Stolfus v. Musselman & Hall Const., Inc.

• Decision Date: 28 July 1992
• Docket Number: No. WD,WD
• Citation: Stolfus v. Musselman & Hall Const., Inc., 845 S.W.2d 565 (Mo. App. 1992)
• Court: Missouri Court of Appeals
• Parties: Kenneth STOLFUS, Appellant, v. MUSSELMAN & HALL CONSTRUCTION, INC. and City of Kansas City, MO, Respondents. 45317.

Page 565

845 S.W.2d 565

Kenneth STOLFUS, Appellant, v. MUSSELMAN & HALL CONSTRUCTION, INC. and City of Kansas City MO, Respondents.

No. WD 45317.

Missouri Court of Appeals Western District.

July 28, 1992.

R. Gregory Gore, Hyatt Legal Services, Independence, for appellant.

John G. Schultz, Niewald, Waldeck & Brown, Kansas City, for respondents.

Before SHANGLER, P.J., and KENNEDY and SMART, JJ.

SMART, Judge.

This appeal involves the issue of whether a plaintiff, after losing a trial in the associate circuit court and filing an application for trial de novo, may dismiss the cause of action in the circuit court and file another petition alleging the same cause of action in the associate circuit court. The trial court in this case held that the second action is barred by the doctrine of res judicata. This court reverses, holding that the doctrine of res judicata does not constitute a bar to the second action.

Plaintiff Stolfus filed a negligence action in associate circuit court against Defendant Musselman and Hall Construction, Inc. (hereafter "Musselman"). Following a trial, the court entered judgment for defendant Musselman. Plaintiff, pursuant to § 512.180, RSMo 1986, filed an application for trial de novo. In the circuit court, upon motion of the plaintiff, the court dismissed plaintiff's cause of action without prejudice.

Plaintiff Stolfus subsequently filed a new petition for damages in the associate circuit court. When the case was called to trial, defendants ¹ raised the defense of res judicata, contending that the then pending action was barred by res judicata due to the fact that the case was previously tried to judgment in the associate circuit court. The trial court agreed, granting defendants a judgment of dismissal with prejudice on grounds of res judicata. This court reverses that judgment, and remands the case for a trial on the merits.

Appellant Stolfus argues that he was entitled to dismiss his cause of action in the circuit court and refile in the associate circuit court. Stolfus correctly recognizes the significant distinction between the dismissal of an application for trial de novo and the dismissal of a cause of action. Although the dismissal of an application for trial de novo results in a reinstatement of the judgment of the associate circuit court, the dismissal of a cause of action results in the total abrogation of the associate circuit judgment as though there had never been one. McClellan v. Sam Schwartz Pontiac, Inc., 338 S.W.2d 49 (Mo.1960); Aubuchon v. Ayers, 400 S.W.2d 472 (Mo.App.1966). Stolfus is correct, therefore, that in the case of a dismissal of a cause of action there can be no res judicata upon the filing of a subsequent petition against the same parties. McClellan, 338 S.W.2d at 52.

Defendant Musselman, relying upon the case of Dallavalle v. Berry Grant Co., 462 S.W.2d 175 (Mo.App.1970), argues that, on principles of equity, the court can impose the doctrine of res judicata where the dismissing and refiling party would gain some undue advantage by being able to dismiss and refile. Musselman argues that, if res judicata does not apply, there is nothing to prohibit the unsuccessful plaintiff in associate circuit court from filing an application for trial de novo, and then dismissing his cause of action, then filing again in associate circuit court, and repeating the process until the defendant finally gives up and settles or until plaintiff finally prevails. ²

In Dallavalle, the plaintiffs had filed an action for unlawful detainer in magistrate court. After losing the case in magistrate court, the plaintiffs invoked their right to trial de novo in the circuit court. Before trial in that court, without leave of court, the plaintiffs voluntarily dismissed both their appeal and their cause of action. Thereafter the defendants, anticipating the plaintiffs would file a second suit for unlawful detainer, and desiring to establish a defense of res judicata, moved the circuit court "for affirmance" of the magistrate judgment (with the intention that such an order would render ineffective the dismissal of the cause of action). The circuit court granted the motion for affirmance of the magistrate judgment, and the plaintiffs appealed from that order.

The Dallavalle court reversed the order of affirmance because there was no pending judgment which could be affirmed, but also took the unusual step of remanding the case with instructions to set aside the dismissal and enter an order denying plaintiffs' motion to dismiss. ³ Id. Thus, the court in Dallavalle put the parties back where they would have been if there had been no dismissal in the circuit court.

This court in this case has no authority to set aside the voluntary dismissal in the circuit court. This case does not come as an appeal from the circuit court, where the case was dismissed without prejudice, but rather as an appeal from the associate circuit court judgment of dismissal on grounds of res judicata. Therefore, the only issue before this court is the issue of res judicata. On that issue, this court holds that the dismissal was error.

Since, as recognized in many cases, including Dallavalle, the dismissal without prejudice on trial de novo of a cause of action abrogates the effect of the judgment below, there is no existing judgment upon which a determination of res judicata can be predicated. The original associate circuit judgment is void as a matter of law. McClellan v. Sam Schwartz Pontiac, Inc., 338 S.W.2d 49 (Mo.App.1960); Silent Automatic Sales Corp v. Stayton, 45 F.2d 476 (8th Cir.1930). It is not enough that there has been a previous trial of the issues. The doctrine of res judicata requires the existence of a previous judgment. Noll v. Noll, 286 S.W.2d 58 (Mo.App.1956) (judgment must be final and on the merits); see 46 Am.Jur.2d Judgments § 465 (1969). Trial de novo is a statutorily created exception to the principle...