Jeschke AG Serv., LLC v. Bell
| Docket Number | WD 84474 |
| Decision Date | 28 June 2022 |
| Citation | 652 S.W.3d 305 |
| Parties | JESCHKE AG SERVICE, LLC, et al., Appellants, v. Daniel S. BELL, et al., Respondents. |
| Court | Missouri Court of Appeals |
Louis Accurso, Kansas City, MO, Counsel for Appellants.
Burton Haigh, Kansas City, MO, Co-Counsel for Appellants.
Clayton Gillette, Kansas City, MO, Co-Counsel for Appellants.
Nikki Cannezzaro, Kansas City, MO, Counsel for Respondents.
Before Division Two: Karen King Mitchell, P.J., Edward R. Ardini, Jr. and Thomas N. Chapman, JJ.
Plaintiffs Jeschke AG Service, LLC ("Jeschke LLC"), Brent Jeschke, Lisa Jeschke, John Jeschke, and Linda Jeschke appeal the judgment of the Circuit Court of Jackson County which granted a motion to dismiss filed by defendants the Law Office of Michael P. McDonald, Jr., the Law Office of David J. Bogdan, and the Law Office of McDonald and Bogdan (collectively, "Law Office Defendants") and defendants Daniel Bell and Michael McDonald, Jr., (collectively, the "Attorney Defendants" and together with the Law Office Defendants, "Defendants").1 Plaintiffs raise three points on appeal. Plaintiffs’ first two points assert that the trial court erred in granting the Defendants’ motion to dismiss (1) on the basis of the abatement doctrine, or (2) on the basis that Plaintiffs violated the prohibition on claim splitting. Plaintiffs’ third point asserts that the trial court erred in dismissing the Law Office Defendants based on the trial court's determination that the Law Office Defendants lacked the capacity to be sued. The judgment is affirmed in part, reversed in part, and the case is remanded.
In March of 2014, an automobile accident occurred involving a farm tractor owned by Jeschke LLC. Roger Ross filed a lawsuit against Jeschke LLC for damages incurred in the accident. The lawsuit proceeded to trial in the Circuit Court of Jackson County, and the jury returned a verdict in favor of Ross. The lawsuit resulted in a judgment against Jeschke LLC in the amount of $2,535,000 in economic damages, $250,000 in non-economic damages, and $750,000 in punitive damages. The judgment was affirmed on appeal in Ross v. Jeschke Ag Service, LLC , 552 S.W.3d 719, 721 (Mo. App. W.D. 2018).
On April 3, 2020, Plaintiffs filed a six-count petition in the Circuit Court of Jackson County and named as defendants Nationwide Agribusiness Insurance Company, Nationwide Mutual Insurance Company (together with Nationwide Agribusiness Insurance Company, the "Nationwide entities" or the "Nationwide Defendants"), the Law Office Defendants, and the Attorney Defendants. Counts I, II, and III asserted bad faith, breach of fiduciary duty, and breach of contract against the Nationwide entities. Counts IV and V asserted legal malpractice and breach of fiduciary duty against the Nationwide entities, the Law Office Defendants, and the Attorney Defendants. Count VI sought damages from the Nationwide entities on the theory of vicarious liability for the actions of the Attorney Defendants and the Law Office Defendants.
Pursuant to a motion to transfer venue filed by the Nationwide entities, proceedings were transferred to the Circuit Court of Cole County, where the case was assigned number 20ACCC00271 ("Cole County Action").
On August 27, 2020, following the transfer of venue to the Circuit Court of Cole County in the Cole County Action, the Plaintiffs filed a petition against the Attorney Defendants and the Law Office Defendants in the Circuit Court of Jackson County ("Jackson County Action"). The Jackson County Action asserted two counts against the Attorney Defendants and Law Office Defendants. Count I asserted legal malpractice; Count II asserted breach of fiduciary duty.
On September 2, 2020, Plaintiffs voluntarily dismissed the Law Office Defendants and the Attorney Defendants from the Cole County Action without prejudice.
In sum, following the transfer of venue, Plaintiffs sought to continue to bring suit against the Nationwide entities in the Cole County Action. Plaintiffs dismissed the Law Office Defendants and Attorney Defendants from the Cole County Action, and Plaintiffs sought to bring suit against the Law Office Defendants and Attorney Defendants in the Jackson County Action where the Plaintiffs asserted venue was proper for their action against the Law Office Defendants and Attorney Defendants.
The Law Office Defendants and Attorney Defendants responded to the petition in the Jackson County Action by filing a motion to dismiss, which asserted that three grounds warranted dismissal. First, all Defendants asserted that Plaintiffs had engaged in improper claim-splitting. Second, all Defendants asserted that the abatement doctrine was grounds for dismissal because there was a pending action involving the same parties and the same subject matter. Third, the Law Office Defendants asserted that they were not entities with the capacity to be sued. The Defendants attached exhibits to the motion to dismiss, including the petition in what became the Cole County Action, the petition in the Jackson County Action, the Plaintiffs’ filing of dismissal of the Defendants from the Cole County Action, and affidavits filed by Michael P. McDonald, Jr., and David J. Bogdan. The Plaintiffs filed a response to the motion to dismiss. The Plaintiffs attached six exhibits to the response, which were court documents in which court appearances were made by "the Law Office OF [sic ] Michael P. McDonald, Jr.," and "the Law Offices of David J. Bogdan," and a withdrawal of counsel was made by "Daniel S. Bell and the Law Office of McDonald and Bogdan."
The trial court held a hearing on the motion to dismiss after which the trial court granted the motion. With respect to the Plaintiffs’ counts against the Law Office Defendants, the trial court determined that the Law Office Defendants lacked the capacity to be sued and dismissed the Law Office Defendants with prejudice. With respect to Plaintiffs’ counts against the Attorney Defendants, the trial court found that the Plaintiffs’ action arose out of the same act, contract, and transaction as the Cole County Action. The trial court also determined that the parties, subject matter, and evidence necessary to sustain the Plaintiffs’ claim were the same in the Cole County Action and the subsequent Jackson County Action. Thus, the trial court dismissed Plaintiffs’ claims against the Attorney Defendants without prejudice.
Plaintiffs now appeal to this court.
We must determine sua sponte whether we have jurisdiction to hear an appeal. Phox v. Boes , 481 S.W.3d 920, 921 (Mo. App. W.D. 2016) (citing Cramer v. Smoot , 291 S.W.3d 337, 338 (Mo. App. S.D. 2009) ). In most circumstances, a final judgment is a prerequisite to appellate review. See § 512.020. A final judgment "resolves all issues in a case, leaving nothing for future determination." Ndegwa v. KSSO, LLC , 371 S.W.3d 798, 801 (Mo. banc 2012) (quoting Gibson v. Brewer , 952 S.W.2d 239, 244 (Mo. banc 1997) ). In this matter, the circuit court dismissed the Law Office Defendants with prejudice, but dismissed the Attorney Defendants without prejudice. Dismissals without prejudice call into question whether there is a final, appealable judgment. Avery Contracting, LLC v. Niehaus , 492 S.W.3d 159, 162 (Mo. banc 2016). Often, "when an action is dismissed without prejudice, a plaintiff may cure the dismissal by filing another suit in the same court." Phox , 481 S.W.3d at 921 (quoting Cramer , 291 S.W.3d at 339 ). However, "an appeal from a dismissal without prejudice can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum." Avery Contracting , 492 S.W.3d at 162 (internal quotation omitted). In this matter, the dismissal of the Attorney Defendants without prejudice had the practical effect of terminating the litigation in the Plaintiffs’ chosen forum. That is, it would have been futile for Plaintiffs to refile in their chosen forum – the Circuit Court of Jackson County – if the reason for dismissal was proper. See Cramer , 291 S.W.3d at 339. Accordingly, despite the fact that the trial court dismissed as to the Attorney Defendants without prejudice, the trial court's judgment is a final, appealable judgment.
Plaintiffs raise three points on appeal. In their first two points, they contend that the trial court erred in granting the Defendants’ motion to dismiss on the basis of either the abatement doctrine or the prohibition on splitting a cause of action because both the abatement doctrine and the prohibition on splitting a cause of action apply only when there is a pending suit between the same parties involving the same claims. In their third point, they contend the trial court erred in dismissing as to the Law Office Defendants on the basis that the Law Office Defendants lack the capacity to be sued because the Law Office Defendants "held themselves out" to the public as independent law firms and were therefore estopped from denying that they were a legal entity capable of being sued. We address these points in turn.
In their first point on appeal, Plaintiffs argue that dismissal was inappropriate based on a determination that the Plaintiffs improperly split their cause of action such that abatement was warranted. Specifically, Plaintiffs contend that the abatement doctrine only applies where another case is pending for the same issues between the same parties, and that abatement is inapplicable in this matter because there is no case currently pending in Cole County between the Plaintiffs and the Attorney and Law Office Defendants named in the instant Jackson County Action. Plaintiffs further argue that they asserted different causes of action against the Defendants in the underlying Jackson County Action than those asserted against the...
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