Jeffrey v. Cathers
| Citation | 104 S.W.3d 424 |
| Decision Date | 29 April 2003 |
| Docket Number | No. ED 80418.,ED 80418. |
| Parties | Thomas JEFFREY, Appellant, v. Edgar E. CATHERS, Jr., Respondent. |
| Court | Missouri Court of Appeals |
Daniel E. Wilke, St. Louis, MO, for appellant.
Edgar E. Cathers, St. Louis, pro se.
Thomas Jeffrey (Jeffrey) appeals from the trial court's dismissal of his petition against Edgar E. Cathers, Jr. (Cathers). On appeal, Jeffrey contends the trial court erred in dismissing his petition. We reverse and remand in part.
Jeffrey and E.C.E., Inc., through its president, Cathers, entered into a contract to perform demolition and hauling services on Jeffrey's real property. A dispute arose as to whether the work was completed and Jeffrey refused to pay E.C.E., Inc., which resulted in the filing of a mechanic's lien against Jeffrey's property. On July 7, 1999, Jeffrey filed a petition against Cathers, the president of E.C.E., Inc. In a second amended petition filed June 5, 2001, Jeffrey brought six counts against Cathers.1 Count I was for fraudulent misrepresentation with Count II a request for punitive damages for fraudulent misrepresentation. Count III was a claim of abuse of process with Count IV a request for punitive damages for abuse of process. Count V was for slander of title with Count VI a request for punitive damages for slander of title. In his claim for slander of title, Jeffrey alleged Cathers altered the contract to add notice of lien language and then recorded the mechanic's lien pursuant to the altered contract.
On July 20, 2001, Cathers filed a motion to dismiss Jeffrey's second amended petition. Cathers alleged Counts I and II failed to state a cause of action because (a) the actions complained of were the alleged actions of E.C.E., Inc., (b) the actions complained of are barred by the doctrine of collateral estoppel and res judicata in that they were litigated and a directed verdict was sustained in favor of E.C.E., Inc., in another proceeding, and (c) the trial court previously dismissed the claim in response to Cathers's motion to dismiss Jeffrey's first amended petition. Cathers further alleged Counts III and IV failed to state a cause of action because (a) the actions complained of were the alleged actions of E.C.E., Inc., (b) the actions complained of are barred by the doctrine of collateral estoppel and res judicata in that they were litigated and a directed verdict was sustained in favor of E.C.E., Inc., in another proceeding, and (c) there was no allegation that the suit was filed other than for the purpose of collecting the debt due. Finally, Cathers alleged Counts V and VI failed to state a cause of action because (a) the actions complained of were the alleged actions of E.C.E., Inc., (b) a mechanic's lien claim is absolutely privileged so long as suit to enforce the lien is timely filed, (c) Jeffrey failed to join an indispensable party in that the real estate was owned by a married couple as tenants by the entirety and as such both must be made parties for an alleged injury to their property, and (d) the actions complained of are barred by the doctrine of collateral estoppel and res judicata in that they were litigated and a directed verdict was sustained in favor of E.C.E., Inc., in another proceeding.2
To its motion to dismiss, Cathers attached a June 1, 2000 judgment from Jeffrey I, entered after a jury trial.3 In Jeffrey I, E.C.E., Inc., filed a petition to enforce a mechanic's lien, breach of contract, and quantum meruit against Jeffrey and his wife, Suzanne Jeffrey, and Vera Buehrle.4 The jury found in favor of Jeffrey and his wife on E.C.E., Inc.'s, counts for mechanic's lien and breach of contract and the trial court dismissed E.C.E., Inc.'s, claim for quantum meruit. Jeffrey also filed a counterclaim against E.C.E., Inc.5 The trial court granted directed verdicts in favor of E.C.E., Inc., on Count I, prima facie tort, and Count II, abuse of process, of Jeffrey's counterclaim. The jury found for Jeffrey on Count III, slander of title, and Count IV, punitive damages for slander of title, of his counterclaim. The jury awarded Jeffrey $100 in actual damages and $25,000 in punitive damages. On September 18, 2000, upon motion for new trial filed by E.C.E., Inc., claiming instructional error, the trial court granted a new trial on the punitive damages issue for slander of title.6 The trial court in Jeffrey II was only provided the judgment from Jeffrey I and was not informed that the motion for new trial on the punitive damages issue for slander of title had been granted.
On October 10, 2001, the trial court sustained Cathers's motion to dismiss Jeffrey's second amended petition without explanation. Jeffrey appeals the dismissal.7
First, we must determine our jurisdiction over Jeffrey's appeal because the trial court's dismissal of Jeffrey's second amended petition did not indicate whether the dismissal was with prejudice. Jeffrey contends the judgment is not final because it was not dismissed with prejudice. A dismissal failing to indicate that it is with prejudice is deemed to be without prejudice. Rule 67.03; Balke v. Ream, 983 S.W.2d 579, 580 (Mo.App. W.D.1998). The general rule is that a dismissal without prejudice is not a final judgment and, therefore cannot be appealed. Osuji v. Missouri Dept. of Social Services, 34 S.W.3d 251, 253 (Mo.App. E.D.2000). A party can, however, appeal from a dismissal without prejudice if the dismissal has the practical effect of terminating the action in the form cast. Id. The dismissal for failure to state a cause of action has this practical effect, and thus, we have jurisdiction to hear this appeal.
In his brief, Jeffrey suggests the possibility that the trial court treated the motion to dismiss as one for summary judgment. In his motion, Cathers asserted, inter alia, that Jeffrey's claims were barred by res judicata and attached a copy of the judgment from Jeffrey I to his motion to dismiss. Because a determination of res judicata necessarily depends on proof of the prior judgment, we will review that portion of Cathers's motion as one for summary judgment, even though the trial court did not give notice of the conversion under Rule 55.27. WEA Crestwood Plaza, L.L.C. v. Flamers Charburgers, Inc., 24 S.W.3d 1, 5 (Mo.App. E.D.2000). In reviewing whether a grant of summary judgment was proper, we must view the record in the light most favorable to the party against whom the summary judgment was entered. ITT Commerical Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). That party is accorded the benefit of all reasonable inferences that may be drawn from the record. Id. Because the granting or denial of a motion for summary judgment is purely an issue of law, and because the trial court's decision is founded on the same record we are to consider, we need not give the trial court's judgment any deference. Id. As such, our review of the trial court's judgment is essentially de novo. Id.
The remainder of Cathers's motion, whether Jeffrey's claim stated a cause of action, absolute privilege, and indispensable party, will be treated as a motion to dismiss because a determination of the validity of these grounds does not require outside material and none was provided to the trial court. When reviewing the trial court's dismissal of a petition, this court determines if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. Wheelehan v. Dueker, 996 S.W.2d 780, 781 (Mo.App. E.D.1999). We treat all facts alleged as true and construe allegations liberally and favorably to the plaintiff. Id. A petition will not be dismissed for failure to state a claim if any set of facts asserted which, if proved, would entitle the plaintiff to relief. Vickers v. Progressive Cas. Ins. Co., 979 S.W.2d 200, 202 (Mo.App. E.D.1998). When the trial court fails to specify its reason for dismissing the petition, we presume the trial court acted for one of the reasons stated in the motion to dismiss. Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 125 (Mo.App. E.D.1999).
In his sole point, Jeffrey contends the trial court erred in sustaining Cathers's motion to dismiss. However, in his argument, Jeffrey limits his claims of error to the slander of title count with the accompanying punitive damages count. Thus, we will only address whether dismissal was appropriate as to the slander of title and punitive damages counts.8 Jeffrey argues the trial court erred in sustaining the motion to dismiss because (1) he pleaded a cause of action for slander of title, (2) filing a mechanic's lien is not absolutely privileged, (3) his wife, Suzanne Jeffrey, was not an indispensable party, and (4) Lathers was not entitled to dismissal based on the grounds of collateral estoppel or res judicata.
Under Missouri law, a claim of slander of title requires the plaintiff to demonstrate: (1) some interest in the property, (2) that the words published were false, (3) that the words were maliciously published, and (4) that the plaintiff suffered pecuniary loss or injury as a result of the false statement. Bechtle v. Adbar Co., L.C., 14 S.W.3d 725, 728 (Mo. App. E.D.2000). In his petition, Jeffrey pleaded:
2. Plaintiff is the title owner of the specific real property identified in Count I of this Petition.
3. Defendant received a signed contract from Plaintiff relating to demolition and hauling services.
4. Defendant thereafter wrongfully altered the contract to add notice of lien language.
5. Defendant thereafter recorded or directed that such altered document be recorded with St. Louis County.
6. The recording of such altered document was without the consent and permission of Plaintiff, and [D]efendant's actions...
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