff has no cause of action, and can result in a final, appealable judgment").

29 807 S.W.2d at 506.

30 Id., citing Hasemeier v. Smith, 361 S.W.2d 697, 699 (Mo. banc 1962).

31 Id. citing Healy v. Atchison, Topeka & Santa Fe R.R., 287 S.W.2d 813, 815 (Mo. 1956). In Molasky v. Brown, 720 S.W.2d 412, 415 (Mo. App. W.D. 1986), the Court of Appeals for the Western District expressly found that the trial court's dismissal of plaintiff's petition was not on the grounds of failure to state a claim. Further, the court held that the underlying dismissal was not a final, appealable judgment because it did not dispose of all claims and all parties. Also, see Helms v. American States Ins. Co., 886 S.W.2d 220 (Mo. App. W.D. 1994) (dismissal without prejudice of an insurance petition seeking uninsured motorist benefits was a dismissal of petition and not dismissal of action itself and thus there was no final judgment); Ampleman v. Schweiss, 969 S.W.2d 862 (Mo. App. E.D. 1998) (court held that dismissed action on the grounds of failure to state a claim and sovereign immunity was without prejudice and not a final appealable order).

32 997 S.W.2d 23 (Mo. App. E.D. 1999).

33 Id at 25, citing Mahoney, 807 S.W.2d at 506, and Jones, 920 S.W.2d at 117.

34 Id. at 26.

35 Id., citing Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985), Mahoney, 807 S.W.2d at 506 and Jones, 920 S.W.2d at 117.

36 U.S. Fidelity v. Commercial Union, 943 S.W.2d 640, 642 (Mo. banc 1997); Greening v. Klamen, 719 S.W.2d 904, 906 (Mo. App. E.D. 1986).

37 Greening, 719 S.W.2d at 906.

38 Id.

39 807 S.W.2d 503 (Mo. banc 1991).

40 Id. at 506, citing Hasemeier v. Smith, 361 S.W.2d, 697, 699 (Mo. banc 1962) and Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985).

41 955 S.W.2d 1 (Mo. banc 1997).

42 955 S.W.2d at 3.

43 977 S.W.2d 287 (Mo. App. W.D. 1998).

44 Id. at 289, citing Chromalloy Am. Corp. v. Elyria Foundary, 955 S.W.2d 1, 3 (Mo. banc 1997). Another example of a dismissal without prejudice that constitutes a final, appealable order includes a dismissal based on lack of jurisdiction. Siampos v. Blue Cross and Blue Shield of Missouri, 870 S.W.2d 499 (Mo. App. E.D. 1994). See also Stonebarger v. Emerson Electric Co., 668 S.W.2d 187 (Mo. App. E.D. 1984) (dismissal "without prejudice for lack of subject matter jurisdiction" was appealable); Siefert v. Leonhardt, 975 S.W.2d 489 (Mo. App. E.D. 1998) (dismissal without prejudice for lack of standing has res judicata effects and is appealable); State ex rel. State of Ill. v. Jones, 920 S.W.2d 116 (Mo. App. E.D. 1996) (dismissal based on failure to join a party was "an adjudication on the merits" that could be appealed, even though dismissal was without prejudice); City of Chesterfield v. DeShetler Homes, Inc., 938 S.W.2d 671, 673 (Mo. App. E.D. 1997) ("[A]n appeal from . . . a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum."); Davis v. Baylor Univ., 976 S.W.2d 5 (Mo. App. W.D. 1998) (dismissal on grounds that plaintiff had not demonstrated sufficient minimum contacts with Missouri to subject defendant to personal jurisdiction effectively precludes plaintiff from refiling his claim in Missouri and, therefore, it is an appealable judgment).

45 ___ S.W.3d ___ (Mo. App. E.D. 2000).

46 Id., citing Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 125 (Mo. App. E.D. 1999).

47 Id., citing Bachman v. Bachman, 997 S.W.2d 23, 25 (Mo. App. E.D. 1999).

48 Id.

49 Williams v. Rape, 990 S.W.2d 55 (Mo. App. W.D. 1999).

50 U.S. Fidelity, 943 S.W.2d at 641, citing State ex rel. Trotter v. Cirtin, 941 S.W.2d 498, 499 (Mo. banc. 1997).

51 King General Contractors, Inc. v. Reorganized Church, 821 S.W.2d 495 (Mo. banc 1991).

52 Siesta Manor, Inc. v. Community Federal, 716 S.W.2d 835 (Mo. App. E.D. 1986). See King General Contractors, Inc. v. Reorganized Church, 821 S.W.2d 495, 501 (Mo. banc 1991) (res judicata "applies not only to points and issues upon which the court was required by the pleadings and proof to form an opinion and pronounce judgment, but to every point properly belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time").

53 Vilsick v. Standard Insulations, Inc., 926 S.W.2d 499, 501 (Mo. App. E.D. 1996) (Rule 67.01 "extends res judicata principles to cases dismissed with prejudice and serves as a mechanism to terminate litigation").

54 Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985), citing Rule 67.03 and Lipton Realty, Inc. v. St. Louis Housing Authority, 655 S.W.2d 792, 793 (Mo. App. E.D. 1983) (a dismissal with prejudice acts as a bar to any further litigation of the claims involved, assuming that all claims are adjudicated and all parties are accounted for. A dismissal with prejudice finally decides that litigation and is appealable).


JOURNAL OF THE MISSOURI BAR
Volume 56 - No. 4 - July-August 2000

http://www.mobar.org/journal/2000/julaug/mccarter.htm

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