Solberg v. Graven, No. 26684.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPer Curiam
Citation174 S.W.3d 695
Decision Date25 October 2005
Docket NumberNo. 26684.
PartiesBenjamin SOLBERG and Jessica Solberg, Respondents, v. Bobby GRAVEN, Christie Lynn Graven, Jason Coatney, and Jamie Coatney, Appellants.

Page 695

174 S.W.3d 695
Benjamin SOLBERG and Jessica Solberg, Respondents,
v.
Bobby GRAVEN, Christie Lynn Graven, Jason Coatney, and Jamie Coatney, Appellants.
No. 26684.
Missouri Court of Appeals, Southern District, Division Two.
October 25, 2005.

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COPYRIGHT MATERIAL OMITTED

Page 697

Craig F. Lowther, Lowther Johnson, Springfield, Appellants.

Larry K. Bratvold, Bratvold Law Firm, Springfield, for Respondents.

Before BATES, C.J., GARRISON, J., and BARNEY, J.

PER CURIAM.


This appeal arises from a petition brought by Respondents Benjamin Solberg and Jessica Solberg ("Plaintiffs") against Appellants Bobby Graven, Christie Lynn Graven, Jason Coatney and Jamie Coatney which sought specific performance of a real estate sales contract involving land in Christian County, Missouri, and which also sought declaratory relief.

Defendants Bobby and Christie Graven ("Defendants Graven") filed an answer and counter-claim. Prior to the taking of evidence or swearing of any witnesses, Plaintiffs voluntarily dismissed their case without prejudice. Defendants Graven then sought to proceed with their counter-claim. At that point, Plaintiffs made an oral motion to dismiss Defendants Gravens' counter-claim for failure to state a cause of action. This motion was granted; whereupon, the trial court dismissed Plaintiffs' action and Defendants Gravens' counter-claim and awarded costs to Defendants Graven.

Thereafter, Defendants Graven filed a post-trial motion for the assessment of costs as well as a motion requesting the trial court to reconsider its judgment. Additionally, Defendants Graven filed a series of certified cost statements from Freeman and Associates Court Reporting Service which showed Defendants were charged a total of $l,055.00 for five depositions held in connection with the litigation at hand. Again, the trial court denied these motions. This appeal followed.

Rule 67.03 provides that "[a]ny involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify." George Ward Builders, Inc. v. City of Lee's Summit,

Page 698

157 S.W.3d 644, 647 (Mo.App.2004).1 Since the trial court's order dismissing the counterclaim of Defendants Graven did not specify that the dismissal was with prejudice, we must decide whether they have appealed from a final judgment so as to vest this Court with appellate jurisdiction. "The finality of a judgment is a jurisdictional prerequisite and it is the duty of a court sua sponte to determine its jurisdiction, and if a judgment is not final a court must dismiss the appeal." Spence v. Spence, 922 S.W.2d 442 (Mo.App.1996). "The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appealable." Rosenfeld v. Thoele, 28 S.W.3d 446, 449 (Mo.App.2000). However, there are exceptions. As our Supreme Court said in Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962):

When a petition is dismissed on the ground that it fails to state a claim upon which relief can be granted, the ensuing judgment of dismissal is final and appealable. The fact that the plaintiff may, if he chooses, bring another action for the same cause does not alter the fact that that judgment was a final adjudication as to that petition and if plaintiff chose to stand on that petition, the judgment was final and appealable.

Id. at 699. The counter-claim of Defendants Graven was dismissed for failure to state a cause of action and was a final adjudication of the sufficiency of that pleading. Thus, the judgment in the case at bar is final and appealable.2

On appeal, Defendants Graven raise two points of trial court error. In their first point, they maintain the trial court erred in determining their counter-claim failed to state a cause of action for liquidated damages and attorney fees. In their second point, there are assertions of trial court error resulting from the trial court's refusal to award their deposition costs to them. We affirm. Defendants Gravens' first point lacks merit, and their second point seeks premature review of an issue that has not yet been decided by the trial court.

Turning now to Point One, Defendants Graven maintain the trial court erred in dismissing their counter-claim for failure to state a cause of action. Their counter-claim reads, in part pertinent to our review, as follows:

22. That the Plaintiffs have alleged that a contract was entered into between Defendants Graven.3

23. That if said contract was entered into, the contract provides that the prevailing party receive 10 [percent] of the total sales price plus reasonable attorney fees.

24. Such sums should be awarded to Defendants Graven.

"When a petition is attacked by motion to dismiss for failure to state a claim, the mere conclusions of the pleader are not admitted." Matt v. Burrell, Inc., 892 S.W.2d 796, 798 (Mo.App.1995). We review the petition "in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc

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1993). "No attempt is made to weigh any facts alleged as to whether they are credible or persuasive." Id. "The ruling on a motion to dismiss is ordinarily confined to the face of the petition, which must be given a liberal construction." Matt, 892 S.W.2d at 796.

Our review is a de novo examination of whether the petition or counter-claim invokes principles of substantive law. Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003). Rule 55.05 provides, in part, that a "pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plan statement of the facts showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader claims to be entitled." "The pleadings must identify the facts upon which the plaintiff's claim rests." Berkowski v. St. Louis County, 854 S.W.2d 819, 823 (Mo.App.1993); see also ITT Comm'l Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 379 (Mo. banc 1993). "Where, as here, the trial court does not provide reasons for dismissal of the petition, we presume the decision was based on grounds stated in the dismissal motions and will affirm if dismissal was appropriate on any grounds stated therein." Id.

We determine the trial court did not err in dismissing Defendants Gravens' cause of action for failure to state a claim. This is because their allegations at paragraph 24 are unquestionably conclusory. There are no ultimate facts pleaded showing how and why, in the event there is a valid contract, they would be considered the prevailing party, which would thereby entitle them to attorney fees and liquidated damages. "Missouri rules of civil procedure demand more than mere conclusions that the pleader alleges without...

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7 practice notes
  • Pikey v. Bryant, No. 27570.
    • United States
    • Court of Appeal of Missouri (US)
    • October 30, 2006
    ...stated in the dismissal motions and will affirm if dismissal was appropriate on any grounds stated therein." Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App.2005) (quoting Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003)). In the instant case, Defendant's motion to dismiss alleged,......
  • Jennings v. Bd. of Curators of Mo. State Univ., No. SD 31900.
    • United States
    • Court of Appeal of Missouri (US)
    • September 18, 2012
    ...alleges without supporting facts.” Pulitzer Pub. v. Transit Cas. Co., 43 S.W.3d 293, 302 (Mo. banc 2001); see also Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App.2005). We disregard such conclusions in determining whether a petition states a claim. Solberg, 174 S.W.3d at 699.Count I—Good Fa......
  • Allen v. City of Greenville, No. SD 30594.
    • United States
    • Court of Appeal of Missouri (US)
    • March 23, 2011
    ...a motion to dismiss is ordinarily confined to the face of the petition, which must be given a liberal construction.’ ” Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App.2005) (quoting Matt v. Burrell, Inc., 892 S.W.2d 796 (Mo.App.1995)). Where, as here, the trial court does not provide a basis......
  • State ex rel. Bibbs v. Director of Revenue, No. WD 67538.
    • United States
    • Court of Appeal of Missouri (US)
    • November 6, 2007
    ...dismissal without prejudice is not a final judgment and, therefore, is not appealable" and must be dismissed. Solberg v. Graven, 174 S.W.3d 695, 698 (Mo.App. S.D.2005). "A party can, however, appeal from a dismissal without prejudice if the dismissal has the practical effect of te......
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7 cases
  • Pikey v. Bryant, No. 27570.
    • United States
    • Court of Appeal of Missouri (US)
    • October 30, 2006
    ...stated in the dismissal motions and will affirm if dismissal was appropriate on any grounds stated therein." Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App.2005) (quoting Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003)). In the instant case, Defendant's motion to dismiss alleged,......
  • Jennings v. Bd. of Curators of Mo. State Univ., No. SD 31900.
    • United States
    • Court of Appeal of Missouri (US)
    • September 18, 2012
    ...alleges without supporting facts.” Pulitzer Pub. v. Transit Cas. Co., 43 S.W.3d 293, 302 (Mo. banc 2001); see also Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App.2005). We disregard such conclusions in determining whether a petition states a claim. Solberg, 174 S.W.3d at 699.Count I—Good Fa......
  • Allen v. City of Greenville, No. SD 30594.
    • United States
    • Court of Appeal of Missouri (US)
    • March 23, 2011
    ...a motion to dismiss is ordinarily confined to the face of the petition, which must be given a liberal construction.’ ” Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App.2005) (quoting Matt v. Burrell, Inc., 892 S.W.2d 796 (Mo.App.1995)). Where, as here, the trial court does not provide a basis......
  • State ex rel. Bibbs v. Director of Revenue, No. WD 67538.
    • United States
    • Court of Appeal of Missouri (US)
    • November 6, 2007
    ...dismissal without prejudice is not a final judgment and, therefore, is not appealable" and must be dismissed. Solberg v. Graven, 174 S.W.3d 695, 698 (Mo.App. S.D.2005). "A party can, however, appeal from a dismissal without prejudice if the dismissal has the practical effect of te......
  • Request a trial to view additional results

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