Jordan v. Kansas City

• Decision Date: 06 August 1996
• Docket Number: No. WD,WD
• Citation: 929 S.W.2d 882
• Parties: Jimmy R. JORDAN, Appellant, v. KANSAS CITY, Mo., et al., Respondents. 51990.
• Court: Missouri Court of Appeals

Page 882

929 S.W.2d 882

Jimmy R. JORDAN, Appellant, v. KANSAS CITY, Mo., et al., Respondents.

No. WD 51990.

Missouri Court of Appeals Western District.

Aug. 6, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 1, 1996.

Application for Transfer Filed Oct. 16, 1996.

Application to Transfer Denied Nov. 19, 1996.

Jimmy R. Jordan, pro se.

Lana K. Torczon, Asst. City Atty., Kansas City, for respondents.

Before LAURA DENVIR STITH, P.J., and ULRICH and SMART, JJ.

PER CURIAM.

Jimmy R. Jordan, plaintiff-appellant, appeals from the trial court's order granting the City of Kansas City's ("the City") motion for summary judgment and the Neighborhood and Community Services Department's ("the Department") motion to dismiss. On appeal, Jordan claims: 1) the trial court erred by not ruling on his motion to strike the Department's motion to dismiss; 2) the trial court erred in granting summary judgment in favor of the City based on the doctrine of res judicata; and 3) the trial court erred in granting the Department's motion to dismiss based upon the Department's assertion that it is not a suable entity.

Judgment is affirmed.

On June 7, 1994, Jimmy R. Jordan filed a defamation action against the Department and Arthur Greene, an inspector for the Department. The action was based on oral statements allegedly made by Greene during a property maintenance board hearing and a court hearing, and on written statements made by Greene in the form of summonses and notice letters. Both the oral and written statements related to certain alleged violations by Jordan of Chapter 25 of the City's ordinances relating to rank weeds and open storage. On July 15, 1994, Greene filed a motion for summary judgment claiming that Jordan's claim was barred by the statute of limitations. The Department filed a motion to dismiss claiming that it was not a suable entity. On September 7, 1994, the trial court entered summary judgment in favor of Greene and granted the Department's motion to dismiss. This court affirmed the judgments in Jordan v. Greene, 903 S.W.2d 252 (Mo.App.1995) ("Jordan I ").

On March 27, 1995, Jordan filed an action for deprivation of constitutional rights and for trespass against the City and the Department. In the petition, Jordan alleged that Greene violated Jordan's constitutional rights when he allegedly failed to properly serve several summonses and warrants on Jordan and failed to obtain proper jurisdiction over Jordan. Jordan also averred that Greene trespassed on his property. On September 15, 1995, the City filed a motion for summary judgment based on the doctrine of res judicata. The City also filed in behalf of the Department a motion to dismiss based on its allegation that it is not a suable entity. On November 22, 1995, the trial court granted the motions. Jordan now appeals.

Motion to Strike

In Point I, Jordan claims that the trial court erred by failing to rule on his motion to strike the motion to dismiss as to the Department. In the motion to strike, Jordan argued that (1) the motion to dismiss was filed out of time, in violation of Rule 55.25; and (2) the motion to dismiss did not contain numbered paragraphs, in violation of Rule 55.11.

Jordan filed his petition against the City and the Department for the deprivation of constitutional rights and for trespass on March 27, 1995. The Department was served with notice of the petition on August 14, 1995. The City filed a motion to dismiss in behalf of the Department in which it claimed the Department was not a suable entity on September 15, 1995. Jordan filed a motion to strike the motion to dismiss on October 17, 1995.

Rule 55.25 provides: "A defendant shall file an answer within thirty days after the service of the summons and petition...." The trial court has discretion to allow a party to file a responsive pleading after the expiration of the time limit provided in Rule 55.25. See Manor Square, Inc. v. Heartthrob of Kansas City, Inc., 854 S.W.2d 38, 43 (Mo.App.1993); Funkhouser v. Meadowview Nursing Home, 816 S.W.2d 947, 952 (Mo.App.1991). Instead of entering a default judgment against the Department after the expiration of the thirty day time period provided in Rule 55.25, the trial court exercised its discretion to allow the City to file a responsive pleading in behalf of the Department out of time (two days late) and considered the motion to dismiss. ¹ Although the trial court did not explicitly deny Jordan's motion to strike, the trial court's action in granting the motion to dismiss constitutes an implicit denial by the trial court of Jordan's motion to strike. Jordan has failed to show how the trial court abused its discretion in considering the motion out of time. The omission by the trial court of an explicit ruling denying Jordan's motion to strike does not constitute error.

Jordan also claims that the motion to strike should have been granted because the City did not organize its motion to dismiss in numbered paragraphs in violation of Rule 55.11. Jordan did not include this objection to the motion in his motion to strike. Thus, he failed to properly preserve this objection. Point I is denied.

Summary Judgment Motion

In Point II, Jordan contends that the trial court erred in granting the City's motion for summary judgment based on the doctrine of res judicata.

The doctrine of res judicata, commonly referred to as "claim preclusion," operates as a bar to the reassertion of a cause of action that has been previously adjudicated in a proceeding between the same parties or those in privity with them. American Polled Hereford Ass'n v. City of Kansas City, 626 S.W.2d 237, 241 (Mo.1982). For the doctrine of res judicata to apply, a final judgment on the merits must have been rendered in the underlying action. Barkley v. Carter County State Bank, 791 S.W.2d 906, 910 (Mo.App.1990). The policies supporting res judicata include: (1) relieving parties of the cost and vexation of multiple lawsuits; (2) conserving judicial resources; and (3) encouraging reliance on adjudications. Doherty v. McMillen, 805 S.W.2d 361, 362 (Mo.App.1991). The doctrine is based upon the principle that a party should not be able to relitigate, in a second proceeding, a claim which was, or which should have been, litigated in a previous proceeding. Andes v. Paden, Welch, Martin & Albano, P.C., 897 S.W.2d 19, 21 (Mo.App.1995).

Jordan first claims that the underlying judgment in Jordan I is not valid and, thus, not appropriate for the application of res judicata. Jordan asserts that the trial court's judgment in Jordan I is inconsistent. The trial court's judgment reads in pertinent part:

1. Defendant Neighborhood and Community Services Development Department's Motion to Dismiss Plaintiff Jimmy Jordan's Petition (filed July 15, 1994) is SUSTAINED. Judgment is entered in favor of Defendant Arthur Greene and against Plaintiff for reasons stated in counsel's suggestions.

2. Defendant Arthur Greene's Motion for Summary Judgment (filed July 15, 1994) is SUSTAINED. Judgment is entered in favor of Defendant Neighborhood and Community Services Development Department for reasons stated in counsel's suggestions.

Jordan claims that the judgment is inconsistent because in the first paragraph, the trial court granted a motion for the Department, but entered judgment for Greene, and in the second paragraph, the trial court granted a motion for Greene, but entered judgment for the Department. This issue has already been decided in Jordan I where this court stated:

We do not agree that the claimed error makes the judgments invalid. An order or judgment which is not absolutely unintelligible cannot be void on its face or an absolute nullity if it appears that the court which entered it had jurisdiction of the parties and the subject matter. The record shows that the trial court had jurisdiction over the parties and the subject matter.

Jordan, 903 S.W.2d at 258. Consequently, Jordan is not entitled to relitigate the validity of the prior judgment once again. The prior judgment is effective for purposes of res judicata.

Jordan next complains that the judgment was not "on the merits" because (1) the dismissal of his action was without prejudice; and (2) the judgment is based on the statute of limitations. Jordan seems to be confusing the two judgments, one which granted a motion to dismiss in favor of the Department, and one which granted summary judgment in favor of Greene. The judgment relevant to this inquiry is the summary judgment, not the dismissal. Thus, whether the dismissal of the action against the Department was with or without prejudice is irrelevant here. Second, Jordan claims that the judgment is not on the merits because it is based on the expiration of the statute of limitations. We disagree. A trial court's dismissal of an action on the basis of the statute of limitations is a final adjudication on the merits for purposes of res judicata. See Andes, 897 S.W.2d at 23; Lamb v. Equifax Servs., Inc., 620 F.Supp. 1457, 1458 (E.D.Mo.1985); Myers v. Bull, 599 F.2d 863, 865 (8th Cir.), cert. denied, 444 U.S. 901, 100 S.Ct. 213, 62 L.Ed.2d 138 (1979).

The doctrine of res judicata bars a claim if the following elements are satisfied: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons or parties to the action; and (4) identity of the quality of the person for or against whom the claim is made. King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 501 (Mo. banc 1991). Here, the first element is satisfied because "the thing sued for" in both actions was monetary damages arising out of the same set of facts.

The second element that must be present for res judicata to apply is the identity of the cause of action. In the first action, Jordan asserted a cause of action for defamation, and in the second action, Jordan sued for the violation of constitutional rights and...