Moley v. Plaza Properties, Inc.

• Decision Date: 04 April 1977
• Docket Number: No. 28489,28489
• Citation: 549 S.W.2d 633
• Parties: Frank P. MOLEY and Marie Moley, Appellants, v. PLAZA PROPERTIES, INC., and Melvin E. Kleb, Individually and as President of Plaza Properties, Inc., Respondents.
• Court: Missouri Court of Appeals

Page 633

549 S.W.2d 633

Frank P. MOLEY and Marie Moley, Appellants, v.PLAZA PROPERTIES, INC., and Melvin E. Kleb, Individually and as President of Plaza Properties, Inc., Respondents.

No. 28489.

Missouri Court of Appeals, Kansas City District.

April 4, 1977.

John R. O'Malley, Barbieri, Combs & Gotschall, Kansas City, for appellants.

James M. Beck, Johnson, Lucas, Bush & Snapp, Kansas City, for respondents.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

ANDREW J. HIGGINS, Special Judge.

Appeal from sustention of defendants' motion to dismiss plaintiffs' petition for failure to state a cause of action and ensuing dismissal of plaintiffs' cause of action "without prejudice."

Defendants have moved to dismiss the appeal, contending that because the dismissal was without prejudice and because upon such a dismissal another action may be brought for the same cause, seeSection 510.150, RSMo 1969, and Rule 67.03, V.A.M.R., the judgment was not final and appealable.

The motion to dismiss the appeal is overruled.When a petition is dismissed on the ground it fails to state a claim upon which relief can be granted, the ensuing judgment of dismissal is final and appealable.That plaintiffs may bring another action for the same cause does not alter the finality of adjudication as to that petition and if plaintiffs chose to stand on that petition, the judgment was final and appealable.Hasemeier v. Smith, 361 S.W.2d 697, 699(1, 2)(Mo. banc 1962).See alsoState v. Litzinger, 417 S.W.2d 126, 128(Mo.App.1967).

Plaintiffs' action was for rent pursuant to a lease entered into on or about June 16, 1970, between plaintiffs and defendantsPlaza Properties, Inc., and Melvin E. Kleb, for rental of property known as 7960 Ward Parkway, Kansas City, Missouri, an unimproved tract described by metes and bounds.

DefendantsPlaza Properties, Inc., and Melvin E. Kleb, pursuant to Rule 55.27(a)(6), V.A.M.R., filed their motion to dismissplaintiffs' petition, together with suggestions in support, on the ground it failed to state a claim against either defendant, alleging: "Said Lease is of no force and effect, having been abrogated and rescinded by agreement of the parties pursuant to a novation.Shortly after execution of the purported lease attached to plaintiffs' petition, the same was abrogated and rescinded by the mutual agreement of all parties thereto and a new lease agreement on substantially identical terms was entered into between plaintiffs and a third party, Ward 79, Inc., as Tenant.The effect of the new lease operated to release Plaza Properties, Inc. and Melvin E. Kleb from any and all liability whatsoever to plaintiffs based upon the purported Lease upon which plaintiffs' petition is grounded.Subsequent thereto between March and June in 1972, plaintiffs and Ward 79, Inc. entered into an Addenda to the then existing Lease between plaintiffs and Ward 79, Inc., * * * caused a Memorandum of Lease to be placed of record evidencing the existence of the Lease on the subject property between plaintiffs and Ward 79, Inc., * * * and plaintiffs tendered to State Farm Life Ins. Co. a proposed agreement subordinating plaintiffs' rights under the Ward 79, Inc. Lease to the rights of a construction lender, * * *.All documents hereto attached bear plaintiffs' signatures.Plaintiffs have sued the wrong defendants on a document which has been superseded, abrogated and rescinded by mutual agreement and on which defendants have no liability to plaintiffs whatsoever."

The matter was presented to the court under local Rule 8.04-2, and the court entered the order in question: "Defendants have filed their Motion To DismissPlaintiffs' Petition stating that the Plaintiffs have failed to state a cause of action.The motion was filed on the 14th of August of this year and there has been no response from the Plaintiff(s) in opposition.The Court does this date sustain Defendants' Motion and Plaintiffs' cause of action is dismissed, without prejudice, at Plaintiffs' Costs."

Appellants contend that the court erred in dismissing their petition for failure to state a cause of action because, when construed "liberally and favorably" to plaintiffs as required, it was sufficient on its face to state a claim upon which relief could be granted.They assert that the trial court was "restricted to an inquiry * * * 'directed toward the sufficiency of a pleading as it appears on its face without more,' " citing Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660(Mo.1974), andRule 55.33, V.A.M.R.

The difficulty in appellants' position is that Rule 55.33, as cited by appellants, was combined with previous Rule 55.31 into a new rule, 55.27, effective September 1, 1973."The new rule provides that even with respect to a motion for dismissal for failure to state a claim upon which relief can be granted,...