Barazi v. Eckoldt, ED 85510.

Decision Date20 December 2005
Docket NumberNo. ED 85510.,ED 85510.
PartiesPatricia S. BARAZI, Appellant, v. Michael J. ECKOLDT, Respondent.
CourtMissouri Supreme Court

Cheryl A. Rafert, St. Louis, MO, for appellant.

Scott D. Reynolds, Cape Girardeau, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Patricia Barazi n/k/a Patricia Voss appeals the judgment of the Circuit Court of Cape Girardeau County dismissing her Petition for an Order of Protection, pursuant to the Missouri Adult Abuse Act, without holding an evidentiary hearing. We reverse and remand.

Statement of the Facts and Proceedings Below

On May 4, 2004, Ms. Voss filed an Adult Abuse/Stalking Petition for Order of Protection seeking to restrain her former boyfriend, Michael Eckoldt, from abusing her, threatening to abuse her, molesting her, disturbing her peace, stalking her, entering her dwelling, communicating with her, or moving to Cape Girardeau County. In her Petition, Ms. Voss alleged that Mr. Eckoldt had knowingly and intentionally coerced, stalked, harassed, sexually assaulted, unlawfully imprisoned and followed her from place to place. She also alleged that he caused or attempted to cause her physical harm, placed or attempted to place her in apprehension of immediate physical harm, and threatened to commit these acts.

Ms. Voss further stated in her Petition that "[Mr. Eckoldt] is currently serving jail time for attacking [her in Alaska] and has sent [her] letters via his mother (Lori Herlocker) — see attachments (12/12/02)[.] Attacked [her] with a deadly weapon and almost killed [her] — see pictures." Ms. Voss indicated that there was "an immediate and present danger of abuse or stalking of [her] because . . . [h]e continues to stalk [her] through the use of his mother. He fully intends to request an interstate transfer as per Dennis Swiderski (his parole officer)." In support of her Petition, Ms. Voss submitted, among other things, photographs of her body following the assaults and letters she received from the Mr. Eckoldt.

On May 5, 2004, the trial court granted an Ex Parte Order of Protection restraining Mr. Eckoldt from abusing, threatening to abuse, stalk, molest, or disturb the peace of [Ms. Voss]; entering or staying upon the premises where [Ms. Voss] resides; communicating with [Ms. Voss] in any manner or through any medium; and moving his residence to Cape Girardeau County. The following day, the trial court set a hearing date for May 27, 2004.

On the date of the scheduled hearing, the trial court granted Mr. Eckoldt's request for a continuance. On the newly scheduled date, the trial court granted Mr. Eckoldt's attorney's request to continue the case once again. Days before the scheduled hearing, Mr. Eckoldt filed a Motion to Dismiss and a Notice of Hearing on the Motion to Dismiss. On the date of the scheduled hearing, the trial court, in chambers, overruled Mr. Eckoldt's Motion to Dismiss, set another hearing date and ordered counsel to confer with the judge a few weeks prior to the hearing date.

The trial court held a pre-hearing conference prior to the hearing date. On that day, Mr. Eckoldt renewed his dismissal motion. While on the record, the trial court denied Mr. Eckoldt's Motion to Dismiss. At that same conference, the trial court asked Ms. Voss why she had not registered the protective order she had obtained while she lived in Alaska ("Alaska Order"). Ms. Voss, through counsel, responded that the Alaska Order no longer offered protection in that the provision that Mr. Eckoldt have no contact with her had expired. Instead of responding to Ms. Voss's concern, the trial court stated:

[U]pon [the protective order from Alaska] being filed, [the trial court will] find that the matters complained of or alleged in your petition are dealt with by the Alaska order. And when, and if, Mr. Eckoldt does make some contact with [Ms. Voss] that is more than in a letter that is a direct contact, not through other persons, then I would suggest she then file a petition for an order of protection here.

Ms. Voss, through counsel, attempted to explain that Mr. Eckoldt had engaged in additional harassment. Again, the trial court simply responded that Ms. Voss would have "ten days to have this [Alaska order] registered within the State of Missouri; and after ten days, then this matter will be dismissed." The trial court further stated that Ms. Voss could "pursue this matter further if, and when, [Mr. Eckoldt] does make personal contact. . . . But letters are not sufficient enough to raise— . . ." Ms. Voss, through counsel, responded that she had evidence in addition to the letters sent to her by Mr. Eckoldt. At this point, the trial court declared, "Well, that's where we are today. And that's the end of it, so far as we're concerned, on this petition." The trial court stated that the case "will be dismissed in ten days."

Ms. Voss's attorney inquired about the hearing set for a few weeks later. The trial court replied, "That's dismissed. Nothing more needs to be done." Through counsel, Ms. Voss objected on the ground that the proceedings were not adequate to protect her rights and that by depriving her of an evidentiary hearing, the trial court was denying her due process and equal protection of the law. The trial court stated that if Ms. Voss filed the Alaska Order, the Missouri case would be dismissed.

Ms. Voss did not register the Alaska Order and as indicated the trial court dismissed Ms. Voss's petition. To that end, the trial court completed a pre-printed form memorandum and with an "x" marked the following: (1) petition appears in person and by counsel, Cheryl A. Rafert; (2) Respondent appears not but by counsel Scott Reynolds; (3) on hearing date, on the evidence adduced, the Court finds that Petitioner has failed to prove the allegation(s) of abuse or stalking by a preponderance of the evidence and orders the cause dismissed without prejudice; (4) Judgment/full order of protection denied; and (5) cause dismissed without prejudice for failure to prosecute.

In the month that followed, Ms. Voss filed a Motion to Vacate and Set Aside the trial court's order dismissing her Petition. The trial court denied Ms. Voss's Motion to Vacate. Ms. Voss appealed.

In light of the fact that the trial court dismissed the underlying case without prejudice for "failure to prosecute," we issued an Order to Show Cause why this case should not be dismissed for lack of a final, appealable judgment. Ms. Voss filed an Answer to our Show Cause Order and we directed the parties to address the underlying jurisdictional issue in their appellate briefs.1

Standard of Review

Our review of the trial court's decision in this Adult Abuse Act case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will affirm the judgment of the trial court unless no substantial evidence supports the decision, it is against the weight of the evidence, or it erroneously declares or applies the law. Capps v. Capps, 715 S.W.2d 547, 549 (Mo.App. E.D.1986).

Discussion

Before reaching the issue raised in Ms. Voss's appeal, we address the underlying jurisdictional question. Here, the trial court dismissed Ms. Voss's petition without prejudice, citing two grounds: (1) "on the evidence adduced, Petitioner has failed to prove allegations of abuse and stalking. . . ." and (2) "failure to prosecute." A trial court's dismissal of a case without prejudice is generally not an appealable judgment. Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). This is so because, when a case is dismissed without prejudice, a plaintiff can typically cure the defects by filing another suit in the same trial court. Mo.R.Civ.P. 67.01. However, where re-filing of the petition would be futile, the order of dismissal is appealable. Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo.App. E.D.1985). Likewise, if the dismissal without prejudice has the practical effect of terminating the litigation in the form cast...

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3 cases
  • Smith v. McAdams
    • United States
    • Missouri Court of Appeals
    • February 17, 2015
    ...a trial court's decision in an Adult Abuse Act case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Barazi v. Eckoldt, 180 S.W.3d 507, 510 (Mo.App.E.D.2005). “We will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the w......
  • Smith v. McAdams
    • United States
    • Missouri Court of Appeals
    • May 11, 2015
    ...trial court's decision in an Adult Abuse Act case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Barazi v. Eckoldt, 180 S.W.3d 507, 510 (Mo. App. E.D. 2005). "We will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the ......
  • C.M. v. Phillips, ED 94280.
    • United States
    • Missouri Court of Appeals
    • December 13, 2010
    ...transcript on appeal. The trial court's grant of a full order of protection is supported by substantial evidence. Barazi v. Eckoldt, 180 S.W.3d 507, 510 (Mo.App. E.D.2005). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. ......

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