Andes v. Paden, Welch, Martin & Albano, P.C.

• Decision Date: 14 February 1995
• Docket Number: No. WD,WD
• Citation: 897 S.W.2d 19
• Court: Missouri Court of Appeals
• Parties: Josephine ANDES, Appellant, v. PADEN, WELCH, MARTIN & ALBANO, P.C., Robert L. Trout, Respondents. 49359.

Page 19

897 S.W.2d 19

Josephine ANDES, Appellant, v. PADEN, WELCH, MARTIN & ALBANO, P.C., Robert L. Trout, Respondents.

No. WD 49359.

Missouri Court of Appeals Western District.

Feb. 14, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 28, 1995.

Application to Transfer Denied

May 30, 1995.

David Greis, Kansas City, for appellant.

Michael W. Manners, Independence, David Holdsworth, Liberty, for respondents.

Before HANNA, P.J., and BRECKENRIDGE and SMART, JJ.

HANNA, Presiding Judge.

Plaintiff Josephine Andes filed a lawsuit for personal injuries arising out of the wiretapping of her home during 1984. The plaintiff claims the wiretap occurred while her divorce was pending against her former husband, John W. Frick. She originally named eight defendants in the suit, but voluntarily dismissed several of them from the case. Eventually, four defendants were dismissed by the trial judge on a motion for summary judgment. The Supreme Court affirmed the dismissal of those defendants in Andes v. Albano, 853 S.W.2d 936 (Mo. banc 1993). The case was remanded to the court for further disposition and, on March 14, 1994, the trial judge granted summary judgment in favor of the defendant law firm and defendant Trout. This appeal followed.

One issue raised in this appeal concerns the trial court's discretion in permitting the defendants to amend their answer to include the defenses of res judicata and the doctrine against claim splitting. Additionally, since the summary judgment was sustained upon the grounds of res judicata and claim splitting, the final two points address the propriety of that ruling.

In her first point, the plaintiff complains that the trial court abused its discretion in permitting the defendants to amend their answers to include the affirmative defenses of res judicata and the doctrine against claim splitting. Plaintiff claims that the "bare assertion, unsupported by affidavits or other evidence" that the defendants were unaware of the defense or that it was not available to them before the filing of their motions to amend was an insufficient basis for granting leave to amend.

The issue is not whether a party is able to substantiate the basis for its amendment. Rather the trial court, in allowing the amendment of a pleading, is granted discretion which will not be disturbed on appeal unless its decision is an obvious and palpable abuse of that discretion. Kenley v. J.E. Jones Constr. Co., 870 S.W.2d 494, 498 (Mo.App.1994). The plaintiff has failed to show any abuse of the trial court's discretion in allowing the amendment and has argued no prejudice resulting to the plaintiff as a result of the trial court's granting leave to file the amended pleading. Point denied.

The plaintiff next complains that the trial court erred in granting defendants' motion for summary judgment on the basis of the doctrine of res judicata. Defendants filed their original motions to dismiss in the trial court on June 16, 1989. There was no action pending against them at that time in federal court. On November 30, 1989, the plaintiff sued attorney Albano and others, including the two defendants involved in this appeal, in the United States District Court for the Western District of Missouri in Andes v. Frick, case number 89-1119-CV-W-6. It is agreed that the complaint in that case arose out of the same transaction or series of events alleged in the plaintiff's petition in the state court, i.e., the interception of plaintiff's telephone calls via an allegedly illegal wiretap, which occurred between April and December of 1984. In the case before the federal district court, the defendants filed motions to dismiss which Judge Sachs granted on March 28, 1990, on the grounds that suit had not been filed within the two year statute of limitations contained in the Federal Wiretap Act, 18 U.S.C. § 2520(e). The plaintiff appealed that order to the Eighth Circuit Court of Appeals and, on September 10, 1990, that court affirmed the trial judge's dismissal. Andes v. Frick, 915 F.2d 1579 (8th Cir.1990).

The issue in this case is whether the dismissal entered by Judge Sachs, based on the applicable statute of limitations, operates as res judicata to bar the subsequent state court action. ¹

Res judicata is based on the principle that a party should not be allowed to litigate a claim and then, after an adverse judgment, seek to relitigate the identical claim in a second proceeding. State ex rel. Shea v. Bossola, 827 S.W.2d 722, 723 (Mo.App.1992). The doctrine of res judicata provides:

[W]here two actions are on the same cause of action, the earlier judgment is conclusive not only as to matters actually determined in the prior action, but also as to other matters which could properly have been raised and determined therein.

Terre Du Lac Ass'n v. Terre Du Lac, Inc., 737 S.W.2d 206, 212 (Mo.App.1987).

In order for a judgment to operate as a bar to subsequent proceedings, the judgment must have been on the merits. Heagerty v. Hawkins, 173 S.W.2d 923, 926 (Mo.1943). Therefore, the threshold issue presented here is whether the federal dismissal based on the statute of limitations is a judgment "on the merits" for res judicata purposes. The plaintiff, citing the decisions of other state courts, argues that a statute of limitations dismissal is procedural rather than substantive in nature and, therefore, should not be considered "on the merits."

The defendants, on the other hand, argue that this question was answered by State ex rel. Agri-Trans Corp. v. Nolan, 756 S.W.2d 203 (Mo.App.1988). In Agri-Trans, the plaintiff originally filed a personal injury action against the defendant in the United States District Court for the Eastern District of Missouri, alleging jurisdiction based on diversity. Id. at 204. Plaintiff subsequently amended his petition to allege federal maritime jurisdiction based on a federal statute, 28 U.S.C. § 1333. Id. The trial court dismissed the action on the grounds that it was barred by the applicable three-year statute of limitations. Id. at 205. A week later, the plaintiff filed a petition in the Circuit Court of St. Louis County which contained the same allegations as his previous petition. Id. The appellate court held that the prior federal court dismissal operated as res judicata to bar the state case. Id. at 207. Although the court in Agri-Trans did not discuss whether the federal dismissal was "on the merits," the defendants argue that it was implicit in the court's ruling that a dismissal based on a federal statute of limitations is considered to be on the merits. However, the issue merits a more thorough analysis.

The cases which are cited by the plaintiff are decisions rendered by other state courts and involve the application of state law. However, as stated in Restatement (Second) of Judgments § 87 (1982), "Federal law determines the effects under the rules of res judicata of a judgment of a federal court." See also Cemer v. Marathon Oil Co., 583 F.2d 830, 831-32 (6th Cir.1978). Therefore, to determine the scope of res judicata in a particular jurisdiction, "it is essential to consult the relevant statutes and rules of court in that jurisdiction." Muza v. Missouri Dep't of Social Servs., 769 S.W.2d 168, 175 (Mo.App.1989).

Since we are concerned with the preclusive effect of a federal dismissal, we first look to the Federal Rules of Civil Procedure. The applicable rule is Rule 41(b), governing the effect to be given to involuntary dismissals. It states in relevant part:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication on the merits.

The plain language of the rule indicates that a dismissal based on the expiration of the statute of limitations is an adjudication on the merits. Plaintiff, however, urges this court not to read the rule literally, and argues that its meaning has been modified by the United States Supreme Court in Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961).

Costello involved a proceeding to revoke Mr. Costello's naturalized citizenship under § 340(a) of the Immigration and Nationality Act of 1952. According to that Act, the government was required to file an affidavit of good cause with the complaint as a prerequisite to the initiation of denaturalization proceedings. Id. at 268, 81 S.Ct. at 536. In the initial proceeding before the District Court for the Southern District of New York, the government failed to file such an affidavit. Id. Therefore, the action was dismissed and the court did not specify whether the dismissal was with or without prejudice. Id. The government, rather than appealing the dismissal, brought a new proceeding by filing a complaint and an affidavit of good cause with the same court. Id. The Supreme Court held that a dismissal for failure to file the affidavit of good cause is a dismissal for lack of jurisdiction under Rule 41(b). Id. at 285, 81 S.Ct. at 544-45. The Court stated:

It is too narrow a reading of the exception [in Rule 41(b) ] to relate the concept of jurisdiction embodied there to the fundamental jurisdictional defects which render a judgment void and subject to collateral attack, such as lack of jurisdiction over the person or subject matter. We regard the exception as encompassing those dismissals which are based on a plaintiff's failure to comply with a precondition requisite to the Court's going forward to determine the merits of his substantive claim.

Id.

Discussing the rationalization for the exceptions in Rule 41(b), the Court explained that the enumerated dismissals which operate as adjudications on the merits involve "situations in which the defendant must incur the inconvenience of preparing to meet the merits because there is no initial...