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969 S.W.2d 862

Ampleman v. Schweiss

Missouri Court of Appeals

Decided June 2, 1998

Missouri Court of Appeals · decided 1998-06-02

Cited by 12 later decisions — most recently February 2013

12 state decisions

Key passage — most relied on by later courts

“[a] dismissal without prejudice may operate to preclude a party from bringing another action for the same cause and may be res judicata of what the judgment actually decided. An appeal from a dismissal without prejudice can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in a plaintiff's chosen forum. When the effect of the order is to dismiss a plaintiff's action and not merely the pleading, then the dismissal is appealable. If the dismissal was such that refiling of the petition at that time would have been a futile act, then the order of dismissal is appealable. Applying these exceptions, dismissals without prejudice have been held appealable in such cases where the dismissal was based on statutes of limitations, theories of estoppel, a plaintiff’s lack of standing, failure of the petition to state a claim where the plaintiff chose not to plead further.... A common factor of those dismissals without prejudice found appealable was that the plaintiffs could not maintain their actions in the court where the action was filed if the reason for the dismissal was proper.”

quoted by 1 later decision, including New England Carpenters Pension Fund v. Haffner

“Rule 67.03. Involuntary Dismissal — Effect Thereof A defendant may move for an involuntary dismissal of the civil action for lack of jurisdiction, for prematurity of action, for failure to substitute a party for a decedent and for such other dismissals as are allowed by these Rules 41 through 101. Defendant may also move for an involuntary dismissal of the civil action for failure of the plaintiff to prosecute or to comply with these Rules 41 through 101 or any order of the court. Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify.”

quoted by 1 later decision, including State Ex Rel. Dos Hombres-Independence Inc. v. Nixon

Relies on City of Chesterfield v. Deshetler Homes, Inc. · State Ex Rel. State of Ill. v. Jones · Vernor v. Missouri Board of Probation & Parole

Good law ✅— No negative treatment on recordhow we know

Decided 1998-06-02

View the full empirical analysis of this case →

RICHARD B. TEITELMAN, Judge.

¶1 John and Noel Ampleman (Appellants) appeal from a judgment in the Circuit Court of St. Louis County granting the motions of Respondents Janet Schweiss and George Ann Cooper to dismiss Counts I and II of Appellants’ petition alleging Respondents had committed an abuse of process and malicious prosecution. We dismiss the appeal for lack of a final, appealable judgment.

¶2 On June 17, 1996, Appellants filed a three-count petition in the Circuit Court of St. Louis County against Janet Schweiss, George Ann Cooper and the Missouri Division of Family Services (the Division). Count I was a claim for abuse of process, alleging that the Division, through its agents Schweiss and Cooper, “employed legal process, to-wit, child neglect charges,” against Appellants in a manner that was “technically correct, but for wrongful and malicious purpose and to attain an unjustifiable end or object.” Count II was a claim for malicious prosecution. Count III sought judicial review of the Division’s decision in “incident number 90322001” naming Appellants as suspected perpetrators of child neglect. Appellants sought to have their names expunged from the central registry of persons suspected of child abuse or neglect.

¶3 The Division, Schweiss and Cooper asked the circuit court, the Honorable John F. Kintz, to dismiss Appellants’ petition because it did not state a claim upon which relief could be granted and for lack of jurisdiction. In response to the motion, the circuit court dismissed Counts I and II against the Division based on the doctrine of sovereign immunity. It also granted Schweiss’s and Cooper’s motion to dismiss Counts I and II, stating: “Plaintiffs failed to allege adequately a perverted use of process or damages on Count I and failed to adequately plead commencement of an action or instigation of commencement of an action by these defendants.” The circuit court did not indicate whether the dismissal was with prejudice or without prejudice.

¶4 Rule 67.03 provides, in pertinent part, that “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. Waltrip v. Davis, 899 S.W.2d 147 (Mo.App. E.D.1995). “In a case of a dismissal without prejudice, a plain *864 tiff 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.” Vernor v. Missouri Bd. of Probation and Parole, 934 S.W.2d 13, 14 (Mo.App. W.D.1996). “In most instances, a dismissal without prejudice does not constitute an adjudication on the merits.” Id.

¶5 In certain instances, however, a dismissal without prejudice is a final appealable order. See, for example, Siampos v. Blue Cross and Blue Shield of Missouri, 870 S.W.2d 499 (Mo.App. E.D.1994) (dismissal based on lack' of jurisdiction appealable because effect of trial court’s order was to dismiss action, not just pleading); 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 child as party was an adjudication on the merits that could be appealed, even though dismissal was without prejudice). Additionally, a dismissal without prejudice for failure to state a claim upon which relief can be granted can be tantamount to a determination that the plaintiff has no cause of action and can result in a final, appealable judgment. Meadows v. Jeffreys, 929 S.W.2d 746 (Mo.App. S.D.1996). That is not the case here.

¶6 In City of Chesterfield v. Deshetler Homes, Inc., 938 S.W.2d 671, 673 (Mo.App. E.D.1997), this Court stated that “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 plaintiffs chosen forum.” In the case at bar, the circuit court’s dismissal did not have the “practical effect” of terminating Appellants’ litigation in form or forum. The dismissal does not preclude Appellants from bringing their cause of action to the circuit court again.

¶7 For the foregoing reasons, we dismiss Appellants’ appeal for lack of a final, appealable judgment.

CRAHAN, C.J., and CHARLES B. BLACKMAR, Senior Judge, concur.
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