Ampleman v. Schweiss, 73524

• Decision Date: 02 June 1998
• Docket Number: No. 73524,73524
• Citation: 969 S.W.2d 862
• Parties: John E. AMPLEMAN, et al., Appellants, v. Janet S. SCHWEISS, et al., Respondents.
• Court: Missouri Court of Appeals

Page 862

969 S.W.2d 862

John E. AMPLEMAN, et al., Appellants, v. Janet S. SCHWEISS, et al., Respondents.

No. 73524.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 2, 1998.

John E. Ampleman, pro se.

David Fondren, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John R. Munich, Asst. Atty. Gen., Jefferson City, Paul M. Rauschenbach, Asst. Atty. Gen., St. Louis, for respondents.

RICHARD B. TEITELMAN, Judge.

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.

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.

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.

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 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." Vernor v. Missouri Bd. of Probation and Parole, 934 S.W.2d 13, 14 (Mo.App. W.D.1996). "In most instances, a...