Osuji v. Missouri Dp't of Soc. Serv.
| Decision Date | 12 December 2000 |
| Citation | 34 S.W.3d 251 |
| Parties | (Mo.App. E.D. 2000) Julian Osuji, Petitioner/Appellant, v. Missouri Department of Social Services, Division of Family Services, Respondent/Respondent. ED77365 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of the City of St. Louis, Hon. Robert H. Dierker
Opinion Summary: Petitioner Osuji appeals the dismissal without prejudice of his petition against respondent Missouri Department of Social Services, Division of Family Services, seeking the removal and destruction of certain records retained by the division.
Division Two holds: The trial court did not err in dismissing petitioner's action based on section 210.150.4.
Petitioner, Julian Osuji, appeals from the dismissal without prejudice of his petition against respondent, Missouri Department of Social Services, Division of Family Services (hereinafter division), seeking the removal and destruction of certain records retained by the division. We affirm.
Petitioner's petition alleged that on August 4, 1993, he was an employee of Hawthorne Children's Psychiatric Hospital (hereinafter hospital), an agency of the Department of Mental Health, State of Missouri. On that date, the division issued a report stating that there was reason to suspect lack of supervision by petitioner with respect to two minors under his care. He further alleged that as a result of this report he was unable to obtain employment in a public school district. He petitioned the court "under Section 210.1504) [sic] RSMo. to order the records of the [division] with respect to this August 4, 1993 investigation and report removed and destroyed." He alleged that there remained insufficient evidence of any abuse or neglect on his part and that "justice and equity mandate that at this point in time, all records relating to this incident be destroyed."
The division filed a motion to dismiss for failure to state a claim. It asserted that petitioner failed to exhaust his administrative remedies; and that section "210.1504," as cited in the petition, did not exist, but that section 210.152, RSMo (1994) required the division to retain the reports described by petitioner. After briefing by both parties, the trial court ordered the claim dismissed and denominated the dismissal without prejudice. The court concluded that under section 210.150.4, RSMo (1994) petitioner was not entitled to expungement of the records because the division made a finding of "sufficient evidence" of abuse or neglect and that if petitioner never received notice of the findings, his administrative remedy remained viable. Petitioner appeals from the dismissal.
In his sole point on appeal, petitioner contends the trial court erred in granting the motion to dismiss. He contends that he stated a cause of action under section 210.150.4 because he sought the removal and destruction of any records relating to the administrative finding that he was the subject of a report of abuse or neglect.
Before addressing this issue, we must first determine whether this court has jurisdiction to hear this appeal. A reviewing court has a duty to determine, sua sponte, its jurisdiction. Doe v. Visionaire Corp., 13 S.W.3d 674, 675 (Mo. App. E.D. 2000). This court's jurisdiction may not be conferred by waiver, silence, or consent of the parties. Id.
The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appealable. Id. Ordinarily, when an action is dismissed without prejudice, a plaintiff may cure the dismissal by filing another suit in the same court. Balke v. Ream, 983 S.W.2d 579, 580 (Mo. App. W.D. 1998). An exception to this general rule is that an appeal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast by the plaintiff. Id. When the effect of the order is to dismiss a plaintiff's action and not merely the pleading, then the dismissal is appealable. Visionaire, 13 S.W.3d at 676.
Here, petitioner based his claim on section 210.150.4, which states in pertinent part:
After a period of not less than one year following a finding by the division, any person who is the subject of a report where there is insufficient evidence of abuse or neglect may petition the circuit court to order the records removed from the division and destroyed.
The statute, however, does not apply to petitioner because the division's report stated that there was "reason to suspect lack of supervision" by petitioner of two hospital residents. Section...
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