Atkins v. Jester

• Decision Date: 30 April 2010
• Docket Number: No. SD 29922.,SD 29922.
• Citation: 309 SW 3d 418
• Parties: Larry ATKINS, et al., Plaintiffs-Appellants, v. William JESTER, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

309 SW 3d 418

Larry ATKINS, et al., Plaintiffs-Appellants,
v.
William JESTER, et al., Defendants-Respondents.

No. SD 29922.

Missouri Court of Appeals, Southern District, Division One.

April 30, 2010.

309 SW 3d 420

Michael W. Blanton, Leawood, KS, for Appellant.

Jim J. Shoemake, St. Louis, MO, for Respondent Windermere Baptist Conference Center.

Burton H. Shostak, St. Louis, MO, for Respondent William Jester, et al.

Corinne E. Muller, Jefferson City, MO, for Respondents Jim Hill and RDI, LLC.

James W. Gallaher, Jefferson City, MO, for Respondent Reliable Trust Company, et al.

Matthew R. Hubbard, Kansas City, MO, for Respondent National City Bank, et al.

DON E. BURRELL, Judge.

The Missouri Baptist Convention ("the Convention"), an unincorporated association of representatives from affiliated Southern Baptist churches in the State of Missouri known as "messengers," Executive Bd. of the Mo. Baptist Convention v. Windermere Baptist Conference Ctr., 280 S.W.3d 678, 684 n. 1 (Mo.App. W.D.2009), appeals the trial court's dismissal of its action to quiet title to certain parcels of real property ("the real estate") located in Camden County, Missouri.¹ Because the dismissal purported to rely on matters extrinsic to the petition and did not explicitly state that it was being granted "with prejudice" or otherwise indicate that the Convention was effectively precluded from re-filing the same cause of action regardless

309 SW 3d 421

of how it might draft its pleadings, we dismiss the appeal for lack of a final, appealable judgment

Procedural History and Facts

The dispute in this case revolves around Windermere Baptist Conference Center ("Windermere"), a public benefit corporation created by the Convention. The stated purpose for Windermere was to establish and maintain conference and recreational facilities to facilitate Christian renewal and commitment. Id. at 684. Upon the incorporation of Windermere and the election of its initial board of directors, the Convention transferred ownership of the real estate to Windermere. Id. at 685. When the Convention drafted and approved Windermere's articles of incorporation, those articles granted the Convention the right to nominate and elect the members of Windermere's board of directors. Id. at 685. Those articles also unambiguously stated that Windermere "shall have no members." Id. at 686-87.

Windermere's board of directors subsequently voted (without the Convention's participation or approval) to amend the corporation's articles and bylaws to, among other things, no longer require that upon any dissolution of Windermere its assets were to be given to organizations affiliated with the Convention. Id. at 686. The Convention filed suit in Cole County, alleging the Convention was a "member" of Windermere, pursuant to section 355.066(21), RSMo Cum.Supp.2007 (a portion of the Missouri Nonprofit Corporation Act) and thereby had the right to vote on any attempt to amend Windermere's articles of incorporation. Id. at 686. In the Cole County suit, the Convention asserted various legal theories in an attempt to invalidate the amended articles and thereby allow it to ultimately re-acquire the assets (including the real estate) it had transferred to Windermere. Id. at 686-98.

After the circuit court granted summary judgment in favor of Windermere in the Cole County case, the Western District held that the Convention could not have been a "member" of a corporation whose articles unequivocally stated that it "shall have no members." Id. at 687. The Western District also found that the Convention lacked the standing necessary to challenge the unilateral amendment of Windermere's articles, because "only members, directors or the Attorney General have standing to challenge ultra vires acts of a not-for-profit corporation." Id. at 693 (quoting Blue Cross & Blue Shield of Mo. v. Nixon, 81 S.W.3d 546, 552 (Mo.App. W.D.2002)). The Western District further found that the Convention was not a third party beneficiary of Windermere's articles of incorporation, that Windermere was not liable in rescission, and that the circuit court did not err in dismissing the Convention's claim of civil conspiracy for failure to state a claim. Windermere, 280 S.W.3d at 694-99. For a complete discussion of the issues involved and resolved by the Cole County lawsuit, see Executive Bd. of the Mo. Baptist Convention v. Windermere Baptist Conference Ctr., supra.²

In the instant case, the Convention tried a different tack, filing a quiet title claim in Camden County, the county in which the real estate is located. The Convention's petition to quiet title named multiple defendants (collectively, "Defendants"), and based its claim for relief on allegations of fraud and other wrongful conduct purportedly

309 SW 3d 422

relating to the Convention's transfer of the real estate to Windermere. Various similarly situated defendants ("the dismissed defendants")³ joined together in various combinations and filed a total of four separate motions to dismiss the quiet title action. None of these motions specifically requested that any resulting judgment of dismissal be entered with prejudice

The trial court incorporated into one "Judgment Entry and Order" ("the dismissal order") its rulings on the four separate motions to dismiss filed by the dismissed defendants. The dismissal order directed that all claims brought by the Convention were dismissed except those brought against defendants James L. Hill and RDI, LLC. The dismissal order stated that the dismissed defendants were entitled to prevail on their motions based on grounds of: 1) abatement; 2) collateral estoppel; and/or 3) failure to state a claim. The dismissal order did not indicate whether the dismissals were granted with or without prejudice. The order did, however, state that "there being no just reason for delay, this Judgment is designated final for purposes of appeal pursuant to Missouri Supreme Court Rule 74.01(b)."

Standard of Review

Our review of a trial court's decision to grant a motion to dismiss is de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). "In ruling on a motion to dismiss, the trial court can only consider the pleadings, and appellate review is also limited to the pleadings." L.C. Dev. Co. v. Lincoln County, 26 S.W.3d 336, 339 (Mo.App. E.D.2000).

Analysis

The first question to be determined is whether the dismissal order is a final judgment from which the Convention may appeal. We are required to, sua sponte, "determine whether a judgment is final for purposes of appeal, and if the appeal is found to be premature, it must be dismissed." Blechle v. Goodyear Tire & Rubber Co., 28 S.W.3d 484, 486 (Mo.App. E.D. 2000). Although the Convention is the party pursuing this appeal, it is in the somewhat unusual position of asserting that the dismissal order is not an appealable judgment. The dismissed defendants — who argue that the dismissal order was a final, appealable judgment — also claim this appeal should be dismissed, but for a different reason. The position of the dismissed defendants is that the appeal should be dismissed as time-barred because the Convention did not timely file its notice of appeal. We agree with the position asserted by the Convention.

The Convention did not voluntarily dismiss the claims at issue; they were dismissed by the court after Defendants filed motions requesting that relief. Involuntary dismissals are governed by Rule 67.03,⁴ which states, in pertinent part, that "any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify." Rule 67.03. The order in the instant case did not indicate whether the dismissal was with or without prejudice.

To qualify as a final, appealable judgment, the dismissal order must fall within a limited exception to the general rule governing dismissals. The applicable

309 SW 3d 423

general rule is that "a dismissal failing to indicate that it is with prejudice is deemed to be without prejudice." Jeffrey v. Cathers, 104 S.W.3d 424, 428 (Mo.App. E.D. 2003) (citing Rule 67.03; Balke v. Ream, 983 S.W.2d 579, 580 (Mo.App. W.D.1998)). The usual means of specifying that a dismissal is being made "with prejudice" is to use those words. Under this bright-line interpretation of Rule 67.03, the dismissal order would be deemed a dismissal without prejudice. "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." Ampleman v. Schweiss, 969 S.W.2d 862, 863-64 (Mo.App. E.D. 1998) (quoting Vernor v. Missouri Bd. of Prob. & Parole, 934 S.W.2d 13, 14 (Mo. App. W.D.1996)); Finerson v. Roper, 161 S.W.3d 902, 904 (Mo.App. E.D.2005) (citing Nolan v. State, 959 S.W.2d 939, 940 (Mo. App. E.D.1998) ("Generally, a dismissal without prejudice is not an order from which appeal can be taken"))

The dismissed defendants assert that a trial court may effectively indicate a dismissal was granted with prejudice by certifying that a matter is final for purposes of appeal pursuant to Rule 74.01(b). Rule 74.01(b) is itself an exception to the general rule that "in order for a judgment to be final and appealable, it must dispose of all parties and all issues and leave nothing for the court's later determination." Crow v. Bertram, 681 S.W.2d 6, 7 (Mo. App. E.D.1984) (citing Gaa v. Edwards, 626 S.W.2d 685, 686 (Mo.App. W.D.1981)). We must therefore first determine whether the trial court's Rule 74.01(b) certification was proper and, if not, whether it was nonetheless sufficient to indicate that the dismissal order was granted with prejudice under Rule 67.03.

Certifying Less than an Entire Case as Final for Purposes of Appeal

The dismissal order did not dispose of all parties and all issues — the...